United States v. Castro, 74 CR 556.

• Citation: 401 F. Supp. 120
• Decision Date: 12 February 1975
• Docket Number: No. 74 CR 556.,74 CR 556.
• Parties: UNITED STATES of America v. Jose CASTRO.
• Court: U.S. District Court — Northern District of Illinois

401 F. Supp. 120

UNITED STATES of America v. Jose CASTRO.

No. 74 CR 556.

United States District Court, N. D. Illinois, E. D.

February 12, 1975.

COPYRIGHT MATERIAL OMITTED

James M. Thompson, U. S. Atty., James M. Breen, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Thomas D. Decker, Federal Defender Program, Chicago, Ill., for defendant.

MEMORANDUM OPINION

WILL, District Judge.

The defendant herein, Jose Castro, is charged with distribution of 19 grams of cocaine in violation of 21 U.S.C. § 841 (a)(1). The defendant has moved to dismiss the indictment against him contending that cocaine has been arbitrarily and irrationally classified as a narcotic drug for penalty purposes, thereby exposing him to a harsher maximum penalty than prescribed for medically comparable drugs listed in 21 U.S.C. § 841 (b)(1)(B), in violation of the constitutional guarantees to due process, equal protection, and freedom from cruel and unusual punishment. While we find defendant's challenge to the pharmacological basis of Congress' classification of cocaine as a narcotic drug to be persuasive, we do not find that the penalty classification is so devoid of rationality, or so offensive to the concept of equal justice as to warrant our overturning the statute. For the reasons set forth hereinafter, defendant's motion to dismiss will be denied.

I

The Comprehensive Drug Abuse Prevention and Control Act of 1970 (1970 Drug Act), 21 U.S.C. § 801 et seq., establishes five schedules of controlled substances. The substances are grouped according to their potential for abuse, their medical usefulness, and the consequences of their use, 21 U.S.C. § 812. Cocaine is classified as a Schedule II substance for regulatory purposes based upon the following criteria:

(2) Schedule II. —

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

(C) Abuse of the drug or other substance may lead to severe psychological or physical dependence.

Those controlled substances listed in Schedules I and II of the 1970 Drug Act designated as narcotic drugs are grouped together under 21 U.S.C. § 841 (b)(1)(A) for penalty purposes. The statutory definition of a narcotic drug is contained in 21 U.S.C. § 802(16), which provides in relevant part:

The term "narcotic drug" means any of the following, whether produced directly or indirectly by the extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(A) Opium, coca leaves, and opiates.

(B) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates.

(C) A substance ... which is chemically identical with any of the substances referred to in clause (A) or (B).

Such term does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine.

Inclusion within the "narcotic drug" penalty classification of § 841(b)(1)(A) subjects a person upon conviction to a maximum of 15 years imprisonment and $25,000 fine plus a period of special parole. By contrast, those drugs in Schedules I and II which are considered non-narcotic, under § 841(b)(1)(B), carry a maximum of only 5 years imprisonment and $15,000 fine.

The defendant contends that, since cocaine is not a narcotic in the pharmacological sense, nor does it have the known properties and effects of a narcotic drug, it should have been classified by Congress along with substances exhibiting like characteristics as a non-narcotic drug for penalty purposes. Congress' failure to so classify cocaine within § 841(b)(1)(B) is alleged to be the result of misinformation, unsupported conclusions, and the perpetration of outdated drug mythology, none of which could provide a valid factual basis for the penalty system.

Since Congress allegedly acted upon insufficient or erroneous information, the defendant claims that there exists no actual rationality underlying the present penalty classification, violating his right to due process. He additionally claims that the more severe penalty for cocaine in relation to other drugs, which have lesser penalties although arguably posing more potential dangers, is arbitrary and discriminatory, violating the guaranties of equal protection and freedom from cruel and unusual punishment.

In support of his misclassification argument, the defendant has submitted numerous affidavits from medical experts, excerpts from pharmacological texts, and articles from medical journals. These materials appear to confirm, and even the government tends to agree, that cocaine is not a narcotic in a strict medical sense. The term narcotic is derived from the word narcosis, or in the original Greek, narkotikon, which means numbness or sleep. Any drug which produces sleep or drowsiness, has traditionally been defined as a narcotic. Drugs stemming from the opiate family, especially opium, morphine, heroin, and a variety of synthetic drugs which act as a depressant upon the central nervous system are narcotic drugs. In terms of effects, narcotics such as the opiates are generally addictive, running rapidly to tolerances, and causing severe physical withdrawal symptoms upon termination.

Cocaine, on the other hand, does not resemble the opiates in any pharmacological sense, but is universally identified with amphetamines. Far from being a depressant, cocaine is generally considered as an anti-fatigue, anti-soporific stimulant often used to stimulate alertness or euphoria. Its effects upon respiration, the central nervous system, and the gastro-intestinal tract, are different from those of narcotics. Cocaine is not addictive, but may be habituating much as marijuana, cigarette smoking, etc. Heavy users do not build up tolerances requiring greater dosages or more frequent usage. Nor does termination appear to cause withdrawal symptoms, although some older pharmacological texts and government affiants suggest possible psychological dependence stemming from the so-called cocaine psychosis with formication and paranoia in addition to depression. Defense experts, however, have discounted such reactions as either highly unusual, or the unsubstantiated product of drug mythology.

As explained by Dr. Norman E. Zinberg:

Once I began to study cocaine seriously, collect cases of people who had used it, and began to look for cases of untoward reactions, I found the stories I got were far different from what I had anticipated. So far I have been unable to locate a single cocaine psychosis although I have interviewed over 100 occasional users in the United States and about 20 people in Colombia who used cocaine many times a day for over five years. Neither occasional nor heavy users had reported the serious, profound depression upon cessation of use that is standard description in the literature. In my opinion, cocaine is not an addicting drug in the sense that there are no withdrawal syndromes.

Richard Ashley, an author who has written extensively on drug topics, states:

The only remaining justification, therefore, for listing cocaine under Schedule II and for the belief that cocaine is an especially dangerous drug is the still generally accepted notion that cocaine leads to severe psychological dependence. This notion is well stated by Edward Brecher, "The physical effects of cocaine withdrawal are minor.... However, cocaine withdrawal is characterized by a profound psychological manifestation — depression — for which cocaine itself appears to the user to be the only remedy.... The compulsion to resume cocaine is very strong." (Licit and Illicit Drugs, p. 276)

As Mr. Brecher subsequently discovered and informed me in December, 1973, the last two statements are erroneous.

After interviewing more than 75 cocaine users and consulting several other investigators, it is clear to me that the heavy depression that almost all current "authorities" insist follows on the discontinuation of cocaine is not a condition which any significant number of cocaine users have ever experienced. On the contrary, no `typical' user — that is, one who purchases a gram every two or three weeks — reported experiencing any recognizable discomfort on discontinuing use beyond that which everyone feels when something they like is no longer available. As for that very small number of users who both can afford and do indulge themselves extensively — a gram or even two per day — they do report frequently experiencing what is often called the "cocaine blues" when they discontinued use. But this is, according to their testimony, a condition characterized by lassitude, a condition with marked psychological similarities to an alcoholic hangover. It is only rarely a condition characterized by profound depression, or one that drives the user to seek relief in more cocaine.

Finally, as Dr. Andrew T. Weil asserts:

Cocaine is not a physiologically addicting drug. I have seen more people who were heavily dependent on coffee than on cocaine. The tobacco habit is much harder to break than is the habit of using cocaine. I believe that in our society cocaine is less dangerous than alcohol and the danger of becoming dependent on cocaine is less than the danger of becoming dependent on alcohol.

The patterns of cocaine use in our society are in no way comparable to the patterns of heroin use. Cocaine users tend to use their drug intermittently and rarely; they are just not mixed up with the kind of behavior seen among heroin users. I have observed no violent behavior or psychotic episodes among cocaine users.

Such observations inject a significant element of uncertainty as to the true nature and extent of psychological dependency, if any, resulting from the discontinuance of cocaine use. Even though the available body of knowledge will not permit us to draw conclusions as to...