¹ See infra notes 12-22 and accompanying text.

² See infra note 21.

³ See infra notes 93-98 and accompanying text.

⁴ 21 C.F.R. § 1308.12(1983).

⁵ 21 U.S.C. §841 (1976).

⁶ See infra notes 28-32 and accompanying text.

⁷ See infra notes 44-47 and accompanying text.

⁸ Comprehensive Drug Abuse Prevention And Control Act of 1970, 21 U.S.C. §§ 801- 966 (1976).

⁹ See infra notes 82-92 and accompanying text.

¹⁰ See infra notes 109-36 and accompanying text.

¹¹ See infra notes 137-46 and accompanying text.

¹² Jaffe, & Martin, , Narcotic Analgesics and Antagonists, in The Pharmacological Basis of Therapeutics 245 (5th ed. 1975)Google Scholar; Meyers, F., Jawetz, E. & Goldfien, A., Review of Medical Pharmacology 266-67 (6th ed. 1978)Google Scholar [hereinafter cited as Medical Pharmacology]. Narcotics also may be artificially synthesized. Id.

¹³ Hofmann, F., A Handbook on Drug and Alcohol Abuse: the Biomedical Aspects 68 (1975)Google Scholar; Jaffe & Martin, supra note 12, at 247 (“In man, morphine produces analgesia, drowsiness, changes in mood, and mental clouding.”). See also Medical Pharmacology, supra note 12, at 266-67. In therapeutic doses, narcotics are analgesics, i.e., pain relievers, while in larger doses, they function as general depressants. Id. at 266.

¹⁴ Jaffe & Martin, supra note 12.

¹⁵ Id. at 254 (“The development of tolerance and physical dependence with repeated use is a characteristic feature of all the opioid drugs . . . .”). “Tolerance" is generally defined to mean that “repeating the same dose [of a drug] causes a diminishing response.” Dyke, Van & Byck, , Cocaine, 246 Sci. Am. 128, 140 (1982)CrossRefGoogle ScholarPubMed. See also Jaffe, , Drug Addiction and Drug Abuse, in The Pharmacological Basis of Therapeutics 284, 286-87, 295-97, (5th ed. 1975)Google Scholar. Jaffe notes that “the term addiction, like the term abuse, has been used in so many ways that it can no longer be employed without further elaboration.” Id. at 285. Nevertheless, “[o]ne longstanding medically accepted definition of the term ['addictive'] is derived from the description of opiate effects. For a drug to be considered addictive a person must develop tolerance for it. . . [and] the drug must lead to physical dependence . . . .” Vand Dyke & Byck at 140.

¹⁶ Ritchie, & Cohen, , Cocaine, Procaine and Other Synthetic Local Anaesthetics, in the Phar Macological Basis of Therapeutics 379, 386 (5th ed. 1975)Google Scholar.

¹⁷ Id.; Medical Pharmacology, supra note 12, at 220.

¹⁸ Medical Pharmacology, supra note 12, at 220, 300-01; Jaffe, supra note 15, at 302.

¹⁹ Ritchie & Cohen, supra note 16, at 386-88.

²⁰ Id.

²¹ See, e.g., Jaffe, supra note 15. See also Van Dyke & Byck, supra note 15, at 140 (Cocaine is not addicting according to the medically accepted definition because its users do not develop a tolerance for the drug or a physical dependence upon it. The drug is, however, “severely habit-forming.”).

²² Van Dyke & Byck, supra note 15, at 140. There is one authority that initially appears to be to the contrary. Ritchie & Cohen, supra note 16, states that: “[both] addiction and tolerance can result from the continued use of cocaine,” id. at 388, suggesting that cocaine possesses the characteristics of the narcotics. However, the authors do not elaborate on this statement; rather, they refer the reader to Jaffe’s chapter in the same volume (the Pharmacological Basis of Therapeutics). Jaffe, supra note 15, states only that addiction and tolerance to cocaine are possible but have not been demonstrated. Id. at 304. Most important, the chapter that deals exclusively with narcotics, Jaffe & Martin, supra note 12, does not mention cocaine. Thus, even if Ritchie & Cohen intended to assert that cocaine resembles the narcotics, that assertion is not supported by the other chapters of The Pharmacological Basis of Therapeutics to which they refer. But cf. Wetli, & Wright, , Death Caused by Recreational Cocaine Use, 241 J. A.M.A. 2519, 2519 (1979)CrossRefGoogle ScholarPubMed (Although the authors acknowledge that cocaine is pharmacologically not a narcotic, they characterize it as one because it “is often used in conjunction with narcotics and because it is statutorily classified as a narcotic”).

²³ Brecher, E., Licit and Illicit Drugs 3 (1972)Google Scholar. Brecher describes nineteenth-century America as a “dope fiend’s paradise."

²⁴ Helms, Lescault & Smith, , Cocaine: Some Observations on its History, Legal Classification and Pharmacology, 4 Contemp. Drug Probs. 195, 197 (1975)Google Scholar.

²⁵ Id.

²⁶ Id.

²⁷ Id.

²⁸ Id. at 198-202; McLaughlin, , Cocaine: The History and Regulation of a Dangerous Drug, 58 Cornell L. Rev. 537, 558, 568 (1973)Google Scholar.

²⁹ Until recently scientific knowledge about cocaine use and abuse was very limited,

Grinspoon, & Bakalar, , Cocaine, in Handbook on Drug Abuse 241 (1979)Google Scholar.

³⁰ Eberle, & Gordon, , Report of the Committee on the Acquirement of Drug Habits, 75 Am. J. Pharmacy 474, 485 (1903)Google Scholar, quoted in McLaughlin, supra note 28, at 544 n.54.

³¹ Helms, Lescault & Smith, supra note 24, at 198-203. A 1914 Literary Digest article stated that “most attacks upon white women of the South are the direct result of the cocaine- crazed Negro brain.” Koch, , The Drug Habit Menace in the South, 28 Literary Dig. 687 (1914)Google Scholar, quoted in Helms, Lescault & Smith, supra note 24, at 199. Contemporaneous scientific studies contradicted such assertions and indicated that cocaine use was more prevalent among whites. Id. at 201. Although the reasons for the change in cocaine’s popular image are not altogether clear, some observers have noted a connection between cocaine’s changed image and racism. Id. at 198-203; See also People v. McCarty, 93 Ill. App. 3d 898, 900, 418 N.E.2d 26, 28, rev'd, 86 Ill. 2d 247, 427 N.E.2d 147 (1981).

³² McLaughlin, supra note 28, at 558, 568.

³³ Helms, Lescault & Smith, supra note 24, at 200-02.

³⁴ Harrison Act, Pub. L. No. 223, Ch. 1, 38 Stat. 785 (1914) (repealed 1970). See infra notes 56-58 and accompanying text.

³⁵ Grinspoon & Bakalar, supra note 29, at 241-42; Van Dyke & Byck, supra note 15, at 128 (“[T]he assessment of the medical and psychological complications of short and long-term cocaine usage has only recently begun.”).

³⁶ Grinspoon & Bakalar, supra note 29, at 242.

³⁷ Id.

³⁸ Id. at 243; Gay, , Cocaine in Perspective, in Medical Aspects of Drug Abuse 57, 63 (1975)Google Scholar (“Cocaine is probably the best example of a substance with which neither tolerance nor physical dependence develops but which nonetheless can lead to a profound and dangerous type of drug abuse.”). The dependency-producing characteristics of cocaine vary according to how the drug is used:

Van Dyke and Byck, supra note 15, at 140.

³⁹ Grinspoon & Bakalar, supra note 29, at 242; see also Nicholi, , The Nontherapeutic Use of Psychoactive Drugs: A Modern Epidemic, 308 New Eng. J. Med. 925, 927 (1983)CrossRefGoogle ScholarPubMed.

⁴⁰ Grinspoon & Bakalar, supra note 29, at 244. A recent report suggests that Americans’ use of cocaine has become so widespread in the past few years as to present a major social problem. See Andersen, , Crashing on Cocaine, Time, April 11 , 1983, at 22Google Scholar. “[D]rug counselors estimate that... at least 200,000, perhaps 1 million [Americans], are now profoundly depen dent on cocaine ....” Id. at 23. See also Demarest, , Cocaine: Middle Class High, Time, July 6 , 1981 at 56Google Scholar; Nicholi, supra note 39, at 927 (“Approximately 10 million Americans have used the drug.”). Cf. Van Dyke & Byck, supra note 15, at 128 (“Estimates of the . . . consumption of cocaine are subject to the biases of the reporting source and should therefore be viewed with skepticism.”).

⁴¹ Demarest, supra note 40, at 63; Van Dyke & Byck, supra note 15, at 141 (“The main threat to North American . . . society from cocaine is the waste of human potential that would result from widespread consumption.”).

⁴² Demarest, supra note 40, at 61.

⁴³ See Van Dyke & Byck, supra note 15, at 128; Demarest, supra note 40.

⁴⁴ Helms, Lescault & Smith, supra note 24, at 213; Van Dyke & Byck, supra note 15, at 141 (“Medically cocaine is a relatively safe drug, but in the hands of naive people it can lead to self-destructive behavior.”); Grinspoon & Bakalar, supra note 29, at 244 (“[C]ocaine has a real potential for abuse, but at the present level of use it does not present many serious social or medical problems.”); People v. McCarty, 93 Ill. App. 3d 898, 900, 418 N.E.2d 26, 28, rev'd, 86 Ill. 2d 247, 427 N.E.2d 147 (1981) (“It is the consensus within the scientific and medical community that cocaine is a drug with low abuse potential and not very dangerous.”).

⁴⁵ Grinspoon & Bakalar, supra note 29, at 242.

⁴⁶ Id. at 243. Cocaine use by individuals can cause physical aggression and crime, yet “there is no evidence of any consistent association.” Id.

⁴⁷ E. Brecher, supra note 23, at 475 (“The amount of harm done to the human body by nicotine and alcohol. . . vastly exceeds the physical harm done by all of the other psychoactive drugs put together.”); Van Dyke & Byck, supra note 15, at 141 (“We have legalized both alcohol and tobacco, which, although pleasurable to some people, are distinct health hazards to both personal and public health.”). In United States v. Castro, 401 F. Supp. 120 (N.D. Ill. 1975), the court quoted the following testimony of Dr. Andrew T. Weil:

401 F. Supp. at 124.

⁴⁸ "Although research and evaluation have contributed to more informed discussion within the drug field, effective communication of these new, emerging concepts to the general public has been slow to develop.” Goldberg, & Meyers, , The Influence of Public Understanding and Attitudes on Drug Education and Prevention, in The Facts About Drug Abuse 136-38 (The Drug Abuse Council, Ford Foundation, Final Report 1980)Google Scholar.

⁴⁹ Id. at 137.

⁵⁰ Id. at 137-38.

⁵¹ Van Dyke & Byck, supra note 15, at 141. See also McLaughlin, supra note 28, at 558 (“There have been few areas of the law in which there has been a more active mythology than in the field of drug abuse, and there may be few drugs more ‘mythologized’ than cocaine.”).

⁵² See supra notes 44-47 and accompanying text.

⁵³ Stories about cocaine often suggest that it is a uniquely desirable drug and is therefore more subject to abuse than other drugs. See, e.g., Demarest, supra note 40, at 58 (“Cocaine is the caviar of drugs . . . .”); Id. at 59 (“A cocaine high is an intensely vivid, sensation-enhancing experience . . . .”); Andersen, supra note 40; cf. Van Dyke & Byck, supra note 15, at 128 (“[Cocaine’s] ability to produce a unique ‘high’ may be overrated.”).

⁵⁴ In 1962, one commentator wrote: " ‘Narcotics’ is a term of convenience used to designate opium, cocaine, marijuana, and their derivatives, and the many synthetic com pounds which produce physiological results similar to those of the natural drugs.” Eldridge, W., Narcotics and the Law 1 (1962)2.0.CO;2>CrossRefGoogle Scholar. Many Americans still understand the term to refer to all drugs, with the exception of alcohol, nicotine, caffeine and, perhaps, marijuana.

⁵⁵ McLaughlin, supra note 28, at 561. McLaughlin’s article presents a detailed history of federal and state cocaine regulation.

⁵⁶ Harrison Act, Pub. L. No. 223, Ch. 1, 38 Stat. 785 (1914) (repealed 1970).

⁵⁷ Id. § 1.

⁵⁸ Id. § 3, 38 Stat. 787.

⁵⁹ Ch. 9, 38 Stat. 275 (1914) (repealed 1970). The Narcotic Drugs Import and Export Act was first enacted in 1909, ch. 100, 35 Stat. 614.

⁶⁰ Act of May 26, 1922, ch. 202, § 1, 42 Stat. 596 (repealed 1970). The Act amended § 1 of the Narcotic Drugs Import and Export Act, Act of Feb. 9, 1909, ch. 100, 35 Stat. 614 (repealed 1970) to read: “[t]he term ‘narcotic drug’ means opium, coca leaves, cocaine or any salt, derivative or preparation of opium, coca leaves or cocaine.”

⁶¹ McLaughlin, supra note 28, at 567.

⁶² Unif. Narcotic Drug Act, § 1 (1932), reprinted in W. Eldridge, supra note 54, at 133-47 (1962). As of 1954, 44 states had adopted the Act in some form. Note, Narcotics Regulation, 62 Yale L.J. 751, 769-70 (1954)Google Scholar.

⁶³ Between 1922 and 1970, federal legislation changed little except for increases in penalties. See McLaughlin, supra note 28, at 562-66. See also Hughes, , United States Narcotics Laws, 1964 Crim. L. Rev. 520Google Scholar.

⁶⁴ 21 U.S.C. §§ 801-966 (1976).

⁶⁵ Id. § 812(a).

⁶⁶ Id. § 812(b).

⁶⁷ Id. §811.

⁶⁸ Id. § 812(b)(1).

⁶⁹ 21 C.F.R. § 1308.11 (1981). The content of the Schedules has changed since DAPCA’s enactment. These changes reflect action of the Attorney General under 21 U.S.C. § 811 (1976). See supra note 67 and accompanying text. The Schedules’ original content is set out at 21 U.S.C. § 812(c); their present content is set out at 21 C.F.R. §§ 1308.11-.15 (1981). For a description of the pharmacology of the drugs in the Schedules, see Medical Pharmacology, supra note 12, inside front cover.

⁷⁰ 21 C.F.R. § 1308.12 (1981).

⁷¹ Id. §§ 1308.13-.14 (1976).

⁷² Id. §§ 1308.13-.15. Schedules III and IV also include composite drugs that contain small amounts of narcotics. Id.

⁷³ 21 U.S.C. §802(16) (1976).

⁷⁴ Compare Act of May 26, 1922, ch. 202, § 1, 42 Stat. 596 (repealed 1970) (“The term ‘narcotic drug’ means opium, coca leaves, cocaine or any salt, derivative or preparation of opium, coca leaves or cocaine.”) with 21 U.S.C. § 802(16):

⁷⁵ 21 C.F.R. §§ 1308.11-.15 (1981). When DAPCA was first enacted, Schedule IV con tained nonnarcotic drugs only. 21 U.S.C. § 812(c) (1976). Schedule V presently contains narcotic drugs only. 21 C.F.R. § 1308.15 (1981).

⁷⁶ See id. § 841(b). Despite the existence of the five Schedules and the “narcotic"- "nonnarcotic" distinction, DAPCA provides only four classes of penalties for drug violations: § 841(b)(1)(A) (Schedule I and II “narcotic" drugs), § 841(b)(1)(B) (Schedule I and II “non narcotic" drugs and Schedule III drugs), § 841(b)(2) (Schedule IV drugs), and § 841(b)(3) (Schedule V drugs). There are two exceptions to these classes; special penalty provisions exist for certain offenses involving marijuana, id. § 841(b)(4), (b)(6), and phencyclidine and piperidine, id. § 841(b)(5), (d).

⁷⁷ Id. §841(b)(l)(A).

⁷⁸ Id. § 841(b)(1)(B).

⁷⁹ Id.

⁸⁰ Id. § 841(b)(2)-(b)(3).

⁸¹ Id. § 841(b)(l)(B)-(b)(3). Drugs listed in Schedules III, IV, and V that are classified as “narcotics" are available in diluted form only.

⁸² Id. § 802(16); see infra note 83 and accompanying text.

⁸³ Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings on H.R. 17463 Before the House Comm. on Ways and Means, 91st Cong., 2d Sess. 212 (1970) [hereinafter cited as Hearings on H.R. 17463] (statement of R. Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, Department of Justice). Numerous bills were considered and amended before H.R. 18583,91st Cong., 2d Sess., (1970), was enacted into law. H.R. 18583 was a “clean bill" introduced by the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce following hearings on H.R. 13742, 91st Cong., 2d Sess., and H.R. 13743, 91st Cong., 2d Sess., in February and March, 1970. See Staff Of The House Ways And Means Comm., Comparison of Bills to Regulate Controlled Dangerous Substances and to Amend the Narcotic and Drug Laws 3 (Comm. Print 1970)Google Scholar [hereinafter cited as Comparison of Bills]. H.R. 18583 initially dealt with “dangerous drugs,” not including narcotics, id., whereas H.R. 17463, 91st Cong., 2d Sess. (1970), dealt with narcotics. Id. Sometime between August and September 1970, H.R. 18583 was amended to cover narcotics as well as other dangerous drugs. Compare id. with House Comm. on Interstate and Foreign Commerce, Comprehensive Drug Abuse Prevention and Control Act of 1970, H.R. Rep. No. 91-1444 (pt. 1) 2, 91st Cong., 2d Sess. (1970). Apparently, the amendment consisted in large part of incorporation of H.R 17463 into H.R. 18583.

⁸⁴ Comparison of Bills, supra note 83, at 2.

⁸⁵ H.R. 18583, 91st Cong., 2d Sess. (1970). See supra note 83.

⁸⁶ 116 Cong. Rec. 33,300 (1970).

⁸⁷ Id. at 33,627.

⁸⁸ Hearings on H.R. 17463, supra note 83, at 297-316.

⁸⁹ Id. at 307-13.

⁹⁰ 383 F. Supp. 1212 (D.NJ. 1974), aff'd mem., 524 F.2d 1404 (3d Cir. 1975).

⁹¹ Id. at 1216.

⁹² See supra note 76 and accompanying text.

⁹³ 21 U.S.C. § 802(16) (1976).

⁹⁴ Drug control statutes in 23 states provide more severe penalties on the basis of cocaine’s classification as a narcotic. Ark. Stat. Ann. §§ 82-2601, 82-2607, 82-2617 (1976); Cal. Health & Safety Code §§ 11019, 11055, 11350.35 (West 1975); Conn. Gen. Stat. Ann. §§ 19-443, 19-450a, 19-480, 19-481 (West 1977 & Supp. 1982); Del. Code Ann. tit. 16 §§ 4701, 4716, 4751-53 (1975); Ill. Ann. Stat. ch. 56&1/2, §§ 1102, 1206, 1401 (Smith-Hurd 1979); Iowa Code Ann. §§ 204.101, .206.401-.413 (West Supp. 1982); Kan. Stat. Ann. §§ 65-4101, 4107, 4127A, 4127B (1980); Ky. Rev. Stat. Ann. §§ 218A.010, .070, .990 (1982); La. Rev. Stat. Ann. §§ 40:961, 964, 966-68 (West 1977 & Supp. 1983); Md. Ann. Code art. 27, §§ 277, 279, 286 (1982); Minn. Stat. Ann. §§ 152.01, .02, .15 (West 1980 & Supp. 1983); Neb. Rev. Stat. §§ 28-401, 405, 416 (1979); N.J. Stat. Ann. §§ 24:21-2, 21-6, 21-9 (West Supp. 1982); N.H. Rev. Stat. Ann. §§ 318-B:1, B:26(I)(b) (Supp. 1981); N.M. Stat. Ann. §§ 30-31-2, -7, -20 to -23 (1982); N.D. Cent. Code §§ 19-03.1-02, -07, -23 (1981); Okla. Stat. Ann. tit. 63, §§ 2-101,-206, -401 (Supp. 1983); S.C. Code Ann. §§ 44-53-110, -210, -370 (Law. Co-op. 1977); Utah Code Ann. §§ 58-37-2, -4, -8 (1974 & Supp. 1981); Vt. Stat. Ann. §§ 4201,4224(1968) (The Vermont law does not employ a schedule system but it does provide more severe penalties for cocaine violations than for depressant and stimulant drug violations.); Wash. Rev. Code Ann. §§ 69.50.101, .206, .401 (Supp. 1982); W. Va. Code. §§ 60A-1-100, -2-206, -4-401 (1977); Wyo. Stat. Ann. §§ 35-7-1002, 1016, 1031 (1977).

In 16 states, cocaine is classified as a narcotic, but the classification does not affect the severity of penalties imposed. Ala. Code §§ 20-2-2, -25, -70 to -78 (1975); Ariz. Rev. Stat. Ann. §§ 13-3401 to 3411 (Supp. 1982); Ga. Code §§ 16-13-21,-26,-30 (1982 & Supp. 1982); Hawaii Rev. Stat. §§ 329-1, -16, -41 to -44 (1976); Idaho Code §§ 37-2701, -2707, -2732 to 2739 (1977); Mass. Ann. Laws ch.94C, §§ 1, 31, 32 (Michie/Law. Co-op. 1975); Miss. Code Ann. §§ 41-29-105,-115, -139 (Supp. 1982); Mo. Ann. Stat. §§ 195.010, .017, .200 (Vernon 1972 & Supp. 1983); Mont. Code Ann. §§ 50-32-101, -224, 45-9-101 to -202 (1981); Nev. Rev. Stat. §§ 453.101, .316 to .388 (1979); N.C. Gen. Stat. §§ 90-87, -90, -95 (1981 & Supp. 1981); Ohio Rev. Code Ann. §§ 3719.01, .41, 2925.01 to .51 (Page 1980); S.D. Codified Laws Ann. §§ 34-20B-1, -16, 22-42 (1977); Tenn. Code Ann. §§ 52-1409, -1415, -1432 (1977 & Supp. 1982); Tex. Rev. Civ. Stat. Ann. art. 4476-15, §§ 1.02, 2.04, 4.02-.04 (Vernon 1976 & Supp. 1982); Va. Code §§ 54-524.2, -524.84:6, 18-2-248 (1978 & Supp. 1981). In 11 states, cocaine is not classified as a narcotic. Alaska Stat. Ann. §§893.01-.15 (Supp. 1982); Colo. Rev. Stat. § 12-22-301 (Supp. 1982); Fla. Stat. Ann. §§ 893.01-.15 (West 1976 & Supp. 1982); Me. Rev. Stat. Ann. tit. 45, § 1101 (1983); Mich. Comp. Laws §§ 333.7107 (1980 & Supp. 1982); N.Y. Pub. Health Law § 3302 (McKinney 1971); Or. Rev. Stat. § 475.005 (1981); Pa. Stat. Ann. tit. 35, § 780-102 (Purdon 1977); R.I. Gen. Laws § 21-28-1.02 (1968); Wis. Stat. Ann. § 161.01 (West 1974).

⁹⁵ 9 Unif. Laws Ann. 187-94 (1981 Supp. West).

⁹⁶ See McLaughlin, supra note 28, at 571.

⁹⁷ See supra note 94.

⁹⁸ See supra note 94.

⁹⁹ E.g., People v. McCarty, 93 Ill. App. 3d 898, 901, 418 N.E.2d 26, 29, rev'd, 86 Ill. 2d 247, 427 N.E.2d 147 (1981). See also cases cited infra note 115. The fourteenth amendment to the U.S. Constitution provides that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1, cl. 2. The equal protection clause applies to federal laws through its incorporation into the due process clause of the fifth amendment. Boiling v. Sharpe, 347 U.S. 497 (1954). The clause requires that persons similarly situated be treated equally under the law. L. Tribe, American Constitutional Law § 16-2 (1978). Likewise, when a law is directed at a given class of persons to the exclusion of others, there must be a rational basis for such discrimination. Id.

¹⁰⁰ Distribution of a controlled substance is one of several offenses punishable under the various drug control statutes. DAPCA prohibits, inter alia, manufacture or distribution of and possession with intent to manufacture or distribute controlled substances. 21 U.S.C. § 841(a)(1) (1976).

¹⁰¹ E.g., People v. McCarty, 93 Ill. App. 3d 898, 901, 418 N.E.2d 26, 29, rev'd, 86 Ill. 2d 247, 427 N.E.2d 147 (1981).

¹⁰² “[No person shall] be deprived of life, liberty, or property, without due process of law . . . .” U.S. Const. amend V. “[No state shall] deprive any person of life, liberty, or property, without due process of law . . . ."Id. amend. XIV, § 1. A law challenged as violative of fifth or fourteenth amendment substantive due process generally will be upheld so long as the law is rationally related to some legitimate state end. Williamson v. Lee Optical, 348 U.S. 483 (1955).

¹⁰³ E.g., People v. McCarty, 93 Ill. App. 3d at 900, 418 N.E.2d at 28-29.

¹⁰⁴ E.g., United States v. Brookins, 383 F. Supp. 1212, 1214 (D.N.J. 1974), off d, 524 F.2d 1404 (3d Cir. 1975); United States v. Castro, 401 F. Supp. 120, 122 (N.D. Ill. 1975). But see McCarty, 93 Ill. App. 3d at 902, 418 N.E.2d at 29.

¹⁰⁵ See supra note 22 and accompanying text. See also W. Eldridge, supra note 54, at 1; F. Hofmann, supra note 13, at 22 (“[After] the early decades of this century . . . the characteristics of drug abuse became better understood .... [I]t became possible to classify patterns of illicit drug usage on the basis of their pharmacological characteristics.”).

¹⁰⁶ "Changed facts" equal protection analysis is described infra note 121.

¹⁰⁷ McCarty, 93 Ill. App. 3d at 901, 418 N.E.2d at 29. This claim rests on the assumption that lack of scientific knowledge of drugs constituted a “fact" which formed a rational basis for classification of cocaine as a narcotic in 1922.

¹⁰⁸ See supra notes 77-78 and accompanying text.

¹⁰⁹ See McCarty, 86 Ill. 2d at 258, 427 N.E.2d at 152.

¹¹⁰ 383 F. Supp. 1212 (D.N.J. 1974), aff'd mem., 524 F.2d 1404 (3d Cir. 1975).

¹¹¹ Judicial review of laws challenged on equal protection grounds generally proceeds in one of two ways. In the vast majority of cases, courts will uphold the law so long as the statute or statutory classification is rationally related to a legitimate state end. L. Tribe, supra note 99, § 16-2, 16-3. This “minimal scrutiny" standard, see Gunther, , Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972)CrossRefGoogle Scholar, which amounts to a very strong presumption of constitutionality, L. Tribe, supra note 99, § 16-2, is based on a policy of judicial deference to legislative judgments. Id. § 16-4. Using minimum rationality analysis, courts require only that the challenged statute have a “conceivable" rational basis; actual rationality is not required. Id. § 16-3 (“Often only the Court’s imagination has limited the allowable purposes ascribed to government.”). Courts almost always find some “conceivable rational basis" for a challenged statute, however far-fetched. Id. § 16-3.

In a few rare cases, however, statutes have been held to violate the equal protection clause on the ground that the challenged statute lacked a rational basis. E.g, Reed v. Reed, 404 U.S. 71 (1971). See also Gunther, supra, at 33-37, and cases cited therein. Some commentators have questioned whether these cases actually relied on the absence of a rational basis under the traditional minimal scrutiny test. Id. at 33-34; Note, Legislative Purpose, Rationality and Equal Protection, 82 yale L.J. 123, 154 (1972)CrossRefGoogle Scholar.

In a limited class of cases, courts subject statutes to “strict scrutiny.” L. Tribe, supra note 99, § 16-6. Strict scrutiny is employed when a statute involves either a suspect classification, for example race, alienage or ancestry, or a fundamental right, id. § 16-6 to 16-8, such as the right of equal access to voting and to the courts. Id. § 16-7. Strict scrutiny almost inevitably leads to invalidation of the challenged statute. Id. § 16-6.

While most cases fit into one of the two above molds, some cases employ an intermediate standard of review. Examples of such cases are those involving classification by illegitimacy or by sex. Id. § 16-22 to 16-31. Intermediate review generally requires that a law be “substantially related" to an “important" state interest. Id. § 16-30. As noted above, supra note 102, substantive due process review also generally requires only the “minimum rationality" required under the equal protection clause.

¹¹² The Brookins defendants argued that strict scrutiny equal protection analysis should be used because the difference in penalties involved would subject them to ten years additional loss of liberty. 383 F. Supp. at 1216. The court rejected that argument, noting that even if cocaine were not classified as a “narcotic,” the defendants would still suffer loss of liberty. Id.

¹¹³ Id.

¹¹⁴ 383 F. Supp. at 1217.

¹¹⁵ United States v. Alexander, 673 F.2d 287 (9th Cir. 1982); United States v. Berry, 657 F.2d 270 (6th Cir. 1981) (unreported); United States v. Delagarza, 650 F.2d 1166 (10th Cir. 1981); United States v. Stieren, 608 F.2d 1135 (8th Cir. 1979); United States v. Vila, 599 F.2d 21 (2d Cir.), cert. denied, 444 U.S. 837 (1979); United States v. Solow, 574 F.2d 1318 (5th Cir. 1978); United States v. McCormick, 565 F.2d 286 (4th Cir. 1977); United States v. Wheaton, 557 F.2d 275 (1st Cir 1977); United States v. Umentum, 547 F.2d 987 (7th Cir. 1976), cert. denied, 430 U.S. 983 (1977).

¹¹⁶ See, e.g., People v. McCarty, 86 Ill. 2d 247, 258, 427 N.E.2d 147, 152 (1981) and cases cited therein.

The Uniform Controlled Substances Act is discussed supra notes 95-98 and accompanying text.

Most state constitutions have equal protection clauses similar to the clause contained in the United States Constitution. See supra note 102. E.g., Alaska Const. art. I, § 1; Cal. Const. art. I, § 7; Ill. Const. art. II, § 2; Me. Const. art. I, § 3; N.H. Const. art. I, § 1; Pa. Const. art. I, § 1; N.Y. Const. art. I, § 11.

¹¹⁷ In State v. Erickson, 574 P.2d 1 (Alaska 1978), the Alaska Supreme Court upheld the classification of cocaine as a narcotic under an “intermediate level" equal protection analysis. The court considered and discussed evidence of cocaine’s use and effects beyond that considered by the trial court because “the validity of legislation having major social consequences is at stake.” Id. at 4. The court concluded that the classification was “substantially related" to the legitimate state goal of regulating drugs. Id. at 18. “It seems clear that the legislature intended to proscribe [cocaine] and to impose similar penalties for its use as for opiates.” Id. at 16.

¹¹⁸ See infra notes 119-136 and accompanying text.

¹¹⁹ 93 Ill. App. 3d 898, 418 N.E.2d 26, rev'd, 86 Ill. 2d 247, 427 N.E.2d 147 (1981).

¹²⁰ Surprisingly, the same appellate court had upheld the constitutionality of the classification in an earlier case in which the identical issue was presented. In People v. Anderson, 74 Ill. App. 3d 363, 392 N.E.2d 938 (1979), the court held in a two-to-one decision that there was “an honest conflict of serious opinion" on the rationality of the classification, id. at 368, 392 N.E.2d at 942, and that the defendant had failed to meet his burden of showing that the classification lacked a rational basis. See id. at 367, 392 N.E.2d at 942. In a dissenting opinion, Justice Craven wrote:

Id. at 372-73, 392 N.E.2d at 945-46. This reasoning was later adopted by the appellate court in McCarty.

¹²¹ Courts have sometimes found statutes violative of equal protection because the facts which originally provided the basis for the classification have changed over time so that a rational basis for the classificiation no longer exists. See Brown v. Board of Education, 347 U.S. 483 (1954); Leary v. United States, 395 U.S. 6 (1969); United States v. Bishop, 555 F.2d 771 (10th Cir. 1977); Milnot Co. v. Richardson, 350 F. Supp. 221 (S.D. Ill. 1972); Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 308 (1973). Cf. United States v. Carolene Products Co., 304 U.S. 144, 153 (1938) (“[A] statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”) (dictum).

The Supreme Court has applied the changed facts analysis to drug statutes. In Leary, the Court overturned Timothy Leary’s conviction for possession of marijuana. The statute under which Leary was convicted prohibited possession of marijuana with knowledge that it had been imported illegally and provided that possession of marijuana create a presumption of knowledge of importation. 21 U.S.C. § 176(a). After considering evidence of the extent of foreign and domestic marijuana production at the time of the conviction, 395 U.S. at 39-52, the Court concluded that although the presumption was arguably valid when enacted, it was no longer valid in light of the current situation. Id. at 52-53. “A statute based upon a legislative declaration of fact is subject to attack on the ground that the facts no longer exist . . . .” Id. at 38 n.68.

¹²² 93 Ill. App. 3d at 901, 418 N.E.2d at 29. The appellate court’s decision relied on People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971). In McCabe, the Illinois Supreme Court upheld an equal protection challenge to the inclusion of marijuana in the Narcotic Drugs Act, Ill. Rev. Stat., ch. 38, § 22-1 et seq., on the ground that marijuana could not rationally be classified with the other drugs included in the Act. 49 Ill. 2d at 340, 275 N.E.2d at 408-09. The Narcotic Drug Act established a minimum ten-year sentence for marijuana offenses. The Drug Abuse Control Act, Ill. Rev. Stat. ch. 111& 1/2 para. 801 et seq. (repealed 1971), established a maximum one-year sentence for offenses involving drugs with properties similar to marijuana. People v. McCabe, 49 Ill. 2d at 340, 275 N.E.2d at 408-09. See also People v. McCarty, 86 Ill. 2d 247, 427 N.E.2d 147, 153 (1981); Bryant, Marijuana, Psilocybin, Peyote or Similar Drugs of Vegetable Origin as Narcotics For Purposes of Drug Prosecution, 50 A.L.R. 3d 1164 (1973)Google Scholar.

¹²³ 93 Ill. App. 3d at 899, 418 N.E.2d at 27, (quoting Ill. Rev. Stat. ch. 56 & 1/2, § 1100(4) (Smith-Hurd 1981)).

¹²⁴ 93 Ill. App. 3d at 899-900, 418 N.E.2d at 28.

¹²⁵ Id. at 900, 418 N.E.2d at 28.

¹²⁶ Id.

¹²⁷ Id. at 902, 418 N.E.2d at 29-30.

¹²⁸ People v. McCarty, 86 Ill. 2d 247, 427 N.E.2d 147 (1981).

¹²⁹ Ill. Ann. Stat. ch. 56&1/2, §§ 1102, 1206, 1401 (Smith-Hurd 1979).

¹³⁰ See supra note 111.

¹³¹ 86 Ill. 2d at 255, 427 N.E.2d at 151.

¹³² Id.

¹³³ Id. at 256-57, 427 N.E.2d at 151-52.

¹³⁴ Id. at 257, 427 N.E.2d at 152. The court also distinguished McCarty from People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971), the case on which the appellate court had relied, see supra note 124, on two grounds. First, the disparity in penalties involved in McCabe was far greater than the disparity in penalties in McCarty. McCarty, 86 Ill. 2d at 259, 427 N.E.2d at 153. Second, pending McCabe’s appeal, the legislature reclassified marijuana under the recently enacted Cannabis Control Act. Id. While the result reached by the supreme court in McCarty is sound, the distinction drawn between McCarty and McCabe seems strained. The disparity in penalties involved in McCabe certainly was greater than that in McCarty, yet, under the McCarty court’s “rational basis test,” it is unlikely that the ten-year penalty for marijuana offenses would be held unconstitutional. In McCabe, the court noted the reclassification of marijuana under the recently-enacted Cannabis Control Act and stated: "This reclassification is not inconsistent with what we have said here.” 49 Ill. 2d at 350, 275 N.E.2d at 413-14. Apparently, given the knowledge that the legislature had decided to reclassify marijuana, the McCabe court felt free to strike down the soon-to-be-replaced classification using what was actually a substantive due process standard. See Turkington, , Equal Protection of the Laws in Illinois, 25 De Paul L. Rev. 385, 413 (1976)Google Scholar. In McCarty, without any indication that the legislature would agree with a decision to reduce penalties for cocaine-related offenses, the court was reluctant to employ the nondeferential standard of review that the McCabe court had used ten years earlier.

¹³⁵ Id. at 254, 427 N.E.2d at 150.

¹³⁶ Id.

¹³⁷ An analogous argument applies to state drug control statutes that classify cocaine as a narcotic.

¹³⁸ See supra note 77 and accompanying text.

¹³⁹ See supra notes 69-73 and accompanying text.

¹⁴⁰ Furthermore, the language of DAPCA’s “narcotic" definition is nearly identical to the language describing drugs to be included in Schedule II. The definitional section, 21 U.S.C. §802(16) (1976), provides:

Schedule II includes:

unless listed in another schedule, any of the following substances . . . :

• (1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.

• (2) Any salt . . . identical with any of the substances referred to in clause (1) ....

• (3) Opium poppy and poppy straw.

• (4) Coca leaves and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

Id. § 812(c)(II)(a).

¹⁴¹ The absence of a logical reason for the classification suggests that Congress may have inadvertently enacted the comparatively more severe penalties for cocaine offenses. If Congress understood the term “narcotic" to mean simply “dangerous drug,” then adoption of the “narcotic" definition was unnecessary and redundant. If, on the other hand, Congress believed that the term “narcotic" describes scientifically verifiable properties of a drug, then application of that term to cocaine is incorrect.

¹⁴² See supra notes 136-37 and accompanying text.

¹⁴³ E. Brecher, supra note 23, at 521. See also Schroeder, R., the Politics of Drugs 151 (2d ed. 1980)Google Scholar (“For too long the drug field has been plagued by nonsense, misinformation, false propaganda and panic”).

¹⁴⁴ E. Brecher, supra note 23, at 521. In addition to misclassification of cocaine, “[a] major error of the current drug classification system is that it treats alcohol and nicotine—two of the most harmful drugs—essentially as non-drugs.” Id. at 525.

¹⁴⁵ Some might argue that increased knowledge of the characteristics of drugs and drug abuse merely illuminates the tremendous complexity of the problem, making a “solution" seem even further away, if attainable at all. Nevertheless, few would suggest abandoning our attempts to better understand the problem.

¹⁴⁶ See supra notes 12-15 and accompanying text.