*1 Alaska, Appellant, v. STATE ERICKSON, Jeffrey Muel Edward
James Laschober,
ler, Andrew Albert David
Vasconcellos, Anthony Phillips, Fred C. Douglas Sopko, Appel
J. McVicker
lees.
No. 3250.
Supreme Court of Alaska.
Jan. *2 Merriner, Atty.,
Charles M. Asst. Dist. Balfe, Joseph Atty., Anchorage, D. Dist. Gross, Gen., Juneau, Atty. and Avrum M. appellant. for Miracle, Tatter, Barbara Sue Ellen Asst. Defenders, Shortell, Public Brian Public De- fender, Anchorage, appellees for David Anthony Phillips. Laschober and C. Phillip Weidner, Weidner, P. Drathman & Anchorage, appellees for Albert Vasconcel- Sopko. los and Douglas Bookman, Bruce A. Anchorage, appel- for lee James Edward Erickson.
Douglas Pope, Anchorage, appellee Fred J. McVicker. Cornish,
R. Collin Middleton and Craig Wagstaff Middleton, Anchorage, ap- & pellee Jeffrey Mueller. J, BOOCHEVER,
Before C. and RABI- NOWITZ, CONNOR, MAT- BURKE and THEWS, JJ.
OPINION BOOCHEVER, Justice. Chief The validity prohibiting laws Alaska possession and sale of cocaine ques- are 4.Is present- personal criminalization of in these and we appeals, tioned use involving the questions with difficult ed cocaine in home an clauses protection process and due equal right invalid infringement priva- Constitu- the United States1 Alaska2 cy? Specifical- right privacy.3 tions and the Each of seven defendants in these statutory we must look entire
ly,
*3
appeals
consolidated
was indicted under AS
use
for
of
and de-
regulation
drug
scheme
prohibits
possession,
17.10.0105 which
the
following
the
issues:4
termine
drugs6
sale and distribution of narcotic
as
1.
the
users
Is
classification of cocaine
17.10.230,7
defined in AS
and moved to dis-
with users of narcotics over-inclusive and miss the
variety
indictments8 on a
of con-
protection
of
because co-
equal
violative
stitutional grounds.
drug?
caine is not a narcotic
After a lengthy evidentiary hearing,
the
2.
Is the
of cocaine with
classification
carefully
trial
court
entered
a
detailed
and
so
arbitrary
narcotics
irrational
as to memоrandum decision which dismissed the
process?
violate due
indictments and stated that
the defendants
charged
could
been
possibly have
with vio-
statutory
regulation
Is the
scheme for
lations of
17.12.010.9 Summarizing
AS
the
process
equal
of cocaine violative of due
or
testimony of
two
eight
the
witnesses and
protection
permits prosecutorial
because
experts
affidavits
charge
presented by
under
of
the de-
discretion to
offenses
the testimony
either
17.10 or AS 17.12?
fendants
and
of the
three
defendants,
pro-
Sopko,
Section I
Two
of the fourteenth amendment
Mueller and
were
part:
drug.
remaining
vides in
indicted for sale of the
five
The
possession
were
defendants
indicted for
deprive
.
.
.
. No state shall
.
within and
outside
home. Erickson was
life,
any person
liberty,
property,
of
or
with-
apprehended by
Troopers
Alaska State
after
law;
deny
any
process
to
out due
of
jurisdiction
nor
picking up package
Anchorage
a
at the
Interna-
equal
person
pro-
within its
Airport
allegedly
thirty-
tional
contained
tection
laws.
grams
Phillips
five
of cocaine.
was arrested
I,
1 of the
2. Article
section
Alaska Constitution
operating
for
motor
a
vehicle while intoxicated.
part:
provides in
During subsequent
search,
custody
police
a
persons
equal
entitled
protection
. all
and
to
removing
pants pocket
observed him
from his
equal
opportunities,
rights,
and
glass
small
McVicker
approximately
later
vial
found to contain cocaine.
under
.
.
the law
found
was
to be in
of
I,
part:
Article
section states in
milligrams
of cocaine when
life,
deprived
liberty,
person
No
be
shall
of
or
police
taken into a
interview
room a search
property,
process of
due
law. .
without
in
with a
connection
trаffic offense. Two de-
fendants,
Vasconcellos,
and
Laschober
were ar-
apartment
rested in the
of Laschober’s sister
I,
3. Article
section
of the Alaska Constitu-
possession.
and indicted for
part:
states in
tion
Privacy.
people
Right
right
to
17.10.230(13)specifies:
7. AS
privacy recognized
infring-
and shall not be
leaves,
drugs”
opium,
“narcotic
means coca
ed.
..
amidone, isoamidone,
isonipecaine,
idone,
ketobem-
Although
appealed
every
has
from
having
the state
and
other substance
sim-
holding
physiological
lower court’s
that the classification of
ilar
effects .
proc-
cocaine with narcotics is violative
due
actually
8. Defendant Erickson was
tried and
equal protection,
and
we also consider
ess
addi-
possession.
equal
convicted of
He raised the
arguments
tional
low and now
advanced
defendants be-
protection
process
due
and
issues in his sen-
grounds
urged
as alternative
tencing brief.
upholding the trial court decision.
provides:
9. AS 17.12.010
provides:
5. AS 17.10.010
prohibited.
pro-
Except
Acts
as otherwise
prohibited
any
chapter,
Acts
It is unlawful for
vided in
person
feit,
unlawful
this
it is
for a
person manufacture, possess,
manufacture,
compound,
to
have under
counter-
control, sell, prescribe, administer,
control,
possess,
sell,
his
pense, give,
have
dis-
under his
barter,
administer,
supply
prescribe,
barter,
dispense, give,
distribute
manner,
any
compound any
manner,
supply
depres-
narcotic
or distribute
except
sant,
chapter.
hallucinogenic
drug.
authorized
or stimulant
argue
that our
defendants
state,10
appeal;
by the
court
called
witnesses
should be limited
the evi-
consideration
found that:
the trial
Reasons
presented to
court.
is un-
dence
dispute that cocaine
beyond
[I]t
am-
tо the trial
compares
judicial economy
fairness
opiates
like the
expert
compel
All of the scientific
phetamines.
judge
litigants
would
us
petitioners
witnesses called
most
cases.
agree with
defendants
on the fact
agree
Alaska
the State of
Where, however,
validity
pharma-
not a narcotic for
cocaine is
having major
consequences is
social
experts disagree
cological purposes.
stake,
appellate
that an
court
we conclude
cocaine use both
dangerousness
on the
from
compelled
accept
sources
society.
to the user and to
outside the record.
of co-
the classification
It concluded that
Traditionally, a court’s review materi-
equal protection
violated
caine as a narcotic
als not contained in the trial record
*4
of the Alaska
guarantees
process
and due
through
judicial
the use of
notice.
justified
Constitution.
judicial
of
notice com-
concept
The original
a close one and
we find the case
While
the court took notice of
prised cases where
the
and other
are
from
record
convinced
known and
“universally
facts which were
cocaine, as
scientific sources
reliable
recognized”11
knowledge
or “within the
of
today,
less deleterious
principally used
is
knowledge
most men.”12
the common
As
believed,
have
we
concluded
popularly
than
fictionally expanded to
requirement became
valid; and, according-
the
recollection,
judicial
refreshing
include
of
ly, we reverse.
judicial
the
to
scope of
notice was extended
encompass
of
capable
facts
certain verifica-
REVIEW
OF APPELLATE
SCOPE
tion.13 The common thread between these
necessarily
must
Because our decision
positions
two
the
ei-
fact
under
evidence
large
rest
a
extent on scientific
to
by
ther requirement,
the information taken
the
of
effects
concerning the nature
notice was irrefutable. This has been and
the
cocaine,
assess
we must at the outset
to the
respect
remains
standard with
considering
ap-
of
on
propriety
wisdom
Adjudicative
adjudicative
in a case.
facts
presented to
were not
peal materials which
facts,
K. C.
terminology
of Professor
the trial court.
Davis,14
explain who
are those facts which
when, where,
what,
what
did
how and with
case, the state has introduced
In this
first
time on motive
we are
appeals,
and intent.
these
numerous materials
They
testimony
process
adjudication.
and affi-
of
are the
of these witnesses
summarized,
normally go
jury
jury
infra.
to
in a
ants is
facts that
They
parties,
their activi-
case.
ties,
relate
Estate,
716,
18 Misc.2d
186
In re Buszta’s
Legis-
properties,
their
their businesses.
192,
(Sur.Ct.1959).
N.Y.S.2d
193
help the
lative facts are those which
tribunal
policy
determine the content of law
Inc.,
Newspapers,
110
12. Rives Atlanta
Ga.
judgment
discretion in
to exercise its
or
104,
App.
138 S.E.2d
rev’d on other
determining what course
action to take.
of
grounds,
(1964);
220
NATURE AND OF COCAINE EFFECTS cocaine became manifest emer- gence higher the practice standards for occurring naturally Cocaine is a stimulant of medicine. While its many of medical drug produced from leaves coca abandoned, uses have been contin- cocaine bush, coca, Erythroxyion from primarily ues to have some use as a local anesthetic. species flowering plant indigenous plant’s western The coca nat- hemisphere. It is undisputed that is not a hot, ural environment humid eastern narcotic the pharmacological under defini- slope grows of the Andes Mountains. It tion of the term. The term “narcotic” de- Peru, principally although in Bolivia and rives from the Greek for numbness or word far may be found as south as Chile and as stupor.33 sys- Narcotics are central nervous far north as and Venezuela. Co- Colombia tem depressants physical which create a is an caine alkaloid must extracted dependence liability Opiates in the user. history from coca. While cocaine’s covers are a class of narcotics which tend to reduce *7 little more than a hundred the use years, of and is pain. relieve Narcotic use character- can to at 6th tolerance, coca be traced least the Centu- by ized increasing need for ry religious significance A.D. It had doses over time to same phar- maintain the Incas.30 use effects, in America was Early macological by South and withdrawal —a in a chewing pattern confined to the leaves mixture when symptoms appearing of an substance, widely lime it habitually-taken drug of and is still used is discontinued sud- Overview,” Judge Petersen, grounds question- found 31. Carlson for “Cocaine: An Co- 1977, supra ing objectivity of two of the state’s caine: Note 30 at 5. witness- es. Cocaine,” Petersen, “History of Cocaine: Petersen, “History Cocaine,” supra National In- Note 30 at 28. of Abuse, Drug Monograph stitute on Research Dictionary Cocaine: Webster’s New International English Language, (2d ed. be overstat- reputation safety may rein- Its drug is when the and relieved denly self-limiting. taken it is on low doses are ed since based Narcotics stated. can the user conditions supply, relatively infrequently. unlimited Under an Given Narcotics, such continuously. heavier, use, drug more adverse frequent take the receptor site opiate act on an considerably more opiates, consequences may as the tolerance also a cross There is the brain. generally common than believed.34 opiate meaning opiates, effect is, individual varia- apparently, There wide created syndrome relieve abstinence can physiological and psychological tion in the opiate. another dependence use, psy- a cocaine effects. With heavier use opiate motivations general has paranoid schizophrenia chosis similar to close out attempt an and escape are literature; been described scientific general- are Depressants of the world. rest cocaine can Dr. Andrew Weil indicated that seeking to discon- who are those ly used hallucina- psychosis. cause a toxic Tactile environment. from their nect themselves tions, insects under involving a sensation of usually intravenously are taken Opiates skin, aspect is a of such cases. common needle. described, delusions been in- Paranoid have un- cluding authority figures of cocaine is fear of imaginary chemical structure it is not associated opiates, being that- of watched.35 like or a belief one is syndrome. or withdrawal with tolerance Weil, Dr. an adverse testifying about a stimulant. opiates, contrast cocaine oc- change in attitude cocaine that toward intense a sense of euphoria, It an produces curred in the latter the 19th Centu- part physical of psychic stimulation and that, stated in a of indiscriminate ry, period fa- a reduced well-being, accompanied by use, very some individuals bad reactions had evidence tigue. There scientific to cocaine and anxious or ex- very became doses, it increases when taken moderate paranoid. cited or went cra- people “Some It is not pressure. heart rate blood zy briefly upon high administration con- generally physically addictive and is doses cocaine.” He indicated or alcohol. sidered less harmful than heroin only minority occurred in a of those small cocaine occurs The non-medical use of but using spectacular that it was a “snorting” through primarily by inhaling or Indeed, effect. adverse it has been noted of use is the nose. A less method common that: injection the blood stream. intravenous into Apart description from clinical and case rapid The effects of the are but however, reports, have still been no there major ef- injected, duration. If its short systematic studies to deter- controlled after ten min- generally dissipated
fects are mine the level of cocaine frequency utes; and, nasally, if taken after a half serious, psy- use which leads adverse hour. such chic effects as those described. It is generally paranoid believe that it is safe and not known how such Users common use, relatively symptoms free of undesirable side effects. are at levels of various effects, degree personality use does how- to which Cocaine have adverse individual “snorted,” ever, develop- in small When differences to their even doses. contribute of the nasal or whether they consequence cause inflammation ment are a is more if injection large enough quantities Intravenous of use are used membranes. of the risks Be- dangerous, primarily sufficiently period. because over extended Larger present patterns attendant with use needles. dos- cause American use *8 pose by relatively in-frequent and heavier use method characterized by es Petersen, quantities drug, in his small seri- significant more Dr. use of risks. article, Overview,” may quite states: ous adverse use “Cocaine: An effects of Petersen, Overview,” 34. An Co- 35. Id. at 11. “Cocaine: 1977, supra caine: at Note 30 9. tional Commission on study Marijuana
rare. In one recent of recreational Drug Abuse, (1 gram per consultant, users month which he regular users for served as considered that alcohol more) newspa- drug recruited means of is the with the greatest abuse, potential these per ads were studied. None of followed opiates and barbituates. The in the Commission subjects compulsive were users rated cocaine having slightly as a higher sense described in the earlier literature. potential amphetamines, for abuse than fol- Although self-reported experiences their by marijuana, lowed LSD and mescaline in (e. generally positive g., reported were all descending propensity for abuse. Tobacco use), with euphoria nega- connection was not included in the scope of the indicated, Com- effects were also such as tive mission’s work. restlessness, anxiety, hyper-irratability, paranoia. study, . . In this He believed it was possible for a user reported effects were on all occa- positive of cocaine develop a psychosis toxic but use, negative consequences sions of that the incidence extremely would be low. experienced percent in 3-5 of them.36 He stated that possible was to have a lethal dose of cocaine. He testified as to marijuana, can cause Unlike cocaine reports of destruction apparent destruc- pharmacologi- death as a direct effect of its tion of the nasal mucosa with some associ- cal action. in 1976 and 1977 Researchers bleeding ated scabbing. collected about cocaine-related deaths data twenty-seven study at sites in the United While cocaine has been anecdotally relat- an according and Canada article States aggressive ed to conduct, or criminal ade- Drug National Institute on Abuse’s quate evidence to possible impact assess its Monograph on cocaine.37 In that study in these areas is absent.41 Aside from the 62.9 million there were 111 people, fatalities criminality involved in violation of apparently played part; cocaine a laws, we have found no reliable scientific however, only twenty-six of the fatalities evidence linking usage to criminal solely were attributable to cocaine.38 The conduct, although there is some indication number of fatalities per year has increased its stimulant effect create po- however, markedly, probably as result of tential for crime and violence42 usage.39 increased Dr. Weil testified Oddly enough, no tests seem to have been although the risk of death from central made to the effects of cocaine on driv- system nervous stimulants such as cocaine ing area in clearly which it has been —one is a tiny fraction of the risk created marijuana shown that has adverse effects.43 system depressants, central nervous such a Dr. opinion Weil was of the that one who result can occur under unusual circumstanc- experience had with the effects of cocaine es.40 would drive normally inexperi- but that one Feinglass, Dr. Sanford J. who testified might enced with its use driving have his defendants, ability impaired. indicated that the Na- testified, however, 36. Id. at 40. 11-12. He the mechanism causing death from stimulants differs from that McCloskey, 37. Finkle and “The Forensic Toxi- causing depressants. death from Cocaine,” cology supra Cocaine: Note 30 at 153. Petersen, Overview,” 41. “Cocaine: An Co- 1977, supra caine: Note 30 at 13. Id. at 153-54. Bakalar, Cocaine, Grinspoon Drug A presence unexplained 39. Cocaine’s in sudden Evolution, (Basic and Its Social Books study population deaths increased each year, fifty-eight from two in 1971 to in 1976 (the figure extrapolated latter to December State, supra 43. Ravin v. Note study August). as the ended in Id. at *9 previously than con- it to be less harmful pertain- in the evidence dispute a There is psychologically is cocaine ceived.48 whether ing to testified: Dr. Weil addictive.44 concerning the review of sources Our people can be question is no There there is still much to be drug indicate that I think that those cocaine. dependent Many singularly of the texts are learned. on cocaine in dependent were people45 Obtaining a anecdotal and unscientific. their proportion of large that a the sense tremen- true scientific evaluation is made getting went towards energy working in mеth- dously by difficult the variations using cocaine. use, drug, purity ods of the relative the effects of cocaine use appraisal An in which it is combined with the manner differing views by made difficult substances, physical psy- other and the from those of ardent ranging expressed, chological the user. A more attributes of condemning it persons to those of advocates to be analysis appears intensive scientific drugs. The demonic of of the most as one time; evolving present at the and a number drug have seen to the pertaining attitudes past of works published have been periods of during different shifts dramatic appraisal.49 more realistic year, indicating a opinion reversals of time, sharp as well Monograph, prepared recently-issued Span- example, For by individuals. Abuse, is Drug the National Institute on the use of coca iards, discovering upon an excellent consideration of the more ad- Incas, it initially condemned by the leaves scientific evaluations.50 vanced and its use advocated strongly later but apparent of its because subjugated Indians Sig- work.46 arduous Dr. aiding
effect EQUAL PROTECTION Freud, earlier used cocaine who had mund weighty have mounted a The defendants drug, it a wonder and considered himself attack on cocaine’s inclusion as a “narcotic friend de- seeing after a concerned became argued 17.10.51 drug” AS It is friend, psychosis. cocaine velop a because, from classification overinclusive Fleischl-Marxow, earlier had an von Ernst cocaine is not pharmacological standpoint, he tried to which morphine dependency under a narcotic and should be classified Many modern sci- with cocaine.47 overcome amphetamines, produce 17.1252 changed their substantially have entists penal- believing physiological similar effects. Since drug, now pertaining views Weil, affidavit, War had created a that: around the time of the Civil stated 44. Dr. morphine-dependent persons at- class of physio- produce a does not . . Cocaine . tempted to alleviate the addiction routine opiates logical dependence in the manner of treatments with cocaine. regular While its or barbituates. or alcohol habit, that habit is be described as use can Petersen, Cocaine,” “History of Cocaine: habits that 46. break as the not as difficult to 1977, supra drugs Note 30 at 19. uses of like tobacco form around the and coffee. affidavit, Lowinger, in said that co- Dr. Paul at 23-25. Id. “ although habituating, can be caine . . . amphetamines.” Dr. See, Zinberg. Robert e.g., is less so than Affidavit of Dr. Norman affidavit, Newman, in stated that: G. depend- physical Bakalar, does not cause See, Grinspoon supra [c]ocaine e.g., ence, large repeatedly and in even when used 42; Cocaine, Ashley, History, Its Uses Note symptoms doses. Withdrawal do not result (Warner 1975); and and Effects Books Co- heavy abruptly discontinues co- Clinical, when a user Chemical, Biological, Social caine: caine intake. Mule, (CRC Aspects, Press and Treatment ed. Dr. Richard Kunnes said “Cocaine nonaddictive, physical- is ly with the user neither being drug.” psychologically nor tied to the 30, supra. 50. See Note referring By people,” “those Dr. Weil 7, supra. 5 and 51. See Notes morphine persons previously who addicted to therapy by pro- given the medical were 9, supra. pointed Note American doctors 52. See fession. He out that
H and of narcotic possession Finally, ties for the use standard. Rickey,58 Isakson v. are, instances, drugs many more severe thе traditional model was altered. Isakson lower, than amphetamines,53 those for modified the test at the defendants non-funda- mental equal right by requiring contend that cocaine users are denied level a more ex- acting however, It scrutiny. implied, protection. state compelling interest test would still prohibits AS 17.10.01054 the use or sale of appropriate. be used when drugs.” “narcotic The term “narcotic test, 'Under the rational basis in order for drugs” is in the act so that there is defined judicial a classification to survive scruti- and sale of co- question possession no ny, reasonable, the classification “must be 17.10.230(13) proscribed. caine is states AS arbitrary, and upon must rest some drugs” that “narcotic shall mean “coca having difference a fair and substantial leaves, amidone, isonipecaine, isoam- opium, relationship object legisla- of the idone, ketobemidone, every and other sub- tion, persons so that all similarly circum- physiological stance similar effects.” having (citation stanced shall be treated alike.” “Coca leaves” is further defined as includ- omitted; added) emphasis cocaine,55 ing opium and is defined as in- It is this more flexible and more demand- cluding “morphine, codeine and heroin.”56 ing standard which will be applied in exception With the of cocaine and coca future cases if the compelling state inter- leaves, drugs all classified as narcotics un- est test is found inappropriate.59 der 17.10 are natural synthetic opi- or ates. Recently, application we have reaffirmed this standard.60
We have previously discussed the tests to be used in determining questions equal involving cases federal constitu cases, protection in Alaska.57 In those we questions, tional where rights fundamental expressed increasing issue, dissatisfaction with and suspect categories are at we are equal the traditional two-tiered test for bound “compelling state interest” cases, which either the protection applies standard unless that test is altered rational basis or the interest compelling Supreme United In applying States Court. cocaine, ecgonine 53. The two who indicted for defendants were tain or substances from possession ecgonine may synthe- within the home suffer from the which cocaine or made; classification of the narcotics sized or penalty simple possession under 17.10.230(11) 56. AS states: felony) (a AS 17.10.200 is harsher than that morphine, codeine, “opium” includes 17.12.110, provided under AS which makes the heroin, any manufacture, compound, 17.12, crime a misdemeanor. Unlike AS how- salt, derivative, mixture, preparation ever, or distinguish AS 17.10 does not between opium, apomorphine but simple possession possession does not include or for sale. salts; Thus, any it is not of its clear from the record whether McVicker, Phillips, defendants Erickson Rickey, Isakson v. 550 P.2d 362-63 who were found in outside the (Alaska 1976); Lynden Transport, Inc. v. home, subject would be to misdemeanor (Alaska 1975); P.2d State v. felony charges if cocaine were classified with Adams, (Alaska 522 P.2d 1127 n. 12 amphetamines under AS 17.12. Defendant 1974); Wylie, State v. 516 P.2d 145 n. Sopko felony charges and Mueller will face (Alaska 1973). Indeed, regardless of the classification. particular providing sanctions for sale under Rickey, supra Isakson v. Note 57. potentially AS 17.12 are harsher than those set forth under AS 17.10. Id. at 362. 5, supra. at Note Quoted Co., Inc., King 60. State v. Reefer 559 P.2d 17.10.230(10) specifies: 55. AS (Alaska 1977), applied the Isakson test to a “coca leaves” includes cocaine and com- differentiating classification “shore-basеd” manufacture, salt, derivative, pound, mix- “floating” processors purposes from fish ture, leaves, preparation except of coca taxation. derivatives of coca leaves which do not con- statute, purpose look to the Constitution, however, we must there is the Alaska whole, as a and the single use a test. viewing cannot why reason we no dependent surrounding it.64 It must be will be flexible circumstances a test Such rights involved. legitimate, importance purpose determined that this upon *11 greater a right, of the the nature of the police power Based on it falls within the that the placed be state will or lesser burden Examining state.65 the means used to ac- a fair classification has the to show that objectives and the complish legislative the legitimate gov- a relation to and substantial therefore,66 reasons advanced the court fundamental Where objective. ernmental then determine whether the means must involved, categories suspect or rights substantially goals further the chosen essentially will be this test the results of Finally, the enactment. the state interest “compelling a state requiring the same as in the chosen means must be balanced interest”; outright catego- but, avoiding constitutional against the nature of the and non-fundamen- rization of fundamental right involved. flexible, less result-orient- rights, a more tal purpose We thus shall first determine the made.61 analysis may ed and, wheth- secondly, of AS 17.10 ascertain opiates er the inclusion of cocaine with we must thus de proceeding, Before pur- relationship bears a sufficient to rights the of the defend termine whether pose. question The answer to the first will sell cocaine are of possess, ants use and of the dispose substantial extent application of require such a nature as to second. interest state test. compelling the federal assessing analysis we used Applying invalid in marijuana laws were claims that Purpose A. The of the Statute: State,62 the defend Ravin v. we hold that Mounting argument their on the histori- and auton rights to particular privacy ants’ 17.10, cal derivation of the defendants read so as to make
omy involved cannot be legislature contend that the Alaska has re- of cocaine a ingestion, possession sale or a true in the garded cocaine as narcotic Moreover, the inclusion right. fundamental concept sense and that the pharmacological users does not opiate of cocaine users with dangerousness of its was linked to the false suspect classification question involve a assumption opiates, like cocaine is such as race.63 point further out that habit-forming. They on federal legislation the state is based inap this federal standard Since suggest that this legislation narcotics methodology plicable here, we turn to of the history purpose indicates and in Isak- opinion outlined earlier in this prohibit depres- statute was to the use of claims assessing equal protection son for Initially, sant, physically addictive substances. under the Alaska Constitution. Gunther, public safety, provide Evolving health or for the Search of Doctrine 61. See In welfare, general (footnote omitted) Changing A for a Newer on a Court: Model Protection, also, Liggett Baldridge, Equal Harv.L.R. 1 See Louis K. Co. v. 105, 111-12, 57, 58, U.S. 49 S.Ct. 73 L.Ed. Supra Note 19. State, (1928), quoted supra in Ravin v. Note 19 at 509 n. 62: 363; State, supra Note 57 at 63. See Isakson v. police power may be exerted the form (in- supra Note 19 at 502 cf. Ravin v. legislation of state where otherwise the effect right). gestion mаrijuana a fundamental rights guaranteed by invade be to only such Rickey, 14th Amendment when supra Note 57 at 363. Isakson v. relation to the bears a real and substantial State, supra 19 at 509: See Ravin v. Note health, morals, safety, public or some other authority of the state to exert control [T]he phase general of the welfare. only extends to activities over the individual Rickey, supra Note 57 at 363. 66. Isakson which affect others or the individual public large as it relates to matters of Alaska, light of the act were and did penalties ascertain- the case in As is often is difficult. for first offend- imprisonment the statute not involve ing purpose case, others, reports, committee as in In this ers. legislature of floor debate
records
passed
per-
two acts
Congress
purpose are lack-
legislative
a statement of
regulation
of cocaine: the
taining to
Nevertheless, on the basis of the avail-
ing.
Drugs
Act and the Narcotic
Im-
Harrison
materials,67
the legis-
able
we conclude that
port
Export Act. The Harrison Act
specifically
regulate
lature
intended
sold,
required
produced,
those who
distrib-
cocaine,
regardless
use and
gave away opium
uted or
or coca leaves or
status, and
particular pharmacological
its
with the Inter-
register
their derivatives to
regu-
is to
purpose
statute
pay
special
nal Revenue
and to
Service
*12
harm to
drugs
potential
late
that have a
for
in 1919 to
tax. This Act was amended
health and welfare.
The Narcotic
impose tighter
controls.
There is
suggesting
evidence
prohibited
Act
Drugs Import
Export
1930,
as
regarded
least until
cocaine was
any country that did
export of cocaine to
From the
drug
most serious
threat.68
1922,
drug imports. In
regulate
its own
acts,
designated by
earliest
it had been
importing
to prohibit
this act was amended
name, and
restrictions and criminaliza-
its
uses;
medical
and it
except
coca leaves
as a narcot-
pre-dated
being
tion
its
defined
substantially
penalties.71
increased
imposed
ic.
time,
Act
the first
the 1922
defined
For
including
as
cocaine. “Co-
term “narcotic”
regulation69
drug
The first federal
af-
drug
a narcotic
caine thus became
cocaine
the Pure Food and
fecting
law,
pharmacologically,
whereas
eyes
1906,
importa-
Act of
which restricted
Drug
drug.”72
it remained a non-narcotic
There
dangerous
tion of
“otherwise
drugs
changes
were no further
until amendments
people
health of
United
1956, which further increased
of 1951 and
It is
that this
States.”70
notable
mandatory
penalties by imposing
refer
severe
did not
to “narcotics” but indicated
general
dangerous drugs.
concern
minimum sentences.73
about
history
drug
drug
in the 1922 amend-
67. Excellent accounts of the
cation as a narcotic
legislation appear McLaughlin,
Drugs Import
The
Ex-
Cocaine:
ments to the Narcotic
History
Regulation
Dangerous Drug,
Act,
contradicting phar-
of a
port
a classification
evidence,
(1973), and in
omitted)
58 Cornell L.R. 537
Cocaine:
(footnotes
macological
1977, supra Note 30.
drugs by
against use of
states
69. Prohibitions
long
In
Ore-
antedated the federal laws.
68. 58
L.R. at 568. The author con-
Cornell
sale,
analysis
early
opium
prohibited
gon
from an
federal and
or cocaine
cludes
and, by
forty-five
prescription;
that cocaine was the most
state cocaine laws
without a
prior
drug in
States
to 1930.
restricting
feared
the United
use of
had laws
additional states
specific arguments
Three
are advanced:
L.R. at
cocaine.
Cornell
First,
numbers,
regu-
in terms of
more states
opiates.
In
for-
lated cocaine than the
ty-six
(1906),
L.R.
cited in 58 Cornell
70. 34 Stat.
had enacted some form of co-
states
at 560.
controls,
only twenty-nine
caine
whereas
opi-
comparable
for the
states had
controls
560-63;
also, Peter-
L.R. at
see
71. 58 Cornell
Even as late as
there were more
ates.
sen,
Cocaine,”
“History
su-
Cocaine:
opi-
regulated cocaine than the
states which
pra Note 30 at 29:
Second,
penalties
ates.
harsher
were often
curbing
reprehensible
factors
One of the
provided
violations.
for cocaine
cocaine-containing
cocaine and of
the use of
Third, many provisions of federal law seemed
period
preparations in the
from 1900 to 1920
“especially dangerous
to treat cocaine as an
spector
raised
the mass media
was the
example,
drug.”
ex-
For
the Harrison Act
committing heinous
blacks
cocaine-crazed
coverage preparations
empted from its
con-
taining
opium.
crimes.
minimal amounts of
No such
however,
exemption,
for a
was available
L.R. at 563.
72. 58 Cornell
cocaine,
preparation containing
no matter
special
This
fear of
how small the amount.
Id. at 564-65.
puzzling
explain its
classifi-
also
The
meantime,
laws were
Commission
Uniform State Laws
most state
In the
Drug Act
has drafted a new model statute based on
Narcotic
based on
Uniform
law,
on Uni-
the federal
the Uniform Controlled
promulgated by the Commissioners
placed
Act
Act.
in 1932. The Uniform
Substances
Cocaine
form State Laws
drug
acceptable
and included
Schedule II as a
with an
precedent
followed the federal
high potential
of narcotic medical use but with a
cocaine within the definition
abuse.79
drugs.74
regu-
legislative
in federal
to the Alaskan
histo-
chapter
Looking
The
recent
most
Abuse
that cocaine was first criminal-
Drug
ry, we find
Comprehensive
lation is the
1970,75
time,
Act of
ized in Alaska in 1921.80 At
Prevention
and Control
according
accept-
specifically
to their
cocaine was
named
a section
categorizes drugs
proscribed
opiates.
which also
various
for abuse.76 The term
potential
ed uses and
use,
regulate
act is defined Act was entitled: “To
sale
drug”
“narcotic
in the federal
“
leaves,
drugs.”81
coca
of narcotic
including
Opium,
as
.
.
.
“opiate,”
legislature again
drugs
as
listed the
opiates.”77 Significantly,
derivatives,
separately
individually.82
phrase
well
of its
“narcotic
any
drugs”
“
specifically
.
.
or other
included cocaine.83
Although
defined as
statutory
an
framework has
having
addiction-forming
changed
substance
some-
what,
mor-
addiction-sustaining liability
listing
similar to
of cocaine as a “narcotic
*13
”78
phine
drug”
essentially
.
.
.
remains
the same.84
applies
definition
There is little legislative history
The fact that no such
indicat-
Congress
ing why
coca leaves indicates that
cocaine has been listed as a narcot-
aware of the fact that cocaine is not simi-
ic. The 1923 and 1933
referred
Yet, Congress still included
to cocaine
larly
“habit-forming drugs
addictive.
and other
under the definition
dangerous
coca and its derivatives
. detrimental and
would
drug.”
appear
of “narcotic
It thus
individual and
public safety,
health and
“
physically
was aware of the
morals.”85
Congress
The 1943 Act stated that
‘nar-
leaves,
certain
it
properties
drugs,
drugs’
addictive
of
but
cotic
means coca
opium .
pharmacological
every
use the
defi-
and
chemically
elected
substance neither
nor
drugs
being
physically
nition
narcotic
as
limited to
distinguishable
from them.”86
drugs having such characteristics.
When the legislature adopted the Uniform
also,
1980;
74.
Id. at 567.
See
Hill’s Ann.Laws §
The Com-
Alaska,
piled
Territory
Laws of the
2038
§
801;
(1974,
amended).
seq.
75. 21
§
U.S.C.
et
as
(1913). We have found no cases under this
statute;
possible
and it is not
to ascertain
76.
Id. at
812.
§
proscribe
whether it was intended to
the sale of
cocaine, which
might conceivably be considered an adultera-
anis
extraction from coca and
802(16)(A).
Id. at §
tion.
802(17).
Id. at §
1921, Chapt.
penalties
81. SLA
17. Maximum
571-72;
also,
79. 58
Cornell L.R.
see
fine,
days
for first offenders
$250.00
were a
(1974,
amended).
U.S.C. §
imprisonment or both.
1921, Chapt.
early
80. SLA
17. There is an
1923,
62,
Chapt.
82. SLA
1.§
“
vague
adulterating
reference to
.
.
.
sale, any drug
purpose
or medicine in
(cid:127)
Id. at
2.§
injurious
such
render the same
manner as to
”
“
knowingly
health
.
.
or
.
.
1933,
1270;
1943,
6,
Chapt.
84. See CL
SLA
§
sellfing]
.
.
adulterated
or
.
1(14) (Uniform
Drug Act);
Narcotic
§
ACLA
” Carter,
.
The Laws of
medicine.
Alaska,
.
.
1949, 40-3-1(14);
17.10.230(13).
§
derived
The law was
§
Oregon
from an
law of 1864 and was included
1;
Chapt.
85. SLA
§
§
CL
Compiled
chapter
in the 1913
Laws under a
Chapt.
1(14).
Against
entitled
the Public Health.”
86. SLA
“Offenses
§
courts,
as a
rule
purpose,
general
1943,88
Act87 in
it heard
Drug
Narcotic
repre
construction,
legis-
Enforcement
bound to follow
Treasury
of a
remarks
There is no
of the law.
lative definitions of terms rather than
support
sentative
continued to
legislature
judicial
why
commonly accepted dictionary,
indication
whether
a narcotic or
cocaine as
classify
definitions.
.
.We think
scientific
the issue.89
they ever considered
process place
of due
requirements
manner in which a
some limitation on the
marijua-
removed
legislature
In
If we believe
may use words.
legislature
existing classification
na from its then
narcotic to in-
the use of the word
created the current
opiates
misleading as to
marihuana were so
clude
sale of
against possession
prohibition
law-making
legislators
confuse
in their
аnd stim-
depressant
hallucinogenic,
certain
of com-
persons
activities or to confuse
however,
Cocaine,
remained
drugs.90
ulant
effort to de-
understanding
mon
their
narcotic, just as it had been
as a
classified
of mari-
termine whether the
nearly fifty years.91
crime, it would clear-
constitutes a
huana
legis
of Alaska
summary
From this
the unconstitu-
ly
duty
be our
to declare
1921, cocaine
lation,
that from
appears
statute,
(citations
omit-
tionality
by name.
regulated
were
opiates
ted;
omitted)
footnote
includes co
of narcotics
later definition
caine,
clear indication of
gives
but it
no
the word
opinion
stated that
mean by
intended to
legislature
what the
mari
popular usage
“narcotic” in
included
legislature
A
use of the term “narcotics.”
We
that the word “narcotic”
juana.
believe
legis
purpose
free to define terms for
cocaine. The
usage
in common
includes
lation,
it does not follow
though
even
burden of over
defendants have the severe
dictionary
definition.92
pharmacological
specifically
coming the fact that cocaine
fact,
legis
prime purposes
one of
enactments of
mentioned from the earliest
criminal acts is to indi
lative definitions in
Despite
the Alaska and federal statutes.
in
legislature
specifically
cate
what
conjec
fact,
would have us
defendants
*14
prohibit.
tends to
have
never would
legislature
ture that the
that
Justice Richard-
We believe
Chief
it known that
its
its use had
proscribed
Kanter, 53 Haw.
v.
son’s comments State
effects were not
allegedly harmful
to a
(1972),pertaining
493 P.2d
It seems more
opiates.
as those of
same
problem
pertinent:
that,
outset,
similar definitional
legis
from the
logical to us
that were
drugs
to outlaw
power
a
lature intеnded
legislature
has
broad
the health and
considered to be harmful to
legislative
a particular
terms for
define
Act,
penalties
origin
was enacted in 1975. AS
Regarding
it
schedule of
of the Uniform
(f).
17.12.110(d),(e)
suggested
been
that:
has
masquerade as a
Harrison Act’s
reve-
[T]he
legislature has
It is
notable that the
legisla-
also
required residual state
nue measure
tion
the
following
ground for di-
prohibition
stated that the
is a
to effectuate full
order
party, subsequent
in America.
vorce: “addiction of either
narcotics trade
Whitebread,
opium,
marriage,
Fruit and
The Forbidden
to the habitual use of
Bonnie &
to the
morphine,
cocaine,
Knowledge:
Inquiry
drug.”
An
into the
AS 09.-
Tree of
or a similar
the
Legal
Prohibition,
Marijuana
History
55.110(9).
provision
56 Va.
This
was added in 1957.
Narcotics
Chapt.
The Bureau of
L.R.
sought
SLA
passage
of the Act
each
to insure
testifying
through lobbying
before the
state
Kanter,
327, 493 P.2d
92. State v.
53 Haw.
propagandizing
legislatures
in channels of
(1972)
may
(legislature
“narcotic” to
define
opinion.
public
Id. at 1034—38.
“marijuana”);
City
Sterling
of Phila
include
(city
delphia,
(1954)
378 Pa.
We attempt gave shall therefore to ascertain testimony regarding similar opi- whether cocaine with potential the inclusion of cocaine’s for harm and rated it as ates bears a fair and substantial relation- having slightly higher potential a for abuse ship to what we have determined to be the than amphetamines.
legislative purpose. Looking to sources other than the testi-
mony trial, at the following indications of B. Effects of Cocaine: harmfulness are summarized from the Na- tional Institute Drug Abuse’s Mono- at testimony introduced the trial grаph: generally of cocaine painted picture Yet, relatively benign drug. giving due 1. Although typically cocaine as used in judge’s appraisal deference to the trial present United poses only States witnesses, we find sufficient evidence hazard, limited physically it can be danger- *15 See, g., Maryland, watching e. 366 U.S. happening McGowan I am caine and I’m 93. what’s with co- 420, 425-26, 1101, 1105, happening. 81 S.Ct. L.Ed.2d interested to what’s (1961): legislatures presumed plague “State are to I don’t think it’s a or a power scourge have acted within their constitutional but I think it’s a matter ... happens watch and see what with it. 89,- Society 95. The American Cancer estimates usage 94. With reference to increased of co- by lung 000 deaths will be caused cancer in caine, he stated: percent of which 80 will be related to I think there are certain reasons for concern. cigarettes. Society, American Cancer “1977 responsible happen I drugs in to be favor of use of Figures” Cancer Facts and at 19. Dr. Luther drug in favor of social controls of Terry, Surgeon-General former of the United use, is, that I think that . . the more States, 250,000 has estimated that deaths are society people irresponsibly drugs we have in our who use annually by cigarette caused or contributed to unconsciously, I think that smoking. regarding These and other statistics problems those are health and—and societal the societal harm caused tobacco are co- problems drug Iso think when new always be- gently Comment, stated in Notes and “The Talk gins spread that there is some Town,” (June 27, 1977). of the The New Yorker people cause for concern about whether going intelligently. supra. to learn how to use it So 96. See Note cocaine,104 upon cannot.97 ence acute marijuana anxiety Un- reac- ways ous tions to psychosis.105 can cause death as cocaine and cocaine marijuana, cocaine like action The pharmacological drug moderately of the is viewed one of direct effect high abuse similar to that of drug.98 amphetamines. However, if the were drug readily more animals, aggres- when 2. In studies cost, available at a substantially lower by environmental has been elicited sion if certain socio-cultural rituals endorsed or decrease events, may increase supported higher patterns, dose conclusion aggression.99 A reasonable more destructive patterns abuse could is applicable animal research that from develop.106 is the fact that severe cocaine in- humans when the intrave- Cocaine benign drug, toxication is self-induced is not a a fact clearly of administration is used and which is supported by nous route its known is unlimited.100 pharmacology.107 access agree 3. Most researchers EQUAL TO CONCLUSIONS AS with continued pleasurable effects diminish PROTECTION by an in- replaced use of cocaine and are effects which creasing number of adverse In our review of the evidence and sources through its cessa- only can be alleviated us, referred to have we selected from the tion.101 case, testimony in this from the National Monograph Research Drug Institute on findings 4. One of the most consistent sources, indicating other portions from and excessive use is associat- prolonged harmful attributes of cocaine. We have not animals, hallucinations of ed with tactile attempted give an over-all evaluation of moving insects under the skin.102 bugs or drug. negative experience 5. Chronic users can
effects, In Ravin v. we stated that irritability, as nervousness and such “[i]t disturbances, problems, nasal sit- not the function of this court to reassess the perceptual impotency fatigue legis- scientific in the manner of a uational sexual evidence legisla- that a holding lassitude when the effects abate. These lature” and that “a experienced approximately were tive enactment is invalid cannot rest on a effects intoxications.103 debatable medical issue.”108 percent five toxicity approximately legislative 6. The of cocaine Attacks on classification of co uniformly that of and is mani- caine as a narcotic have been parallels amphetamines courts,109 rejected by depressions, psychological depend- fested the federal and no Stillman, “Introduction,” Co- 105. Id. at 141. 97. Petersen and 1977, supra caine: Note 30 at 1. 106. Id. at 150. Overview,” Petersen, An Co- 98. “Cocaine: 1977, supra 30 at 12. caine: Note McCloskey, Toxi- Finkle and “The Forensic 107. Cocaine,” supra cology Note Cocaine: Woods, Effects of Cocaine “Behavioral 30 at 154. Animals,” 1977, supra at 66. Note 30 Cocaine: n.44, State, supra at Ravin v. Note 19 Id at 84. Thorne, quoting part, United States v. Siegel, and In- Recreational Use “Cocaine: (D.C.C.A.1974). A.2d 764 toxication,” supra Note 30 Cocaine: *16 of cocaine in 109. Cases in which classification Comprehensive Drug II of the Abuse Schedule Id Act, 21 812 § Prevention (1974, Control U.S.C. amended), upheld has been are: Unit Id at 129. Marshall, 1279, v. 532 F.2d 1287-88 ed States Smaldone, (9th 1976); Smith, 484 States v. Use for Cir. United Its 104. Wesson and “Cocaine: 311, (10th 1973); Including United System 319-20 Cir. F.2d Stimulation Nervous Central Castro, (N.D.Ill.1975); F.Supp. Uses,” 120 States v. 401 Cocaine: and Medical Recreational Umentum, 746, F.Supp. 401 1977, United States v. supra Note 30 at 139. 18 definition of narcotics. As we have set invalidating laws be- cases state
reported
above,
forth
we do not believe that
the
have been called
classification
of such
cause
legislature
defining
is so restricted in
the
to our attention.110
term. When
legis-
viewed from the over-all
ample, respect-
there is
We conclude
purpose
preventing
lative
the use of a
potential
of harm or
evidence
able scientific
drug harmful
to the health and welfare of
to sustain the
use of cocaine
from the
harm
society,
say
we cannot
the classifica-
in its
of cocaine
clas-
inclusion
legislature’s
tion is
arbitrary
so irrational or
as to violate
provisions
under
narcotics
sification
process.111
due
Thus,
legislative goal is
17.10.
of AS
at issue is
the classification
legitimate,
PROSECUTORIAL DISCRETION
goal.
to that
substantially related
statutory
It
is contended that
regulation
scheme for
of cocaine is violative
PROCESS
DUE
process
equal protection
of due
because
reference
said with
we have
What
permits prosecutorial
charge
it
discretion to
of the due
largely disposes
equal protection
cocaine offenses under either
17.10 or
AS
argument
is based
This
process argument.
17.12,
degrees
which authorize different
classification of
on the conclusion
of punishment.
Because we construe AS
incorrect,
rendering
cocaine,
as a narcotic
including
17.12 as not
it is unneces
and without
an
sary
irrational
to determine the
impli
constitutional
argument
The
de
objective
prosecutorial
basis in fact.
cations of the
discretion iss
ue.112
pharmacological
the use of the
pends upon
ff’d,
(7th
by
(E.D.Wis.1975),
attention
a
110. The state case of which we are aware concluded that the statuto- improper striking ry provisions law a cocaine based clas were not unconstitutional. Hear- unreported ing testimony is the case of sification Common of several witnesses and ex- Miller, (Mass.Mun.Ct., wealth v. No. 7734 Rox amining variety (many of reference materials bury 1977), District which invalidated the clas case), of which are cited counsel in this proc sification of cocaine as a narcotic on due powerful found that cocaine was a and toxic case, grounds. ess In that called to our atten drug, harmful both to the user and to other defendants, tion testimony; the state introduced no people. widespread legal It further found that judge and the based his decision аvailability of cocaine would lead to more ad- solely presented on evidence the defendants. society currently verse effects on than exist. extraordinary petition relief to the Su Pearson, 111. See Bachner v. 479 P.2d 333- preme Judicial of Massachusetts was Court de 1970); (Alaska Green 462 P.2d nied, right had since the Commonwealth no (Alaska 1969). appeal under the circumstances. Justice Wil kins, denying petition, in his memorandum note, however, 112. We that where the same expressly stated that the issue of the constitu penalized varying degrees tionality conduct can be the cocaine law not before him. Miller, severity, (Mass. equal protection questions Commonwealth v. serious No. 76-532 generally, Berger, Equal are raised. See Pro-
19 17.12.150(3). regulations 17.10.010113 AS do contain previously, As indicated AS and sale of nar- possession following language, criminalizes the however: cotics, 17.10.230(13)defines cocaine and AS Any depressant, combination of stimu- drug. prohib- as a narcotic AS 17.12.010114 lant, hallucinogenic or drugs, not listed depressant, and sale of possession its by name or in chapter, trade name this drugs. stimulant AS hallucinogenic and substantially that is of a sim- composition hallucino- 17.12.150(3) “depressant, defines any drugs ilar to or substances drug” or stimulant to mean: genic subject in chapter listed is also to AS cannabis, (A) dimethyltrypta- psilocybin, 117 17.12. . . . mine, diethylamide, and ev- lysergic acid It is argued permit AS 17.12 would having phys- similar ery other substance prosecution general under the lan- effects; iological guage relating to “similarity” found AS 17.12.150(3) 32.010(b). and 7 AAC (C) ampheta- a which contains This court has twice commented on the isomers; or a any optical
mine or of its language relationship of and between AS designated substance which has been State,118 Casey 17.10 and 17.12. In AS forming the commissioner as habit or charged defendant was effect dangerous because of its stimulant numorphan theory under 17.10 on the system; on the nervous central “similar drug having physio- was a (D) drug any quantity a which contains logical specifi- effects” to those identified commissioner, a which the substance cally as narcotics the statute.119 Because have, investigation, has found to after presented the state evi- inadequate had having, a by regulation designates dence of the effects of the physiological potential depres- for abuse because of its drugs, enumerated the conviction was re- the central sant or stimulant effect on versed. We were required therefore system hallucinogenic nervous or its ef- constitutionality address the of the statuto- fect Nevertheless, ry language. citing Harris v. statutory authority Pursuant to this State,120 City and Marks v. of Anchorage,121 17.12.040,115 that granted by AS the Com- stated: we missioner of Health and Social Services has we were to reach the issue of wheth- drugs by numerous name.116 listed Cocaine [I]f phrase “having physiologi- er the similar among drugs is not listed Com- missioner, appear specifically unconstitutionally vague, nor does it cal effects” is (a) Sentencing: Legal may promulgate
tection and Criminal
The Commissioner
Considerations,
29,
Policy
regulations necessary
carry
pur-
71 Nw.U.L.R.
46-47
out the
also,
States,
poses
chapter
of this
See
Berra v. United
351
to secure effective
135-40,
685,
provisions.
688-691,
its
enforcement of
U.S.
76 S.Ct.
(b)
shall, by regulation,
(1956) (Black
Douglas,
The Commissioner
L.Ed.
JJ.,
promulgate
drugs
list of
which contain .
dissenting)
(serious
ques
constitutional
quantity
other substance which is
prosecutor
charge
tions where
could
misde
forming, dangerous,
potential
habit
or has a
felony
filing
meanor or
false and fraudulent
depressant
for abuse because of its
or stimu-
return; mаjority held issue not
income tax
system
lant effect on the central nervous
Calvaresi,
raised);
properly
People v.
188 Colo.
hallucinogenic
because of its
effect.
(1975):
P.2d
32.020,
prescribes
degrees
116. 7 AAC
32.030 and 32.040.
A statute which
different
punishment
same acts committed
32.010(b).
117. 7 AAC
by persons
under like circumstances
in like
person’s right
situations is violative of a
(Alaska 1973).
118.
we
cocaine,
prohibited under
constitutionality.122
specifically
like
is
designated by
17.10 but is not
Com-
AS
cases,
court has set
this
of
In a series
17.12. We
for inclusion under AS
missioner
for de-
considerations
three relevant
forth
morphine
unless
were so
concluded
a statute is void
whether
termining
17.12
an indictment under AS
designated,
in Larson v.
recently
Most
vagueness.123
impermissible.129
would be
State,124we stated:
whether
first
The
[the
[consideration]
specifically regulated
Similarly, cocaine
restrict
may
is so broad
statute]
17.10,
name in
and we believe that
AS
rights.
amendment
of first
the exercise
an
for its
or sale un-
indictment
consideration is
The second
impermissible
der
17.12 would be
unless
AS
adequate notice
gives
whether the statute
designated by
cocaine were
name under the
prohibited.125
of the conduct that is
regulations
authorized
that statute. We
is whether the statute
third consideration
composi-
“of
phrase
do not believe that
it creates a
imprecisely
so
is drawn
in 7
32.-
substantially
tion
similar”
AAC
enforcement,
(cita-
danger
arbitrary
of
Indeed,
010(b) can
cocaine.
this
include
omitted)
original
footnotes
tions
language is even
than that noted in
broader
speaks
v.
Casey
While
State126
(“similar
Casey v.
ef-
physiological
State130
(ambiguous
vagueness
second
consideration
fects”); since,
the ex-
testimony
as the
Speas v.
addresses
language),
State127
suggests,
composition
particu-
of a
perts
enforce-
arbitrary
capricious
or
problem of
apparently
lar
can
be viewed on sever-
overlap”
“considerable
Noting
ment.
al
levels.131
different
17.12,128
17.10 and AS
which
between AS
Moreover,
regula-
used in the
phrase
attorney
option
the district
give
would
statutory provi-
tion is at variance with the
or use of certain
charging possession
17.12.-
authorizing
regulation,
sion
recognized
we
chapter,
either
drugs under
040(b).
drugs
That
section refers to
in the same con-
engaging
that defendants
“habit-forming”
“dangerous”
or have
subject
inequitable
might
duct
“depressant
or stimulant
...
however,
not,
We did
capricious treatment.
hallucinogenic effect.”132 The list is to be
equal protec-
necessary
find it
to decide
drugs,
on the effects of the
not on
Speas
tion
issues.
based
process
and due
451, 453,
618,
888,
State,
619,
Casey
supra
at
n.2.
U.S.
59
L.Ed.
122.
v.
Note 118
266
S.Ct.
83
Martin,
(1939);
316,
890
State v.
532 P.2d
323
365,
State,
123.
v.
564 P.2d
371-72
Larson
Rabinowitz, JJ.,
1975) (Erwin
(Alaska
con-
State,
(Alaska 1977);
v.
562 P.2d
Anderson
curring);
City
Anchorage,
supra
Marks v.
351,
1977);
(Alaska
v.
355-58
State Marathon
Note 121 at 646.
293,
1974);
Co.,
(Alaska
P.2d
297
Stock
Oil
528
Supra
126.
Note 118.
State,
3,
1974);
(Alaska
P.2d
Marks
v.
526
646;
City
Anchorage,
supra Note 121 at
v.
(Alaska 1973).
127. 511 P.2d
134
State, supra
120 at
Harris v.
Note
647.
Supra Note 123 at 371-72.
opinion specifically compared
AS 17.-
10.230(10)-(13)
17.12.150(3)-(4).
with AS
511
requirement
notions
125. The notice
embodies
P.2d at 134 n.15.
ago,
Long
the United
fairness.
of fundamental
Supreme
that:
Court said
States
Speas
supra
134
v.
Note 127 at
n.15.
requires the
which either forbids or
a statute
vague
doing
that men of
an act in terms so
Supra
Note 126.
necessarily guess
intelligence must
common
meaning
application
and differ as to its
at its
example,
131. For
Dr. Griffith testified that co-
process
first essential of due
viоlates the
methylphenidate
caine
have different mo-
law.
and,
respect,
structures
in this
are not
lecular
Co.,
Connally
269 U.S.
v.
Constr.
General
they
composition, although
sim-
similar in
have
126, 127,
46 S.Ct.
70 L.Ed.
respects.
ilarities in other
Jacksonville,
See,
City
g., Papachristou
e.
156, 162,
839, 843,
405 U.S.
31 L.Ed.2d
S.Ct.
Jersey,
supra.
(1972);
132. See Note
Lanzetta v. New
court,
not mean
that a
person
most We do
Like a
“composition.”
their
ter-
with scientific
are not familiar
people
anything
anytime
long
do
as
chemistry. Users
molecular
minology and
takes
activity
place
person’s
within a
*19
physiological
aware of its
cocaine
of
are
important
home. There
two
limita-
simi-
properties
stimulant
and of its
effects
right
tions on this facet of the
to privacy.
most will
amphetamines, but
lar to those of
First,
agree
Supreme
we
the
Court
We thus
composition.
its
not be aware of
States,
the
has strictly
of
United
which
of the
authority
as to the
grave
have
doubts
Georgia,
the
Stanley
limited
U.S.
[v.
on
proscribe drugs
to
based
Commissioner
Social have a tial although potential “Abuse Potential of Coca and Cocaine: The significantly reduced in situations of occa- Policy They Debate.” state: sional social use inhalation. Considering only its psyehopharmaco- We find that there is a sufficiently effects, logical say we can that cocaine close and substantial relationship between certainly potential produc- has some the means regulate chosen to cocaine and ing crime and violence.139 the legislative purpose preventing harm They indicate that cocaine can have similar to health and welfare so as to justify the effects to amphetamines, they clearly prohibition cocaine,143 of use of even in the behavior,140 aggressive relate to although concluded, home. Having so it follows that probably dangerous cocaine is less than al- *20 we reject argument counsel’s right that the cohol, amphetamines.141 barbiturates privacy permits reasonable access to the The authors list seven potential types of drug for personal and social use.144 resulting cocaine, harm from the use of effects, namely: psychological acute acute effects,
physical chronic ef- psychological CONCLUSION fects, effects, physical chronic crime and We violence, conclude that loss of psychomotor control classification of co- and an economic and caine with social burden on society.142 narcotics is not equal violative of The summary indicates a poten- protection substantial or due process; that cocaine of- Bakalar, Grinspoon supra (6) psychomotor Note 42 leading Loss of control to accidents that hurt others: as we have im- plied, cocaine in rarely acute doses would 140. Id. at 225. this, although cause the overreaction of a paranoid persecution abuser to a fancied 141. Id. at 228. might result; have a similar 142. Id. at 228-29: (7) Economic and social burden: insofar as (1) psychological psychosis Acute effects: possible all, it is to estimate this at we are use, seems to be rare in recreational among at least say inclined to come that cocaine would not be- sniffers; apparently the crash is not great problem many as a social landing crash; amphetamine so hard a as the potentially other dangerous less restricted in- problems insomnia, the most common are struments, pharmacological and other. irritability, anxiety; applied 143. We have here (2) physical the same standard Acute effects: overdose death Ravin, rare, supra set apparently forth in although judgment note 19 at 498. qualified by drug must be reference to mix- inadequate reporting; tures and deaths in agree 144. While we with the concurrence surgery were at one time more common than case, in privacy analysis the context of this our street, perhaps only deaths on the better process, dictates the same result as due we do reported; poisoning severe nonfatal acute thereby not believe diluting that we are Alas rare, sniffing probably injection from not so lоss of motor control from constitutionally recognized right ka’s cy. priva to rare; alcohollike or barbituratelike right ingest particular Neither the to occur; does significant right substance nor the more to (3) psychological Chronic effects: cases of autonomy absolute, such in the home is since general demoralization and deterioration yield each must to the interests of other socie periodic psychoses, like those described safety. tal members in health and See Ravin v. by literary physicians early men and in the State, supra right Note 19 at 504. Where the years ly century, apparent- of the twentieth are privacy to is manifested in terms of interests today presumably less common but would squarely personal autonomy, more within freely be more so if cocaine were more avail- requires balance a heavier burden on the state able; legislation light to sustain right of the (4) physical Chronic effects: the most See, g., involved. e. Falcon v. Alaska Public today weight common ones loss; are rhinitis and Commission, Offices 570 P.2d freely if the were more available (Alaska 1977). privacy probably interest there serious dence of brain inconclusive and not based causing would be some abuse present debilitation; case is the same interest malnutrition and involved in evi- Here, however, damage supra. Ravin v. in coca chewers is the state showing observed has made a sufficient of societal risk organic pathology; tip constitutionality. the balance in favor of (5) Crime and violence: we have discussed this. re given is whether a statute satisfies the prohibitions not included fenses are process of law. Due quirements of due prosecutori- questions 17.12so that of AS addressed; legislation that all process does mandate not be need al discretion that there be personal legitimate purpose use have a that criminalization pur does not relationship in the home a rational between of cocaine on the infringement invalid and the means used to further it. Our pose constitute an P.2d 831 privacy.145 Kingery Chapple, case of right (Alaska 1972) proposition. for that stands case, we in this the issues deciding reasona process the due command of Since appellate our traditional have carried out regardless all applies bleness appreciation keen functions with a enumerated consti individually of whether separation the doctrine limits involved, rights illogical tutional are it is judicial branch. on the places powers impose express no other test where consti Nevertheless, we do recommend Otherwise, rights present. tutional of cocaine review its treatment legislature expressing purpose there would be no evidence. of modern scientific light them. AND REMANDED. REVERSED right privacy express right is an Justice, MATTHEWS, concurring. under the Alaska Constitution.2 If it is to *21 given by be the life it deserves virtue of test balancing the I do not believe that inter- position that it should be defined and method appropriate is an used the Court As each of the preted our decisions. constitution- respect with analysis categories right many separate the I doubt privacy. al right to state in con- present attempt we should anything is more balancing test Court’s it right ap- text what the is and whether be that all statutes requirement than a plies the case at hand.3 We should not test, the as used the reasonable. Under existence, and then bal- simply assume its be deter- it must first majority opinion, it with away ance it wherever is confronted statute has a quеstioned mined whether a a reasonable statute. done, that is the legitimate purpose. When suffi- next is whether the statute question my opinion principle encompassed the that there purpose furthers that so ciently which right privacy the constitutional between means is rational1 connection general is to this case is “the germane affirma- question is and ends. Once authority of the state proposition that the answered, ap- test as as I tively view to exert control the individual extends over here, in fact over and inquiry is plied the individual which only to activities of real is held constitutional. No the statute large as public affect others or balancing apparent. is safety, health or public relates to matters of Ra general welfare.” provide to it as bal- or to Although I would not refer 1975) (Alaska 509 an vin v. 537 P.2d analysis is ancing, the Court’s method question (footnote omitted). one where the entirely appropriate legislation object emphasized analysis, relation to the we have tial 145. In our drug, quoting Wylie, P.2d as we endeavored . . .” State v. 516 harmful effects of . (Alaska 1973). could be whether the to ascertain impression is that co- over-all sustained. Our caine as presently used is less harmful to the I, part: right specifies, 2. Article “The 22§ society opiates and welfare of than health and recognized people privacy and shall may be less harmful than barbiturates also infringed.” not be and, physical amphetamines, alcohol as to discussion, harm, supra. tobacco. See Emerson, thorough per- 3. Thomas in his article, Theory of the suasive Toward a General that it “rational” in the sense 1. I use the word Amendment, (1963), First Yale Law J. Rickey, v. 550 P.2d is used in Isakson process regard free advocates similar “reasonable, 1976) meаning (Alaska not arbi speech. trary, having a fair and substan- and . . essay John Mill his On I not Liberty Stuart would hold as the majority opinion eloquently expressed this view: does that cocaine use is a constitutionally protected activity protection and that such sphere is a of action in which
[T]here give must way to a reasonable statute. society, as distinguished from the individ- ual, has, if an any, only indirect interest: While the through results reached all that comprehending portion per- of a majority’s balancing test through son’s life and conduct which affects only approach I suggest are the same in this case or, others, himself if it also affects only they will not be in all cases.4 Balancing free, with their voluntary, and unde- implies legislators may overturn ceived participation. consent and When I choices made the framers of our consti- himself, say only I mean directly and in tution, long they as as reasonably. do so I instance; the first for whatever affects agree cannot proposition. to that may himself affect others through him- self; objection and the may
grounded on this contingency will receive This, then,
consideration in the sequel.
the appropriate region of human liberty.
. principle requires liberty [T]he pursuits, tastes and of framing the plan of our life to character, suit our own EVANS, Appellant, Otto like, of doing subject as we to such conse- quences follow, as without impedi- creatures, ment from our fellow long so Alaska, Appellee. STATE of them, what we do does harm even No. 3175.
though they should think our conduct foolish, perverse, or wrong. Supreme Court of Alaska. society No in which these liberties are *22 Feb. not, whole, free, respected is what- ever may government; be its form of
none completely free in they which do
not exist absolute unqualified.
only freedom which deserves the name is
that of pursuing good our own in our own
way, long so as we do not attempt
deprive impede others of theirs or their
efforts to obtain it. Each proper is the
guardian health, of his own whether bodi-
ly spiritual. or mental and Mankind are
greater gainers by suffering each other
to live as seems good to themselves than
by compelling each to live as seems good
to the rest.
Because, explained opinion court, there is responsible authority thát indicates cocaine does sometimes
cause anti-social behavior affecting the others, I
safety of would hold that its use
does not come within the right privacy. approach regard right compelling adopted 4. A third approach would be to interest. We privacy require Gray (Alaska 1974). as fundamental and the state 525 P.2d 524 justify any showing intrusion with a of a