West''''s encyclopedia of American law 2ND EDITION Volume 4 doc

Supreme Court pro-hibited the federal government from seeking a $130,000 civil penalty against a man who ously had been sentenced to prison for the same claims Halper.. Asserting that th

2 ND EDITION

❚ 1 ❚ Article Title

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American law

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within WEAL

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controversial or complex aspect

of the article topic

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❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

2ND EDITION

Volume 4 Dou to Fre

West’s Encyclopedia of American Law, 2nd Edition

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Jeffrey Lehman

Shirelle Phelps

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West’s encyclopedia of American law / Jeffrey Lehman, editor, Shirelle Phelps, editor.— 2nd ed.

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VOLUME 1

Preface ix

Contributors xiii

A–Ba 1

Abbreviations 507

VOLUME 2 Preface ix

Contributors xiii

Be–Col 1

Abbreviations 511

VOLUME 3 Preface ix

Contributors xiii

Com–Dor 1

Abbreviations 509

VOLUME 4 Preface ix

Contributors xiii

Dou–Fre 1

Abbreviations 509

VOLUME 5 Preface ix

Contributors xiii

Fri–Jam 1

Abbreviations 501

VOLUME 6 Preface ix

Contributors xiii

Jap–Ma 1

Abbreviations 469

VOLUME 7 Preface ix

Contributors xiii

Mc–Pl 1

Abbreviations 467

VOLUME 8 Preface ix

Contributors xiii

Po–San 1

Abbreviations 461

VOLUME 9 Preface ix

Contributors xiii

Sar–Ten 1

Abbreviations 465

VOLUME 10 Preface ix

Contributors xiii

Ter–Z 1

Abbreviations 459

VOLUME 11

Milestones in the Law

VOLUME 12

Primary Documents

VOLUME 13

Dictionary of Legal Terms Cases Index

General Index

Contents

The U.S legal system is admired aroundthe world for the freedoms it allows the

individual and the fairness with which it

attempts to treat all persons On the surface, it

may seem simple, yet those who have delved

into it know that this system of federal and

state constitutions, statutes, regulations, and

common-law decisions is elaborate and

com-plex It derives from the English common law,

but includes principles older than England,

along with some principles from other lands

The U.S legal system, like many others, has a

language all its own, but too often it is an

unfa-miliar language: many concepts are still

phrased in Latin The second edition of West’s

Encyclopedia of American Law (WEAL) explains

legal terms and concepts in everyday language,

however It covers a wide variety of persons,

entities, and events that have shaped the U.S

legal system and influenced public perceptions

movements, cases, and persons significant to

U.S law Entries on legal terms contain a

defini-tion of the term, followed by explanatory text if

necessary Entries are arranged alphabetically in

standard encyclopedia format for ease of use A

wide variety of additional features, listed later in

this preface, provide interesting background and

supplemental information

Definitions Every entry on a legal term is

followed by a definition, which appears at thebeginning of the entry and is italicized The Dic-tionary and Indexes volume includes a glossary

containing all the definitions from WEAL.

Further Readings To facilitate further

research, a list of Further Readings is included atthe end of a majority of the main entries

Cross-References WEAL provides two types

of cross-references, within and following entries

Within the entries, terms are set in small capital

they have their own entry in the encyclopedia

At the end of the entries, related entries thereader may wish to explore are listed alphabeti-cally by title

Blind cross-reference entries are alsoincluded to direct the user to other entriesthroughout the set

In Focus Essays

In Focus essays accompany related entriesand provide additional facts, details, and argu-ments on particularly interesting, important, orcontroversial issues raised by those entries Thesubjects covered include hotly contested issues,such as abortion, capital punishment, and gayrights; detailed processes, such as the Food andDrug Administration’s approval process for newdrugs; and important historical or social issues,such as debates over the formation of the U.S

complement regular entries and In Focus essays

by adding informative details Sidebar topicsinclude the Million Man March and the branches

of the U.S armed services Sidebars appear at thetop of a text page and are set in a box

Biographies

WEAL profiles a wide variety of interesting

and influential people—including lawyers,judges, government and civic leaders, and his-torical and modern figures—who have played apart in creating or shaping U.S law Each biog-raphy includes a timeline, which shows impor-tant moments in the subject’s life as well asimportant historical events of the period

Biographies appear alphabetically by the ject’s last name

sub-ADDITIONAL FEATURES OF THIS SET

Enhancements Throughout WEAL, readers

will find a broad array of photographs, charts,graphs, manuscripts, legal forms, and othervisual aids enhancing the ideas presented in thetext

Indexes WEAL features a cases index and a

cumulative index in a separate volume

Appendixes

Three appendix volumes are included with

WEAL, containing hundreds of pages of

docu-ments, laws, manuscripts, and forms tal to and characteristic of U.S law

fundamen-Milestone Cases in the Law

A special Appendix volume entitled stones in the Law, allows readers to take a closelook at landmark cases in U.S law Readers canexplore the reasoning of the judges and thearguments of the attorneys that produced majordecisions on important legal and social issues.Included in each Milestone are the opinions ofthe lower courts; the briefs presented by the par-ties to the U.S Supreme Court; and the decision

Mile-of the Supreme Court, including the majorityopinion and all concurring and dissenting opin-ions for each case

Primary Documents

There is also an Appendix volume ing more than 60 primary documents, such asthe English Bill of Rights, Martin Luther KingJr.’s Letter from Brimingham Jail, and severalpresidential speeches

contain-Citations

Wherever possible, WEAL entries include

citations for cases and statutes mentioned in thetext These allow readers wishing to do addi-tional research to find the opinions and statutescited Two sample citations, with explanations ofcommon citation terms, can be seen below andopposite

1 Case title The title of the case is set in i and

indicates the names of the parties The suit

in this sample citation was between Ernesto

A Miranda and the state of Arizona

2 Reporter volume number The number

pre-ceding the reporter name indicates thereporter volume containing the case (Thevolume number appears on the spine of thereporter, along with the reporter name)

3 Reporter name The reporter name is

abbrevi-ated The suit in the sample citation is from

the reporter, or series of books, called U.S.

Reports, which contains cases from the U.S.

Supreme Court (Numerous reporters lish cases from the federal and state courts.)

pub-4 Reporter page The number following the

reporter name indicates the reporter page onwhich the case begins

5 Additional reporter page Many cases may be

found in more than one reporter The suit inthe sample citation also appears in volume

86 of the Supreme Court Reporter, beginning

on page 1602

6 Additional reporter citation The suit in the

sample citation is also reported in volume 16

of the Lawyer’s Edition, second series,

begin-ning on page 694

7 Year of decision The year the court issued its

decision in the case appears in parentheses atthe end of the cite

Miranda v Arizona, 384 U.S 436, 86 S.Ct 1602, 16 L.Ed 2d 694 (1966)

1 Statute title.

2 Public law number In the sample citation,

the number 103 indicates this law waspassed by the 103d Congress, and the num-ber 159 indicates it was the 159th law passed

by that Congress

3 Reporter volume number The number

pre-ceding the reporter abbreviation indicatesthe reporter volume containing the statute

4 Reporter name The reporter name is

abbre-viated The statute in the sample citation is

from Statutes at Large.

5 Reporter page The number following the

reporter abbreviation indicates the reporterpage on which the statute begins

6 Title number Federal laws are divided into

major sections with specific titles The ber preceding a reference to the U.S Codestands for the section called Crimes andCriminal Procedure

num-7 Additional reporter The statute in the ple citation may also be found in the U.S.

sam-Code Annotated.

8 Section numbers The section numbers lowing a reference to the U.S Code Anno- tated indicate where the statute appears in

fol-that reporter

PREFACE XI

Brady Handgun Violence Prevention Act, Pub L No 103–159, 107 Stat 1536 (18 U.S.C.A §§ 921–925A)

Lynne CristPaul D DaggettSusan L DalhedLisa M DelFiaccoSuzanne Paul Dell’OroDan DeVoe

Joanne EngelkingSharon FischlowitzJonathan FlandersLisa FloreyRobert A FrameJohn E GisselquistRussell L Gray IIIFrederick K GrittnerVictoria L HandlerHeidi L HeadleeJames HeidbergClifford P HookerMarianne Ashley JerpbakAndrew Kass

Margaret Anderson KelliherChristopher J KennedyAnne E KevlinAnn T LaughlinLaura Ledsworth-WangLinda Lincoln

Gregory LuceDavid LuikenJennifer MarshSandra M OlsonAnne Larsen OlstadWilliam OstremLauren PacelliRandolph C ParkGary PeterMichele A PottsReinhard PriesterChristy RainBrian RobertsDebra J RosenthalMary Lahr SchierMary ScarbroughTheresa L SchulzJohn ScobeyJames SlavicekScott D SlickDavid StromWendy TienDouglas TuetingRichard F TysonChristine Ver PloegGeorge E WarnerAnne WelsbacherEric P WindLindy T Yokanovich

Contributors

DOUBLE ENTRY

A bookkeeping system that lists each transaction

twice in the ledger.

Double-entry bookkeeping is a methodwhereby every transaction is shown as both a

debit and a credit This is done through the use

of horizontal rows and vertical columns of

numbers The reason for the use of this

book-keeping method is that if the total of horizontal

rows and vertical columns is not the same, it is

easier to find mistakes than when the records are

kept with only a single entry for each item

DOUBLE INDEMNITY

A term of an insurance policy by which the

insur-ance company promises to pay the insured or the

beneficiary twice the amount of coverage if loss

occurs due to a particular cause or set of

circum-stances.

Double indemnity clauses are found mostoften in life insurance policies In the case of the

accidental death of the insured, the insurance

company will pay the beneficiary of the policy

twice its face value Such a provision is usually

financed through the payment of higher

premi-ums than those paid for a policy that entitles a

beneficiary to recover only the face amount of

the policy, regardless of how the insured died

In cases where the cause of death is unclear,the insurance company need not pay the pro-

ceeds until the accidental nature of death is

EVIDENCE A beneficiary of such a policy maysue an insurance company for breach of con-tract to enforce his or her right to the proceeds,whenever necessary

DOUBLE INSURANCE

Duplicate protection provided when two nies deal with the same individual and undertake

compa-to indemnify that person against the same losses.

When an individual has double insurance,

he or she has coverage by two different ance companies upon the identical interest in

protecting one another, they would thereby havedouble insurance An individual can rarely col-lect on double insurance, however, since this

ENRICHMENT, and a majority of insurance tracts contain provisions that prohibit this

con-DOUBLE JEOPARDY

A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense The evil sought to be avoided by pro- hibiting double jeopardy is double trial and double conviction, not necessarily double punishment.

The FIFTH AMENDMENT to the U.S tution provides, “No person shall be subject

Consti-for the same offence [sic] to be twice put in

jeop-ardy of life or limb.” This provision, known asthe Double Jeopardy Clause, prohibits state and

federal governments from prosecuting als for the same crime on more than one occa-sion, or imposing more than one punishmentfor a single offense Each of the 50 states offerssimilar protection through its own constitution,

Five policy considerations underpin the ble jeopardy doctrine: (1) preventing the gov-ernment from employing its superior resources

dou-to wear down and erroneously convict innocentpersons; (2) protecting individuals from thefinancial, emotional, and social consequences

of successive prosecutions; (3) preserving thefinality and integrity of criminal proceedings,which would be compromised were the stateallowed to arbitrarily ignore unsatisfactory out-comes; (4) restricting prosecutorial discretionover the charging process; and (5) eliminatingjudicial discretion to impose cumulative punish-ments that the legislature has not authorized

Double jeopardy is one of the oldest legal

Athenian statesman Demosthenes said, “[T]helaw forbids the same man to be tried twice onthe same issue.” The Romans codified this prin-

400–1066), notwithstanding the deterioration ofother Greco-Roman legal traditions, through

CANON LAWand the teachings of early Christianwriters

In England, the protection against double

the common law” (United States v Wilson, 420

U.S 332, 340, 95 S Ct 1013, 1020, 43 L Ed 2d

232 [1975]) and was embraced by eminent

WILLIAM BLACKSTONE (1769) Nonetheless, theEnglish double jeopardy doctrine was extremelynarrow It applied only to defendants who wereaccused of capital felonies, and only after con-viction or acquittal It did not apply to cases thathad been dismissed prior to final judgment, and

it was not immune from flagrant abuse by theCrown

The American colonists, who were intimatelyfamiliar with Coke, Blackstone, and the machi-nations of the Crown, expanded the protectionagainst double jeopardy, making it applicable toall crimes Yet some perceived James Madison’soriginal draft of the Double Jeopardy Clause asbeing too broad It provided, “No person shall be

subject to more than one punishment or one

trial for the same offense” (emphasis added) (United States v Halper, 490 U.S 435, 440, 109 S.

Ct 1892, 1897 104 L Ed 2d 487 [1989]) SeveralHouse members objected to this wording, argu-ing that it could be misconstrued to preventdefendants from seeking a second trial on appealfollowing conviction Although the Senate lateramended the language to address this concern,the final version ratified by the states left otherquestions for judicial interpretation

Double jeopardy litigation revolves aroundfour central questions: (1) In what type of legalproceeding does double jeopardy protectionapply? (2) When does jeopardy begin, or, in legalparlance, attach? (3) When does jeopardy termi-nate? (4) What constitutes successive prosecu-tions or punishments for the same offense?Although courts have answered the second andthird questions with some clarity, they contin-ued to struggle over the first and last

Where Jeopardy Applies

Only certain types of legal proceedingsinvoke double jeopardy protection If a particu-lar proceeding does not place an individual injeopardy, then subsequent proceedings againstthe same individual for the same conduct arenot prohibited The Fifth Amendment suggeststhat the protection against double jeopardyextends only to proceedings that threaten “life orlimb.” Nevertheless, the U.S Supreme Court hasestablished that the right against double jeop-

CORPO-RAL PUNISHMENT, but that it extends to allfelonies, misdemeanors, and juvenile-delin-quency adjudications, regardless of the applica-ble punishments

In Benton v Maryland, 395 U.S 784, 89 S Ct.

2056, 23 L Ed 2d 707 (1969), the U.S SupremeCourt ruled that the federal Double JeopardyClause is applicable to state and federal prosecu-tions Prior to this ruling, an individual who wasaccused of violating state law could rely only onthat particular state’s protection against doublejeopardy Some states offered greater protectionagainst double jeopardy than did others TheCourt, relying on the doctrine of incorpora-tion, which makes fundamental principles in the

BILL OF RIGHTSapplicable to the states throughthe EQUAL PROTECTION CLAUSE of the FOUR- TEENTH AMENDMENT, said this was not permis-sible The right against double jeopardy is soimportant, the Court concluded, that it must beequally conferred upon the citizens of every

state Under Benton, no state may provide its

residents with less protection against double

jeopardy than that offered by the federal

Con-stitution

The U.S Supreme Court has also held thatthe right against double jeopardy precludes only

subsequent criminal proceedings It does not

preclude ordinary civil or administrative

pro-ceedings against a person who already has been

prosecuted for the same act or omission Nor is

prosecution barred by double jeopardy if it is

preceded by a final civil or administrative

deter-mination on the same issue

Courts have drawn the distinction betweencriminal proceedings on the one hand, and civil

or administrative proceedings on the other,

based on the different purposes served by each

Criminal proceedings are punitive in nature and

serve two primary purposes: deterrence and

ret-ribution Civil proceedings are more remedial;

their fundamental purpose is to compensate

injured persons for any losses incurred Because

civil and criminal remedies fulfill different

objectives, a government may provide both for

the same offense

The multiple legal proceedings broughtagainst O J (Orenthal James) Simpson in the

death of Nicole Brown Simpson and Ronald Lyle

Goldman illustrate these various objectives The

state of California prosecuted Simpson for the

murders of his former wife and her friend

Despite Simpson’s acquittal in the criminal case,

three civil suits were filed against him by the

families of the two victims The criminal

pro-ceedings were instituted with the purpose of

punishing Simpson, incarcerating him, and

deterring others from similar behavior The civil

suits were intended to make the victims’ families

whole by compensating them with money

dam-ages for the losses they had suffered

The distinctions between criminal and civilproceedings and between punitive and remedial

remedies may appear semantic, but they raise

real legal issues Courts have recognized that

civil remedies may advance punitive goals

When they do, double jeopardy questions

fine, although characterized by the legislature as

remedial, becomes punitive when the value of

the property seized or the amount of the fine

imposed is “overwhelmingly disproportionate”

to society’s loss (Halper) This principle was

exemplified when the U.S Supreme Court

pro-hibited the federal government from seeking a

$130,000 civil penalty against a man who ously had been sentenced to prison for the same

claims (Halper) The Court concluded that the

gross disparity between the fine imposed andsociety’s economic loss reflected a punitiveremedial aim

Conversely, many courts have ruled that

PUNITIVE DAMAGES awarded in civil suits arenot sufficiently criminal for double jeopardypurposes when the plaintiff seeking those dam-ages is a private party, not the state This rulingcan be best explained by noting that the Bill ofRights guarantees protection only against gov-ernment action It does not create a system ofrights and remedies for disputes between private

Courts have not determined whether punitivedamages recovered by the government in a civilsuit would bar subsequent prosecution, nor havethey agreed whether a number of administrativeproceedings can be uniformly characterized aspunitive or remedial Cases involving the revo-cation of professional licenses, driving privi-

courts over the purposes underlying these ceedings

pro-When Jeopardy Attaches

Courts have provided much clearer guidance

on the question of when jeopardy attaches, orbegins This question is crucial to answerbecause any action taken by the governmentbefore jeopardy attaches, such as dismissal of theindictment, will not prevent later proceedingsagainst a person for the same offense Oncejeopardy has attached, the full panoply of pro-tection against multiple prosecutions and pun-ishments takes hold

The U.S Supreme Court has held that ardy attaches during a jury trial when the jury isempanelled In criminal cases tried by a judgewithout a jury, jeopardy attaches when the firstwitness is sworn Jeopardy begins in juvenile-delinquency adjudications when the court firsthears evidence If the defendant or juvenileenters a plea agreement with the prosecution,jeopardy does not attach until the court acceptsthe plea

jeop-When Jeopardy Terminates

Determining when jeopardy terminates is noless important, but somewhat more complicated

Once jeopardy has terminated, the governmentmay not hail someone into court for additional

DOUBLE JEOPARDY 3

proceedings on the same matter without raisingdouble jeopardy questions If jeopardy does notterminate at the conclusion of one proceeding, it

is said to be continue, and further criminal ceedings are permitted Jeopardy can terminate

pro-in four pro-instances: after acquittal; after dismissal;

after a mistrial; and on appeal after conviction

A jury’s verdict of acquittal terminates ardy, and it may not be overturned on appealeven if it is contrary to overwhelming proof of adefendant’s guilt and derived from a trial thatwas rife with reversible error This elemental

entrusts the jury with the power to nullify inal prosecutions that are tainted by egregiouspolice, prosecutorial, or judicial misconduct

crim-A jury also may impliedly acquit a dant If a jury has been instructed by the judge

defen-on the elements of a particular crime and a

LESSER INCLUDED OFFENSE, and the jury returns

a guilty verdict as to the lesser offense but issilent as to the greater one, then reprosecutionfor the greater offense is barred by the DoubleJeopardy Clause For example, a jury that hasbeen instructed as to the crimes of first- and sec-ond-degree murder may impliedly acquit thedefendant of first-degree murder by returningonly a guilty verdict as to murder in the seconddegree A not-guilty verdict as to the greateroffense is inferred from the silence

A dismissal is granted by the trial court forerrors and defects that operate as an absolutebarrier to prosecution It may be entered before ajury has been impaneled, during the trial, or after

a conviction But jeopardy must attach before adismissal implicates double jeopardy protection

Once jeopardy attaches, a dismissal granted

by the court for insufficient evidence terminates

it Such a dismissal also bars further tion, with one exception: The prosecution mayappeal a dismissal entered after the jury hasreturned a guilty verdict If the appellate courtreverses the dismissal, the guilty verdict may bereinstated without necessitating a second trial

prosecu-The state may not appeal a dismissal granted forlack of evidence after a case has been submitted

to a jury, but before a verdict has been reached

Reprosecution is permitted, and jeopardycontinues, when the court dismisses the case on

a motion by the defendant for reasons otherthan sufficiency of the evidence For example, acourt may dismiss a case when the defendant’s

prosecutorial pretrial delay The U.S SupremeCourt has held that no double jeopardy issue istriggered when defendants obtain dismissal forreasons that are unrelated to their guilt or inno-

cence (see United States v Scott, 437 U.S 82, 98

S Ct 2187, 57 L Ed 2d 65 [1978])

A mistrial is granted when it has becomeimpracticable or impossible to finish a case.Courts typically declare a mistrial when jurors fail

to reach a unanimous verdict Like a dismissal, amistrial that is declared at the defendant’s behestwill not terminate jeopardy or bar reprosecution.Nor will a mistrial preclude reprosecution whendeclared with the defendant’s consent Courtsdisagree as to whether a defendant’s mere silence

is tantamount to consent

A different situation is presented when amistrial is declared over the defendant’s objec-tion Reprosecution is then allowed only if themistrial resulted from “manifest necessity,” astandard that is more rigorous than “reasonablenecessity,” and less exacting than “absolutenecessity.” A mistrial that could have been rea-sonably avoided terminates jeopardy, but jeop-ardy continues if a mistrial was unavoidable.The manifest-necessity standard has beensatisfied where mistrials have resulted fromdefective indictments, disqualified or dead-locked jurors, and procedural irregularities will-fully occasioned by the defendant Manifestnecessity is never established for mistrials result-ing from prosecutorial or judicial manipulation

In determining manifest necessity, courts ance the defendant’s interest in finality againstsociety’s interest in a fair and just legal system.Every defendant has the right to appeal aconviction If the conviction is reversed onappeal for insufficient evidence, the reversal istreated as an acquittal, and further prosecution

bal-is not permitted However, the defendant may bereprosecuted when the reversal is not based on alack of evidence The grounds for such a reversalinclude defective search warrants, unlawfulseizure of evidence, and other so-called techni-calities Retrials in these instances are justified

by society’s interest in punishing the guilty Adefendant’s countervailing interests are subordi-nated when a jury’s verdict is overturned for rea-sons that are unrelated to guilt or innocence.The interests of accused individuals are alsosubordinated when courts permit prosecutors toseek a more severe sentence during the retrial of

a defendant whose original conviction was

reversed on appeal Courts have suggested that

defendants who appeal their convictions assume

the risk that a harsher sentence will be imposed

during reprosecution However, in most

circum-stances, courts are not permitted to impose a

death sentence on a defendant during a second

trial when the jury recommended life in prison

during the first The recommendation of life

imprisonment is construed as an acquittal on

What Constitutes the Same Offense

The final question that courts must resolve

in double jeopardy litigation is whether

succes-sive prosecutions or punishments are geared

toward the same offense Jeopardy may already

have attached and terminated in a prior criminal

proceeding, but the state may bring further

criminal action against a person so long as it is

not for the same offense Courts have analyzed

this question in several ways, depending on

whether the state is attempting to reprosecute a

defendant or to impose multiple punishments

At common law, a single episode of criminalbehavior produced only one prosecution, no

matter how many wrongful acts were

commit-ted during that episode Under current law, a

proliferation of overlapping and related offenses

may be prosecuted as separate crimes stemming

from the same set of circumstances For

exam-ple, an individual who has stolen a car to

facili-tate an abduction resulting in attempted rape

could be separately prosecuted and punished for

development has significantly enlarged

prosecu-tors’ discretion over the charging process

The U.S Supreme Court curbed this

discre-tion in Blockburger v United States, 284 U.S 299,

52 S Ct 180, 76 L Ed 306 (1932), in which it

wrote that the government may prosecute an

individual for more than one offense stemming

from a single course of conduct only when each

offense requires proof of a fact that the other

offenses do not require Blockburger requires

courts to examine the elements of each offense

as they are delineated by statute, without regard

to the actual evidence that will be introduced at

trial The prosecution has the burden of

demon-strating that within a pair or group of offenses,

each has at least one mutually exclusive element

If any one offense is wholly subsumed by

another, such as a lesser included offense, the

two offenses are deemed to be the same, and

punishment is allowed for only one

Blockburger is the exclusive means by which

courts determine whether cumulative ments pass muster under the Double JeopardyClause But courts have used several other meth-ods to determine whether successive prosecu-

ESTOPPEL, which prevents the same parties fromrelitigating ultimate factual issues previouslydetermined by a valid and final judgment, is one

such method In Ashe v Swenson, 397 U.S 436,

90 S Ct 1189, 25 L Ed 2d 469 (1970), the U.S

Supreme Court collaterally estopped the ernment from prosecuting an individual forrobbing one of six men during a poker game Ajury had already acquitted the defendant of rob-bing one of the other players Although the sec-ond prosecution would have been permitted

gov-under Blockburger because two different victims

were involved, it was disallowed because thedefendant had already been declared not guilty

of essentially the same crime

The “same-transaction” analysis, whichmany state courts use to bar successive prosecu-tions, requires the prosecution to join alloffenses that were committed during a continu-ous interval and that both share a common fac-tual basis and display a single goal or intent

WILLIAM O DOUGLAS, and THURGOOD SHALL endorsed the same-transaction test, nofederal court has ever adopted it

MAR-State and federal courts have employed the

“actual-evidence” test in order to preclude cessive prosecutions for the same offense Unlike

suc-Blockburger, which demands that courts

exam-ine the statutory elements of proof, the evidence test requires courts to compare the

actual-evidence that actually has been introduced

dur-ing the first trial with the evidence that the ecution seeks to introduce at the second one

pros-The offenses are considered to be same when theevidence that is necessary to support a convic-tion for one offense would be sufficient to sup-port a conviction for the other

Under the “same-conduct” analysis, thegovernment is forbidden to prosecute an indi-vidual twice for the same criminal behavior,regardless of the actual evidence introducedduring trial or the statutory elements of the

offense In Grady v Corbin, 495 U.S 508, 110 S.

Ct 2084, 109 L Ed 2d 548 (1990), the U.S

Supreme Court applied this analysis to prevent a

resulted from drunk driving, when he earlier

DOUBLE JEOPARDY 5

had been convicted of driving while under theinfluence of alcohol The second prosecutionwould have been permitted had the state been

proof of his intoxication Although Grady was

abandoned by the Supreme Court three yearslater, the same-conduct analysis is still used bystate courts when they interpret their own con-stitutions and statutes

The dual-sovereignty doctrine receivednational attention during the early 1990s, whentwo Los Angeles police officers were convicted in

RODNEY KINGduring a brutal, videotaped ing, even though they previously had beenacquitted in state court for excessive use of force

beat-(United States v Koon, 833 F Supp 769 (C.D.

Cal 1993), aff ’d, 34 F.3d 1416 (9th Cir 1994),

rehearing denied 45 F.3d 1303) Although manyobservers believed that the officers had beentried twice for the same offense, the convictionswere upheld on appeal over double jeopardyobjections Under the dual-sovereignty doc-

trine, the appellate court ruled, a defendant whoviolates the laws of two sovereigns, even if by asingle act, has committed two distinct offenses,punishable by both authorities

The dual-sovereignty doctrine is designed tovindicate the interest that each sovereign claims

in promoting peace and dignity within itsforum, and permits state and federal govern-ments to prosecute someone for the samebehavior after either has already done so Adefendant also may be prosecuted successively

by two states for the same act or omission In

Heath v Alabama, 474 U.S 82, 106 S Ct 433, 88

L Ed 2d 387 (1985), the U.S Supreme Courtheld that successive prosecutions by the states ofGeorgia and Alabama based upon the sameoffense did not violate the Double Jeopardy

Clause In Heath, the defendant had committed

murder in the state of Alabama but had takenthe body to Georgia, where Georgia officialseventually found it Both states prosecutedHeath and convicted him of murder for thesame action, and the U.S Supreme Courtallowed the convictions to stand

Some limitations apply to the eignty doctrine Successive prosecutions by astate and one of its political subdivisions (such

dual-sover-as a county, city, or village) are not permitted,because these entities are deemed to be one sov-ereign Moreover, federal and state authoritiesmay not achieve a second prosecution bymanipulating the criminal justice system, some-times called a “sham prosecution.” Although thisexception to the dual sovereignty doctrine hasbeen cited in several cases, it is seldom invoked

developed an internal restriction on pursuing aprosecution after state prosecution has failed.Federal prosecutors under this restriction mayonly pursue a second prosecution for com-pelling reasons, and the prosecutor must obtainprior approval from the assistant attorney gen-eral prior to bringing the prosecution This

restriction is called the “Petite policy,” named after the U.S Supreme Court’s decision in Petite

v United States, 361 U.S 529, 80 S Ct 45, 4 L.

Ed 2d 490 (1960), which involved the tion of an individual in two federal districtcourts for what amounted to the same offense

prosecu-Although the Petite policy appears in the

Department of Justice’s manual, criminal dants may not rely upon this restriction if a fed-eral prosecutor fails to adhere to thedepartment’s guidelines

Former L.A police

officer Stacey Koon

was acquitted of

criminal charges in

the beating of motorist Rodney King

but was found guilty

of violating King’s

civil rights in a federal case.

AP/WIDE WORLD PHOTOS

FURTHER READINGS

“Constitutional Law—Goodbye Grady! Blockburger Wins

the Double Jeopardy Rematch: United States v Dixon.”

1994 University of Arkansas at Little Rock Law Journal

17.

“Continuing Criminal Enterprise, Conspiracy, and the

Multiple Punishment Doctrine.” 1993 Michigan Law

Review 91.

Henning, Peter J 1993 “Precedents in a Vacuum: The

Supreme Court Continues to Tinker with Double

Jeop-ardy.” American Criminal Law Review 31.

Hoffman, Paul 1994 “Double Jeopardy Wars: The Case for a

Civil Rights Exception.” UCLA Law Review 1.

“Increased Double Jeopardy Protection for the Criminal

Defendant: Grady v Corbin.” 1991 Willamette Law

Review 27.

Kotler, Bradley E., Brian J Leske, and Benjamin Lieber 1994.

“Double Jeopardy.” Georgetown Law Review 82.

LaFave, Wayne R., and Jerold H Israel 1985 Criminal

Proce-dure (student ed.) St Paul, Minn.: West Publishing.

McAninch, William S 1993 “Unfolding the Law of Double

Jeopardy.” South Carolina Law Review 44.

Richardson, Eli J 1994 “Eliminating Double-Talk from the

Law of Double Jeopardy.” Florida State University Law

Review 22.

DOUBLE TAXATION AGREEMENTS

The requirement that an entity or individual pay

two separate taxes on the same property for the

same purpose and during the same time period.

tax-ation on corportax-ations by taxing both the profits

received by the corporation and the earnings

dis-tributed to shareholders of the corporation

through stock dividends.

Double taxation occurs when the sametransaction or income source is subject to two or

more taxing authorities This can occur within a

single country, when independent governmental

units have the power to tax a single transaction

or source of income, or may result when

differ-ent sovereign states impose separate taxes, in

which case it is called international double

taxa-tion The source of the double taxation problem

is that the taxing jurisdictions do not follow a

common principle of taxation One taxing

juris-diction might tax income at its source, while

others will tax income based on the residence or

nationality of the recipient Indeed, a

jurisdic-tion might use all three of these basic

approaches in imposing taxes

The consequence of double taxation is to taxcertain activities at a higher rate than similar

activity that is located solely within a taxing

jurisdiction This leads to unnecessary

reloca-tion of economic activity in order to lower theincidence of taxation, or other, more objection-able forms of tax avoidance Businesses espe-cially have had the most trouble with doubletaxation, but individuals also might find ituneconomic to work abroad if all of theirincome is subject to taxation by two authorities,regardless of the origin of the income

The problems that double taxation presentshave long been recognized, and with the grow-ing INTEGRATIONof domestic economies into aworld economy, countries have undertaken sev-eral measures to reduce the problem of doubletaxation An individual country can offer taxcredits for foreign taxes paid, or outright exemp-tions from taxation of foreign-source income

Treaties have also been negotiated betweenstates to address the double taxation problem

One of the most important of these agreementswas the International Tax Convention, which theUnited States and the United Kingdom con-cluded in 1946 It has served as a model for sev-eral other tax conventions Under the taxconvention between the United States and theUnited Kingdom, for example, exemptions fromtaxes, credits for taxes paid, and reduction orequalization of overall tax rates are all utilized toreduce double taxation Within the United States,many states have worked to prevent the incidence

of taxation from reaching uneconomic levels onincome that derives from multistate sources

DOUBT

To question or hold questionable Uncertainty of mind; the absence of a settled opinion or convic- tion; the attitude of mind toward the acceptance of

or belief in a proposition, theory, or statement, in which the judgment is not at rest but inclines alternately to either side.

beyond all possible or imaginary doubt, butsuch proof as precludes every reasonablehypothesis except that which it tends to support

It is proof to a moral certainty, that is, such proof

as satisfies the judgment and consciences of thejury, as reasonable people and applying theirreason to the evidence before them, that thecrime charged has been committed by thedefendant, and so satisfies them as to leave noother reasonable conclusion possible

A REASONABLE DOUBT is such a doubt aswould cause a reasonable and prudent person inthe graver and more important affairs of life to

DOUBT 7

pause and hesitate to act upon the truth of thematter charged It does not mean a mere possi-ble doubt, because everything relating to humanaffairs, and depending on moral evidence, isopen to some possible or imaginary doubt.

❖DOUGLAS, STEPHEN ARNOLD

Stephen Arnold Douglas achieved prominence

as a U.S senator and as the originator of thepolicy known as Popular Sovereignty He wasborn on April 23, 1813, in Brandon, Vermont

He pursued legal studies and was admitted tothe Illinois bar in 1834

In 1843 Douglas entered the legislativebranch of the federal government as a member

of the U.S House of Representatives Four yearslater, he was elected to the U.S Senate andserved until 1861

During his lengthy tenure as senator fromIllinois, Douglas became an outspoken leader inthe SLAVERYcontroversy, and his many debatesand innovative policies earned him the name

“Little Giant.” He was presiding officer of theCommittee on Territories, a forum for the dis-cussion of whether slavery should be allowed inthe new territories

Douglas was instrumental in the tion of the bills which constituted that section

residents of Utah and New Mexico to decidewhether or not their states would institute slav-ery This freedom of choice became known asthe policy of Popular Sovereignty Four yearslater, Douglas again attempted to apply this pol-icy to the slavery issue involved in the admission

of Kansas and Nebraska to the Union The planwas not successful, however, for the proslaveryand antislavery forces in Kansas clashed in a vio-lent action Two separate governments wereestablished, the Lecompton, or proslavery, fac-tion and the abolitionist faction Douglas vehe-mently opposed the Lecompton Constitution,and criticized President James Buchanan’s sup-port of such a measure After much violence anddebate, Kansas was admitted as a free state

◆

1834 Admitted

to Illinois bar

1861–65 U.S Civil War

◆

1868 14th Amendment gave citizenship rights

to former slaves

1852, 1856 Unsuccessfully sought Democratic nomination for president

1843–47 Represented Illinois in U.S.

1861 Died, Chicago, Ill.

1847–61 Represented Illinois in U.S Senate

1850 Helped formulate Popular Sovereignty section of the Compromise of 1850

1857 Dred Scott v Sandford decision

denied citizenship to African Americans

1860 Chosen as Democratic candidate for president, but lost to Republican Lincoln

◆

ABRAHAM LINCOLN and Douglas wereopponents in the Illinois senatorial election of

1858, and they met seven times throughout their

campaign to debate the issues These arguments

were the famous Lincoln-Douglas debates, and

several of Douglas’s responses won him disfavor

with southern Democrats Although he won the

senatorial election, this faction was responsible

for Douglas’s removal from the Committee on

Territories

In 1860 Douglas fared better with theDemocrats, and his Popular Sovereignty policy

was incorporated into the national program He

was chosen as the Democratic candidate for the

presidential election The southern Democrats

still refused to accept him and supported their

own candidate, John C Breckinridge Both

Douglas and Breckenridge lost the election to

the Republican candidate, Abraham Lincoln

At the outbreak of the Civil War, Douglasstaunchly supported the newly elected Lincoln

Adept at public speaking, Douglas’s last

contri-bution to government was a tour of the

North-west to encourage support of the Union, during

which he contracted a fatal case of typhoid fever

Douglas died June 3, 1861, in Chicago, Illinois

CROSS-REFERENCES

Kansas-Nebraska Act.

❖DOUGLAS, WILLIAM ORVILLE

prolific author, was an outspoken and

contro-versial associate justice on the U.S Supreme

Court during much of the twentieth century

For over 36 years, under six presidents and five

chief justices, Douglas’s opinions—including an

unequaled 531 dissents—touched and shaped

the momentous constitutional questions and

COLD WAR, the KOREAN WAR, the CIVIL RIGHTS

MOVEMENT, the VIETNAM WAR, the rise of the

WELFARE state, and the fall of RICHARD M.

NIXON

Asserting that the purpose of the tion is to “keep the government off the backs of

Constitu-the people,” Douglas became a champion of civil

liberties on the high court in seminal cases

PORNOG-RAPHY,TREASON, the rights of the accused, the

limits of the military, the limits of Congress, and

even the limits of the President of the United

States As an outspoken New Deal reformer and

a popular libertarian, he was courted by the

DEMOCRATIC PARTYfor high political office, andlikewise excoriated by leading Republicans whothree times tried to impeach him A man ofenormous energy, he did not confine his publicviews to opinions from the U.S Supreme Courtalone, but wrote over thirty books on a variety oflegal and social topics As an engaging storyteller,vigorous outdoorsman, and blunt social critic, hewas irresistible to the liberal press, under whoseinfluence he was named Father of the Year in

1950 At his death in 1980, he was lionized as anoutstanding protector of freedoms

Since his death, however, historians havecriticized both his public career and his privatelife From his position on the U.S SupremeCourt, he twice flirted with a place on the presi-

despite the clear opposition of his Court leagues He wrote his opinions faster, and withless scholarship or collegial cooperation, thanany of his fellow justices His lifelong stream ofbooks, which referred to him as Associate Justice

col-of the Supreme Court on their covers, showed asimilar haste to regard primarily his own views

as he exhorted the nation impatiently on foreignpolicy, anthropology, religion, history, law, eco-nomics, and the environment Unprecedentedfor a U.S Supreme Court justice, he advocatedpublic issues in extralegal activities around theworld, creating difficulties for both the Courtand the federal government at large He claimed

conference room of the Supreme Court Building

INVESTIGATION (FBI) agents plant marijuana

on his mountain retreat property in GoosePrairie, Washington; when no evidence of theseactivities was ever found, he refused to recant

When a stroke at age 75 left him paralyzed in awheelchair, wracked with pain, and periodicallyincoherent, he nonetheless refused to resign hisseat in the high court until forced to do sothrough the extraordinary efforts of his col-leagues And even then, he insisted on lingering

in his judicial office for months, demandingattention as though he were still on the Court

This brilliant and complex man was bornOctober 16, 1898, in Maine, Minnesota He grew

up in small towns of rural Minnesota, nia, and Washington as his family moved insearch of a climate that would preserve the frailhealth of his father, a hardworking Presbyterian

Califor-DOUGLAS, WILLIAM ORVILLE 9

A MENDMENT IS

AN OLD FRIEND AND A GOOD FRIEND ONE

OF THE GREAT LANDMARKS IN MAN ’ S STRUGGLE

TO BE FREE OF TYRANNY , TO BE DECENT AND CIVILIZED ”

—W ILLIAM O.

D OUGLAS

minister of Scottish pioneer ancestry Douglas’sfather died in Washington when the boy wasfive, leaving the family with only a meager inher-itance, which a local attorney immediatelysquandered on a foolish investment Douglas’swidowed mother, Julia Bickford Fiske Douglas,had saved just enough to buy a house for thefamily in Yakima (WA), across the street fromthe elementary school, where she raised Douglasand his two siblings on the virtues of hard workand high ambition as preparation for success inlife All three of the children achieved success inschool and in professional life, but William wasbrilliant: valedictorian of his high school class,Phi Beta Kappa at Whitman College, and second

in his class and on the law review at ColumbiaLaw School

Polio had stricken Douglas when he was aninfant, and the local doctor had advised the fam-ily that he would never fully recover the use ofhis legs and that he probably would be dead byage 40 His mother, who had favored her first-born with the name Treasure, went to work mas-saging the muscles of his legs vigorously intwo-hour shifts around the clock for months,telling him that he would recover to run again

“like the wind,” the way she had as a girl He notonly recovered the use of his legs but, as an ado-lescent, put himself on a merciless discipline ofhiking miles a day in the mountains under fullpack, to strengthen his legs to the point of out-standing endurance, determined that no onewould ever call him puny

In 1920, he graduated from Whitman lege, in Walla Walla, Washington, and returnedhome for two years to teach English, Latin, andpublic speaking in Yakima High School He pur-sued a Rhodes Scholarship unsuccessfully, andthen decided to hitchhike by rail across thecountry to enter Columbia Law School,although he did not yet possess the money fortuition While in law school, in 1924, he marriedMildred Riddle, with whom he had his only twochildren, Millie Douglas and William O Dou-

later

After graduating from Columbia Law School

in 1925, he practiced in a Wall Street firm forone year before joining the faculty at Columbia

A year later, he went to teach at Yale, where hespecialized in corporate law and finance, writingrespected casebooks and gaining recognition as

an expert in those fields Desperate for a cure forthe continuous headaches and stomach pains

10 DOUGLAS, WILLIAM ORVILLE

◆

1951–52 Defended First Amendment free speech rights in

The Court Years published

1965 Wrote majority opinion for Griswold v Connecticut,

striking down state laws that prohibited contraceptive use

1973 Voted with majority in Roe v Wade; tried

to bring Vietnam War to end by judicial decree

1975 Forced to resign; tried to stay

on as "unofficial" tenth justice

1914–18 World War I

1961–73 Vietnam War 1939–45

World War II

1950–53 Korean War

that had plagued him since his days on Wall

Street, he briefly undertook psychoanalysis at

Yale

Douglas did original and painstaking work with

the help of sociologist Dorothy S Thomas,

court to determine the causes of their loss He

was asked to head a study committee of the

SECURITIES AND EXCHANGE COMMISSION(SEC)

in 1934 In 1936 he became a member of the

SEC, and in 1937 he was appointed chairman

with the mandate from Franklin D Roosevelt to

reform practices of the stock exchange that had

led to the great crash

In 1939, Roosevelt had Douglas, then man of the SEC, hailed off a golf course to meet

chair-immediately with him at the White House “I

have a new job for you,” the president said in the

Oval Office “It’s a job you’ll detest.” Pausing

dra-matically to light up a cigarette, the president

continued, “I am sending your name to the

Sen-ate as Louis Brandeis’ successor.” Douglas was

stunned At age 40, he was about to become the

second-youngest U.S Supreme Court justice in

history

Douglas was sworn in on April 17, 1939, andquickly helped to constitute a new majority on

the Court that supported Roosevelt’s New Deal

laws regulating the economy Within two years,

he had opposed the Court’s leading personality,

FELIX FRANKFURTER, and its reigning

RIGHTSin cases involving religious freedom and

the rights of the accused It was the beginning of

a two-decade battle with Frankfurter and his

philosophy of judicial restraint This conflict did

not end amicably, but it helped to transform

Douglas into a champion of civil liberties After

World War II, Douglas joined forces frequently

WILLIAM J BRENNAN JR.in applying the Bill of

Rights to protect individual liberties

MCCARTHY overtook the nation, Douglas’s

dis-sent in Dennis v United States, 341 U.S 494, 71

S Ct 857, 95 L Ed 1137 (1951), defended the

FIRST AMENDMENTfree speech rights of Eugene

Dennis and ten other members of the American

Communist Party who admitted teaching the

LENIN, and JOSEPH STALIN Douglas argued that

despite current fears of communist influence in

U.S society, their speech alone presented no

CLEAR AND PRESENT DANGER to the nation

Similarly, in dissent, he defended the FirstAmendment rights of several New York school-teachers who had challenged the state’s Feinberglaw (Educ Law N.Y.S 3022) giving authoritiesthe right to compile a list of subversive organi-zations to which a teacher could not belong

Douglas wrote that teachers need the guarantee

of free expression more than anyone and thatthe Feinberg Law “turned the school system into

a spying project” (Alder v Board of Education of City of New York, 342 U.S 485, 72 S Ct 380, 96

L Ed 517 [1952])

During this same period, he vigorously

TAPPINGenabled by the 1929 decision in STEAD V UNITED STATES,277 U.S 438, 48 S Ct

OLM-564, 72 L Ed 944 (1928) Writing for the public

in his book Almanac of Freedom (1954), Douglas

declared that “wire tapping, wherever used, has ablack record The invasion of privacy is omi-nous It is dragnet in character, recording every-thing that is said, by the innocent as well as bythe guilty wire tapping is a blight on the civilliberties of the citizen.”

In 1953, Douglas single-handedly halted theexecution of Julius and Ethel Rosenberg, thedefendants in the most sensational spy trial of

the cold war (Rosenberg v United States, 346 U.S.

273, 73 S Ct 1173, 97 L Ed 1607 [1953]) Aftervoting four times not to hear the case, he finallyordered a stay at the last possible minute, andthen headed off on vacation Unable to reachDouglas en route, the other justices called a spe-cial session to vacate the stay, and the Rosenbergswere executed Douglas’s colleagues accused him

of grandstanding His enemies in Congressaccused him of treason, and he survived three

IMPEACHMENTattempts led by GERALD R FORD.Ford, eager to be rid of Douglas, declared that

“an impeachable offense is whatever a majority

of the House of Representatives considers it to

be at a given moment in history.” However, glas was not a traitor but an adamant civil liber-tarian, unwilling to let the heavy hand of thegovernment crush any individual’s rights

WARREN (1953–69), Douglas found more quent majorities for his activist philosophy Hetook a leading role in reaching a majority for

EDUCATION OF TOPEKA, KANSAS,347 U.S 483,

74 S Ct 686, 98 L Ed 873 [1954]) desegregating

DOUGLAS, WILLIAM ORVILLE 11

public schools, telling his colleagues simply that

“a state can’t classify by color in education.” Heargued in dissent in several cases that the Bill

of Rights was applicable to the states throughthe DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT, an argument that the Court

81 S Ct 1684, 6 L Ed 2d 1081 (1961), which

applicable to the states He supported each ofthe Warren Court’s major decisions extendingthe rights of criminal suspects, including the

RIGHT TO COUNSEL, in GIDEON V WAINWRIGHT,

372 U.S 335, 83 S Ct 792, 9 L Ed 2d 799(1963), and the right to be advised of one’s con-stitutional rights before being interrogated, in

MIRANDA V ARIZONA, 384 U.S 436, 86 S Ct

1602, 16 L Ed 2d 694 (1966)

In 1965, Douglas wrote for the majority in

GRISWOLD V CONNECTICUT,381 U.S 479, 85 S

Ct 1678, 14 L Ed 2d 510, striking down a statelaw that prohibited the use of contraceptives Inthe opinion, he argued that, taken together, theFirst, Fourth, Fifth, and Ninth Amendments cre-ated a constitutional right to privacy This mayhave been Douglas’s most influential singleopinion on the Court He argued that the gov-ernment did not belong in the bedroom, whichwas one of the “zones of privacy” protected by

“penumbras” emanating from the specific

guar-antees in the Bill of Rights Criticism of the wold opinion was fierce But based on this right

Gris-to privacy, a majority of the Court, Douglas curring, would vote for a woman’s right to have

con-an ABORTIONin ROE V WADE,410 U.S 113, 93 S

THUR-GOOD MARSHALL

In his most personal relationships, Douglaswas a tyrant He sternly demanded the back-breaking 16-hour days and six-day weeks fromhis law clerks that he loved to put in himself(when a clerk asked for time off to get married,Douglas granted him 24 hours’ leave), but neverallowed them significant responsibilities forhis opinions One clerk said, “It was a master/slave relationship” (Simon 1980) He marriedfour times while serving on the Supreme Court,

to successively younger women: after Riddle,Mercedes Davidson (1953), whom he met inWashington, D.C.; Joan Martin (1962), atwenty-three-year-old college student who hadwritten her senior thesis in praise of him; andCatherine Heffermin (1965), a twenty-one-year-old college student whom he met while shewas working as a waitress Most of his wivesfound him distant, demanding, and faithless.The 860 pages of his two-volume autobiography

(The Court Years, 1980) are filled with words of

revenge upon his personal and political enemiesbut contain less than a page for his wife of 29years, Riddle He was so inept and cold as afather that his two children fled him As his sonput it, “Father was scary.”

Felled by a stroke in 1974, Douglas becameconfined to a wheelchair pushed by an aide,wracked by constant pain, glazed by medication,and increasingly incoherent But he would notresign He tried to return to the Court in 1975,refusing all advice to the contrary His presencewas embarrassing to the Court and impossible

to sustain He officially resigned on November

12, 1975, but tried to hang on to an unofficialrole as the Court’s tenth justice When even hisclerks would not support his fantasy, he pre-pared a statement of farewell to be read to thejustices on his behalf while he sat in his wheel-chair His farewell compared the relationship hehad shared with his Court colleagues to the slowwarm growth of friendships on a camping trip

in the wilderness His colleagues wept

Douglas died on January 19, 1980, in ington, D.C

Wash-Douglas had shattered the popular view ofthe high court as a somber gathering of elderlypeople in black robes pondering the weightytruths of the Constitution His irrepressiblepersonality, extralegal activities, popular bookwriting, and serial marriages brought unprece-dented color and controversy to the Court Alibertarian by disposition and principle, hewould not easily allow the government to

12 DOUGLAS, WILLIAM ORVILLE

abridge the liberties of others, nor would he

conform to the traditional role of U.S Supreme

Court justice

FURTHER READINGS

Douglas, William O 1980 The Court Years: The

Autobiogra-phy of William O Douglas New York: Random House.

— 1974 Go East, Young Man New York: Random

House.

— 1954 Almanac of Freedom.

Murphy, Bruce Allen 2003 Wild Bill: The Legend and Life of

William O Douglas New York: Random House.

Simon, James F 1980 Independent Journey: The Life of

William O Douglas New York: Harper & Row.

Woodward, Bob, and Scott Armstrong 1979 The Brethren:

Inside the Supreme Court New York: Simon & Schuster.

CROSS-REFERENCES

Communist Party Cases; Rosenbergs Trial.

❖DOUGLASS, FREDERICK

A very influential African American leader of

the nineteenth century, Frederick Douglass used

his exceptional skills as an orator, writer,

ofSLAVERYand for an end to RACIAL

DISCRIMI-NATION He helped to shape the climate of

pub-lic opinion that led to the ratification of the

THIRTEENTH, FOURTEENTH, and FIFTEENTH

AMENDMENTS to the U.S Constitution, which

were created in large measure to protect,

RIGHTS of ex-slaves His Narrative of the Life of

Frederick Douglass (1845) is a classic account of

the dehumanizing effects of slavery for slave and

slaveholder alike

According to his own calculations, FrederickAugustus Washington Bailey was born in Febru-

ary 1817, on a plantation west of the Tuckahoe

River in Talbot County, Maryland (As an adult,

he celebrated his birthday on February 14.) His

mother was a black slave, and his father most

likely her white owner Douglass was separated

from his mother at an early age, and at age 7 he

was sent to Baltimore to work for a family He

later regarded this change from the plantation to

the city as a great stroke of fortune because in

Baltimore he was able to begin educating

him-self His master’s wife taught him the alphabet,

and Douglass, under the tutelage of young boys

on the streets and docks, proceeded to teach

himself how to read and write Even when he

was very young, his limited reading convinced

him of the evils of slavery and the need to seek

his freedom

Douglass continued to suffer under slavery

At times during the 1830s, he was sent back tothe plantation to endure its scourges, includingbeatings and whippings He briefly attempted toteach fellow slaves to read and write, but hisefforts were quickly put to an end by whites

In 1838, living again in Baltimore and ing ships, Douglass escaped north and won hisfreedom He married a free African Americanwoman, Anna Murray, and settled in New Bed-ford, Massachusetts By then a fugitive slave, hechanged his name to Frederick Douglass inorder to avoid capture Douglass quickly became

caulk-a respected member of the community in NewBedford However, he was disappointed to findthat racism was prevalent in the North as well as

in the South

Shortly after his arrival in the North,

Dou-glass became an avid reader of the Liberator, a

newspaper published by a leading abolitionist,

WILLIAM LLOYD GARRISON He became involved

in abolitionist campaigns and soon earned areputation as an eloquent speaker for the cause

In 1841, he met Garrison and was recruited tospeak for the Massachusetts Anti-Slavery Soci-ety Throughout his life, he would travel all overthe United States on speaking engagements,becoming a famous and sought-after orator

In part to refute those who did not believethat someone as eloquent as he had once been a

slave, Douglass published Narrative of the Life of Frederick Douglass in 1845 The book became a

“N O MAN CAN PUT A CHAIN ABOUT THE ANKLE

OF HIS FELLOW MAN WITHOUT AT LAST FINDING THE OTHER END FASTENED ABOUT HIS OWN NECK ”

—F REDERICK

D OUGLASS

Frederick Douglass.

LIBRARY OF CONGRESS

bestseller and made Douglass into a celebrity Italso made known his status as a fugitive slave,and he was forced to flee to the British Isles forsafety in 1845 During his travels, he was greatlyimpressed by the relative lack of racism in Ire-land, England, and Scotland English friendspurchased his legal freedom in 1846, paying hisold master $711.66.

Upon his return to the States in 1847, glass settled in Rochester, New York, andfounded his own abolitionist newspaper, the

Dou-North Star In its pages, he published writers and

focused on achievements He also wrote highlyinfluential editorials for the paper Douglasspublished a series of newspapers, including

Frederick Douglass’ Weekly, until 1863.

Douglass continued to lecture widely andbecame sympathetic to other reformist causes ofthe day, including the temperance, peace, andfeminist movements By the 1850s and 1860s, heincreasingly came to doubt that slavery could beended by peaceful means He became friends

although he did not join Brown in his ill-fated

1859 military campaign against slavery atHarpers Ferry, Virginia

During the Civil War (1861–65), Douglassfought hard to make the abolition of slavery aUnion goal, and he also lobbied for the enlist-ment of blacks into the Union armed forces Inpublic speeches and even in private meetings

made his case forcefully Aided by rising ment against slavery in the North, both of Dou-glass’s goals became a reality Lincoln’s 1863

senti-EMANCIPATION PROCLAMATION sent a strongsignal that the North would seek the abolition of

THIR-TEENTH AMENDMENT to the Constitution mally ended the institution of slavery in theUnited States By the end of the war, nearly200,000 African Americans had enlisted in theUnion armed forces Douglass personally helped

for-to enlist men for the Fifty-fourth and Fifty-fifthMassachusetts Colored Regiments and served as

a leading advocate for the equal treatment ofAfrican Americans in the military

After the Thirteenth Amendment had beenratified in 1865, some abolitionists pronouncedtheir work finished Douglass argued that muchmore remained to be done, and he continued tostruggle for the rights of blacks He called for vot-ing rights for blacks, the repeal of racially dis-criminatory laws, and the redistribution of land

in the South Although disappointed that landredistribution was never achieved, he wasencouraged by the passage of the Fourteenth(1868) and Fifteenth (1870) Amendments,which, respectively, protected against theinfringement of constitutional rights by the statesand established the right of all citizens to vote.Although these constitutional amendments

blacks, the actual laws and practices of states andlocalities continued to discriminate againstblacks Blacks were also harassed by violence from

campaign of terror against those who sought toexercise their civil rights, and white lynch mobskilled hundreds of men each year Douglass

Douglass was a loyal spokesman for the

REPUBLICAN PARTYand vigorously campaignedfor its candidates His support helped to gainhundreds of thousands of black votes for

1817 Born Frederick Augustus Washington Bailey, Talbot County, Md.

◆

1845 Narrative of the Life of Frederick Douglass

published; forced to flee to British Isles

1861–65 U.S Civil War

1838 Escaped north and settled in New Bedford, Mass.; changed name to Frederick Douglass

1895 Died, Washington, D.C.

1877–81 Served

as marshal for District of Columbia

the North Star

1888–91 Served as minister resident and counsel general to Haiti

1865 13th Amendment abolished slavery

1968 14th Amendment gave citizenship rights to former slaves

1870 15th Amendment established right of all male citizens to vote

1881–86 Served as recorder

of deeds for D.C.

◆

Republicans As a result of such work, several

Republican presidents rewarded him with

named him assistant secretary to the Santo

Domingo Commission Later, Republican

presi-dents appointed him marshal (1877–81) and

recorder of deeds (1881–86) for the District of

consul general to Haiti, the first free black

republic in the Western Hemisphere He

resigned the position in 1891 over policy

differ-ences with the Harrison administration

Although such positions did not afford

Dou-glass great political power in themselves, they

provided a comfortable living as well as some

recognition for his significant contributions to

the public life of the country

Douglass was also the first African Americanever to be nominated for the vice presidency He

declined the nomination, which had come from

the little known Equal Rights Party in 1872

Until the end of his life, Douglass continued

to lecture and write for the cause of freedom He

died on February 20, 1895, in Washington, D.C.,

after attending a meeting of the National

Coun-cil of Women

FURTHER READINGS

Chesnutt, Charles 2002 Frederick Douglass Mineola, N.Y.:

Dover.

Douglass, Frederick 2003 The Life and Times of Frederick

Douglass: His Early Life as a Slave, his Escape from Bondage, and his Complete History New rev ed Mine-

ola, N.Y.: Dover.

McKivigan, John R., ed 2004 Frederick Douglass San Diego,

Calif.: Greenhaven Press.

Mieder, Wolfgang 2001 “No Struggle, No Progress”:

Freder-ick Douglass and His Proverbial Rhetoric for Civil Rights.

New York: P Lang.

Miller, Douglas T 1988 Frederick Douglass and the Fight for

Freedom New York: Facts on File.

Moses, Wilson Jeremiah 2004 Creative Conflict in African

American Thought: Frederick Douglass, Alexander Crummell, Booker T Washington, W.E.B Du Bois, and Marcus Garvey New York: Cambridge Univ Press.

CROSS-REFERENCES

Celia, a Slave; Civil Rights Acts; Civil Rights Cases; Dred Scott

v Sandford; Jim Crow Laws; Prigg v Pennsylvania.

DOWER

The provision that the law makes for a widow out

of the lands or tenements of her husband, for her

support and the nurture of her children A species

of life estate that a woman is, by law, entitled to

claim on the death of her husband, in the lands and tenements of which he was seised in fee dur- ing the marriage, and which her issue, if any, might by possibility have inherited The life estate

to which every married woman is entitled on the death of her husband, intestate, or, in case she dis- sents from his will, one-third in value of all lands

of which her husband was beneficially seized in law or in fact, at any time during coverture.

The real property must be inheritable by thewife’s offspring in order for her to claim dower

Even if, however, their marriage produces nooffspring, the wife is entitled to dower as long asany such progeny of her husband would qualify

as his heirs at the time of his death

Prior to the death of the husband, the est of the wife is called an inchoate right ofdower, in the sense that it is a claim that is not apresent interest but one that might ripen into alegally enforceable right if not prohibited ordivested It is frequently stated that an inchoateright of dower is a mere expectancy and not anestate The law governing dower rights is the law

inter-in existence at the time of the husband’s deathand not the law existing at the time of the mar-riage

The courts, however, protect the inchoateright of dower from a fraudulent conveyance—

a transfer of property made to defraud, delay, orhinder a creditor, or in this case, the wife, or toplace such property beyond the creditor’sreach—by the husband in contemplation of, orsubsequent to, the marriage Protection is alsoavailable against the claims of creditors if theclaims arose after the marriage The posting ofsecurity can be required to protect the interest if

DOWER 15

Dower is the provision the law makes for a widow in the distribution of her husband’s estate.

AP/WIDE WORLD PHOTOS

oil, gas, or other substances are removed fromthe land, which thereby results in a deprecia-tion—a reduction of worth—with respect to thevalue of the estate Decisions supporting a con-trary view take the position that a wife cannotinterfere with her husband’s complete enjoy-ment of the land during his lifetime.

A wife can relinquish her inchoate right ofdower by an antenuptial agreement—which is acontract entered into by the prospective spousesprior to the marriage that resolves issues of sup-port, division of property, and distribution ofwealth in the event of death, separation, ordivorce—or by a release, that is, the relinquish-ment of a right, claim, or privilege

The claim of dower is based upon proof of alegally recognized marriage, as distinguished

mar-riage—one in which the parties live together as

HUSBAND AND WIFEbut that is invalid for

into and which remains valid until either partyobtains a lawful court order dissolving the mar-ital relationship, suffices for this purpose if it isnot rendered void—of no legal force or bindingeffect—before the right to the dower arises

Most states have varied the dower sions The fraction of the estate has frequentlybeen increased from one-third to one-half Theproperty affected has been expanded from realtyonly to both realty and personalty The time ofownership has sometimes been changed from

provi-“owned during marriage” to provi-“owned at death.”

The type of interest given to the survivingspouse has been expanded from a life estate tooutright ownership of property

In many states, a widow is entitled to a tory share in her husband’s estate This is oftencalled an elective share because the survivingspouse can choose to accept the provisions madefor her in the decedent’s will or accept the share

DISTRIBUTION or the particular law governingthe elective share In many jurisdictions, dowerhas been abolished and replaced by the electiveshare In others, statutes expressly provide that aspouse choose among the elective share, thedower, or the provisions of the will

COMMON LAW prescribes that an absolute

DIVORCEwill bar a claim of dower A legal ration—sometimes labeled a divorce from bedand board, a mensa et thoro—does not end the

sepa-marital relationship Unless there is an expressstatute, such a divorce will not defeat a claim ofdower This is also true with respect to an INTER- LOCUTORYdecree of divorce, an interim or tem-porary court order

In some states, statutes provide that dowercan be denied upon proof of particular types of

volun-tary sexual intercourse of a married person with

a person other than his or her spouse Statutes inseveral states preserve dower if a divorce or legalseparation is obtained due to the fault of theother spouse

In many states, statutes provide that a derer is not entitled to property rights in theestate of the victim upon the principle that aperson must not be allowed to profit from per-

CON-STRUCTIVE TRUST will be declared in favor ofthe heirs or devisees of the deceased spouse

A down payment is sometimes known asearnest money, or a sum of money that a buyerpays upon entering a contract to indicate a

GOOD FAITH intention as well as an ability topay the balance

DRACONIAN LAWS

A code of laws prepared by Draco, the celebrated lawgiver of Athens, that, by modern standards, are considered exceedingly severe The term dracon- ian has come to be used to refer to any unusually harsh law.

DRAFT

A written order by the first party, called the drawer, instructing a second party, called the drawee (such as a bank), to pay money to a third

party, called the payee An order to pay a sum

cer-tain in money, signed by a drawer, payable on

demand or at a definite time, to order or bearer.

A tentative, provisional, or preparatory ing out of any document (as a will, contract, lease,

writ-and so on) for purposes of discussion writ-and

correc-tion, which is afterward to be prepared in its final

goods sold by weight or taxable by weight, to cover

possible loss of weight in handling or from

differ-ences in scales.

A draft that is payable on demand is called asight draft because the drawee must comply

with its terms of payment when it is presented,

in his or her sight or presence, by the payee In

contrast, a time draft is one that is payable only

on the date specified on its face or thereafter

A draft may be payable to a designated payee

or to the bearer—the person who has possession

of the draft at the time it is presented to the

drawee for payment—pursuant to the drawer’s

directions

A draft is sometimes synonymous with a bill

instrument

DRAFTER

The person who draws or frames a legal document

One who writes an original legislative bill for the U.S Senate or House of Representatives is called the drafter of that bill.

DRAIN

A trench or ditch to convey water from wet land; a channel through which water may flow off The word has no technical legal meaning Any hollow space in the ground, natural or artificial, where water is collected and passes off, is a ditch or drain.

(acquired by grant or prescription) that consists of the right to drain water through another’s land.

A number of states have drainage statutes in

order to protect the welfare of the public Suchstatutes provide for the construction of drains inareas that are swampy, marshy, or overflowedpast their natural boundaries Also contained in

DRAIN 17

WESTERN HEMISPHERE TRADING COMPANY

Troy/Deckerville, Michigan USA

Date: / /

For Value Received,

At SIGHT of this Bill of Exchange Pay to the Order of Ourselves the Sum of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and 00/100 U.S Dollars (US$ xxxxxxxxxxxxxxxxxxx.xx)

Drawn under Issuing Bank, Xxxxx, Xxxxx, Documentary Credit LC No.:

United States of America

Panama Costa Rica Trinidad and Tobago Jam Haiti Puerto Rico (US) Greenl

Belize Barbados Dominica

Banks Island Victoria Island Baffin Island Ellesmere Island

drainage statutes are provisions that regulate the

creation and organization of drainage districts.

The state legislature has the discretion to decidewhich lands will be included within a particulardrainage district For example, such a districtmight include territory of a city or village orproperty in two or more counties

The specific plan for the construction of adrain is within the discretion of local authorities

as modified by limitations or restrictions setforth by state drainage statutes Only land thatwill be benefited through drainage improve-ments should properly be included within adrainage district

In certain instances, liability has beenextended to drainage districts that have failed tomaintain existing drains In order to remedy thissituation, in some cases, landowners are given acertain portion of a drain to clean out andmaintain in proper repair Regardless of whether

or not a landowner is specifically given theresponsibility for maintenance, a landownermay only close or obstruct a drain with his orher neighbors’ consent If the land of an individ-ual is injured because a public drain is beingobstructed by a neighbor, then the person canbring suit for the damage resulting therefrom

Subject to limitations imposed by the U.S

Constitution, a state legislature has the power toauthorize drainage districts to prescribe specialassessments to cover the cost of drainageimprovements Generally, only those landsincluded within a particular district are subject

to such assessment In certain states, schoollands are exempted from assessments thatdrainage districts levy Assessment reviewboards frequently entertain objections todrainage assessments; however, if no such boardexists, assessments are subject to judicial reviews

in the courts A property owner can, therefore,

go to court to challenge what he or she believes

to be an unjust drainage assessment against his

or her land

DRAMSHOP ACTS

Statutes, also called civil liability acts, that impose civil liability upon one who sells intoxicating liquors when a third party has been injured as a result of the purchaser’s intoxication and such sale has either caused or contributed to the state of intoxication.

A dramshop is any type of drinking lishment where liquor is sold for consumption

estab-on the premises, such as a bar, a saloestab-on, or, in

some cases, a restaurant Under dramshop acts,the seller of liquor can be sued by an individualwho is injured by an intoxicated person Suchacts protect the injured third party not onlyagainst personal injuries and property damagesresulting directly from the actions of the intoxi-cated individual (such as those resulting from

also against the loss of family support owing tosuch injuries Generally, the person who becameintoxicated cannot sue the seller if she or he isinjured, nor can any active participant in thedrinking

The dramshop laws are based on the ple that anyone who profits from the sale ofalcoholic beverages should be held liable for anyresulting damages For a seller to be held liable, it

princi-is unnecessary to show that he or she princi-is negligent,provided it is proved that the seller sold liquor to

a habitual drunkard or a person who was alreadydrunk, which is generally illegal in itself

TEMPER-ANCE MOVEMENTof the mid-1800s In Illinois,for example, the first such law was passed in

1872 and amended in subsequent decades By

SOURCE: U.S Census Bureau, Statistical Abstract of the

United States, 2000.

ALCOHOL-RELATED TRAFFIC FATALITIES, 1985 TO 1998

Percent of traffic fatalities which involved alcohol-impaired driver or nonoccupant

0 10 20 30 40 50

the 1990s, more than forty states had either

dramshop acts or court rulings that made a

commercial server or seller of alcohol liable if an

intoxicated customer caused an accident or

injury upon leaving the server’s or seller’s

estab-lishment (e.g., the Iowa Alcoholic Beverage

Control Act [Iowa Code Ann § 123.92 (West)])

Typical modern statutes include limitations on

awards, specifications regarding the commercial

defendant’s type and degree of liability, and a

STATUTE OF LIMITATIONS

By the late 1980s, dramshop statutes andcourt rulings had caused a dramatic increase in

lawsuits involving liquor liability, with a

corre-sponding increase in damage awards to victims

As a result, liquor liability insurance became

increasingly expensive and difficult to obtain

To guard against costly dramshop suits,liquor vendors have taken a variety of steps to

prevent negligent behavior: eliminating “happy

hours,” reducing late-night operation, offering

free Breathalyzer tests, instituting

designated-driver programs, and training servers on how to

deal with intoxicated patrons Several states have

made precautions such as these mandatory

Some, such as Oklahoma, have banned happy

hours (see 37 Okla Stat Ann § 537 [West]);

oth-ers have required server training Many

insur-ance companies either require such preventive

measures or offer incentives for their use

Many states have extended dramshop ity to corporate or individual social hosts who

liabil-provide alcoholic beverages without charge This

new source of liability has produced an

extraor-dinary number of lawsuits Accordingly,

individ-uals wishing to host a social or business function

in one of these states would now be required to

take many of the same precautions commercial

establishments do, including obtaining liquor

liability insurance, or else they would have to

hold their gathering at an insured bar or hotel

FURTHER READINGS

Allen, Jeffrey Wynn 1994 “Illinois Dram Shop Reform.”

John Marshall Law Review 28 (fall).

Fancher, Catherine 1993 “One Too Many? Dram Shop

Act .” Texas Tech Law Review 25.

Smith, Jacob D 2002 “Rethinking a Broker’s Legal

Obliga-tions to its Customers—The Dramshop Cases.”

Securi-ties Regulation Law Journal 30 (spring): 51–95.

Smith, Richard 2000 “A Comparative Analysis of Dramshop

Liability and a Proposal for Uniform Legislation.” The

Journal of Corporation Law 25 (spring): 553–89.

Weiss, Ann E 1987 The Supreme Court Springfield, N.J.:

Enslow.

DRAW

To aim a firearm, or deadly weapon, at a lar target.

COM-MERCIAL PAPER, draft, or negotiable instrument and place one’s signature on it, creating a legal obligation under its terms To write a document, such as a deed, complaint, or petition, including the essential information necessary to make it legally effective upon its execution by the desig- nated parties.

To lawfully remove money from an account held in a bank, treasury, or other depository.

DRAWEE

A person or bank that is ordered by its depositor, a drawer, to withdraw money from an account to pay a designated sum to a person according to the terms of a check or a draft.

a draft An individual who writes and signs a

COMMERCIAL PAPER, thereby becoming obligated under its terms.

DRED SCOTT V SANDFORD

In Dred Scott v Sandford, 60 U.S (19 How.) 393,

15 L Ed 691 (1857), the U.S Supreme Courtfaced the divisive issue ofSLAVERY Chief Justice

ROGER B TANEY, a former slaveholder, authoredthe Court’s opinion, holding that the U.S Con-stitution permitted the unrestricted ownership

of black slaves by white U.S citizens In a ning 7–2 decision, the Court declared that slavesand emancipated blacks could not be full U.S

stun-citizens Any attempt by Congress to limit thespread of slavery in U.S territories was held to

be a direct violation of slave owners’ due processrights

Chief Justice Taney’s opinion fueled thenineteenth-century abolitionist movement andhelped push the United States toward civil war

Although Taney was an accomplished jurist whoserved as chief justice for 29 years, his record waspermanently tarnished by what many consid-ered to be his flawed reasoning in the Dred Scottcase

DRED SCOTT V SANDFORD 19

African slavery was introduced in the ican colonies in 1619 As the new country grew,slavery spread throughout the South, wherecheap labor was needed for harvesting large cot-ton and tobacco crops During the early nine-teenth century, opponents of slavery began toorganize in the North.

Amer-Abolitionists initially wanted to restrict ery to the southern states, but their ultimate goalwas to outlaw black servitude throughout theUnited States As new territories from the

slav-LOUISIANA PURCHASE applied for U.S hood, the issue became a sticking point Mostsoutherners supported the spread of slavery,viewing it as a necessary condition for theirsocial, political, and economic survival Mostnortherners favored the containment and even-tual eradication of slavery Although politicalmoderates called for voters in each new territory

state-to resolve the slavery issue, a national consensus

on this point was never reached

The 1820 Missouri Compromise was anattempt by the U.S Congress to balance thecompeting viewpoints Congress passed a lawdesignating as free states any new states locatednorth of a line drawn across the Louisiana Pur-chase New states south of the line would beslave states In other words, slavery was outlawednorth of Missouri’s border and west to the

Rocky Mountains After the passage of the souri Compromise, two new states were admit-ted: Missouri, where slavery was permitted, andMaine, where it was forbidden

Mis-The Missouri Compromise did not improvethe bitter rivalry between pro-slavery and anti-

slavery forces The controversial Dred Scott

opinion further exacerbated regional tensions.Dred Scott was a slave owned by Dr JohnEmerson, a U.S Army officer In 1834, Scottmoved with Emerson from Missouri, a slavestate, to Illinois, a state in which slavery was pro-hibited by statute Scott and Emerson also lived

in northern U.S territories that later became thefree states of Minnesota and Wisconsin In 1838,Scott and his family returned to Missouri withEmerson

When Emerson died, Scott sued Emerson’swidow in Missouri state court, seeking freedomfor himself and his family Scott’s 1846 lawsuitclaimed that his prior residence in a free stateand free territories entitled him to liberty andback wages since 1834

Scott won his case in the lower court son’s widow appealed to the state supremecourt, which sided with her Then, she marriedCalvin Clifford Chafee, a prominent Massachu-setts abolitionist and member of Congress Thenew Mrs Chafee switched to the abolitionistcamp and agreed to seek a federal ruling againstslavery on Scott’s behalf

Emer-Scott was sold in a sham transaction to Mrs.Chafee’s brother, John F A Sanford, an aboli-tionist from New York Sanford agreed to partic-

ipate in the Dred Scott case as a personal protest

against slavery (Mr Sanford’s name was spelled by a clerk in the case title as “Sandford”and has remained so in court records.)

mis-Scott filed a lawsuit against his new owner infederal court A federal court was able to hearthe case because of diversity of jurisdiction,which entitles litigants from two different states(in this case, Missouri and New York) to pursueclaims in federal court

Like the state lawsuit, the federal caseclaimed that Scott was no longer a slave, owing

to his previous residence in a free state and freeterritory The federal court ruled against Scott,who then brought his case before the U.S.Supreme Court in a writ of error—an orderfrom an appeals court requiring a trial court tosend records to the U.S Supreme Court forreview

Dred Scott sued for

his freedom in 1857,

claiming that his

residence with his

owner in a free state

and free territories

entitled him to liberty The Supreme

Court ruled against

Scott, sparking outrage among abolitionists.

The Supreme Court conducted a four-dayhearing Chief Justice Taney delivered what he

hoped would be the definitive statement on

slav-ery in the United States Taney, a respected

Mary-land lawyer and former U.S attorney general,

chief justice He used Dred Scott as a national

forum on constitutional rights and race

Chief Justice Taney’s colleague, Associate

reach a narrow decision based on the facts in

Dred Scott Because Scott’s original action was

brought in a Missouri court, Nelson believed

simply that state law should prevail in the case

Under Missouri law, a slave’s status was not

affected by a temporary change in residence

Chief Justice Taney did not want Scottdefeated in a narrow holding Instead, he wrote

a sweeping defense of slavery, emphasizing the

slave owners’ constitutional rights and

PROCESS CLAUSE of the FIFTH AMENDMENT of

the U.S Constitution, no person can be deprived

of property without legal proceedings By

out-lawing slavery in certain U.S territories, the

Missouri Compromise stripped slave owners of

their constitutional right to own property, or

“articles of merchandise,” as Taney referred to

slaves Taney found the Missouri Compromise

unconstitutional (Actually, the Missouri

Com-promise had been repealed by Congress in 1854,

but Taney’s ruling nevertheless worried

aboli-tionists, who feared that Taney’s findings could

be applied to any federal legislation that

restricted slavery.) Thus, the Scott decision both

sanctioned slavery and encouraged its spread

throughout all U.S territories

Taney’s opinion also declared that blackslaves and their descendants could not become

U.S citizens Because blacks were ineligible for

citizenship, they could not sue in federal court

Taney claimed that the architects of the U.S

Constitution did not intend for blacks to have

constitutionally protected rights and

immuni-ties The Founding Fathers had regarded blacks

as socially and politically unfit Taney observed

that even if Scott were free, he could not appear

before federal court, because of his race

How-ever, Taney determined that Scott was not free,

because his brief residence in a free state did not

divest him of slave status

Supreme Court’s unequivocal ruling in Scott

would dispose of the slavery issue once and for

all The opinion had the opposite effect Outrageamong abolitionists and fence-sitters was deep

Scott, as new members joined in the wake of the

pro-slavery ruling The Republican party

denounced the Scott decision, calling for

meas-ures to restrict slavery Presidential candidate

ABRAHAM LINCOLNused the case as a campaignissue and pledged to overturn the Court’s rulingagainst Scott Lincoln won the presidential elec-tion in 1860, and in 1861, the Civil War began

After the unfortunate ruling, Scott was freed

by Sanford and worked as a porter in a St Louishotel He died of tuberculosis in 1858 or 1859

Sanford was institutionalized for mental illness,

a condition his friends traced to his public

involvement in the Scott fiasco.

The Supreme Court’s reputation sufferedgreatly owing to its poor handling of the slaveryissue Newspaper editors and politicians lam-basted the Court for its colossal misstep Histo-

rians single out Taney’s Dred Scott decision as

FURTHER READINGS

Bernstein, Richard, and Jerome Agel 1989 Into the Third

Generation: The Supreme Court New York: Walker.

Fehrenbacker, Don 1981 Slavery, Law, and Politics: The Dred

Scott Case in Historical Perspective New York: Oxford

Univ Press.

Finkelman, Paul 1997 Dred Scott, Slavery, and Crisis New

York: St Martin’s.

——— 1996 “The Dred Scott Case, Slavery and the Politics

of Law.” Hamline Law Review 20 (fall): 1–42.

Gunderson, Cory 2004 The Dred Scott Decision Edina,

Minn.: Abdo.

Herda, D J 1994 The Dred Scott Case: Slavery and

Citizen-ship Berkeley Heights, N.J.: Enslow.

Streichler, Stuart A 1997 “Justice Curtis’s Dissent in the

Dred Scott Case: An Interpretive Study.” Hastings

Con-stitutional Law Quarterly 24 (winter): 509–44.

CROSS-REFERENCES

Civil Rights Acts; “Dred Scott Case” (Appendix, Primary

Document); Prejudice; Racial and Ethnic Discrimination.

DRIVING UNDER THE INFLUENCE (DUI)

DRUG COURTS

A special court with jurisdiction over cases ing drug-using offenders Drug courts are treatment- based alternatives to prisons, youth-detention

make extensive use of comprehensive supervision, drug testing, treatment services, immediate sanc- tions, and incentives.

Drug courts concentrate the efforts ofjudges, prosecutors, defense counsel, substance-abuse treatment specialists, probation officers,law enforcement and correctional personnel,educational and vocational experts, communityleaders, and others on individuals who arecharged with illicit drug abuse The criminaljustice system works cooperatively with treat-ment systems and others to provide an offenderwith the necessary tools to get into recovery,stay in recovery, and lead a productive, crime-free life

The drug court acts to help the offenderchange his or her life in order to stop criminalactivity, rather than focusing only on punish-ment of the offender Drug courts also help toprovide consistent responses to drug offensesamong the judiciary, and they can foster coordi-nation between intervention agencies andresources, thus increasing the cost-effectiveness

of drug-intervention programs Successful completion of the drug court’s treatment orintervention regimen usually results in the dismissal of drug charges, shortened or sus-pended sentences, or a combination of these

Participants acquire the wherewithal to rebuildtheir lives

In 1989, the nation’s first drug court wasestablished in Miami, Florida Circuit CourtJudge Herbert M Klein had become troubled bythe negative effects of drug offenses on DadeCounty He became determined to address theproblem caused by widespread drug use Thisfirst drug court became a model program for thenation

Drug courts that followed the Miami modelessentially began as diversionary programs thatdealt with non-violent offenders These subjectstypically were charged with relatively minoroffenses, such as simple drug possession orcharges of driving under the influence

At first, drug courts were geared towardadult populations The successes of adult drugcourts in intervention and in changing the lives

of adult offenders prompted juvenile courts to

establish similar drug court programs aimed atjuvenile offenders Juvenile drug courts likewisehave proven successful, and now many jurisdic-tions include family drug courts that primarilyhear substance-abuse and neglect cases

Differing needs across jurisdictions haveresulted in a variety of drug courts in terms oftheir structure, scope, and target populations,but they all share three primary goals: reduction

of RECIDIVISM, reduction of substance abuseamong participants, and rehabilitation of par-ticipants

To achieve these goals, drug courts generallystructure themselves to include the followingfeatures:

pro-cessing

between the offender and the court

of treatment and referring them to ment as soon as possible after arrest

rehabilitation services

mandatory drug testing

govern drug court responses to offenders’compliance

each drug court participant

and effectiveness

drug court planning, implementation, andoperations

public agencies, and community-basedorganizations in order to generate local sup-port and to enhance drug court effective-ness

Drug courts can be used for a variety of casetypes and are adaptable enough to fit the needsand acceptability of any given community Juris-dictions tailor their drug courts to meet the spe-cific needs of their communities Most drugcourts are pre-plea courts, but some drug courtsare post-plea, and others are used as a method ofalternative sentencing In a pre-plea program,charges are deferred while the defendant isactively participating in the drug court program

At that point in the process, he or she has not

pled guilty to any charges This program is

designed principally for non-violent, first-time,

low-risk offenders

Post-plea drug courts are not as commonbut are used mostly in the cases of more serious

offenders when the prosecutor wants to ensure a

guilty plea in order to avoid a trial The chances

of a more serious offender successfully

complet-ing a program in a drug court might be reduced,

but the prosecution’s trial-preparation time is

saved in the event of failure

As drug courts have consistently proven to

be effective at controlling both the drug use and

the criminality of drug-using offenders,

com-munities have successfully expanded drug court

programs to include those who are on probation

for drug offenses, extending them to drug-using

offenders who are charged with non-drug

offenses Some jurisdictions are even beginning

to apply the drug court model to cases of

driv-ing under the influence of alcohol (DUI) In

doing so, DUI courts, like the traditional drug

courts, make DUI offenders accountable for

their actions in ways that go beyond standard

punitive measures such as fines and

incarcera-tion, thus helping to bring about a behavioral

change among some DUI offenders that ends

DUI recidivism, halts the abuse of alcohol, and

protects the public

The VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994, 18 U.S.C.A §§

JEF-FERSON CLINTON on September 13, 1994, was a

key factor behind the expansion of the drug

court movement This statute provided federal

support for planning, implementing, and

enhancing drug courts for nonviolent drug

offenders The Act was the product of six years

of bipartisan efforts It remains one of the

largest crime bills in the history of the country

and provides for a competitive grant program to

support state and local drug courts that provide

supervision and specialized services to offenders

who have rehabilitation potential

The Bureau of Justice Assistance (BJA)administers the drug court grant program that

was established under the 1994 Act The BJA

provides financial and technical assistance,

training, program guidance, and leadership It

offers grants to jurisdictions for planning,

implementing, or enhancing existing drug

courts In conjunction with the National

Insti-tute of Justice, BJA also evaluates drug court

programs to identify the most effective program

features and organizational structures to combatdrug abuse and crime State courts, local courts,units of local government, and American Indiantribal governments may apply for funding $29million was available in 1995, and $971 millionwas authorized under this program to cover theyears 1996–2000

The record of success, supported by large,federal support initiatives such as the 1994 Act, led to a rapid proliferation of drug courtsthroughout the United States By the end of

2000, nearly 600 drug courts were in operation

in all 50 States, the District of Columbia,Puerto Rico, Guam, and two federal districts

Another 456 drug court programs were beingplanned

Over 300,000 drug-using offenders haveparticipated in drug court programs since 1989

In 2001, Columbia University’s National Center

on Addiction and Substance Abuse updated its

1998 review of drug court research and tions The updated report concludes that drugcourts continue to provide the most compre-hensive and effective control of the drug-usingoffenders’ drug-related criminal activity anddrug use while under the drug court’s jurisdic-tion For example, the average rate of recidivismfor those who complete the drug court program

evalua-is between 4 percent and 29 percent, as pared to 48 percent for offenders who do notparticipate in a drug court program

com-Drug courts have paved the way for the est criminal justice innovation: therapeutic

lat-JURISPRUDENCE Accordingly, several tions are developing special dockets that aremodeled after the drug court format Courtsand judges have become more receptive to newapproaches and thus have brought about a pro-liferation of problem-solving courts, includingDUI courts, domestic-violence courts, mental-health courts, and re-entry courts

jurisdic-FURTHER READINGS

Hennessy, James J., and Nathaniel J Pallone, eds 2001 Drug

Courts in Operation: Current Research New York:

Haworth Press.

Nolan, James L., Jr 2001 Reinventing Justice: The American

Drug Court Movement Princeton, N.J.: Princeton Univ.

Press.

——— ed 2002 Drug Courts in Theory and in Practice.

Hawthorne, N.Y.: Aldine De Gruyter.

CROSS-REFERENCES

Drugs and Narcotics; Drug Enforcement Administration;

Office of National Drug Control Policy.

DRUG COURTS 23

DRUG ENFORCEMENT ADMINISTRATION

The Drug Enforcement Administration (DEA)

M NIXON as part of the JUSTICE DEPARTMENT,thus uniting a number of federal drug agenciesthat had often worked at cross-purposes Itsmission is to “enforce the controlled substanceslaws and regulations of the United States andbring to the criminal and civil justice systemthose organizations and principal members oforganizations who are involved in the growing,manufacture, or distribution of controlled sub-stances in the United States.” In addition to itsdomestic oversight the DEA has sole responsi-bility for coordinating and pursuing U.S druginvestigations abroad The DEA also works

INTERNA-TIONAL LAW enforcement agencies to addressdrugs and drug-related crime

The DEA concentrates on investigating andprosecuting organizations and their memberswho are involved in the cultivation, production,

SMUGGLING, distribution, or diversion of trolled substances in or destined for the UnitedStates The agency seeks to disrupt these organi-zations by arresting their members, confiscatingtheir drugs, and seizing their assets It creates,manages, and supports enforcement-relatedprograms, both domestically and internation-ally, aimed at reducing the availability of anddemand for controlled substances This effortrequires the ongoing management of a nationalnarcotics intelligence system, the fruits of whichare shared with federal, state, and local lawenforcement authorities

con-Because the importation of controlled stances is the main source of illegal drugs, theDEA has increasingly put its energies into inter-national enforcement programs It currently hasoffices in 56 foreign countries and maintains

(the international police organization It isheadquartered in Paris and has approximately

180 member countries), and other internationaldrug enforcement agencies

Training DEA agents and other law ment personnel on the intricacies of the drugtrade has led the DEA to create rigorous educa-tional courses It provides training to DEAagents and support personnel, as well as to stateand local police, international law enforcementofficials, and other law enforcement employees

enforce-on a wide range of critical subject matter In

1999, this effort took a significant step forwardwith the opening of the DEA Justice TrainingCenter in Quantico, Virginia Apart from train-ing, the DEA also conducts an international vis-itor program The agency briefs foreign officialsand U.S diplomats on drug trafficking develop-ments and new enforcement initiatives

The collection of human and electronicintelligence is a major piece of the DEA’s work

A substantial infrastructure supports theseefforts to collect, analyze, and disseminate drug-related intelligence The agency maintains anumber of airplanes that are used to providesophisticated electronic, air-based assistance tofederal, state, and local law enforcement agen-cies It also operates eight laboratories in theUnited States that are used to analyze seizeddrugs and to provide evidence for drug prosecu-tions by law enforcement

Since the 1990s, the DEA has put more

pro-vides that profits from drug-related crimes, aswell as property used to facilitate certain crimes,are subject to forfeiture to the government Assetforfeiture removes the profit from these illegalactivities and it can financially disable drug-traf-ficking organizations Assets that are acquiredthrough forfeiture are sold and the money is putinto the Asset Forfeiture Fund, which is used tohelp crime victims and to fund law enforcementprograms that further combat crime Property isseized by the DEA only when it is determined to

be a tool for, or the proceeds of, illegal activities

MONEY LAUNDERING.The DEA seeks both to destroy illegal nar-cotics and to reduce the demand for drugs Forexample, The DEA aggressively strives to halt thespread of marijuana cultivation to the UnitedStates through the Domestic Cannabis Eradica-tion and Suppression Program (DCE/SP)—presently the only nationwide program thatexclusively targets marijuana The DEA contin-ues to improve the effectiveness of its marijuanaeradication efforts by spending $12.2 million in

2002 to support the 99 state and local agenciesthat are now active DCE/SP participants Inaddition, the DEA continues monitoring statelegislation to combat marijuana legalization.The DEA also funds a Demand Reduction pro-gram in the hopes that education will lead toreduced drug use There are demand reductioncoordinators in every field division in the UnitedStates

The public is most familiar with the DEA’sinterdiction programs along the southern bor-

der of the United States The El Paso Intelligence

Center (EPIC) was created in 1974 to increase

border security and to serve as a strategic drug

and border enforcement facility It coordinates

enforcement intelligence with state, local, and

other federal law enforcement agencies EPIC

also serves as the training center and real-time

information outlet for Operation Pipeline, a

national highway interdiction program By

2000, the DEA’s fleet of 95 aircraft routinely

patrolled this border

The DEA also participates in the High sity Drug Trafficking Areas (HIDTAs) program

Inten-This program was authorized by the Anti-Drug

Abuse Act of 1988 and is administered by the

OFFICE OF NATIONAL DRUG CONTROL POLICY

Its mission is to reduce drug trafficking

throughout the United States by coordinating

federal, state, and local law enforcement efforts

There were five HIDTAs in 1990, but the

num-ber expanded to 31 in 1999

With the growing popularity of based policy in the 1990s, the DEA sought ways

community-to provide local law enforcement agencies with

support for reducing violent crime related to

drugs Out of this concern came the Mobile

Enforcement Team (METs) program METs use

DEA, state, and local law enforcement personneland resources to target high-crime areas Thanks

to the program, by August 2000, 265 ments were completed resulting in over 11,000arrests of violent drug criminals In areas wherethe DEA has deployed METs, assaults have beenreduced by 15 percent, homicides by 16 percent,and robberies by 14 percent METs also con-tributed to the overall national decrease in vio-lent crime during the 1990s

deploy-By 2002, the DEA had identified heroin andmethamphetamine as major threats to theUnited States Although heroin is imported tothe United States, methamphetamine is pro-duced domestically in numerous “meth labs”

throughout the country In addition, the DEAargued that international terrorists had useddrug trafficking and the laundering of proceedsfrom this trafficking to fund their violentactions against the United States and othernations The agency labeled these persons as

Drugs and Narcotics.

DRUG ENFORCEMENT ADMINISTRATION 25

DEA Domestic Arrests, 1986 to 2002

An individual who, as a regular course of business, mixes, compounds, dispenses, and sells medicines and similar health aids.

The term druggist may be used

interchange-ably with pharmacist

Ordinarily, druggists must be registeredunder the Food, Drug, and Cosmetic Act (21U.S.C.A § 301 et seq [1938]) Federal drugabuse laws make provisions for the special regis-tration of any individual who handles controlledsubstances

Regulation

As a public health measure, states have thepower to regulate the preparation and dispens-ing of drugs They can proscribe the sale of cer-tain substances without a prescription andspecifically designate who is permitted to deal inprescription drugs Statutes govern the proce-dures that must be observed when drugs arehandled, as well as the steps that must be takenfor the inspection of drugstores and pharmacyrecords by agents of the state

States can properly mandate that cists be licensed, provided the necessary qualifi-cations are not unreasonable For example,although it would be reasonable for a state torequire that pharmacists earn college degrees, itwould be unreasonable to require them to benatural-born citizens of the United States Statelegislatures have the authority to prohibit anytype of improper competition that would tend

pharma-to lower the service standards

Education and License

A druggist must ordinarily be a graduate of

an accredited pharmacy school and be of soundmoral character In some instances, he or shemight be required to pass a written qualifyingexamination An individual who conforms to allthe requisite qualifications cannot be refused alicense arbitrarily

An individual who is licensed in one statedoes not have the authority to dispense drugs inother states, except where one state consents torecognize a license that has been issued inanother state A license might have to be period-ically renewed and can be revoked or suspendedfor misconduct, such as the selling of an unla-beled drug, the unauthorized substitution of acheaper for a more expensive drug, or the sale ofprescription drugs to an individual who doesnot have a valid prescription

Any state board decision to grant, revoke, orsuspend a license is a proper subject for courtreview A judge has the power to modify thedecision of the board in the event that it is either

ARBITRARYor unsupported by evidence.Any business or individual engaged in han-dling drugs has a legal obligation to exerciseproper care

A druggist does not have the duty to fillevery prescription that is presented, and he orshe is not permitted to fill a prescription thatappears to be a sham A druggist who refuses tofill a prescription must return such prescription

to the customer The pharmacist is not ted to retain it, for example, merely becausemoney is owed by the customer

permit-Pharmacists are required to maintain ten records of the drugs they sell and must allowthe proper state officials to inspect such records

writ-It is not ordinarily unlawful for a pharmacist tofill a prescription on the direction of a doctorwho telephones it in, even if the doctor does notsubsequently send a written authorization Thepharmacist, however, is required to make a writ-ten record at the time the prescription is filled.Although a pharmacist is not required toknow everything possible about drugs, he or she

is required to be as skilled as most others in theprofession Additionally, a pharmacist owes cus-tomers a high degree of care in the service given

to them, and they may properly make theassumption that the drugs that they are sold aresuitable for the use that he or she recommends

Druggists must ordinarily be a graduate of an accredited pharmacy

school Because they

handle controlled

substances, they must

also be licensed and

registered.

AP/WIDE WORLD PHOTOS

Customers can rely upon any specific claims that

the pharmacist makes for the drugs

Liability for Injuries

A druggist who has failed to comply with thelegal responsibilities of the profession can be

subject to a legal action by a consumer Liability

is extended to a licensed pharmacist for his or

of employees who work for him or her The

pharmacist is not ordinarily held liable for

injuries sustained due to medicines sold by him

or her in their original packages

Drugstores

A state can require that a drugstore be tered, and some mandate that the individual

regis-who runs the store be a licensed pharmacist

Regardless of whether or not this is a

require-ment, only a licensed pharmacist is permitted to

dispense drugs In addition, depending on

indi-vidual state statute, some types of drugs can be

sold only by a pharmacist

Certain types of drugs have been designatedpatent medicines and household remedies, such

as hydrogen peroxide, zinc oxide, camphor olive

oil, aspirin, isopropyl alcohol, and essence of

peppermint, and they may or may not be sold

exclusively by pharmacists Foods ordinarily do

not fall under the category of drugs to be sold

only by pharmacists regardless of health claims

that are made for them Vitamins are regarded as

medicines in some instances and as food in

oth-ers Ordinarily, all of these items may be sold

without a pharmacy license

A physician does not have any special right

to own or operate a drugstore A person should

not, however, be denied a license merely because

he or she is also a medical doctor Laws

govern-ing pharmacy do not generally interfere with the

right of a physician to sell drugs to his or her

patients The physician cannot, however, make it

a regular practice to fill prescriptions that other

physicians send

CROSS-REFERENCES

Drugs and Narcotics; Health Care Law; Physicians and

Sur-geons.

DRUGS AND NARCOTICS

Drugs are articles that are intended for use in the

diagnosis, cure, mitigation, treatment, or

preven-tion of disease in humans or animals, and any

articles other than food, water, or oxygen that are

intended to affect the mental or body function of humans or animals Narcotics are any drugs that dull the senses and commonly become addictive after prolonged use.

In the scientific community, drugs aredefined as substances that can affect a human’s

or animal’s biological and neurological states

They may be organic, such as the chemicaltetrahydrocannabinol (THC), which occurs nat-urally in marijuana; or synthetic, such asamphetamines or sedatives, which are manufac-tured in laboratories Drugs can be swallowed,inhaled through the nostrils, injected with a nee-dle, applied to the skin, taken as a suppository, orsmoked Scientists categorize drugs according totheir effects Among their categories are anal-gesics, which kill pain, and psychoactive drugs,which alter the mind or behavior Some psy-choactive substances produce psychologicalhighs or lows according to whether they arestimulants or depressants, respectively Others,called hallucinogens, produce psychedelic states

of consciousness; lysergic acid diethylamide(LSD) and mescaline are examples of suchdrugs Marijuana is placed in its own category

U.S law categorizes these substances ently Commonly, federal and state statutes dis-tinguish drugs from narcotics Drugs aresubstances designed for use in and on the bodyfor the diagnosis, cure, treatment, or prevention

differ-of disease These substances are regulated by the

FO OD AND DRUG ADMINISTRATION (FDA)

Drugs have been defined to include such things

as herb tonics, cold salves, laxatives, reduction aids, vitamins, and even blood

weight-Narcotics are defined by statute as substancesthat either stimulate or dull an individual’ssenses, and that ordinarily become habit-forming (i.e., addictive) when used over time

The regulation of narcotics falls into two areas

Legal narcotics are regulated by the FDA and aregenerally available only with a physician’s pre-scription The production, possession, and sale

of illegal narcotics—commonly called trolled substances—are banned by statute

con-The U.S government has expended billions

of dollars in a fight to reduce drug use in theUnited States, citing startling numbers about thenumber of individuals who use drugs Accord-

States between the ages of 18 and 34 have usedillicit drugs during their lifetime Moreover, 28percent of children between the ages of 12 and

DRUGS AND NARCOTICS 27

17 have used illicit drugs Although much of theattention has focused upon use of such drugs asmarijuana and cocaine, new “club” or “designer”

drugs have become popular among someyounger individuals About six million childrenand young adults over the age of 12 havereported using the designer drug methylene-n-methylamphetamine (MDMA), also known as

“ecstasy,” which has sparked a national debateabout improved drug education in gradeschools and high schools in the United States

Drug Laws

Authority to regulate drug use rests foremostwith the federal government, derived from itspower to regulate interstate commerce States arefree to legislate so long as their laws remain con-sistent with federal law Most states have adoptedfederal models for their own drug legislation

Current law has two main objectives First, itregulates the manufacture, sale, and use of legaldrugs such as aspirin, sleeping pills, and antide-pressants Second, it prohibits and punishes themanufacture, possession, and sale of illegaldrugs from marijuana to heroin, as well as somedangerous legal drugs

The distinction between legal and illegaldrugs is a twentieth-century phenomenon Dur-ing the nineteenth century, there was very littlegovernmental control over drugs The federalgovernment regulated the smallpox vaccine in

1813 (2 Stat 806) and established some controlsthrough the Imported Drugs Act of 1848 (9 Stat

237, repealed by Tariff Act of 1922 [42 Stat 858,

989]) But addictive substances such as opiumand cocaine were legal; in fact, the latterremained a minor ingredient in Coca-Cola softdrinks until 1909 Heroin, discovered in 1888,was prescribed for treating other addictions

California began restricting opium in 1875, butwidespread criminalization of the substancewould not come for decades

States began a widespread movement towardcontrol of legal and illegal drugs at the turn ofthe twentieth century The federal government

DRUG ACT OF 1906(34 Stat 768, 1906, Ch 3915,

§§ 1–13, repealed by Federal Food, Drug, and

Cosmetics Act of 1938), which primarily sought

to protect consumers from “misbranded or sonous” drugs, medicines, and alcohol It estab-lished federal jurisdiction over the domesticmanufacture and sale of drugs and also regu-lated drug imports

poi-Nevertheless, when Congress passed theHarrison Act of 1914 (Pub L No 223, 38 Stat.785), which imposed a tax on opium andcocaine, it stopped short of declaring either drugillegal Most efforts to restrict drug use focused

PROHI-BITIONcrusade culminated in the passage of the

EIGHTEENTH AMENDMENT and the VOLSTEAD

illegal Alcohol remained illegal until the repeal

of Prohibition in 1933

Despite numerous amendments, flaws in thePure Food and Drug Act spurred Congress toreplace the statute In 1938, federal lawmakersenacted the Federal Food, Drug, and CosmeticsAct (FFDC) (21 U.S.C.A §§ 301 et seq.), whichestablished the Food and Drug Administration(FDA) as the federal agency charged to enforcethe law The FFDC exerted broad control overthe domestic commercial-drug market Over thenext two decades, states and the federal govern-ment continued to criminalize nonmedicinaland recreational drugs, and by midcentury, thedivision between legal and illegal drugs wasfirmly in place In 1970, Congress passed theComprehensive Drug Abuse Prevention andControl Act (21 U.S.C.A §§ 801 et seq.), whichcontinues to be the primary source of federallaw on controlled substances

Over-the-counter and prescription drugs aretightly regulated under the FFDC This act andthe Kefauver-Harris Drug Amendments of 1962(Pub L No 87-781, 76 Stat 781) give the FDA abroad mandate The agency protects consumersfrom the potential hazards of dangerous drugs,

standards of safety and quality, and its ment duties include the research, inspection,and licensing of drugs for manufacture and sale.Because the law requires that drugs not be adul-terated, the FDA ascertains that they conform tolegal standards of strength, quality, and purity Italso classifies the drugs that are to be dispensedonly by a physician’s prescription Finally, newdrugs can be placed on the market only afterbeing approved by the FDA Traditionally a slowprocess, FDA approval was speeded up signifi-cantly for some drugs in the 1980s and 1990s,largely in response to the AIDS epidemic

enforce-To control the use of dangerous drugs, eral law and most state statutes use a classifica-tion system outlined by the Uniform ControlledSubstances Act, based on the federal Compre-hensive Drug Abuse Prevention and Control

Act This system includes both illegal and

dan-gerous legal drugs It uses five groups, called

schedules, to organize drugs according to their

potential for medical use, harm, or abuse, and it

imposes a series of controls and penalties for

each schedule

Heroin, hallucinogens, and marijuana areplaced on schedule I, as they are thought to have

a high potential for harm and no medical use

Other types of opiates and cocaine are on

sched-ule II Most depressants and stimulants are on

schedule III Some mild tranquilizers are on

schedule IV Schedule V is for drugs that are

con-sidered medically useful and less dangerous but

that can cause limited physical and

psychologi-cal dependence, such as cough-syrup mixtures

that contain some codeine Under the law, drugs

may be rescheduled as new evidence of their

uses or risks becomes apparent, and the attorney

general has the authority to add new drugs to

the schedules at any time

Penalties are established according to theseverity of the crime Possession of a controlled

substance is the most simple crime involving

drugs Possession with intent to sell is more

seri-ous Selling or trafficking incurs the greatest

penalties The exact penalty for a particular

offense depends on numerous factors, including

the type of drug, its amount, and the convicted

party’s previous criminal record Penalties range

from small monetary fines to life imprisonment

and even greater punishments Under a general

expansion of federal offenses that can invoke

CAPITAL PUNISHMENT, the Violent Crime and

Law Enforcement Act of 1994, Pub L No

103-322, 108 Stat 1796, imposes the death penalty

for major drug trafficking Generally, the highest

price paid by drug offenders is prison time for

trafficking In 1999, according to statistics from

the DEPARTMENT OF JUSTICE, the average

sen-tence for drug offenders engaged in drug

traf-ficking was 77.1 months, compared to an

average of 15.8 months for drug possession

Between the mid-1980s and early 1990s, makers enacted the harshest drug laws in U.S

law-history The impetus for these laws came from

the so-called war on drugs, a broad federal and

state public-policy push initiated under

public support Among its many initiatives was

the creation of the cabinet-level office of the

national director of drug control policy, known

as the drug czar, to coordinate national and

international antidrug efforts

The war on drugs also created a patchwork

of antidrug laws These included the Anti–DrugAbuse Act of 1986 (Pub L No 99-570, 100 Stat

3207), which toughened penalties for drug lations involving cocaine, especially its smokablederivative, crack The law imposed mandatoryminimum sentences, even for first-time offend-ers For sentencing purposes, it established aratio that regards one gram of crack as equiva-lent to 100 grams of powder cocaine Whilegreatly increasing the number of drug offenders

vio-in prisons, the law has provoked considerablecontroversy over its effect on minorities TheAnti–Drug Abuse Act of 1988 (Pub L No 100-

690, 102 Stat 4181) further increased federaljurisdiction over drug crime For the first time,

it became a federal crime to possess even a imal amount of a controlled substance Penaltieswere added for crimes that involve minors, preg-nant women, and the sale of drugs within 100feet of public and private schools States tough-ened their laws, as well Michigan, for example,

cocaine trafficking (Mich Comp Laws Ann

§ 333.7403[2][a][i])

Under the Violent Crime and Law ment Act, Congress exempted certain first-time,non-violent offenders from minimum sentenc-ing An exempted person must be a first-timeoffender with a limited criminal history; mustnot have used violence or possessed a weaponduring the offense; could not have organized orsupervised activities of others; and must providetruthful information and evidence to the gov-ernment during the offense

Enforce-The fight against illegal drugs has extended

to housing The Anti-Drug Abuse Act mandatesthat every local public-housing agency insert aclause in its standard lease document that givesthe agency the right to evict tenants if they use

or tolerate the use of illegal drugs on or neartheir premises

The law has been lauded as an effectivemeans of ridding public housing of drug dealersand other criminal activity that comes with it

However, critics have contended that many erly citizens who live with their children andgrandchildren have been unfairly evicted underthis zero-tolerance policy These critics haveargued that the eviction of so-called “innocent”

eld-tenants violates the 1988 law, as Congress onlymeant to penalize those persons who haveknowledge of drug use The U.S Supreme

Court, in Department of Housing and Urban

DRUGS AND NARCOTICS 29