The difficulty of definition: drug paraphernalia

By JULIE A. BUTTON

SPURRED by citizens' groups and governmental agencies concerned about drug abuse, efforts to ban drug paraphernalia have been gaining legislative momentum across the nation over the last few years.

The paraphernalia industry claims its constitutional rights to market its wares should not be infringed, while proponents of the legislation feel that the drug devices, although not the cause of ilhcit drug use, do exacerbate the problem and should be banned. All of which leaves legal authorities searching for anti-paraphernalia legislation that would withstand charges of unconstitutionality.

It is no easy task. Several past legislative efforts have been struck down in court, usually because "paraphernalia" was too vaguely defined. In response to the dilemma, the Drug Enforcement Administration (DEA) of the U.S. Department of Justice drafted the Model Drug Paraphernalia Act (MDPA) for state and local authorities. Written in August 1979, it is designed as an amendment to the controlled substances acts already in effect in most states, including Illinois. It appeared the model was passing all court tests, until a recent federal appeals court decision on the Parma, Ohio version.

The MDPA consists of four articles, paraphrased below:

•  Article I (definition): "Drug paraphernalia" is any equipment, products, and materials used, intended for use, or designed for use in growing, manufacturing, testing, packaging, injecting, ingesting, inhahng, or using any other means of introducing into the human body a controlled substance.

•  Article II (offenses and penalties): It is an offense to possess, manufacture, deliver, or deliver to a minor, drug paraphernalia with the intent or reasonable knowledge that the paraphernaha will be used in the growing, processing, or ingestion of controlled substances into the human body. It is unlawful to advertise drug paraphernalia.

•  Article III (civil forfeiture): All drug paraphernalia is subject to civil seizure and forfeiture.

•  Article IV (severabihty): Any provision or application of the MDPA found invalid does not affect the rest of the act if it can still be given effect.

Twelve states and several muncipalities have patterned their anti-paraphernalia legislation after the MDPA. The constitutionality of the MDPA has been challenged in the courts a number of times by various accessories trade associations, but the MDPA has emerged unscathed.

Except once. On December 8, 1980, the U.S. Court of Appeals for the Sixth Circuit ruled that the Parma municipal ordinance based on the MDPA was unconstitutionally vague and overbroad. The court had several objections. It opposed the terms "used, intended for use, or designed for use" in defining drug paraphernalia because many materials which have legitimate functions can also be drug devices — a paper clip can become a "roach" clip to hold the butt of a marijuana cigarette; a hand mirror can be used to prepare cocaine for ingestion.

The Sixth Circuit Court also ruled as unconstitutionally vague and overbroad the prohibition of the delivery or manufacture of items one "reasonably should know" will be used with controlled substances. The court said the phrase "reasonably should know" is too prone to misapplication because it forces merchants to determine the intent of customers.

Finally, the court ruled that the ban on drug paraphernalia advertisements was an infringement on protected commercial speech in violation of the First Amendment. This prohibition is applicable only within the boundaries of the municipality with the ordinance, yet the ordinance could be enforced against advertisers in printed media which circulate in other municipalities. Further, residents of the ordinance municipalities are denied information about the availability of drug paraphernalia in other locales.

Unlike the MDPA, the Parma ordinance applied the severability clause only to the section on offenses, so a declaration that the section on definitions was unconstitutional rendered the entire ordinance unconstitutional.

"The Sixth Circuit Case is a quirk," says Harry Meyers, assistant chief counsel of the Drug Enforcement Administration. "I think they're wrong," said Meyers, who ventures that "judicial gymnastics" were involved in some of the ruHngs. Nor does he think that the U.S. Supreme Court will uphold the ruling, noting that the Sixth Circuit is "the only court to find anything wrong" with the MDPA.

Meyers points out that no other kind of paraphernaha has received as much legal tolerance. He notes that federal statutes prohibit devices for wagering, counterfeiting, moonshining, eavesdropping and wiretapping. If drug paraphernalia is not banned, Meyers says, we will continue to be "dealing with problems of permitting implements of crimes."

An Illinois bill on drug paraphernalia was introduced in the 81st General Assembly but failed. S.B. 1505, sponsored by Sen, John Maitland (R., Bloomington), was based on the MDPA model and passed the Senate 42-9. The House, however, passed amendments, sponsored by Rep. John Cullerton (D., Chicago), which replaced the MDPA provisions with a prohibition on the sale to minors of any smoking accessories, including those for tobacco. The House then approved this new version 137-5, but the Senate rejected it. The House amendments, says Meyers, are "the industry's bid to stay in business."

The House amendments were based on a model act advocated by the Tobacco Accessories Trade Association (TATA). And Michael Pritzker, Chicago attorney and author of this model, says his model act represents "enlightened discouragement rather than cosmetic and reactionary approaches" to controlling accessories.

Pritzker, who has represented the Tobacco Accessories Trade Association in challenges to anti-paraphernalia legislation, notes that while his model act "lacks the dramatic rhetoric of the DEA bill," it is the simplest, most constitutional approach to the issue. Pritzker points out that a blanket prohibition of all tobacco accessories to minors would avoid a lot of the difficulties of defining paraphernalia. "After all," he says, "what's a marijuana pipe? It's one that's been used to smoke marijuana. If a kid can't be in possession of a pipe, the cop knows what to do."

Another paraphernalia bill has already been introduced by Maitland in the 82nd General Assembly. S.B. 42 echoes some of the provisions of the MDPA, but this bill would not make it illegal to possess paraphernalia. It would, however, prohibit the sale, delivery, or offer to sell of such devices; impose a fine of $1,000 per device; and make all paraphernalia subject to forfeiture. Finally, any premises used for commercial transactions of drug paraphernalia could be declared a public nuisance and the owner forbidden use of the property for a year unless a bond were posted.

Support for this column, which reports policy developments concerning science and technology, is provided in part by a National Science Foundation grant to the Illinois Legislative Council Science Unit, where Julie A. Dutton is a research associate.

March 1981/Illinois Issues/28