Paraphernalia Laws Against

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Drug paraphernalia are articles that facilitate or enable the use of illicit drugs, such as hypodermic syringes for HEROIN or pipes for smoking MARIJUANA. Laws prohibiting the possession and use of paraphernalia have been adopted in every state of the United States despite significant constitutional objections to them.

The first drug-paraphernalia laws, prohibitions against possessing opium pipes, were enacted by western states in the late nineteenth century as part of broad statutory efforts to suppress opium smoking by CHINESE immigrants. During the first third of the twentieth century, some states, in conjunction with a legislative attempt to criminalize the nonmedical use of OPIATES and COCAINE, also prohibited the possession of hypodermic syringes without a medical prescription. By 1972, when the NATIONAL Commission on Marijuana and Drug ABUSE conducted a survey of state drug laws, about twenty states had adopted some type of drug-paraphernalia prohibition.

Commercialization of drug paraphernalia, especially through so-called head shops, in the early 1970s triggered a new generation of paraphernalia prohibitions, many of which criminalized the sale as well as possession of these articles. Such laws attempted to enforce comprehensive bans on drug-related devices or articles intended for use with illicit drugs.

The drug-paraphernalia industry responded to the enactment of these laws by challenging their constitutionality on vagueness and overbreadth

Since the late nineteenth century, the federal and state governments have enacted laws to regulate the possession and sale of drug paraphernalia, like the crack pipes pictured here. (© Bettmann/CORBIS)

grounds. In most cases, courts struck down the laws as unconstitutionally vague: first, because they applied to objects that had lawful as well as unlawful uses, these laws failed to provide fair notice of prohibited conduct; and second, the lack of explicit standards left police with discretion to enforce these laws in an arbitrary and discriminatory manner.

In 1979, the U.S. Drug Enforcement Administration (DEA) stepped into the fray. In an attempt to assist states and localities in drafting laws that might withstand constitutional scrutiny and at the same time effectively combat the drug-paraphernalia trade, the DEA drafted a Model Drug Paraphernalia Act (MDPA). Unlike prior state laws, the MDPA explicitly requires prosecutors to prove that the defendant knew the alleged paraphernalia would be used with illegal drugs. The addition of the so-called intent requirement was designed to alleviate the fair-warning concern associated with the earlier generation of statutes. In addition, the MDPA attempts to provide a more specific definition of drug paraphernalia by listing objects included within the category and by providing factors that judges should consider in determining whether an object falls within the definition. Finally, the act prohibits placement of an advertisement when one knows, or ''reasonably should know,'' that it is intended to promote the sale of objects ''designed or intended for use as drug paraphernalia.''

A majority of states have adopted the MDPA or an equivalent statute, but its constitutionality has yet to be ruled on by the U.S. Supreme Court. In 1982, however, the Court upheld a local ordinance that required businesses to obtain a license in order to sell articles designed to be used with illegal drugs. Although this law did not involve a criminal statute prohibiting sale or possession of paraphernalia, most lower courts have subsequently upheld criminal laws modeled after the MDPA against vagueness and overbreadth challenges.

In the wake of the HIV/AIDS epidemic, another feature of traditional drug-paraphernalia laws has become controversial. In an effort to reduce the risk of transmission of the HUMAN IMMUNODEFICIENCY VIRUS (HIV) and other blood-borne diseases among needle-sharing illicit drug users, state and local public-health authorities have sought to establish clean-needle exchange programs, usually through hospitals and clinics. To implement these programs, lawmakers have had to repeal the paraphernalia laws or prosecutors have agreed not to enforce them in this context. Many states and local governments have refused to support needle-exchange programs, and the federal government has not funded them due to concerns that dispensing needles will encourage illicit drug use. However, the National Academy of Sciences has concluded that these programs reduce the risk of HIV transmission and has found no evidence that they encourage drug use.

In general, drug-paraphernalia laws represent a type of drug legislation aimed mainly at declaring and symbolizing society's intolerance of illicit drug use. Like other symbolic uses of criminal law, however, these laws are subject to highly discretionary enforcement and can have unintended costs or ramifications.

(SEE ALSO: Legal Regulation of Drugs and Alcohol; Needle and Syringe Exchanges and HIV/AIDS; Parents Movement; Prevention Movement; Substance Abuse and AIDS)

BIBLIOGRAPHY

Corcoran, A. M., AND HELM, J.(1973). Compilation and analysis of criminal drug laws in the 50 states and five territories. Technical papers of the second report of the National Commission on Marijuana and Drug Abuse. Washington, DC: U.S. Government Printing Office.

GOSTIN, L. AND LAZZARINI, R. (1997). Prevention of HIV/ AIDS among injection drug users: The theory and science of public health and criminal justice approaches to disease prevention. Emory Law Journal 46, 587-643.

Guinan, M. D. (1983). The constitutionality of anti-drug paraphernalia laws—The smoke clears. Notre Dame Law Review 58, 833.

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