The defendant's reliance upon the actual rationality test,
upon which his argument depends, is misplaced. In order to
invoke the more exacting standard for review, the courts have
required that the case involve the infringement of a right
explicitly enumerated in the Constitution or recognized as
fundamental. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85
S.Ct. 1678, 14 L.Ed.2d 510 (1965); Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964);
United States v. Carolene Products Co., 304 U.S. 144, at
152-153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Included
among those rights which have heretofore been found to be
"fundamental" have been the right to travel, Shapiro v.
Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969);
the right to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct.
995, 31 L.Ed.2d 274 (1972); Harper v. Board of Elections,
383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); the right to
essential facilities for prosecution of a criminal appeal,
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891
(1956); the right to procreation, Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942);
and those rights falling within one's "zone of privacy",
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d
551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029,
31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479,
85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
The defendant has not identified any comparable personal
right at issue here. We are not dealing with the defendant's
loss of liberty, for if cocaine was classified as a
non-narcotic as defendant suggests, he would still be subject
to criminal sanctions including imprisonment, for violation of
21 U.S.C. § 841(b)(1)(B). Thus, apart from the generalizations
surrounding the due process and cruel and unusual punishment
proscriptions, the only right arguably referred to by the
defendant is the right to be free from a harsher penalty than
is imposed for medically similar substances. If such a right
exists, it is clearly not a "fundamental" right, and the
defendant has offered no case which has so held. Noticeably
missing are any drug-prosecution cases which might support
defendant's position. Absent a fundamental right at stake,
there is no basis upon which to apply the actual rationality
test, and accordingly defendant's argument must fail.
By contrast, the courts have consistently dealt with
challenges to penal classifications under the rational basis
test. See, Duffy v. Wells, 201 F.2d 503 (9th Cir.), cert.
denied, 346 U.S. 861, 74 S.Ct. 74, 98 L.Ed.2d 373 (1953);
United States v. Russell, 285 F. Supp. 765 (E.D.Pa. 1968),
aff'd, 406 F.2d 774 (3d Cir. 1969). Recognizing the wide
latitude afforded Congress in making statutory classifications
affecting the public health, safety, and welfare, they have
generally upheld statutes upon a showing of some rational
relationship to a legitimate legislative purpose. Williamson v.
Lee Optical, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563
(1955); United States v. Weatherford, 471 F.2d 47 (7th Cir.
1972). This is particularly so in those cases involving drug
violations. Without exception, in prosecutions where the
defendant has challenged the marijuana laws as being based on
misinformation and, therefore, unreasonably classifying
marijuana in Schedule I with heroin, or for imposing greater
penalties than for allegedly more dangerous drugs, the
challenges have all been determined under the rational basis
test. United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973).
See, also, Rener v. Beto, 447 F.2d 20 (5th Cir. 1971); United
States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972);
United States v. LaFroscia, 354 F. Supp. 1338 (S.D.N.Y. 1973).
Consistent with these rulings, we agree that
a statutory discrimination will not be set aside as violative
of equal protection so long as some set of facts reasonably may
be conceived to justify it. As set forth, supra, sufficient
minimum rationality for the penalty classification does exist
in the instant case to meet Fifth Amendment requirements. Nor
do we find that the disparity in penalties offends the Eighth
Amendment as the statute "does not exhibit an inclination to
visit upon [the] offender[s] a penalty so out of proportion to
the crime committed that it shocks a balanced sense of
justice." Halprin v. United States, 295 F.2d 458 at 460-461
(9th Cir. 1961).
Resolution of the issue raised here belongs more properly
with the legislature or the executive and not in the courts.
The wisdom of judicial restraint in this area has been
precisely expressed by the Supreme Court in Marshall v. United
States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618
[w]hen Congress undertakes to act in areas fraught
with medical and scientific uncertainties,
legislative options must be especially broad and
courts should be cautious to rewrite legislation
even assuming, arguendo, that judges with more
direct exposure to the problem might make wiser
Such deference is especially warranted here because of the
corrective mechanism built into the 1970 Drug Act for dealing
with challenges to the improper placement of drugs within the
schedules. Under § 811, the Attorney General is empowered to
add substances to, or delete substances from, the coverage of
the Act, as well as to transfer substances between schedules,
all based upon findings that the statutory criteria warrant
such modification. Proceedings preliminary to such changes may
be initiated by the Attorney General, at the request of the
Secretary of Health, Education and Welfare, or on the petition
of any interested party. 21 U.S.C. § 811(a). Prior to such
proceedings, the Attorney General is required to get an
evaluation from the Secretary whose recommendations as to
"scientific and medical" questions are binding on the Attorney
General. Thus, if new information indicates that the original
classification was incorrect or is no longer justified under
the statutory criteria, an interested party can seek
reclassification. Kiffer, supra, at 350-351.
While there is some question as to whether the Attorney
General could reclassify cocaine as a non-narcotic, hopefully
this route will be pursued to obtain consideration of some of
the unresolved questions surrounding the impact of cocaine as
highlighted by the expert testimony before us. It is clearly
preferable that the drug laws be based upon more substantial
factual evidence than the slender threads of minimum
rationality present here. As has been the experience with the
marijuana laws, hopefully, a more enlightened factual
foundation, grounded upon our expanding medical and scientific
knowledge, will allow us to deal firmly, but also more fairly,
with our drug problems.
An appropriate order will enter.
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