APPEAL from the Circuit Court of Madison County; the Hon. JOHN
DeLAURENTI, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This appeal involves the sole question of whether the classification of cocaine as a narcotic drug by the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1100 et seq.) is unreasonable and thus deprives defendant, William Vernor, of due process and the equal protection of the law in violation of the State and Federal constitutions. Defendant was charged in the circuit court of Madison County with unlawful delivery of less than 30 grams of a substance containing cocaine in violation of section 401(b) of the Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)). Following a bench trial, defendant was found guilty as charged and was sentenced to a term of two to eight years imprisonment. Defendant brings this appeal.
The facts underlying the commission of the offense are not in dispute. On October 30, 1976, defendant sold four grams of a substance containing cocaine to an undercover agent for the Metropolitan Enforcement Group of Southwestern Illinois, in return for $500. Thereafter, the instant charge was brought against defendant and he filed motions to dismiss on the same grounds herein raised. The issue was joined by the State and a lengthy evidentiary hearing was held wherein the testimony of experts in the field of drugs and drug abuse was presented. Following the hearing, the lower court denied defendant's motions, concluding that:
"This is a matter for the judgment of the legislature and the legislature may well choose to re-evaluate the societal impact versus penalty relating to cocaine use, possession or delivery. However, even the existence of an honest conflict of serious opinion does not suffice to bring such matters with[in] the range of judicial cognizance. * * * [T]he mere fact that cocaine is not specifically a `narcotic' in a medical or pharmacological sense does not make its classification with opiates inappropriate and automatically, necessarily arbitrary, unreasonable and unconstitutional."
Cocaine is listed in the Act as a Schedule II drug for the purposes of the Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1206.) Section 401 of the Act, under which provision defendant was convicted, prohibits the manufacture or delivery of controlled substances and provides for differing penalties depending on the amount and schedule of the substance involved in the violation thereof. Subsections (b) and (c) of section 401 divide Schedule II drugs, of less than specified amounts, on the basis of whether or not such substances are narcotic drugs and further provide for a greater penalty with respect to those that are. A separate provision in the Act defines "narcotic drugs" to mean opium, the opiates and coca leaves (from which cocaine is processed) and their derivatives, compounds and chemical analogs. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1102(aa).) Because the Act defines narcotic drugs to include cocaine, defendant was convicted under section 401(b), a Class 2 felony. Had cocaine not been so classified, defendant could only have been convicted under section 401(c), a Class 3 felony.
Because pharmacologically cocaine is not a narcotic drug, defendant essentially contends that the legislature's classification of it as such and the greater penalty arising therefrom is arbitrary and irrational.
At the hearing on defendant's motions to dismiss, Dr. Joel Fort and Dr. Ronald Siegel testified on behalf of defendant; Dr. Frank Mercer testified on behalf of the State. The following is a brief summary of the evidence presented.
It was undisputed that under the pharmacological definition of the term, cocaine is not a "narcotic drug." Cocaine is an alkaloid which is primarily obtained from the leaves of Erythroxylon coca, a species of plant indigenous to Peru, Bolivia and adjoining areas of South America. In that region, the drug has been in use for centuries to relieve fatigue, to increase productivity and to relieve boredom. Cocaine is a stimulant drug which excites the central nervous system. It also produces an increase in the heart rate and blood pressure. Further, it increases mental alertness or wakefulness, and produces a psychological sense of well-being.
In this country the drug is generally used for social-recreational purposes. It has only a limited therapeutic use as a local anesthetic on tissues it directly touches in sufficient concentration. When it is purchased lawfully, it sells for approximately $20 per ounce; when it is purchased illegally, it sells for approximately $2,000 per ounce.
Cocaine users primarily take the drug by sniffing it through the nose. A less common method of use is by intravenous injection directly into the blood stream. The effects of the drug are rapid but of short duration lasting from 30 minutes to two hours.
Pharmacologically, the class of narcotic drugs consist of the opiates, such as heroin, morphine and other equivalents; however, the term has been popularly understood to include a broader range of drugs. Narcotic drugs, unlike cocaine, are depressants on the central nervous system and they tend to reduce or relieve pain while they produce drowsiness, stupor or sleep. They induce euphoria but also dampen the functioning of the brain and cause difficulty in carrying out skilled muscular activity. Narcotic drugs are physically addictive and are characterized by tolerance and withdrawal illness. Tolerance denotes the organism's adaptation to a drug thus requiring increasing doses over time to maintain the same effect from the drug. Withdrawal illness is a pattern of symptoms appearing when a drug is suddenly discontinued following prolonged usage. Narcotic drugs are also not self-limiting. Given an unlimited supply, a user will take the drug continuously.
All three witnesses agreed that in contrast to narcotic drugs, cocaine is not physically addictive. It is not generally associated with tolerance or withdrawal illness and it is a self-limiting drug. Given an unlimited supply of cocaine, a user will only consume a limited quantity thereof at any given time.
Furthermore, there is a cross-tolerance effect associated with the opiates. Any one opiate may be substituted by a user to suppress withdrawal illness caused by an abstinence from another. There is no cross-tolerance between cocaine and any of the opiates.
The defense witnesses stated that although no drug is harmless, cocaine is relatively safer to use and has less potential for abuse than heroin, morphine, and the barbiturates, amphetamines and a number of hallucinogens. Cocaine, however, is not a benign drug. Dr. Siegel stated that in a study of 62.9 million people from 1971 to 1976, 111 fatalities were associated in part to cocaine. Of these, 26 deaths were attributable solely to cocaine. When cocaine is taken intranasally, it can produce rhinitis. And when it is taken by intravenous injection, it can result in a variety of problems normally arising from syringe usage. Prolonged use can result in toxic psychosis, hallucinations and other behavioral problems. One such hallucination described is formication, a tactile sensation. The defense witnesses described such adverse effects as being mild and as resulting only from excessive use. They further stated that cocaine does not itself lead to criminal or antisocial behavior. The State's witness stated that psychosis can result from cocaine usage and that users have been observed exhibiting aggressive or other antisocial behavior while under the influence of the drug. He further stated that the drug has a strong potential for abuse. All the witnesses agreed that while cocaine is not physically ...