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People v. Mccarty





APPEAL from the Circuit Court of Sangamon County; the Hon. JEANNE E. SCOTT, Judge, presiding.


The simple, uncontradicted scientific fact is: Cocaine is not a narcotic.

And the classification of cocaine as a "narcotic drug" is violative of equal protection.

McCarty was convicted by a jury of unlawful delivery of less than 30 grams of cocaine, in violation of section 401(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)). On appeal, he challenges the constitutionality of the classification of cocaine as a schedule II narcotic and the trial court's denial of his motion to suppress any in-court identification of him.

The statutory scheme challenged here can be summarized this way: The Controlled Substances Act includes the express intent to effectively acknowledge the functional and consequential differences between the various types of controlled substances and to provide for correspondingly different degrees of control over the various types. (Par. 1100(4).) To accomplish this goal, controlled substances are divided into five schedules, with schedule I drugs containing the highest potential for abuse. (Par. 1203.) Cocaine is placed within schedule II. (Par. 1206(b)(4).) The Act further distinguishes between narcotic and nonnarcotic controlled substances, with narcotic drug offenses carrying heavier penalties. (Pars. 1401(b) and 1401(c).) Cocaine is included within the statutory definition of "narcotic drug." (Par. 1102(aa)(4).) The classification of cocaine as a schedule II narcotic drug renders the offense of unlawful delivery of less than 30 grams of cocaine a Class 2 felony. Par. 1401(b).

Defendant filed a pretrial motion to dismiss the indictment, claiming section 401(b) of the Act is unconstitutional and that it violates the due process and equal protection clauses of the Federal and State constitutions.


Expert testimony was introduced in support of defendant's constitutional claims. Dr. Joel Fort is a physician with expertise in the areas of drug use and abuse, and Dr. Ronald Siegal is both a psychopharmacologist and a psychologist. Both witnesses fully qualify as experts as to the effects and characteristics of cocaine. No evidence on this question was submitted by the State.

There is no dispute within the scientific community that cocaine is not a narcotic. Cocaine is a stimulant and its physiological effects are to increase the heartbeat and blood pressure with average use. Psychologically, cocaine increases alertness and produces a feeling of pleasure.

Cocaine is not physically addicting. Drug addiction has two components — tolerance and withdrawal illness. "Tolerance" means that with continual use, the body requires more of a drug in order to obtain the effect the person is seeking. "Withdrawal illness" means that when the drug is withdrawn there are unpleasant symptoms such as cramping, nausea, perspiration and chills. Cocaine has neither of these characteristics. Cocaine is not generally harmful to the body, and the effect of the drug is shorter lasting than the effects of caffeine, nicotine or amphetamines.

There is no causal connection between the ingestion of cocaine and criminal behavior. Psychological dependency can result, but such dependency is mild and less than a person usually develops from tobacco. Cocaine does not create hallucinations, although perceptual distortion occurs with a small number of users. It is the consensus within the scientific and medical community that cocaine is a drug with low abuse potential and not very dangerous.

Cocaine has currently accepted medical use in this country. It is used as a local anesthetic in ear, nose and throat surgery as well as dentistry. It is used clinically for treatment of chronic pain. Cocaine is cleanly metabolized and excreted from the body. The non-medical use of cocaine does not produce any significant medical problem for the individual user. The consensus is that the risks and dangers of cocaine have been greatly exaggerated. The characteristics of the true narcotics are that they are related to the opium poppy, they are psychoactive depressants and they produce tolerance and withdrawal. But cocaine has none of these attributes.

Dr. Siegal offered the following explanation for the "misclassification" of cocaine. Cocaine was very popular in the latter part of the nineteenth century when it was used in medicines, syrups, lozenges, cigars, wines and liquors. There were no controls on the drug when the cocaine powder became available in the early twentieth century. At about that time a series of articles emerged in prestigious journals, attributing the raping of white women in the South to the cocaine-crazed Negro brain. Cocaine became a racist issue. At that same time, doctors were killing people accidentally by over-administering cocaine during minor surgery. Then, without any evidentiary hearing, the Harrison Narcotics Act of 1914 (ch. 1, 38 stat. 785 (1914)) became law. That law prohibited the use of cocaine and classified it as a narcotic. In 1970, the Comprehensive Drug Abuse Prevention and Control Act which involved the controlled ...

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