U P F R 0 N T

JURIS THE DUQUESNE LAW SCHOOL NEWSMAGAZINE

C 0 N T E N T S

Sobriety Checkpoints: Balancing Safety Against Constitutional Rights by Mary Wheeler

Getting The Goods: Contraband in Pennsylvania by L.A. Smith II

Corporate Officers Doing Time by Daniel T. Reimer

Legalizing Drugs ... Is it Worth a Try? by Anthony Carone

Drug Testing, The Workplace & The Fourth Amendment by Gregg D. Michael

Chemical Restraints by Sarah Rollman

The Fate of Humanity: The School v The Juvenile Delinquent by Kelly Streib

Pennsylvania: Above and Beyond Protecting Our Privacy by Kelly Scanlon

Postpartum Depression as a Defense to Criminal Homicide by Colleen Ramage

On Campus

Will Puerto Rico Be the 51st State? by Vanessa Viera

p A G E

4 7

11 13 17 20 22 23 25 27 28

Law and Financial Planning: Testing the New Rules of Professional Conduct by Peter Matthews Wright 30

Recent Decisions 33 Steven W. Zojjer Production Staff Editor·in·Chief

Raymond Sekula Faculty Advisor

Deanna L. Heasley Executive Managing Editor

Bob Walter Executive Production Editor

Jan Daschbach Adm.inistrative Assistant

Susanne Kimberland Senior Editor

Jeanne D. Carr Evening Articles Editor

Aileen M. Hickey Day Articles Editor

Michael J. Silver Recent Decisions Editor

James Kocur Assistant Managing Editor

Jon R. Perry Photography Editor

Cheryl L. Cindrich Graphics Editor

Claire Trunzo Layout Editor

Lisa Martino Copy Editor

Staff Editors Anna M. Backus Christopher Ferry Ella A. Kwisnek Colleen Ramage Kelly Scanlon Lisa Sciullo Daniel P. Taylor

Front Line Editors Jan S. Barnett Philomena Demeter Carrie E. Garris Michael A. Labriola Carmen A. Martucci Judith L. Renner Michael J. Revness Tammy Rhodes

Elizabeth Catton Michael F. Marmo Valerie A. Gatesman Eddy Guarascio Lisa Gumbita Angela M. McBride Paul J. Malak Mary Grace Manion

Dale T. Provins Chuck Rigsby Susann Schneider Scott M. Staller Mary Wheeler

Writing Staff

Lisa M. A lien Lea Black Richard A. Bozigar Anthony C. Carone Sherri Cupplo Catherine M. Duckett Thomas N. Farrell Joyce Ann Gallagher Joan E. Gibson James Hopson M. Robb Hyde Mary Ann Lewis Susan D. Mcilwain Robert J. Maran to. Jr. Gregg D. Michael Mark Milsap

Henry Lee Moore Lisa Marie Pasqualini Molly E. Puhlman Daniel T. Reimer Sarah 0. Rollman Mark Rowan Elizabeth J. Seiner L. A. Smith. II Mary T. Snyder Martha A. Stewart Kelley T. D. Streib Heather Tomb Ed Vallery Vanessa Viera Eric S. Weiss Peter Matthews Wright

JURIS Is a student publication of the Duquesne University School of Law. VIews and opinions expressed herein are not necessarily those of JURIS or Duquesne University. All manuscripts and comments may be addressed to: JURIS Duquesne University School of Law 900 Locust Street Pittsburgh. Pennsylvania 15282 Telephone (412!434·6305 Copyright© 1991 Duquesne University

Sobriety Checkpoints: Balancing Safety Against

Constitutional Rights The Pennsylvania State Police set

up a sobriety checkpoint on a Satur­day evening hoping to catch drunk drivers . Delayed by the road check. Harry expresses his outrage to the officers who have tied up traffic. wasted his time and invaded his privacy . Harry has rights. you know!

The police are happy with the results of the checkpoint. Out of one hundred twenty-five cars checked. they have netted two drunk drivers. neither of whom were driving errati­cally enough to be stopped on suspi­cion of drunk driving under the statutory language in Pennsylvania.

Seven state troopers have each spent four hours on duties associated with the checkpoint. while other drivers have traveled with impunity at speeds of seventy and eighty miles per hour on unpatroll ed highways.

Harry has a friend who has just graduated from law school and is building a client base. so he figures he can get some free legal advice.

Harry's friend. Gwen . has Monday morning coffee with a fellow lawyer. Dan. who tells her of his close call with the police the other evening. "We almost got caught in that sobri­ety checkpoint when we were coming home from a wedding reception. I wasn ' t drunk. but I'd had a few drinks. The police set up the check­point on the old highway just a few minutes after T went past. ..

When Gwen reaches her office. an angry client is waiting for her. His wife is in the hospital after an intoxi­cated driver caused an accident that totaled two cars.

The law must walk a straighter line than any drunk or impaired driver as it grapples with problems inherent in trying to balance Harry 's Fourth Amendment privacy rights against the highway user 's right to safety .

Chapter 75 of Pennsylvania Con­solidated Statutes, otherwise known as the Implied Consent Law. provides for chemical testing of drivers in sec­tion 154 7 in the following manner:

(a) General rule-Any person who drives. operates or is in actual physical control of the movement of a motor vehicle in this Common­wealth shall be deemed to have given implied consent to one or more chemical tests of breath. blood or urine for the purpose of determining the alcoholic content of the blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(I) while under the influence of alcohol or a controlled sub­stance or both; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treat­ment at a medical facility or was killed. (b) ( 1)If any person placed under arrest for a violation for sections 3731 (relating to driving under the influence of alcohol or con­trolled substance) is requested to submit to chemical testing and

refuses to do so, the testing shall not be conducted but upon notice by the police officer. the depart­ment shall suspend the operating privilege of the person for a period of 12 months.

(2)1t shall be the duty of the police officer to inform the person that the person "s operating privi­lege will be suspended upon refusal to submit to chemical testing.

(3)Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspen­sion for other reasons. 75 Pa Stat § 1547 (Purdon 1986). 1

No clever twist or statutory interpre­tation can change the meaning of sec­tion 1547(a). Under Pennsylvania and other similar state laws. drivers can be detained and forced to submit to chemical testing only if something unusual in their driving leads a police officer to suspect the influence of alco­hol or other controlled substances. or if an accident occurs that involves personal injury or death.

One might construe this language to mean that the police cannot with­out good cause require a driver to sub­mit to chemical testing. as long as the driver does not appear to be intoxi­cated or impaired. If the driver shows signs of intoxication. police can stop his vehicle. even if it has not been involved in an accident or violation. If the driver shows signs of intoxica­tion. police can stop his vehicle, even if it has not been involved in an acci­dent or violation.

Although some may feel too many drunk drivers evade detection under these guidelines, the law as written contains provisions for which it is to be commended . The law allows for police to make adjustments for

drivers with abnormally high or low tolerance to alcohol. The driver whose body tolerates alcohol so well that he can safely drive after he has taken a drink or two will not be stopped under the standards of the implied consent law. Conversely. the driver who has abnormally low tolerance risks detec­tion if he takes the wheel.

Expensive and time consuming, sobriety checkpoints rate low in effi-

ciency and detract from other impor­tant police activities.

Sobriety checkpoints insult law­abiding citizens. subjecting sober. as well as drunk, drivers to detention, delay and explanations. They also point to the dangerous tendency of the courts to impinge upon the free­doms guaranteed by the Constitution. while attempting to control drunk drivers on the highway .

In abating rights of drivers. the courts have moved quickly in recent years. In 1984. the Pennsylvania Supreme Court ruled that the implied consent law is designed to provide an effective means of denying intoxi­cated motorists the use of the roads . 2

In 1986. Pennsylvania's high court ruled that police were not required to conduct field sobriety tests in order to form the necessary "reasonable belief' to request a motorist to sub­mit to a breathalyzer analysis .J

The following year. the state Court went a step further. and ruled that the standard of what constitutes "reasonable grounds" to believe that an individual has operated a vehicle under the influence of alcohol is not very demanding and the officer need not be correct in his belief.•

In 1985, the Pennsylvania Supreme Court dealt with the issue of sobriety checkpoints again in Wysocki v Com .. Dept ofTransportation. 91 Pa Commw 42. 496 A2d 897, a!Td 517 Pa 175, 535 A 2d 77 ( 1985) .

Wysocki was arrested during a sobriety check conducted by Pennsyl­vania state troopers, in which police stopped vehicles going in both direc­tions. Because Wysocki fumbled when producing his driver's license and a trooper smelled alcohol on Wysocki's breath. he was asked to

walk a straight line. heel to toe. and to stand on one foot for thirty seconds. Failing both tests, Wysocki was placed under arrest. After being told the Ia w . he refused to take a breathalyzer test.

In his defense. Wysocki cited Dela­ware v Prouse. 440 US 548. 99 S Ct 1391. 59 LEd 660 ( 1979). In Prouse. a Delaware driver was stopped for a license check. The U.S. Supreme

Court found the stop unconstitu­tional. because it allowed police "the unconstrained use of discretion" in stopping the vehicle. The Pennsylva­nia Supreme Court distinguished Wysocki from Prouse in that all cars traveling in both directions were stopped. making the stop regular and methodical, and leaving nothing to the discretion of the police. 5

Wysocki also cited the implied con­sent law in his appeal. maintaining that his arrest for driving under the influence was tainted and a violation of his constitutional rights because police had stopped him without "reasonable grounds to believe Wysocki to have been driving. oper­ating, or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both ... " 6

The court distinguished "arrest" as found in section 154 7(b) of the motor vehicle code from "lawful arrest." It held that the brief stop required at a sobriety checkpoint does not consti­tute a valid legal arrest. as that term is used in criminal case law and statutes. so "probable cause" is not necessary.

Two years after Wysocki, another driver had more success with a simi­lar argument. The Pennsylvania Supreme Court afl1rmed a reversal by the Superior Court of a conviction of driving under the influence against Joseph Tarbert.

In deciding Commonwealth v Tar­bert. 517 Pa 277, 535 A2d 1035 ( 1987). the Pennsylvania Supreme Court considered two issues: whether the conditions of the sobriety check­point at which Tarbert was arrested violated Article I, Section 8 of the Pennsylvania State Constitution (providing security from improper

searches and seizures): and whether the checkpoint violated any statutory provision of the Pennsylvania law .

On the constitutionality issue , the court noted that the search and sei­zure provisions of the Pennsylvania Constitution afford broader protection than does the Fourth Amendment of the federal constitution. As a stan­dard. the court observed the applica­tion of the Fourth Amendment by the

United States Supreme Court in deciding to employ a balancing test.

The protection of Pennsylvanians from the danger posed by drunk drivers is a "compelling interest." said the court. The intrusiveness of road blocks can be reduced to a con­stitutionally acceptable degree by the manner in which it is conducted.

The Tarbert court therefore found sobriety checkpoints to be constitu­tional, if several conditions are met: a motorist must be able to see the roadblock from a reasonable distance: the decision to hold a sobriety check­point must be made in advance with prior administrative approval; the route selected must be one which is likely to be traveled by drunk drivers: the time of the road block should be one in which drunk drivers are likely to be on the road: and the question of which vehicles to stop must be in accordance with objective standards prefixed by administrative decision. 7

On these grounds. the Pennsylva­nia Supreme Court found that the checkpoint in which Tarbert was caught did not violate the Federal or State Constitution.

The second issue was whether the checkpoint had violated any statutory provision of Pennsylvania law . The court noted a 1973 Pennsylvania case. Commonwealth v Swanger. 453 Pa 107. 307 A2d 875 (1973). In Swanger. the court had held that the statutory authority of the police to stop motor vehicles was virtually unlimited . The court found this unrestricted power of the police to be unconstitutional. The Pennsylvania legislature. in response. twice amended section 3908(b) of the motor vehicle code to require reasonal belief before a stop is made. (Section §3908(b) has again been amended to

allow police to stop vehicles pursuant to reasonable belief. or to a systematic road check.)

Because the circumstances in Tar­bert did not show a reasonable belief on the part of the police that Tarbert was driving under the influence. the Pennsylvania Supreme Court affirmed the Superior Court's rever­sal of Tarbert's conviction.

In a dissimilar but related 1990

case. Commonwealth v Danforth, 395 PaSuper 1, 576A2d 1013 (1990); appeal granted 1693 THL 98, 11 EAD 91 ( 1991 ), the Pennsylvania Superior Court declared section (a)(2) of the implied consent law unconstitutional. Danforth protects motorists involved in accidents involving property dam­age. injury or death from chemical testing, unless the police can show probable cause.

Though Danforth is currently good law. it is expected by many to be reversed on appeal. Danforth is dis­tinguishable from Wynsocki and Tar­bert in that the former cases dealt with breathalyzer testing, while Dan­forth involved blood testing, which is considered by the courts and law enforcement agencies to be more intrusive than breathalizer testing. The effect of Danforth, however, is that currently a Pennsylvania driver caught in a sobriety checkpoint has fewer constitutional guarantees than a driver who, by driving under the influence of alcohol or drugs , has killed another person.

The question of whether sobriety checkpoints are constitutional came before the United States Supreme Court on June 14, 1990. In a six to three ruling. the Court held check­points to be constitutional, in the case of Michigan Department of State Police v Sitz __ . us __ , 110 set 2481. 110 L Ed2d 412 (1990).

In Sitz, the state of Michigan appealed the Michigan Court of Appeals' decision regarding sobriety roadchecks. Counsel for Appellee Rick Sitz had successfully argued that sobriety checkpoints are an uncon­stitutional invasion of Fourth Amend­ment protections against unreason­able searches and seizures.

The Michigan Court of Appeals based its decision on the case of U.S. v Martinez-Fuerte, 428 US 543, 96 SCt 3074. 49 LEd 2d 1116 (1976). This case dealt with the constitution­ality of using checkpoints to detect illegal aliens entering the United States. In Martinez-Fuerte, the U.S. Supreme Court set forth a balancing test to determine whether the stop­page of vehicles at a checkpoint on a road constitutes a "seizure" for Fourth Amendment purposes. The Michigan Court of Appeals refused to justify this abrogation of the rights of drivers, calling sobriety checkpoints ineff~ctive and expensive.8

In reversing the decision of the Court of Appeals, Justice Rehnquist did not agree that sobriety check­points were ineffective . In balancing the liberty interests of drivers by assuring protection from unreasona­ble searches and seizures against the need to keep the highways safe from drunk drivers, Rehnquist quoted Professor William LaFave, "drunk

drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million per­sonal injuries and more than five bil­lion dollars in property damage."9

Rehnquist concluded that the intru­sion on motorists stopped briefly at checkpoints is slight, and not to be compared with brief forced stops at a highway checkpoint to detect illegal aliens as in Martinez-Fuerte.

Justice Rehnquist further justified these intrusions by distinguishing Sitz from Prouse. In Prouse, little empirical data supported the conten­tion of New Jersey police officers that the measure was effective in appre­hending unlicensed drivers; in Sitz. statistics showed two drivers out of one hundred and twenty-five pulled over were arrested .

Rehnquist also noted that in Prouse motorists were stopped at random, while in Sitz all vehicles passing a cer­tain point were stopped, taking the selection of vehicles stopped out of the control of the police.

Former Justice Brennan, dissent­ing, argued that in most cases police must possess probable cause for a sei­zure to be judged reasonable. 10 Bren­nan noted that the standard is being changed from one of "reasonable cause"-as found in Pennsylvania's implied consent law-to "no level of suspicion necessary." Brennan opined. "by holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing con­duct by the police." 1 t

Justice Stevens was most disturbed by the Court's decision "appearing to give no weight to the citizen 's interest in freedom from suspicionless, unan­nounced. investigatory seizures." Calling the roadchecks an " elaborate publicity stunt whose net effect on traffic safety is infinitesimal and pos­sibly negative." Stevens decried the practice of "making an example of a few unfortunate motorists." Instead of pursuing "the Illusory prospect of punishing countless intoxicated motorists" the Court should "keep its eyes on the road plainly marked by the Constitution." 12

In deciding Sitz, the Supreme Court made a conscious decision to place a higher value on highway safety than on the right of an individual to be free from government intrusion .

Has the High Court made the best possible decision?

Gwen hurries to the office after lunch . She has an appointment with Harry at one-thirty.

The secretary Gwen shares with three other lawyers announces Harry. and Gwen ushers him into her office.

"What's the problem, Harry?"

"What's the problem? I had to stop! Traffic was jammed up from that stu­pid checkpoint. It took me twenty minutes till the cops got to me. and then they acted like I was a criminal. I told them I was in a hurry, and they didn ' t care. They made me get out of the car and walk a straight line before they finally let me go. They can't do that to me, can they?"

Gwen shakes her head helplessly. ' 'I'm sorry. Harry, the Supreme Court has ruled that sobriety checkpoints are constitutional. They reasoned that the intrusion on innocent motorists is minimal."

"But," Harry sputters, "What about my rights?''

REFERENCES

1. 75 PaStat § 1547 (Purdon 1986). 2. Handa v Commonwealth,

Pa Super __ , 478 A2d 932 (1984) .

3 . Commonwealth Dept. of Transp.. Bureau of Traffic Safety v O'Neill. 100 Pa Commw 411. 514 A2d 1008 (1986).

4. Commonwealth Dept. of Transp.. Bureau of Driver Licensing v Gonzalez. 110 Pa Commw 379, 532 A2d 533, Appeal Denied , 518 Pa 621 . 541 A2d 748 (1987) .

5. Wysocki, 496 A2d 897 . 6. 75 Pa. CSA § 154 7(a)(2) . 7. Tarbert, 535 A2d 1035.1043. 8. Sitz v Dept of State Police, 429

NW 180. 183 (1990) . 9 . Professor William LaFave,

Search and Seizure: A Treatise on the Fourth Amendment (2d ed. 1987).

10. Dunaway v New York. 442 US 200, 209 ( 1979).

11. Sitz, 110 SCt 2481 (Brennan Dissent).

12. Sitz, 110 SCt 2499 (Stevens Dissent).

Mary Wheeler, a second year day student, dedicates this article to her brother, Attorney Paul Wilson Wheeler, who loved and encouraged her, and who suggested the topic for this article . Paul died November 19, 1990, of lung damage following a bone marrow transplant undertaken to cure him of lymphoma. He was 36.

Getting the Goods: Contraband in Pennsylvania

You are driving along the parkway returning home from a weekend party. You've had a few drinks but feel that you can make it home safely . After all . no one is around and you're only going two exits .

Suddenly you see the flashing red lights in your mirror and you realize for the first time that your speed had been creeping past sixty. When the officer asks to see your license. he detects the odor of alcohol and asks you to accompany him to the barracks for a blood alcohol test. You lock your car. intending to pick it up the next morning.

Unfortunately, the machine registers your blood alcohol as just over the .10% legal limit, and you are issued a citation for driving under the influence (DUl). When you return to retrieve your car the next morning. you find it's not there. Thinking it has been stolen you call the barracks to file a report. only to find out that your car has been seized and impounded for possible forfeiture as derivative con­traband! If you find this scenario shocking. like a glimpse out of an Orwellian nightmare, read on . It is a practice presently authorized under Pennsylvania law .

As will be discussed later. there are two general categories of contraband: per se and derivative. Per se contra­band includes items such as illegal drugs, stolen goods. etc . which are by their very nature illegal to possess. Derivative contraband. on the other hand . is anything which is used to commit a crime or is derived from criminal conduct. even though it is perfectly legal in and of itself (your car. for example. in our DUI hypo.)

The purpose of this article is to trace the development of Pennsylvania law relating to the forfeita bility of items deemed derivative contraband in order to give the reader a better idea of the current status of this important area of the developing common law . By analyzing highlights in case law the reader will gain an understanding of how the situation has moved from one of total non-forfeitabillty in the absence of a statute two decades ago. to one today where the seizure of autos for traffic offenses is now possible .

Forfeiture of items related to crimi­nal activity is an evolving area of criminal law . Recent decisions of the United States Supreme Court have lent substantial support to seizure of a defendant's property that is used in criminal activity. particularly in the

area of drug-related crime. Even attor­ney's fees are no longer immune.'

Pennsylvania has traditionally fol­lowed the legal maxim that the law abhors forfeitures .2 Nevertheless there are a number of statutory sections authorizing forfeiture of contraband or profits derived from criminal activity . 3 Proceedings under these sta­tutes are governed by their provisions stating which property is forfeitable and under what circumstances. The Pennsylvania RulesofCriminal Proce­dure also provide for a method to chal­lenge seizures of property and effect their return .4 Thus the extent of a defendant's statutory exposure to for­feiture is easy to locate in the codes and provides a fair warning of the actual penalties which may attach to proscribed conduct.

A more difficult situation arises when police desire to seize a defen­dant's property used in facilitating criminal activity when it does not fall into one of the statutorily covered areas. The ability of law enforcement agents in Pennsylvania to validly seize such property when it is not contra­band per se has been in a state of flux over the past two decades. An exami­nation of relevant decisions in this area is instructive. particularly since forfeiture has become one of the

fastest growing and most controver­sial topics in criminal law. and will doubtless continue to be in the 1990's.

One of the earliest Pennsylvania cases on this topic is the Superior Court's 1961 decision in Comm. v. Schilbe.5 The appellant was the defen­dant in a case involving the possession of obscene photographs, which were found in a briefcase in his automobile. Following a subsequent search of defendant's apartment. a camera and other photographic equipment used for taking the photographs were also seized and the Commonwealth filed a petition for forfeiture of the items.

In its petition the Commonwealth raised the issue of whether a Court of Common Pleas could properly order seized items forfeited as a conse­quence of their being used to violate the statute making it a felony to pos­sess obscene pictures.6 Their principal argument was that since the pictures themselves were subject to forfeiture as contraband, then it should logically follow that the instruments used to make and there by accomplish a crimi­nal purpose should also be forfeited . In rejecting this contention the trial court stated that while such "should be the law. we conclude that it is not. " 7

In so doing the court relied on the holding in American Telephone and Telegraph Co's Appeal 8

, which involved a piece of telegraph company equipment used to relay information in a gambling ring. The Common­wealth contended that the confiscated device should be forfeited as deriva­tive contraband due to its knowingly being used in illegal gambling opera­tions . The Superior Court stated that while the device was obviously used to facilitate the gambling operations. it was not in itself a gambling device subject to forfeiture under the applica­ble sections of the Criminal Code. The decision was founded on the premise that a specific statutory section defin­ing the devices as illegal was a prereq­uisite to their forfeiture . (The result in A T & T had also been followed in other cases involving items tangen­tially involved in violating the anti­gambling statutes.9 )

The affirmance of Schilbe by a per

curiam decision of the Superior Court left this area of the law settled throughout the 1960's. The door to forfeiture of derivative contraband was clearly closed in the absence of specific statutory authority.

The status of the law in this area remained unquestioned until 1982, when Comm. v Coghe10 was decided. The defendant pleaded guilty to one count of criminal solicitation to com­mit murder and thereafter the Com­monwealth filed a petition requesting forfeiture of the $1,000 in cash which defendant-appellant had paid to have his wife murdered.

In examining this issue the court first highlighted the difference between "contraband per se. the mere possession of which is unlawful." and "derivative contraband, which is property which is not inherently ille­gal but which is used in the perpetra­tion of an unlawful act." 11 From this distinction , the court reasoned that the cash payment, being similar to items of derivative contraband already statutorily forfeitable, such as money directly traceable to drug sales and motor vehicles used to transport illegal drugs. should also be subject to forfeiture .

The three-justice panel in Coghe. without even mentioning Schilbe, failed to make a meaningful distinc­tion between the photographic equip­ment used to take obscene pictures involved therein and the cash pay­ment taken from the defendant in the instant case. While the two fact pat­terns seem logically similar in that both crimes could have been commit­ted without the involvement of the items deemed derivative contraband, the Cog he court proceeded as though Schilbe were decided otherwise.

The key to the Superior Court's decision in Coghe was its reliance on its previous decision in Comm. v Landy. 12 The facts in that case con­cerned the seizure of money allegedly obtained from the sale of illegal drugs. While the Commonwealth failed to secure a drug conviction. they moved for forfeiture of the cash .

In approving the forfeiture, the court relied in part on statutory lan­guage contained in the Controlled Substance. Drug. Device and Cos­metic Act which allowed fines in an amount "sufficient to exhaust assets utilized in and the profits obtained from the illegal activity" 13 as well as a provision which said that "[a)ny penalty imposed for violation of this act shall be in addition to and not in lieu of. any civil or administrative pen­alty or sanction authorized by law. 14 Following a questionable line of reasoning that this language evi­denced the legislature's intent to allow the confiscation of the drug profits, the

Superior Court in Landy held that the statute allowed the forfeiture of such money as derivative contraband, even though cash proceeds from drug sales were not included in 'the schedule of items "subject to forfeiture to the Commonwealth as contraband" under the express provisions of 35 P.S. Sec. 780-128. Analysis of this logic will reveal. therefore. that the court was using the provisions of the Act to justify a forfeiture "authorized by law" which prior to Landy did not exist!

Proceeding from this weak statu­tory link the Court in Cog he then held that since the money involved was derivative contraband from the crime of solicitation to commit murder. it was similarly forfeitable as were the alleged drug proceeds in Landy. 1n doing so without explanation (the entire opinion amounts to less than one and one-half pages) the Superior Court began to cross the stream between the Schilbe prohibition on

non-statutory forfeiture of derivative contraband and common law authority for such action . Gaining their footing on the apparently unrelated stones laid down in Landy. the court was able to obtain hollow support for its belief that forfeiture of items not inherently illegal could be effected without statutory authority.

Non-statutory forfeiture of deriva­tive contraband was again brought into question in a pair of decisions handed down by the Superior Court in 1985. In Petition of Maglisco 15 the defendant shot her husband in the leg with a .38 caliber pistol which the police confiscated along with a num­ber of rilles. Charges were later dropped, but defendant's motion for return of the firearms was dismissed by the Court of Common Pleas.

In its opinion. the Superior Court opened by recognizing that the sei­zure complained of was solely without statutory basis, and that Schilbe had prohibited forfeitures in such situa­tions. From this basis the Court went on to modify the principle, stating "[w)hile reference to a statute is neces-

sary even vis-a-vis derivative contra­band , it need not be a reference to the specific item (as it would be in contra­band per se) but need only be to the outlawed activity in which the item was used. '' 16 While the foundation for the forfeiture is the underlying alleged criminal offense, the forfeiture proceeding itself is a hybrid having both civil and criminal characteristics and is considered quasi-criminal in Pennsylvania. The court applied the civil standard of proof and found that ''by a preponderance of the evidence. a crime was committed with the pis­tol and it is, therefore, derivative con­traband."17

The court in Maglisco went on to examine the underlying rationale for such forfeitures. Rather that being punitive in nature, they found the pur­pose of such proceedings are "to remove the operating tools of crime from criminals.·· 18 The court endorsed two considerations which should be included in examining the propriety of a forfeiture of derivative contraband: the requirement of a minimal level of blameworthiness. though not neces­sarily culpability, on the part of the object's owner: and proportionality between the value of the item to be for­feited and the alleged offense. 19 Tak­ing these considerations into account. the court permitted forfeiture of the pistol. but ordered the return of the rifles because they had not been used in criminal conduct.

Essentially. the court eviscerated Schilbe by a de facto overruling in Maglisco. which set the stage for fur­ther decisions which proceeded to extend the common law further in favor of nonstatutory forfeiture.

On the same day Maglisco was decided, a different three-justice panel of the Superior Court used similar logic in Estate of Peetros v County Detectives20 to hold that record books found by homicide investigators on the property of a murder victim were properly forfeitable as derivative con­traband based on the decedent's alleged loansharking activities. The opinion mirrors Maglisco in that the basis for the forfeiture was the Com­monwealth's showing by a preponder­ance of the evidence that the books were used in connection with the crime ofloansharking.21 The fact that the deceased owner had not been charged with the offense would not operate as a bar to a finding of contra­band . The critical factor is "the status of the property when it was seized and the uses to which it had been put at the time which are determinative. not whether the property will be used for only lawful purposes in the future. To hold otherwise would be inconsistent with the entire concept of derivative contraband. " 22

As of late 1989 the common law reach of non-statutory forfeiture had involved cases relating to drugs. gam­bling. murder. and other serious criminal offenses. From the shift in reasoning evident in cases such as Maglisco and Peetros; it was reason­able to expect their principles to extend beyond the fact situations con­tained therein. but the exact length of this extension into derivative contra­band from crimes mala prohibita was a matter of speculation.

The Superior Court ended such speculation when it established the present legal standards for forfeiture in its 1990 decision in Comm. v Crosby.23 The defendant had been charged with two counts of driving under the influence of alcohol and pleaded guilty. He was sentenced to a period of incarceration to be followed by probation. a condition of which was forfeiture of the vehicle used by the defendant in the DUI offenses.

In support of this condition on appeal the Commonwealth cited 42 Pa CS Sec. 9754, which delineates the conditions of probation which may be included in a judgment of sentence. Specifically the Commonwealth con­tended that since subsections (c)(7) and (13) authorize the court to impose conditions limiting the possession of firearms by probationers. and to impose other conditions "reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience," that there was included by implication the authority to order the truck forfeited .

In an opinion written by ' Justice Brawley and joined by Justice Mon­temurro the Superior Court rejected the Commonwealth's statutory foun­dation for the forfeiture as incompati­ble with the rehabilitative purposes; of probation. and then went on to con­clude that such a forfeiture could be accomplished under the common law.

In reaching this conclusion the court clearly followed the Coghe/ Maglisco/Peetros trilogy . Crosby removed any doubt that forfeiture could be applied to comparatively minor offenses (therein DUI as opposed to previous cases involving murder. gambling. and drugs) . Yet the decision for the first time in the developing case law examined in depth the socio-economic aspects of forfeiture . In stressing that forfeiture under the common law is not auto­matic upon a finding that an item is derivative contraband. the court expressly incorporated the consider­ations enunciated in Peetros regard­ing the owner's blameworthiness and the relationship between the value of the item to be forfeited and the seri­ousness of the underlying offense.24

The Superior Court stated further that in making a forfeiture decision the trial court must also consider the impact a forfeiture would have on the family of the DUI defendant. and the general impact such a forfeiture would have on less affluent defendants under similar circumstances. In remanding the issue to the Court of Common Pleas for further inquiry into this aspect of the appropriateness of the proposed forfeiture , the justices made reference to such factors as the effect of such an action on the young family's ability "to obtain food from the grocery store or whether [any chil­dren of school age] will be able to get to school·· . 25

As a result of the difficulty in apply­ing these factors the Superior Court went on to express its displeasure with the case-by-case method of extending or limiting forfeiture as practiced in the cases between Schilbe and Crosby. Instead they echoed the logic

first seen in A T & T Co's. Appeal and Schilbe. that "it would be better to leave to the legislature exclusively the task of determining what derivative contraband is forfeitable. under what circumstances such property may be forfeited. and the procedures to be fol­lowed to accomplish forfeiture. " 26

The justices concluded the majority opinion by vacating the order of forfei­ture as a condition of probation. and outlining the requirements on remand for a hearing pursuant to PaRCrimP 324 to further develop information regarding other legal. equitable, or possessory interests in the vehicle, whether the vehicle is the sole means of transportation for the family or the sole means used by the breadwinner to commute to work. and other trans­portation related concerns of the family which may be adversely impacted by forfeiture . The goal in obtaining such information would be to ascertain whether forfeiture would inappropriately penalize innocent family members.

Justice Brosky. in a dissenting opin­ion in Crosby. pointed out the unsta­ble basis relied on by the majority in

their following of Maglisco and Peetros as authorizing the forfeiture. Why didn't the majority follow the holding in Schilbe. that derivative contraband could not be forfeited absent statutory authority? Instead they chose to ignore and mis-apply the precedent as did the previous panels in Mag lisco and Peetros. By engaging in this selective application of stare decisis the dissent believed the majority further embarked on a course of judicial legislation. despite their pronouncement that such mat­ters would be better handled by the legislature.

Brosky then proposed refinements in the term "derivative contraband" which would have a bearing on cases such as this .

The word derivative denotes some­thing which is the product of criminal activity. such as proceeds from a drug sale. Items such as the truck in this sit­uation should be more properly termed "associative contraband." as this more accurately describes its status. The distinction goes deeper than semantics since there is a sub­stantial difference between gains from illegal activity and one's property law­fully possessed which becomes con­traband "because of a transitory connection with an illegal act. " 27 In making this distinction the dissent would seek to drastically limit the sit­uations in which forfeiture of associa­tive contraband is authorized .

In distinguishing the fact situation presented in the instant case from those cited in support of the majority position. the dissent drew attention to two factors which should differentiate items properly forfeitable from those not properly forfeitable. The first of these factors is the petitioner's posses­sory rights to the item sought to be for­feited by the Commonwealth. In Landy and Coghe the Commonwealth sought forfeiture of. respectively. the proceeds from drug sales and money paid to a hit man. Thus. the petitioner seeking return of such money in each case had no rightful possessory interest therein. inasmuch as it con­stituted the proceeds of an illegal and unenforceable contract at civil law.

A second factor is that in Maglisco and Peetros. the firearm and ledger books sought to be forfeited are distin­guishable from a truck used in com­mission of driving under the in­fluence . because the former were either used in a deliberate attempt to injure another person, or as in the case of the books were of such a nature that they essentially had no other legiti­mate use or purpose. In both of these situations the dissent agreed that for­feiture would be proper to achieve the goal of removing the operating tools of a crime from criminals.

In concluding his dissent Brosky asserted that while these former cases could be properly cited as authority for the forfeiture of proceeds from a crime. items used to deliberately injure or kill another, and those items without much prospect of lawful or legitimate use. he cannot find justifi­cation within them for the forfeiture of the truck used by the defendant in the commission of the offense of driving under the influence.

A brief summary of the status of Pennsylvania common law regarding non-statutory forfeiture of derivative contraband follows. Present case law authorizes the forfeiture of items used in the commission of a criminal offense as well as proceeds derived from crimes. A statute is no longer a prerequisite to forfeiture of derivative contraband. This authority no longer applies exclusively to capital crimes and other major offenses, but extends to vehicular offenses as well.

In order to support a forfeiture proceeding it is not necessary that the defendant be convicted or even charged with any crime. The prohibi­tion against double jeopardy does not prohibit such subsequent actions since they are quasi-criminal in nature. The Commonwealth need only prove that the property was used in the commission of a crime.

Due to the civil nature of forfeiture proceedings. the Commonwealth need only meet a preponderance of the evidence burden in proving that the subject item is derivative contra­band. Upon meeting such burden. however. forfeiture is not automatic. Rather, in exercising its discretion the Court of Common Pleas should take into account factors including the owner's blameworthiness in the alleged criminal conduct, as well as the value of the item as compared to the gravity of the offense. Thus the automatic inclusion of vehicle forfei­ture as a blanket condition of proba­tion under an order of sentence is impermissible.

In cases where persons other than the defendanUpetitioner share a right of possession or usage in the subject property. the court should also receive evidence regarding the hardship which would be inflicted upon such persons. (Such conditions invariably will present themselves in vehicle for­feiture proceedings.)

The appropriate vehicle for challenging a proposed nonstatutory forfeiture of derivative contraband is a motion under PaRCrimP 324. The rule provides for a hearing before the Court of Common Pleas in the judicial district wherein the seizure occurred to determine any issues of fact neces­sary to deciding whether the property is contraband. If the court so deter-

mines. then the property may be for­feited in accordance with the above guidelines.

To date the only published appellate decisions on this topic have been from the Superior Court, which has com­mented on the lack of consideration of this issue by the Pennsylvania Supreme Court, and has at times expressed a desire for legislation to cover this area.

With the door opened to greater utilization of forfeiture in non-drug related cases. one has to wonder about the practical effects this situation will have. Since the potential exists for abuse by overzealous police and prosecutors to use these principles in cases of lesser magnitude. the impor­tance of appropriate representation for a petitioner challenging a forfeiture cannot be underestimated. While a hearing under PaRCrimP 324 pro­vides some measure of safeguard against arbitrary forfeitures, it should be apparent that any evidence of miti­gation must be presented by peti­tioner's counsel and may be practically necessary as the only means of avoiding forfeiture in border­line cases. Failure to marshal availa­ble evidence to rebut an attempted forfeiture could be grounds for a mal­practice or ineffective representation claim.

How far can forfeiture extend under present Pennsylvania law? There appears to be no clear delineation between alleged crimes · which can result in forfeiture and those which cannot. except for the blameworthi­ness/proportionality standards noted above. In his dissent Justice Brosky expressed his fears on the chilling prospects by stating. "[W]ill one be under substantial risk of forfeiting the vehicle driven every time one enters a vehicle? ... What about vehicles parked in no parking zones? Shall they be towed away never to be driven by their rightful owners again?"28

As demonstrated in this presenta­tion, the precedents have taken an unlit path through the fog over the past two decades to emerge on what may ultimately prove to be an unsta­ble plateau in Crosby. As is usually the case on issues untouched by the Supreme Court. much room has been left for speculation as to the extent of any future expansions of this practice. which if unfettered could lead to draconian consequences. The exact limits will depend upon the composi­tion of future panels deciding such issues, until a definitive rule is estab­lished on allocatur to the Supreme Court.

It is the author's hope that this arti­cle has brought to light an obscure yet expanding area of Pennsylvania law which has the potential to impact any-

one who is not aware of!ts existence. The student or attorney in teres ted in this field would be well advised to keep abreast of possible future legislation or case law relating to this new and developing tool in the fight against crime.

REFERENCES

1. See e.g. , Caplin & Drysdale v UnitedStates, __ , US __ ,105 LEd 2d 528. 109 set 367 1 1989).

2 . In Re Zanftno's Estate. 375 Pa 501. 100 A2d 60 (1953).

3 . See e.g., 43 Pa Stat § 3111 (pub­lic employee pension forfeitures); 4 7 Pa Stat § 6-60 I (forfeiture of alcoholic beverages); and 42 Pa ConS Stat Ann§ 6801 (controlled substances forfeitures) .

4. PaRCrimP 324. 5 . 25 D & C2d 326. afj'd, 196 Pa

Super 361. 175 A2d 539 (1961 ). 6. 18 PaStat § 4524 (repealed 1972;

now 18 Pa ConS Sat Ann § 5903). 7. 25 D & C2d, at 329. 8. 126PaSuper533. 191A2nd210

(1937). 9. See Comm. v Diorio, 159 Pa

Super 641. 49 A2d 866 (1946); Comm. v Blythe. 178 Pa Super Ct. 575, 115 A2d 906 (1955).

10. 294 Pa Super 207 . 439 A2d 823 (1982).

11 . Id. at 209 (quoting Comm. v Fassnacht, 246 Pa Super 42. 369 A2d 800 ( 1977)).

12. 240 PaSuperCt. 458. 362A2d 99 (1976).

13. 35 Pa Stat § 780-113(0( 1) (re­pealed 1988; now 42 Pa ConS Stat Ann §§ 6801-6802.)

14. 42 Pa Cons Stat Ann §§ 6801-6802.

15. 341 PaSuper525.491 A2d 1381 (1985).

16. 491 A2d at 1382. 17. Id at 1384. 18. Id at 1385 (quoting US v One

1976 Lincoln Mark IV, 462 F Supp 1383 (WD Pa 1979)).

19. 341 Pa Super at 533. 20. Id at 558. 21. 41PaStat§505. 22. Peetros. 492 A2d at 8 -9 . 23. Crosby. 568 A2d 233. 24. Id at 239-240. 25. Id at 240. 26. Id at 240-241. 27. Id at 243. 28. Id at 246.

L.A. Smith, II is a second-year eve­ning student.

CORPORATE OFFICERS DOING TIME

An unlikely class of individuals is beginning to pe netrate the cold steel bars of America's prisons. It is a class comprised not of the ignorant and unfortunate. but rather the wealthy and prestigious- dressed in starched white shirts and custom-made suits. They a re corporate executives, and while their Harvard Business School education has taught them how to run America 's foremost industries, it has yet to keep those who have been con­victed under today 's environmental statutes from having to trade the suits for stripes.

AI though our history renects a toler­ance of those who have violated the e nvironment - in the name of eco­nomic growth- the present indicates that tolerance has been replaced by a vengeance. State and federal prosecu­tors now salivate at the prospects of subjecting corporate officers to prison sente nces and substantial fines and , in light of new Sentencing Guidelines, such results will be the norm rather than the exception .

Recent court decisions paint a frighte ning picture both for the cor­porate officer who Oagrantly violates the law. and for the one who uninten­tionally allows violations. Just how far removed from the realm of culpability one must be to avoid personal liability is in doubt. What is certain is that today 's corporate officer must be well­read in the state and federal environ­mental statutes and the court decisions interpreting the enforce­ment of them .

There are several federal statutes aimed at protection of the environ­m ent. Among the more prominent are: • The Comprehensive Environmen­

tal Response. Compensation and Liability Act 1 (CERCLA). and its amendment , the Superfund Amendments and Reauthorization Act2 (SARA) . establish an $8.5 bil­lion "superfund" to pay for the cleanup of hazardous waste dump sites and danl!erous toxic spills:

• The Resources Conservation and Recovery Act3 (RCRA) provides for the so-called "cradle-to-grave" documentation for the handling, storage and disposal of hazardous waste :

• The Toxic Substance Control Act4

(TSCA) requires. among other things. the pre-market testing of potentially harmful chemicals:

• The Clean Air Act5 authorizes the Environmental Protection Agency to establish national ambient air quality standards for emissions that pose a risk to public health and safety:

• The Clean Water Act6 enables the Justice Department to bring

Recent court decisions paint a frightening pic­ture both for the cor­porate officer who flagrantly violates the law, and for the one who unintentionally allows violations.

enforcement actions against pol ­luters and requires States to estab­lish and enforce water quality standards.

The foregoing are the more heavily litigated statutes in the federal govern­ment's arsenal to combat environ­mental crimes. A firm understanding of the many provisions contained within the depths of these regulations and enactments is required to appreci­ate the risks of non-compliance .

Obviously, the statutory penalty provisions are of primary concern to corporate executives . Each statute provides for minimum or maximum fines and imprisonment terms . depending upon the nature and degree of the violation. For example. RCRA provides for a fine of up to $50,000 per day of violation for any person who knowingly transports or causes transportation of any haza rd­ous waste without a permit. or know­ingly treats. stores or disposes of any

hazardous waste without a permit. A maximum of five years imprisonment is also provided .7 An even more far­reaching provision is found under the Clean Water Act. which provides that mere negligence in violation of the statute could subject an ac tor to up to $25.000 per day of violation and one year of imprisonme nt. a

Naturally. such pe nalties are not magically imposed by virtue of the statutes' existence. Judicial interpre­tation and enforcement is critical to achieving adequate protection of the environment. Historically. state and federal judges shirked their duties in this regard, and rarely Imposed sen­tences sufficient to deter violations. Corporations knew this and were able to include the risks in the cost of doing business. However , the winds of change began to blow and in 1984, the Sentencing Reform Act was promul­gated, which ultimately led to the Sen­tencing Guidelines. 9 The result was a displacement of judicial subjectivity and discretion with objective and well­defined parame ters. Judges are now compelled to impose prison sentences where merited. and of the over 130 indictments obtained in 1990, more than half of those convicted are serv­ing jail time . 10

There are three environmental enforcement provisions in the Sen­tencing Guidelines. The first concerns violations involving knowing endan­germent under the Clean Water Act and RCRA . 11 Anyone who places "another person in imminent danger of death or serous bodily injury ... " is subject to fines and/or imprisonment. The second provision deals with the mishandling of pesticides or hazard­ous or toxic substances and the falsifi­cation of records. 12 The third concerns the mishandling of " other pollut­ants. " 13 The type of violation deter­mines a base offense level. For example. a base offense level of 24 is assigned to a violation of the knowing endangerment provision. Added or subtracted from this base are certain amounts for "specific offense charac­teristics. " 14 These amounts generally concern the repetitive nature of the offense. the culpability of the particu­lar individual, the actual or potential harm that resulted from the violation.

and other circumstances. The instances of a downward adjustment are rare. but provided for in the Guide­lines15 After calculating the total offense level. the judge merely con­sults the Sentencing Table and imposes a jail term within the range assigned to the offense level. For example, an offense level of 18 for an individual with no criminal history would receive a sentence of between 27 and 33 months imprisonment. In addition to the jail sentences. a range of substantial fines are also provided

away at this traditional notion. and recent decisions suggest that a cor­porate officer may be personally liable merely by holding a certain position in a corporation .

In Michigan u A reo Industries Corp, 723 F Supp 1214 (W D Mich 1989). the court formulated a new standard for imposing individual liability called the "prevention test." For a conviction under CERCLA. the officer must have had ''power to control the practice and policy of the corporation" and "specific responsibility for health and

r:~; /< ·~t1-llt"'/.a.- -.f. ·-

by the Guidelines. For example. the same base offense level of 18 trans­lates into a range of $700.000 to $1.520.000. The financial and per­sonal prices to be paid are great indeed .

Before any sentence is imposed. however. a defendant must be con­victed. To sustain a conviction . the prosecutor needs to prove all the ele­ments of the crime. Typically, one is only guilty of a crime if he committed a forbidden act while possessing some specific state of mind. The immediate problem the prosecutor faces is that often it is difficult to obtain facts show­ing that the corporate officer actually committed any act, let alone that he or she possessed the required mens rea . Vicarious liability has always extended to a corporation whose employee has committed some wrong in the course of employment. How­ever, there has been an almost sacred adherence to the doctrine of limited personal liability of corporate officers for a corporation's criminal act. 16

Prosecutors are beginning to chip

safety practices, including hazardous waste disposal. " 17 The court admits that the standard is more strict than the traditional doctrine of limited per­sonal liability, but cautions that it is not equivalent to strict liability.

Another doctrine stretching the bounds of personal criminal liability is the "responsible corporate officer" doctrine. It surfaced originally from cases dealing with the federal Food, Drug and Cosmetic Act 18 - a strict lia­bility statute that requires no "con­scious fraud" at all. 19 In United States u Park, 421 US 658 (1975), the Supreme Court held that a person would be guilty of a crime under FDA if he had "by reason of his position in the corporation. responsibility and authority either to prevent in the first instance, or promptly to correct. the violation ... and failed to do so. " 20

Prosecutors now seek to apply this standard - established under a strict liability context - to defendants prosecuted under the fault-based environmental statutes.

While the Clean Air and Water Acts

contain "responsible corporate offi­cer" language in their text, use of the doctrine as formulated in Park is a topic of much debate. 21 This debate manifests itself in the confusion over the type of jury instruction given and applied. In United States u Dee, 22 the Court instructed the jury that to con­vict the defendant under the respon­sible corporate office doctrine for a RCRA violation. it must find that the defendant has "a responsible relation to the violation .. . that it occurred under his area of authority and super­visory responsibility, .. that he "had the power or the capacity to prevent the violation. " and that he "acted knowingly in failing to prevent, detect or correct the violation.·· It is easy to see that words like "knowingly" and "failure to detect" will cause confu­sion in light of a criminal prosecution. This standard seems to be one of mere negligence, and yet it is working its way into jury instructions on a state and federal level.

The advantages of prosecuting cor­porate executives who violate environmental statutes are obvious . (Who better to hold responsible for corporate violations of environmental laws than those who direct the com­pany's activities?) Putting the truck driver or handler behind bars will not deter the illegal activity. nor will levy­ing fines only upon the corporation. as it would merely pass the cost to the customer. Nobody doubts that an intentional "midnight dumping" of hazardous waste barrels should elicit the strictest penalties for those responsible. The Sentencing Guide­lines now ensure that imprisonment will await such an egregious violator. And in the spirit of the heightened consciousness shown our fragile environment, it is no surprise that a lesser standard of culpability is being required to command a solution . Traditional notions of personal liabil­ity are being modified or abandoned by prosecutors in whose hands the environment's safety rests. Today's corporate office r should be aware of this trend, and in taking a more hands-on approach to the corpora­tion's environmental concerns, she will minimize the risks of doing time.

REFERENCES

1. 42 USC § 9604 ( 1982 & Supp V 1987).

2. 42 USC § 9604(e) ( 1982 & Supp V 1987).

3. 42 usc §§ 7401-7642 (1982 & Supp V 1987).

4. 15 usc §§ 2601-2620 (1982 & Supp V 1987).

5 . 42 usc §§ 7401-7642 (1982 & Supp V 1987).

6. Federal Water Pollution Control Act. 33 USC § § 1251-1376 ( 1982 & Supp V 1987).

7 . RCRA. 42 USC§ 6928(e). 8 . Clean Water Act. 33 USC §§

1319(c)( 1 ). (2). 9. U.S . Sentencing Commission.

Guidelines Manual. §§ 2Q l.l. et seq .. (November 1989).

10. Taxies Law Reporter. Jan. 2 , 1991 (5 TXLR 953) .

11. Guidelines Manual. § 2Q 1.1 (Knowing Endangerment Result­ing from Mishandling Hazardous or Toxic Substances. Pesticides or Other Pollutants).

12. !d.§ 2Ql.2 (Mishandling of Haz­ardous or Toxic Substances or Pesticides: Recordkeeping. Tam­pering and Falsification).

13. !d.§ 2Q1.3 (MishandlingofOther Environmental Pollutants: Recordkeeping. Tampering and Falsification).

14. ld. §§ 2Ql.2(b). 2Ql.3(b) . 15. See Guidelines Manual § 5K 1. 1

(Substantial Assistance to Authorities) and § 5K2.0 (Grounds for Departure).

16. See generally, Jon F. DeWitt and Charles M. Denton. Personal Lia­bility Under CERCLA for Cor­porate Officers and Directors , 5 TXLR 375 (August 15. 1990).

17. Michigan v Area Industries Corp. 723 FSupp at 1219.

18. 2! usc§ 31. 19. See United States v Dotterweich.

320 US 277 ( 1943) (allowing for strict liability under FDA).

20. United States v Park, 421 US at 673.

21 . See generally, Alan Zarky , ''The Responsible Corporate Officer Doctrine ... 5 TXLR 983 (January 9. 1991).

22 . Crim. No. HAR-88-0211. District of Maryland.

Other Sources

Roger J. Marzulla. "Prosecutors Sting Corporate Executives." Environ­mental Protection (October 1990).

Paul G. Nittoly, "Current Trends in the Prosecution of Environmental Offenses." 5 TXLR 161 (July 4. 1990).

Judson W. Starr and ThomasJ. Kelly. Jr .. "Environmental Crimes and the Sentencing Guidelines: The Time Has Come ... and It Is Hard Time." 20 Envtl L Rep 10096 (March 1990).

Daniel T. Reimer is a second-year evening student at the Duquesne University School of Law . and is a paralegal at the law firm of Eckert. Seamans. Cherin and Mellott.

LEGALIZING DRUGS . . •

IS IT WORTH A TRY? "This week only. rock bottom prices

on marijuana. cocaine and heroin. Don't miss out. supplies are going quickly ."

Could this advertisement and others like it actually appear in local newspapers or on television spots in the future? It certainly could if drugs were legalized. Recently in fact. a small contingent consisting of public officials, a federal judge. university professors and columnists has been pushing for the legalization of all or certain drugs . The Doves. as they are called , of the drug war are losing patience with the Bush-Bennett created national drug control policy. The Doves see the war on drugs as a continuous uphill battle with no posi­tive results to date and none in sight. On the other side of the coin. sup­porters of the drug war. or Hawks feel that even more stringent drug related laws than those existing now need to be implemented to combat drug use and trafficking. The Hawks have over­whelming popular and institutional support in this country. They feel they have turned the corner on the drug war and think now is the time to mount an even more diligent offensive against drugs and drug use.

The Hawks cite many reasons why drugs should remain illegal . The most frequently cited reason is that drug use would inevitably soar with legali­zation. which in turn would increase the costs of fighting the side effects such as drug-related crime and providing drug treatment programs and facilities. Dr. Herbert D. Klebar, Yale University Professor of Psy­chiatry and appointed by William Bennett as deputy director for drug reduction. states that if cocaine, which is much more addictive than alcohol. were legalized, use would increase five-to-sixfold. 1 If it is conservatively assumed that legalization will only double the number who are drug­dependent. currently estimated by the National Institute on Drug Abuse to be 14.5 million. Hawks believe legaliza­tion will still have a negative impact on society. 2

Indeed. drug war Hawks, as well as some Doves. believe that legalization of drugs would pose a risk of increased use. 3 The Hawks are quick to point out

that the increasing number of dope users relying on more and perhaps deadlier drugs will result in higher expenditures to hospitalize additional addicts, to provide treatment and counseling to those with drug habits and to respond to the inevitably rising rate of drug-related crime. It is also feared that a great number of the new drug users will be adolescents. More school children will turn to drugs and turn away from education. and there will be a diminished respect for the law.4

Other reasons cited by Hawks not to legalize drugs. or at least cocaine and crack cocaine. is the disastrous phys­ical and psychological effects of these drugs. With cocaine use there are sig­nificant health and behavioral dangers . Cocaine is extremely addic­tive and users indulge in extended binges followed by crashes so unpleasant they may lead to heavy use of alcohol or other drugs. Although it is reported that only 2% of adults use cocaine on a weekly basis. the Hawks credit prohibition to explain this low percentage. 5

The most serious drawback to legalization according to William Ben­nett. is crack cocaine which Bennett calls "the most dangerous drug. " 6

Legalization can only make crack addiction worse. Crack abuse typi­cally occurs in binges, thereby dis­rupting normal life by its very nature and continuing to do so whether the drug is legal or illegal. Crack can cause paranoia that can continue during the period of depression and irritability after the drug wears off. This paranoia may lead to violence.

Furthermore. crack hinging is associated with promiscuous sexual activity which has caused an explo­sion in AIDS and venereal disease as well as in babies born with birth defects. Hawks say that it is hard to conceive a health agency serving fresh legal crack to an addict in mid-binge. Hawks contend. however, that any limit to distribution will encourage a thriving black market. 7 It is noted that opium and cocaine were once legal in the United States in the early 1900's but were outlawed because of the disastrous health and safety consequences. 8

Another reason why drugs should

not be legalized is that contrary to the Doves· assertion. legalization will not preclude a black market from existing because the profit motive will still exist for gangs selling drugs. Illegal activity probably will continue as it does in other areas.9 There is simply no guarantee that once drugs are legalized the profit motive will be removed. 10 It has been asserted that if drugs are legalized, the Food and Drug Administration would so over­regulate the sale. distribution , and labeling that over-the-counter prices would be more expensive than those on the biack market. 11 This would in turn stimulate the black market and keep it in existence. 12

The Hawks also look at the appar­ent failures of other countries which have legalized drugs in some form . China. Great Britain , the Netherlands, and Sweden have authorized the legalization of certain drugs. The respective governments, however, have found that legalization dramati­cally increased the population of untreatable addicts. produced more drug-related violent crime and did lit­tle to stem the flood of black market activity . t3

The Hawks insist that the war on drugs is effec tive and that gains have been made. In fact, the supporters of prohibition feel strongly that the drug problem would be even greater than it is now if the war against drugs had never been waged. 1 ~ Marijuana use by high school students over the past ten years has dropped sharply and pro­hibitionists say this is the result of pro­hibition .15 As mentioned above the low percentage (2%) of adul t cocaine users is credited to the prohib ition of drugs as well.

An important ga in produced from the drug war is that the n umber of drug users has dropped by more tha n 8 .5 million since 1985 and use by teenagers and college students has been reduced significantly. The num­ber of drug seizures at our borders has increased dramatically and is still ris­ing. There are extensive educationa l and treatment programs In pla ce in every major city. It is stressed tnat change and progress are slow. but slowness is characteristic of virtually all behavioral changes. Thus. Hawks contend in attempting to change societal behavior. it would be uncharacteristic to abandon and dis­mantle this costly. well established campaign after gaining the upper hand. 16 The trouble and expense of enforcing Ia ws is not a reason to aban­don them .17

The Hawks feel that we must be even more aggressive in attacking the drug problem. that more than drug reduction strategies are needed. They feel that criminal penalties are as vital

as treatment and education programs. Further, it is contended that criminal sanctions are necessary to support the shift of public attitudes away from drugs. 18

The American Bar Association (ABA) has adopted this attitude after supporting the legalization of mari­juana since 1972. The ABA's long­standing support of decriminalization of small amounts of drugs was re­scinded late in 1989 because the ABA determined that their marijuana policy was inconsistent with the war on drugs. 19

Indeed. the Hawks emphasize the apocalyptic costs of not enforcing the laws against drugs. 20 The Hawks. put­ting their view on legalization in stronger terms. do not want to put the government into the business of de­stroying lives and families. 21 They feel it is too high a price to pay and that the consequences of drugs and drug addiction must be addressed, not ignored. 22

It is obvious that there are some very legitimate and important reasons to prohibit illegal drugs. There are, however, some valid arguments made by the Doves and supporters o{ decriminalization of drugs . Although the Doves have only recently begun to speak out more and gain some sup­f)Ort. the public should hear both sides. For a democratic society to grow and devefop in a healthy manner, it should hear all sides so that peopl can make informed decisions.

First, lt s hould be mentioned that advocates of legalization favor a vari­ety o f a p p roaches. S o me would experime ntally r e move c r iminal penalties of marijuana use and po~s­slon, then gi'ad ually decrlmlna'iize other drugs if the experiment seem ed to work. Others favor w holesale decriminalization. even for dangerous and highly add ictive drugs ..like crack. ~3 The following discussion is applicable to both full legalization and partial legalization approaches.

The notion of legalizat ion has recently gained popular support due to the belief that the government has failed in its efforts to combat the drug problem.24 Interestingly, the strongest doubts as to the administration 's suc­cess in the drug war are being raised by people who can usually be counted among the administration 's strongest allies, leading conservatives and some officials who are veterans of the drug war. 25 Anti-drug war critics confi­dently predict that dissatisfaction with the war on drugs will soon com­pare to the massive disillusionment with American involvement in Viet­nam.26

The most popular reason that Doves cite for their efforts to legalize drugs is the high cost and failure of the Bush-

Bennett war on drugs. The Doves acknowledge that the Hawks have overwhelming popular support. but they are convinced that the drug war is unwinnable by police methodsY They believe that tougher govern­ment policies are creating so much social disruption that people will begin to see that "drugs don't cause crime. prohibition does". 2e

It is also contended that the war on drugs will fail because the costs and casualties are too high and because in reality the war on drugs is a war on the American public . Users of illegal drugs are so numerous and wide­spread that to find and prosecute them. the government's " chemical police" will have to invade everyone's privacy and put them under suspi· cion . People are beginning to recog­nize that everyone is presumptively an enemy in the eyes of the Drug War­riors.29

Ethan Nadelman.leading Dove and a Political Science professor at Prince­ton University, states that there are many reasons why current methods of controlling drug abuse are not working: among them that the law enforcement system is limited in its ability to control drug abuse. and that policies that have tried to limit the import of drugs into this country have not been successful.

The high cost of waging the drug war and its disappointing results are other reasons why Doves advocate legalization. In 1987. the government spen~ I 0 billion dollars on the enforce­m ent of drug laws.30 President Bush wants to hire more police . judges. prosecutors. and guards and build more prisons. Who will pay for these expe nses? Russell W . Ga llo way. professor of criminal law. criminal procedure. and constitutional law at Santa Clara University School of Law. says the American people will not. He believes that even if the prisons are built, the American people will not pay the $20.000 a year needed to hold each drug user or dealer in prison .3t

Overcr owded prisons. jails, and ou r t ar more negative side effects

of the war on drugs. Indeed. 50% of all federal prisoners are serving time for narcotics offenses and it is estimated that another 20% have committed crimes that are related to their drug dependency. 32 The prisons are so jammed with drug offenders that we are forced to release dangerous. vio­lent criminals long before they have served their time.33 And. even more importantly. due to the limited space in prisons. those who commit other crimes may not be imprisoned at all.

The courts as well are jammed with an overabundance of cases that directly involve drugs. The urban criminal justice courts are filled with

drug offenders. leaving little time to deal with other crimes. 34 The overbur­dening of the criminal courts causes a diversion of resources from civil branches that creates a logjam throughout the judicial system.35

Proponents of legalization contend that if drugs were legalized there would be a much needed reduction in the amount of criminal cases and the government could save billions of dol­lars that is spent to enforce anti-drug laws. Since the legalization of drugs would reduce the cost of drugs. many crimes committed to get money to but drugs. such as robbery and burglary. drug dealing. prostitution, and num­bers running would decrease. The vio­lence connected with drug traffickers would be reduced and corruption in the federal. state. and local govern­ments due to the influence of drug dol­lars would be minimized . Further­more. drug production could be regu­lated, which would control dangerous substances that are sometimes mixed with the drugs.36

Besides the effect on the criminal courts and prisons. the Doves provide many other legitimate reasons to legalize drugs . Legalizing and taxing drugs. like tobacco and alcohol, could save the government billions that it spends on enforcement and earn mil­lions in revenue that could be applied to treatment and prevention. 37 Legal­ized drugs would mean that syringes could be bought or even given out free to drug users. One of the major rea­sons for the rampant spread of AIDS is the reuse of needles by intravenous drug users who are infected with AIDS. 38 It is argued that the govern­ment can do no more to stop the con­sumption of mood-altering drugs than it can to stop drinking. gambling. and prostitution.39 By keeping drugs ille­gal. Doves say. the government has created a black market that drives prices - and traffickers' profits - sky high .40

There are some prominent and influential advocates of legalization. Milton Friedman. a libertarian econ­omist, contends that more jails. police. use of military in foreign countries. harsh penalties and repressive meas­ures can only make a bad situation worse. These tactics. says Friedman, will only undermine human liberty and individual freedom. 41 William F. Buckley. a conservative columnist. feels that legalization will prevail because other alternatives are becom­ing increasingly discredited. George P. Schultz. former Secretary of State who led former President Reagan's effort to eradicate drug crops abroad . stated that we should at least debate the legaliza~ion issue because Bush's program is conceptually no different from past governmental efforts that

have not achieved the results that President Bush Is seeking. K. Brooks Thomas. regional counsel in Miami for the Customs Service, the principal federal agency responsible for keeping drugs out of Florida. said he does not support legalization. but was appalled when members of Congress indicated it would be unthinkable to debate such a thing when the methods we are applying now simply are not working. Arnold Trebach. law professor at American University and President of the Drug Policy Foundation. says keeping crack cocaine within the con­trol of an absolute criminal prohibi­tion makes the situation worse .42 He feels that the latest escalation in law enforcement to battle drugs is like sending 100.000 troops to Vietnam after the North Vietnamese successful Tet offensive .43 Charles Murray. a policy analyst whose book "Losing Ground" was the source of many of the Reagan Administration ideas on overhauling the welfare system, said he has been edging towards legaliza­tion, even though it is a leap into the unknown. because he questions the feasibility of continuing to put people into jail. 44 Kevin Zeese. a criminal defense attorney and Director of the Drug Policy Foundation. sees nothing in the Bush-Bennett National Drug Control Policy that has not been tried repeatedly since before the 1960's when drug use began to boom. He sees harsher drug penalties as no help. as drug use in Malaysia has kept rising despite vigorous enforcement of man­datory death sentences for even small time traffickers. while Mullahs in Iran executed 176 drug offenders in seven weeks. only to see drug use con­tinue. 45

One of the most avid supporters of legalization is U.S. District Judge Robert Sweet of the Southern District of New York. Judge Sweet feels the issue of legalization is an internal moral issue and that whether some­one wants to use drugs or not is an individual responsibility. Thus. it is not right for society to prohibit the use of a mind altering substance . He points out that there were 750.000 arrests in 1988, three-fourths of which were for possession of drugs and that 40% of all felony indictments in New York were for drug law violations. Our present prohibitive policy has failed in that it has not stopped trafficking nor has it altered social patterns which produce the phenomenon. Prohibition produces two undesired results that contradict its purpose: it produces an economic incentive for drug dealers to increase use: and use of forbidden drugs satisfies the individual's need to assert himself against society. Judge Sweet believes that legalization will eliminate the profit motive for drug

dealers. identify drug users and those at risk, produce revenue to use for research. education. and treatment programs. and rechannel the nine bil­lion dollars used in the drug war towards prevention and rehabilita­tion. Sweet admits that Congress will not vocally support legalization now. for those who live by public opinion will not act until a mass majority is perceived. The support of this mass majority may happen when rhetoric turns hollow. when the drug war is not won and when our resources have been spent unproductively and repressively . 46

Kurt Schmoke, Mayor of Baltimore, is one who lives by public opinion. yet he is an outspoken and staunch advo­cate of legalization. He believes as long as drugs remain illegal it will result in crimes committed by addicts. an over­load on the criminal justice system. the spread of AIDS. and the perpetra­tion by smuggling because cocaine is easy to smuggle and profitable . He believes that decriminalization must be accompanied by a reallocation of resources to education. treatment and prevention programs designed to keep non-users away from drugs. 47

There is no doubt that the notion of drug legalization has some credible and influential supporters. Doves say more officials are secretly sym­pathetic to their position. but remain silent because of fear of the political consequences.

As Dove Ethan Nadelman points out. drug legalization depends on two assumptions: that most illegal drugs are not as dangerous as is commonly believed and that methods of con­sumption that are most risky are unlikely to prove appealing to many people precisely because they are so obviously dangerous.48 Doves admit that there will likely be a surge in drug use . but not nearly as dramatic as opponents estimate .49 Doves also note that use of marijuana has been virtu­ally decriminalized for some time now. but there has been stabilization or slight decline in use. rather than an increase in use . so

Even though it is contended that addiction levels will increase with legalization. Dr. Stanton Peele. Prince­ton University researcher. says addic­tion just does not happen to people and that it is a myth that people care­lessly fall prey to addiction . Lester Grinspoon. drug expert at Harvard Medical School. does not believe legalization would cause more drug abuse in the long run. He believes that legalization would promote a decline in drug abuse by re-orienting anti-drug efforts from punitive. intolerant assaults on drugs and drug users to more compassionate treat­ment programs and honest education

that distinguishes among drug and drug use patterns. 51

In further support of their view. Doves point out that hard drugs are estimated to kill 4,000 people a year directly and several tens of thousands a year indirectly while alcohol kills at least 100,000 a year, addicts millions more, and costs the marketplace bil­lions of dollars. Tobacco kills over 300,000 a year and addicts tens of mil­lions of people a year. If addiction levels do Increase with legalization It will be a personal disaster for the addicts and their families and would involve larger costs to society as a whole, but as Political commentator. Hod ding Carter III opines. those costs would be minuscule compared to the costs of continued prohibition. 5 2

It Is no secret that there has been an onslaught of criticism from all quarters of the media, intellectual and public policy establishment on the drug war. The Hawks. according to the Doves, have mounted no intellec­tual offensive. 5 3

The Doves are quick to point out that when we lost the war on alcohol. we legalized drinking and when we lost the war on gambling, many states took over that business by setting up lotteries which enabled them to finance public schools from the profits. Why should not the govern­ment take the drug business out of the hands of organized crime and tax it so that the proceeds can be put to good uses rather than to support criminal gangs and prisons?54

Both Hawks and Doves set forth legitimate reasons in support of their respective views. The only difference is that the Doves' criticisms of the drug war can be backed up by facts and statistics. The Hawks' criticisms of legalization, however. are only speculative, aside from the negative results of legalization In China, Great Britain, the Netherlands, and Sweden. Although it could be said that the Dove's view is speculative as well , the only way to find out what the effects of legalization would be is to experi­ment with partial legalization. per­haps with marijuana. Nevertheless. the drug war has not been an over­whelming success and now that drug czar William Bennett has resigned, one must wonder what the likelihood of success will be in the future . It would be a severe mistake not to at least debate the issue in Congress. The worst that could happen is that both views on legalization would be closely scrutinized so that a prudent decision could be made. The best that could happen is that a workable and effective solution to the drug problem could be formulated and put into effect. Either way it is definitely worth a try.

REFERENCES

1. David Corcoran , Support Grow­ing for Legalization of Drugs, 135 Chi Daily W 1. 12 (Nov. 29, 1989).

2. Bruce Fein and William Bradford Reynolds, Drug Legalization. One Dopey Idea, 32 Legal Times 22, 24 (Jan. 15, I990).

3. Steve France. Should We Fight or Switch?, 76 ABA J 43. 45 (Feb. 1990).

4. Fein and Reynolds, 32 Legal Times at 24 (cited in note 2).

5. Peter Reuter, Before Jumping Ahead, Let's Take a Close Look at the Facts, LA Daily W 4, 4 (June 1, I988).

6. France, 76 ABA J at 44 (cited in note 3) .

7. New York Times, Crack Mad­ness, 102 LA Daily W 6,6 (Nov. I3, 1989).

8. Fein and Reynolds, 32 Legal Times at 22 (cited in note 2).

9. Harry H. Lipsig, Legalization of Drugs, 203 NYLJ 3,3 (Feb. 22, I990) .

10. Id. II. Fein and Reynolds, 32 Legal

Times at 24 (cited in note 2). I2. New York Times. 102 LA Daily W

at 6 (cited in note 7). 13. Fein and Reynolds. 32 Legal

Times at 22 (cited in note 2). I4. Lipsig, 203 NYW at 3 (cited in

note 9). I5. Id . I6. Fein and Reynolds, 32 Legal

Times at 22 (cited in note 2). 17. Washington Post. Keep Fighting

Drug Users. I02 LA Daily W 4. 4 (Dec. 26, I989).

I8. France, 76 ABA J at 45 (cited in note 3) .

19. Brian Owen, Drug War Prompts ABA to Change Policy, Chi Daily L Bull. I. I (Feb. 13, 1990).

20. France, 76 ABA J at 44 (cited in note 3).

21. Washington Post. 102 LA Daily W at 4 (cited in note 17).

22. Id. 23. Corcoran, I35 Chi Daily W at I2

(cited in note I). 24. Lipsig, 203 NYW at 3 (cited in

note 9). 25. Corcoran. I35 Chi Daily W at I

(cited in note I) . 26. France. 76 ABA J at 43 (cited in

note 3). 27. Id at 45 . 28. Id. 29. Russell W. Galloway .... And

Hand Them Out to Users, 102 LA Daily W 6,6 (Sept. 13, I989).

30. Ethan Nadelman. Drug Prohibi­tion in the U.S.: Costs. Conse­quences, and Alternatives, 245 Science 9,9 (Sept. l, 1989).

31. Galloway, 102 LA Daily W at 6 (cited in note 29).

32. Washington Post. 102 LA Daily W at 4 (cited in note I7) .

33. Galloway, 102 LA Daily W at 6 (cited in note 29).

34. Nadelman, 245 Science at 9 (cited in note 30).

35. Washington Post, 102 LA Daily LJ at 4 (cited in note I7).

36. Nadelman, 245 Science at 9 (cited in note 30) .

37 . Corcoran, 135ChiDailyWat 12 (cited in note 1).

38. Nadelman, 245 Science at 9 (cited in note 30) .

39. Galloway, 102 LA Daily W at 6 (cited in note 29).

40. Corcoran, I35 Chi Daily W at 12 (cited in note l).

41. France. 76 ABA J at 43 (cited in note 3) .

42. Corcoran. 135 Chi Daily W at 1, 12 (cited in note 1).

43. France, 76 ABA J at 43 (cited in note 3).

44. Corcoran. I35 Chi Daily W at 12 (cited in note I).

45 . France. 76 ABA J at 45, 46 (cited in note 3).

46. Judge Robert Sweet, The War On Drugs Is Bankrupt. 29 Legal Times 20, 20, 21 (Dec . I8. 25, I989).

4 7 . Kurt Schmoke, Legalizing Drug Use: Is It the Only Realistic Solu­tion?. 75 ABA J 36, 36 (Jan. 1989).

48. France, 76 ABAJ at 43,44 (cited in note 3).

49. Hodding Carter III. We Could Legalize Narcotics.... 102 LA Daily LJ 6,6 (Sept. 13, 1989).

50. ld. 51. France, 76 ABA J at 44, 45 (cited

in note 3). 52. Carter, 102 LA Daily W at 6 (cited

in note 49). 53. France. 76 ABA J at 46 (cited in

note 3). 54. Galloway, 102 LA Daily W at 6

(cited in note 29).

Anthony Carone is a third-year day student.

WORKPLACE. USA (JP) -Today the war on drugs continues

unabated. The mass destruction which the sourge of illegal drugs has laid upon our society has claimed obvious victims, such as the hope­lessly addicted and those senselessly murdered in order to promote an ille­gal profit. But. the majority of victims of drive-by shootings in what the Rea­gan administration declared "War on Drugs" has not been so obvious. Today the government is fighting this war with very expensive ammunition. namely, the individual rights of its citizens, which this government has solemnly sworn to protect.

Every day. the great majority of this nation's citizens go to work, do their jobs, and return home again. It is within this timeframe that continues to rage one of the most vehemently contested issues of our day. Due to the pre-eminence of illicit drugs (i.e., mar­ijuana, cocaine. PCP. and other such illegal drugs and abused controlled substances). and their degrading effects upon the human condition in its efficiency. both public and private employers have within the last decade implemented drug testing programs to ferret out the drug user, a person they consider both an expense and a liability. Employers cite the great cost associated with these employees. which some sources place at 50 billion dollars annually in insurance costs alone. 1 as their reason for implement­ing drug testing programs.

As a result. individual rights are being subjugated. In some instances. the validity of subjugating an ind­vidual's rights is clear because the safety interests of others clearly out­weigh the individual's interests in his privacy (i.e .. airline pilots and air traf­fic controllers). In other instances the distinction is not so clear. such as those whose work furthers a signifi­cant governmental interest. 2

It is also important to note that only those employees working directly for the government or those whose employers are under federal or state

Drug Testing, ~. the Workplace ~ the Fourth Amendment mandate are protected by federal or state constitutional restrictions in the area of drug testing. Private employers, on the other hand, are not subject to such constitutional restric­tions. An interesting note. however, is that since the dilemma of drug testing and its underlying validity has arisen, private employers are following the lead of the federal government. The leadership in this "war" was estab­lished during the Reagan administra­tion in 1986 with the issue of Executive Order No. 12564. This order subjected those federal employees in "sensitive" positions to drug testing programs of the employees' certain agency or department.

In addition, on the same day in March of 1989, the Supreme Court released two landmark decisions declaring its role as a major player in this war on drugs. In Skinner V. Rail­way Labor Executives, 3 the Court approved drug testing of railroad employees through blood and urine sampling following railroad accidents. In National Treasury Employees Union v. Von Raab, 4 the Court upheld drug testing of United States Customs Service employees seeking promotion to a position involving the interdiction of illegal drugs or a position requiring the handling of a firearm. However, the Court in Von Raab also struck down drug testing for positions which instead required the handling of clas­sified government material. What is most significant about these cases,

however, is not the circumstances from which they arose. but rather it is the course of logic that was used to uphold the drug testing schemes in both cases.

Over the past several decades. the use of illicit drugs has grown to the point where it is "pervasive" 5 in our society and involves an overwhelming number of people, money and govern­mental resources. Today, a source quotes figures of illegal drug use in the country that stagger the mind: ( 1) that over 70 million Americans have experimented with illegal drugs; (2) that 23 million Americans are cur­rently using illegal drugs: (3) that 22 million American have experimented with cocaine and that 10 of those 22 million are cocaine dependent. 6 Fur­ther, cocaine-related deaths have increased 200%, and admissions into programs for drug abuse treatment have increased 500% within the last ten years alone. 7 It is significant to note that these figures were generated by studies in the mid-1980's, prior to the invasion of "designer" drugs (those drugs which are synthetically produced), and the inexpensive and addicting crack cocaine. In light of such figures. it is not surprising that drug use has plied its way into almost every aspect of our society without discrimination, even the workplace.

In societal terms. the absolute cost of drug abuse in the workplace is incredible. The figure of 50 billion dol­lars annually in insurance costs is not the sole cost, but merely an example.

An equally signiflcan t figure is the cost to society in lost productivity due to such factors as high absenteeism. increased insurance costs, defective products and employee theft. 8 In 1985 alone, a substance abuse report quoted the cost to employers due to lost productivity to be 36.3 billion dol­lars.9 In response to such widespread abuse and its appurtenant costs in the workplace both public and private employers have implemented drug testing programs to expose the users and abusers in their midst. These users increase both the cost of doing business and employer liability.

Today there are many different types of drug testing programs in effect across the nation. depending upon the employer and the nature of its business. An example of a com­monly used methodology, for illustra­tive purposes. is a two-part test. In the administration of this test the subject is to produce a sample of his/her urine under circumstances which. while not being directly watched. are closely monitored by indirect methods. The reason the subject is not under direct observation is to avoid the issue of what might be a direct violation ofthe subject's right to privacy. The sample is then subjected to the enzyme mul­tiplied immunoassay test (EMIT). This is a basic drug screening test which detects conditions present in the urine specimen that indicate the presence of marijuana. cocaine. opiates, ampheta­mines. and PCP. 10 The accuracy of this test varies greatly depending on the drug. so that if this first part of the test returns a positive result, the sub­ject employee will be tested again under a more precise or sensitive test . The second part of the test usually involves a gas chromatography/mass spectrometry (GC/MS) test. In contrast to the first part. this second portion of the test detects the actual presence of drugs and not merely conditions which would indicate such presence. If this test also returns a positive result, the subject employee has the opportunity to explain the results. If

such positive results had no explana­tion. the employee may then be sub­ject to disciplinary action, including removal from a sensitive position. and even the possibility of discharge .11

This is the same test which received the Supreme Court's approval in Von Raab. 12

The manner in which drug testing is conducted has led to constitutional challenges to the implementation of such procedures in the public sector. These challenges are based on the First Amendment. Freedom of Relig­ion. the Fifth Amendment. Protection Against Self-Incrimination, the Ninth Amendment. Implicit Guarantee of Privacy. the Fourteenth Amendment, and Guarantees of Equal Protection and Substantive Due Process.13 Such contentions have generally been applied unsuccessfully . Even the right to privacy (originally enunciated in Griswold v. Connecticut. 14 ) has been held inapplicable to the realm of ille­gal drugs since drug testing is not akin to the marriage rights upheld in Griswold. Right to privacy challenges under state constitutions, however. may bring about a different result . As stated in Amalgamated Transit Union Local 587 v Municipality of Metropolitan Seattle, 15 the right of privacy may be explicit in the state's constitution. thereby making the implementation of drug testing by a public employer more difficult under state constitutional constraints than under federal constitutional con­straints.

The failure of the arguments described above has brought forth what may be the strongest and most controversial challenge for opponents to drug testing and its denegration of individual freedoms, that drug testing in the public sector workplace consti­tutes an illegal search and seizure as proscribed under the Fourth Amend­ment. That being the case. what may be termed as "suspicious" drug test­ing is invalid because the interest of the government lacks sufficient basis to invoke such a search. The Fourth

Amendment reads :

''The right of the people to be secure in their persons, houses, papers, and effects. against unreasonable search­es and seizures, shall not be violated, and no Warrants shall issue, but upon proba­ble cause, supported by Oath or affirmation, and particu­larly describing the place to be searched, and the person or things to be seized ." (Emphasis added.)

This language has been litigated in a wide variety of cases, and over the years the Supreme Court has refined its interpretation of the language and developed certain tests to apply its provisions. The Supreme Court has seen fit to set aside the Fourth Amend­ment in furtherance of the govern­ment's interests in winning the war on drugs.

In handing down its decisions in both Skinner and Von Raab, the Supreme Court reached the same result arising out of different sets of facts. First. the Court concluded that drug testing was a "search" under the Fourth Amendment. Second, the Court balanced the violation of individual rights associated with a search against the government interests sought to be achieved and concluded that such searches (in Skinner and Von Raab) were reasona­ble , and that the government's interests outweighed the individual's interests in the expectation of privacy. While this line of reasoning appears on its face to be sound, the circumstances from which it arose in both cases were extremely divergent. Consequently an examination of the reasoning in both Skinner and Von Raab is in order.

Throughout the past two decades there have been several catastrophic railroad accidents involving the loss of both life and property .17 It was later found that in many of those accidents

that human error was to blame and illegal drugs were the cause of such human error. This was essentially the context under which Skinner was decided. The Court was presented with substantial factual evidence such as figures illustrating the loss of life and property and the fact that inves­tigations had conclusively shown the involvement of illegal drugs. [In the face of such substantial evidence, along with the fact that these employers subject employees to test­ing since they are responsible for the safety of great numbers of people. the Supreme Court had little difficulty in holding that post-accident drug test­ing was a reasonable search under the Fourth Amendment.] Skinner was decided by a majority of 7 to 2 with Justice Kennedy writing the majority Opinion and Justices Marshall and Brennan dissenting.

Although the circumstances under­lying the Von Raab decision were markedly different from Skinner, the court applied the same balancing test and reached the same result. The Von Raab case involved instituting a drug testing program (the same program as described earlier) in the United States Custom Service . It specifically involved those employees seeking promotion or transfer to positions (1) directly involving in the interdic­tion of illegal drugs, (2) requiring the handling of a firearm. or (3) requiring the handling of classified documents. The Supreme Court upheld drug test­ing in the first two categories and struck down the testing of employees in the third category. What is espe­cially disturbing about the decision of the Von Raab Court is that they arrived at their decision with almost no evidence to support it. Testimony elicited from the Commissioner of the Custom Service revealed that the Cus­tom Service was largely drug free, and the majority of the Court can "in no instance point to even one particular event involving the evils of drug use.·· (see. J. Scalia's dissent in Von Raab.) 18 At one point. factual evidence was presented which revealed that out of 3600 test subjects only five positive tests resulted .

Justice Kennedy once again wrote the majority opinion upholding a Fourth Amendment search. but, this time without any probable cause or even suspicion. Justice Kennedy even cited his own opinion in Skinner, released that same day. stating that:

"Where a Fourth Amend­ment instrusion serves spe­cial governmental needs, beyond the normal need for law enforcement, it is neces­sary to balance the indivi­dual's privacy expectations

against the government's interest to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context."

The majority based its opinion on the government's interest in preventing the intrusion of drugs into the Cus­toms Service, which has direct involvement in controlling the inter­diction process to stop the flow of such drugs. There was also an interest in making sure that those who handle firearms would not have their judg­ment impaired by drugs at critical and dangerous moments.

The majority in this case was a nar­row 5 to 4 with Justice Scalia drop­ping from the majority of Skinner. Justice Scalia wrote a particularly moving dissent pointing out the glar­ingly weak contentions that the majority used to obviate individual rights in the name of unsubstantiated government desires. He pointed out emphatically that the majority based its opinion purely on speculation which showed no sign of becoming reality. Also addressed was the fact that those not subject to drug testing were persons already inside the departments for which drug testing would become a barrier. What is clear is that the majority opinion was a " result oriented" or "outcome oriented" test and simply followed a governmental mandate to wipe the "scourge" of drugs from our nation.

This is particularly disturbing since it now appears that the government is able to speculate ("image" may not be too far from the truth) as to a set of cir­cumstances under which a Fourth Amendment search may be reasona­ble. And, on the basis of that specula­tion alone. the government will be able to obviate individuals' constitu­tional rights to privacy. The sig­nificance of the Von Raab decision's chilling effect on individual rights harkens back to the days of witch hunts and McCarthyism. The theme then was the same as it is today: fear. On the basis of fear alone, the rights of the individual have taken a back seat to the ·'war on drugs'' . It remains to be seen exactly how far this fear will drive the development of the law of drug testing in the workplace.

REFERENCES

1. Rothstein. Drug Testing, in the Workplace: The Challenge to Employment Relations and Employment Law, 63 Chi Kent L Rev 683 ( 1987)

2. National Treasury Employees Union v William Von Raab, 49 US_, 103 L Ed 2d 639, 109 S Ct_(l989).

3 . Skinner v Railway Labor Execu­tives Association, 49 US _ _ , 103L Ed 2d 639. 109 S Ct_ (1989).

4 . Von Raab. 49 US_, 103 L Ed 2d 639, 109 S Ct_ (1989) at

5 . Rothstein, 63 Chi Kent L Rev 683 (1987) at_.

6 . ld 7. ld 8 . Employee Drug Testing -

Balancing the Interests in the Workplace, 74 Va L Rev 969 (1988)

9 . ld 10. Haas, Supreme Court Enters the

Jar Wars: Drug Testing, Public Employees and the Fourth Amendment. 94 Dickinson L Rev 305 (1990) .

11 . ld 12. Von Raab. 49 US __ , 103 LEd

2d 685. 109 S Ct_ (1989) at __ .

13. Haas. 94 Dickinson L Rev 305 (1990)at_.

14. Griswald v Connecticut, 381 US 479 (1965).

15. US Const. Amend IV. 16. Amalgamated Transit Union

Local No. 587 v Municipality of Metropolitan Seattle, Unpub­lished Opinion No. 89-2-22064-7 (Supreme Court of Washington, 1990).

17. Employee Drug Testing. 74 VaL Rev 969 ( 1988) at __ .

18. Von Raab. 49 US __ , 103 LEd 2d 685, 109 S Ct_ (1989) at

Other Sources

1. Dangelo. The Individual Worker and Drug Testing: Tort Actions for Defamation. Emotional Dis­tress and Invasion of Privacy, 28 Duquesne Law Review 545-559 (Spring 1990).

2. Crain. Expanded Employee Drug Detection Programs and the Public Good: Big Bro ther at the Bargaining Table, 64 N.Y. University Law Review 1286-1345 (December 1989).

Gregg D. Michael is a second-year evening student.

CHEMICAL RES.,RAI • .,S Over the past three to four decades,

many advances have been made in the field of psychopharmacology. Using medication to control a per­son's behavior has proven to be very beneficial to our society. Persons suffering from psychiatric disorders no longer have to be warehoused In institutions. Instead they can live as productive members of their communities.

Along with the benefits of psy­chopharmacology also come anum­ber of legal and ethical concerns. Chemical restraints, medication used to control agitation and aggression. are sometimes used when less restric­tive alternatives may be avatlable. At times they become a substitute for adequate staffing ratios, financial resources, and staff training. Patients may be forced to submit to the use of medication against thei r will and medication may be used without obtaining the patient's informed con­sent. Finally. monitoring for side effects. which can be life threatening, is often seriously inadequate, U1ereby creating unnecessary risks for the patient.

Because medication that Is used to control or change behavior can easily be misused, limitations and controls must be set by the courts along with consequences for those who exceed the boundaries. Additionally, a vehi· cle through which patients may voice their concerns should be established .

Fortunately, the courts are begin­ning to set such limits. Persons with mental and behavioral disorders have been gaining vital rights over the past ten years. They have been given the right to make decisions regarding their own treatment and to exercise control over their own bodies if they are not determined to be legally incompetent. lfthey are incompetent. their rights are still guaranteed by guidelines which have been estab­lished by the courts. Also, courts. not the prescribing physician, are now making decisions regarding a per­son's competency to participate in treatment decisions.

Every medication has adverse effects which in some instances can be very serious. such as confusion, strokes, and sudden death. While most adverse effects can usually be eliminated. Tardive Dyskinesia, a side effect characterized by rhythm ical involuntary movements of the tongue. face. mouth and jaw which may be accompanied by involuntary movements of the trunk and extremi­ties. has been found to persist

indefinitely even after medication has been discontinued. Its onset can occur after several weeks. months. or years of treatment with psychotropic medication. thereby making its likeli­hood of occurrence Impossible to pre­dict. The American Psychiatric Association In their Task Force Reports of 1979 and 1985 estimated that this potentially irreversible side effect. for which there is no known treatment. occurs in as many as ten to twenty percent of those persons treated with psychotropic medica­tions.

Chemical restraints are used in institutional settings with persons who are mentally ill or mentally retarded as well as with geriatric patients and those who have sus­tained head injuries. Once a psy­chotropic medication is ordered. the prescription Is often refilled without ongoing reevaluation of the need for the medication. Patients transferring from other institutions with an order for psychotropic drugs may also be continued on the medication indefinitely. even when there is no information as to why the patient is receiving it.

Monitoring a patient for side effects usually becomes the responsibility of those who work directly with the patient. Unfortunately. those workers may not have adequate knowledge or experience with the prescribed medi­cations. As a result. the monitoring practice Is often seriously inadequate. Additionally. the patients themselves may be viewed as unreliable when they complain about how the medica­tion makes them feel.

Patients are not always informed when they wiJl be receiving a new medication. Furthermore. the dangers associated with the medica­tions are not always discussed with the patient. This is because It Is fre­quently assumed that the patient would not understand the proposed treatment anyway.

There are times when patients do not consent to the use of chemical re­straints. However. their wishes are not always followed and the medica­tion may be forcibly administered while the patient is physically or mechanically restrained.

There are also times when a true emergency exists and medication may need to be forcibly administered such as when a patient is in immedi­ate danger of harming himself or others and Is unable to be managed through less restrictive management techniques. Oflen, however. chemical

restraints are used for inappropriate reasons.

Chemical restraints are used differ­ently throughout institutional set­tings. A common thread appears to be that the approach toward dealing with a patient's agitated or aggressive behavior should be the least restric­tive approach possible. or at least one which is not unnecessarily restrictive. This means that behavior modifica­tion approaches should be attempted initially. in addition to evaluating the appropriateness of the setting and U1e Immediate environment since these alternatives do not pose any health risks.

Although behavior modification. if applied correctly, could work to man­age many of the aggressive and agi­tated patients in Institutions. failure of such treatment plans frequently results from institutional constraints. Inadequate staffing and financial resources. poorly trained staff, and internal bureaucracy are among the many reasons these programs are not successful .

The courts have begun to address the concerns that have arisen with the development of psychopharma­cology. Patients In institutions are beginning to regain control over their treatment. something most of us con­sider an absolute right.

Courts have based the rights of per­sons subject to chemical restraints on the Due Process Clauses of the federal and state constitutions. In its land­mark decision in this area of law. Romeo u Youngberg, 102 S Ct 2452 (1982), the United States Supreme Court ruled that patients in a mental institution have a right to be free from bodily restraint based upon liberty interests.

The definition of bodiJy restraint has since been expanded by the court in Sabo u O'Bannon. 586 FSupp 1132 ( 1984), to include not only the physi­cal restraints to which the plaintiff in Romeo was subjected. but also chem­ical restraints. The rationale for including chemical restraints is theiT potential to do great harm.

Other courts have provided a patient with the right to make his or her own decision regarding what treatment is acceptable. This right Is not lost simply because a person is Institutionalized, even when confine­ment is involuntary. In order to lose the right to decide whether to accept or reject treatment. a person must be declared incompetent by the courts.'

The law has long recognized that only the individual for whom a treat-

ment has been prescribed has a right to weigh the risks of the treatment against the anticipated benefits and make the decision whether to accept or reject the treatment. The law of battery is based on this right of an individual to make decisions regard­Ing his or her own body. 3

Now this law is being applied to individuals who are Institutionalized. Patients have the right to refuse ed­ical treatment. even when the m edi­cal community believes s uch treatment is in the patient's best interests. It Is the patient, not the phy­sician. who can evaluate the conse­q uences of the t reatment and discontinue or forego such treatment when the cost to Lhe patient out­weighs the benefits .

In order for a palient to consent to treatment with medicati n. he or she must be informed of ~e treatment . In Davis v Hubbard, 506 FSupp 915 (1980) and Clities v State, 322 NW2d 917 (Iowa App 1982), the courts said that patients must be made aware of the dangers associated with the medi­cations prescribed. The c.ourt in Rogers v Okin. 478 FSupp 1132 ( 1979). went even further by saying that in order for patients to truly consent to the use of medication, they m ust understand that they have a right to refuse treatmen .

The pa tient's right to participate in treatment decisions exists as long as he or she is competent. The question or competency must be decided as a separate issue from the issue of Involuntary commitment. The bur­den of proof is on the hospital to show by clear and convincing evidence that the patient is incapable of participat­ing In treatment decisions.•

The question of competency is a legal decision . not a medical one. It has been recognized that there may be a conflict of interest in allowing the treating physician to make decisions regarding a patient's competency. Physicians have_an interest in provid­Ing treatment as well as in maintain­Ing order in the institution. which can affect their ability to make unbiased decisions.

A number of guidelines nave been set by courts for the use of chemical restraints with Incompetent patients. The court In In Re Boyd. 403 A2d 744 (1979). used the "substituted judge­ment" approach. Here the court has the responsibility to determine what choices the patient would make if the patient were competent. The court in Rogers v Com 'r of Dept. of Mental Health. 458 NE2d at 318, identified factors to consider when making deci­sions for Incompetent patients. These factors Included an examination of preferences the patient expressed when he or she was competent. his or her religious beliefs. possible tmpact

on the family. adverse effects of treat­ment. prognosis without treatment. and prognosis with treatment.

The court In People v Medina, 705 P2d at 963, developed additional guidelines to be used where chemical restraints are prescribed for incompe­tent patients. Here the court required that treatment by psychotropic medi­cation be necessary to prevent long­term de erloration In the patient's mental condition or to prevent the patient from causing Injury to himself or others in e iJ;Istitution: that a less restrictive treatment be unavailable: a nd that the need for treatment be sufficiently compelling to override the leglttmat.e interest of the patient in refusing treatment.

A number o other courts have also recognized a patient's right to treat­ment that is not unnecessarily restric­tive Including the court In Rennie v K lein, 653 F2d at 846. Some courts require that there be no reasonable al ternative treatment that is lesS in trusive than the proposed treat­ment and that there must be a valid medical eason for the use of chemi­ca l restraints. Chemical restraints cannot be used merely to keep patients quiet and manageable.

In addition to establishing guide­lines which Insure patients rights to make decisions regard ing their treat­ment and to guaranteeing their lib­erty interests, the courts liave also examined fue medical management of patients once they have been placed on psychotropic medication. According to the court In Cllties v State.~22 NW2d 9 17 (Iowa l'\pp 1982). regular evaluations by the phy­sician are necessary. Drug holidays should be provided to evaluate the patient's status without medication. Institutional staff members must react to signs of Tardive Dyskinesia that arise rather than ignoring them . If a physician is unfamiliar with Tardive Dyskinesia. consultation with other physicians should occur. The least restrictive method of treatment should be used . Finally chemical res­traints cannot be used as a staff con­venience in lieu of a treatment program.

As with all rights. a patient's right to refuse treatment with psychotropic medication is not absolute. The rights of a patient must be weighed against the interests of the Institution. When a patient is in immediate aanger of hurting himself or others, the patient's rights can be overridden. 5

However. the danger must be an Imminent danger as opposed to a pos­sible danger.8 A patient can also be medicated against his will when fail­ure to do so would result In Immedi­ate, substantial, and irreversible deterioration of the patient's medical condition.7

In cases where a chemical restraint is necessary, many courts, including the court in Romeo v Youngberg.l02 S Ct 2452 (1982), and Sabo v O'Ban­non, 586 FSupp 1132 (1984). have held that patients have a correspond­ing right to receive treatment that will lead to decreasing the need for the restraint.

The courts have not recogntzed the Interest of an institution in operating In the least expensive and most effi­cient manner possible as a legitimate reason for forcibly medlcaung patients. Nor have courts allowed a patient to be subjected to chemical restraints when the institution was concerned about increased lengths of stay. abilicy o treat fewer patients, s taff turnover. and taff r cruilment.

Overall. court decisions In the past ten years have led to the development and recognition of the rights of institutionalized patients. The control over what treatments patients will undergo now belongs to the patient as opposed to the physician or institu­tion who frequen tly have conf1icting Interests. thereby rendering them Incapable of making unbiased deci­sions. Guidelines have been set which make physicians more accountable for adverse effects of medication where Informed consent from the patient was never obtained. a nd where onitoring of patien ts receiv­ing psychotropic medica tions was inadeq ate.

ln closing. it must be recognized that pre edents set by the court are only the first step in changing the lives of institutionalized persons. Changing the amount of funding directed toward Inst itutions. chang­ing society's attitude toward the ha nd ica pped and d ev loping advocacy networks thal assist patients in exercising their rights m ust follow .

REFERENCES

1. In Re K. K.B. 609 P 2d 747. 749 (Okla. 1980) and Rogers v Com 'r o[Dept of Mental Health. 458 NE 2d 308.314 (Mass. 1983).

2. People v Medina. 705 P 2d 961. 968 (Cofo. 1985).

3. In Re K.K.B .. 609 P 2d 747. 749 (Okla. 1980).

4. Rogers. 458 NE 2d at 318. 5. ld. 6. Medina. 705 P 2d at 97 4 and

Davis v Hubbard. 506 FSupp 915. 934 (NO OH, 1980).

7. Rogers, 458 NE 2d at 322.

Sarah Rollman is a second-year eve­ning student. Sarah earned a BSW from Widener University and an MSA from West Chester University.

The United States Supreme Court granted juvenile delinquents the same due process guarantees as afforded their adult counterparts in the land­mark decisions of Kent v . United States. 383 U.S. 541 (1986) and InRe Gault. 387 U.S . 1 (1967) . Subse­quently, a metamOJ2Phosis of the jUve­nile justice system occurred with the objective being rehabilitation and not punitive sanctions.

While the total delinquency rate decreased between 1972 and 1981. the public perceives the juvenile courts as too lenient on today'sserious offender. 1 The war on drugs has devel­oped into a war against juvenile delin­quents. and the crux of this war is utilizing social institutions to rehabili­tate young offenders.

There are three institutions suitable to ameliorate conduct problems: the family. the juvenile justice system. and the school. 2 Naturally. bhe family is the primary choice and the court is the last resort. but the family is often dysfunctional and the court unable to provide preventative measures. Therefore. the most realistic and expe­dien resource is the classroom.

There is- debate as to the school's role in providing programs which emphasl.z certain values and morals·. However. considering the number of hours a child attends school. there appears to be unive sal agreement that some ype of preventative pro­gram ·s needed.

Studies r veal a direct link between school failure and Juvenile delin­quency.3 One possible reason is tne school's desire to create an unadulter­ated educational setting. F!Gw@ver. this is not tli.e environment that the child or adolescent goes home to at night. When there is a gap or distor­tion between the "world o school" and the "real world" the juvenile begins to feel aliena ted from school. His differences from the social norm are exaggerated. 4 He begins to feel that the only way to succeedis to lash out at the society which fails to fulfill his needs.

Schools create this distortion by masking the problems of the students. Some children walk into the class­room with an invisible sign saying. "Confident. Intelligent . Success-

ful. .. Teach me! Teach me!," but most wear sl{ns of insecurity. awkward· !'less. Inferiority and Ineptness. The self-esteem of a young adolescent is usually at a life-time low.

In addition. many school programs label students or group students mak-1ng it even more difficult to eombat their existing problems or adding ta them. This is especially true once a child has been labeled a "juvenile delinquent. .. Delinq ency is define as .. any act committed by a juvenile for which an adult could be prosecuted iFI a criminal court. " 5 This can range from felony charges of bur­glary and rape to summary 0ffenses. In many states delinquency also includes status offenses which are minor infractions such as truancy. Therefore. a juvenile delinquent could be a rapist or a kid who gets just a lit­tle too mischievous. The effeets of such labeling can be devastating. A child so labeled who committed only a minor infraction could be ·nduced ·into more serious criminal activity through his fears of not being socially acceptable.

Schools need to create programs which stimulate self-esteem and self­worth . Educators should be honest and factual when dealing with social problems such as drugs, AIDS. and s x.6 Programs should be initiated in lhe elementary schools and continue through graduation which provid high-risk youths with the necessary means to achieve success and com­plete school. 7

Education is no longer the teaching of reading. writing. and arithmetic. but when viewed in its broadest sense. It deals with emotions as well as intellect. 8 Children are not born with innate abilities. 9 They must be trained. guided. and supported. It is the role of today's educational system to prepare students both emotionally and intellectually for the- problems and issues to be faced in the everyday working world.

This all sounes well and good you say. ut aren' our school systems already overburdened? Aren't our teachers already under'palO? When is soc.i.ety going to stop blaming the educational system for the country's JJrOblems? Cert;ainly. ool is not

"the answer ... Not every youth will respond. r gardless of the program and senious and repeat offenders should be sternly dealt with by the courts. But with the courts facing a heavy docket. overcrowded Shelters and detention homes. and the increas­ing cost of financially supporting these young people_. an1: preventative support provided by the school is welcomed.

Such supQort is emerging across the nation and many of the programs are successful. To reduce absenteeism. a Delaware school system added a later bus route to pick UiJ any children who overslept. A junior-high in Oakland California trained "troublemakers" in math after which they became assis­tant teach rs in the classroom. This role-reversal reduced misbehavior and stimulated learnmg. The profes­sional community became involved in Seattle, Washington where business leaders act as speakers. employ stu­dents in internships. and arrange field trips and career days. This partner­ship demonstrates to students the relationship between education and the "working world " and provides undermotivated students with a rea­son to stay in school. 10

That is the goal of most preventative programs - keeping tl=le stu<ilents in school. The Vice President's Task Force on Youth Employment reported in 1980 that the national dropout rate was around thirteen percent. 11 Most students drop out because they feel school is not worthwhile or because of personal problems which are not addressed within the system .

Nonetheless . educators around the country are taking the bull by the horns and succeeding in raising the attendance and scholastic rate in their schools. If there is a direc t correlation between poor school performance and illegal conduct. then i"'c reased suc­cess in school should aid in the elimi­nation ofj uv "nil delinquency.

It should be the goal of every family, school. and court to provide the best pos ible training and support for our youth.

After all. as President Abraham Lin­coln stated:

A child is a person who is going to carry on what you

have started. He is going to sit where you are sitting. and when you are gone, attend to those things which you think are important. You may adopt all the policies you please: but how they are car­ried out depends on him. He will assume control of your cities, states and nations. He is going to move in and take over your churches. schools. ·universities. and corpora­tions. All your books a re going to be judged. praised or condemned by him. The fate of humanity is in his hands. 12

REFERENCES

1. Joseph W. Rogers and G. Larry Mays, Juventle Delinquency dnd Juvenile Justice, Prentice Hall Englewood Cliffs. New Jersey (1987) p. 6 and 10, tak n from "Juvenile Justice: Tim for a New Direction?" Crime and Delinquency 29, July 1983: 330. 326. Figures 3 and .

2. Today 's Delinquent, Volume 6, National Center for Juvenile Jus­tice, Pittsburgh. Pennsylvania (1987) p.22.

3. Martin R. Haskell and Lewis Yab­lonsky. Juvenile Delinquency, Third Edition, Houghton Mifflin Company. Boston, Massachu­setts (1982) p.139.

4 . Id at 140. 5 . Dictionary of Criminal Justice

Terms, Gould Publications, Binghamton, New York (1984) p. 72.

6 . Robert C. Trojanowlcz. Juvenile Delinquency: Concepts and Con­trol, 2nd Ed., Prent:ice Hall. Inc., Englewood Cliffs. N.J . ( 1978) p.129.

7. Today's Delinquent, supra. at 60 and 61.

8. Campbell Loughmiller. Kids tn Tr:ouble. an Adventure in Edu­cation. Wildwood Books. Tyler, Texas (1980) p . 41.

9 J~venlle Delinquency: Coneepts and Control, supra at 130.)

10. Juvenile Delinquency and, Jl,we­nile Justice, supra. at 178 and 180.

11. Id at 170. 12. Id at 30 taken from UNIOEF,

Information Bulletin 13 ( 1976) , p.6.

Kelly Streib Is a thlrdyear evening student.

POSTPARTUM DEPRESSION AS A DEFENSE TO

CRIMINAL HOMICIDE The scenario sounds intriguing. A

mother has given birth to her child and all appears peaceful. Then a news­paper headline in the newspaper catches your eye reporting a woman· s arrest for killing her baby . Shock fills the reader as do many questions. What possessed this woman to com­mit such a violent act against some­one so delicate and innocent? As subsequent news flashes and articles follow the tragedy, the mother says her baby was either kidnapped or missing. Her lawyer explains to the reporters that she did not know what was happening when the alleged kill­ing occurred. A defense referred to as Postpartum Depression subsequently emerges.

It is important for attorneys to gain insight on this topic, as it may be increasingly used as a defense to a mother's charge of murder. Although a Pennsylvania jury has never ren­dered a not guilty verdict based on this defense .1 there exists clinical proof that a hormonal change occurs in women after giving birth. That change could very well plant the seed of reasonable doubt in a future juror's mind when a murder charge is brought against a new mother.

Throughout history the act of a woman killing her child has not been uncommon. The practice of infanti­cide has been widely accepted in countries ranging from Ancient Greece and Rome to China and Japan to Australia. The reasons for such practice varied . Whether to perform sacrificial rituals. to control the popu­lation . to balance the sexes. or to adjust to economic conditions. killing one 's baby has occurred and been documented for centuries. 2

In England. several laws were passed that eventually led to the recognition of the crime of infanticide. The Infanticide Act of 1922 may have been the first of its kind to reduce the charge of murder to manslaughter against a new mother. If. during the act of killing her baby. a mother" 'had not fully recovered from the effect of

giving birth to that child, but by rea­son thereof the balance of her mind was then disturbed.· that mother's charge would be reduced. " 3 Early American caselaw expounded upon the English theory by stipulating that in order for a baby to have been a vic­tim of murder. it must have been born alive and been able to live separately from its mother. 4

Medically speaking. there are several basic types of postpartum ill­nesses. graduating in degrees of severity. It is estimated that almost fifty percent of all new mothers experience some emotional change after giving births The first type of emotional change referred to as

It is importantjor attor­neys to gain insight on this topic, as it may be increasingly used as a defense to a mother's murder charge.

"maternity blues" is the least severe and the most common. 6 Women suffering from this disorder experience tearfulness. insomnia. confusion. depression. and occasional hopelessness. These feelings are tran­sient and typically do not last past the fourteenth day postpartum. Usually occurring within the first four days of motherhood. women suffering from this emotional disturbance do not need drugs or therapy. only the sup­port of family and loved ones.

The disorder next in severity is "postpartum depression.'' 7 Women suffering from this imbalance experience depression. pervasive mood disturbances. anxiety. insom­nia. suicide thoughts/attempts. disor­ganization. and an inability to concentrate. The causes of this illness

are unknown. Some evidence indi­cates that a biological connection exists. Mothers in this category are usually treated with drugs. hormones. and/or psychotherapy . Left untreated. a woman could subsequently develop a severe depression.

The most serious and rare type is called "postpartum psychosis. " 8 This disorder has a rapid onset. The mother may experience delusions of evil thoughts. irrational thoughts. bizarre behavior. and psychotic depression . Her condition may prompt her to commit suicide or infanticide.

Medical experts agree that several factors may contribute to the onset of these emotional disturbances. They include "poor social support. external life events. and events directly related to childbirth .... [E]xternallife events that may contribute to mental dis­orders following childbirth are: rela­tionship disruptions with the baby's father. low self-esteem resulting from increased body size and physical ill­nesses during the entire pregnancy. and Cinancial concerns regarding sup­port of the child. " 9 Documented almost 150 years ago. postpartum psychiatric reactions are at their peak during the first six weeks after deliv­ery.10 There exist over 300 mental dis­orders relating to pregnancy. childbearing. and the postnatal period . The majority of these illnesses occur within the first six weeks after giving birth. usually four to five days afterward. "This temporal relation­ship of the onset of emotional or men­tal symptoms shortly after delivery is the defining criterion for postpartum psychiatric reactions.·· 1 1

There are several problems when raising postpartum depression . for example. as a defense to a homicide charge. The first is that the defense of postpartum depression is not officially recognized by the medical commu­nity and is not included in the psy­chiatrist's Bible: the Diagnostic and Statistical Manual of Mental Dis­orders. 12 The mother. while being

examined by a psychiatrist, may not display any signs of her mental disor­der. although it is quite feasible that she was completely insane at the time that she killed her child. A Pennsylva­nia State University Professor of Psy­chology explains that a woman so affected may experience "distortions of reality and severe depression" and "she can appear to be quite normal just before the incident. " 13 Secondly. the prosecution may portray the psy­chosis as a convenient defense during trial. The insanity used as a defense can be temporary. which would obvi­ate the necessity to permanently com­mit the mother to a mental institution. Thirdly. there is the problem of deter­mining the extent to which the defense can be used. Should only mothers be protected by this defense? Should it apply to the killing of chil­dren over six months of age? !fa post­partum defense is established. it may be very difficult to establish the parameters within which the defense may apply. 14 Lastly. this defense has never proven successful in Pennsylva­nia. Many times. the accused mother creates a false story for the police who view the mother's actions as premedi­tation. Usually a question like the fol­lowing arises: "If the mother did not know what she was doing when she killed her baby. why did she fabricate a coverup story lo hide her actions?" A complete answer is not known. Research suggests that a mother in

this situation does not know or remember the incidents leading up to her arrest.

There is some hope when raising a postpartum defense. however. In several states. the accused women have received verdicts of not guilty. Early last year. a California woman was acquitted after a conviction of sec­ond degree murder when she killed her six-week-old son by driving over him in her station wagon. 15 InVer­mont. a mother attempted suicide after killing her six-week-old with a .22 caliber handgun. The charges against her were subsequently dropped when she was found not guilty by reason of insanity. 16 One New York woman was found not guilty. for the third time. because she was believed to be insane when she attempted to kill her third child. She had previously killed her two other children on two separate occasions. 17

Even Pennsylvania has been found to reduce its charge of murder. When a mother pled guilty but mentally ill to a third degree murder charge. the presiding judge gave her a five-year suspended sentence with an order to be psychiatrically evaluated .18

One of the most recent Pennsylva­nia cases involved in the postpartum defense is Commonwealth v. Comitz .19 In that case. the Pennsylva­nia Superior Court declared that the plea of .. ·guilty but mentally ill' did not. as a matter of law. constitute a

substantial ground excusing the criminal conduct and warranting pro­bation. Granting probation is depen­dent upon the facts of each case and it is within the trial court's discretion to weigh the mental illness as an excuse for the criminal conduct when imposing the sentence. " 20 The Superior Court affirmed the sentence of eight to twenty years for the charge of third degree murder. Perhaps the only positive result of this Pennsylva­nia case is that the Court did not directly dismiss the postpartum defense altogether. The Court did con­sider the defense and subsequently concluded that the defendant did not deserve to have her charges dismissed.

As increasingly more women seek medical help for the emotional prob­lems they suffer in connection with childbirth. the legal community may be confronted with the issue of post­partum illnesses more frequently. In some cases. the psychological impact is very real and does render the mother incapable of appreciating her acts. One should be cautious when using a postpartum defense as it can be easily misused . Maybe this state 's legal and medical communities will listen more closely to the evidence regarding postpartum psychological illnesses and give this disorder the fair consideration it deserves. In the meantime. it remains up to the jury­innocent or guilty?

REFERENCES

l. 12 Pa L J 12 ( 1989) 2. 18 Cap U L Rev 526-527 3. Id. at 528 4. Id. at 530 5. ld , at 530-531 6. ld , at 531 7 . Id . at 531 8. 12 Pa LJ 10 (1989) 9. 18 Cap U L Rev. 533

10. Cornog. Postpartum Psychiatric Reactions. ( 1989)

11. 18 Cap U L Rev. 533 12. Cornog. Postpartum Psychiatric

Reactions. (1989) 13. ld, at 445 14. 12PaLJ10 15. Id. at 10 16. 18PaLJ10 17 . Id. at 10 18. Id . at 10 19. Id . at 10 20. 18 Cap U L Rev 535

Colleen Ramage is a Juris Staff Edi­tor and a 3rd year day student. She is working for the law firm of En ten­mann & Sansone.

With final examinations and gradu­ation fast approaching. the Student Bar Association ("SBA") presented the second and third sessions in the Speakers' Forum series geared toward acquainting students with the prac-

tice of law. On Wednesday, February 6. Robert J . Marino , Esquire. moder­ated a forum on "Alternative Careers". Jennifer Fox Rabold. Esquire. Vice-President of J . J. Gum­berg Co . Real Estate. and a Duquesne graduate . and Marisa Fera. Esquire , an investment executive with Parker Hunter. Inc .. related the usefulness of their legal educations in executing their respective current non-legal duties.

The third Speakers' Forum, held on March 12. addressed "Day in the Life of an Associate". The forum was moderated by First Assistant District Attorney Chris Copetas. Esquire . Representatives of small. medium and large firms. as well as the Allegheny County District Attorney 's Office, dis­cussed the events of daily life as a new membe r of the Bar. Robert J. Marino. Esquire. commented on the daily responsibilities of associates at Dickie, McCamey . & Chilcote. and Michael O'Rourke. Esquire. of Eckert. Sea­mans. Cherin, & Mellot outlined the activities of young attorneys at one of Pittsburgh's largest law firms. John H. Search. Esquire. from the law offices of William H. Goodrich. related the duties of attorneys working in small firms. Shelly M. Snoddy. Esquire. outlined the activities or associates with her firm. Caroselli, Spagnolli, & Beachler. while Assistant District Attorney Kimberly B. Clark, Esquire. represented legal practice in the public sector through her discus-

sion of the daily activities of assistant district attorneys.

On Tuesday. March 5. the Duquesne Chapter of the Black Law Students Association ("BLSA") hosted a Judges' night Reception in

the Duquesne Room of the Student union . The featured guest was Chief Justice Robe rt N. C. Nix . Jr .. of the Pennsylvania Supreme Court. BLSA President Camille Corbin presented the Chief Justice with a special merit award in honor of his "commitment to a fair and equal system of justice ... Duquesne law students enjoyed meet­ing with Chief Justice Nix and the

other prestigious members of the bench.

During the week of March 11. faculty. staff and students welcomed officials from the Law School of the University of Beijing, People's Repub­lic of China. in an effort to promote a faculty exchange program between that University and Duquesne. Dean John Sciullo will travel to China this summer to continue negotiations for the program.

Duquesne University has com­pleted the final rounds of competition in Trial Moot Court. Michael Bruzzese was named Best Advocate in the Gourley Cup Trial Moot Court Compe­tition . Preliminary rounds for the Appellate Moot Court competitions and Tax Moot Court are underway and will be concluded in April.

In order to promote international academic and scholarly exchanges. the School of Law has begun discus­sions with China University of Politi­cal Science and Law (CUPL) of the People's Republic of China (PRC) in Beijing, to explore the potential for developing exchange programs between the two schools.

A delegation from CUPL was honored at a reception held at the Duquesne Union on March 12. 1991.

by Susanne Kimberland.

Senior Editor

~o[l~ ~M@[f~@ ~o©©

~@ ~[ffi@ @~®~ ®~CID~@~ The relationship between Puerto

Rico and the United States has always been one of much discussion and con­troversy. July 25, 1998 will mark 100 years since the American invasion of Puerto Rico. It will mark 100 years of American influence on the sociologi­cal, political and economic aspects of Puerto Rico's way of life. As one walks down the streets of Old San Juan it is not unusual to see a Burger King res­taurant across the street from kiosko {kee-oz-ko), where typical Puerto Rican food such as bacalaitos {cod fish fritters) or alcapurrias {green banana croquettes) are being served. This is a perfect example of the presence of two distinct and unique cultures which have coexisted for almost a century. Needless to say, the interac­tion between the United States and Puerto Rico goes much deeper than the clash between an American fast­food restaurant and a native one. The relationship poses graver questions: What is the political status of Puerto Rico. and where is it going?

These two questions have been the moving force behind the political par­ties of Puerto Rico, which are con­stantly seeking a definition of Puerto Rico's undetermined political status. It has been precisely this pressure exerted by Puerto Rico's local politi­cal parties which led Congress since April 1989, to consider a bill which would provide for a referendum by which the people of Puerto Rico could exercise their right of self­determination. The plebiscite, sched­uled for the summer of 1991, would present the people of Puerto Rico with three alternatives that would resolve the status dilemma. These alterna­tives are: { 1) statehood, {2) an en­hanced commonwealth, and {3) inde­pendence.1

The Committee on Energy and Nat­ural Resources of the United States Senate, headed by Chairman J. Ben­nett Johnston {D-La), and by ranking minority leader James McClure {R­Idaho). set the wheels of this complex process in motion. The bill chosen to be presented to the people of Puerto Rico is known as S.712. It is a self­executing bill that defines in absolute detail the three status alternatives and provides that the prevailing for­mula would be implemented in­stantly. For example, if the favored

alternative is statehood, then Puerto Rico would automatically be admitted to the Union. If on the other hand independence is favored, then Puerto Rico would begin its journey towards becoming an independent state within certain parameters and condi­tions already established in the bill. 2

In order to attain a better under­standing of the three alternatives involved in Bill S. 712 it is appropri­ate to trace back some of the history of Puerto Rico and its relationship with the United States.

Puerto Rico was discovered on November 19. 1493 during Christopher Columbus' second voy­age to the Americas. The island remained under Spain's domain until 1898 when Spain ceded Puerto Rico to the United States after signing the Treaty of Paris. thus putting an end to the Spanish-American War. In the Treaty of Paris both Spain and the United States agreed that the rights of the inhabitants of Puerto Rico would be decided by Congress. 3 The treaty was the first legal basis for the relationship between Puerto Rico and the United States. The second is Arti­cle IV, section 3, clause 2 of the United States Constitution which reads:

"the Congress shall have the power to dispose and make all needful rules and regula­tions respecting the territory and other property belonging to the United States, and nothing in this Constitution shall be construed as to prej­udice any claims of the United States or any particu­lar state. " 4

The Foraker Act of 1900 was the first actual use by Congress of the powers granted to it by the Treaty of Paris and the U.S. Constitution. The Act basically created for Puerto Rico a colonial government consisting of a governor, an Executive Council appointed by the President of the U.S. and justices to the island's Supreme Court, who would also be appointed by the President. The Act denied American citizenship to Puerto Ricans and declared the island's inhabitants citizens of Puerto Rico. 5

Seventeen years later, Congress

approved the Jones Act, which under section 5 extended American citizen­ship to all persons born in Puerto Rico. This was a passive citizenship that denied Puerto Ricans represen­tation in Congress with the exception of a resident commissioner to the House of Representatives, who could voice his opinion but had no vote. 6

Perhaps the most important Con­gressional definition of the relation­ship between Puerto Rico and that United States was Public Law 600 of 1950.7 Under Public Law 600 the peo­ple of Puerto Rico were given the opportunity to draft their own Consti­tution. The Act of 1950 was in the nature of a compact between Puerto Rico and the United States. The por­tions of the Foraker Act and the Jones Act which were not repealed, have remained in effect under the title of Federal Relations Act. 8

In this manner the Commonwealth of Puerto Rico or Estado Libre Asociado {in Spanish ) was created. The term Commonwealth has led to many misinterpretations because sometimes it applies to a state of the Union like the Commonwealth of Pennsylvania. and at other times it is used to identify the international organization composed of former Brit­ish colonies. Clearly the term as presented above does not apply to Puerto Rico. but neither does Estado Libre Asociado. which translates to Free Associated State. Puerto Rico is not free in the sense of being a sover­eign state. It is associated with the United States but only to a degree. It is not a nation or state of the Union. It is only a state in the sense that it is an organized political community.9

This unique situation of belonging, yet not fully belonging has basically dictated the direction Puerto Rico's local politics has taken. The main focus of the political parties is not the solution of domestic problems. Instead it is gaining support for the political status which the parties advocate. With the referendum pend­ing so closely, the three major politi­cal parties which represent the three alternatives presented in Bill S. 712, have revised their goals and prepared the formulas included in the bill. Fol­lowing is a brief description of some of the arguments and goals which form the basis of the alternatives.

The party which advocates state­hood for Puerto Rico is the New Progressive Party (NPP) . The NPP firmly believes that statehood is the only alternative that will give Puerto Ricans political equality and equality of citizenship. Statehooders claim that Puerto Ricans suffer prejudice and discrimination due to a second­class citizenship.

For example, a Puerto Rican living in the mainland enjoys full rights as a citizen of the United States. such as being able to vote in the Presidential election. having truly adequate representation in Congress or receiv­ing full benefits of provisions con­tained in Federal laws and programs. However. if that same Puerto Rican were to move to the island he would not fully enjoy his rights as a citizen of the U.S. because he would not be able to vote for the President, receive full representation in Congress or equal treatment under federal laws. An excerpt of the NPP's Declaration of Principles for 1985-1989 reads as follows:

"The political conditions we suffer do not satisfy us because we cannot accept in perpetuity the legitimacy of federal power exercised with­out our participation and because we are not satisfied with incomplete citizenship without its inherent political and economic rights" .10

Right now Puerto Ricans living on the island do not pay federal income tax although they do pay very high local taxes. However. statehooders do not wish to avoid payment of federal taxes. They recognize it is an obliga­tion for citizens to pay taxes to their government. Statehooders are willing to accept all duties and responsibili­ties that come with citizenship in order to fully enjoy all other rights. An example of how Puerto Ricans have accepted their responsibilities as citizens is by actively participating in the United States armed forces. From World War II to the War in the Persian Gulf. Puerto Ricans have always defended with pride and courage a country they call their own .

The Popular Democratic Party (PDP) is the advocate for the enhanced commonwealth alternative. PDP's advocates view statehood and independence as extremes that divide the people of Puerto Rico. They believe that Puerto Rico is entitled to a lot more autonomy than what it has right now. In the past, the party has sought greater voice in federal legis­lation affecting Puerto Rico; authority to participate in international organi­zations, and power to make treaties

with foreign countries. They seek power to control imports from the U.S. in order to protect local agricul­tural production and power to impose tariffs . Advocates for an enhanced commonwealth want economic aid from the United States as well. For example . the PDP desires aid for Puerto Rico's tourism industry and the inclusion of Puerto Rico in many federally funded programs. 11

Basically , advocates for the enhanced commonwealth want to keep Puerto Rico's culture and heri­tage separate from the United States. They believe that statehood would make this an impossible goal to attain . Therefore. they believe that more autonomy is required in Puerto Rico's government without giving up American citizenship or federal aid to help the local economy.

The last alternative. independence. is represented by the Puerto Rican Independence Party (PIP). The PIP sees Puerto Rico as a colony that is exploited economically, politically and culturally by the United States. They believe that the relationship between Puerto Rico and the United States should be one between two sovereign nations- the United States should have an embassy in Puerto Rico and Puerto Rico one in the United States. Independence seekers maintain that all federal agencies should be withdrawn from Puerto Rico so that Puerto Rico would then be able to establish its own monetary system, negotiate treaties with other countries and fully participate in world events at an international level. American citizens born in Puerto Rico would acquire Puerto Rican citizen­ship. if desired. Those who wished to conserve their U.S. citizenship would then convert to resident aliens if they chose to live on Puerto Rico. The Inde­pendence Party would request a 10 year transitional period plus indem­nification irom the U.S. to compen­sate Puerto Rico for the exploitation through colonialism by the United States. 12

It can safely be said that the over­whelming majority of the people of Puerto Rico take pride in being part of the United States and would not be willing to relinquish their American citizenship. With the passing of time it seems that the pro-statehood sen­timent on the island increases and if the time to choose came up, I believe statehood would be the chosen option.

Unfortunately, I have encountered much ignorance in the mainland regarding the relationship between Puerto Rico and the United States. The miles of water which separate the two countries have made many Americans forget that there are about

3.5 million citizens of this country who are anxiously awaiting for the resolution of the political status of the island. At a time when many coun­tries are fighting for their political freedom. Puerto Rico is still strug­gling to obtain its moral right to self­determination. The United States can no longer turn away from its respon­sibility of doing right by the people of Puerto Rico. Congress should facili­tate the political process which would lead the island to a much needed referendum.

Puerto Rico's political status is at a standstill right now. Whether the plebiscite takes place in 1991 or at a later time, it is important to acknowledge that some changes will take place. These changes will affect the lives and legal rights of millions of Americans in the island of Puerto Rico and all Americans in the main­land. We should all keep a close look at the events leading up to these changes. Who knows? We may wake up one morning and see another star added to the American Oag.

Note : On February 27. 1991, a majority of the Committee on Energy and Natural Resources of the United States Senate blocked sending Bill S. 7 12 to the Ooor. This action has set back the possiblility of a referendum taking place during the summer of 1991.

REFERENCES

1. Alvarez, The Empire Strikes Out: Congressional Ruminations on the Citizenship Status of Puerto Ricans, 27 Harv J on Legis. Sum­mer '90. at 309-31 1.

2. Id at 312. 3. Morales-Carrion. Puerto Rico

and the United States: The Need for a New Encounter, in Puerto Rico : The Search for A National Policy (R. Bloomfield. ed. 1985) at 10.

4 . Garcia-Passalacqua, Puerto Rico (1984) at 3.

5 . Carr. Puerto Rico: A Colonial Experiment (1984) at 36.

6 Id at 53. 7 . 64 Stat 3 19 ( 1950) Puerto Rican

Commonwealth Act. 8. Garcia-Passalacqua at 46. 9. Perusse. The United states and

Puerto Rico: Decolonization Options and Prospects ( 1987) at 5-6.

10. 1d at 72-76. 11. Id at 36-37. 12. Id at 116-118.

Vanessa Viera was born and raised in Puerto Rico. Vanessa majored in accounting while attend­ing La Universidad del Sagrado Corazon and is currently a third year day student at Duquesne.

LAW AND FINANCIAL

One of the most interesting. and controversial, developments in the financial services industry in the last twenty years has been the advent of the "financial planner. ..

Interes ting. because the word "planner," when coupled with the word " financial. " has proven in prac­tice to be a euphemism for the word "sales ... And sales has typically meant "arms-length transactions" and cav­eat emptor-buyer beware.

Controversial. because a significant percentage of those persons styling themselves "financial planners" claim to have eschewed the traditional model of sales activity (buyer v. seller. i.e .. an ad versa rial relationship) in favor of the model traditionally associated with the professions (service-buyer as service-provider's client, i.e., an advisory relationship) . These same planners. however, offer financial products to their clients. in addition to advice. and accept com­missions for product sales. 1

Unscrupulous? A clear conflict of interest? According to Larry and Hersch Wilson. authors of a book enti­tled Changing The Game: The New Way To Sell, the ethics of such con­duct is a matter of the plan­ner/salesperson's perceptions:

What we are seeing is a major shift in perception. the blur­ring of the distinction of who it is that a salesperson really works for-his own organiza­tion, or his client's. Some companies understand this and reinforce it... . Other organizations struggle against the very concept, caught in the deep-down belief that clients are adver­saries. even while on the sur­face the organization preaches "staying close. " 2

PLANNING: TESTING

For the Wilsons, the ethical issue involved is where the salesperson places her loyalty. and the fact that the planner/salesperson may have a compensatory stake in the matter is not determinative of where that loy­alty will ultimately rest when render­ing advice to the client.J

If such a characterization accurate­ly frames the ethical issue. and if the Wilsons have identified. in fact. prac­tices which prevail in some segments of the sales community (i.e .. among financial planners offering financial products). then the conflict of interest issue may lose its force as a legitimate concern to the clients of those who adopt such practices.

The preceding syllogism is neces­sarily tentative and requires careful examination. This is especially true in light of the fact that an increasing number of attorneys have begun to identify financial planning as an important aspect of their practice . if not their "specialty. " 4

I. CONFLICTS OF INTEREST: WHAT CONSTITUTES A BREACH OF LOYALTY?

In order to investigate the question posed above. it would be useful to con­sult the rules which the professions have developed to aid their membe rs in identifying and avoiding conflicts. And since. as noted, attorneys have begun to identify "financial planning" as an activity appropriate to the prac­tice of law. we will focus our investiga­tion on Pennsylvania's new Rules of Professional Conduct.

The General Rule regarding con­flic ts of interest for attorneys practic­ing in Pennsylvania is stated in Rule 1.7:

(b) A lawyer shall not repre­sent a client if the representa­tion of that client may be

THE NEW

RULES

OF

PROFESSIONAL

CONDUCT

materially limited by the law­yer's responsibilities to ... a third person . or by the law­yer's own interes ts. unless:

( 1) the Ia wyer reasonably believes the representation will not be adversely afTected: and

(2) the client consents after full disclosure and consul­tation .... 5

This Rule is somewhat complex and requires unpacking.

It is notable that a lawyer "shall not" a llow his representation of a cli­ent to be "materially limited by the lawyer's responsiblities to .. . a third person or by the lawyer 's own interests. unless .. . ''6 In the New Rules. the positive commandment expressed by the phrase "shall not" is qualified

by ( l) the attorney's "reasonable belief· that his responsibilities to a third party or his own personal stake in the matter will not compromise his ability to represent his client and (2) full disclosure. presumably of the exis­tence of responsibilities to a third per­son and/or the lawyer's own personal stake in the matter. is provided to the client and representation is then held subject to the client's consent.

Simply. and cynically. put: the law­yer is free to sell his client up the river as long as he informs the client of his intentions beforehand .

Or is he? Is the cynical rendering a fair rendering of the Rule? An answer may be found in the of!lcial Comment to this Rule entitled "Loyalty to a Client":

... sales involves a con­flict between the com­pensatory interests of the salesperson and the client's presumed desire to acquire the best available product at the lowest possible price.

[L[oyalty to a client is ... impaired when a lawyer can­not consider. recommend. or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests .... The critical questions are the likelihood that a conflict will eve ntuate and. if it does. whether it will materially interfere with the lawyer's independent professional judgment in considering a! tern a ti ves or foreclose cour'ses of action that reasonably should be pur­sued on behalf of the client. 7

The subjective standard articulated in the General Rule (i.e .. the lawyer's reasonable belief) is somewhat modi­fied by this Comment. In particular. the phrase "independent professional judgment" suggests that the "reasonable belief ' of a lawyer impli­cated in an apparent conflict of

interest may not be controlling in such instances absent some mechanism for peer review.

An objective test might even be for­mulated on the basis of the Com­ment 's language . One possible formulation: whether other lawyers (i.e .. those who lack the implicated lawyer's apparent conflict vis-a-vis the client in question) would. given the facts and circumstances of this particular client's case. offer a "sec­ond opinion" materially different from that offered by the lawyer implicated . If the answer to the first question is affirmative. the follow-up question would be : Whether that material difference could be causally related . with some degree of reasonableness. to the implicated lawyer's apparent conflict of interest.

The Comment on Loyalty does not offer any further guidance for han­dling this type of situation except to add : "Consideration should be given to whether the client wishes to accom­modate the other interest involved. " 8

This is. once again. a reference to the full disclosure and client consent requirements of 1.7 (b)(2).

An additional effect of the drafters ' emphasis upon this reference. besides the obvious protection of the client. is that any intramural peer review proc­ess that might be instituted along the lines suggested above may be held subject to the client's intervention. This possibility may protect the law­yer who has complied with 1.7 (b)(2). and proceeded to represent his client with any and all conflicts disclosed and intact. from becoming the target of a disciplinary procedure instigated in bad faith by other members of the Bar (for political reasons. professional jealousy. or as an indirect method of soliciting another attorney 's clients) .

I offer this observation as a her­meneutical reminder: it is important. when reading the Rules. to under­stand that such prescriptions are sub­ject to narrow as well as broad construal. Since the drafters went to great pains to qualify the " shall not" of Rule l . 7 with a fairly broad set of "unless(es)." lawyers would do well not to overemphasize the negative aspects of the Rule.

II. CONFLICTS OF INTEREST: PER­FECTION, PRESCRIPTION . OR PRESUMPTION?

What points of comparison may be identified between the Wilsons' "major shift in perception .. on the part of salespersons to the new Rules· care­fully qualified "shall not" for lawyers?

In fairness to the Wilsons, we may begin by acknowledging one unavoid­able distinction. What the Wilsons set out to accomplish in their book was to describe. through the use of candid

interviews with business people. cur­rent trends in sales practices. and then to explain those trends by identifying a probable cause (i.e .. the "major shift in perception ").9 The drafters of the new Rules, on the other hand. set about accomplishing a very different task : a prescriptive one (i.e .. rule-making).

Having acknowledged this differ­ence. is it plausible to conclude that what the Wilsons have described as identifiable behaviors in the sales community. explained in terms of a perceptual shift. reflects an internali­zation by salespeople of certain prescriptions that. previously . were presumed to be the sole province of the professions?

Furthermore. is it plausible to con­clude that the qualified prescriptions drafted for the new Rules of Profes­sional Conduct reflect a subtle percep­tual shift on the part of the legal profession that may evidence a weakening of the presumption that the rendering of advice (for pay) is

Simply, and cynically, put: the lawyer is free to sell his client up the river as long as he informs the client of his intentions beforehand.

ethically distinct from all methods of selling?

Rule 1. 7 (b)(l) significantly incor­porates the language of "adversarial " behavior into its pre-scription. as did the Wilsons in their de-scription. Also. the Wilsons built their explanation of the "new way to sell" around the salesperson· s intentional placement of her loyalty. The Comment to Rule 1.7 casts its prescriptive discussion of the conflicts of interest to which attorneys may be prone in a similar manner.

At this juncture. the typical objec­tion offered by many lawyers to the above comparisons owes much of its impetus to a suspicion (not empiri­cally ill·founded) that sales (the Wil­sons ' observations notwithstanding) inevitably involves a conflict between the compensatory interests of the

salesperson and the client's presumed desire to acquire the best available product at the lowest possible price. This "inevitability," it is argued, is due to the very nature of sales. What is a commission. after all. but an incentive offered to the salesperson. an incentive towards adversarial con­duct. "us" against "them"? Such incentives make sense in sales because sales. by its very nature. is adversarial.

The assumptions which underlie this argument are extremely difficult to parse out without waxing ontologi­cal. I sincerely doubt whether an ontology of sales has ever been attempted (and I decline the opportu­nity to do so here) . 1 would offer. instead. a reminder to those who find such appeals to Nature convincing (the purported Nature of sales as a human activity or even to the Human Nature of the salesperson in question) that the logic of all such arguments is suspect and vulnerable to the same challenges that were brought to bear against laws which excluded women from voting booths and blacks from education in white schools. Put a bit more bluntly : lawyerly objections to the above comparisons. and/or to the new Rules themselves. often repre­sent nothing more than a nostalgia for certain presumptions. amounting to professional snobbery. couched in moralistic language. They simply lack substance in logic and fail to account for the self-restraint actually exercised by many salespeople on behalf of their clients.

Ill. IS THIS A PROPOSAL? No. This is not a proposal that law­

yers who include financial planning as part of their estates. business law. or tax practice. begin offering financial products to their clients. Conflict of interest issues are not the only issues at play in this arena. and space does not permit a fuller treatment of all of the ethical. legal. and practical com­plexities involved .

The scope of this essay has been intentionally limited to an examina­tion of the highly nuanced ethic the new Rules present to the profession. posed against the background of an emerging area of legal practice that borders a world lawyers have tradi­tionally considered to be only margin­ally related to their own : planning/sales. It is hoped that the juxtaposition of these worlds. as medi­ated by the new Rules Of Professional Conduct. has helped shed some light on both professions. possibly engen­dering further dialogue within and between the two.

IV. A SHORT BIBLIOGRAPHY For those law students or practi­

tioners interested in learning more about the role of the lawyer in the practice of financial planning. the fol­lowing should prove an excellent introduction: Articles

a. Caroline Mure. Lawyers and Financial Planners Combining Their Interests: Planners are seeking dual­designations to make themselves more marketable to business

A BR~E~ Of LA.WYERS

T~ COUNTRY Lf\WYER

entrepreneurs who have a variety of needs, Trusts & Estates 31. (Decem­ber 1989).

b. William B. Shearer, Jr., Esq .. Can A Lawyer Be A Financial Planner?. 4 Tax Management Financial Plan­ning Journal 143 (May 3 , 1988).

REFERENCES

1. John Freeman Blake. J.D .. The Role OfThe Attorney In Financial Planning at 13 (Tax Management Inc .. 1990).

2 . Larry Wilson . Hersch Wilson. Changing The Game: The New Way To Sell at 65 (Simon & Schuster. First Fireside Edition. 1988).

3 . ld at 70. 4 . Blake. TheRoleOfTheAttorneyat

11 (cited in note 1 ). 5. Pennsylvania Rules of Professional

Conduct. Rule 1. 7 ( 1988). 6. Id (emphasis added). 7. Pennsylvania Rules of Professional

Conduct. Comment to Rule 1.7 (1988).

8. !d. 9 . Wilson. Changing The Game at 65

(cited in note 2).

Peter Matthews Wright, 4th Year Evening. Marketing Director for the Advanced Planning Resource Center. amemberoftheC. M. Financial Group of Pittsburgh . has never met a suc­cess ful attorney who wasn't also a good salesman.

'Tht CITY LAW/~R

.. . . . . . . . . . . . . . ....... ········ ........

Commonwealth v What does it mean to tell an

individual he has a right to a speedy trial or the police need a search war­rant before they can seize your prop­erty at home? An examination of a state Supreme Court decision may clarify the answer. The Pennsylvania Supreme Court recently had an opportunity to decide: whether a judi­cial de lay of 555 days between arrest and trial violated the 180 day speedy trial rule 1 and whether an arrest war­rant pe rmits a police officer to enter the reside nce of a third party without reasonable suspicion and seize evidence.

In Commonwealth v Smith. 524 Pa 72. 569 A 2d 337 (1990). appellant and an accomplice allegedly pistol whipped and robbed a garage atten­dant. On January 4. 1985. both were charged with robbery. possession of an instrument of crime and criminal conspiracy. At the jury trial. more than 18 months later on July 16, 1986, a jury convicted appellant and he was sentenced to prison.

Before appellant's indictment. a warrant was issued for his arrest. The warrant specified appellant's home address. The police instead went to the residence of a third party (appel­lant's sister). Upon their arrival. they asked where he was. The sister 's reply indicated that appellant was not there. but had gone to work. Not believing this to be true. the police decided to search the house. While venturing down the basement stairs. one of the officers knocked several coats off their hooks. The officers ' search for the appellant was futile . but nonetheless the trip proved fruit­ful. On the way up the stairs, the offi­cer bent over and picked up the coats in order to place them back on their hooks. One of the coats had an "unusual feel and weight suggesting a weapon". Sure enough, an exami­nation of the pocket revealed a pistol. The coat was identified by the sister as belonging to the appellant. which he later corroborated . The defendant was picked up later that day at his sis­ter's home. The police kept the pistol and the trial court admitted it as evi­dence of the armed robbery .

After the arrest. a series of delays affected the adjudicatory process. This included the unavailability of defense counsel and docket over­crowding. The backlog of cases and clogged court calendars led to many continuances requested by the Com­monwealth . In response to these delays, appellant filed a writ of habeas corpus citing violation of Rule 1100.2

The hearing judge denied the writ stating that the backlog in case load excused the delay. A second jurist was later assigned to hear the merits of the case. Prior to the final trial date. appellant filed a second petition for habeas corpus which was also denied.

Rule 1100 was drafted pursuant to the decision in Commonwealth v Hamilton. 3 The majority opinion in Smith, written by Justice Papadakos. cites Hamilton as prescribing a fixed maximum time (rule) intended to reduce the backlog of cases in our court system. The court in Hamilton determined an objective time period was necessary to promote diligent prosecution of criminal cases.

The appellant contended that the court could have adhered to the 180 day limit by reassigning the case earlier. The majority cites Common­wealth v Ma!:lfield 4 for the proposition that trial courts have the ultimate responsibility to calendar their cases. A strict adherence to Rule 1100 is not always possible . As the majority points out. as long as due diligence is exercised by the prosecution and the courts schedule cases at the earliest time. extensions beyond 180 days may be permitted. 5

In regard to the appellant's con­stitutional claim to a speedy trial, the majority held Barker v Wingo 6 con­trolling. Barker. provides inter alia, the applicable balancing test for deciding whether or not there has been a violation of the defendant's right to a speedy trial. This test encompasses four factors: the length of the delay. the reason for the delay. the defendant's assertion of his rights. and prejudice to the defendant. 7

In this case the length of the delay (one and one half years) in light of the reasons for the delay (a backlog of

Smith cases). was not persuasive enough for the court to reverse its position. The majority found the Commonwealth to have acted with due diligence and that the delay was beyond its control. In addition. there existed no evidence that the defendant was prejudiced. The majority. therefore . found no con­stitutional violation of appellant's right to a speedy trial. The dissent was silent on this issue .

It is unfortunate when a defen­dant's constitutional rights must take a back seat because of an over­crowded court system . This represents another example of how freedom is defined by economic con­siderations. When a city fails to pro­vide adequate funding for the maintenance of its judicial system , which includes, inter alia. sufficient court rooms. jurists. and attorneys. a compromise of one 's constitutional rights is inevitable. Be this as it may. judicial systems must strive to better utilize their available resources to minimize the impingement of con­stitutional rights. It is in this vein that the court attempts to strike a balance in Barker. With the increase in crime. especially in large urban areas a strict adherence to a fixed time period will not serve the e nds of justice . Requir­ing the courts to justify a delay beyond the applicable time period. and then applying a four part balanc­ing test. will act as a check for delayed cases which prejudice a person's defense. The position of the majority is realistic in light of the judicial case loads that burden our large cities today .

The appe llant next contested the fourth amendment challenge to the admissibility of the weapon. seized without a proper warrant and not in plain view of the officer. His argument hinges on two points. First. there was no reason for the police to be at the appellant's sister's home since it was his address that was specified on the arrest warrant. And second. there was a lack of probable cause to search the overcoat.

The standard which allows the police to make an arrest at an address different from the one listed on the

warrant is one of "reasonable belief." The majority cites Commonwealth v Stanley8 as representative of this proposition. In Stanley. an informant relayed to the police the possible whereabouts of the defendant.

In Smith, prior to appellant's arrest. the police questioned a relative. How­ever. nothing exists on the record indicating that they were directed to search for the defendant at the sister's home. This point makes Stanley dis­tinguishable from the instant case.

The majority conceded the Jack of reasonable belief on the part of the police. Nevertheless. the appellant's constitutional claim failed because the discrepancy was not properly challenged. 9 This lack of effort by counsel at the suppression hearing. trial or by post trial motions. thereby resulted in a waiver. This ruling is pursuant to the decision in Goggans. which held that an objection to the admission of the evidence must be made in a timely manner or else the right is waived .10

The seizure of the weapon was per­mitted by the court based primarily on the "stop and frisk" doctrine. "Frisking" involves a patting down of the suspect's outer clothing by police in order to detect concealed weapons, which may potentially be used to harm the officer. The majority found that it was unreasonable for the police to have further investigated the sus­picious nature of the overcoat. This suspicion was supported by the unusual weight and feel that the offi­cer discerned from picking up the coat. and the fact that a pistol was used in perpetration of the crime. The majority held that these events justi­fied an exception to the probable cause rule .

Chief Justice Nix. joined by Justice Zappala. dissented . They concluded that the warrantless search of appel­lant's coat was a constitutional viola­tion of appellant's right to be free from unreasonable search and seizure. This argument begins with the prem­ise that the police had no right to be at the sister's house when the weapon was discovered. The lack of a reasona­ble belief that appellant would be there supports this premise. The dis­sent finds the majority's application of the stop and frisk doctrine mis­placed. The stop and frisk doctrine had been applied to individuals on the street as well as to the detention of automobiles. However. here the dis­sent finds no articulable facts com­bined with any rational inferences that would justify such an intrusion by the police. Missing here was the suspicious behavior of the recipient of the search and threat to police safety. which normally predicated the appli­cation of the stop and frisk doctrine.

The dissent makes a strong argu­ment against the majority's applica­tion of the stop and frisk doctrine. Allowed to stand, this decision takes an unfounded leap in logic . An over­coat lying on the floor now becomes susceptible to a search, based on an officer's belief. supported by no reasonable inferences. The court's condoning this warrantless search by the police will not foster proper police procedures. In this case, absent is the urgency found in most stop and frisk cases. There is no reason to believe a warrant could not have been obtained prior to the search. This line of deduc­tion cannot be justified. as the majority holds. by the stop and frisk doctrine.

Edward Hastings Vallery is a sec­ond year evening student .

REFERENCES

I. Pa R Crim P 1100. 2. PaR CrimP 1 !OO(a)(2). If a defen­

dant is at liberty on bail. he is permitted 365 days . Pa R Crim P 1 !OO(a)(3).

3. 449 Pa 297.297 A 2d 127 (1972) . 4. 469 Pa 214, 364 A 2d 1345

(1976). 5. See 297 A 2d at 214. 6. 407 us 514 (1972). 7. The court has previously justi­

fied delays of: three and one half years Commonwealth v Cooley , 498 Pa 14. 398 A 2d 637 (1979) and four years Commonwealth v Glover. 500 Pa 524. 458 A 2d 935 (1983).

8. 498 Pa 326. 446 A 2d 583 ( 1982). 9. See Commonwealth v Gog­gans. 455 Pa 606. 317 A 2d 222 (1974).

!0. See Pa R Crim P 323 (b) .

Professor's Comments

I would only add one note to Edward Vallery's commentary on Commonwealth v Smith.

Rule 1100. The Pennsylvania Supreme Court adopted Rule 1100 in 1972 in the wake of the United States Supreme Court decision of Barker v Wingo . 407 US 514 (1972).

Barker elaborated upon the mean­ing of the Sixth Amendment guar­anty that criminal defendants have a right to a speedy trial. It established a four factor test to determine whether a prolonged delay in bring-

ing a defendant to trial violated the Sixth Amendment. The four Barker factors are ( 1) the length of the delay . (2) the reason for the delay. (3) the defendant's assertion of his right. and (4) prejudice to the defendant. In Barker. the Supreme Court declared that no one factor is dispositive and " courts must still engage in a difficult and sensitive balancing process. " 1

Under Barker, a violation of a defen­dant's right to a speedy trial requires the reversal of any conviction and the dismissal of the case.

The complexity of the balancing test approach. and the severe conse­quence of a violation were unpalata­ble. This approach to the speedy trial problem failed to give prosecutors and courts clear prospective guidance as to when a prosecution stood in jeop­ardy. And it encouraged frequent resort to litigation of speedy trial claims. It also had proved ineffective in moving the trial courts to eliminate their case backlogs.

The Pennsylvania Supreme Court wisely concluded that all of these problems might be avoided by a rule establishing a bright line test. It framed such a Rule in Rule 1100. As originally formulated. the Rule (after a brief phase-in period) established a 180 day benchmark for the com­mencement of criminal trials. 2 Trials commenced within 180 days after the filing of a written complaint were clearly brought within the permitted time. Trials commenced after the 180 days were presumptively untimely unless the delay was (a) attributable to the defendant or his counsel: or (b) due to circumstances beyond the con­trol of the Commonwealth despite the Commonwealth's exercise of due dili­gence. The Rule specifically provides for a hearing to allow the Common­wealth to show the justification for delays attributable to it.

Rule 1100 was no panacea . Experience showed that diiTerent con­siderations affected trial delays caused by the courts and those caused by the prosecution. The fore­most of those considerations was this: the courts have an inherent power to supervise their own conduct by administrative procedures and rules. The courts have no similar power to control the administrative practices of the District Attorneys ' offices. When trials are delayed because of problems of court administration . remedies are available short of dismissing the case. When they are delayed due to prob­lems in the District Attorneys· offices. the only practical leverage the courts possess is to dismiss the case .

The courts have recognized this difference between court-caused delay and prosecution-caused delay to a limited extent. In cases of

prosecution-caused delay. the courts have required particular proof of due diligence. They have shown little tolerance for clerical errors or failure to document the pursuit of unavaila­ble witnesses. 3 Such failures have led to dismissals of cases without proof of actual prejudice to the defendants.

However. in cases of court-caused delay. the appellate courts have accepted as justifiable delays due to docket crowding without requiring efforts to reassign cases to other judges for an earlier trial. 4 And in Commonwealth v Africa. 524 Pa 18. 569 A 2d 920 ( 1990). the Supreme Court even accepted as justifiable under Rule 1100 the repeated reas­signment of a delayed case to the bot­tom of the assigned judge's trial list even though this resulted in a delay of almost two years beyond the Rule 1100 limit. In such cases the courts have vindicated the defendant's con­stitutional right to a speedy trial by use of the multi-factor Barker analysis.

I believe the recently-emerged dis­tinction between prosecution-caused delay and court-caused delay is justi­fied. But the apparent withdrawal of the mechanical Rule 1100 approach from cases of court-caused delay poses a challenge to the courts to increase their efforts to reduce docket backlogs through improvements in judicial administration.

NOTES

1. Barker. 407 US at 532. 533. 2. The benchmark period has since

been extended to 365 days. Rule 1100 (a) (2): (a) (3): (g).

3. E.g. Commonwealth v Hadfield. 344 Pa Super 4 70. 496 A 2d 1201 (1985)(delay due to prose­cution's misunderstanding of basis of trial court order commit­ting defendant to psychiatric facility): Commonwealth v McCutcheon. 339 Pa Super 8. 488 A 2d 281 (1985)(delay caused by inadvertent misfiling of papers): Commonwealth v Bennett. 320 Pa Super 150. 466 A 2d 1362 (1984)(delay due to lost file); See Commonwealth v Schuster. 288 Pa Super 310,431 A 2d 1063 (1981)(delay due to witness absence not excusable without proof of prosecutor's dili­gence): Commonwealth v Ehredt. 485 Pa Super 191.401 A 2d 358 ( 1979)(same).

4. Commonwealth v Smith, 524 Pa 72. 569 A 2d 337 (1990).

Kenneth L. Hirsch is a Professor of Criminal Law at the Duquesne University School of Law.

In Search of the Limits of Terry

The Case of S111ith v Ohio

Writing for the majority in Adams v Williams. 407 US 143. 154 (1972). Justice Rehnquist observed that:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.

Such an observation was in accord with the Court's earlier decision in Terry v Ohio. 392 US 1 ( 1965). Terry established a reasonable cause stan­dard for the admissibility of evidence obtained from a stop and frisk. Smith declined to extend this standard to a non-protective stop and frisk search of a defendant's package in a nar­cotics case. Thus. the Court indicated in Smith v Ohio. __ US __ , 110 S Ct 1288 ( 1990). that there are times when an officer will be forced to "shrug."

This article seeks to examine Smith in light of Terry and later cases which have defined the scope of Terry's reasonableness standard. Such is necessary in order to understand the problems with Smith. and to assess its impact upon the law enforcement community's ability to admit evidence.

Two officers employed by the Ash­land Police Department. who were driving through the streets of an area in which they were preparing for a gambling raid. observed Smith and a companion exit the home of a known felon. Wilma Balducci. The officers knew that a prior warrant to search the home of Balducci had produced drug paraphernalia. Additionally. one of the officers had received a tip that Balducci had been dealing in drugs. and that neighbors had complained of heavy traffic in and out of the house. Smith carried a closed grocery bag which he kept level at his side. At trial. one of the officers testified that

he had been involved in "prior inves­tigations and arrests in which the sus­pects carried drugs or narcotics in this fashion." 1

Thus suspicious of Smith. the offlcers approached him. When they identified themselves, Smith cursed. threw the bag on the hood of the car and backed away. After Smith failed to answer a question as to the bag's contents, an officer opened it and uncovered a scale, two grams of cocaine and a coke seal. 2 A motion to suppress was overruled. The Sixth Circuit Court of Appeals, and the Ohio Supreme Court affirmed. The United States Supreme Court reversed. 3

In reversing the decision of the Ohio Supreme Court. the United States Supreme Court rejected three argu­ments made by the defense. These arguments were that the actions of the Ashland officers were justified under a reasonable cause analysis. that the search of the bag was justi­fied as a search incident to arrest. and that the bag was abandoned.•

First, the Court declined to apply the reasonable cause test which was first enunciated in Terry.

In Terry. a police officer observed two men alternately strolling down the street and looking into the same store a total of 24 times. The officer suspected them of "casing a job. a stick-up." and stopped them after they joined a third man. After iden­tifying himself as a police officer and asking their names, they were patted down. The officer felt a gun in the breast pocket of Terry's overcoat which he was unable to remove. The officer ordered the three men into the store, where he removed Terry's over­coat and recovered a revolver. Terry was then arrested and charged with carrying a concealed weapon. Terry's motion to suppress the revolver was denied by the trial court. He was con­victed of the charge. The Supreme Court affirmed the conviction. 5

The Court held that:

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. where in the course of inves­tigating this behavior he identifies himself as a police officer and makes reasonable inquiries. and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety he is entitled for the protection of himself and others in the area to con­duct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. 6

While the holding in Terry is limited to protective searches. subse­quent cases have extended its breadth beyond these boundaries on the basis of Justice Warren's state­ment that. "there is no ready test for determining reasonableness other than by balancing the need to search lor seize] against the invasion which the search ]or seizure] entails. " 7

The Smith Court. however. declined to extend the Terry ratio­nale. In a per curiam opinion the Court reasoned that:

Although the Fourth Amend­ment may permit detention of property for a brief period on the basis of "reasonable articulable suspicion" that it contains contraband or evidence of criminal activity, the amendment proscribes­except in certain well-defined circumstances-search of the property unless accompanied pursuant to judicial warrant issued upon probable cause. 8

In deciding upon the applicability of Terry. the Smith Court distin­guished United States v Place. 462 US 702 (1983). Place is one in a line of cases which had extended the reasonableness test to cases in which the issue of a protective search is not present.

In Place. law enforcement officers became suspicious of a passenger's behavior in Miami International Air­port. The suspect was stopped and consented to a search of his luggage. However. since the suspect's f1ight was about to depart a search was not conducted. The Miami officers noti­fied DEA officials in New York. Upon

arrival, he was again stopped. This time the suspect did not consent to a search of his luggage. The officers then seized the luggage and had a dog sniff it before obtaining a warrant. Ninety minutes had elapsed. Upon opening the luggage cocaine was dis­covered. The issue of the admissabil­ity of the evidence was considered on appeal by the Supreme Court. Justice O'Connor writing for the majority held that, "Terry and its progeny would permit the officer to detain the luggage brief1y to investigate the cir­cumstances that aroused his suspi­cion provided that the investigative detention is properly limited in scope . " 9 The Place Court was cog­nizant of the importance of law enforcement's efforts in narcotics cases. The rationale for the holding was that "the public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit." 10 Despite the expansion of Terry's reasonable cause standard to justify the seizure of the luggage of suspected drug tra!Tickers in airports. the conviction in this case was over­turned due to the excessive length of the stop (ninety minutes) .11

The Smith Court's rationale for dis­tinguishing Place was that the issue there was only the propriety of the detention of the luggage. Place, should not be read to justify the search of the detained luggage. Such a search may only be justified in "cer­tain well-defined circumstances.·· 12

Second. the Court looked to Sibron v New York. 392 US 40 ( 1968). to sup­port its conclusion that a search could not be justified as being incident to arrest where that search was con­ducted prior to arrest. Sibron . which was a companion case to Terry , involved two cases which were con­solidated. In the first case. Sibron was observed over an eight hour period talking to several known drug addicts. Nothing was seen passing between Sibron and those to whom he was talking. An officer approached Sibron in a restaurant and asked him to step outside. Once outside Sibron reached into his pocket. The officer followed Sibron's hand into the pocket and recovered heroin . The Supreme Court however. held that the evidence was not admissible since the officer lacked probable cause to arrest Sibron. The Court also noted that since the officer's testimony did not indicate any apprehension of dan­ger. and because he was unable to point to reasonable articulable facts to justify a search. Terry was not con­trolling.13

In the second case. an off duty offi­cer heard a noise at his door. Shortly thereafter he noticed two men tiptoe­ing through the hall. He had never seen the two during his twelve years

in the building. He called the police and entered the hall to investigate. As the door slammed behind Officer Lasky. the men f1ed. He chased them and was able to catch one of the sus­pects. After the suspect failed to offer a convincing explanation, he was frisked . An object was felt which Lasky suspected was a knife . It was actually an opaque envelope contain­ing burglar's tools. The Court indi­cated that reasonable cause probably existed but chose to uphold the admissability of the tools as a search incident to a lawful arrest. The Court reasoned that when the suspect was caught, his freedom had been cur­tailed to an extent sufficient to consti­tute an arrest.14

The Court also rejected the argu­ment that the bag had been aban­doned.15

Justice Marshall dissented because of his belief that. "summary disposi­tions deprive litigants of a fair oppor­tunity to be heard on the merits and significantly increase the risk of an erroneous decision." 16

Smith is significant in that prior to this decision the general trend was in favor of broadening the aplicability of the reasonable suspicion test.

In one such case. United States v Brignoni-Ponce. 422 US 873 (1975). the Court indicated its willingness to admit evidence which resulted from a stop based upon a reasonable articulable facts not amounting to probable cause where the discovered evidence was neither a weapon or dis­covered in the course of a frisk for weapons. In that case. two officers stopped a car unlawfully transporting illegal aliens. Justice Powell declined to pronounce such a stop unconstitu­tional when based on reasonable cause. He noted. "the governmental interest at stake. the minimal intru­sion of a brief stop. and the absence of practical alternatives for policing the border," and held that. "when an officer's observations lead him reasonably to suspect that a particu­lar vehicle may contain aliens who are illegally in the country. he may stop the car brief1y and investigate the circumstances that provoke suspi­cion.· ' 17 Because the stop in this case was based merely on the officers· observation that the occcupants of the car were of Mexican ancestry. the Court reasoned that reasonable cause was not established and reversed the conviction. 18 Nonetheless. this case is important in that it recognized that interests other than the protection from immediate injury may justify imposition of the reasonableness standard articulated in Terry.

Additionally , the Court has applied the standard from Terry to searches of an area beyond the suspect's per­son. In Michigan v Long, 463 US

1032 (1983). two olficers stopped to investigate a car which swerved into a ditch after travelling eratically and at an excessive speed . As Long began to walk toward the open car door the officers saw a hunting knife on the 11oorboard. The driver was then pat down. An officer shined a 11ashlight into the car and saw something pro­truding from under an armrest. The armrest was lifted exposing mari ­juana. Justice O'Connor writing for the Court stated. "Contrary to Long's view. Terry need not be read as restricting the preventative search to the person of the detained suspect. " 19

Another exception to the probable cause requirement in favor of the Terry approach has been made in the case of schools. "The warrant require­ment is unsuited to the school environment: requiring a teac he r to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of swift and informal .disciplinary procedures needed in the schools." New Jersey v TLO. 469 US 325. 340 (1985). In TLO a girl was discovered smoking in the restroom. She was referred to an assistant prin­cipal. After she denied smoking. he opened her purse and discovered cigarettes as we ll as rolling paper (fre­quently used to make marijuana cigarettes) and other evidence that the girl was involved in the sale of nar­cotics. She was adjudged delinquent after denial of a motion to suppress the evidence 20 The United States Supreme Court upheld the validity of the search. Justice White writing for the Court reasoned that. "Where a careful balanci ng of governmental and private inte rests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause. we have not hesitated to adopt such a standard. " 21

Thus. the decision in Smith seems surprising in light of Terry, and its progeny . The officers acted on a reasonable articulated suspicion. The Ohio Supreme Court majority relied on the testimony of the officers that. based on their prior experience. Smith's behavior was consistent with the possession of drugs .22 A common sense survey of the facts in the pres­ent case indicates that Smith's behavior in throwing the bag and c ursing after being approached by an officer is inconsistent with having a bag containing groceries.

One may wonder how the "certain well defined cases" referred to in the majority opinion differ from Smith. As recently as TLO the Court has indi­cated that reasonable cause is the appropriate standard when applica­tion of that standard would best serve

the public interest. In addition to the school environment used to justify the reasonableness standard in TLO. the test has also been applied in the context of stemming illegal immigra­tion (Brignoni Ponce) and drugs (Place). Given the rece nt realization of the detriment caused to society by the illegal trafficking of narcotics. it is surprising that the Court has failed to apply Place. The fact that the evi­dence was found in a bag should make little difference. Long as previ­ously noted involved a warrantless search of an automobile. TLO involved a purse and Place involved luggage. Similarly, the fact that evi­dence was involved rather than a weapon is not a significant distinc­tion. The object of the search in TLO at its inception was cigarettes. The search conducted was not even remotely protective.

An additional criticism of Smith is that the Court in essence denied the officers any practical alternative in the face of such obvious suspicious behavior. If the officers chose to detain the bag and wait for a warrant prior to searching it. there is a possi­bility that the evidence would have been suppressed anyway. Such a procedure would necessarily increase the length of time involved (since obtaining a warrant would take time). It would thus be vulnerable to attack on the basis of the brevity require­ment imposed in Place23

Ultimately the Smith decision may well limit law enforcement efforts in the war on drugs and in other con­texts as well. Several observations about the current state of the law should be mentioned.

First, there is no reason to expect that the Smith decision is likely to jeopardize the admission of weapons which were seized as a result of a pro­tective search of either the suspect's outer garments or the area within his immediate control. when the suspect is stopped on the basis of reasonable articulable facts. The protective search of the suspect's outer gar­ments is at the very heart of the Terry decision. and its extension to an area of immediate control (Long) has not been seriously called into question in this decision or in any other recent case. Indeed the per curiam opinion in Smith stresses that "No contention has been raised in this case that the officer's reaching for the bag involved a self-protective action necessary for the officer's safety. " 24

Second. the facts of the Smith case are limited so as to only control searches which are conducted in the course of an investigative stop. The stop itself was not called into ques­tion.25 If a warrant is promptly obtained. a brief seizure of the con­tainer may be justified. The permis-

sible length of time has not yet been determined. However. Place makes it clear that ninety minutes would be too long. The length of time which may permissibly elapse is probably very short. Justice Powe ll noted in his discussion of Brignoni -Ponce that. "the intrusion is modest. The govern­ment tells us that a stop by a roving patrol usually consumes no more than a minute ."26

Finally . in rejecting the search inci­dent to arrest argument. the Court makes clear that evidence found prior to an actual arrest may not be used to justify that arrest. if the search (prior to arrest) leading to the seizure of evidence is not reasonable. 27

The ultimate determination of when a Terry standard is applicable will need to be made by the courts on a case by case basis until the Supreme Court articulates a clear rule. Departures from those cases recognizing reasonableness will be less likely to lead to admissibility . As a result, police involved in situations where a non-protective stop and frisk may have forme rly seemed appropri­ate may increasingly feel the urge to shrug.

REFERENCES

1. State v Smith. 544 NE 2d 239. 245 (Ohio 1989) .

2. Id at 240. 3. Smith. 110 S Ct at 1289. 4. 1d at 1290. 5. Terry. 392 US at 4-8. 6. Id at 30. 7. ld at 21 . 8 . Smith. 110 S Ct at 1289 (inter­

nal citations omitted). 9 . Place. 462 US at 706.

10. Id at 703 quoting United States v . Mendenhall 446 US 544 (Powell J. I980) .

11. Id at 709 . 12. Smith. 110 S Ct at 1289. 13. Sibron. 392 US at 62-64. 14. Id at 66. 15. Smith. 110 S Ct at 1290.) 16. Id at 1290 (Marshall J. Dis-

senting). 17. Brignoni -Ponce. 422 US at 882. 18. ld at 885-86. 19. Long. 463 US at 1047. 20 . TLO. 469 US 327-33. 21. Idat34l. 22. State v Smith. 544 NE 2d at 245. 23 . See Place. 462 US at 709-10. 24 . Smith. 110 S Ct at 1289. 25. See Smith. generally. 26 . Brigoni-Ponce. 422 US at 880. 27. Smith. 110 S Ct at 1290.

Mark E. Milsop is a second year day student.

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