Illinois Drug Education Alliance - DRUG DEALER LIABILITY ACT, by Dan Bent, Esq. Winter, 1993

Why shouldn't illegal drug dealers pay for the harm they cause? . . . In America, sellers of legitimate products that are defective can be forced to pay for the injuries they cause. Courts force such payments regularly in civil suits brought by those injured, or their parents, against those who profited from the distribution of the harmful product. High punitive damages are often imposed by courts and juries in civil judgments against product distributors who sell their product even though they know of the potential harm. Third parties, such as insurance companies and hospitals, can recover their costs of treatment either directly or indirectly from those responsible for harmful products.

Doesn't it strike you as "out of whack" that millions of dollars are paid by legitimate business that negligently produce or distribute harmful products, yet personal injury suits against dealers of the ultimate harmful product, illegal drugs, are virtually unheard of? . . . If so, the Drug Dealer Liability Act should get your active support in your state. It has already passed in Michigan, Illinois, Hawaii, Oklahoma, and Arkansas and is pending in California, New York, Pennsylvania, and Florida. The Act fills a vacuum in the laws against illegal drug trade. It imposes civil liability on anyone who is intentionally involved in trafficking illegal drugs.

Who can recover damages under the Drug Dealer Liability Act? . . . Parents, hospitals, employers, insurance companies, county health departments and others who suffer a financial burden as a result of illegal drug sales in their community. All can recover damages, including punitive damages, from any drug dealer in that community. For example, let's say "Bob" is a cocaine dealer who also has a successful dry cleaning business that is independent of his drug trafficking. Even if Bob gets arrested and convicted of drug dealing, his dry cleaning business cannot be forfeited, since it is neither proceeds of, nor used to facilitate Bob's drug deals. However, a parent of a teen in drug treatment in Bob's community could bring suit against Bob to pay for the treatment. Bob could even be forced by the court to sell his business to pay for drug treatment for kids in his community. Moreover, county hospitals that care for drug babies at public expense could bring suits against drug dealers who may have assets, including wages that can be garnished.

"Wait!" you say. Aren't most drug dealers "street dealers" who are often inner city people without bank accounts, legitimate businesses or garnisheable wages?. . . Many are . . .but most are not. Let's look at the statistics.

A national survey of household drug use by the National Institute on Drug Abuse showed that 67% of all drug users are employed. Workplace dealers may be the majority of retail dealers. Moreover, this group may be deterred by threat of civilsuit in which they could lose their savings, retirement funds, home and other assets and have their wages garnished.

In fact, experts on drugs in the workplace acknowledge that the major problem is the "accommodation dealer," the employee who happens to have a "source" and accommodates his or her friends by making drug purchases as a middle man.

But is it reasonable to expect that an accommodation dealer would be deterred by a potential civil suit, when they aren't being deterred by the possibility of criminal charges? . . . The criminal prosecution of workplace dealers, particularly accommodation dealers, is virtually non-existent. Workplaces are difficult, if not impossible, for undercover operations to penetrate. Management is loath to call the police and publicize their company's drug problem. Workplace dealers feel relatively safe dealing drugs to fellow employees whom they have known for years. Furthermore, prosecutors are too busy with wholesale dealers to focus much attention on retail dealers who don't strike the community's attention.

Does the Drug Dealer Liability Act have a potential for significant impact? . . . You bet it does. Markets respond to economic pressure. When some retail drug dealers, even accommodation dealers, have to give up their assets to pay for drug treatment facilities, many will be less likely to enter the market. With fewer retailers promoting drugs to prospective customers, there will be fewer customers and fewer retail sales. When retail sales decrease, markets decline.

We have been concentrating on the major dealers; now it is time to confront the retail dealers. What's more, the Drug Dealer Liability Act doesn't require more prosecutors and police officers to have its impact.

Peter Bensinger, a former head of the Federal Drug Enforcement Administration, has said that the Drug Dealer Liability Act has the potential to have as much impact as the major drug forfeiture laws passed by Congress in the 1970s. It has been adopted by the American Legislative Exchange Council, an organization of over 2,500 legislators nationwide, as its model legislation.