Act Explained

Act Explained:

THE DRUG DEALER LIABILITY ACT - Imposing Products Liability for Illegal Drugs, By Daniel Bent and Sharon Burnham

The Drug Dealer Liability Act has been adopted by the American Legislative Exchange Council1 as model legislation and is published in its 1993-94 Sourcebook of Model Legislation. When enacted by a state legislature, the Act will establish a cause of action for those injured by illegal drug use against persons who participate in the marketing of illegal drugs. The Act has three goals: (1) to allow all persons and companies harmed by illegal drugs to bring suit for damages against all persons who are part of the drug distribution network within their "target community"; (2) to deter people from becoming part of the drug distribution network; and (3) to encourage users to seek treatment and encourage companies to provide treatment, knowing that reimbursement may be possible from drug dealers themselves.

The Model Act is based on two central principles. First, a defendant's liability is based on entering the market, i.e., joining the drug distribution network in any capacity, not just on making any particular sale to any particular person. The Model Act puts all drug dealers and their associates on notice that they will be personally liable for the harm caused by illegal drugs. Second, the focus of the Model Act is on the ultimate harm to the user and others, not on determining how that harm was caused. This article explains the rationale and legal principles underlying the Act.

I. Our Society Has Been Devastated by the Marketing of Illegal Drugs

One of the major health and social problems confronting this country is the widespread distribution of illegal drugs. Yet the civil justice system, one of the principal mechanisms available for deterring and compensating for wrongful behavior which causes injuries, has not addressed the drug problem.2 This is particularly startling since the counterpart of the civil justice system, the criminal justice system, is giving the problem its primary attention.

The civil liability system serves two primary goals: compensation and deterrence. If one person wrongfully injures another, then the person causing the injury ordinarily is expected to compensate the injured party for his or her monetary losses, physical injury, and other losses. Such compensation not only makes the injured party whole, but serves as a deterrent to similar conduct by others.

Why not apply the same principles to drug dealers who injure others through the marketing and promotion of illegal drugs? Every year millions of persons are victimized by illegal drugs. These victims include drug babies, parents of adolescent drug users, health insurers who pay for drug treatment, society in general, and the users themselves, particularly child and adolescent users.

Every year hundreds of millions of dollars are spent on drug rehabilitation.3 For example, the 1989 National Drug and Alcoholism Treatment Unit Survey found that the combined funds received by over 4,400 drug treatment facilities, from both public and private sources, exceeded $1.7 billion for the fiscal year ending September 30, 1989.4

Countless more billions are lost through poor productivity, accidents, lost educational and career potential, and the other disruptions that follow drug users and their families. In 1985, for example, illegal drug use put an estimated $41 billion burden on the economy.5 Lost output resulting from reduced productivity, lost work days, and losses due to premature death accounted for $8.5 billion. Other costs indirectly related to treatment are lost productivity included the direct cost of crime to the public ($11 billion), social welfare program administration ($6 million), property destruction ($759 million), the value of productivity losses to victims of crime ($842 million), and the loss of productivity because individuals engage in crime careers rather than legitimate ones ($14 billion). In 1988, the U.S. Chamber of Commerce estimated that American businesses were losing over $100 billion annually in diminished productivity, increased absenteeism, workplace accidents, medical bills, and theft by employees.6 General Motors Corporation alone has estimated it loses $1 billion annually from lowered job productivity and job-related accidents caused by substance abuse.7

These direct and indirect costs associated with the illegal drug market should be recoverable. Just as an insurance company that provides for treatment of a person injured in an automobile accident can recover the cost from the defendant tort-feasor, insurance companies and others should be entitled to recover drug rehabilita­tion costs from those in the community who participate in the marketing of illegal drugs. Just as parents can recover for the loss of a child in an accident, parents should be entitled to recover for their emotional and financial loss when they lose a child to drugs. Just as a person can recover for his or her injuries, even if partially responsible for these injuries, a person should be entitled to recover his or her losses after breaking the bonds of drug use.

II. The Existing Civil Remedies for Victims of Drugs Are Ineffective Given the Clandestine Nature of the Drug Market

Under existing tort law, a person negligently harmed by a legal product can bring an action against all those in the chain of distribution. In legal markets the chain of distribution of a harmful product is relatively easy to trace. Records detailing each transaction in bringing a product to the market are kept at all levels of the distribution chain. Civil discovery provides access to the records, enabling an injured person to recover against all those who may be responsible.

Theoretically, a person could bring an action against a dealer or dealers who sold drugs to that person or that person's spouse or child. For example, the Restatement of Torts sets out a cause of action against a person who "unlawfully sells or otherwise supplies to one spouse a habit-forming drug with knowledge that it will be used in a way that will cause harm to any of the legally protected marital interests of the other spouse." Restatement (Second) of Torts § 696. Similarly, a parent has a cause of action against a person who sells a habit-forming drug to a minor child. Restatement (Second) of Torts § 705.

The cases that formed the basis for these two causes of action were all actions against dispensers of drugs that were legal at that time.8 Interestingly, these causes of action are not derivative of an action by the drug-using spouse or parent, unlike other loss-of-consortium based actions. The injured party can recover even if the drug user could not recover by reason of consent, contributory negligence, or other defenses. Although the Restatement provides no explanation, one could argue that courts recognized the especially pernicious effect of drugs -- even legal drugs -- and were willing to extend liability under these circumstances. A logical extension would be to extend liability to all those injured by the sale of illegal drugs.

Following this approach, the State of Washington has enacted a cause of action by a parent for damages resulting from the sale or transfer of a controlled substance to a minor child. See Wash. Rev. Code Ann. § 69.50.414. See also S.D. Codified Laws 34-20B-50. Thus, if the specific individual who distributed drugs to the child could be identified, the parent could bring an action against that individual.

In reality, however, few such actions are ever brought under existing law. For example, no one has brought a reported case under the Washington statute, although it was passed in 1986.

First, the user of an illegal drug is often unwilling or unable to identify the person or persons who distributed the drugs. Often the distributors of drugs are known only by their first names. A person may be unwilling to identify known dealers for fear of retribution or a mistaken concern for the dealer. A parent or spouse in particular may have difficulty even convincing the drug user to reveal his or her source. Thus, a person who may be willing to bring an action against a drug dealer may not be able to learn which drug dealer or dealers to sue.

Furthermore, an action under current law would likely involve only the lower-level dealers. The clandestine nature of the illegal drug market makes the chain of distribution nearly impossible to determine. In fact, dealers expend considerable effort during each transaction in the chain to establish secrecy. Retail-level dealers typically don't disclose the identity of their own immediate source of supply to their user-customers. If the source were disclosed, the dealer runs the risk that the user will circumvent them in hopes of getting a better price. In addition, dealers maintain secrecy to make law enforcement efforts less likely to penetrate and discover the identity of all those in the market. Receipts are not produced at the time of transactions. When records are kept, they are maintained primarily by those concerned about their own sales and profits. These records are often in code and not shared with others. In sum, the very nature of the illegal drug market prevents a person from suing all dealers in the chain of distribution responsible for the delivery of drugs. At best only the retail level dealers could be reached. Thus, the potential pool of defendants for an individual plaintiff would be too small to make a civil lawsuit economically feasible.

Attempts by courts to use the criminal restitution provisions to compensate victims have been thwarted. For example, a federal district court judge in New York ordered several drug conspirators to pay restitution to a novel class of victims -- persons injured by narcotics in the 1980's. Restitution funds were to be used for their "medical treatment, rehabilitation and restitution" pursuant to 18 U.S.C. § 3579(b)(2) (1982), the Victim and Witness Protection Act of 1982. The defendants had been convicted of participation in a massive conspiracy to import and distribute large amounts of heroin. Because of the scale of drugs involved, the heroin was necessarily distributed down many links in the chain of distribution, no doubt through various communities throughout the country.

On appeal, however, the Second Circuit rejected this broad interpretation of the term "victim" and reversed the District Court's order. In United States v. Casamento, 887 F.2d 1141 (2nd Cir. 1989), the Second Circuit held that the Order was improper because the trial court "identified no individual victims who suffered injury attributable to the appellants' crimes," as required by the statute. Id. at 1178. The Appellate Court evidently felt compelled to reach this result, noting that "[w]hile the effect of our reversal of the district court's restitution order will deprive unidentified drug users of a modicum of care which they might otherwise receive, Congress has enacted no law authorizing such an order. . . ." Id.

Although the result is regrettable, the Second Circuit's reasoning is correct: the clandestine nature of the drug market prevents identifying individual victims. The specific victims of a dealer, distributor, or especially an importer are virtually impossible to determine. In fact, the Second Circuit itself recognized that "the district court could not have been expected to identify any individual victims who suffered a loss as a result of the offenses committed by these appellants." Id. (emphasis added). The secretive nature of the drug market makes it necessary that drug dealers be made civilly liable through legislation designed to overcome it. The Act provides the impetus for states to enact legislation that will account for the nature of the drug market so that persons harmed by the marketing of illegal drugs can be compensated and persons who are considering entering the drug market are faced with the threat of liability.

III. The Civil Justice System Can Deter Some Who Are Now Undeterred by the Criminal Justice System

The civil justice system has demonstrated repeatedly its powerful ability to deter and modify individual behavior. For example, in 1984 the New Jersey Supreme Court ruled in Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (N.J. 1984), that a social host could be liable for serving alcohol to a guest who then caused an automobile accident while intoxicated. That well publicized decision in New Jersey is widely credited with affecting the alcohol serving practice of social hosts through­out the United States. If a segment of the drug market could be identified that might be deterred by civil liability, then crafting a remedy that would create this liability might be effective.

The drug market in any community consists of a number of people at different levels of distribution. This network is illustrated in Figure 1 by a hypothetical drug distribution pyramid:

Figure 1 - Drug Distribution Pyramid

Using cocaine as an example,9 at the top of the pyramid are the cartels and manufacturers, then the multi-kilo importers, then multi-kilo dealers, the pound dealers, ounce dealers, and the gram dealers. The entire distribution network operates in series to provide small quantities to the ultimate users. In practice, of course, these levels are not so clearly defined. Individuals who work primarily at one level will often venture into the next level up or down as the opportunity presents itself.

The criminal justice system tends to target those dealers who are high in the drug distribution pyramid. Cartel members, manufacturers, importers, and dealers of substantial quantities of drugs in the community are the primary focus of law enforcement attention. Media attention focuses on million-dollar drug busts, not $100 purchases. Those at higher levels individually do more damage because they deal in large quantities. However, the drug market is a market system in which each level plays a critical part.

Comparatively little effort is expended by the criminal justice system to deter the small-time dealers, partly because there are so many of them. In addition, small-time dealers, considered individually, appear to have such a minor impact on society as a whole. In fact, however, the interface between these lower level dealers and the ultimate user, through retail sales, is the fuel that runs the drug market system and that allows the higher level dealers to prosper. Indeed, as in any market, the retail level can be characterized as the most critical. Without retail sales, the remaining market collapses.

From this perspective, the most important contributors to perpetuating the drug problem are the bottom-level gram distributors. They are the promoters and retailers. Because gram level dealers are often users who start dealing in small quantities to cover the cost of their own use, they are also the ones most likely to introduce non-users to drugs and to make drugs available to beginning users. The majority of drug dealers sell primarily to regular customers whom they know. For example, friends and coworkers are the most common sources of supply for cocaine users.10

The person who introduces a beginner to drugs is rarely, if ever, a hard core addict. Hard-core addicts are not model sales people. They are too concerned about their own personal need for drugs to provide others with drugs. Additionally, experimenters or casual users might be wary of using drugs if they were faced with a hard-core addict as an advertisement for drug use. Casual and regular users may still have a fully functioning life, with a family and a job. Because they still gain pleasure from the drug, rather than craving it uncontrollably, non-addicts tend to be more capable of discussing and recommending drug use to their friends. The pleasure touted by a person in the casual-user stage, before addiction sets in, is often what influences the beginner.11 Thus, the casual user may become a gram-level dealer after recommending the drug to others.

Figure 2 - Cocaine Distribution Market Depicting the Impact of a Decrease in Retail Dealers

If just this one level of dealer could be deterred to some extent, the immediate and long-term impact could be significant. Figure 2 shows the effect on the distribution pyramid if some number of current gram-level dealers were deterred:

In Figure 2,12 area A depicts the number of gram distributors in the retail market that have been deterred. Area B shows the impact on the number of users as a result of the decrease in the number of retailers. Area C represents the portion of the manufacturing and wholesale market that will collapse as a result of the decrease in the number of retail dealers. Thus, not only are users deprived of additional sources, but that segment of the upper level production and distribution network supporting those now deterred gram-level dealers would necessarily collapse as well. Furthermore, the retail dealers who would be deterred, represented by area A, would not be promoting their drugs to new users.

The existing threat of imprisonment is not a significant deterrent to gram-level dealers. Existing law enforcement resources are directed primarily at upper level dealers. Many retail dealers conduct their transactions in places, such as their workplaces, in which it is difficult for law enforcement to conduct investigations. Therefore, retail dealers, other than street dealers, know they are unlikely even to get caught, much less prosecuted and sentenced to imprisonment.

Dealers at all levels are not being dealt with as severely as one would tend to believe. Even higher-level drug dealers, once convicted, are not always sent to prison as a result of state prosecutions, and once imprisoned they do not necessarily spend much time behind bars.

The New Jersey Department of Law and Public Safety conducted a study in 1986 of the lengths of sentences given to persons convicted of crimes in that state. The study found that during the last six months of 1985, over 150 drug dealers who were convicted in New Jersey qualified for the maximum sentence of life imprisonment. Not one of those 150 convicted dealers was sentenced to life imprisonment. In fact, the study found that less than half of them even received a prison term.13

Another survey, conducted by the Justice Department, studied dispositions of arrests in selected states in 1987. In seven states, 79 percent of those arrested for felonious drug offenses were prosecuted, 57 percent were convicted, 40 percent were sentenced to incarceration, and 11 percent were actually sent to prison.14.

In twelve states, of those who were convicted of drug offenses, 57 percent were sentenced to jail, 23 percent to prison, 14 percent to probation, and 7 percent received other sentences.15 In sum, the criminal justice system does not even impose prison sentences for all the major drug dealers who are identified, investigated, prosecuted, and convicted.

A prison sentence is even less likely for gram-level dealers, assuming they are convicted, since law enforcement must contend with so many larger quantity dealers. People now dealing at the gram level understand that they are not likely to receive a prison sentence and therefore many have note been deterred. Thus, if some form of viable civil remedy could be imposed, in addition to criminal sanctions, it could have a greater potential for deterrence than the criminal justice system alone at this level of the "pyramid."

The lure of money is a primary reason many people start and continue dealing. Therefore, a realistic possibility of considerable economic loss through civil liability versus relatively small economic gain from that first small transaction can act as a deterrent. To many people, the prospect of having customers -- or their families, employers, or insurers -- turn on them to recover for their own injury in the future may be a more powerful disincentive to their first step into drug distribution than now comes from the criminal justice system. While no tool would completely deter every gram-level dealer, perhaps a significant number could be deterred -- specifically those who have a job, a car, a home, an inheritance, or other assets to lose.

Those who have something to lose are unlikely to risk losing it. For example, within two years after the Southern Pacific Transportation (Railway) Company initiated a urinalysis testing program, positive drug tests dropped from 22.9% to 5.3%.16 Apparently, the threat of job loss caused a significant number of employees to stop using drugs. This is an example of an economic consequence that had an impact even though criminal sanctions had not.

Based upon the deterrent impact of a similar economic loss, the Act leverages all the assets of a prospective small-quantity drug dealer against the relatively small gain from his or her first transaction. The prospective dealer is confronted with considering this economic cost versus benefit, instead of ignoring the cost his behavior imposes on others and the community.

Contrary to popular perception, many small dealers have a job and wages that could be garnished.17 The National Institute on Drug Abuse (NIDA) estimates that 70 percent of users of illegal drugs are employed.18 Therefore, a significant number of the "customers" in a community's drug market are in the workplace. This suggests that many gram-level dealers are themselves in the workplace, as demonstrated by the arrest of workplace drug dealers. For example, 20 people were arrested for dealing drugs at the Costa Mesa Office of the Los Angeles Times in 1989.19

Many of these work-place dealers have assets that are not the fruit of drug dealing and could not be seized by the government under the forfeiture laws. Federal forfeiture law, 21 U.S.C. § 881, provides in part that assets such as money and real property can be forfeited only if they are used to facilitate drug dealing or are the proceeds of drug dealing. Drug dealers with any significant drug-related assets typically have learned to hide these assets in the names of others. The easiest assets to locate, therefore, are often those legitimate assets a dealer may possess. Legitimate assets, such as inheritances, savings from salary, and profits from legitimate investments are not subject to forfeiture.20 However, a person with a civil judgment against a drug dealer could execute on these assets. The threat of civil liability would thus function as a deterrent to a definable segment of the dealer population which is as yet undeterred.

IV. The Civil Justice System is a Powerful Tool for Affecting Industries and Markets

The civil justice system has also demonstrated its powerful ability to diminish or destroy legitimate enterprises and industries. For example, the use of "market-share liability" theories has been criticized for the destructive impact of such theories on legitimate industries. Generalized market liability, without proof of direct causation, has resulted in the decreased availability of certain products. In the pharmaceutical industry, for example, only two companies are still willing to manufacture the vaccine DPT because of the threat of generalized liability.21 To prevent the entire industry from going under, Congress stepped in and created a specific remedy for children harmed by the DPT vaccine so that protracted litigation would be avoided. Under the 1986 National Childhood Vaccine Injury Act,22 any person who suffered a known side effect from the vaccine within a certain time period is required to submit a claim under the Act before pursuing a separate cause of action under tort law. In exchange for certain compensation, the Act did away with the traditional tort law requirements of proof of causation, negligence, and defect. If compensation is received under the Act, a subsequent civil action is barred. The Act thus served Congressional goals of compensating victims of the vaccine while protecting a shrinking number of vaccine manufacturers by minimizing their exposure to tort litigation.

If civil liability can possibly destroy a legitimate market that society wants to protect, shouldn't it be carefully used to undermine an illegal market that society wants to destroy? The answer should be clear -- yes. The Drug Dealer Liability Act takes just such an approach.

The Act takes a carefully crafted and limited market liability approach. Instead of protecting an industry, such as the legitimate pharmaceutical industry, the Act seeks to use the principles of market liability to help destroy one: the illegal drug market. Unlike "market-share liability," however, the Act imposes liability for injuries from drug use only on those who have targeted a particular geographic community for their distribution of drugs.

At the same time, recognizable victims of the illegal drug market are provided the compensation they so desperately deserve. Just as Congress and the courts have modified traditional tort law under appropriate circumstances, the Drug Dealer Liability Act modifies traditional tort law, albeit in a limited way, to address the overwhelming social problems created by illegal drugs. The result is a statute that partially privatizes drug enforcement by providing a mechanism for citizens who have been injured as a result of the drug market in their community to recover damages from those involved in that illegal market. Most significantly it partially privatizes drug enforcement in a way which is most likely to have an impact on the retail level, the level least impacted by the existing governmental criminal justice enforcement.

V. Analysis of the Drug Dealer Liability Act

The Act follows basic tort principles for its framework: a properly named defendant is held liable for all proximate damages caused to the plaintiffs bringing suit. The Act facilitates an appropriate cause of action by defining causation through time/place parameters. The potential pool of responsible defendants is thus enlarged and a lawsuit to compensate victims becomes economically feasible. Because of the unique nature of the drug market, as discussed above, the statute sets out specific requirements for each element of the cause of action. In general, the Act allows those persons who have been harmed by drug use, as a result of their family member's use, their employee's use, or their insured's use, among others, to bring an action against all persons who participated in the illegal drug market within a defined area encompassing the place of drug activity by the affected user. The Act also permits a former user to bring an action to recover economic damages only, but only against those who are actually in the chain of distribution to him.

This section is divided into four sections. Sections A and B explain who can bring suit and what damages may be recovered. Section C describes who may be sued, which is the central aspect of the Act. Finally, Section D discusses some of the subsidiary provisions of the Act.

A. Persons who may bring suit

The basis of recovery under the Act is the harm resulting from the actual use of drugs by a person. Sections 11(c) and 5(a).23 If the person's drug use results in a recognizable harm24 to the person or to other persons or entities, such persons and entities may bring suit to recover damages for the harm caused. These persons and entities include family members, injured members of the public, employers, and entities that have incurred financial loss as a result of the person's drug use. Section 6(a). The Act also allows the drug user to bring suit, albeit under more restrictive circumstances and for more limited damages, (Section 7) as is discussed later.

The Act recognizes that a person's family is often devastated by an individual's drug use. Besides the emotional toll, the family is often required to expend significant sums attempting to help the drug user. Thus, family members, or a legal guardian, are able to recover damages for their financial and emotional losses. Sections 6(a)(1) and 6(c).

The Act also specifies that a person who has been involuntarily exposed to an illegal drug, such as "crack" and cocaine babies, may bring an action. Section 6(a)(2). These children will grow up with tremendous physical and emotional handicaps that will cost billions in private and public funds. A recent government report showed that over 100,000 babies addicted to "crack" and cocaine are born each year. The cost of preparing those children for school is estimated to be as high as $1.5 billion.25 Senator Lloyd Bentsen (D-TX) has reported that the federal, state, and local governments will soon be spending $15 billion each year to prepare drug-exposed babies for kindergarten, plus an additional $6 billion per year to get them through high school.26 A study of 9,000 of those babies, conducted in 1989, found that costs may run as high as $500 million to provide hospital and foster home care during the first five years of their lives.27 Surely those who make up the illegal drug industry should be required to pay these costs.

One of the tragedies of our time is the number of accidents caused by drug-impaired persons. Whether a car accident, a train pile-up, or a subway crash, such accidents result in direct harm to a number of people. If drug use is the cause of the accident, then the injured persons should be entitled to be compensated by those in the drug market. The burden of these injuries is often borne by the user's automobile insurer alone. Under the Act, those who are involved in the drug market for the user's community will also be liable. Section 6(a), (b) and (c).

The Act recognizes that an employer's interests are also harmed by illegal drug use. Section 6(a)(3). An employer loses valuable work time because drug-using employees are absent more often. Diminished productivity may result from diminished judgment, memory and other mental processes. General Motors, for example, has reported that in the year before seeking treatment, the average substance abuser works only about 140 days.28

An employer is also harmed by drug use in the workplace itself. Studies show that drug use in the workplace is a serious problem. Interviews conducted with a group of regular marijuana users found that 40 percent of them used marijuana at the start of each working day. Moreover, 30 percent said that they smoked marijuana while at work.29 During an 18 month period in 1987-88, an average of 20 percent of the employees and contractors of Southern California Edison's San Onofre nuclear power plant failed unannounced drug testing.30

Employees using drugs on the job may also subject the employer to tort liability created by drug-induced accidents. In a 1986 road-side survey, urinalysis revealed that 14 percent of the male truck drivers tested positive for marijuana, 2 percent for cocaine, and 1 percent for both.31 Each of these drivers create a greater risk of accidents. If an accident occurs while the employee is working, the employer may be subject to liability. An employer should therefore be able to recover for these direct and indirect losses. An employer who has the prospect of recovery may also be more likely to offer Employee Assistance Programs or health benefits to help employees if the employer realizes that the cost of such program may be recoverable from drug dealers.32

Similarly, the Act also recognizes that other entities expend billions of dollars each year in coping with the physical and psychological effects of drugs. Section 6(c)(1). The federal government, for example, spent $21 billion from fiscal years 1981 through 1989 implementing its anti-drug strategy. Of this amount, drug abuse prevention and drug abuse treatment each accounted for $2.4 billion.33 In addition to the direct cost of drug rehabilitation programs, state and federal governments expend funds for significant secondary costs of drug addiction, such as welfare support and foster care. Health insurers and medical facilities may also expend significant un-reimbursed funds in coping with the health effects of drug use. Thus, governmental entities, medical facilities, insurers, and other entities are also given the right to bring suit to recover these tremendous expenditures. Section 6(c)(1).

The Act also allows the person who used drugs to recover for his or her own harm, but only from those actually in the chain of distribution to the person, for several reasons. Section 7(b). While there is an instinctive aversion to the idea of allowing a person who has knowingly used drugs to recover money, there are several important policy reasons for doing so. First, the threat of liability will impose a potential wedge in the dealer/user relationship. Every dealer will know that every customer is a potential plaintiff in the future, should the customer end up in drug treatment. Since deterrence of small-time dealers is one of the major objectives of the Act, this deterrence can best be achieved by including even those who have knowingly used drugs as potential plaintiffs.

As a practical matter, only users who themselves have never dealt drugs (a fairly rare circumstance for a long-term or adult user) would be likely to bring a suit against a dealer. If the plaintiff were himself a dealer, he would likely be counter-sued by his defendant and then probably sued by other plaintiffs, resulting in an overall net loss. The Act permits a suit by a user against his or her dealer for yet another important reason. Such suits will result in the disclosure of these dealers and thereby permit non-user plaintiffs to bring an action against them. Thus, it will facilitate the recovery of damages by truly innocent victims of drugs.

Furthermore, the pernicious effect of drugs and our current drug culture exerts a tremendous influence on people to consider experimenting with drugs. Unfortunately for many people, regular drug use of varying degrees then becomes a reality. The self-reinforcing mechanism of drugs makes them extremely attractive, and the person who first tries them may not be aware of the growing addiction and dependence that is developing. For example, experiments with rats given unlimited cocaine have shown that the rats will self-administer the drug until they die, rather than forego it.34 To some extent, allowing a user to sue encourages him to take responsibility for the costs of his own treatment by identifying his dealers.

Finally, virtually no one actively seeks out an illegal drug the first time. Often some other person first offers the drug to the user. It has been suggested that the average person who ultimately uses drugs has rejected drugs several times before they began drug use. In keeping with traditional notions of comparative responsibility, the dealer who introduces the drug is surely more responsible than the person who first tries it.

Thus, the Act allows a user to sue for economic damages, such as the cost of drug treatment, but also imposes significant restrictions. First, the user can only recover against those that he proves are actually in the chain of distribution to him. Section 7(b). Second, the Act requires that the user be drug-free for six months before filing a lawsuit. Section 7(a)(2). Third, the user-plaintiff must remain drug-free during the entire pendency of the lawsuit. Id. The drug-free requirement helps ensure that any award from a lawsuit will be used to assist the former user in establishing a productive life. Fourth, the former user is limited to recovering only economic damages, attorney's fees, and costs. Section 7(c). The user is not entitled to recover non-economic damages or punitive damages.35 Finally, the Act provides that the principles of comparative responsibility can be applied as between a plaintiff-user and a defendant. Section 11. Applying comparative responsibility will reduce the plaintiff-user's recovery in proportion to the responsibility attributable to the user, but will not bar recovery entirely.36 Thus, a jury will have the opportunity to determine the relative responsibility of a user and a distributor.

The Act does not allow comparative negligence to be asserted against other plaintiffs, however. Section 11(c). The other plaintiffs discussed above are not responsible for the drug use itself and should not have their recovery diminished by a defendant dealer who claims, for example, that the plaintiffs were not good parents. No civil defendant drug dealer should be able to assert comparative negligence on parents and family members and exploit the feelings of guilt and anguish that parents of drug-using children typically experience. In other words, the responsibility of the drug user, if any, cannot be imputed to other plaintiffs.

Some may question the likelihood of any person or entity being willing to undertake a suit to recover damages. Some may be concerned about possible intimidation of prospective plaintiffs. These concerns, although reasonable, do not justify failing to enact the Act. First, until precedents are well established, the most likely plaintiffs in these cases will be health insurers, employers, and government agencies, which bear the costs of drug treatment. These entities have the financial capability to undertake a civil liability suit and have the most to gain from establishing successful recovery of damages. Furthermore, such organizations are less susceptible to intimidation by drug dealers. Second, some of the potential individual plaintiffs may not be intimidated because they have already lost so much. For example, parents who have lost their only child may feel that they have nothing left to lose. Or they may be so angered that they are immune to threats.

Third, the sheer number of possible defendants suggests that, in spite of the obstacles, at least some actions under the Act will be brought. An estimated 10 million drug users are in the workplace.37 If there is even one dealer for every ten users, then 1 million prospective defendants are in the workplace. Given the significant damages eventually incurred among many users, their families, employers, and health insurers, some Act actions are likely to be brought.

Fourth, the Act should be enacted even if relatively few individuals and entities take advantage of it. A major purpose of the Act is to establish the principle that anyone who enters into the retail market for illegal drugs is subject to liability. Only a few such suits establishing liability will be needed to make principle widely known.

In sum, the Act will enable willing plaintiffs to bring suit against dealers of illegal drugs. Establishing liability for marketing illegal drugs is one more means of decreasing the acceptability of such activity. Although there may be many potential plaintiffs who will not consider filing suit, those who are willing should be assisted to the fullest extent possible.

B. Damages that may be recovered

All plaintiffs may recover economic damages, attorney's fees,38 and costs under the Act. Sections 6(c)(4) and 7(c)(2). A plaintiff's economic damages may encompass a broad range of expenses proximately caused by drug use. Examples of such expenses include drug treatment, related medical expenses, lost work productivity, lost wages and income, burial expenses, loss of educational potential, and other pecuniary losses. See Section 6(c)(1), All plaintiffs other than a person who knowingly used drugs may also recover non-economic damages. Section 6(c)(2). Parents and family members in particular suffer tremendous emotional distress associated with a loved one's drug use. A parent who loses a child to drugs often cannot relieve the feelings of guilt and anguish. In keeping with traditional tort recovery principles, all forms of non-economic damages are thus recoverable.

Similarly, all plaintiffs other than a person who knowingly used drugs may also seek punitive or exemplary damages.39 Section 6(c)(3). Although all forms of drug dealing are unacceptable and should carry at least the possibility of punitive damages, some forms of dealing are particularly repugnant. For example, the drug dealer who sells to a pregnant woman, permanently scarring her unborn child, should be subject to punitive damages in an action brought on behalf of the child. While punitive damages may be abused in the context of legitimate activity, they are designed and intended for knowing and intentional wrongful conduct. Dealing illegal drugs is such conduct and therefore should give rise to punitive damages.

The actual user of illegal drugs, however, is not entitled to non-economic and punitive damages under the Act. In balancing the relative culpability of the user and the dealer, a user may be entitled to economic damages from the dealer for the reasons discussed above, but should not be entitled to a windfall of punitive damages or the additional non-economic damages.

The Act prohibits the recovery of damages via the insurance carrier for a defendant. Section 8. This prohibition serves two purposes. First, the financial responsibility for intentional acts should be borne by the wrongdoer for maximum deterrent effect. Second, the prohibition ensures that the impact of the Act will be focused on the intentional wrongdoer and not on nearby "deep pockets."

C. Defendants who may be sued

The Act defines two categories of appropriate defendants. The first category is the defendant who in fact distributed, or is in the chain of distribution of, any of the illegal drugs used by the person whose drug use forms the basis for recovery. All plaintiffs may sue any person who falls within this category. Section 6(b)(1) and 7(b). However, a person whose own knowing drug use forms the basis for recovery may only sue defendants in this category. Section 7(b). For plaintiff other than one whose own knowing drug use forms the basis for recovery, an additional category of defendant is defined under the Act. Section 6(b)(2). Three factors determine who may be sued under this category. First, the defendant must be a "knowing participant" in the illegal drug market. Section 6(b)(2). Second, the defendant's "illegal drug market target community" must encompass the "place of drug activity" for the person whose drug use forms the basis for recovery. Section 6(b)(2)(a). Third, the defendant's participation in the drug market must be for the same type of drug as one of the drugs used by the person whose drug use forms the basis for recovery and within the same time frame as that person's drug use. Section 6(b)(2)(b) and (c). The remainder of this section discusses at length each of these provisions, which together comprise the core of the Act.

1. Knowing participant

A cause of action under the Act is premised on a person's knowing participation in the illegal drug market.40 Section 6(b)(1) and (2). "Participation in the illegal drug market" is broadly defined to encompass distribution, possession with intent to distribute, and all forms of facilitating the marketing of illegal drugs.41 Section 4(i). However, the Act imposes an intent requirement. In other words, liability attaches only to actions that are intended to facilitate the marketing or distribution of illegal drugs. Thus, for example, the parent whose child sells drugs to a visiting friend in the home, the employer whose employee was not directed into drug counseling before causing a serious accident, or the landlord whose tenant later begins to sell drugs from the apartment cannot be held liable under a theory of vicarious liability. Of course, if the parent, employer, or landlord intended to contribute to the marketing of drugs, then liability would be appropriate.

The Act targets anyone who intentionally facilitates the marketing or distribution of illegal drugs because each person in the drug network plays a part in causing drugs to reach the ultimate user. A person who arranges for the transportation of drugs is just as responsible for drug use in this country as the person who hands over the drugs to the user. The person who promotes drugs, makes them available, and encourages another person to try drugs is also responsible in part for the harm that ultimately follows. Thus, a person who performs any of the many acts that are needed to achieve the distribution of illegal drugs is held liable.

The Act, however, does not require that a person's liability be based solely on making or facilitating the actual sale of a drug to the person whose drug use forms the basis for the cause of action. A person bringing suit under the Act need not identify the particular person or persons who sold drugs, or facilitated the sale of drugs, to the person whose drug use forms the basis of recovery. Instead of the actual sale, the action subjecting a person to liability is joining the drug market in one form or other, because the entire drug network is actually the cause of the harm to the drug user and the community. The existence of the drug network itself is the reason why drugs are able to be distributed at the retail level. Every person who joins the drug market benefits from not only their own efforts but the previous efforts of others which collectively established the "market" in a particular community. Such new entrants into the market have the benefit of the existing system of production, processing, and distribution. Without these predecessors, newcomers would have to personally perform all of those functions. Without an existing market network, a person who wanted to sell cocaine, for example, would have to grow coca leaves, prepare and process the leaves into cocaine, package the bulk cocaine, ship the cocaine to the market area, package the cocaine for resale, find buyers, and then make the ultimate sale. With an existing market network, a person can choose among many different levels in the network, join one of the levels of the market and begin functioning immediately. Furthermore, a new entrant into the drug market, for example a gram dealer, even derives benefit from the existence of other gram dealers in that community. First, other dealers have helped to develop a receptive customer base. Even if the individual customer or customers of the new dealer have never themselves purchased drugs before, they have been encouraged and embolden to do so by the existence of drug use among their peers and others in that community. Next, gram-level dealers often engage in transactions back and forth to enable them to maintain and develop their customer base even when their principal sources of supply are unavailable. Thus, the entire network itself, and not just the isolated acts of one person joining the market, is interdependent and the genesis of the ultimate harm to the user and others. In addition, the drug networks for any particular drug interact and support each other by maintaining the user's need for drugs. The use of one drug by a person often reinforces the use of other drugs. As a result, the drug networks for any of the drugs used by a person all contributed to the ultimate harm suffered. Theoretically, the identity of everyone in the drug network could be learned. If one were to learn the identity of one person's market associates, and then learn the identity of the associates' associates, and so on, a map of all the connections between various participants in the drug network could be created. Knowledgeable law enforcement officials believe that such a network of connections would ultimately include a community's entire drug market for a particular type of drug.

Figures 1a and 1b illustrate this concept using the drug distribution pyramid introduced in Figure 1.

Figure 1a - First Level Contacts Drug Distribution Network

In Figure 1a, an individual retail dealer's contacts are identified by lines connecting the dealer with his or her first level contacts. These connections represent all of those people known to the dealer to be involved in the community's drug market for the particular drug. Each of these first level contacts are identified with the number 1.
In turn, each of the first level contacts have their own contacts within the drug market, as shown in Figure 1b.

Figure 1b - Multi-Level Contacts Drug Distribution Network

The second level contacts are all indicated with the number 2. In turn, each of the second level contacts have his or her own contact within the community's drug market, as indicated by the number 3. Because of the geometric nature of the progression, virtually the entire drug market in a community is circumscribed in relatively few such steps.

Although a civil litigant could theoretically track the flow of any one shipment of drugs through the different levels of distributorship, the clandestine nature of the market, as discussed previously, and the fact that drugs are fungible, make it impossible to actually accomplish. See United States v. Casamento, supra. Thus a potential plaintiff has no means of determining the identity of all persons up the chain of distribution and would be precluded from obtaining an adequate recovery under existing tort law.

The Act therefore allows suit to be brought against any person who was part of the drug network for any drug used by the person whose drug use forms the basis for recovery, since every part of the network contributed to the harm. It is the act of joining the symbiotic network that makes an individual liable. Under traditional tort principles, it is reasonably foreseeable that someone intentionally participating in the marketing and distribution of illegal drugs will inevitably harm someone. The Act also allows a defendant member of the market to bring a third party action for contribution against others known to them to be participating in the marketing of the same drug and during the relevant time period in the community. Section 12. The Act thus places the burden of disclosing fellow members of the market and obtaining contribution from all such members of the market on those who collectively can identify all of its participants. Although only theoretical, the result is reasonable because the Act represents an election to place the burden of obtaining contribution on those who, through their own voluntary actions, have chosen to become a member of the group which collectively is inflicting harm on the community. For example, as between a drug baby and an individual distributing drugs in the community, the Act places the burden on the distributor of drugs, i.e., the one who willfully joined the market, and not on the drug baby.

Under this approach, potentially every participant in the drug market in the state would be liable to every user; however, the Act places limits on who can be sued by designating a "target community" for each participant in the drug network. If a person's "designated target community" encompasses the place of drug activity for the person whose drug use forms the basis for recovery, then the person may be appropriately named as a defendant, as discussed further in the next section.

2. Designated target community

The second requirement under these provisions of the Act is that the defendant's "illegal drug market target community" within the illegal drug market must encompass the place of drug activity for the person whose drug use forms the basis for recovery. Section 6(b)(2)(a). This requirement defines the reasonably foreseeable area in which any one defendant's actions are likely to have an impact. Since the Act does not require that a defendant be one of the persons who sold drugs to the person whose drug use forms the basis for recovery, the Act limits liability based on intentional participation in the drug market in a community and a geographic and time period relationship between the user and the participant. In addition, the Act requires that participation in the drug market be shown by clear and convincing evidence. Section 13(a). This higher standard of proof balances the modification in the traditional burden of proving causation under the Act.

This approach is not entirely novel. At its essence, the Act follows the lead set by the cases imposing market-share liability. Market-share liability is a judicially created remedy for a group of plaintiffs who could not identify the defendant who had harmed them. The now-famous Sindell case, which first imposed market-share liability, is over ten years old. Sindell v. Abbott Laboratories, 163 Cal. Rptr. 132, 607 P.2d 924 (1980). Sindell and its progeny arose out of unusual circumstances. Thousands of women whose mothers had taken the drug DES during pregnancy twenty or more years before were being diagnosed with cancerous and pre-cancerous growths. Id. at 607 P.2d at 925-27. A number of companies had manufactured and marketed an identical, generic product. Any particular pharmacy might have stocked the product of any number of these manufacturers at different times. The daughters who brought actions could demonstrate that their mother had taken the drug and that the drug had caused their harm. But whose drug was it? Proof was nearly, if not entirely, impossible.
The court recognized that "[s]hould we require that plaintiff identify the manufacturer which supplied the DES used by her mother . . . , she would effectively be precluded from any recovery." Id. at 936. Instead of denying recovery, Sindell and later cases42 modified the burden of proof with respect to causation. Once the plaintiff proved her injury and the tortious conduct of the defendants, the burden would shift to each defendant to prove that it did not cause the harm.

The mechanism the Sindell court fashioned to effectuate recovery was the "market-share theory." A plaintiff could recover if she joined a substantial percentage of the manufacturers of DES, who would then be severally liable only to the extent of their own market share of the product.43 Defendants could exculpate themselves by proving they did not manufacture or distribute the product at the time or place in question. Id. at 937. In other words, the court narrowed liability exposure through time and geographic limitations.
The market-share approach has been justifiably criticized for its destructive impact on legitimate industries.44 Unchecked, judicially expanded products liability can have a chilling effect on the development of socially desirable, needed products and services and may drive certain businesses out of the market. This is precisely the reason to apply the market-share theory to the illegal drug market. The Act imposes both market-share and products liability on the illegal drug market. If market-share and expansive products liability is destructive of legitimate markets that we want to encourage, then shouldn't we use such liability against an illegal market that we want to destroy?
One of the justifiable criticisms of Sindell market share liability is that it was judicially created and therefore did not take into consideration all competing interests, since many interests were not represented in the particular litigation before the court. This, of course, is a fundamental general criticism of judicial activism. The Act, however, places the matter squarely into the hands of the appropriate policy makers, state legislatures, to establish carefully crafted civil liability for those who intentionally participate in the illegal drug market. It uses a form of market liability against the illegal drug market and provides for recovery by those who have been directly harmed by that market.

Through the Act, a legislature can add a level of private enforcement to augment existing governmental enforcement. Furthermore, it would privatize enforcement in those parts of the retail market which are now not significantly addressed by the criminal justice system.
The Act takes an analogous approach to that used in market-share liability by imposing time and geographic limitations through the "illegal drug market target community" concept. The definition of "illegal drug market target community" are based on the assumption that the greater the volume of drugs a person is dealing or facilitating, the greater the area of impact and the larger the number of people affected. Using cocaine as an example, a gram dealer may only affect a few neighborhoods; a pound dealer may affect large areas of a city; a multi-kilogram dealer may affect an entire state. Each of these types of dealers, therefore, should be held liable for the injuries to an increasing number of people based on their position in the market, i.e., the scale of their trafficking activity.

Using this concept, the Act creates four levels of designated target communities. Section 9. In general, the more serious the nature of the participation by a person in the illegal drug market, the larger the designated target community. The designated target communities are defined by combining increasing numbers of state legislative districts. Since legislative districts are in turn based upon relatively equal populations, the relative target communities are of equal size for any defendant of equal participation in the illegal drug market.
State and federal drug laws typically classify drug offenses based upon increasing amounts of each type of drug. The Act follows the same procedure by designating four levels of offenses. These levels are set out for selected drugs in Table 1. Each state, in enacting the Act, will undoubtedly tailor the amounts listed in Table 1 to its own experience and goals.

Table 1 - Levels of Offenses for Designated Target Communities

Each of the respective levels in Table 1 is associated with a larger designated target community. The target community for a person whose participation in the illegal drug network constitutes a level 1 offense45 is the state legislative district in which the participation occurred.46 Section 6(b)(2)(a) and Sections 4(l) and 4(m). The target community for a person whose participation in the illegal drug network constitutes a level 2 offense also includes any legislative districts which border the legislative district in which the participation occurred. Section 9(b). The designated target community for a person whose participation in the illegal drug network constitutes a level 3 offense further includes any legislative districts which border the designated target community for a level 2 offense. Section 9(c). Finally, the designated target community for a person whose participation in the illegal drug network constitutes a level 4 offense is the entire state. Section 9(d).

Figures 3 and 4 provide an example of the concept in general. Figure 3 is a map of the state legislative districts in Connecticut. Figure 4 is an enlargement of a group of legislative districts centered around district number 81, which is just below and to the left of the middle of Figure 3.

[Figure 3 is not available on this web site. It, however, is a map of the legislative districts of the State of Connecticut (used merely as an example).]

[Figure 4 is not available on this web site. It, however, is a map showing certain house districts of the State of Connecticut (used merely as an example). At its center is legislative district 81 (Target Community for Dealer 1 discussed in the text of this article), legislative districts 30, 80, 84, and 90 (which are juxtaposed to district 81 and surround it) (Target Community for Dealer 2 discussed in the text); and , legislative districts 22, 23, 26, 29, 32, 33, 72, 75, 76, 78, 79, 82, 84, 85, and 89 (all of which surround the legislative districts that are adjacent to and surround the Target Community for a Level 2 Dealer.]

Figure 4 illustrates the increasingly expanded designated target communities commensurate with a particular defendant's increasing level of responsibility. Suppose that three individuals were involved with the illegal drug market within a particular neighborhood in legislative district 81. For convenience, these individuals will be referred to as dealers, although liability is not dependent upon actual drug sales. Assume Dealer 1 is a gram cocaine dealer. Dealer 1's activities constitute a level 1 offense under the Act. Assume Dealer 2 has been convicted of dealing three (3) ounces of cocaine and Dealer 3 has been convicted of dealing ten (10) ounces of cocaine. The activities of Dealer 2 and Dealer 3 would constitute a level 2 offense and a level 3 offense, respectively.

Even if all three dealers distributed the drugs, lived, worked, and went to school in the same legislative district number 81, each has a different "designated target community." The target community for Dealer 1 is limited to district 81 itself, the legislative district in which his activities occurred. This is outlined in blue on Figure 4 as Target Community 1. The target community for Dealer 2 reaches further to include all neighboring legislative districts. Dealer 2's "target community" is outlined in red on Figure 4 as Target Community 2. Similarly, the "designated target community" for Dealer 3 is outlined in green as Target Community 3, and includes all the neighboring legislative districts to Target Community 2.
If the "place of illegal drug activity" by the person whose drug use forms the basis for recovery is within the "illegal drug market target community" of a dealer, then that dealer may be sued under the Act.47 Section 6(b)(2)(a) and 4(l). The "place of illegal drug activity" is the state legislative district in which an actual drug activity occurred or in which a presumptive drug activity occurred. Section 4(l). Thus, if the person bringing suit knows where the person whose drug use forms the basis for recovery obtained, possessed, or used drugs, those legislative districts are places of drug activities. Section 4(l).
Many potential plaintiffs, however, may not be able to determine the place of actual drug activity by the person whose drug use forms the basis for recovery. A parent, for example, may not know where the child who died from a drug overdose received the drugs. Under the Act, the parent may presume that the person whose drug use forms the basis for recovery used drugs or obtained drugs in the area of that person's home, school, and/or workplace. Section 4(l). The legislative districts in which these presumptive places of drug activities are located then become additional focal points for determining whether a participant in the illegal drug market may be held liable.

To illustrate this concept, assume that the families of three persons who have died from drug use are seeking to bring lawsuits under the Act. The family of User A, after talking with A's friends, can establish that User A purchased and used drugs in legislative district 81, again referring to Figure 4. User B's family learns that she used drugs in legislative district 80, while User C's family learns that he used drugs in legislative district 76.
Table 2 illustrates which of the three previously discussed drug dealers could be sued under the Act.48 User A's family could sue all three dealers, since the designated target community for each of the three dealers encompasses User A's place of drug activity in district 81. User B's family could only sue Dealer 2 and Dealer 3, since User B's drug use occurred in district 80, outside of the designated target community for Dealer 1. Similarly, User C's family could only sue Dealer 3, the only dealer whose designated target community encompasses district 76.

Table 2 - Illustration of Appropriate Defendants Under the Act

If the Act looked only to where a person is known to have bought or used drugs, then these three districts would be the only districts in which these plaintiffs could look for potential defendants. The Act, however, presumes that a person bought or used drugs at that person's school, home, and workplace. Thus, if User C's school, home, or workplace are located in districts other than the one in which User C bought or used drugs, then User C's family could sue additional dealers, as shown in Table 2. For example, if User C's school is located in district 80, User C's family could sue Dealer 2 in addition to Dealer 3. Similarly, if User C's workplace is located in district 81, the family could also sue Dealer 1.

The Act thus makes realistic assumptions about the typical places where a person obtains and uses drugs. These presumptions become especially important when the drug user is no longer alive and cannot testify as to the different locations where he or she obtained and used drugs. The same can be said if the user refuses to identify his or her source in order to protect or avoid alienating the user's supply of addictive drugs.

3. Any drugs used during period of drug use

The focus of the Act is on the ultimate injury caused by drugs to the user and others. For this reason, an appropriate defendant under the Act is anyone who sold, or facilitated the marketing of, the same type of drug as any of the illegal drugs used by the person whose use forms the basis for recovery at any time during that person's use of those drugs. Although this provision may subject some people to liability over a significant period of time, sound policy reasons justify this approach.

First, drug users do not become fully affected by use overnight. Virtually all who become fully affected began with casual experimentation with gateway drugs, such as marijuana. Without these gateway drugs, a person is very unlikely to become a substantial user of other dangerous drugs.49 As stated in one important study: Ninety percent of the users of marijuana and cocaine used marijuana prior to their use of cocaine, whereas only 3% of the subjects used cocaine before they tried marijuana. This strongly suggests that use of marijuana is a stage prior to use of cocaine. The data pertaining to extent of marijuana use provide even stronger evidence linking use of marijuana to use of cocaine. Only 2 of the 981 individuals who had used cocaine had not used marijuana. Among the respondents who had only experimented with marijuana--that is, they had only used the drug 1 to 10 times, 12% had used cocaine. In contrast, 39% of the respondents who had used marijuana 11 to 99 times had used cocaine, and among the individuals who had used marijuana 100 or more times, 71% had used cocaine.50

As shown by these studies, a person who is using only "crack" at the time treatment is sought often would not have ultimately needed the treatment without the initial entree to the world of illegal drugs. In addition, the person seeking treatment for a "crack" addiction may have long ago suffered physical harm from smoking marijuana, but the harm is now overwhelmed by the damage done by smoking "crack." The harm, in addition to its gateway effect, is still real, however. Thus, the person who contributed to the user's drug use anywhere along the way contributed to the ultimate injury the person suffered. Each would, of course, have a right of contribution from those in the community who dealt the other types of drugs involved.

Second, the Act is intended to function as a deterrent to people who are considering selling drugs for the first time. The prospect that a buyer -- or a buyer's family, employer, or insurance company -- may seek damages in the future based on that sale should keep a certain number of people from taking the initial step of joining the illegal drug trade in a community. If sellers of gateway drugs, which provide the entree into the world of drug use, are effectively shielded from liability by the passage of time, then this deterrent effect will be severely compromised. As long as a person was participating in the drug market at any point during the period of drug use by the person whose use forms the basis of recovery, then that person should be held liable for his or her participation.

The Act defines "period of illegal drug use" as beginning when the person first used any drug and continuing until the cause of action accrues. Section 4(k). Furthermore, the Act presumes that the period of drug use encompassed the two-year period before the cause of action accrued unless the defendant proves otherwise. Section 4(k). This provision was included because the families, insurers, and employers of drug users may have no means of determining the exact period of drug use. A typical period of drug use leading to significant harm would undoubtedly be much longer for virtually all users; however, the Act specifies a reasonable two-year period.51

D. Other provisions of the Act

1. Joinder of parties

The Act contains a specific joinder provision to provide for the convenient consolidation of cases. Section 10. The language in this section follows the format set out in Fed. R. Civ. P. 20(a). Specifically, plaintiffs may join together if they share at least once place of drug activity in common and if their periods of drug use overlap. Section 10(a). Thus, persons living or working in the same area could bring a joint action against multiple drug dealers if there is an overlap of the time period in which the drug use occurred. Or, for example, a action could be brought on behalf of multiple "crack babies" at a large, inner-city hospital. Because the Act is based on geographic and time presumptions, the plaintiffs will have many issues in common. Similarly, the Act allows for unlimited joinder of defendants who may be liable to at least one plaintiff. Section 10(b). Of course, the court in its discretion could join or sever parties to insure any multiple-party case was manageable.

2. Contribution among defendants

The Act allows for contribution among defendants, in keeping with traditional tort law. Section 12. More importantly, this provision will encourage defendants to name other participants known to them in the illegal drug market to help share the burden of a judgment. Thus, participants will face the prospect of both customers and other participants "turning" on them at some point in the future. This prospect will serve as an added deterrent to entering the illegal drug market in the first place. This procedure will also serve to identify additional defendants from whom plaintiffs can seek recovery. 3. Prejudgment attachment and execution on judgments The Act allows for both prejudgment attachment and full post-judgment execution on assets. Section 14. Availability of assets to satisfy a judgment is a concern in all suits seeking damages. In a suit brought under the Act, however, the concern takes on added importance. The deterrent impact of the Act would be blunted if a defendant were able to protect or transfer a significant portion of his or her assets. Furthermore, the serious repercussions of the drug problem for the individuals involved and society at large justifies ensuring that sufficient assets are available to satisfy judgments. A judgment against a defendant only begins to account for the harm that defendant has caused; for this reason, all assets of the defendant should be available for satisfaction of the judgment.

The Act, however, specifically excludes forfeited assets as a source of recovery in a civil action brought under the Act. Section 14(c). The current drug forfeiture provisions of State and Federal law have had a substantial impact on the drug market, particularly among higher echelon distributors. This provision is intended to leave those efforts intact and unaffected by the passage of the Act. Furthermore, this will ensure that the Act is a mechanism applied against the drug market in addition to important existing criminal justice and forfeiture laws. Excluding forfeited proceeds from reach by plaintiffs under the Act will ensure that this new mechanism will not interfere in any way with existing efforts. Furthermore, it will protect law enforcement agencies from being involved in disputes over such assets, allowing them to focus on the investigation and prosecution of drug traffickers.52 Of course, such efforts will bring to light additional potential defendants for the private litigants under the Act.
The most likely impact of the Act will generally be on the retail market and major traffickers prosecuted by enforcement agencies who have assets beyond the reach of existing forfeiture law. For example, if a major trafficker is prosecuted and his drug-related assets are forfeited, but he or she still has non-drug related assets which cannot be forfeited, those assets would be available to pay a judgment under the Act. Furthermore, in view of the fact that the Act is likely to have its greatest impact at the retail level of the market, it is unlikely to interfere with forfeiture initiatives since law enforcement agencies generally direct their forfeiture efforts against wealthy major traffickers where the return on the investigative efforts will be the greatest.

3. Statute of limitations

The Act allows a two-year statute of limitations, which is typical for tort actions in many states. Section 15(a). In addition, the accrual of the cause of action is based on a "discovery" rule, also common in tort actions. However, the discovery rule is modified somewhat to account for the nature of drug use. The cause of action does not accrue until a person who may recover under the Act has "reason to know of the harm" from illegal drug use and has "reason to know that such use is the cause of the harm." Section 15(a). Parents, for example, may know that something is wrong with their child, but may not be able to determine immediately the source of the problem.

The statute of limitations also contains its own tolling provisions in addition to tolling provisions that may be otherwise provided by law. Section 15(b). The most important tolling provision provides that the statute of limitations shall be tolled as to any potential defendant who is ultimately convicted of a criminal drug offense until six months after the date of conviction. Section 15(b). This provision is required because many potential defendants will not be identified until they are prosecuted. Since criminal statutes of limitation often provide for a period of years, sometimes up to five years, in which to bring criminal charges, many of the larger drug dealers would otherwise be immunized from suit under the Act, given the Act's two-year statute of limitations. Since smaller dealers are more likely to be convicted closer in time to the time in which their criminal act occurred, smaller dealers may be more subject to suit without a tolling provision. The tolling provision thus prevents the anomaly of larger dealers, whose investigation, prosecution and conviction is likely to take longer to obtain, being otherwise less subject to suit under the Act.
The Act also tolls the statute of limitations for a person under a disability who is otherwise eligible to recover under the Act. Section 15(b). The Act considers a person to be under a disability if a person's judgment is substantially affected by the use of any illegal drug. Section 15(b). Since the very harm created by the illegal drug market may prevent a person from realizing the harm itself, the Act allows the statute to be tolled during this period.

VI. Conclusion

The problem of illegal drugs merits attack from every source and with every available tool. The civil justice system is a powerful weapon. The approach outlined in the Drug Dealer Liability Act relies on the foundation of traditional tort law in a constrained and reasonable way to aim this weapon at one of the greatest challenges our society faces. The Act establishes reasonable limitations to balance the removal of practical obstacles to bringing a suit relying solely on traditional tort law. By enacting a specific cause of action against those who participate in the illegal drug market, the Drug Dealer Liability Act can work in tandem with the criminal justice system and drug education programs to help achieve drug free communities.


Endnotes:

  1. The American Legislative Exchange Council is a national law reform organization and is the largest bipartisan membership organization of state legislators. It is made up of over 2,500 state legislative members.
  2. Although state and federal governments use civil forfeiture actions to deprive dealers of drug-related assets, these civil actions derive from criminal investigations. In addition, private individuals cannot bring forfeiture actions against drug dealers. Most important, forfeiture extends only to the seizure of proceeds of drug dealing and property used to facilitate drug dealing.
  3. Drug treatment expenditures include detoxification, maintenance, and counseling on an in-patient, out-patient, or residential basis.
  4. U.S. Department of Health and Human Services, National Institute on Drug Abuse, Highlights from the 1989 National Drug and Alcoholism Treatment Unit Survey (NDATUS) (Rockville, MD, July 1990), 8.
  5. Dorothy P. Rice, et al., The Economic Costs of Alcohol and Drug Abuse and Mental Illness: 1985 (San Francisco, CA: Institute for Health & Aging, University of California, 1990), 8, 20.
  6. Timothy A. Beauchemin, Winning the War on Drugs: A Manual for State Legislators (Hallowell, ME: Design Communications, 1989), 73.
  7. Joseph Pereira, "Firms Cut Drug-Treatment Benefits: Inpatient Care Draws Scrutiny; Costs Shared," The Wall Street Journal, 5 Sept. 1989, sec. B, p. 1. While this figure relates to both drugs and alcohol, no doubt that portion attributable to drugs alone is substantial.
  8. See e.g., Morris v. Owen, 102 Ga. App. 71, 115 S.E.2d 604 (1960) (action brought by husband for wife's addiction to chloral); Holleman v. Harward, 119 N.C. 150, 25 S.E. 972 (1896) (action by husband for wife's addiction to laudanum); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247 (1919) (action by mother for child's addiction to heroin); Flandermeyer v. Cooper, 98 N.E. 102 (Ohio 1912) (action by wife for husband's addiction to morphine); Moberg v. Scott, 42 S.D. 372, 175 N.W. 559 (1919) (action by wife for husband's addiction to opium).
  9. Throughout this memorandum, retail dealers of illegal drugs are referred to as gram dealers. The discussion in this memorandum is primarily directed to the cocaine distribution network. However, the principles apply to the marketing of every illegal drug.
  10. Mark S. Gold, 800-Cocaine (New York: Bantam Books, 1984), 15.
  11. Executive Office of the President, Office of National Drug Control Policy, National Drug Control Strategy (Washington, D.C.: U.S. Government Printing Office, September 1989), 10-12.
  12. This schematic does not take into consideration the fact that some users will be serviced by other retail dealers that will remain in the market.
  13. Beauchemin, Winning the War on Drugs, 47.
  14. Jacob Perez, "Tracking Offenders, 1987, Bureau of Justice Statistics Bulletin (Rockville, MD: BJS, October 1990), 2.
  15. Ibid., 5.
  16. Robert W. Taggart, "Results of the Drug Testing Program at Southern Pacific Railroad," in Drugs in the Workplace: Research and Evaluation Data, National Institute on Drug Abuse Research Monograph Series 91 (Washington, DC: U.S. Department of Health and Human Services, 1989), 97-108.
  17. The perception that most dealers are unemployed may be based in part on the high visibility of street-corner dealers in inner cities. Because of their high visibility, these dealers are often more easily targeted by law enforcement, leading to the additional perception that inner-city dealers are treated more harshly than suburban dealers. The Act would in part compensate for this perceived inequity.
  18. National Institute on Drug Abuse, "Research on Drugs and the Workplace," NIDA Capsules (Rockville, MD: NIDA, Rev. June 1990).
  19. Carolyn Whetzel, "Jobs & Drugs: Businesses Battle Substance Abuse," Orange County Business Journal 14 (January 21, 1991): 19.
  20. Criminal forfeiture laws do provide that legitimate assets can be substituted for drug-related assets which are no longer available. The majority of forfeiture actions, however, are civil actions, which do not have a substitute assets provision.
  21. Shackil v. Lederle Laboratories, 116 N.J. 155, 561 A.2d 511, 523 (1989) (citing Vaccine Injury Compensation: Hearing Before Sub. Comm. on Health and the Environment of the House Comm. on Energy and Commerce, 98th Cong., 2d Sess. 295 (Sept. 10, 1984)).
  22. 42 U.S.C. § 300aa-1 et seq.
  23. All references are to provisions in the Act as adopted as model legislation by the American Legislative Exchange Council. The section numbers vary in the Act as it has been enacted in several states.
  24. Although "harm" is not defined in the Act, the range of damages by a plaintiff is broadly illustrated. See Act Section 6(c).
  25. "Study of Addicted Babies Hints Vast Cost," The New York Times, 17 Mar. 1990, final edition, sec. A, p. 8.
  26. Stephen Labaton, "The Cost of Drug Abuse: $60 Billion a Year," The New York Times, 5 Dec. 1989, final edition, sec. D, p. 1, 6.
  27. Deborah S. Pinkney, "Costs Increase with Numbers of `Crack Babies,'" American Medical News, 6 Apr. 1990, p. 16.
  28. Joseph Pereira, "Baffling Plague: As Addiction Crisis Mounts, Experts Delve Into the Root Causes," The Wall Street Journal, 1 Aug. 1989, Western edition, sec. 1, p. 1.
  29. Richard H. Schwartz, "Chronic Marijuana Use by Adults: A Rebuttal," The American Journal of Psychiatry 146 (September 1989): 1233-1234.
  30. Carl E. Osborn and Jacque J. Sokolov, "Drug Use Trends in a Nuclear Power Company: Cumulative Data From an Ongoing Testing Program," in Drugs in the Workplace: Research and Evaluation Data, National Institute on Drug Abuse Research Monograph Series 91 (Washington, DC: U.S. Department of Health and Human Services, 1989), 69-80.
  31. Adrian K. Lund, et al., "Drug Use by Tractor-Trailer Drivers," in Drugs in the Workplace: Research and Evaluation Data, National Institute on Drug Abuse Research Monograph Series 91 (Washington, DC: U.S. Department of Health and Human Services, 1989), 47-67.
  32. Some concern may be expressed that employers, or others funding drug treatment programs, may use the information generated during the program to seek out prospective defendants. Current federal law generally does not permit the disclosure of information from a drug treatment program that identifies a person who has sought treatment. See, 42 U.S.C. § 290ee-3 (1991) and 42 C.F.R. § 2.1 et seq. (1991). The Act, of course, does not affect such non-disclosure.
  33. U.S. General Accounting Office.
  34. Michael A. Bozarth, "Toxicity Associated with Long-term Intravenous Heroin and Cocaine Self-administration in the Rat," The Journal of the American Medical Association 254 (1985): 81-83.
  35. Assuming that a user could have brought a suit against his dealers under common law, the Act actually provides for more limited recovery than the user could have otherwise sought.
  36. See, e.g., Johns v. Secress, 106 Ga. App. 96, 126 S.E.2d 296 (1962) (plaintiff's failure to obey stop sign prior to collision with defendant, who was speeding, did not bar action, but justified a reduced award.)
  37. National Institute on Drug Abuse, "Research on Drugs and the Workplace," NIDA Capsules (Rockville, MD: NIDA, Rev. June 1990).
  38. States may provide for attorney's fees under the State Award of Attorney's Fees to Prevailing Party Act.
  39. States may consider imposing such punitive damages in accordance with the Model State Punitive Damages Act.
  40. Law enforcement personnel are exempted from liability if they distribute illegal drugs within the scope of their duties during an investigation, such as a "reverse sting" operation. Similarly, if a cooperating individual is used to conduct a drug transaction on behalf of law enforcement, the individual is also exempted from liability. The agency that conducted the investigation as well as the State itself are also exempted from liability. Section 5(b). It would be contrary to public policy to make those who engage in undercover activity in the drug market in order to investigate drug crimes for prosecution to be held liable under the Act.
  41. The Act excludes from liability a person whose only act is to purchase illegal drugs for personal use. Otherwise, the user who comes forward risks being the target of a suit or countersuit. Section 4(i).
  42. See also, Martin v. Abbott Laboratories, 689 P.2d 368 (Wash. 1984) (market-share alternative liability); Collins v. Eli Lilly Co., 342 N.W.2d 37 (Wis. 1984) (risk contribution theory); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 941, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (N.Y. 1989) (modified market-share theory).
  43. Sindell did not explicitly hold that liability would be several. This issue was directly addressed and decided in Brown v. Superior Court (Abbott Laboratories), 44 Cal.3d 1049, 751 P.2d 470 (1988).
  44. See, e.g., Report of the Tort Policy Working Group on the Causes, Extent and Policy Implications of the Current Crisis in Insurance Availability and Affordability at 33-35, 45-52 (February 1986).
  45. The Act does not require that a defendant have a conviction for drug dealing. Section 13(c). However, a defendant who has a criminal conviction under state or federal drug laws is estopped from denying his or her participation in the illegal drug market. Section 13(b). In addition, a conviction is prima facie evidence of the defendant's participation in the illegal drug market for a two-year period prior to the date(s) of the act(s) leading to the conviction. Id. Without such a presumption, plaintiffs may not be able to determine how long a defendant had been involved in the market.
  46. In addition to the district in which actual participation occurred, the Act presumes that participation occurred at the person's home, school, or work place. Sections 9 and 4(m). Otherwise, plaintiffs may have no means of determining where prospective defendants have been engaged in drug activity.
  47. Other restrictions involving type of drug and time of drug use are discussed in the next section.
  48. Of course, there would be other dealers, not discussed in this illustration, who could also be held liable. A jury would be charged with apportioning liability in much the same way as in an ordinary tort trial with multiple defendants.
  49. Harwin L. Voss and Richard R. Clayton, "Stages in Involvement with Drugs," Pediatrician: Journal of Child and Adolescent Health 14 (1987): 25-31.
  50. Ibid., 28.
  51. The defendant may rebut this presumption by clear and convincing evidence. Section 4(j).
  52. To ensure that a civil action does not interfere with a related ongoing criminal prosecution, the Act provides that the civil action shall be stayed on motion of the governmental agency involved in the prosecution. Section 16(b).