Potshots at "Head Shops"

From Washington, a model law aimed at drug paraphernalia

Youngsters in Atlanta are buying marijuana pipes disguised as Star Wars space guns. In San Francisco, a hot item, especially for Star Trekkies, is a glass cocaine pipe that is a replica of the U.S.S. Enterprise. In Washington, D.C., they are snatching up 18th century silver salt dishes ideal for snorting cocaine. More than 15,000 "head shops"* across the country cater to drug users; they are at the heart of a thriving drug paraphernalia industry that may take in more than half a billion dollars a year. So far it has proved nearly impossible to uproot the shops: virtually every state and local law banning the sale of drug paraphernalia has been declared unconstitutional by the courts. Now the Federal Government is stepping into the fray--and could emerge a loser as well.

The Carter Administration decided early on that new federal laws were not the answer; Uncle Sam's money would be better spent chasing big-time traffickers. Instead, the Drug Enforcement Administration (DEA) drafted a model anti-paraphernalia statute last fall that it maintains will withstand constitutional challenge, and began encouraging interested states and localities to enact it. The model prohibits, among other things, the manufacture, sale, advertisement and use of any object that is intended for growing or ingesting an illegal drug. The trouble with such language is that it tends to be overly broad. Authorities would have to prove state of mind since many items that are tools of the drug trade have perfectly legal uses. Because McDonald's coffee stirrers, for example, can double as cocaine spoons, the restaurant chain recently withdrew them from use. Garden shops, too, could run afoul of such laws: Who can be sure what sort of grass the customer plans to water with his new hose?

Courts will dismiss any criminal statute that does not meet the well-established test of telling a person of "ordinary intelligence" what conduct is prohibited. To satisfy this requirement, the DEA model contains a 55-word definition of "paraphernalia," describes in detail dozens of pieces of equipment that would qualify as paraphernalia if used in connection with drugs (including bongs, balloons and blenders), and spells out 14 factors to be considered by police and courts in determining whether an item is likely to be used for drug-related purposes. Still, the constitutional obstacle remains formidable: Deputy Assistant Attorney General Irvin B. Nathan, in giving the model but faint praise, called it "as constitutionally sound as possible, given its wide range." In congressional testimony Nathan went on to list the statute's potential drawbacks: invasion of privacy, increased bribe taking, and hard-to-obtain convictions.

Despite such caveats, Maryland's legislature this month enacted a version of the DEA model. Governor Harry Hughes, however, does not plan to sign it until he receives his attorney general's opinion on the bill's constitutionality. That recommendation could depend on a federal judge's ruling on one of the model's first offspring, a law enacted by the city of Parma, Ohio. The decision may also determine whether or not anti-paraphernalia legislation has a future.

*"Head" is slang for a frequent drug user.

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