Gorham v. United States

possession. Put for the reasons we delineate Gor sponsibility his acts of low ham, simple terms, supra. he asserts that he was compelled para- possess heroin and the is there- judgment of the trial court phernalia necessary to administer it due to fore drug. addiction to the

Affirmed.

Leaving all other considerations moment, aside for the think it would be we FICKLING, Judge, Associate with whom dangerous practice rest a decision of KERN, joins Judge, (dissent- Associate importance meager this on such evidence. ing) : in record at trial does not disclose adopt the dissent filed in v. We Gorham expert formation related to the witness States, D.C.App., United A.2d 401 appellant which led to his conclusion (No. date). decided compulsion psycho had “an overwhelming logically to use Nor is it evi heroin.”

dent what the basis for his con constituted appellant eu

clusion that had “a marked

phoric psycho effect for which he

logically dependent.” Nor are we advised finding

of whether the related addiction responsibility only

to criminal habitual All other considerations use. GORHAM, Appellant, Laverne F. aside, unacceptable we would find it to rest v. scope a decision of this on a trial record STATES, Appellee. UNITED inquiry which no shows into most of upon crucial issues and relied med WILLIAMS, Jr., Appellant, Chester testimony ical based a most v. cursory subjective appel examination of STATES, Appellee. UNITED lant that did not as include an ex so much Nos. amination of his arms for needle marks. Appeals. District of Columbia Court of beyond this, disposition But Argued May 17, En Banc

this case is controlled our decision to- day States, D.C.App., v. United Gorham May 7, Decided 5995, 1975), 339 A.2d 401 (Nos.

which, state, agrees as we there prior

exhaustive decision the United jurisdiction

States Circuit Court in this Moore, U.S.App.D.C.

United States v. 486 F.2d 1139 holdWe

“Congress’ prosecute and avowed intent to

convict users where indicated for necessarily

all nullifies this court’s crime

authority formulate a new common law responsibility

rule of which would drug users from crim-

insulate those same punishment

inal . . .” . Gorham Moreover, States, supra at 408.

United if such a were

we noted that even course us, fol-

open not choose to we would C., Keith, Washington, Langhorne

M. D. Ferren, Washington, with whom M. John C., brief, appellant on D. was Gor- ham. Hubbard, C., Washington,

Richard L. D. appointed by court, appellant Wil- liams. C., Macrory, Washington,

Ann K. D. participated in the argument of this case Franklin, appeal for William Russell whose appellants was consolidated those of with reargument and Williams for be- Gorham separate sitting fore the court en A banc. opinion appellant rendered in Frank- lin’s case. Atty., Cys,

Richard L. Asst. U. S. Titus, Jr., Atty., Harold H. whom U. S. Crimmins, Roger Terry, Robert A. C. John Altshuler, Asst. U. M. Adelman and Oscar brief, appellee. S.Attys., were on the C., Palmer, Washington, D. L. Robert Washington, Sayler, with whom Robert N. brief, Washing- C., for the was on the D. Drug ton Area on Alcoholism Council Abuse, Inc., as curiae. amicus REILLY, Judge, Chief Before KERN, FICKLING, KELLY, GAL PAIR,* NEBEKER, YEAG LAGHER, Judges. HARRIS, Associate LEY and * April Retired as

GALLAGHER, Judge: Associate ment advanced does not have the limited impact holding a rare concerning These cases were trial1 consolidated for duress, claim of or the occasional defense appeal. a panel on After of this court rather, deeply insanity,6 it would cut had issued decision Franklin v. United into the enforcement effort a massive States (D.C.App.) A.2d the court city. amount of crime in this en banc sponte vacated that decision sua sought defense to be asserted has appeals these consolidated therewith explored by rejected inch been inch sitting reargument before the court en by the Circuit a recent en banc decision presented is banc. The basic issue whether jurisdiction Court in this in United States a charged posses- criminal defendant with Moore, U.S.App.D.C. 375, 486 F.2d 158 v. posses- personal of heroin for sion use 1139, denied, 980, 94 cert. 414 S.Ct. U.S. implements (narcotics sion crime 298, (1973), L.Ed.2d 224 with which we 38 may raise an affirmative paraphernalia) agree. plurality opinion and the con defense of lack common law criminal all by Judge Leventhal searched currence to heroin responsibility due addiction. in this issue. Con the nooks and crannies retracing point in sequently, there is no outset, necessary, at the to relate will confine ourselves ground. We actually what this case involves where part peculiarities most to for the appellants’ contention leads us. We of additional and a discussion this case considering heroin addiction in the context considerations. past During years of crime. several increasingly become that “the has evident

problem prob- largely urban a crime I. PROCEDURAL HISTORY a user lem heroin addiction.”2 Once addict, procedure suggested an is then to to the

becomes bound Pursuant “[h]e U.S.App.D.C. States, 141 requires increasing a v. treadmill Watson United 442, 335, 346-47, (1970), 453-54 healthy 439 F.2d amounts of heroin to feel pretrial motion creasing the defendants made activity amounts criminal of 3 12 and the Super.Ct.Cr.R. reported under obtain the It has been dismiss heroin.” testimony extensive court received judges trial court “[s]ome experts behalf on their they appellants and percent found that of all the cases establishing that at history directed try was involve defendants which with prosecution precluded their addiction estimates “attribute heroin abuse.” Other Eighth under the hold-ups, charged offenses percent percent to March order issued on In an Amendment. and thefts committed burglaries, muggings There 1971, denied.7 the motion major urban centers the nation’s Amend Eighth here on the contention the accurate no heroin addicts.”5 Whatever issue, appear.8 argu- will be, the may ment percentage prevailing Brawner, 153 U.S. See States tried with 6. United were 1. defendants other Several (1972), acquitted App.D.C. F.2d were but and Williams Gorham points num limited out appeal. the court where failed to note involving acquittal reason of of cases ber Special Preven- on 2. Committee Crime ABA insanity. Perspectives Control, on Urban New tion and Appendix A to this set out as 7. order is New cited as [hereinafter Crime 25 opinion. Perspectives Crime]. on Urban at 3. Id. 44. disposed event, any been issue 8. States, United in Wheeler v. this court Id. D.C.App., A.2d 722 Id. appellants sought imposition guilty Before trial leave found of sentence suspended imposed.13 introduce that because evidence to establish and conditions criminally their addiction were Because stip- these cases tried were responsible, principles, under law common ulated appellants’ personal facts histories They of narcotics. made developed as to usage narcotic were not on proposed in proffer jury of evidence and However, the record now before us. support request structions of their Judge comprehensive Belson’s memoran- pretrial was denied order entered opinion A) dum and order (Appendix dis- again May trial 1971.9 At court posing appellants’ pretrial motion to dis- appellants’ denied evi motions introduce concisely pp. miss sets out these facts dence establish an affirmative defense 10-14. based on heroin addiction. Appellant guilty found of Gorham was III. THE PROFFERED DEFENSES possession possession of of heroin10 and Appellants, attempt in their unsuccessful implements parapher- (narcotics of crime dismiss, prevail to the motion to made on nalia) appellant found while Williams proffer jury of an extensive evidence and They crime. con- guilty only latter prof- instructions the trial court. to deny tend it was error to the motions essentials, fer, is its as fol- boiled down to sought an af- they wherein to establish lows: law of lack of common firmative defense addic- responsibility criminal due to heroin prove, through their Defendants offer to tion. testimony testimony, psychol- of own have inter- ogists psychiatrists who and II.THE RECORD them, viewed, examined, diagnosed and expert through testimony and of wit- Au Appellant Gorham was arrested on reputations have substantial nesses who 4, her was gust morning That room 1970. dependence, that of field Metropolitan Po by entered searched and dependent heroin each defendant was a to a Department pursuant officers lice arrest; that person at the time of [his] The officers discovered search warrant. to restrain from as such each was unable heroin powder containing quantity white heroin; injectable that further use paraphernalia which and various narcotics ' overpowering had desire or need each an facts these traces of heroin. On contained drug and to obtain taking to continue sen imposition guilty she was found with any it either because of means imposed.12 suspended probation and tence physical de- psychic dependence or the July Appellant arrested Williams was both; drug, that this pendence on the or him police discovered when a officer an dependence the form of over- took house in an abandoned seated on the floor craving or com- powering and irresistible various narcotics this city surrounded and taking pulsion continue all which contained paraphernalia, means; by any that this de- obtain it he was these facts heroin. traces of On an overwhelm- pendence resulted such Appendix year pital out-patient to this set as B 9. order is out basis one opinion. weekly (including surveillance thrice urine drug use), and § D.C.Code 33-402. job 3)that aas cook. she obtain 22-3601. § D.C.Code good imposed 1) be were The conditions probationary plan required 2) cooperation havior, 12. The the Narcotic that with 1) mother, 3) coopera Administration, she live with her Treatment and 2) she attend the Ad- with Narcotic Treatment tion Vocational Rehabilitation. D.C, Program ministration Hos- General ing involvement with the use crime (narcotics of heroin whose paraphernalia) supply possession personal only. and the their securing is use Sim- ply put, they argue dependent need to obtain and it use was the central heroin lives; compelled feature their that it result- individual commit impairment in a their ed substantial crimes of heroin nar- paraphernalia necessary controls and behavior lack choice cotics to adminis- directly control and caused the acts with it ter reason addiction. they charged. presently permit The trial court appel- declined

Concomitantly, appellants proffered develop support lants the evidence to they use of theory far addicted to the their were “so defense when it ruled as a habit-forming drugs proffered such narcotic matter of law that their test of with power responsibility lost the of self-control was not in accord addiction,” D.C.Code existing precedent reference to because was not [their] 24-602, (1970), 2901(a) 28 U.S.C. framed in terms insanity defense.14 § per- dependent “drug and that were ruling appeal from this using each heroin son^)” mainly taken. physical de- psychic or was in “a state of Supreme The United States Court has both, use of arising from the pendence, stated that contention that an in “[t]he a continuous basis” that substance on jury can amount to a crime when in take compulsion to strong were under “a by flicted no provincial intention is in or- basis the on a continuous substance transient notion. is as universal and to experience psychic effects or its der to persistent in systems mature of law aas by its ab- avoid the caused discomfort in belief freedom of the human will and a (q) (1970).

sence.” 42 U.S.C. § ability consequent duty and of the normal of proffered series Appellants then good individual to choose between in- to an which boil down jury States, instructions evil.” Morissette v. United U. acquit ac- the jury must struction the 240, 243, S. 72 S.Ct. 96 L.Ed. 288 beyond a rea- cused unless it is convinced (footnote juris (1952) omitted). this de- he not heroin doubt that diction, others, sonable respon as in most criminal of offense or pendent at the time the sibility frequently is discussed most in the para- narcotics possession of heroin or his insanity. area of we do What are asked to product of phernalia was a direct develop in this to case is a new limited in- be dependence. jury was to heroin because, responsibility doctrine criminal dependent person heroin that a structed appellants, according to its time has come. use if, long and intensive by reason process adjustment common the using ability to heroin, refrain the law, times, traditionally has been fit the substantially impaired. heroin is province of the v. Tex the states. Powell as, 514, 536, L. 88 S.Ct. U.S. language the proffer in Although the (plurality opinion). Ed.2d 1254 relating and local statutes of federal sense, appel- a medical drug in threshold, addiction must determine the We upon com- based defense is proposed however, lants’ Congress’ treatment of whether responsibili- mon law doctrines establishing subject precludes the us from to have extended they seek ty responsibility of criminal a new rule addicted for the heroin provide addiction, a defense if so in- drug we were area charged with who is individual clined. implements possession of of heroin States, Durham-McDon g., 214 F.2d 862 14. E. v. United McDonald (1962); United States U.S.App.D.C. 120, ald was modified Dur Rule F.2d supra Brawner, U.S.App.D.C. States, note ham v. United persons, drug dependent, whether or not THE SCHEME IV. LEGISLATIVE all for the violation of federal narcotic laws. questioned judges who were Unlike we in the legis What see current federal M’Naghten’s by House of Lords by Congress lative is an effort scheme case,15 legis- with a we are confronted provide agencies federal law enforcement drug abuse as in the lative vacuum area comprehensive flexible vehicle determining were in whether problem drug abuse for diminution of the responsible for their should be held sane most un confronting country. It is most moder- Congress, as well as acts.16 anything less likely Congress intended country, has ately in this persons informed e., Columbia, one for the i. District of highly heroin is ad- long been aware that standard for the of Columbia District are, or heroin users dictive and that most pros applied through another to federal become, Every likely drug addicts. Congress ecutions here and the states. relating to congressional enactment recent do, recognized, is no all that there we large recognizes drug narcotic abuse simple must be solution to abuse. It country.17 More- in this population addict per young educating attacked over, instead by providing for treatment ; importation of by curtailing illegal ils pe- to, in a of, incarceration or in addition drugs country; by prosecuting into the ad- facility, Congress recognized nal trafficking misery by those who trade penalties.18 subject dicts are to criminal last, drugs. Perhaps but nonetheless been concerned with Congress important, enforcement line of offense is drug abuse since 1909 problem narcotic not neces prosecution, control but nontraf-ficking Act.19 sarily imprisonment, it enacted when Jones-Miller Narcotics Harrison part followed of the overall This was ct.22 It is a addi This in 1914. pursue narcot Ac t20 which was enactee enforcement scheme to histo variegated is an legislation long had This ics into the hands of the users. examining After into the en ry investigative of enforcement.21 method and fits abuse, drug dealing with in relation to various studies tire enforcement effort law Drug responded Congress in with 1970 narcotics. reduced, but nonetheless Act which Control empowered to su pos are not simple Courts

retained, penalties for criminal persede As we will legislative will. demon drugs. This narcotic session of show, to do here of, have been asked and what we Congress knew strates to us activity, purely legislative engage is to conviction intended, prosecution and Advisory Eng.Rep. (H.L. 200, on Narcotic Commission President’s & 718 15. 10 Clark F. Report (1963). Abuse, Drug 1843). Final supra 390, Moore, 18. 21 § U.S.C. 16. See at United States v. 411, 1154; id. at 486 F.2d 486 F.2d at 2, 9, 1909, 100, 19. Act Feb. c. 35 Stat. § concurring). (Leventhal, J., (repealed 1970). See, g., Drug e. and Treat Abuse Office 17, 1, 1914, 1, 20. Act of Dec. c. 38 Stat. § 1972, 92-255, ment Act of 86 Stat. 65 P.L. (repealed 1970). Comprehensive Drug (1972) ; Abuse Pre 1970, 91- vention P.L. and Control Act of Moore, supra 21. See United States 451- Drug (1970) [hereinafter 84 Stat. 1236 (Wright, J., F.2d dis- at 1215-1229 ; Re The Narcotic Addict Act] Control senting) . 89-793, habilitation Act of P.L. ; many 22. This is an inexact term as addicts [hereinafter NARA] Stat. support sell a small Enforcement on scale to their own President’s on Law Commission Justice, Challenge habit. and Administration (1967) ; Society, in a Free 211-31 Crime funding a programs, provides for simply.23 func narcotic This not the court’s controlling drug for national commitment tion. abusé, Congress’ demonstrates concern Statutory existing The Federal civil marginal Scheme over the success of narcotic rehabilitation efforts. criminal Drug Abuse Office NARA24 and the Act,25 legis judicial and Treatment recent federal rely These enactments ex lation, or, persuade Congress discretion, us that prosecutorial the case ap preference a flexible Treat- pressed Drug for Office and the 1972 Abuse Act, discretion, narcotic addiction proach dealing with for invok- for ment executive sys provisions. Although emphasiz- federal criminal ing both in and out of the their they certain addicts ing tem. Under NARA also possible, rehabilitation where for com charged eligible beyond Congress crime are intend- dispute with show else, lieu users, for drug anyone mitment treatment ed like to come charge prosecution,26although pos- the criminal prohibiting under the narcotics statute pending Moore, result abeyance held in supra. session. United States v. eligible for treatment. addicts Other Statutory Local Scheme if imprisonment in lieu of treatment crime,27 of a federal have been convicted statutory is not unlike local scheme Our crime are charged and addicts not heroin is Possession of federal. eligible civil commitment.28 33^102, offense, D.C.Code § statutorily available and treatment Drug provides, Control Act of 1970 et addicts, 24-601 D.C.Code alia, simple penalties inter for criminal statute, Re- seq. This latter Narcotic narcotics,29 possession enlightened dis Act, clearly that habilitation demonstrates offenders,30 imposes position first to sub- Congress did not intend treatment heavy penalties offenses for more serious by ad- stitute for conviction for such manufacture or dis as unauthorized that addicts dicts of heroin but rather Al tribution of controlled substances.31 exemption given no from conviction: traf between though distinguishes the Act nontraffickers,32 the distinction fickers and 24— purpose of sections 24—601 pro gravity relates to the safety of protect 611 is to the health and conduct, particu scribed not to whether people of the District of Columbia convicted for lar class of offenders can be drug addiction and from the menace of their acts. opportunity user afford an intends Congress for rehabilitation. The and Drug Abuse Office The recent 33 be en- Federal Criminal laws shall an of- Act of 1972 establishes Treatment well oth- against drug forced users as as federal coordinating for the various fice (1970). 26. 28 2902 § U.S.C. apparently misunderstands 23. The dissent “condem- this statement and states that our seq. (1970). 27. 4251 et § 18 U.S.C. recognition rea of a new mens nation of the judicial ‘legislation’ ground defense on the seq. (1970). et § 28. 42 3411 U.S.C. misconception a involves fundamental (1970). 29. 844 judicial say § process.” U.S.C. that an we What may supersede appellate the ex- court not 30. Id. always barring, pressed legislative will — unconstitutionality. Otherwise, course, we seq. (1970). et § 31. 21 U.S.C. legislative usurping the function of the prop- this branch. We would have considered Cong., H.R.Rep.No.1444, 91st Id. See 32. nigh indisputable. osition to be well Cong. (1970), Admin. & 2d U.S.Code Sess. p. News, seq. (1970). et § 28 U.S.C. supra. 17, supra. 33. See note 17 See n. persons, er and shall not he drug insulate those same users from [the Act] crimi- punish- used substitute treatment nal punishment, if even we were so for ment which, cases crime committed clined for reasons that will appear, drug users. D.C.Code 24-601. we are not. (Emphasis added.) passage Prior to the of the Narcotic Reha- V. EASTER v. DISTRICT only

bilitation Act available OF COLUMBIA part treatment was as a criminal sen- Appellants passage place reliance

tence. of the Act ad- considerable With upon the charged dicts decision in District with a could Easter v. crime seek Columbia, U.S.App.D.C. procedures. treatment As F.2d through civil misplaced. This Congressman Miller, and reliance De the author floor Witt Easter bill, explained was a who manager of the chronic alcoholic : arrested, a tried convicted . . . The should not be addict[s] public charge of drunkenness.36 He as go through proce- a forced to criminal serted three his conviction why reasons many dure as do now States by enacting could not 1) Congress, stand: get stigma ade- suffer order Act, the Alcoholic pre had Rehabilitation quate treatment for their addiction. [99 punishing cluded chronic alcoholics for Cong.Rec. 2241.] public drunkenness, 2) the common law rules responsibility precluded of criminal Rehabilita- purpose of the Narcotic conviction, 3) Eighth Amendment provide tion civil com- Act was prohibition against pun cruel unusual users. The procedure drug mitment ishment any punishment being barred Act operates independently of the imposed. system. NARA went fur- federal] “[The provided ther and for civil commitment view, Congress Only the first did crimes, persons charged even punishment intend the chronic alco- related of crimes deemed case drunkenness, public holics for commanded United (with exceptions),” certain abuse majority v. District court. Easter Moore, at at 486 F.2d supra States v. Columbia, 43-44, supra at 361 F.2d concurring), whereas (Leventhal, J., here, however, 60-61. is asserted justice in the local criminal those addicts closely the 1947 involved in Easter statute penal system institutions are treated Rehabili- resembles the 1953 Narcotic D.C. probation34 and

through conditions Act, supra, tation and that Con- discussed full contemplates parole.35 This statute gress thereby do the same intended to against laws of the criminal enforcement thing for addicts the 1947 stat- narcotic as per- other as well habitual "users persons, alcohol-dependent ute did sons. punish- precludes that the Easter rationale ing heroin. addicts impelling consti In the absence Easter, however, finding rested role it is not our considerations tutional alcoholics Congress had excluded chronic judgment. Con legislative supplant persons who could be from the class of and con prosecute gress’ intent avowed public drunken- criminally for for all convicted indicated drug users where vict Rehabilitation In the D.C. Narcotics au ness. court’s necessarily nullifies this crime hand, Act, Congress has re- the other law on a new common formulate thority to be enforced quired narcotics laws would responsibility rule criminal of 1961, 25-128. 1973, § 36. D.C.Code 16-710. § 34. D.C.Code 24-204. § D.C.Code Act, makes the the Alcoholic Rehabilitation per- other well as drug users as against any inapplicable person former sons. offense, whether charged criminal with a its deci- not base Court did The Circuit otherwise, information, indictment, or the Al- particular provision of any sion on person is under sentence or the said if Act, ex- but rather Rehabilitation

coholic offense, he is whether for amined the Act as a whole: sentence, probation is on serving the or treat enlightened The full flavor parole, or has released on bond been Congress, demon subject by ment of pending appeal.38 al the chronic strating intention that its differences There are valid and rational processes subjected to civil coholic be between addiction to heroin and alcohol. rather public, in when found intoxicated legal, The first al- obvious: alcohol criminal, can be than as a convicted though regulated, prohibit- heroin is while gathered perusal full complex and is ed. second is more of Act District Co of 1947. [Easter fairly stated as follows: lumbia, at 51 n. supra at F.2d 34 n. 2.] Alcohol, say, consequences some has will many society for individuals and for provisions Re- The two of Alcoholic heroin, least as destructive as those of habilitation Act which the court focused yet no one propose returning would to a alcoholic, were the of definition chronic system prohibition. Alcohol and her similar which is to the definition of however, oin problems, are different 24-602(a), user section and the purpose medically both legally. A far small of the Act: proportion er of alcohol users than of any heroin users become addicted chapter purpose meaningful term; sense of that the risks jail sentences . . . to substitute for experimen average individual of medical and other scien- drunkenness accordingly tation are far less in the will tific methods of treatment which former than in the latter And of case. benefit the individual and more involved alcohol, those “addicted” to there have fully protect public. D.C.Code “cures,” larger proportion been a added.) (Emphasis 24-501. § though many not as as one would wish. contrast, purpose of the Narcotic widespread Finally, is so as alcohol use Act that Con- Rehabilitation demonstrates universal, nearly to be while heroin use gress did not intend treatment to substitute relatively remains an habit exotic possession by conviction for addicts few, presents problems easier thus no given heroin but rather that addicts this, Perhaps because control. exemption from conviction: society while no advanced has been able use, every virtually to eliminate alcohol crimi that Federal Congress intends elimi but ours has been able to society against nal enforced laws shall be nate, keep trifling proportions, her persons, and users as well other [the original.] Wil [Emphasis oin use. treat to substitute shall be used Act] Wheat, son, The Problem Moore & crime punishment in cases ment Heroin, 26-27 The Public Interest (Emphasis by drug committed users. added.) Easter, Moreover, Congress, light Re- Moreover, provision the Narcotic agreement with made unmistakable Act, conspicuously absent habilitation (b). 24-603 D.C.Code 24-601. § D.C.Code Proper that As amended in the Addiction in its Context decision. reads, part:

statute now important It is recognize at the outset public dealing that we are officals in the here with heroin addic- District of [A]ll tion in cognizance Congress Columbia the context of has shall take crime. public heroin, fact made it a possess that intoxication shall crime to be D.C. han- 33-402, Code public problem, despite dled as a recogni- health rather users, tion than as that offense, primary a criminal narcotic that a possessors heroin, person- might chronic alcoholic is a sick from a medical who needs, viewpoint to, addition, society is entitled pro- and shall be addicted. judicial vided appropriate medical, system psychiatric, is confronted with institutional, heroin advisory, addiction in the context of other and rehabilitative crimes, person, property, against treatment those highest services of the caliber community. his [Emphasis supplied; illness. D. C.Code § 24-521.] Drug addiction is an individual medical permissible It is not to apply the con- degree characteristic. The of an individu- gressional intent underlying statutory one predicts al’s addiction the amount of heroin another, scheme to different, significantly required support craving his or her statutory scheme. The statutes are mu- drug. But the is not free and tually problems exclusive. Both deal with cheap. priced is the mar- Heroin is of human conduct that have a disabling ket the available at a level that is set impact on society in general. Congress, abil- supply, and the the amount of demand legislative voice attitudes, of societal ity monopolistic of a market structure judgment made its clear. Two forms for the high price possible as exact addiction, medically distinguishable, are addicts, commodity. results, for most This to be handled in ways different they when daily requirement in a for heroin dollar are accompanied by criminal conduct. greater if is than their income Once legislative judgment apparent, it, any. have the addict can afford Unless our role ends unless there is unconstitu- community support his he turns tionality. addiction. support VI. THE community COM- addic- OVERWHELMING does PULSION TO income POSSESS AND sources of willingly. tion Two directly USE HEROIN 1) available: addict or, crime, 2) by the sale through street pivotal appellants’ position fact in addicts. drugs to other small amounts that heroin addiction causes or creates in support that most addicts “It is well known them an “overwhelming compulsion” to criminal activities.” through their habits possess and They posit use heroin. therefore, dubious, purely this to view “compulsion” negates “free will” thus crime”, there is such as a “victimless if removing choice, any meaningful in the le- long run thing profound in a In the sense. gal sense, to refrain from or use is self- to addicts the sales from addicts of narcotics. new service perpetuating as older addicts sup- Even addict who cannot accepting propositions these Thus the as val- addicts. id, so, legal means contrib- port through we do not habit do we concluded community in two misery urged upon the affirmative defense us utes to the through the commission ways: should not receive the sanction of distinct property or against person or court. crimes Legal Treating Am.J.Psychia Lowinson, Langrod Alperin, Addict, & 130:5 Services try

4H perpetuation, Drug mission on Marihuana and through enlargement, if not Abuse personal possession and the The The services available are offenses. extensive: question basic it is fun- would be whether Project enjoys The Narcotics Diversion deny the defense as- damentally unfair to “cooperative program” status aof the com- serted here. We discussed with the Narcotics Treatment Adminis- munity’s by placing interest addiction its Thus, multimodality tration. narcotics proper context so we turn now the indi- maintenance, treatment —methadone vidual addict.

methadone or abstinence detoxification penalties —is possession for are Participants will retain available. substantial41 status of but our local law has never clients of NTA while in the Project. However, required mandatory penalties job counseling, all development supportive caused carefully the federal and statutes to be services will provided Moore, staff, be Project by reexamined. See United States v. who employees supra Superior 402-10, (Leven Proj- Court. 486 F.2d 1166-74 thal, participants Project ect J., report concurring). probational dispo A will counselors, coupled existing stationed at an NTA requirement sition with a that the outpatient weekly. facility, times several defendant seek and remain in a treatment program is available all cases at the dis High-intensity counseling on a individual cretion of the trial court and inwas fact integral is an fea- small case-load basis utilized in these cases under See review. family Group ture and Project. nn. 12 supra. and education, job de- counseling, remedial

Moreover, Superior services, Court velopment placement has re- assist- and cently inaugurated pilot pretrial diversion housing and stamps, ance with food program abusers called The Nar- Initial be provided. medicare will also Project cotics Diversion which is available counseling sessions report for failure to charged to those with of narcot- in outreach result appointments or will operates ics. as follows: par- delinquent Project by staff locate for their ticipants, identify reasons program . . will di- . The . absences, to return encourage them out of the

vert selected abusers participation. to active ar- process, after regular justice trial, and offer raignment but before be year, will Project, during its first of narcotics program them an intensive pro- pilot carefully monitored a small treatment, supportive counseling and professionals a dozen gram. A staff of diverted defendant services. Provided a two including paraprofessionals, progresses satisfactorily and is not rear- coun- developers and four job full-time pro- in the participating rested while 100-1S0 selors, an estimated will serve be gram, charge(s) against him will it, warrants intake participants. Once by the prosequied nolle Office bewill volunteers skilled the services of Attorney.42 United States subsequent any imprisonment; and for 33-708(a) provides: D.C.Code by nor $500 less than of not violating any provision a fine person Any offense imprisonment by $5,000, by or regulation than chapter, any more made or of this by exceeding years, such both ten or Council] under of Columbia [District imprisonment. authority chapter fine this shall offense, punished, first for the conviction Columbia, Superior District of by Court more than nor $100 a fine of not less Project imprisonment Diversion $1,000, by Narcotics for not than exceeding year, fine both such one actively sought augment the control of the defendant order to likely to be rebutted evidence Project nature regular staff.43 government. this available to the With promising approach think this is a We point little prospect, there would be humanitarian attempt to accommodate prosecution users arrest or of known the criminal aspects problem of this possession. realistically, Viewing it justice Diversion, probation and system. possession legalization would amount to the the incarceration are methods society would the narcotic. What community chosen in reaction has now through government telling the citi- the be a possession. At mini- the crime of heroin zenry the especially young? mum, the nontraf- criminalization forces eyes longer young, of the there would no seek out treat- ficking addict who not will societal, governmental, say, be made ment into the treatment facilities possession narcot- restriction on or use of sys- through justice the criminal available ics. good all concerned. tem. to the This is from able to refrain The addict who is says that who The dissent individuals processed usage after he has been heroin addicts are to become most likely system person- through this benefitted has punishment of nontraffick- deterred community no ally has the which will as possessors. might say just with ing One longer support have to his self-destructive significance individuals who as much ef- habit which carries with it a harmful apt by the are most to rob are not deterred society. fect on robbery though Even criminaliz- statute. hardly ing possession of narcotics has we have concluded that Because a stopped it would be narcotics addiction existing justice system as it especially society, and thing worse pertains possession to the heroin offense young society, government if the were comports, balance, concepts with our It would be remove even these barriers. justice, elemental not consider the we need think that if this were undiscerning to issue of whether the asserted here defense by the done it not be considered would kept a grounds, could be within verifiable as, effect, approval. How youth tacit yvith skepticism factor viewed in United much worse this would be. Moore, supra 417-21, States v. 486 F.2d (Leventhal, J., ap-

at 1181-85 concurring). jurisdiction If in this It is the trend judi humanely the dissent’s affirmative defense and to utilize proach problem were cially recognized actuality justice system primarily is that to es as the criminal tablish addiction punish one would need show a means addicts accompanied habitual use an assertion a to control its the substance but as method it, compulsion proposition to use with- and also locate addicts distribution however, by (41.0 percent) concerned, Id. for enrollment We are 32 of them following passage 15, 1974, July dis- reason but from the due to no other conferences Quarterly Programmatic Progress Report downright noncooperation on the interest or Project Superi- part Id. cases. the Narcotics Diversion of the counsel those of defense page omitted.] Superior Court District Columbia: [Citation problems developed al- which over Court note also We quarters poor cooperation last two from a indicated concern: so — keep segment bar, coupled part sizeable the defense on the of counsel [F]ailure Project representatives eligibility appointments with restrictive criteria— scheduled hamper Project Project continued to intake. Of Office U.S. of Attorney concerning the 78 defendants client enrollment who were screened eligible paper” quarter special the Court “on this who concern e. viewed with —i. ap- grounds misdemeanor, may had a the removal of nonviolent and had no prior felony pointed Nar- [The case. violent misdemeanor convic- counsel Project Project, supra 42]. tions —the was unable cotics Diversion n. to schedule bring- where, many may, system run, them into the treatment long serve the instances, they community are shunted into treatment upset We well. would not now opportunities escap- with the incentive of multi-pronged balance effort imprisonment ing by cooperating, open so, even if it were to the do court to provides strong turn statutorily con- which deterrent. We is not. problem requires sider that this entire Affirmed.

pragmatic approach and we are inclined to experience observe results of current APPENDIX A

resulting from narcot- studies the recent epidemic.44 Fingarette, ic See Addiction SUPERIOR COURT THE DISTRICT OF Responsibility, and Criminal 84 Yale L.J. OF COLUMBIA-CRIMINAL 413 (1975), penetrating analy- for a recent DIVISION problem. sis of the Nos. 28001-70 appellate We know of no decision that 29895-70 approved has this affirmative In- defense. 42860-70 terestingly the National on Commission AMERICA UNITED STATES OF Drug Marihuana and Abuse recommends that primary purpose of enforce- “[t]he possession ment of the laws be the should WILLIAMS, ARNOLD CHESTER persons detection and selection of those SMITH, LAVERNE GREGORY by preven- who would benefit treatment or FLORENCE GORHAM tion services.”45 ORDER MEMORANDUM

VII. CONCLUSION cases come before These consolidated dis- upon addic dealing We are with heroin the defendants’ motions Court activity. tion in defend- the context of criminal miss the The three informations. charged Had it to “le or more of Congress left available to us ants are with one galize”, effect, possession possession a narcot- following in of heroin offenses: heroin, by addicts, not, the Uni- nontrafficking drug, it has ic in violation of which Act, upset 33-402 doing might our so well the delicate form Narcotic D.C.Code § implements of community (1967); possession balance in this that of the of efforts crime, wit, in vi- past paraphernalia, narcotic had marked over the sev success and years reducing eral in heroin addiction olation of 22-3601 (1967); D.C.Code § desoxyn, possession dangerous drug, a opinion here. are of the that the con We (3) (q) in city’s (B) heroin violation of U.S.C. tinuation of this efforts on §§ ground (2).1 The defendants through 360a(c) addiction and and law enforcement Sponsored Returns, Study report Drug relating A 44. In a the results of User recent Drug Special study continuing Action Office for a in of men who had served Prevention, (Sept. 1973).] narcotics, X and had Abuse Vietnam there used stated: heavy [D]rug in Per- In Problem Most of the men who had been us- 45. Use America: spective, Report National in Com- ers of narcotics had not used Second Vietnam Drug any they Abuse 273 since their return. deterrents mission on Marihuana 1973). frequently expense, (March, cited most were fear addiction, high- and fear of arrest. Men charged ly dependent un on is also narcotics Vietnam who Defendant Smith they entry. dismiss does said had been as His motion to detected users lawful go charge. also Defense counsel DEROS because too addicted to were possession quit highest charges of had the risk use and readdic- dismiss the move to against implements all three tion after return. But half of of crime these men stopped ground entirely return, the statute narcotic use defendants on the posses- question to extend became Vietnam was not intended [The readdicted. 14% logic Congress their motion to dismiss on the contention did not in- either charges expose pertinent non-trafficking that at the times to these tend to addict possessor punishment, they were addicts who did not or (2) narcotics unavailing its effort as but who were under to do so is con- traffic narcotics possess drugs stitutionally as compulsion to and use the the California therefore, Watson, who, legislature.” 439 F.2d question supra, under Clause Cruel Unusual Punishment Eighth Amendment of United meaning The first ascribed the U.S. Constitution, crimi- cannot be held States Appeals Court of to Robinson has limited responsible Their nally for their actions. relevance to the case at bar since de- these motions are denied. prosecuted, fendants are not as was being

Watson, for violations of the Harrison Act, 4704(a), I. Narcotics or the 26 U.S.C. § Act, 21 Those U.S.C. Jones-Miller attacking motion informations possession statutes do not make mere dismiss, have followed defendants Rath- narcotic a substantive offense. procedural suggestions substantive er, they proof of are so constructed that Appeals United States Court of of the narcotic makes the District of Columbia set forth Circuit possible the conviction of defendant for States, U.S.App. Watson v. United prohibited acts, variety other such 442 (1970). Although D.C. 439 F.2d selling dispensing narcotics limiting holding its to the matter of the eli paid. appropriate been In taxes have not gibility of sentencing the defendant for un locally applicable the Uniform Narcotic der Title II of the Narcotic Addict Reha Act, however, Congress, knowl- the with 1966, bilitation Act 4251- of 18 U.S.C. §§ edge phenomenon of the existence of the Appeals in United States Court of addiction, specifically of it a crime to made great length Watson discussed at the ori possess Accordingly, it is heroin. .to gins of the es defense raised here. meaning second which the Court U.S. sence, prof the defendants’ contentions are Appeals that the de- ascribed to Robinson necessary corollary fered as a to the hold fendants in this directed their Court have ing Supreme of the in United States Court arguments. California, Robinson v. U.S. Again following suggested in course that the (1962), S.Ct. 8 L.Ed.2d 758 Watson, an ex- the defendants have made by State California was barred embracing testimony of tensive record Cruel and Unusual Punishment Clause defendants, all their three counsellors prosecuting a addict for his heroin programs narcotic treatment which The “status” of addiction. U.S. Court presently enrolled, psy- are and two Appeals its the mat summarized review of government chiatrists. The countered ter as follows: adducing testimony psychiatrist aof that, deployment and, “So it is if Court, Robinson’s response request to a by the of the Eighth Amendment as barrier to arranging presence a for the of three court making California’s addiction crime concerning who testified various witnesses anything, means it must mean all aspects drug programs.2 also of local paraphernalia. transcript hearings, consisting sion of narcotic Those mo- 2. The completed February pages, tions are denied inasmuch as the D.C. Court Appeals repeatedly has sanctioned the chal- lenged application statute, g., McKoy e. States, v. United 263 A.2d portant to this

II. case is the fact that heroin and methadone are cross-tolerant. As a There was agreement among substantial result, physiological a heroin addict’s crav- psychiatric both the lay witnesses that ing, dependence or need for heroin can be compo- narcotic addiction two main satisfied the administration of metha- physiological nents—the dependence and While the latter can be done. adminis- psychological dependence upon or at- intravenously, orally by tered it is taken traction for the drug. physiological persons programs. abuse When so aspect of addiction is characterized administered, produce methadone does strong physical craving for the narcotic “high.” One administration of metha- drug, symptoms the onset of withdrawal if every protects done hours heroin satisfied, craving phe- is not addict from withdrawal and severe at- tolerance, nomenon of means which approximates tendant discomfort, which the addict becomes used a certain level symptoms case of of a severe influen- dosage of a and must raise to a za. experience higher level in order to through There are two methods which “rush,” sought-after “high” or a brief feel- methadone is treat heroin addicts. used to pleasure ing intense is obtainable dosages can furnished with The addict be drugs by the intravenous injection gradually dimin- of methadone which opiate family obtainable to the and is period ranging time from 5 ished over highest degree through the use heroin. days and detoxified to 30 thus principal of ad- component The second is no longer minimal He then discomfort. dependence or psychological diction is the Alternatively, an physiologically addicted. regard which the has with attraction addict be “maintained” on methadone addict can aspect ex- drug. psychological to the indefinitely period an extended re- physiological apart from ists experience withdrawal. thus never after he has mains with an addict even amount which use of methadone in an de- has been through gone withdrawal sufficient, prior addict’s lev- view of the therefore, longer is, physi- no toxified use, only avoid with- el of heroin will substan- dependent.3 was There ologically drawal; prevent it the addict but will also an strong pull of that a agreement tial “rush” if he should experiencing from a exerted psychic is or nature emotional period the metha- the during use heroin of addict that constituents the in practice The done dose effective. the need for pull attraction the are that gradually the increase maintenance feeling of the the and also need for “rush” a level that dosage to such of methadone follows the tranquility which euphoria or by needed the heroin makes the amount of testimony that a There was also rush. great, and experience “rush” so a addict to de- psychological- constituent of the third beyond it is accordingly that expensive, so ten- psychic pendence presence the was practice is This most reach of addicts. amelio- existed and demanded sions which aof to as the administration referred drug. through the use of a ration “blockading” dose.4 “blocking” or to terminolo- stipulated there is a agreed parties that also The witnesses drugs. customary Im- measurements concerning between gy cross-tolerance certain testimony Wurmser, psychiatrist, the effect also Dr. testi- was some Leon There One regarded some res- with in -medical methadone is fied that there is belief certain that many physical suspicion in ad- remain that characteristics ervations circles testimony community, period Court for a endure dict after withdrawal negated substantially regards the fact Dr. did not share as months. Wurmser several persons testimony belief, are now and there before immense numbers is no that using physical indicia methadone. effect that the Court withdrawal. survive of addiction market, Washington, approach heroin on the person-to-person D. C. moti- the ex- proven as set forth the footnote.5 To vation which markedly has success- foregoing gen- cases, tent underlie ful in example, facts some that of the erally by this the conclusions reached defendant Smith. motions, they in disposing Court of these A third source of generally methadone findings

are considered of fact. available to addicts in the city, appar- known, Dogoloff, Deputy ently widely Louis pre- Mr. Director of has through been scription by private physicians. sum, the Narcotic Treatment Administration (hereinafter “NTA”), widely testified that there methadone was available and its 10,400 approximately availability addicts in the well known in the addict com- munity District of He stated as of as of Columbia. the time offenses July (the period pertinent charged against time the three defendants every these such had ac- these addict cases. motions) through cess to methadone NTA.6 Almost Apart general from the matters of

2,000 persons actively were enrolled agreement above, psychia- discussed percent programs, NTA’s of whom widely varying trists who testified held voluntarily came and the remainder important aspects views of of addiction. through referral court or correc- psychiatrist The first the defense called systems. tions Kaufman, graduate

was Dr. Harold a 1957 gradu- NTA not the source of metha- of Harvard and a Law School done available to the heroin addict as of ate of Medical School of the Universi- charged the time of the offenses here or as ty California at Francisco. He tes- San hearings. of the time of The Black- tified that he believe that addic- does not operated Rather, Development man’s Center also tion is be- a mental illness. he publicized campaign highly physical intensive lieves that it is a illness which against drug through abuse centers psychological components. four He also parts city. merely located in person various the belief that who is judicial psychically dependent drugs, chief officer of the Blackman’s but not dependent, may Center estimated that had at one time physiologically act under 17,000 respect or another enrolled addicts some compulsion. Specifically with aspect Gorham, programs of their the time of he testi- defendant Laverne testimony, approximated roughly psychic de- fied basis her that on the Washington population “overwhelming pendency area’s addict alone she had 30,000. 1,000 actively enrolled compulsion” day Over were to use heroin on testimony. as of opinion the time of his even her He was of that arrest. supplied using Blackman’s Center has addicts heroin though was not then (1) she with methadone in a de- inter- using connection with was regular on a basis but regimen using toxification and has buttressed mittently, (2) she was methadone parties stipulated capsule equivalent bags generally have one is to 15 that $10 pill cap capsules. or or of heroin milli- consists of 50 grams substance, powdery approxi- of white mately eight percent testimony is, three to of which there was of the time of his As Washington, market, period waiting who the D. C. heroin and the an addict a two-week cutting diluting rest of is material. in an NTA meth- which enrolled wished to become price However, counselling program. an The retail market for heroin at most adone and proceedings applied an- $1 times relevant to these he referred would addict who Develop- per capsule. “bag” generally agency, A of heroin con- Blackman’s such as other equivalent capsules Bonabond, he could sists of the of ten where ment Center dosage detoxifying accordingly Bags half sells for that a $10. obtain methadone program. acceptance pending size have available. the $5 sometimes been his into “spoon” approximately A of heroin is two block her physiological craving, compulsion rate the to take a drug from she had obtained degree compulsion some of control the to steal or rob to obtain over her actions. He testified that the purchase funds to drug. He also testi- it, “compulsion,” word as he a used covers fied that legal prevents barrier the ex- “ranging wide variation from inclinations istence greater of an even number of her- hand, on the one inability and the to resist oin explained addicts and that the more il- in the face of death on the legal other.” He activity question the more com- also testified no that an addict who had pelling must be the motivation to induce drugs other source of other than to obtain transgress one to legal barrier. money compelled would be to obtain mon- opinion Dr. Wurmser also stated his that

ey. acknowledged invoking He that the can overwhelming addict have an com- legal process to force an individual to pulsion psy- to take heroin on the basis of go through his program with to cure ad- alone, dependency chic even where he is diction sometimes beneficial and in the dependent physiologically upon only way case of some is the addicts drug. qualified opinion by noting He that that achieve result. in the fluctuations amount tremendous psychiatrist The second called the de- compulsion individual. He facing each fense was Dr. Leon The Court Wurmser. taking a also stated that if an addict weight attaches considerable to his testimo- he not in blocking dose methadone will that ad- ny. Dr. testified Wurmser overwhelming compul- most cases have an an emotional disor- diction itself high, although sion for a to take heroin illness, that there der or mental but rather compulsion even some could have such invariably an experience is in his almost circumstances. under those underlying pathology pre- emotional which disposes psychiatrist favored Phillipson, one toward addiction. He Dr. Richard following opin- government, the use of methadone for the stated called freedom of reasons: that an has some ion addict further use of to his respect choice with copes physical (1) It with addict’s cited position support narcotics dependence upon heroin. of addicts thousands the fact and have requisite made the decision extent (2) It deals to a considerable He testified stopped using narcotics. dependency, sub- psychological with they are unless addicts have choice reducing greatly stantially eliminating or “disease is, suffering from a sane, that experiences even craving one He reason.” mind” or a “defect re- dependence has been physical after thing such there is no testified further moved. compulsion” to use “overwhelming as an statement narcotics, and he based addict’s emotional (3) It eliminates con- addicts conversations part on his dependency heroin. stop ability to of their extent cerning the using narcotics. stressed, however, that Dr. Wurmser pro- as administered methadone that the use stated Phillipson also Dr. He shares grams give cannot the “rush.” physio- the only eliminates not methadone which program general that the view addiction, also but the aspects of logical but did methadone merely administered de- psychological addict’s of the takes care more, counselling, would give such as that sense, qualified but in a pendency program. an cure effective the body from the separate “you can’t how- opinion, In his Kaufman, plainly.” mind explicitly than Dr. Even more an addict for ever, easier very much it is sepa- cannot that one stated Dr. Wurmser psychic dependence to resist placed to had alone than also program himself the of resist physiological psycho- combined the Development and Blackman’s Center from logical dependence. September to of the first two June

weeks of which involved another metha- III. done program detoxification and the bal- ance of which consisted of supportive Before treating legal the of issues raised jail counselling. Following his term but here, it appropriate to describe in more prior to his enrollment with .Black- detail surrounding circumstances Development Center, man’s Mr. Williams , charges against three defendants. had private two “consultations” with a Williams, Jr., pos- charged Chester with physician prescribed dolophine (meth- who wit, crime, session implements of to adone) him. “consultations” cost narcotic paraphernalia, in violation of D. $10, prescription and a of tablets of do- possession C.Code dan- 22-3601 of a § lophine an cost additional $2.75. wit, desoxyn, gerous drug, to in violation Mr. Williams stated that prison while in (q) of U.S.C. (3) (B) §§ he physical had no craving heroin, but 360a(c)(2). alleged Both to offenses only a or psychological mental craving for July have occurred on 1970. Mr. Wil- Similarly, it. acknowledged he that while years age liams now 35 been using methadone he craving had no using heroin supple- since 1965. He has heroin. He stated that he took heroin to desoxyn mented heroin or “Bam” get a high feeling or a of relaxation but since 1968. His heroin habit had reached “just feeling takes methadone to achieve capsule day per during level the two being normal.” prior three to He to months his arrest. testified when he was he had arrested he Mr. Williams testified that had never completed just preparations for an intrave- any activity engaged in to secure nous administration heroin and money he needed support to his heroin when he realized was about ar- he to be habit. disposed rested he contents of 29, 1970, July Gregory On Arnold Smith syringe. paraphernalia The narcotic were charged was arrested and with unlawful possession injection in his facilitate the to implements entry possession of make, desoxyn he was about crime, wit, paraphernalia, narcotic possession tablets his were to be used latter in violation of D.C.Code 22-3601. “high” sought. tes- boost he He which His to dismiss is directed motion tified also that at the time his he arrest implements charge aready symptoms beginning was feel Smith, years who is crime. Mr. now had of withdrawal some because hours 5]/2 began in March of age, first to use heroin elapsed injection since his last of heroin. grew His habit is evi- rapidly, he has testimony his on oc- Mr. Williams testified that he had made denced spoons casion as much as or 30- efforts to his heroin hab- used two various overcome capsules single injection. in a As of placed to his He had him- prior arrest. consumption was program July average in a his self detoxification two-week 1J4 Hospital spoons day, at St. which administered course per Elizabeth’s involved injections. He gradually administration of reduced of three four testified begin ordinarily to feel amounts of Thereafter he was that he would methadone. Kentucky for 60- four hours after adminis- placed Lexington, “bad” some evaluation, period his after he heroin and that discomfort day tration of one-year eight given prison. term in Fol- severe after or nine would become unsuccessfully lowing July tried release therefrom hours. He break He Spring he the use of his habit in the His returned to heroin. of 1970. at- tempt days cept participa- consisted of two to the extent of her substitution of program tion the methadone at below, D. C. methadone as described had re- Hospital, after General which he returned mained at level for more than one directly Following year prior to the use of heroin. to her arrest. here, his arrest on the offenses he involved urge She testified she now no Develop- was released to the Blackman’s to take heroin and has been on a metha- pro- ment part Center and as a of their done program increasing maintenance

gram day. took methadone for one For dosage for some five or six months. the following two weeks he returned to the use of heroin and took no methadone. had Miss Gorham enrolled the metha- Then, habit, resolving to break the he took done program maintenance C.D. General progressively smaller doses of methadone Hospital prior taking to her arrest auspices for four to five days under the supposed what was to have been a “block- Development the Blackman’s Center. ing” “blockading” dosage of methadone. then, testified, Since he he has used nei- Although she testified that as of the time ther heroin nor methadone. acquired high of her she no from arrest heroin because of the amount of metha- Mr. Smith curing testified that self one’s using done little or taking she was and was up your addiction is a matter of making reason, no heroin of that time for that as you bigger mind that than drug. It she explained that the methadone was not wanting “the idea of be a man.” He to totally used heroin satisfying and she still freely admitted that before he broke the keep feeling fi- times to from bad. She supported habit he robbing and steal- nally at the of her ar- indicated that time ing. getting high. rest she fur- was not She “Q. Why you did do things those ? ther clarified time of ar- that since the her rest her dosage methadone has been “A. Because money. I needed the creased even further and that it has now “Q. you them, compelled Did away craving feel to do taken for heroin. She you any did pills person have ar- choice ? had 81 heroin her when on she had She first indicated that rested. No, sir, “A. really.” them but purpose selling those for the later her own % indicated that were for ‡ ‡ ‡ ;jc if: import testimony her “Q. compulsion The clear your use. get Was rob to engaged money was that she had at times any your whole different from com- although pulsion profit, up the sale of heroin for a shoot itself ? profit appears to have been utilized “A. No.” mainly support her heroin habit. own posses- charged Laverne Gorham is IV. sion of heroin in violation D.C.Code § legal whether now to the issue We turn implements 33-402 and Congress by the Cruel crime, wit, is forbidden paraphernalia, narcotic vi- Eighth Unusual Punishment Clause olation of 22-3601. Both of- D.C.Code § penal- imposing from Amendment alleged fenses are Au- occurred on posses- nontrafficking addict’s ties gust years old Miss is 26 Gorham the circum- and use of heroin under age and has sion injecting been heroin since presented by the before a mere stances cases grown Her habit had Supreme Robinson, supra, per pills spoons Court. capsules to four l]/2 unequivocally the state spoons, day. Court stated administered four She un- upon the impose criminal sanctions can which amounts 60-100 over capsules, and, possession of narcotics. authorized injections per day ex- course of four 514, Texas, in made it clear the California statute Powell that v. 392 U.S. 88 S.Ct. 2145, question Eighth (1968), ran the Amend- 20 L.Ed.2d 1254 afoul of discussed be low, attempting holding ment with the result that Easter because California the punish merely remains law of the addict for his “status” the the District of Colum bia, being entirely certainty least, only apart of an addict and at because of having performed any specific legislative the alternative basis criminal the holding. act. Supreme Powell affords the Court’s regu- power “The of a broad State to problems most recent discussion the of drugs the its

late narcotic traffic within volved in case at There an bar. almost in than issue. More borders is here evenly upheld a divided Court Texas stat- forty years ago, in ex [Minnesota rel.] public ute which made drunkenness 41, Martinson, Whipple U.S. Mr. crime. Marshall announced Justice 425, 819, ex- S.Ct. Court L.Ed. judgment of the Court and delivered validity that plicitly recognized the of an opinion which was in concurred question power: ‘There can be no of Chief Warren and Associate Justice Jus- authority in of the state the exercise tices Black and Harlan. Mr. Mar- Justice police power regulate its the adminis- shall stated: tration, sale, prescription dan- and use of drugs gerous habit-forming “The entire thrust of Robinson’s inter- pow- right to exercise this .. pretation of the Cruel and Unusual Pun- in the er so manifest interest of penalties ishment Clause is that criminal public welfare, un- health and that it is may be inflicted if accused has necessary upon to enter discussion act, engaged committed some in beyond saying firmly it is es- too behavior, society some has an in- successfully in tablished to be called preventing, perhaps in terest in his- question.’ at [425], 256 U.S. S.Ct. terms, torical common law has commit- at 426.” at at Id. 370 U.S. 82 S.Ct. ted actus It thus does not some reus. question deal with of whether certain constitutionally pun- cannot conduct be analogous In the somewhat area is, sense, in ished because it ‘invol- some ” alcoholism, Ap chronic the U. S. Court of untary’ by compulsion.’ ‘occasioned peals for the District Columbia Circuit Id. 392 U.S. S.Ct. held that chronic alcoholism is illness and that a chronic alcoholic cannot discussing such as the After factors lack punished being drunk in public. public adequate facilities for the treat- Columbia, Easter v. 124 U.S. District of inebriates, any co- ment of the absence App.D.C. F.2d 50 approach problem herent to the Appeals holding Court based alterna alcoholics, desirability treatment tively Eighth on (1) Amendment removing helpless dan- and sometimes congressional intent evinced place gerous streets to a inebriate from the the Rehabilitation of Alcoholics Act up, can sober the limitations where he et seq. (1961), D.C.Code 24-501 ac- period of incarceration which which authorized the courts of the District opposed company the use of judicial of Columbia to “take notice of proceedings, Mr. “civil commitment” Jus- per that a fact chronic alcoholic is a sick tice Marshall concluded: medical, and in proper son need of institu present

tional, say is difficult advisory and rehabilitative treat “[I]t process is ut- the criminal . context Eighth ment . ..” The Amendment This lacking in Court grounds placed terly social value. Easter were substan in the Con- anything held Supreme tial doubt opinion Court has never requires stitution penal sanctions be question The ultimate for this Court is designed solely to therapeutic achieve whether, if it sitting were capac- in the rehabilitative effects . ity . ..” Id. at legislature, of a it would direct the use 530,88 S.Ct. at 2153.7 of civil commitment instead of criminal prosecution for the nontrafficking heroin Recognizing that an extension of Robin- proposed addict as by is the defendants or beyond son “status” to embrace “com- prefer would to make civil commitment an pelled” acts would involve the creation of prosecution, alternative to as proposed a new constitutional doctrine of criminal by Report the of the President’s Commis- responsibility, Marshall Mr. asked Justice sion on in Columbia, Crime the District of what the scope and content of that doc- Chapter 7, IV Rather, at 577-85 (1966). trine question would be. The of where question the is whether under the Constitu- compulsion draw the if line the of addic- tion Congress power has the to make crim- provided tion of itself the basis for a de- inal proceedings primary the pro- means of by testimony fense is shown the on these against ceeding persons jurisdiction in this extremely motions to be De- troublesome. possess heroin, who or administer even if fendant compulsion Smith stated that his they are engaged addicts not in heroin to rob to finance his habit was no differ- otherwise, traffic. Stated it is whether the ent compulsion than his to shoot heroin. use of the process pur- criminal for that Psychiatrists Dr. Kauf- Wurmser Dr. pose precluded it is because cruel and man testified to the same effect. unusual or because its use is without social dissenting sug- in Powell value. Justices gested that the ex- defense be available to answering stated, question, as last empt only conduct which is “a characteris- in negative, the Court considers several involuntary part pattern tic and of the values inherent in the use of the criminal person in the disease as it afflicts” process weighed which in must be deter- question. Powell, supra, dissent at mining legislation whether such is valid. in S.Ct. The defense these mo- Its discourages use trafficking in narcotics proper policy might suggests tions that the by making very criminal the act serving permit compulsion by be to the defense of as the final repository commodity. for the against reason of addiction as to crimes probable It is that heroin traffic would be per- property against but not toas crimes aided, if the courts were to remove the sons. pressure of the criminal law from the final step basis On the of the record before series of transactions which brings foreign heroin logic Court is clear that the same from sources to our beyond community’s status would extend Robinson If addict-consumers. purchase legalize possession courts possession, by of addiction to acts of the nontraf- addict, ficking by nontrafficking logically legalize addict would we use must purchase heroin, his criminal administra- extend it still further to other himself, acts, theft, presumably tion burglary robbery, of heroin to in such as public impecunious addicts. between non- by typically private, sales committed stated, any trafficking cur- profit addicts which are As Mr. Marshall Justice merely sup- “limitation but logic would be convenience or mutual tailment of port. legislature has the function fiat.” Id. at 88 S.Ct. Cong., (1970), apart Rep.No. 91-1444, that, 91st 2d It noted from what Con- Sess. Congress recently Comprehensive Drug requires, has Abuse Prevention stitution 91-513, rather Act of P.L. its intent rehabilitation Control dicated major objective reported (Oct. 27, 1970), than retribution should be the Stat. process respect Congressional de- and Administrative of the criminal U.S. Code News, p. H.R. fendants are not traffickers. who great weight all titled to weighing keeping considering the value of a chal- pressure lenge type foregoing illegal made defense acts so Congress to bear here. The fact of the criminal law will continue made them, and, through against mere against them crime the District of might regarded Columbia as ex- heroin trade.8 itself be entire pressing legislature’s assessment of A value of the crimi- second use those values which inhere the use of the process is that nal individuals are discour- process. note, worthy aged very becoming addicts however, recently that in the enacted Con- possess fact that heroin is to or administer Congress, trolled Act9 a after Substances illegal. testimony of defendant Wil- thorough study prob- drug of the nation’s that liams Wurmser makes it clear Dr. lem, which included consideration of the the threat of criminal sanctions not Prettyman recommendations of the use of heroin but saves inhibits also Commissions, Katzenbach concluded that persons some from addiction. “simple possession” of heroin and certain clear, thirdly, It is that the use of the prosecuted other substances should be as a process provides criminal the occasion provided special misdemeanor and sentenc- potent a in the beneficial intervention ing alternatives for first offenders.10 three defendants life addict. The Turning to another facet of the cruel before the in are mute Court these cases punishment issue, ap- and unusual it seems testimony all themselves to that value since parent permissibility that the of a statutory three, following pending their arrest on the permits prosecution scheme which criminal charges, successfully drug were enrolled in possession for mere must examined be also programs. probation abuse Persons on light in the penalties impos- charged from offenses here are such as Importantly, mandatory able. there is no frequently required participate in imposed minimum sentence which must be participation programs; abuse and their charged possession on one with of heroin may, individuals, in the case of some be Further, in jurisdiction. addicts this strongly encouraged by threat the direct charged only possession may qualify with jail a term which would ensue if for treatment under the Narcotic Addict should fail to make reasonable efforts respect Rehabilitation In this Act.11 cooperate program. with the distinguishable stant cases are from Wat- Fourthly, there value of undoubted son, acknowledged the author of which street, getting the addict off the a consid- respect with to the use of that statute: analogous eration referred in con- text in alcoholism Mr. Black Justice a final “Although the act cannot be sol- opinion Powell, his concurring supra in at vent of some of the not irration- claims greater im- S.Ct. of even that, Robinson, ally in is true rooted portance in the context of an addiction brief, says problem in as amicus ‘the persons which leads to steal and rob. in large case would in measure

Obviously, legislative appellant assessment obviated if could be treated un- such foregoing values as en- should be der the Narcotic Addict Rehabilitation 91-513, II, 101(4) supra, supra H.R.Rep.No. 91-1444, 8. In Title 10. note § P.L. See at Congress finding made the that “local dis- possession, tribution of controlled sub- Clearly, procedures the civil commitment swelling interstate stances contribute persons III in this Title are available (Emphasis traffic such substances.” jurisdiction. D.C. Court General added) utilized Title II of the Act cases Sessions II, subject 91-513, supra 9. Title at 404 of P.L. at the defendant was least where approved confinement, appears years that note 7. The Act and it on October three 27, 1970, provisions eligible Superior and most of its become defendants Court May 1, effective cir- on treatment under title under similar cumstances. conceptual diffi- Act, a art but also the which he is excluded as chiatric upon the im- inevitably previously attendant twice- convicted offender.’” culties mod- Watson, portation scientific and medical supra fn. 15. 439 F.2d predi- system generally legal els into a may one judge A this Court sentence assump- set of cated a different peri- to a of heroin convicted Powell, supra tions.” 392 U.S. cooper- probation a condition of od of omitted). S.Ct. at 2151 (footnotes program. ation abuse On apart concluded, then, entirely hand, may in his discretion judge other prohibition limiting the impose where he from the matter of a term of confinement charges based appropriate, g., in the of Robinson to criminal such to be deems e. status, physiological had of true nontrafficking case of a addict who absence defendants’ compulsion ef- these previously make reasonable dictates failed to cooperate program motions be denied. forts to such pretrial part as a term of sentence or V. Watson, therefore, distinguish- release. plight of A humane concern for question there statutes in able impel not victim trade should of the heroin se, possession, per and not at directed concepts adopt judicial to novel Court penalties imposable in that the scheme of ill serve both long in the run would which substantially under those is differ- statutes individuals general public the and those imposable the crimes from for ent those blandishments exposed who to the will be charged here. concept of com pusher. of the heroin The the de- availability The of methadone to defendants, pulsion wheth by the advanced part important of the over- fendants Amendment applied through Eighth er all these defendants come context which of of the test through or an alteration They had available before Court. accepted, will, if responsibility,12 avoiding methadone a withdrawal means excusing logic lead to inexorable aspect of neutralizing physiological also of but only narcotic not il- Any compulsion to use their addiction. theft, robbery, and burglary, “compelled” purely psy- legal limited to a heroin was felony even murder. product large chological dependence, the by these mo- legal presented issues pleasures. Mr. measure of remembered or distorted should not be confused tions stat- opinion in Powell Marshall’s Justice well-funded, carefully desirability ed : assist conceived, programs to diversified say thing that if a man “It is one be goals should Those abusers. begin deprived of alcohol his hands will ought not sought through legislation shake, pains agonizing he will suffer judicial by altering sound accomplished ultimately hallucina- he will have concepts. ; quite say that a tions it is another to FACT FINDINGS OF drink, a ‘compulsion’ has a to take man his day of that on the It is found (1) that he a certain amount but also retains defendant charges the instant to resist. It arrest of ‘free will’ with which nontrafficking heroin ad- present was simply impossible, in the state of Williams that he was is further found dict. to ascribe a useful mean- knowledge, our available aware that methadone This defini- ing to the statement. latter physiological satisfying his course, reflects, purpose of tional confusion at program through the psy- craving for heroin undeveloped merely the state of U.S.App.D.C. per F.2d addiction se con- On the issue whether preclude de- illness, does not these motions v. denial stitutes a mental see United States raising defense trial Collins, U.S.App.D.C. fendants F.2d responsibility. insanity States, (1970), or of criminal lack Heard United respect power trol Hospital, private phy- or of decision with D. from a C. General heroin, cost, pos- whether from the relatively to abstain use sician at a nominal irrespective availability of metha- sibly reapplication to the Black- through Development Theré is not done. man’s Center. support

evidence of record which would defendant, (8) In the of each case finding that addicted to this defendant was would not use of the available methadone desoxyn. sup- most the would At record substantially satisfied fully have port a the enhanced finding he craved physiological dependence, his but would “high” desoxyn afforded. psychological his de- also reduced pendence upon heroin. (2) It is found that defendant Smith nontrafficking was a heroin addict remaining (9) The constituents time of his arrest. It is found that he also psychological present each of attraction was aware that was available methadone the defendants not been shown to be physio- purpose satisfying appreciably to- different from attractions logical craving for also heroin and that he past types ward other remembered obtain knew how to it. pleasures experienced are commonly which beings. psychological human at- It is found that defendant Gorham was, itself, substantially traction less was a addict heroin at the of her ar- time than psy- physiological combined trafficking rest. the term Unless includes chological by the attraction which is faced support (as sales made to one’s own habit addict who does have available him opposed to more sales which extensive the use of a such as cross-tolerant return, apart habit, would own from her methadone and cases before profit net the addict), is found on she the Court was in fact faced defend- the present the nontrafficking record to be a because, ants only Williams Smith and as addict. further as of the found that arrests, they of the of their chose not time time of her arrest was she not aware advantage availability to take availability methadone, which methadone. effectively satisfy could be used to her heroin, need physiological for but that she (10) While each of the defendants had being supplied expense was also at no to experienced a substantial diminution of his herself with a substantial amount of meth- power to abstain from the narcotic use of daily, adone which had the of elimi- effect drugs, at time of defendant the arrest each nating physical her need heroin in for substantially was free to between choose part whole or in substantial the fur- the cross-tol- use heroin and the use of a ther reducing psychological effect of her drug erant as such methadone. need for heroin. CONCLUSIONS OF LAW (4) Each defendant was at the time of (1) Act and The Uniform Narcotics physiologically dependent upon arrest her- punish Dangerous Drug Act the do not oin or a cross-tolerant as metha- such addicts, traf- defendants their status as done. ficking rather nontrafficking, but (5) Each defendant was at time of specific and, accordingly, criminal acts are heroin, psychically dependent upon arrest unconstitutional as violative dependency but subject to reduc- Eighth against proscription Amendment’s tion through the use of methadone. punishments. cruel or The use of unusual (6) Each defendant was at time of prohibiting possession the statute suffering arrest from a substantial diminu- implements punish of crime to the addict ability tion of his to abstain from a further possession his parapherna- of narcotic dose of heroin or of a drug. cross-tolerant lia survives same challenge.

(7) The defendants not at were Assuming nontrafficking that a ad- time of entirely their arrests without con- exempt punishment dict is from for the implements PRETRIAL or the ORDER

possession of heroin if thereof is found its use These cases come before the Court addiction, de- compelled by his the three pretrial upon request hearings for two ex- are not so fendants before the Court they of the defendants that be informed in knowing, empt they had a effec- because they per advance of trial whether will be tive, using illegally ob- between free choice place mitted to before the trier of fact a cross- legally tained heroin and obtainable nonresponsibility defense of based physio- narcotic addiction not rest in satisfy their which does tolerant methadone to any part upon they have an showing that for a narcotic and to logical need They abnormal condition of the mind.1 symptoms withdrawal but avoid the propose what in Watson v. described apart illegal heroin. chose the Viewed United States as a defense of invol “new compulsion, physiological and itself equatable untariness for addicts subject part the use of relief insanity traditional defense.” methadone, aspect psychological of ad- purpose placing For the the matter compulsion give diction does not rise to a trial, prior before the Court defendants exempting which can serve as a basis for proffer filed a and a evidence wide the defendants from criminal statutes range instructions, suggested jury all of prosecuted. pun- under To which were carefully constructed so as to ish them these is not under circumstances any adducing avoid reference of evi- violative of Punish- the Cruel Unusual dence of a mental or emotional disease or ment Clause. defect, requirement heretofore a threshold for the nonrespon- creation of grounds justifying an issue of No other dismissal sibility pursuant Durham-McDonald defendants, having their been advanced line of cases.3 motions to dismiss are denied. Counsel for defendants have briefed and A. Belson /s/ James argued diligently, the matter and their de- BELSON, A. JAMES JUDGE velopment of argument their re- 4, 1971 March quest justified ap- logical a new but plication concept of the of mens rea cannot B APPENDIX lightly rejected. time, At the same however, apparent THE SUPERIOR COURT OF there are weighty DISTRICT OF COLUMBIA considerations which countervail CRIMINAL DIVISION defendants’ request suggest and which the novel sweeping approach defend-

Nos. 28001-70 espouse ants ought adopted by not be this 29895-70 trial court. 42860-70

UNITED STATES OF AMERICA If the Court were to eliminate the re- quirement predicate of a of emotional or defect, mental disease problem a serious CHESTER WILLIAMS respect disposition would arise with to the SMITH

ARNOLD GREGORY they to be made of if LAVERNE defendants should be FLORENCE GORHAM request U.S.App.D.C. 335, 1. This followed the Court’s earlier re 2. 141 F.2d 442 at 450 Eighth (1970). fusal to dismiss the informations on grounds. See, in Amendment that connec States, U.S.App. 3. McDonald v. United generally, States, tion Wheeler v. United (en banc) ; D.C. 312 F.2d 847 (May D.C.Ct.App., 5, 1971). 276 A.2d States, U.S.App.D.C. Durham v. United 214 F.2d 862 heavy extending In risk guilty several defense on that basis. to all found jurisdic- by in crimes committed appellate judges appear addicts would instances way by to be by through legislature. of dictum that action suggested tion fit, branch, type That if it saw could faced with defense undertake courts by analogous availability statute to limit might procedures here use of the raised possession involving with the defense to cases employed in connection mere to those charges by It is at insanity gravity defense.4 best similar committed traditional doubtful, appro- persons however, trafficking who were in that it would be nar- cotics, prescribe post-trial mental institu- could priate to commit to a commit- one ment and acquitted by reason the criteria for unless he has been release there- tion from, provide and could equally It is unclear determine and of mental illness. type necessary by so-called following facilities made such commitment a policy. legislative such hearing eligibility for release branch can

Bolton special give application of criteria treatment to narcotic would involve the offenses committed persons. by nontrafficking result users appropriate such without seriously sacrificing application persons of well-estab- might well be that legal lished principles none. to more of treatment would receive serious of- need fact, Congress fenses. recently troubling aspect proposed A most accorded special mere such users treat- responsibility test of is the new criminal ment, including opportunity to serve proffered extent to which the defense and, probation without verdict in certain charged be available would to defendants cases, expungement of arrest records.7 not with mere of narcotics but theft, any robbery burglary, or indeed all Under the circumstances this Court offense, drug-related including murder.6 apply declines to in these cases the new availability such a defense Once responsibility proposed test on the basis were established the courts defendants but instead will adhere to exist- by defendants, no suggested there would be precedents. ing may The defendants un- curtailing application logical means of dertake to they establish that are not re- type relatively minor offenses sponsible by insanity pursuant reason of now before this Court. developed the test Durham-Mc- only readily apparent means of at- They Donald line of will cases. be re- objectives taining sought for non- here quired showing to make a threshold or- trafficking incurring addicts 8; will, without pur- der to raise the issue See, g., Watson, supra, p. any (em- produced e. 439 F.2d at actions the disease” (majority opinion) p. phasis added). and 439 F.2d concurring Judge, (opinion Bazelon, Chief II, 404, Comprehensive Drug 7. Title Abuse part part) and, dissenting ; for a 91-513, P.L. Control Act of suggestion that statute the civil commitment (Oct. 1970). 27, Stat. 1236 any charge following acquittal used an be alcoholism, by v. reason of Salzman chronic addiction, standing alone, 8. The fact of does States, 393, 407, U.S.App.D.C. United 131 permit finding a of disease or defect. Wright, J., (opinion F.2d 358 405 Judge, Justice, Burger As now ex Chief concurring). pressed supra Salzman, 399, it in at 405 F.2d at 364: must “The accused show some Harris, U.S.App.D.C. 1, 5. Bolton v. 130 395 capacity that evidence he has con lost to the. (1968). F.2d 642 simply respect trol his behavior not with to opinion J., Wright, concurring drinking, 6. in See in but other contexts as well.” See States, supra States, U.S.App. Salzman v. United at footnote also Gaskin 129 United 4, development argument a (1967) ; that D.C. 394 F.2d and Heard 933 approach States, U.S.App.D.C. 37, in similar cases chronic alcoholics v. United 121 348 adopted (1964). be should and should serve as the F.2d 43 “denying responsibility basis required distinguished appellants’ recent enactment to have

suant to most force- precedents by preponderance ful establish that defense have reviewed the so- physical consequences cial and of the evidence. of heroin. my also, judgment implica- we have by properly they have raised the Once least, tion recognized at logic issue10, permitted they to adduce will be proposition unaffordable that addiction can concerning physiological11 evidence substantially impair capacity to control be- components psychological as the well respecting drug-related havior conduct. succeed, that defense addiction.12 Should pursuant to they will be committed It is noted the Narcotics Diversion statute13 but will be accorded this Project (NDP) treats threshold offenders. purpose prompt hearing for the Court offender, The well-entrenched who feeds suitability for determining their conditional habit, part, by his in recruiting new users unconditional release. buy him, or threshold offenders to from problem. remains a There is no known A. Belson /s/ James way protect expectedly successful to BELSON, A. JAMES JUDGE except community people im- these prisonment. May a better means can be Until height folly developed it be the would Counsel cc: experiment society by adopting with a rule of exoneration which would leave they assuredly users would continue where NEBEKER, Judge (concur- Associate destroy parts of civilized existence ring) : contact. all of in this result and almost I concur Therefore, programs with or without judgment Our underlying rationale. NDP, paradox should legal one. like notwithstand- necessarily pragmatic We past present or ourselves not delude .that ap- ing, we must retain a law enforecment drug prob- our efforts to solve treatment paratus whereby as well as traf- addicts sufficiently effective proven lem have must be re- fickers who crime commit as a le- allowing addiction a basis for form recog- society. This truth is moved from 414.) opinion at (Majority gal defense. responsible virtually world-wide nized should not do other- law enforcement. We and con- legislation have looked We preempted the field. We it has cluded wise. (1971 274, 280, 24-301(1) Supp.). States, U.S.App.D.C. F.2d D.C.Code 964, 970, S.Ct. cert. den. 382 U.S. The evidence adduced in connection indication 15 L.Ed.2d Eighth pretrial motion to dismiss on defendant is sufficient there grounds suggests long showing the defend- Amendment that “addiction to make a may insanity issue. ants be able to raise eroded use of narcotics intensive capacity impaired his con- to control Watson, supra, embrace is taken Court in this duct” See connection question requirement p. (opinion Bazelon, resulted the use F.2d Chief jury part dissenting instruction Judge, concurring illness. See a mental charge p. Gasch, J., part). to same effect Johnson, McCollough, McNair and in U. S. D.C., Crim.No.467- District Court U.S. 67, April 16, requirement de- views its The Court 1968). produce of mental “some evidence” fendants Judge Burger’s con- illness as consistent (1971 Supp.). (d)(1) curring opinion 24-301 § 13. D.C.Code in Hutcherson v. United

429 pellants’ proffered TABLE DISSENT liability. OF CONTENTS FOR test of criminal Appellants contend that this court should Page recognize an affirmative defense based -429 Introduction upon drug dependence only, to two crimes Development 429 Mens Rea I.The of e., illegal possession heroin, i. of D.C.Code II.Appellants’ Contention-432 1973, 33-402(a), imple § Preemption Congressional III. ments of crime (narcotic paraphernalia), “Legislation”-432 Judicial (hereinafter, D.C.Code 22-3601 — Statutory 433 A. Construction PIC). Rather than considering appellants’ “Legislation”-435 B. Judicial light long contention estab Dependence Drug IV. The Defense principle lished fundamental of criminal and Anti-Crime Law Enforce- rea, law of the doctrine of mens the ma - 436 ment jority opinion ignores principle this and re A. Deterrence: jects appellants’ on the contention basis Drug Dependent Persons 437 supported by doctrines not the law. Non-Drug Dependent Persons-438 present I will first what I believe to be - B. Isolation of 439 the Offender description an accurate of the common law Rehabili- C. Reformation and rea doctrine of mens and its relation to - 439 tation judicial process, and then to demonstrate - 440 D. Retribution why majority opinion supported Illegal Drug E. Preventing pertinent legal doctrines. Traffic-440 1 V.Elemental Rea Development of Mens The Justice-441 VI.The Adjusting Process of early century, em- As as the twelfth Law-442 Common England had be- phasis law in of criminal v. Moore-442 VII.United States liability based gun to shift from criminal Dependence, VIII.Drug Free Will prohibited act to solely upon doing of a and Mens Rea-443 consisting compound crime as a - 447 IX.Conclusion reus physical act—the actus objective ele- act”) subjective mental (“evil —and FICKLING, Judge, Associate with whom reasoned Legal scholars of the era ment. KERN, (dissent- Associate Judge, joins interaction every the result of act was ing) : body. being’s mind between a human body act and the mind squarely The “willed” my opinion question togeth- reasoning performed the act. This presented by these cases is whether of canon pervasive influence accept ap- er with the in refusing court below erred Eighth development history and the Actions “Uncontrollable” This brief Texas, Implications mens rea Anglo-American Powell v. Amendment: common law Dubin, (1969) ; primarily 937-79 69 Colum.L.Rev. law was drawn a Due following A Plea for in oth Mens Rea Reconsidered: not cited sources Responsibility, Rawls, Concept Criminal A Process er footnotes section. J. Remington (1966) ; Jacobs, (1971) ; & Theory F. 18 Stan.L.Rev. Helstad, of Justice 235-43 Responsibility (1971) ; Element Crime —A A. The Mental L. Criminal Hart, H. Problem, ; Legislative Responsibility (1968) 1952 Wis.L.Rev. Punishment Rea, Perkins, 648-52; Williams, of Mens A Rationale The General G. Criminal Law: Chesney, (1939) ; Guilty (2d 1961) Biggs, ; Harv.L.Rev. Part ed. J. Law, Concept (1955) Holdsworth, History ; in the Criminal Mens Rea Mind 79-119 (1939) ; Criminology 1927) English (3d ; & 29 J.Crim.L. Law ed. 2 Pollock & Turner, (2d Maitland, History English Crimes Element ed. The Mental Law (1936); Law, Lev 1923) ; Stephen, History 6 Camb.L.J. Common J. A of the Crim Rea, Origin itt, Mens England (1883) ; the Doctrine of M. inal Law of Greenwalt, Hale, (1675) ; Ill.L.Rev. 117 Pleas of the Crown useful,4 law, anee, upon guilt be with its insistence moral as would would excuse precedent punishment, persons being led beyond a condition to to who are deterred and punishment a neither morally the establishment of blamewor- whose would deter oth- thy community state of mind as an essential element ers nor reinforce norms. slightly A max- of crime. modified Latin Consequently, and Ben- Blackstone5 began to be as a label im used convenient tham of situa- presented a list similar idea between for this new of a connection justified punishment tions in is not leading crime and a mental element to necessary for because the mental element was moral That maxim blameworthiness. present. These liability criminal is not reum, sit rea” “actus non nisi mens facit upon “a lists included based defect excuses .("an act does make doer [the it] infancy, including insan- understanding” guilty, guilty”). unless the mind be intoxication; ity, involuntary and defenses quickly simply maxim was shortened to chance”; defenses of “misfortune and “mens rea.” compulsion, duress, “inevitable necessi- and ty” By Coke,2 the requirement the time of for serious guilty state mind—-at least Supreme traced States Court United established, well crimes —was and mens development concept of the century eighteenth idea of a mental el in Ameri- rea and its concomitant excuses firmly ement of crime was so rooted following can law in the statement: flatly there Blackstone stated for injury that an can The contention be a first crime there must be “vicious only when inflicted amount to a crime

will.” transient provincial no intention is persistent development

A and concomitant to the It is as universal notion. development systems mens law as belief doctrine of rea was mature liability. conse- will and a of various from criminal the human excuses freedom of premised quent duty of the normal punishment ability Because was and and knowingly good choos- willfully free dividual choose between actor mental good, it con- some ing to do evil than evil.4 A relation between rather punish doing wrong sidered someone 4. “Historically, our substantive . knowingly if he not do evil act did so theory pun- upon a law is based Moreover, postulates willfully. even as theories ishing a free the vicious will. agent do- with a choice between confronted pure ret- liability from of criminal evolved ” wrong. ing doing right . . . wrongs doing moral ribution for Sayre, Pound, on Cases Introduction grounds utilitarian of deterrence of. (1927). Criminal Law isola- general public, offender harmful punishment for a element and reformation, tion, and reinforcement afforded, rational . . has act . norms, community general excuses contin- substitu- tardy unfinished basis for a recognized. ued to The rationales tion and reformation of deterrence under utilitarian theories excuses these place vengeance as retaliation and paralleled justifications. exam- their For prosecution. public motivation ple, just excuse as retributivist would persons morally were not blamewor- who utilitarian, believing punish- concept, gen-

thy, Crime, compound when, bal- justified only erally ment can be concurrence constituted See, g., e. Institute, 6, 56, (1641). Bentham, Coke, 2. An Third J. Introduction Legislation, 12-15 Morals and chs. *21-22, Blackstone, 3. 4 W. Commentaries Blackstone, *21-22. Commentaries 45. W. *27. para. supra Bentham, note ch.

431 States, 246, 4, an evil- evil-meaning mind with 342 250-52 and n. of an U.S. 240, congenial intense hand, (1952); to an 72 S.Ct. 96 L.Ed. 288 other doing early deep omitted; original.] and took footnotes italics in individualism states As the in American soil. root Among the excuses from criminal liabili crimes, even the common law of codified ty accepted by been American have if their were silent on enactments defect,7 courts are mental disease or subject, their courts assumed that coercion,10 infancy,8 compulsion (duress),9 signify disapproval omission did epilepsy,11 kleptomania,12 delirium treme recognized that principle merely but ns,13 medication,14 sleepw the effect of inherent in intent was so the idea dep and, alking,15 recently, most alcohol required statutory that it af- offense no endence.16 Courts, firmation. with little hesitation develop- This review of historical division, implication found an rea, ment of mens leads to certain well doc- requirement as to that were tak- offenses umented First: conclusions. en over from common law. unanimity they with which have adhered rea, that mens the men- seems clear [I]t thought wrongdoing to the central prove criminality, necessary tal factor must be conscious to be criminal is em- meaning. The continuing has no fixed phasized by variety, disparity and conception of mens rea has varied with req- confusion of their definitions of the conceptions and changing underlying uisite but elusive mental element. How- objectives [Sayre, justice. of criminal ever, jurisdictions, courts of various 974, Rea, 1016 Mens 45 Harv.L.Rev. offenses, purposes for the of different (1932).] formulae, working have devised if not Secondly: ones, scientific instruction juries around such terms as “felonious principle is derived [T]he [mens real intent,” intent,” “criminal “malice afore- entirely Although there from case law. thought,” “guilty knowledge,” “fraudu- body statutory was a considerable intent,” “wilfulness,” lent "scienter," to these au- criminal law at the time when guilty denote knowledge, rea," Blackstone, or “mens Hale, [Coke, thors wrote signify purpose them, an evil culp- or mental etc.], suggested it is nowhere ability. By use or my combination of suggested these nor has it ever been tokens, various sought pro- depend- knowledge, principle tect those blameworthy legislative who were not ent on the direction of the mind from conviction Indeed, of infamous body. com- of the case law has much mon-law crimes. exceptions way implied v. United evolved [Morissette Brawner, U.S.App. McGlue, 7. United States v. 153 Fed.Cas.No. v. 26 United States 1, (1972). ; 15,679, p. (C.C.D.Mass.1851) D.C. 471 F.2d 969 United 1093 Fed.Cas.No.14,993, p. Drew, v. 25 States States, 551, 8. Allen v. United 150 14 U.S. (C.C.D.Mass.1828). 913 (1893). S.Ct. 37 1179 L.Ed. People, 112 P. 14. Pribble v. 49 Colo. State, Ala.App. 334, 9. Martin v. 31 So.2d 17 (1910). 220 (1944). 427 Ky. 183, Commonwealth, 39 15. Fain 78 v. really specific type 10. “Coercion” Am.R.,213 (1879). compulsion relating to the husband’s exer See R. Fearon, cise of influence over his wife. Minn. 166 State v. N.W. Perkins, (2d 1969). (1969) ; Criminal Law 909-18 2d Easter v. District of ed. Colum bia, U.S.App.D.C. 361 F.2d People Freeman, Cal.App.2d 110, v. (en banc). (1943). P.2d 435 McCullough, 12. State 114 Iowa N.W. is, implied

(that appar judges) majority opinion rejects this conten- ently express precise statutory tion com following for the reasons : Brett, Inquiry mands. An into [P. (1) “Courts empowered are not to su- (1963).] Criminal Guilt 40 persede legislative the will. we have been asked to do here [W]hat Finally, the changing conceptions of engage legislative activity, in purely to closely mens rea have often been related 19 simply.” in advances science in- medical which understanding creased courts’ of hu- (2) appellants, The contention if ac- relationships.17 man conduct and cepted, govern- deeply would cut into the efforts.20

ment’s anti-crime enforcement Appellants’ II. Contention (3) require justice Elemental does recognition defense.21 affirmative Having briefly development traced the (4) process adjustment “The of the rea, ap- of the doctrine of mens I turn law, times, fit tra- common pellants’ contention. ditionally province been 22 states.” Appellants contend that because a funda- postulate mental jurispru- of common law (5) the deci majority agrees punishment may dence is that criminal be Moore, 158 sion in U. United States v. imposed only who, upon a defendant at 375, 1139, S.App.D.C. 486 cert. de F.2d possessed act charged, time the free 980, nied, 298, 38 L. 414 U.S. 94 S.Ct. act, towill refrain from committing Judge 224 (1973), particularly Ed.2d this court should hold that: opinion.23 Leventhal’s concurring charged defendant with nontraffick- [A] Preemption and Congressional III. ing possession imple- of heroin “Legislation” Judicial ments of [may] raise administration that, affirmative defense because pre- is hornbook law that a statute dependence use long-standing on the sumed to be consistent with common law, presumption a is rebuttable and such injectable heroin, he cannot be held only legis- expression of an affirmative criminally responsible for the acts with Mor- lative will to alter common law. he charged.18 which was Development sponsibility Subsequent and Its any unlikely 17.“It State Survey, in United An Historical States: attempt history moment make would ; Keedy, (1966) Ir 54 1227 S.Cal.L.Rev. person mentally a criminal for a offense be Impulse as a the Crim resistible Defense ill, leper, be afflicted with (1952). Law, inal 100 956 U.Pa.L.Rev. But, light . . venereal disease. . contemporary knowledge, a law human Supplemental Appellants’ 18. Brief on Rehear- made which a criminal offense of such ing 10. universally thought would disease doubtless to be an cruel infliction unusual Majority op. 19. at 406. punishment . . . .” Robinson v. Cali fornia, 666, 1417, 660, 82 U.S. S.Ct. ; 20. (1962) Id. at 403. 1420, 8 L.Ed.2d Salzman States, U.S.App.D.C. 393, United 399- 358, Id. (Wright, at 411. F.2d 364-66 See J., concurring). Seney, Empty “When Id. at 405. De Terrors Overawe” —Our Criminal Law fenses, Wayne L.Rev. 947 See Diamond, Origins Id. at 403-412. Platt & “Right Wrong” Test of Criminal Re- States, supra; sonably issette v. United Easter v. opinion ask the majority where Columbia, U.S.App.D.C. District of expression finds the clear legislative ; banc) prohibit 361 F.2d 2A (1966) (en tent to the affirmative defense of Sutherland, Statutory dependence. 50.05 drug Construction The answer is: other (4th 1973). ed. misconception C. Sands ed. statutes and of the roles legislature courts.

This court has held that the two statutes case, at issue in this D.C.Code §§ Statutory A. Construction 22-3601, 33-402(a) and are not “strict tracing After the evolution of various require type liability” statutes statutes, federal which, course, narcotics of the commission of acts forbidden or omis cases, in majority not issue these the States, D.C.App., sions. Rosser v. United “beyond concludes that it is that dispute 313 McKoy A.2d 879 Unit (1974); v. drug users, Congress anyone intended like States, D.C.App., ed 263 651 A.2d else, to come under the prohibiting statute (1970); Weaver, see United 148 States possession”27 narcotics because there are U.S.App.D.C. 825 458 F.2d penalties simple possession for of fact, recently suggested this court drugs. narcotic that jury trial courts use the following There are principal three in flaws this simple possession struction narcot- reasoning. First, the Controlled Sub- ics, States, D.C.App., Carver v. United 312 stances Act is not at issue in these cases A.2d 5 775 n. (1973): and, it, whatever the intent it is behind not may dispositive You find that the District leg- defendant the of Columbia knowingly intentionally possessed and islation. If this were not obvious under statutory construction, the rules drug] if he did con it is so ob- [narcotic light attempts in fact in sciously, voluntarily and and vious of the purposely, mistake, pass not Congresses because 92d28 93d29 inadvertence or Association, Young “District of accident. Bar Columbia Controlled Sub- [D.C. Lawyer’s Section, Jury stances Act” similar to the Criminal Instruc federal statute Columbia, tions for the In were District unsuccessful. (em struction 4.31 at 1972) 116 ed. (2d Second, arguendo the assuming fed-

phasis added).] appellants’

eral relevant statutes are contention, congressional deny Given the facts is intent to that there no affirma- prohibition upon drug tive pertinent in the affirmative defense based legislation dependence dependence is not in statutes. suggested drug evident these defense (a point Report The the states the House 1970 Act government conceded in punitive case Act both the orig- Moore in that the combines and conceded approaches prob- inal in rehabilitative cases), brief26 these and that drug dependence, quotes lem of court read existing has common law approval the from the statutes, following statement might defenses into the one rea- any possessing See, g., Wasserstrom, Liability of- other 24. narcotics or e. illicit Strict original.) (Elmphasis Law, fense.” Criminal Stan.L.Rev. (1959) ; Sayre, Offenses, Public Welfare Majority op. 27. at 407. (1933) ALI, ; Colum.L.Rev. Model Penal (Proposed 1962). Code 2.05 Draft § Official H.R.Rep.No.1505, Cong., 2d Sess. 92d 28. See accompany (1972) ac- No 11268]. H.R. [to U.S.App.D.C. n. F.2d at 486 report action and no taken on tion was at 1250 n. on S. 2692. was taken Senate Appellee “Congress 26. Brief at 11. legislation date, proposed provided has not expressly shall To not addiction Congress. charge the 94th been reintroduced not be an affirmative defense to a principles law Advisory cation of common Com- Report of President’s cases. Drug Abuse courts individual mission on Narcotic discussing Commission) (Prettyman brief,32 argued government in its dual in this underlying philosophy involved majority implicitly accepts the ar- rejected opposed the two approach gument, person” in 21 “any words and the punitive attitudes —the extreme 844(a) U.S.C. are affirmative permissive. pro- a congressional evidence intent to accept ei- does This Commission recognition dependence hibit af- attitudes, but ther of these extreme firmative defense. aspects each. certain subscribes to ideal, humanitarian Rehabilitation speciousness of this argument re- But possible. wherever sought to be easily If such a literal inter- discernible. simple. requires habilitation is “any person” is pretation words the ef- many disciplines and skills adopted, that all Congress then intended drug abus- many agencies. forts of insane, persons infants, epileptic, unknow- — fi- drugs sells who steals or who er punished pos- compelled, ing, etc.—be guilty habit crime. nance his session. citizen, any he face should Like other can he he consequences. the Whether surely significant It is that the various only can he responsible criminally held recognized by the criminal law excuses courts, by The case. in the case decided by judges the been made without have general rule cannot assert Commission help Legislatures legislature. the is drug so every abuser confirmed perform considering the conduct task ac- he is not impelled his by habit it; judgment large passing on criminal under for acts countable statements, they general make broad [Emphasis law. added.]30 such as “no one must kill” or “no one thought been must steal”. It has never Report, page the of the House On next spell necessary for to out detail them Prettyman the following statement of the qualifications statements the of these quoted. is Commission example, they say, individual For cases. Drug law who violate the users kill”, must do not need “no but one purchases or should be made small sales say, person may course kill to to “a society recognize demands what child’s, or if he save his own life or his instances, penalties them. In these course, they public hangman.” is the Of according prin- applied be to the should occasion, may, spell qualifications on out justice. present ciples of our code of statements; they do general but their penalties imprison- involve the When so. bound do feel themselves ment, however, the rehabilitation of the courts, applica- expect in the They pun- individual, rather than retributive tion these commands to individual ishment, major objective.31 should be the cases, qualifications formulate And the Thus, Congress light of the case at bar. is clear that intended accordingly. Prettyman dual courts acted to follow the Commission’s [P. Guilt, Brett, into philosophy Inquiry that it had no An Criminal approach intervening appli- supra in the normal tention of 72.] any person H.R.Rep.No.1444, Cong., pt. Sess., know- be unlawful 30. 91st 2d 33.“It shall possess ingly intentionally controlled Any person who violates .... substance Id. at 10. term be sentenced this subsection shall Appendix Ap- Supplemental imprisonment . . .” Brief . pellee at third in the nal majority’s placed flaw reason institution rather than in a hos ing congressional pital. preemption hand, issue On the other an individual interpretation may involves D.C. Narcot convicted of or PIC only upon ic Rehabilitation Act of proof D.C.Code of all elements crime, seq. majority 24 - 601 et including per reads jury instruc —as preamble supplying approved by to the statute tion pos this court 36—that he congressional the affirmative drug “voluntarily.” evidence of sessed the necessary presumption intent to rebut the addition, reject I majority’s inter- that the statute consistent the com pretation gov- 1953Act because the simply mon That law. contention is incor strictly ernment does not adhere to the ma- Congress rect. words used jority’s interpretation that the federal enforced,” “shall be reason against criminal laws be enforced de- interpretation words, my able those pendent persons. view, Congress is that intended indi suspected viduals violating federal crim e., minor cases non-traf- [I]n [i. inal laws be prosecuted. arrested and Attorney United States of- fickers] However, prosecution arrest and are not prosecution agrees drop ten if the synonymous with submit conviction. addict consents to civil commitment. Congress ted that what intended was that Commission on Crime in the [President’s “drug go through users” be made to Columbia, District of Report Final justice system when accused of (1967).]37 crime rather than automatically being di into

verted the rehabilitation scheme. This “Legislation” B. Judicial interpretation out borne a section of being There no affirmative evidence of provides the same pro statute that the that congressional prohibit a intent to af- an in cedures the statute shall used not be drug dependence, firmative defense I of persons “charged'with those a criminal of majority’s argu- turn to the concomitant fense or under sen ment recognize that for this court to a new tence for a criminal may offense.”35 This upon common law mens rea based defense congressional be evidence of a intent not to drug dependence “legislative would be ac- possession “legalize” of or narcotics other tivity.” majority opinion implies The crimes, however, way it is in no inconsist such im- “legislative activity” would be appellants’ ent with contention that at trial proper. implication That demonstrates permitted judi- erroneous view of the be an affirmative nature raise process. following analysis cial The charges possession defense to the of and proper Mr. Cardozo of the nature a Justice PIC. If defendant fails such an to raise judicial process of long the had been con- affirmative defense or raise the de does proper sidered the formulation: fense and is in unsuccessful his assertion it, of in then accordance with the statute judicial My analysis process pe bemay he and to a convicted sentenced this, log- little comes then and more: Congress plead 34. quantity “The intends crim that Federal a use to small his own against drug felony possession shall guilty inal laws enforced be users the count “in persons hope as as other . . .” well . D.C. thereafter invoke the court will provisions § Code 24-601. II of the the of title Narcotic (18 Act of 1966 U.S.C. Rehabilitation (b). 35. D.C.Code § 24-603 Drug seq.).” Hearings the in et on Abuse Washington Area the Senate Comm. Before Supra p. Columbia, Cong., 1st on 91st the District of formerly (statement employed Sess., pt. 2, (1969) David Another tactic the of Attorney Attorney policy Bress, States of United a matter United States G. former permit Columbia). an addict found in of the District Forty years Wendell custom, earlier Oliver utility, ic, history, and right Holmes wrote that: con- accepted standards of and the duct, singly or are the forces growth the of the law is substance [I]n the shape progress combination deeper legislative. And this in a sense shall domi- these forces law. Which of the courts declare to have than what depend any largely case must nate always law is in fact new. been the importance or val- upon comparative Holmes, grounds. legislative in [C. that will be interests ue of social (N. Howe Law The Common thereby promoted impaired. One of paperback ed.).] interests is most fundamental social impartial. uniform and quotations my that law shall be discus- These earlier action that nothing development must in its There be the doctrine sion of the demonstrate, opinion, or even ar- prejudice my savors of or favor mens rea readjust- Therefore bitrary fitfulness. whim or the constant reexamination adherence to main shall be rea and its concept there ment of the of mens precedent. is one application specific cases the social interest served becomes Uniformity certainty must then be balanced fairness social fare. ^[*] duty These interest ^[*] uniformity other ceases drawing may ^[*] served elements of enjoin upon the >'fi oppression. line at by equity and good symmetry or ^[*] social when another against judge ^[*] wel- judicial process. mental of a majority’s volves stones of islation” has basic duties of judicial new mens rea judicial misconception our legal condemnation of “legislation” long “legislation” judge. system. been one defense of the nature of involves This and such Therefore, the ground recognition process a funda- “leg- key- along new staking path angle, of Dependence Defense Drug IV. courses, point de- a new marking Law Enforcement Anti-Crime parture who come from which others strongest continually theme that journey. upon him will out their after set reappears opinion majority that to you If ask he to know when how recognize rea defense based mens another, outweighs I can one interest dependence deeply into drug would “cut get his only answer that he must knowl- are the effort.” enforcement We [law] it, legislator gets from just as the edge why told enforcement never how law study reflection; experience and hampered although there efforts would be Here, indeed, is brief, from life itself. space much devoted addiction-related point legisla- the of contact between crime. of meth- tor’s work and his. The choice values, ods, appraisement must of though premise drug Even de- guided like considerations the end pendence is the significant of root one Each in- the one as for other. challenge, of is not causes without crime within the limits legislating deed is States, of Marshall United U.S. competence. the limits for his No doubt (1974), 94 S.Ct. L.Ed.2d legislates judge He are narrower. appellants not contended crime open gaps. He fills only between drug dependence are unrelated. Cardozo, The spaces in law. [B. majority imply 112-13 of Process chooses to that the Nature the Judicial (Yale ed.) (emphasis defense of (1921) paperback recognition of affirmative dependence presents drug danger added).] op. Majority at possession already dependent, “legalizing” Appel- drug of heroin. overwhelming possession majority experts lants agree have not asked that the threat legalized, original panel punishment heroin be of criminal and the has no deterrent companion Prettyman decision in the case of value. The Franklin Commission stated States, (No. that: D.C.App. v. United Feb. 27, 1973, state- vacated), contained several The Bureau of Narcotics maintains as, emphasize ments such wish to “[w]e present penalties that the severe as a act legalizing are not we powerful deterrent. The Commission Nevertheless, drugs.” narcotic at 42. Id. agree. does not As the Commission analy- shall endeavor to set out below an I pointed introduction, out it is diffi- why of an affirma- recognition sis of cult to believe that a narcotic addict who upon drug dependence

tive defense based physically psychologically depend- hamper would not law efforts. enforcement ent on a forego will satisfaction of craving for fear a long prison legally accepted purposes Of the various sentence. . . . The weakness punishment of a for violation position proved deterrence every day (1) deterrence offender law — by the fact that the illicit in nar- traffic others; (2) isolation the offend- and/or marijuana cotics and continues.39 society; (3) er from reformation or reha- All available statistics show an increase of offender; (4) bilitation of the retribu- epidemic proportions in the use of abusable morally of a blame- tion for commission drugs during twenty years the last despite worthy purposes of deterrence act—the vigorous prosecution of addicts.40 The ex- closely and isolation most related to planation of these concisely statistics is general law enforcement. report stated in the Special of the ABA’s Committee on Crime Prevention and Con- Drug Dependent Deterrence: A. Persons trol: nonrecognition depend- Will of a drug The demand is created not [for heroin] mens rea depend- ence defense deter by economic considerations but an in- persons ent or others the commission physiological satiable craving of the ad- persons of crime? the case of who are dicts, who must obtain large and fre- Advisory 39. The President’s Eldridge, (2d Commission on W. Narcotics and the rev. Law Drug Abuse, Report 1967); Narcotic Kolb, Drug Final ed. L. Addiction: A Holahan, See also (1962); The Economics Medical Problem Joint Committee Heroin, Drug Survey Project, Abuse the American Bar Association and the Dealing Drug Report Abuse —A to the American Medical Association on Narcotic (1972) [hereinafter, Drugs, Drug Ford Foundation 278-95 Addiction: Crime or Disease? Rep.]; [hereinafter, Ford Foundation National Commis ABA-AMA Comm. Laws, Rep.]; Hearings Importation, sion Reform of Federal Criminal on Heroin Working Papers 1132, (1970) (Note Distribution, Packaging 1136-37 and Distribution Be Dependence Crime, on as a Defense fore Unlawful the House Select Comm. on 91st Possession); Cong., (1970). Canadian In Commission 1st Sess. quiry Drugs, into the Non-Medical Use Report (1970); See, g., DuPont, Interim 517 40. President’s e. The Profile aof Heroin- Epidemic, N.Eng.J. on Commission Law Enforcement and Ad Addiction of Med. 320-24 Justice, Report: (Aug. 5, 1971). ministration Task Force Drug (1967) generally Study Drug Narcotics and Abuse 158 See [here Staff on Abuse inafter, Rep.]; Washington 1970, prepared Presidential Force Task W. in the Area for Comm, Seymour, Young Quietly The N. Die 55 the Senate on the District of Colum- Lindesmith, (1972); bia, Cong., (Committee A. The Addict and the 91st 2d Sess. Print (1965); Chein, Gerard, 1970); Hearings I. Law 61-62 D. R. on Nareotics-Crime Crisis Rosenfeld, (1964); Washington & E. Lee The Road to H in the Area Before the Senate Comm, Proceedings Columbia, of the White House Conference on the District 91st Drug (1962); Cong., Sess., pt. (1970). on and Abuse 229-30 Narcotic 2d Experts quent agree of heroin to maintain sem- ment. there two doses are physical normality. patterns As a recruitment re- new blance of addicts. One, sult, incessant efforts ob- which accounts a small the addicts’ number of addicts, person by given is who tain heroin are threat narcot- undeterred drug punishment illegal pos- therapeutic purposes ics for medical and of harsh and exorbi- who became session or the black market’s addicted as a result of The prices.41 tant medication.43 most second and pattern common recruitment is socioeco- ‡ Jji ‡ íjí Jfi The addict population nomic. “over- law By exclusively en- relying almost on black, whelmingly young, poor, and concen- sanctions, the penal gov- and forcement big city ghetto trated areas.” Dr. realities ignored has the medical ernment Jaffe, former President Nixon’s Jerome realities of addiction and the economic Special Abuse, Drug Advisor on writ- The of the black market. evidence ten that would be difficult overes- “[i]t overwhelming desire to that the addict’s organization timate the effects of social on discouraged by heroin consume cannot drug incidence of abuse.” A combi- involuntary prolonged abstinence jailing, culture, occupa- including nation factors city in the drug’s or cost exorbitant tion, fashion, environment, childhood legal Denying addicts a narcot- streets. use, drug psychopathology antedates substituting effec- ics source without etc., begin combine lead an individual program simply drives tive treatment using drugs. Most addicts come from de- market, where them black into environments use is pressing where pushers solely selling are interested acceptable, available, drugs future are highest possible at the much heroin as prospects pessimistic. They try are often price.42 obtainable frustration, curiosity, out of drugs bore- dom, dependent.46 quickly become Dependent Persons Non-Drug Deterrence: factors, Because these individuals who are likely most to become addicts are not dependent already drug If those who punishment deterred of nontraffick- from be deterred continued will not ing possessors punishment because that dependence-related crimes dependence or does not new remove causes nonapproval of the affirmative defense experiment user’s interest in and desire to plausi- drug dependence, only other Moreover, drugs. stigma argument per- is that other deterrence ble meaningless these criminal conviction using deterred from narcotics sons will be individuals their environment. A recent dependent becoming drug at all survey C., re- Washington, addicts D. do drugs. The facts they begin using once began that 52 argu- percent vealed addicts this latter deterrence support (4th Special ed. & A. Gilman eds. on Preven- L. Goodman Committee Crime ABA Addiction], Drug [hereinafter, Control, Perspectives 1970) on Urban Jaffe tion New [hereinafter, ABA Crime Crime 26 Young Seymour, 46. Id.; Die W. N. Rep.]. Louria, 77; supra Quietly, D. note Drug (1968); Task Presidential & The Editors Scene 5 Id. See E. Brecher at 50. Chein, 52; Rep., Drugs supra Reports, note I. Licit Illicit Force & of Consumer supra 39; Cohen, H, Con Road to note Drug Abuse, 34 Fed.Probation trol of States, See, g., e. v. United Watson Rosenthal, (1970); Two Problems U.S.App.D.C. 439 F.2d Drug of Crimes the Draftsman Lesson (1970). Bell, (1970); Legislation, 24 407 Sw.L.J. Bull, Addiction, 21 Drug 22 of Narcotics 41, Rep., supra 44. note at 28. ABA Crime Skolnick, (1970); to Virtue: Coercion Morals, Abuse, 588 Drug Jaffe, Drug 41 S.Cal.L.Rev. Enforcement of and 45. Addiction Therapeutics (1968). Pharmacological of in the Basis

439 1965, percent simultaneously after after primary heroin use and 65 stated that: “The 1963, period anti-drug strong purpose possession e., enforcement of the i. sentences, laws, mandatory Those etc.47 laws should be and detection selection heroin, e., persons do not col- drug users who use of those who benefit would i. 53 lege prevention hal- students who use barbiturates and treatment or services-.” do so not of criminal lucinogens, because B.Isolation of the Offender that drugs sanctions which exist use, they heroin’s do but because fear incarceration prison While in does iso- short, physically debilitating In effects. society, the offender late incarcera- from despair in the is the follows “[i]t facility, tion a rehabilitation often locat- decay trig- poverty wake of social and prison, in the equally ed same isolates the 48 gers cycle.” the addiction-crime public. offender from is doubtful prospect that the of isolation civil com- Moreover, long lengthy so civil com- 49 mitment lead would to the commission mitment of addicts sustained courts crimes than the prospect more incarcer- statutes,50 pros- permitted under “the and penal facility. in a ation pect of extended civil confinement would probably persons becom- deter most from C.Reformation and Rehabilitation effectively ing addicts as as would criminal sanctions.” penal facility in a Incarceration neither dependent reforms nor rehabilitates point in this as- A final connection with person beyond the immediate termination pect argument keep of the deterrence use. in mind the distinction deterrence between upon only today a criminal based the existence of in this method used upon recog- country statute and deterrence based to deal with addicts is hard-core liability from nizing an excuse under to incarcerate after them criminal con- Despite majority’s technique temporarily contentions viction. That ren- statute. contrary, society, here addict to the we are concerned ders the harmless to can with the latter and not former. he commit no crimes while new However, connection, prison. imprisonment it is interesting note terrupts addict’s Report does not Second Commission end—the National —and percent and recom- of such Drug on Marihuana Abuse addiction. More than 90 street pro- return to and the retention of laws addicts addiction mended prison.54 and drugs52 crime release hibiting illegal Greenwalt, DuPont, 51. “Uncontrollable” Actions 47. Profile of a Heroin-Addiction supra Implications Eighth Epidemic, Amendment: note 40. Texas, supra 1, at 958. note Powell supra Rep., 41, at 33. 48. ABA Crime note Drug Hardy, Types See also J. Cull & 52. Marihuana R. National Commission on Drug Drug Abuse, Report: (1974); Use Their Lewis Second Abusers Abuses Users, Lifestyles (1973). Glaser, Among Heroin America 256 & 1974); Rubing (March 38 Fed.Probation Id., 53. at 273. Drug Use, ton, Types National Two Attorney’s Drug Dependence Ass’n District supra Rep., 58; 41, 54. at ABA Crime note (1971). Book 149-200 Abuse Resource Rep., supra note Task Presidential Force Little, Inc., Drug 226; Abuse D. Arthur See, g., O, e. In re De La Cal.2d Report Enforcement —A and Law Cal.Rptr. (1963). P.2d Enforcement on Law President’s Commission g., See, (1967); See e. 47-48 of Justice 24-609. and Administration D.C.Code generally Kramer, Dis Ad- on Crime State Versus President’s Commission Columbia, (1966); Report Commitment, 572-73 trict of 50 B.U.L.Rev. dict: Uncivil Aronowitz, Vogel, Nar (1970); V. Narcotics D.Maurer & Civil Commitment 1967); Addicts, (3d ABA- 179-80 ed. cotic Addiction Colum.L.Rev. Narcotics Comm.Rep., supra note AMA may development addition, imprisonment be harm- view of the of the common In atten- has demonstrated that the without medical law fundamental ful since withdrawal requirement tion, psycho- liability criminal that experience both all a traumatic may voluntary result in the act of the accused must be a logically physiologically, expression damage personality of his will. are lasting We concerned will,” mind,” “guilty with a “evil “vicious addict.55 mind,” Thus, as A. etc. Professor H. L. explained, really rea is Hart has mens Retribution D. catalogue excusing relating conditions Society, par- individual cases. or more the- theory, unlike utilitarian Retributive have ticularly judges, said that indi- ory, depend punishment serv- not on does subject punishment not vidual will be ing any socially purpose. Punish- useful dignity stigmatization and loss of imposed is mor- ment is the actor because through the criminal law unless he violates is not ally blameworthy, and if the actor his the law for reasons which were in blameworthy, must be excused from he e., prevent, power to i. the fundamental liability. criminal An act considered “persons principle moral not that should be product blameworthy only it if is the if punished could not done oth- will, is the “free” and the will of one who erwise, e., capacity had nor a i. neither the disease, compulsion, victim of or other opportunity fair to act otherwise.”56 defect, is the longer is no free. If act are Since several means of treatment compulsion, product overpowering of an illness, conformity available for the addict’s blameworthy and morally actor not principle, with this moral fundamental punished. not be therefore should concepts to mention of fundamental fair- liability is law,57 Such a denial criminal that process ness in due dictates [that punishment based on shock would seek rather we treatment than blameworthiness] any moral commu- possessors. sense civilized nontrafficking addict nity; put a law way, or to it another punished conduct which would Preventing Illegal Drug E. Traffic average blameworthy

be member can Of course law also be community be severe would too justified protects on the ground that community to bear. [O. Thus, public from some harm. the exis- Holmes, Law, supra at The Common 42.] prohibiting posses- tence of criminal laws Supreme Fifty years ago, illegal rec sion or sale of drugs Court can said persons protect public ognized general against drug sick addicts are “proper trafficking. fact, treat subjects sponsor . States, Act, 21 ment.” Linder v. United 268 U.S. Controlled Substances U.S.C. § 5, 18, 446, (1925). seq. principal (1970), S.Ct. 69 L.Ed. 819 et stated subsequent stop drug All purpose of our advances medical of. the bill was to traffic knowledge diagnosis. by concentrating Robin confirm law efforts enforcement California, 660, importers, manufacturers, 667, S. son v. on and distribu- U.S. tors, My re- Ct. 8 L.Ed.2d rather than users.58 Richey Judge Responsi- Hart, 56. District H. A. united States Court L. Punishment supra bility, 153; Rawls, recently A noted the incarceration of an addict note at J. supra nothing Theory Justice, problem do “will to solve his note 241. problems.” underlying addiction Unit- 60. See text at note infra Turner, F.Supp. ed States (D.D.C.1972). (remarks Cong.Rec. 33,605 (1970) Rep. Springer). Vogel, supra presidential Maurer V. 55. D. & note One commission stated that objectives law “are of narcotic enforcement majority ignores Appellants urged The two exhibits at- throughout this Appellants’ Supplemental Reply tached case virtually mandatory pro- that such a Rehearing pertain gram to the upon Brief on can and should be used ac- recognition depend- drug quittal, by of the implementing effect the 1953 Act. ence defense law enforcement efforts. assuming penalties Even that criminal Mayor’s Exhibit “A” is a letter from the imposed possession for illegal drugs as Advisory on Narcotics Addic- Committee sist stop the effort illegal flow of tion, whose members include Chief of drugs by giving police bargaining Police, which states that the Committee against lever to use drug users in an at supports recognition drug depend- of a tempt to learn supply,59 their source nontrafficking ence defense for addicts benefit society does justify penal in and adds: carceration rather than treatment of the drug dependent person, benefit further, The Committee believes way no free affects the will or lack there defense, coupled recognition dependent person. drug More effective, intelligent meaning- with over, the threat of civil commitment for ful use of the civil commitment statute may treatment well be as a lever effective drug dependents substantially for could penal as the threat of incarceration. improve city’s response prob- to the by offering meaning- lems of addiction sum, plausible there is explanation no ful incar- treatment alternative to bare for majority opinion’s unsupported as- [Emphasis ceration. added.] sertion approval of the affirmative de- drug dependence fense of would hinder Deputy “B” Exhibit is a letter from the law enforcement efforts. Metropolitan General Counsel Police Department stating police depart- that the V. Elemental objection ment has no Justice

. recognition of a defense limited majority The also contends that elemen- pos- of addiction small-amount heroin justice tal does not recognition necessitate coupled session cases the defense is dependence of a drug defense because local if virtually in-patient mandatory civil penalizing laws unlawful of nar- commitment programs, treatment to be provide cotics do not mandatory sen- subsequently by out-patient followed tences, and Superior because the Court has treatment, assuring thus continuing su- partially pilot pretrial successful diver- pervisory treatment for those who suc- program sion drug dependent persons. cessfully [Emphasis assert the defense. government made a similar in original.] Briefs, contention in its but specif- added a objection ic validity to the references Appellants’ Supplemental Reply Brief on process due of law made in majority Rehearing refers to this letter and notes: opinion panel in the decision in Franklin v. Department Police acceptance States, supra.60 United Although I realize the defense is “virtually appellants conditioned on a spe- have not raised a claim mandatory” civil program. commitment cifically based the constitutional possible highest to reach the sources of efforts are often ineffective because nontraf- supply greatest possible ficking usually and to seize the addicts little know about men quantity drugs higher up of illicit before use.” Presi- in the distribution chain. Report: Drug dent’s Commission on Law Enforcement & Second Use America 255 Justice, Challenge (1973). Administration Society Crime a Free Supplemental Appendix Ap Brief and pellee appear The National Commission on Marihuana 37-38. References Drug pointed slip opinion 23, 29, 32, Abuse has out such and 39. (1968), states that and that L.Ed.2d process of law guarantee “[t]he of due law, adjustment of process of the common dispositive of is therefore not this decision times, traditionally to fit the been claim, let contentions I these such a cannot precise intent province of the states.” The pass unchallenged. however, unclear, is behind this statement homicide, for is arrested If an individual imply “states,” rather appears it that examined, is found to medically and is court, recognize than this should ex new at the time he committed been insane have law doctrines. cuses under common Such reasoning homicide, majority’s is, course, implication specious. At an that convict that to to the conclusion leads page opinion, Powell Mr. cited him sentence and to of murder individual discussing why Marshall is Justice el- principles of prison would not violate Supreme United States has ar Court not is no local because there justice emental general ticulated constitutional doctrine and for murder because mandatory penalty points of mens rea. He out that doc trial is before treatment available medical reus, rea, of actus and trines mens various The insane. found to be for some those excuses, continually and that evolved insane individ- between the difference Supreme if the defined in con Court them dependent person that ual and terms, experimentation stitutional fruitful recognized benefit of the former jurisdictions various and the concomi not. latter does defense and the affirmative dialogue productive tant between and law psychiatry be halted and into would forced which are “so I think few ideas can a rigid constitutional A mold. careful in the con and traditions rooted reading opinion of the Powell it makes as people be ranked of our as to science clear that there was an intent encour Massachusetts, fundamental,” Snyder v. age, experimentation discourage, with 332, 97, 330, L. 105, 78 291 54 S.Ct. U.S. concept the common law criminal liabili ; “common (1934) which embrace Ed. 674 ty by legislatures local and courts local and fairness and fundamental ideas merely by legislatures acting rather than 473, 455, right,” Brady, Betts 316 U.S. v. alone. 1252, 1262, (1942); 86 L.Ed. 1595 62 S.Ct. conscience,” “shocks the denial whose States Moore VII. United v. 172, California, 165, 342 72 Rochin v. U.S. idea 205, (1952), as the 96 183 S.Ct. L.Ed. opinion specifically majority states punished if he person should not be that a agree62 its authors the decision opportunity to refrain a fair did not have Appeals Court of United States doing he As Professor what did. United District Columbia Circuit noted, recog cogently refusal Hart has 375, Moore, U.S.App.D.C. 486 158 States “represents an ob this idea sometimes nize denied, 414 S. F.2d cert. U.S. recognize that human stinate refusal (1973). L.Ed.2d Ct. may control their beings be able to argument made repeat Rather than each though they they are know what conduct decision, merely shall I 121-page doing.” agree expressed that I views state with the Adjusting the The Process of Com- VI. and his fellow dissenters. Judge Wright Law mon Moreover, important to note that the present vitality the 5-4 Moore decision opinion citing Powell v. majority extremely suspect. judges the five Of 514, 536, Texas, 2145, 20 S.Ct. U.S. Clarification, 42 Fordham Responsi Hart, Need for Judicial A. Punishment H. L. Packer, supra bility, L.Rev. at 153. See note Supreme Court, Sup.Ct.Rev. Rea Mens Majority op. 7; Comment, Responsi at 403. 10 Criminal Drug Dependence bility and the Defense —A who voted to affirm way the conviction vote the same if the issue were possession, only did so ground presented three on the again. to them proffered drug dependence that the defense Dependence, Drug VIII. Free Will was invalid.63 The judges other two who Mens Rea conviction, voted to affirm Judges Leventhal,64 McGowan did not reach majority opinion accurately notes validity the issue of proffered pivotal appellants’ posi- fact in “[t]he defense because believed that Con- tion is that heroin addiction causes or cre- gress had decided that treatment ates in them ‘overwhelming compulsion’ dependence was to be handled a matter possess They posit use heroin. disposition under the Narcotic Addict the ‘compulsion’ negates ‘free will’ thus re- Rehabilitation Act (NARA). of 1966 Sub- moving choice, any meaningful legal in the sequently Supreme the United States Court sense, to refrain from or use of held that NARA’s exclusion from treat- any explanation narcotics.” Then without persons ment prior of those with two felo- material, or reference to supporting ny is Be- convictions65 constitutional.66 majority baldly states it does not large dependent cause a of drug number agree appellants’ position.68 with persons prior have two convictions and treatment,67 would thus be excluded from Although precise etiology drug may judges be now that the two who dependence (addiction), an interaction of against depend- voted recognizing drug complex psychological, physiological, and defense, ence ground on the known, treatment sociological components, yet is not virtually available, experts69 accept all under NARA was the World would not pattern compulsive Judges Wilkey. drug MacKinnon, Robb, 63. behavioral [A] and use, by overwhelming characterized involve- Moore, U.S.App.D.C. 64. United States v. 158 drug, securing ment with the use a 395, 1159; at Harrison, 486 F.2d at v. United States supply, high tendency relapse its and a U.S.App.D.C. 229, 232, withdrawal. Addiction thus viewed after as 1008, (1973). F.2d an extreme on a continuum of involve- drug quan- ment with use and refers in a 4251(f)(4) (1970). 65. 18 U.S.C. qualitative titative rather than a sense to degree drug pervades the States, supra. to which use Marshall United activity total life of the user. most 67. See Task Force on Federal Heroin Ad possible stances it will not be precision state with Programs, Drug diction grams, Federal Abuse Pro point compulsive at what use Report A Submitted to the Criminal should Addiction be considered addiction. Drug Law Section of the ABA and Abuse in this cannot be used reference frame of 87, (1972) ; Comptroller Council Gen interchangeably physical dependence. States, Report eral of the United to the Con possible physically dependent to be gress Programs on the Limited Use of Federal drugs being on without addicted and to be Narcotic Commit Addicts for Treatment & being physically depend- addicted without Rehabilitation, reprinted Hearings on Drug Addiction, supra, ent. note [Jaffe on Treatment & Rehabilitation of Narcotics Ad emphasis original.] 277; [See dicts Before Subcomm. No. of the House statements, Lindesmith, A. similar The Ad- Judiciary, Sess., Cong., Comm. on the 91st 1st Law, 39; supra dict and the note ABA- pt. (1971). 1 at Comm.Rep., supra AMA 45- note 46.] Majority op. at 410. Judge United District States Court Gasch See, g., Vogel, e. following D. & Maurer V. Nar offered the definition “addict” in (4th cotics and 1973) Lindsey, F.Supp. 55, Narcotic Addiction 37-44 ed. United States v. ; Eldridge, Law, (D.D.C.1971) W. Narcotics and the : supra generally Blum, ability note at 2. See R. who lacks the to abstain [O]ne Bovet, al., Drugs Controlling taking using D. J. et Moore from ly or narcotics is utter regard unable to control actions taking drugs. Dr. H. Jerome Jaffe has defined “addiction” . narcotic to mean: (3) psychic dependence Health a Organization’s (WHO) definition ef- on the “drug dependence” as authoritative. related to drug subjective fects a appreciation That definition is: and individual ef- of those ; fects state, “Drug dependence”: psychic A resulting physical dependence physical, also sometimes ef- on the drug requiring living presence interaction or- fects its between

ganism drug, be- maintenance of re- characterized homeostasis and definite, characteristic, always sulting in a responses havioral and other compulsion syndrome on include a to take the self-limited abstinence when periodic basis order to withdrawn. continuous or Tech. [WHO effects, experience psychic Rep.Ser. (emphasis some- No. at 13 (1964) added).] of its ab- times avoid the discomfort may may not be sence. Tolerance accepted Congress clearly defi- dependent person on present. may A repeatedly nition because it has defined an drug.

more than one Health [World “addict” as: Expert Drug Organization Committee Report, Dependence, Nineteenth WHO [A]ny habitually individual who uses 526, (1973).] Tech.Rep.Ser. at 16 No. any drug endanger narcotic so as to the morals, welfare, public health, safety, or “dependence-pro- WHO definition or who is so addicted to the use far ducing includes heroin and drug” both drugs power narcotic as to have lost the dependence “opiate Drug alcohol.70 with reference to ad- of self-control morphine, type,” which includes heroin 802(1) (1970); diction. U.S.C. [21 § intensive form of is ranked the most as 72 emphasis added.] 71 as drug dependence and is described “drug is used same definition arising repeated a state administra- user” in the Narcotic Rehabilitation D.C. agent with mor- morphine, tion of or an Statute, 1973, Code 24-602(a). D.C. § effects, or phine-like periodic on a con- Congress experts and medical Since tinuous Its basis. characteristics drug is agree dependence characterized : clude by strong compulsion” “a which reaches power loss of “the of self-con- level of or need to (1) overpowering an desire trol” the individual’s with reference to to obtain taking continue is drug dependence, question for us means', satisfied by any the need can enough compulsion strong is whether this by initially by or another taken negate mens as rea properties; morphine-like Appellants own use. PIC for the addict’s by experienced tendency compulsion a to increase the dose contend that tolerance; development strong as owing to addict at least as a narcotic Drug Tech.Rep.Ser. (1973). 626, basis. 70. WHO at 17 on a continuous No. that substance dependence is behavioral characterized Tech.Rep.Ser. 84, WHO No. 10-11 strong responses a include and other (1954). compulsion a con- substance on take experience basis in order tinuous See, g., 4251(a) (1970); e. 18 U.S.C. § psychic to avoid the or discomfort effects 2901(a) ; (1970) 42 28 U.S.C. § U.S.C. added.) (Emphasis by its absence. caused 3411(a) (1970). The Health § Public Service Hearings on Before the Permanent Subcomm. “drug Act, (q) (1970), 42 201 defines U.S.C. Investigations Comm. on Gov Senate dependent person” as pt. Cong., Sess., Operations, 2d 88th ernment person using who is a controlled substance (statement 5, A. of Dr. Herbert at 1300-01 (as 21) defined section Title 802 of supra Comm.Rep., Raskin) ; ABA-AMA psychic physical is in who a state de- both, 39, pendence, arising at 45. from the use of note

445 compulsion persons person other in sit- movements an imbecile or a felt permits an af- uations where the law now delirium of fever. None of them defy place agree. firmative defense. attendance the forbidden I Hinnant, the forbiddance. v. [Driver Compulsion recognized as a defense 761, 764 356 (4th 1966).] F.2d Cir. century.73 early as the Like fourteenth defenses, States, See also F.2d the other it was Fultz v. United common law 404, premise v. (6th on the a free 407-08 Cir. Lewis 1966); based without Celebrezze, 398, will, (4th Cir. guilty exercise of there can be no F.2d 399-400 1966); mind, e., Sweeney States, F.2d if an v. United i. individual is forced Finch, (7th 1965); given through Weaver v. choose a course of conduct Cir. ; (W.D.Mo.1969) F.Supp. fear death or serious bodi- a reasonable Fearon, State Minn. ly harm, said to 166 N.W.2d he cannot be However, policy blameworthy mind. recog- grounds, early law did common point ju- on this leading case our compulsion, any the threat of nize even Columbia, is Easter v. District of risdiction death, as a excuse the inten- sufficient supra at F.2d at the court where person.74 killing

tional innocent an stated: Over centuries law come respon- An essential element recognize a number of situations where sibility ability is the to avoid the conduct individual lacks will” and there- “free specified in the definition the crime. criminally fore not to be liable for held Action within definition is prohibited knowingly engaging in conduct. enough. guilty of the crime a To be responsibly in the person engage must development The most recent this con- Thus, person an insane who action. process recogni- evolutionary tinual guilty the crime. does act is of tion of an defense based affirmative morals, law, a case based on in such dependence. alcohol In 1966 United responsibility. criminal absolves him of of for the Fourth Appeals States Court too, So, an In case in case of infant. held: Circuit Congress has dealt a chronic alcoholic juris- Although his so misdoing objectively condition his guilty be held be comprises the diction too cannot physical elements of he being be- intoxicated [public intoxication], crime nevertheless the crime of lost cause, recognizes, he has perpetrated the Act no crime has been because use of power self-control in the the conduct was neither actuated an an beverages. In his case accompanied intoxicating nor evil intent with a con- criminality, indispensable where wrongdoing, element sciousness essential lacking. involved, is personal is ingredients of Morissette v. conduct a crime. States, 246, law as 250-252, to in the This is referred United 342 U.S. element 240, v. United can mind. See Carter Nor the criminal S.Ct. L.Ed. 235, 227, States, U.S.App.D.C. as a penalized misbehavior trans- his is well subject gression police regulation of a where F.2d —malum do stated in terms prohibitum necessitating no intent to is there discussed. It — axiom, non punishes. pres- “Actus what The alcoholic’s the common-law facit Coke, reum, rea.” Third public act, did mens sit is not his he nisi ence *6, may it. be likened to *107. not will Institute supra Hale, innocent”) ; Hale, Crown, id. 1 M. 73. 1 M. Pleas of note murder 1, at 50. Blackstone, (“he 74. 4 W. Commentaries *30 ought escape by rather to die himself than portion quotation vegetable. why above more than a This is Con- recog- Congress gress

which relates to an has defined “drug Act an “addict” or nizing that a loses the chronic alcoholic user” as one: power of self-control refers to the defini- so far addicted to the use of [W]ho tion of “chronic contained in D. alcoholic” drugs power narcotic as to have lost the identical, C.Code which § 24— of self-control with to his ad reference part, nar- in relevant definition of 802(1) (1970); diction. U.S.C. [21 § “addict” in 21 cotic contained U.S.C. § 602(a); emphasis D.C.Code § 24 - 802(1) (1970) “drug user” contained added.] 1973, 24-602(a). in D.C.Code § Thus arewe concerned with a loss of con- government argues that because an e., addiction,” “with reference trol to his i. his addict retains control” over con- “some narcotics, complete use of not a loss of duct, -he cannot assert a defense based all control.75 upon drug dependence. simply not This is any recognized defense. The the law Although may some addicts retain the insane, alcoholic, and sub- chronically those ability to choose methadone maintenance duress, ject retain some con- to external all heroin,76 they rather than continued use of precluded trol over their A total loss raising conduct. should not be a de- drug dependence. persons, fense of Sick nothing would render an individual control personal possessed proposes [T]he a “sub- 75. The Model Penal Code dependent capacity” a defendant use was so has been who stantial standard adopted by substantial ca- on the he lacked the Second United States Circuit. pacity 1966). Freeman, (2d to refrain from Com- [National use. v. 357 F.2d Cir. person responsible mission on Reform of Federal Criminal A is not Laws, Study Draft Crim- of a New Federal as a if at the of such conduct conduct time (1970) ; emphasis 1824(2) inal Code § mental he lacks result of disease or defect capacity added.] substantial to conform ... deleted, however, requirements in the That section was law. conduct Report (Pro- 4.01(1) Final [ALI, Commission’s without Model Penal Code posed 1962).] comment. Official Draft generally Brawner, following explanation See United States The drafters offer the supra note 7. of this section: recognize The law must that when there synthetic is a Methadone narcotic which black and must content itself no white it draft, prevents gray. withdrawal and satiates the addict’s different shades of craving However, accordingly, complete heroin. there is no im- does demand not euphoria pairment capacity. associated administra- instead for with oral It asks impairment. tion of methadone it is also an addictive substantial This is all we drug. Consequently: witnesses, that candid on think called significant are addicts a time numbers of [T]here infer the nature they of the situation unwilling confidently observe, seem methadone who to substitute did not ever can group studying say, they After crim- for heroin. even that a disorder when know City Code, [ALI, recidivist in the New York inal jail, addicts was extreme. Model Penal percent only (Tent. Dr. Dole concluded that 4.01 Draft No. § Comments at 158 crime-prone accept 1955).] of those addicts would Henry 2.01(1) methadone instead Gollance, heroin. Dr. also Model Penal : See Code colleagues, person guilty unless one Dr. Dole’s told is not of an offense A liability the House Select that Committee on Crime based on conduct might voluntary effective methadone maintenance act or the omission cludes percent physically perform entire of New York’s an act of which he is population. Special capable. addict Commit- [ABA Control, New tee on Crime Prevention and Reform The National Commission on Perspectives 56-57 Urban Crime Law recommended Federal Criminal (1972).] prosecu- be an affirmative defense to there drug if: of an abusable tion ill, mentally dependent, whether alcohol etc., epileptic, as- precluded are not Appellant, ROSS, Kathleen S. they serting a defense because failed to v. advantage take available treatment. Appellee. ROSS, Sherwood inquiry The relevant is into the defendant’s No. 7445. physical

mental condition at the time e., alleged offense,77 the addict’s i. Appeals. District of Columbia Court of “power of self-control with reference Argued March his addiction.” Decided June compulsion There is that the little doubt strong as felt addict at least alcoholic,78 felt a chronic are while addict’s behavior controls certainly totally destroyed,

substantially impaired.

IX. Conclusion reasons, foregoing

For the find the I

majority opinion in case to be erro- I, therefore,

neous and from it. dissent judges

We should not be dissuaded from responsibility suggested

our de- because drug dependence neatly

fense of does

fit within the four corners of definitions recognized lia- from criminal excuses

bility. say It is not enough to

dependence squarely does not within fall “insanity,” “compulsion,” definition of “duress,” and therefore it cannot be

recognized. genius the common law responsiveness

been changing its

times, ability developing to reflect Drawing

moral and social values. past, the law must serve —and tradi-

tionally has served —the needs of

present .... States [United Freeman, (2d 357 F.2d 624-25 Cir.

1966).] Columbia, supra Glatt, ; (2d 1973) Easter v. See District Alco M. ed. Alcohol 16, 36, 53; Drug Dependence note at 361 F.2d at States One United holism and - Under supra Drew, Dialogue Umbrella?, note on Alcohol in World Whitney (E. Dependence Drug 329-31 Seevers, text, Halback, supra 1970) ; Eddy, 78. As noted earlier in the Isbell & notes population. He also that there of the addict indicating opioid are studies that “when analysis reported through statistical use decreases treatment [heroin] in- City in a “10 percent that New York means, other so does criminal behavior.” to price predicted in the of heroin crease Id. robberies, percent increase in lead to a 3.6 2.0 burglaries, in a percent a increase 1.8 $50, and percent larceny under Judicial increase in Intervention in auto G. percent theft.” a 2.5 increase we are in What asked to do this case Silverman, Price The Retail Brown and L. change to principles course of settled Applications and Heroin: Estimation of criminal responsibility of to uncharted seas Council, (The 1973).40 Inc. Drug Abuse by validating a (to personal limited defense Moreover, “predicted in . increases offenses) based an addict’s aggravated as- percent] murder [5.3 overwhelming compulsion possess her- may either percent], be attributed sault [1.5 lightly be tak- oin. Such course cannot . in within increases violence As was in en. stated United States system population and distribution addict Moore, supra at 486 F.2d 1180: peculiarities or to high prices, as a result crime-recording. Larger numbers in have Only areas the courts limited fact, an the result of might, in murders reponsi- recognized defense to criminal robberies, burglaries, other increase con- bility, that a described basis crimes, lead revenue-raising some which incapacity psychic establishes a dition murder.” Id. sense. in the broader negativing free will Another estimates that researcher the courts are areas where These money purchase 3.8 used to percent deep el- call on respond to a able to been through legal heroin is in- raised sources demar- discern a justice, and to emental cluding payments, shoplifting welfare while keeps defense of doctrine cation percent, accounts for 12 burglary 14.2 tear verifiable bounds do within percent, pickpocket games and con for 5.2 law as an the fabric of the criminal percent, robbery mugging armed [Leventhal, control. strument social percent. is derived 1.8 The bulk of income J., concurring.] illegal providing community percent, drug, dealing services: in the 46.5 as a Accepting proposition concise Moore, prostitution, percent. 16.5 See recog- statement of when a court should Distribution, in 3 Economics of Heroin here, as that asserted nize a defense such Policy Drug in New Concerning Abuse an undertake examination we will Inst., (Hudson 1972). York State premises for such action whether in this case. met Still another researcher noted criminogenic since 1937 observers opioid effects of use have noted [heroin] Justice Elemental necessity resort “the to crime order concept general consider support Tinklenberg, we addiction.” When process as address Crime, Papers we must Drugs justice in 1 Technical drug addition- relates to insofar as it Report the National Com- whole the Second drug. availability greater help spite because humanitarian tlie efforts E-1, 15, 1975, Washington Post, Washington city, Mar. Post re- addicts cently reported “disturbing” col. 5. increase city in months heroin deaths in the recent

Notes

notes ed. Significance Drug Dependence: 70 and alcohol is classified as “de- Its Bull, drug” by pendence-producing WHO, Characteristics, 725-28 WHO Opiates drug dependence opiate type Lindesmith, (1965) ; & ranked Addiction A. Interdepartmental drug depend- (1968) ; as the Committee most intensive form Report Narcotics, Vogel, ence. D. the President See Maurer & V. Narcotics Addiction, supra 47; and Narcotics note U. 3-4 S. Jones, Shainberg Byer, Drugs K. L. & C.

Case Details

Case Name: Gorham v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 7, 1975

Citation: 339 A.2d 401

Docket Number: 5992, 5995

Court Abbreviation: D.C.