*1 of America STATES UNITED
Raymond MOORE, Appellant. 71-1352.
No. Appeals,
United States Court District Columbia Circuit.
Argued Sept. May 14,
Decided 23,1973.
Certiorari Denied Oct
See
ington Area Council on Alcoholism Drug as amicus Abuse curiae. BAZELON, Before Judge, and Chief WRIGHT, McGOWAN, TAMM, LEV- ENTHAL, MacKINNON, ROBINSON, WILKEY, Judges, ROBB and Circuit sitting en banc. PER CURIAM: Judge Wilkey, Cir- Circuit with whom Judges join, cuit Robb MacKinnon and voting opinion con- filed an all to affirm Dis- in the victions and the sentences Leventhal, Judge trict Court. Circuit Judge con- with whom Circuit McGowan curs, voting all opinion filed an to affirm District convictions and to remand Court for further consideration resentencing. disposition NARA Cir- Judge cuit in Part MacKinnon concurred Judge opinion, IV of Circuit Leventhal’s Judge and Chief Bazelon in Part V Judges Circuit MacKinnon thereof. voting separate opinions Robb filed affirm convictions and the sentences all Court. District Judge Wright, whom Circuit Judges Judge Chief Bazelon and Circuit join, Tamm filed a dis- and Robinson voting senting opinion for a remand jury new trial permitted the defend- to decide whether repeated use ant as a result capacity to lacked substantial narcotics requirements conform his conduct to the Judge filed Bazelon law. Chief stating dissenting ex- opinion, he would possibility defense tend the of this Washington, (ap- D. Wald, C. Patricia than capacity other lack of to crimes appellant. court), pointed by possession. narcotics Atty. Adelman, Roger U. M. Asst. S. being majority five There Flannery, U. S. with whom Thomas A. voting all judges to affirm of the court filed, Atty. at time the brief was majority being convictions, no there Philip Terry, Cohan and John A. L. disposition, any specific Cir in favor of Attys. Cys, L. U. S. were Richard Asst. MacKinnon, and Wil Judges Robb cuit brief, appellee. Henry F. on the intimating any dissatisfac key, without Crimmins, Greene, Alt- Robert C. Oscar originally im the sentences tion with Aldock, Asst. U. S. shuler and John D. join Judge, vote posed District ap- Attys., appearances entered also Leventhal pellee. Judges McGowan Circuit convic affirming Moore’s defendant George Jr., Lamb, Washington, D. P. counts, vacating the sentences on all tion C., filed a brief on behalf Wash-
H41 door, remanding District chairs to look at the when Offi- imposed, and Daly resentencing. cer entered. Court Beverly’s . In front of Mr. ordered. So chair, edge one inch about WILKEY, Judge, bed, whom Circuit mirror was a white-framed Judges ROBB quantity Circuit MacKINNON on which there was a *3 (later join. powder white found to be milligrams 1,854.5 a mixture con- appeal a conviction an from This is taining heroin). [Footnote posses- 4-7% under two federal statutes right mirror, To the omitted.] Appellant that contends sion of heroin. Appellant’s a chair, in front of was improper he because his conviction was square record album flat cardboard overpowering heroin addict with an is a cover, quan- on which there was also a not, there- heroin need to use and should (later tity powder deter- white being fore, responsible in be held 1,824 milligrams mined of a be drug. possession After careful heroin). containing mixture appellant’s consideration, reject must 4-7% we “cutting boards” Between these two the conviction contention and affirm gelatin lay capsules and 81 93 new the trial court. gelatin capsules (as used determined Undisputed Evidence and I. The by the fact there a small but was District Court’s actions powder detectable amount white During January Metropolitan 1970 the containing capsules). heroin began investigation her- Police an into a lay cap- To the left of the mirror being trafficking operation allegedly oin (later powder sules filled white with a Washington in conducted a milligrams Northwest 3,650 (cid:127)found to be a total of Through informant, hotel. an investi- containing heroin). Toward 4-7% gating men, officers learned two edge a the far there was of the bed “Crip simply identified and Green” stocking over stretched woman’s “Jumbo,” selling were cutting hanger (called wire coat hotel; acting two rooms in under cutting screen). to the screen Next police supervision, made containing the informant unopened package was an purchases heroin from both of the sus- syringes hypodermic and about 10 pects. Lying album, in front needles. on chair, was an ace of Moore’s Mr. upon Based information, search (often cut- called a hearts half cut warrants for hotel rooms were the two ting pillow card). were Near the January obtained and executed on keys that were found fit set announcing knocking 1970. After and pillow of room Under door receiving identity purpose, their and and pis- was a 38-caliber Smith & Wesson reply, way no forced their officers tol. greeted into the The scene that room. implements accurately these officers described It is obvious that was mixing appellant’s undi- were intended for use own brief as follows: quin- luted heroin lactose and/or The room was about 10-12 feet concentra- to a street ine to reduce it depth. Against the far wall awas cutting 5-10%, into tion of about bed, being the head of the bed cap- normally injected, quantity and right. left and the foot to the Two ping can form in which it it in a positioned chairs were side carried. sold and bed, facing it, about one and foot away. Beverly Appellant were Beverly After Sherman was seat- W. plas- arrested, they chair, Ray- ed A were searched. on left-hand right- containing capsules of a mond Moore was tic vial seated on the (later seated, to- powder hand found to be chair. Both were white still milligrams mixture simply 2,274.9 of a in their twisted around tal heroin) Relying containing opinion Watson, ap- found 4-7 was our %. pellant right pocket. argued Appellant’s front a mere non- trouser Nothing Beverly.1 traffieking was found on the indict- addict ment should be dismissed one of Upon in- this evidence a four-count argued appellant First, three reasons. charging appel- returned dictment was non- unconstitutional to hold a lant with the Harrison violations trafficking guilty simple pos- addict 4704(a) Act, Narcotics 26 U.S.C. § position session of heroin. This rests (1964), Act, 21 U. and the Jones-Miller amplification extrapolation Advancing (1964).2 ar- S.C. Supreme interpretation Court’s gument hopelessly depend- that he was Eighth Amendment advanced in the ad- therefore, not, ent addict and could mittedly divergent opin- confused and heroin, responsible held ' ions Robinson v. California4 *4 appellant sought have the indictment to ground, Powell Texas.5 The v. second authority dismissed under princi- an extension of the common law opinion in court’s Watson United ple requisite that there cannot be the States.3 illegal performed will if the act free hearing At appel- on this motion overpowering compulsion, because of as- stipulat- lant stated Government serts a addict is excused narcotics appellant ed that a heroin was indeed any penalties ille- for the Appellant addict. further testified that gal purchase, possession, acts of and use pusher, he was not a heroin had never satisfy personal of narcotics to his ad- engaged drug trafficking, had appellant’s dictive needs. third is simply come to the hotel room where he interpretation construction of the purchase arrested in was order the il- to congressional acts, series of four drug. licit not once since neither in black let- Appellant’s Brief, pp. 24-26. imprisoned shall be less than five twenty years and, or more than dition, may in ad- 4704(a) 2. 26 U.S.C. § : $20,- be fined not more than any “It person shall be unlawful for subsequent 000. For second or offense purchase, sell, dispense, to or distribute (as (c) determined under section 7237 drugs except original narcotic 1954), Internal Bevenue Code stamped package original or from the imprisoned the offender shall be not less stamped package; and the absence of forty years and, than ten than or more appropriate taxpaid stamps from nar- addition, may fined than not more prima cotic shall be facie evidence $20,000. of a violation of this subsection “Whenever on trial violation person possession in whose the same of this section the defendant is shown to may be found.” possession have or to have had The Harrison Narcotics Act has since drug, possession narcotic such shall be repealed by Comprehensive been Drug deemed sufficient evidence to authorize Abuse Prevention and Control Act of explains conviction unless the defendant 91-513, III, Pub.L. Title § 1101 possession to the satisfaction of the (b) (3) (A), (Oct. 27, 1970). 84 Stat. 1292 jury.” § U.S.C. 174: The Jones-Miller Act has since been re- fraudulently pealed by Comprehensive knowingly Drug “Whoever or Abuse imports brings any drug or Prevention and narcotic in- Control Act of Pub. 91-513, any III, 1101(a)(2), territory United L. States or Title (Oct. jurisdiction, contrary 27, 1970). under its control or Stat. 1291 law, receives, conceals, buys, sells, or U.S.App.D.C. 335, 3. F.2d any or in manner facilitates the trans- (1970) (en banc). portation, concealment, any or sale of being imported such narcotic after 4. 370 U.S. 82 S.Ct. 8 L.Ed.2d brought in, knowing or the same to have imported brought been into the contrary law, United States or con- 5. 392 U.S. 88 S.Ct. 20 L.Ed.2d spires any to commit such acts in vio- lation States, of the laws of the United
114S report, have addiction had the in committee characteristics of a nor ter statute specifically non-trafficking disease, consequence appel- exempted that as a pur- helpless compul- penalties lant to control from criminal his addict sion possession, to obtain and use heroin. chase, and use. by argu- responded testimony, At the conclusion of this
The Government the trial ing court ruled that Dr. Kaufman was no constitution- first that there permitted testify would al, law, statutory rationale before common jury, ground non-trafficking apparently on the addict permitting a charge addiction can never possession of be a defense to a defense to a charge Secondly, of heroin. After heroin. it contended case, the Government rested its not non-traffick- event Moore was by appellant engaged court denied a motion for a in fact but was addict judgment acquittal. Appellant then pushing and, there even if renewed motion addicts, the in- dismiss mere were a defense available to permitted dictment on the basis Watson. This defense should not be such a rejected motion to dismiss was this time here. because the court felt there was Following hearing, the trial court trafficking per- sufficient evidence of appellant’s denied motion to dismiss. go jury. mit case judge, however, The trial reserved his court also indicated now judgment on whether of addic- evidence permit testify; Dr. Kaufman to jury by tion introduced to the could be *5 permission was, however, withdrawn the defense. following day. principal prosecution At trial the wit- ruling After this the defense decided arresting ness was the officer who testi- any not to further evidence. introduce fied to the facts described above. ad- resting, purposes however, Before for per- dition he testified that he had no completing record, the trial the defense knowledge appellant sonal that was en- testimony offered to introduce the gaged drug trafficking, that no tests McKinley Mr. of the District of Gore ap- had been conducted to determine if Adminis- Columbia Narcotics Treatment pellant’s fingerprints para- on the were testimony tration. This would phernalia room, that no tests were been to the effect that some addicts powder conducted to determine if heroin require have habits that more than 50 present hands, appellant’s was on day capsules per and that such addicts regis- that he had not checked the hotel capsules may in their have more than 50 knowing way ter and had no whether Mr. also at one time. Gore way appellant in was connected with testified, permitted, if that would have the room in which he arrested. On was currently appellant enrolled in á was cross-examination officer admitted therapy program, in Mr. that methadone require 50 to some addicts’ habits appellant’s opinion chances Gore’s capsules having per and that day, good, and that Moore rehabilitation were many capsules pockets would his problem beginning root to solve the was necessarily ap- not pellant be inconsistent with long- no soon his addiction and would being non-trafficking a mere ad- er need heroin. agreed Finally, on dict. the officer Following proffer, de- the court opinion ap- cross-examination that in his pellant jury non- was a heroin addict. that a clined to instruct Moore trafficking addict could not be convicted During presenta- the Government’s charged. Moore was under the statutes tion, presence heard court out of guilty in- of the on four counts found all jury testimony of Dr. Kauf- Acting upon appellant’s man, expert mo- an on Dr. dictment. addiction. appellant immediately was the verdict Kaufman testified that was tion after an appel- announced, long standing, appellant’s committed addict of the court Appellant’s Insti- II. Common Law lant Federal Correctional Defense Danbury, Connecticut, for deter- tute at logical Let us see how far the basis of suitability for treatment of his mination argument appellant’s inexorably II of the Narcotics Addict under Title logical take us. Bear mind that Act U.S.C. Rehabilitation argument appellant extension seq. Subsequently, et makes here was foreseen Justice reported appellant was staff NARA Supreme Black others of Court psycholog- addict, physically and both Powell, in Robinson and as discussed in- heroin, ically dependent but was fra, which account for the limits Thus on 14 suitable treatment. decisions, written into those limits appellant sentenced June 1971 court appellant would have this court years to six of two to concurrent terms upon expand. take itself 4704(a) U.S.C. § violations years of 21 violations and six A. re- Appellant now seeks U.S.C. § According appellant this case has versal of this conviction. one central issue: Appel- from the evi- proffered is clear We believe evidence Is the dependence non- long Moore not a mere dence that was and intensive lant’s trafficking heroin, to) en- (addiction injected was fact re- addict but gaged impairment if sulting Yet even trade.6 in substantial appellant was a we to assume that a loss were controls and his behavior heroin, nothing more, simple we be- rel- addict over the use of self-control responsibility must sus- his lieve that conviction his criminal evant possession. . . tained. . for unlawful opinion bed.) Judge Wright states that on his side Moore had none Last, trafficking operation significant particularly “it was clear most — pages progress, question significant but the remained in 108 because nowhere *6 buyer Wright’s opinion Judge or Moore the the is this con- whether was of Judge opinion Wright’s one at 1212. was seller.” fact mentioned —there clusive playing there was a traf- That The answer is indeed in the entire room. card men, Beverly half, ficking operation, playing in in and both had been torn card Moore, engaged working provide two were in it. a tool for and order to men, picture to There The us is clear. not one. uninitiated, the indicia that the narcotics on of undeniable For benefit the the part trafficking were enter- the bed of a the record album cover mirror and part prise, in was of heroin was and that turn Moore on the smooth surfaces placed which enterprise. First, put capsules. chairs This the both were to be the fingers edge conveniently each about one foot from the done cannot be facing long edge playing bed, bed, alone; its card had which the beveled of against capsuling The chairs en side wall. were is an tool. Since efficient position men, Hearts, only had Ace it of the two Bev- there of was working erly Moore, provide engaging dialogue, in a and be in half to to torn Beverly appellant bed, rather faced the on which both tool for both working. Second, be inferred could to be Moore. arrangement un- on the on these of the items bed If were hold this court clearly persons disputed not even indicated two were there was facts put working question to there. There was a mirror on sufficient evidence appellant piled 1,854.5 milligrams jury was a traf- Moore which were crystal heroin, right ficking addict, mixed the mir- it clear how is applied by chair, ror, appellant’s trial front of there standard would practical a cardboard would record album cover courts. The effect any pun- milligrams go 1,824 any which there were that ishment, free addict would Third, treat- mixed heroin. the left of indeed rehabilitative Beverly following cap- conviction, there because mirror front of were ment conviction, how filled matter sules with the heroin mixture. no no would be corresponded trafficking. roughly his These with been the 50 blatant had capsules (Bev- pocket. filled Moore’s erly capsules Brief, p. pocket; Appellant’s had no his words, might appellant’s In other is addiction a what be called the addict’s “char- involving acter,” crimes, only any defense to the or his moral standards. In possession, charged? with he case where the addict’s moral standards Arguing power craving physical that he has lost the are overcome his regard addiction, drug, may self-control to lose “self- be said appellant by applying control,” point, maintains that and it is at this and not principles point, law “the broad of common until this that an addict will com- responsibility” decide we must mit acts that violate his moral stand- in- purposes that he is entitled to dismissal of the here, ards. For our we jury dictment or a trial on this issue. think of such acts as crimes to obtain argument gist appellant’s drugs. here is long held that that “the commonlaw has legally un- determinative matter pre- capacity to control behavior is a appellant’s theory der sum must be the responsibility.” requisite for criminal Putting or result of the it two factors. inescapable logic ap- It is terms, in mathematical if the addict’s pellant’s argument, carry valid, craving if 4is a scale and his illegal any type strength over to all other acts of only of character is he will purpose whose was to narcotics resulting obtain have a loss of self-control and use, for his own a fact which is admit- illegal acquire drugs, commit some act to by Judge Wright opinion9 ted in his perhaps illegal purchase Appellant attempts justify only possession. example, For let a different purchase acts of nar- medically addict, us assume a induced cotics, illegal, prohibited both craving strength both whose but whose successfully prohibited they because if 8; of character him there will would eliminate addiction. The resulting self-control, be no loss of justification is on the basis illegal ad- presumably no kind. acts power dict has lost the of control over example, A third an addict with a crav- argues Appellant his choice of acts. strength and a of character of rationale, justifying that the same a tol- 3, may result of self-control to loss illegal erance of these two acts degree that the addict robs bank at court, or a strained construction of the gunpoint money drugs. buy to obtain Congress really statute that did not in- examples legally im- all these prohibit acts, tend to such or that it is portant resulting factor is the loss of constitutionally impermissible prohib- Drug varying self-control. addiction of carry acts, such would not over to oth- degrees may may not result loss *7 purpose er actions for the same of ob- strength self-control, depending taining narcotics for his own use. opposed of character crav- any In the case of addict there ing. adopted appellant’s theory, Under go two up factors that to make by dissenters, only if there is a re- (or thereof) “self-control” absence sulting loss of self-control there can be governs activities, his and which which, an absence of will under the free per- determines whether or not he will theory, extension of the common law acts, form certain crimes, such as to ob- provide would the ad- a valid defense to drugs. physical tain One factor is the dict. If there is a demonstrable absence craving drug. to have the The other is (loss self-control), of free il- will Id., at that, instances, in at least some an ad- may ‘compelled’ engage dict fact be “Perhaps question the most types activity troublesome other of criminal order arising recognition out of purchase of the addic- to obtain sufficient funds his tion defense is whether it necessary supply should be limited of narcotics. In such only to posses- those cases, principles acts —such as mere common law of criminal sion for use —which responsibility clearly applicable.” are inherent would be hardly disease itself. It can Opinion Judge p. be Wright, doubted legal possession drugs, acquisition case, acts and this is another it is not the charged by example appellant’s cannot to the user ration- called drugs. analysis just ale. dem- What the made onstrates, even the ad- ease But will which absence if of free dict-robber, is that his crime is caused possessor-acquirer, the excuses the mere compulsion, the same loss of self- his desperate more money bank robber for control, due addiction. demonstrable even more pre- lack cisely will and derived of free from Although attempted by appellant here, appellant the same factors there can be no successful differentia- argues possessor. should excuse the mere drive, tion between the source of argument appellant compulsion resulting In oral maintained and of control loss addicts, legal which, appellant argues, that there are different kinds vitiates is, accountability, compul- who are to confine some able hence the same possession necessarily their violation to and sion law ac- the basis serve as quisition for their use and posited own some of the defense each of the il- pos- legal only degree. who will commit other than crimes acts. It is a matter acquisition fact, session or to feed their hab- it seems clear that addict ; only its committing and that it is the latter whom who restrains himself from punish any we should except for their addiction. acquisition other crimes and position is, appellant possession, assuming This unfortu- he obtains his nately, logically untenable, accepts if one means, funds lawful has demonstrat- appellant’s greater degree own rationale that we must ed a of self-control than punish addicts for be- desperation the addict inwho robs a bank compulsion buy cause of under which to at retail. If the addict can re- they drugs. acquire act to committing any strain himself oth- illegal except purchase posses- er act By definition we have assumed crimes sion, demonstrating degree then he is first, simple possession of two classes— greater of self-control than that acquisition, second, greater or pharmacy bank, one who robs a robbery crimes such as motivated —both thus his defense loss of control compulsive need to obtain accountability is even than less valid resulting in loss of self-control. If we pharma- that of the who addict robs the punish second, we do so can be- cy or the bank. cause we find will. If will can free free second, exist for the it likewise ex- must If, appellant, ist for the first class. like B. position one takes addict dissenting opinions From the it is not (i.e. robbery) who commits crimes ignore logical they clear in- whether punished, feed his habit one consistency position, whether of this making judgment pos- addict vaguely recognize the in- dissenters will, sesses guilty is somehow free consistency arbitrarily line draw a way in a that the addict who does beyond which, to crimes other than ac- not commit such feed crimes to his habit quisition possession by proven ad- *8 (other acquisition of than crimes dict, the defense of will lack of free possession) words, is not. In other deployed. Certainly not be Mar- Justice necessarily quality follows shall, writing for of the four members makes addict commit such Powell, Court in declared limita- that the crimes to obtain the not the is regard- proposed by tion Justice Fortas compulsion of addiction and the loss of ing the defense of alcoholism chronic “self-control,” something apart but is merely by And “limitation fiat.”10 from his addiction—but if are we deal- motivating with a other so it would here. factor than be
10. 392
C. dealing statutory created scheme up a reasonable points narcotics stands the wisdom 1. All of this reaching objectives of “de in Pow- chance of Justice Black’s observations terrence, isolation, treatment,” ell, where he reached conclusion particular “compul- nature of the questions also because the of “voluntariness” *9 song Opinion Judge AVright, of Tom 12. the satirical This recalls 11. at 1257-1258 Dope Peddler,” supplied). (emphasis entitled “The Old Lehrer by doing good.” “doing well who was S.Ct., 540-541, U.S., at 2158. 13. makes cer- While observed there problem traffic the Court the heroin range not necessary that should was a wide of activities available policies tain dealing problem de- of this to states with the the creation be weakened presented compelling policy by narcotics,20 re- de the Court no There is fense. here.14 cided that statute was quiring this California us to intervene range: within judg- Furthermore, if such a 2. statute, therefore, This one balancing conflicting weighing and ment punishes person which use for the policies to be public interests narcotics, purchase, sale for their Congress, made, be made it should possession, or dis or for antisocial infra, fully explore which, more we orderly resulting from their behavior activity demon- in this area its has administration. not a law which It is possesses ade- more both that strated purports provide require even problems quate to deal with facilities Rather, medical we deal treatment. addiction, and that we of narcotic with a statute “sta which makes the judiciary circumscribed are somewhat tus” of narcotic addiction- a criminal activity in this area.15 our offense, for which the offender prosecuted any be he time before “at Appellant’s III. reforms.” that a Defense California has said Eighth Amendment person continuously guilty can offense, whether or not proposed To evaluate defense in possessed any ever used or narcotics light Eighth Amendment re- we State, within the and whether or not law, particular, view the case Robin- guilty he has been antisocial son v. California and Powell v. behavior there.21 (1968).17 Texas This review demon- simply strates case law does not just The Court concluded that as it would support position by appel- advanced impermissible punish person be- lant. cause he was afflicted with mental dis-
ease,
leprosy,
disease,
or- venereal
so
impermissible
punish
it be
A.
suffering
his affliction one
ill-
from the
Supreme
In Robinson the
Court was
addiction,
ness of narcotic
since
constitutionality
asked to determine the
light
contemporary
[I]n
human
which,
of a
among
state statute
other
knowledge, a law which made a crimi
provisions, punished
person
who was
nal offense of such a disease would
“addicted to the use of narcotics.”18
thought
universally
doubtless be
to be
appellant
in Robinson had
con-
been
pun
infliction of cruel and unusual
addiction, principally
victed of
on evi-
Eighth
ishment
in violation of the
dence of “marks and
.
.
. discolor-
Fourteenth Amendments.22
ation
were
[which]
the result of the
injection
hypodermic
needles into the
Thus the
held
Court
that “a state law
tissue into the vein that was not sterile
imprisons
person
thus afflicted
[sic].”
[by addiction to
as a crimi
narcotics]
IV,
14. See Part
narcotics,
pro-
infra.
use of
and included a
against being
hibition
under
their
influ-
15.
Judge
Ibid. And see
Leventhal’s
ex-
Exceptions
ence.
were
provide^
those
point
haustive
treatment
of this
in his
who were administered
narcotics
under
separate opinion.
person
the direction
aof
licensed to do so
16.
370 U.S.
82 S.Ct.
8 L.Ed.2d
by the state.
S.Ct.,
U.S.,
19. 370
at 662. 82
at 1418.
17. 392 U.S.
88 S.Ct.
20 L.Ed.
Id.,
664-665,
behavior were much more than through per- buy procured punishment “mere status” for which was really fectly legal no means, there prohibited in Mar- Robinson.30 Justice guilt ap- involved, merely Thus disease. rejected shall the four the notion of resulting pellant argues the acts dissenters31 stood for that Robinson from addiction to narcotics must ‘simple’ principle “the but ‘subtle’ treated in manner addiction ‘[cjriminal penalties may not be inflict- alcohol considered Powell. upon person being ed in a condi- analogy Pow- Where asserted ” 32 powerless change.’ tion he is Jus- down, is, first, however, ell breaks See, g., dissenting opinion 27. e. Mr. Black, Harlan, 29. Justices and Chief Douglas Robinson, Justice U.S. 370 discusses, Justice concurred. Warren at 82 S.Ct. where U.S., 30. at alia, S.Ct. 2145. among inter in addiction newborn fants. Fortas, Douglas, Brennan, 31. Justices See, Dependenc Phillipson, Drug 28. Stewart. Opiate Type, Responsibil and Criminal e— U.S., S.Ct., at at ity (1971), paper presented at the 33rd quoting U.S., S.Ct., at meeting annual on Prob Committee Drug Dependence lems of National Academy Academy of Sciences —National U.S., S.Ct., at 2155. Engineering Division Medical .of Sciences, February Toronto, 16-17 Ibid. (reproduced Appendix Canada C Brief, 117). the Government’s pun- acquisition the acts Powell were held to thus separate ishable, product illegal freely direct Justice White’s willed opinion majority makes clear. act. for the posses- acquisition Second, here the According appellant’s thesis, *12 by Moore
sion of the addictive substance only addict has a choice as to man- the illegal activities, in Powell whereas (or ner in which he the funds obtains state induced his addictive the “addict” drugs) support habit; the this through legal violation means. Powell’s neglects the choice that each addict later, to four taken which actions makes at the start as to whether or punishable members of the Court were going he is to take narcotics and run the question, and which to Justice without becoming risk of addicted to them. Al- long punishable the were so White though may the narcotics user soon prod- proved had not been to be acts through compul- acquire continued use a compul- uct of irresistible an established drug, sion to have the and thus be said Moore, however, acquisi- sion. In (insofar to have lost his self-control possession tion and of the addictive sub- he must regularly) take the due to illegal, (narcotics) stance are themselves “disease,” it is a disease which he has acts caus- whether considered as initial through himself induced a violation of resulting ad- from addiction acts the law. contrast to the alcoholic diction. Powell, addict Moore has con- tracted virtually disease always While we we start where always illegal commences with are, an act. present or the ad- condition of the ignore ease, dict in we how this cannot regard point 3. As a final the defendant became an addict. Powell, we find the same concern we dis- here dissenters dwell established II, supra, by cussed under Justice voiced principles: “The rule Black: of constitutional law responsibility Thus criminal is as- urged upon by appellant us would through only sessed when “free will” revolutionary impact on the criminal evil, a man if is elects to do law, any possible proposed limits agent, not a free unable to is wholly illusory.”38 the rule would be voluntarily, choose or or to to act wary We are of the multitude of acts avoid the conduct which constitutes might which are now crimes and which crime, postulate he is outside appellant’s if defense have to be excused punishment.35 of the law of accepted, were since put original Moore could never needle in his of Robinson If boundaries succeeding many discarded, any arm the first and times are to be limits too new illegal by wayside without an exercise of will.36 His soon would fall Opinion Judge Wright, by another, at 1241. such as a child addicted mitted of maternal addic- to narcotics because supra, accompanying 36. See note 28 tion, is and a addicts whose disease few necessary adopt text. It is not for us to prescription. a result of a medical See judicially authority, the view of this be- Judge opinion, Wright’s p. present develop- cause state of the regard “free 196. The comments with knowledge ment of medical would not, course, will” here made imprudent to do so. It is sufficient completely applicable num- to this small purposes say of this case to hand, ber of individuals. On other appellant’s argument, espoused Judge apparently their number is so small Wright here, that narcotic addiction primary their cannot be the existence compulsion drugs, irresistible to take the judicial consideration in this decision clearly the law of the land virtue area, Judge Wright do not read we Supreme holding in Robin- Court’s rely heavily on the existence these son. support few unfortunate individuals are, course, very 37. There small num- position today. he takes ber of individuals who have the illegal U.S., S.Ct., disease of an virtue act com- 38. at 2160. the Court would be forced to hold the a narcotics addict for of nar- powerless punish any States con- cotics which he has for his use. own duct that could be shown to result discussing defense, While “compulsion,” complex, from a court in Watson believed record psychological meaning of term.39 adequate properly was not support defense, such a and the case was decided C. ground, e., on another i. the two- Passing Powell, on from Robinson and prior-felony disqualifying provision of we come to the ease on which much Title II Narcotic Addict Rehabili- present appeal based, Watson unconstitutionally tation Act of 1966 (1970).40 United appellant, In Watson the States possible barred Watson beneficial *13 addict, heroin was convicted Judge treatment under that Act.41 174, for violations of 26 21 and U.S.C. § in McGowan’s discussion the court’s 4704(a), and U.S.C. the Jones-Miller opinion to the effect that “if Robinson’s Acts, respectively Harrison which forbid deployment Eighth of the Amendment as importation pur fraudulent and the making a barrier to California’s addic- chase, sale, dispensation, or distribution anything, tion a crime means it must appropriate of narcotic not in the logic (1) Congress also mean in all that ly taxpaid stamped package. For all expose did not intend to the non-traf- practical partic purposes, because ficking addict-possessor pun- to criminal evidentiary provisions ular of the two ishment, or its effort to do so is as Acts, proof possession mere unavailing constitutionally as that of the enough narcotic is under ei to convict legislature”42 California is therefore ther, spoken and so the crime is often very per- dicta. These dicta have been “possession” as one for of narcotic suasive, particularly light of the ex- drugs. really This was the crime plicit Judge framework which McGowan appellant which was Watson raising convicted, set forth although appellant Moore’s case defense,43 occasionally and it has been powerful there are elements of traffick successfully used in the trial courts of ing (discussed I, supra), under he con bar, the District.44 The case at how- guilty tends that was of the crime ever, is the first time that we have been possession, for his own position change to these dicta into Among arguments use. the other made holding, conclusively and to rule Watson, by appellant, as here was the represents Robinson a constitutional bar proposition that after Robinson it is non-trafficking to conviction of a ad- constitutionally impermissible punish to dict-possessor. II, supra. Ibid. See also Part U.S.App.D.C. lowed.’” 141 at F.2d, 456, citing H.R.Rep.No.1486, at U.S.App.D.C. 40. 141 F.2d Cong., Sess., p. 9, 89th 2d and Senate (en banc). Report Cong., p. Sess., No. 89th 2d 41. The court noted that to bar a non-traf- Cong. U.S.Code & Admin.News ficking . appellant addict such as Watson p. 4245. prior felony convictions, because of two U.S.App.D.C., F.2d, 42. 141 at at might which in fact be no more than two “curiously possession, convictions Congressional preoccu- odds with See, U.S.App.D.C., F.2d, underlying pation, the Narcotic Re- Addict at 442. Act, habilitation with the distinction be- non-traffickers, tween traffickers Ashton, See United v. States F. purpose punish- the reiterated ‘strict Supp. (D.D.C.1970) ; United States ment be meted ... out where re- Lindsey, 2277-70; D.D.C.Crim. No. quired criminal, to the hardened while Allen, D.C.Super.Ct. United States v. Nos. justice tempered judg- ... (10 February 41333-70 and 21031-70 ment and fairness 1971) ; those cases where Bowser, and United States v. D.C. society it Super.Ct. to the best (10 February interest No. 45504-70 individual such 1971). a course be fol- earlier, jority amply “unmistakably we As made clear Powell recoiled supports opening up deter escape Robinson no such from new believe avenues of Eighth Any widening accountability from mination. reason compulsions from of things rationale should come of such Amendment al- Supreme Court,45 and, presumably, drug coholism hence we addic- appellant, if he prepared to hold that tion—conditions widely still it addict-possessor assumed, rightly wrongly, mere were a would Despite Eighth capacity Amendment defense. the victim retains some an lib- divergent through appear erate all their labors Thus it would himself.” according Powell, opinions Supreme Court, Robinson and “rightly wrongly,” noth here are able to derive dissenters ing addict is not compulsion” should in more certain than under an that we “irresistible possess narcotics, terpret the federal narcotic statutes but retains some abili- ty way as to doubts such a “avoid serious extricate himself from his addic- 46 Although ceasing constitutionality.” drugs. tion of their take the Thus phrase differently, certainly we would issue be “cruel un- Judge punishment” in accord McGowan’s usual we are convict him Supreme possessing narcotics, “be effec desire that Court since the deci- fully tively explain, possess sion entreated to more one that he *14 makes far, part espe- volition, it is it has done so least in his than how own may not, consistently cially beginning with the California at the of his habit. person prosecute Constitution, Federal hand, person the other once a has On being addict, for but the United taken amount of his a certain narcotics criminally prosecute an ad can States craving body develops (this, for more for his of narcotics dict course, is “addiction” as Justice Har- personal use.”47 Given the demonstrat craving it),49 physical lan defined divergence ed and inconclusiveness which, prevent, which he cannot and for Supreme views, is not in Court’s it Robinson, Supreme Court has said in explana upon us to force cumbent this Taking may punished. into he not be widening by Eighth Amendment tion addiction, view of account this which defense, but rather to leave it where by to us to be the one taken view seems Supreme it choos Court has left it until Supreme Robinson, not in Court it prompt by es, perhaps appellant’s this may say to that an inconsistent addict holding. ing, make such to craving (his punished for not be his hesitancy to “addiction”) punished Our rush where but when High Court is rein- has feared to tread subject he the decision not makes by opinions this in Wat- forced court’s admittedly painful process himself to the itself, in- son which it is not show that withdrawal, gives craving in to his in Robin- consistent excuse the addict acts violation of law commits Eighth grounds, but son on Amendment his addiction. which continue deny addict-posses- such relief to the being. Far “cruel and from unusual Judge Watson and As sor in Moore. punishment,” punish- Judge rationale observed, Baze- and as McGowan opinion for the lon in his acts concluded ment for such has been set forth panel preceded three-judge especially en Powell, which Robinson and Watson, opinions Black, Harlan, ma- banc determination of Justices States, U.S.App. U.S.App.D.C., F.2d, Castle United 47. 141 at at (1964), 398, 401, D.C. 347 F.2d cert, denied, 381 U.S. 85 S.Ct. U.S.App.D.C., F.2d, 48. 141 L.Ed.2d (emphasis added). Opinion Judge Wright, III.AA., supra. 49. See Part Eighth Amend- B. is no There Marshall.50 addict-possessor. ment defense approach prob We can best this Congress lem of the role of Congressional Ad- Intent Punish IV. considering by pos courts here now dict-Possessors recog sible defense mentioned not Judge Watson,52 by nized McGowan urged by appellant here, accepted A. Judge Wright opinion.53 It logical ap- fallacies in from the Aside argued Congress never intended argument above, the outlined pellant’s provisions mak of federal statutes to draw this court line concerning asks which ap possess a crime to narcotics mens rea involved ply possess to addicts who narcotics may drawn this addiction own their use. We cannot subscribe important, other, perhaps more court for argument. many Never, in differ power. policy The choice reasons of and their ent narcotics control acts appellant have us make is would dating amendments, did back to Eng- by early the choice made reverse of Congress say justification this. What carving exception judges in out an lish writing it into court have for duress; to the common law defense Only law now? a clear constitutional they apply it to the crime declined mandate could call for such action judgment policy made murder.51 part. our For this to find such court judges that, be- these common law perception would demonstrate Su great value the com- cause of the preme Court As is ob achieved. life, placed one mon on human law Judge Wright’s dissent, if vious own life rather than should risk one’s thing certain, it is there is one of an innocent. take that *15 question from clear. constitutional is far making problem our congres- Furthermore, latest two urges appellant that, un- is choice pronouncements squarely con- sional judges per- like haps were common law who statutory trary interpretation ap- body major legal policy-making urges Judge pellant Reilly here. As sys- parliamentary before the rise of Ap- the District of Court of Columbia today, is tem we it this court know peals noted in Wheeler United States appropriate body not to make such Congress (1971),54 it dear that made Congress policy judgment. is now enacting the District’s “Rehabilitation adequate to best forum with resources did it Users statute Narcotics” pol- implications determine the of such a pun- not mean exclude from criminal icy, social, scientific, and to evaluate the persons ishment narcotics, addicted the use psychological premises underlying such a least the District Col- Congress preamble policy, rules, appropriate umbia. said to make the Act: necessary mecha- and to establish carry (including funding) Congress nisms that Federal intends criminal enforced them out. laws shall Ap- the District of Columbia Court of Ibid. decision, split peals ad- held in a Blackstone, IV W. Commentaries permitted as a defense diction should be simple possession. That deci- heroin for en banc and set sion vacated F.2d, U.S.App.D.C., by an rendered si- consideration order at 452. sig- multaneously with the decision. The p. 1250, 53. At Part IV.C. is, the Franklin decision nificance therefore, unclear. In the recent A.2d 722 (1967 seq. States, edi- 24-601 et § 55. D.C.Code No. case of Franklin v. United tion) 1973) panel (D.C.Ct.App., . 27 Feb. against drug by drug as other users as well of crime committed meaning that, users” as persons, and sections 24-601 to 24-611 when the Government successfully prosecute any drug to substitute treat- shall be used able punishment in any ment for cases of crime user for a criminal under offense drug may by statute, committed users.56 federal it do so. The Reha bilitation Act is NOT statute Congress If had intended that addicts drug users; applying to if the Govern District Columbia should not be evidence, may ment has invoke prosecuted possession, for the crime of any applicable statute. As criminal Congress qualified would have 24-601 out, Judge Wright points dissent Congress prob- to that effect. had the drug among others use addicts and drug pun- (addicts), lem of users their epidemic propor areas has reached some tions, treatment, squarely ishment and before amassing difficulty evi and the it, any and declined to make distinction securing pos dence and convictions toas what acts constituted a crime committed and other crimes session an addict or non-addict. This conclusion many instances insur users is virtually Congress inescapable, de- many of these For mountable. “drug (as fined user” that term is em- presents statute users the rehabilitation ployed preamble just quoted) of treat feasible and humane method “any including person .person, include may pursue ment which the Government eighteen years age, under securing through of such of evidence any habit-forming who uses narcotic addiction,58 persons’ and this drugs endanger public so as to mor- particularly appropriate where, for als, health, safety, welfare, or who is reasons, pros of a multitude of criminal so addicted to the use such hahit- far ecution under other federal statutes forming power as to lost the hand, for. the other Con called On to his of self-control reference gress procedure it clear that this made addiction.” in the case of some shall not be used Appellant argues rejection of this “charged persons, explicitly with a those interpretation of the “Rehabilitation indictment, offense, whether statute, Users of on the Narcotics” theo- otherwise, or information or ry accept that to it would be to assume offense, for a criminal under sentence Congress complex “that enacted statu- serving sentence, [they whether are] tory scheme treatment of narcotic *16 probation parole, or or or [are] addicts which it to be never intended pending been released bond [have] utilized,” interpretation since under this appeal.” punished possession, addicts could be possession this rehabilitation do not view being We a “criminal act” evincing punish to intent not statute as 24-601, under all thus would § addict-possessors, merely one punished criminally, have to be and not Congress attempt by to reach more be treated under the rehabilitation stat- its avowed an accommodation between ute. eliminating the traffic twin aims of respect, With all we submit that rehabilitating harmful narcotics and reading statute, such a which damaged by traffic.60 those rejection pun leads to its of an intent to statutes, other While it is true that addict-possessors, simply ish incor notably Addict Reha- says most the Narcotic provision rect. We read the legisla- the statute shall not used be “to substi bilitation Act of evince a punishment tute treatment for in cases pros- purpose tive that after addicts 24-601, quoted Wheeler, 56. § D.C.Code 24-603(a). § D.C.Code supra, A.2d, at 725. 24-603(b). § D.C.Code (1967 edition) § D.C.Code 24-602 (emphasis supplied). IV.D., Part See infra. drug prosecute medically users ex- they sional intent be treated should ecuted 24-601, pressed placed in buttressed D.C.Code possible § than rather
whenever
activity
by Congress’ legislative
be-
both
D.C.Code
true that
prison, it remains
§
legisla-
expression of
may
fore and after that
seq.
not be used to substi-
et
24-601
Congress
intent, demonstrates that
punishment,
tive
and we
treatment
tute
authority
preempted
congressional
in- has
court’s
must
assume
It
create a common law
spelled
in that civil commitment
out
tent
defense.
legislature
when the
hornbook law that
federal criminal
statute to enforce
(i.
might
spoken,
e.,
prose-
have been
against
what
users
laws
(in-
altered,
judges
common law is
them) remains, unless it is subse-
cute
change
cluding
court)
Congress.
quently repudiated
they would have fa-
law back because
overruling this manifesta
from
Far
policy,
there is
different
unless
vored a
congressional intent,
just
tion of
mandate, which, of
a constitutional
Congress
past,
has con
has done in
ju-
irrespective
course,
operate
legislation under the
to enact
tinued
preferences.
dicial
all others
addicts and
terms of which
being prosecuted for nar
can
and are
Furthermore, although
this is
trafficking.61
possession and
cotics
determining
help in
what the law
limited
appellant
arrested,
was
was when
not one of the numerous
The fact that
legislation,
Compre
congressional
excep
latest narcotics
enactments makes
Drug
many
hensive
Prevention and
addicts,
Abuse
of them
tion for
and that
(passed
passed
Control Act of 1970
1970),64
October
when there were cases
were
highly
significant
contains two
for nar
conviction of narcotics addicts
provisions
congressional in
books, may
relevant to
tak
offenses on the
cotic
Congress
policy in
narcotics
tent and
the area of
intends for
en
to indicate
penal
First,
anyone
control.
statute has
prosecuted
else.
like
addicts to be
provisions making
Statutory
it “unlawful for
Sutherland,
Construction
See
acts;
person”
proscribed
5103-5105, 5107,
(3d
to commit the
4510, 5101,
§§
argued
particular
1943).
equally second,
it un
844 in
makes
that it is
ed.
likely
It is
knowingly
any person
in
Congress
lawful “for
tentionally
desired to remain
possess
light
sub
a controlled
issue.62 In
neutral in this
many
was obtain
strong
stance unless such substance
members
sentiment
pre
directly,
pursuant
Congress against
users,
ed
a valid
all
practitioner
scription
justly
or order
Congress
most
aware
”65
Drug
impute
Comprehensive
such motives
we refuse
.
.
.
.
Congress.
pro-
Act
Abuse Prevention and Control
lighter
simple
penalty
vides a much
Congress has not ex
Thus while
possession (and for the first
ex-
time
plicitly provided
shall not
that addiction
plicitly
simple
of-
makes
charge of
be an affirmative defense to a
suggests
fense),
congres-
but this
no means
narcotics,
possessing illicit
*17
Compre-
stances Act”
one title of the
Congress
enacting
legis-
has been
such
Drug
beginning
continuing
hensive
Abuse Prevention and Con-
lation
trol Act of
Pub.L. No. 91-513
present.
See,
g.,
to the
e.
Narcotics
Im-
(27
1970).
portation
October
Act,
(1909),
Stat.
amended,
(1964),
re-
U.S.C. 3174
62. At 1254-1256.
pealed
91-513,
1101(a)(2)
Pub.L. No.
§
(27
1970) ; Harrison Narcotic
October
See,
remarks of Commis-
amended,
Act of
38 Stat.
Harry
Anslinger
sioner
J.
of the Federal
4701-4706,
repealed,
Pub.
§§
U.S.C.
Narcotics,
S.Rep.No.2033,
Bureau
91-513,
(27
1101(b)(3)(A)
L.
§
No.
Cong.
Sess.,
(1956).
84th
2d
at 7-8
;
Drug
1970)
October
Narcotic
Uniform
Act,
401-425;
Con-
D.C.Code
§§
91-513,
61, supra.
64. Pub.L. No.
see note
Act,
trolled Substances
801-
§§
U.S.C.
Emphasis
supplied.
(The
Sub-
“Controlled
by
not
did
possession
addict
decline in the health and
noticeable
well-being
the
give
the
chronic
an offense before
District’s
rise
contrary,
the
alcoholics.68
we find
the
statute. On
Congress
inescapable
conclusion
excusing
D.
ad-
rejected
notion
the
guilt
possession, and in-
from
for
apart
pres-
dicts
But
from
aversion
penalties for
the
suring Congress
decided to reduce
stead
manner,
there
this
simple possessions
board.
across
the
significant
and difficult differences
appellant
the defense
Now to create
problems
between the
of chronic alcohol-
explicit prohibi-
dealing
the
the face of
seeks
ism and
addiction.
narcotics
any person
against possession
tion
problem
the
of alcoholism we
directly con-
be
844 would
is,
single
U.S.C.
all,
re-
what
after
aim —the
Congress.
trary
expressed will of
nar-
habilitation of alcoholics.69 With
addiction, however,
take
cotics
we must
aims,
account
first
least two
the
C.
being (like alcoholism)
the rehabilita-
appellant makes much of
In his brief
addicts,
(quite
tion of
second
apparent analogy
statu
between the
being
different)
complete elimina-
dealing
tory
with the rehabilita
scheme
tion of the
ex-
addictive substance. The
analyzed
in Easter
tion of alcoholics
policies
particu-
istence of these two
Columbia,66
which resulted
District of
troubling
implementa-
larly
their
where
allowing
a' defense
alcoholics
this court’s
contradictory.
in-
tion
For
drunkenness,
public
and the statuto
stance,
policy
while
of rehabilitation
dealing
ry
in the District
scheme
might
by giving
well be
addicts
served
Wright’s
Judge
addiction.
use,
possession
defense to
for their own
n
analogy
opinio
also relies
hospi-
mandatory
providing
and instead
course,
implication,
Easter.
treatment,
possible penalties for
tal
reasoning
should use the same
we
by providing
help
police
addict-
find
defense
prosecutorial
them a means to use their
possessor.67
addict-informers
discretion
enlist
ferreting
persuaded
Even if we
wholesale
were
aid
out
not,
drug traffic,
analogy,
cer-
and we are
we
sources of the
grant
tainly
appellant’s
persuades
possible punishment
defense
threat of
theory
pressure
Con-
rehabilitation
will
some
addicts
undertake
gress
Ad-
providing
into
Narcotics
the facilities
under such schemes as the
they
many
Act,
who could
treatment of the
dict
Rehabilitation
undergo.
might
civilly
then
Aside
not to
committed.
otherwise choose
impropriety,
re-
tactic was
these
Faced with the need to reconcile
soundingly unsuccessful
in the Easter
aim&,
eliminating
drug traf-
two
it
case, and
reason to
we have no
believe
addicts,
fic and
rehabilitation
Immediately
would fare better here.
great pressure
under
from advocates
Easter,
appeared
after
facili-
that the
pushing
aim,
for one or the other
Con-
forthcoming
simply
ties were
gress has reached
accommo-
a reasonable
average
off
chronic alcoholic was worse
through
dation
as the Nar-
such means
pre-Easter,
than
as demonstrated
cotics Addict Rehabilitation Act of
U.S.App.D.C.
is,
course,
66. 124
69. There
aim of
whose nurses, hospital orderlies, pharmacists, Congress this court ?71 that of or of etc., inevitably leads to a tremendous These are rate of narcotics addiction. this con- fact that Aside from the people termed not culturally class of who can be constitu- law is neither struction of the deprived economically tionally compelled intent nor reflects the any way. They do have associations legislation Congress on the with- nor the lower eco- criminals books, recognize the use if we mere nomic and social classes. Yet the opium is is, narcotics is an evil—and it drugs easy fact of has cre- access adoption policy of a a killer72—then the ated an addiction rate 30 times interpretation removes crimi- general population. prag- Viewed penalties from the nal and sanctions matically, language cited offers misguided opiates just mass use of as argument powerful re- in favor of never opiates use of for his as the individual’s moving penalties pos- particular problems. own argument drugs, session of legitimatizing possession. an for never startling fact, probable conse- One quence, accepting line of reason- have We seen civilizations which by appellant advanced lies buried carpet slipper stage, reached the slowly Judge Wright’s page In dissent on fading away drowsed beside the describing categories three of narcotics genius. may fires of Ours be the first Judge addicts, Wright states: speed process by civilization to drugs injection deliberate into our category comprised of The second culture; waiting for the natural without employed in the those addicts who are sleep age, of old our we hasten to evade paramedical professions. medical and crushing by permitting feared burdens among addiction these The rate of slip opium those who crave it to into an
professions appears to almost SO haze. greater general times than that population, attempt individuals Congress but since these has not ceased ready ways access to such fashion new to deal with these morphine frequent- demerol, they addiction;73 problems of narcotics Opinion Judge Wright, against at 1245. that do exist have provided specifically been Con- prohibition against possession 71. The flat gress, exceptions having such certain relationship logical bears both a direct prescriptions to do with medical au- objectives. possession illegal Making all thorities. our conclusion that Con- Thus preempted protect against the addict gress area, both this public against drug himself and the the courts cannot widen the list of ex- (whether traffic addicts or conducted ceptions, as we have been asked to do nonaddicts). case. Congress’ prohibition against posses- flat See, California, Robinson v. enforced, sion, obeyed if amount 660, 672, U.S. L.Ed.2d S.Ct. to an infallible cure addiction. (Douglas, J., concurring). simplistic comparison; to lose weight, eat; appears don’t to avoid addic- It the fall of 1971 tion, possess dealing never narcotics. It there were 42 bills with various objected, course, pro- aspects problems ad- narcotics enforcement, Congress. hibition is difficult of diction Brief for the Gov- difficulty ernment, such of enforcement does at 90. The Bills of the House give ground 2220, 272, 273, court either to abro- were H.R. Nos. 131 and qualify gate Congress. 5714, 8436, 8389, 8621, 8861, or to act of exceptions prohibition 8880, 8881, 8902, 8944, 8985, 8986, What to the flat *19 being Therefore, majority hence, shaky foundations —consti- there on the judges interpretative— voting tutional, precedential, five to affirm all convic- tions, being majority by appellant, un- would be but there no initial advanced proposed that our new law either thinkable to write might own three methods congres- acting appeal, of these and undercut some the writer this Judges supported acquiesce in sional MacKinnon and efforts.74 We Robb Judge by affirming elo- in the our Leventhal’s method of Moore’s con- conclusion analysis quent vacating counts, of Con- victions on and exhaustive all the sen- gress’ passing imposed, remanding en- tences intent in the various to resentencing. District and the conse- In so actments discussed above Court doing, quent judicial we need for restraint. intimate no dissatisfaction originally imposed by with the sentences to new law Our reluctance make Judge suggest the District nor do we sug- Judge Wright not, appears to as disposition ultimate Moore’scase. ignorance gest, eyes “to shut our in persist injustice imita- in blind allow past.” of ac- tion of the Our course LEVENTHAL, Judge; Circuit with simply innovations tion is to leave the Judge, McGOWAN, whom con- Circuit body capable mak- this area to a more curs. are we. decisions on them than appeal This is from convictions un- extremely complexquestions difficult and 174, 4704(a), der 21 U.S.C. U.S.C. § problems involved of rehabilita- following police on, raid arrest il- tion of addicts elimination being appellant in, Moore a hotel room by licit traffic are best solved capping operation. used for a heroin investiga- kind of extended debate and permitted The verdict was rest on ev- possible legislature. tion Judicial idence Moore was modesty may not make the and restraint Appellant’s contention is heroin. headlines, they place. but have their improperly precluded prof- he was V. fering Conclusion as a he a heroin defense that addict, power without of self-control Judges The writer and Mac drug. respect concurring Robb, Kinnon and in this opinion, appel simply would affirm both put case was en banc consider lant convictions the sentenc Moore’s matters resolved in our en banc and. However, opinion es view does received. in Albert v. United Watson majority court. not command a States, U.S.App.D.C. 335, 439 F.2d Judges per- McGowan and Leventhal would After consideration convictions, juris- likewise affirm principles Moore’s tinent of common law for the doctrine, remand District Court prudence, constitutional give statutory further consideration of NARA dis including provisions, the 1970 position. Congress passed subsequent by law 9095, 9124, appears Judge Wright with this to be 9184, 9186, 9207, 9210, 9213, 9215, 9216, authority the action statement 9254, 9265, may very Judge Wright urges 10453. The that stifle, well 1174, 1189, encourage, Senate were Bills S. Nos. than the “case rather 1836, 2124, analysis and 2108. case” is called for just Report. Secondly, how House Judge Wright appears place much representative ex- are the sentiments appears reliance on a sentence pressed Report general in the House Congressional Report, H.Rep.No.1444, congressional feeling is no means cer- pt. 1, Cong., Sess., (1970), 91st 2d at 9 Lastly, report nothing tain. does Cong. 1970, p. U.S.Code 4566, & Admin.News judgment contradict point our question which states that oí congressional time enact- “ whether or not narcotics ‘can ments have struck a reasonable balance criminally responsible be held can which we should not interfere. ” courts, decided case case.’ impressed At 1255. We are not as At 1255. *20 Watson, permitting implementing inappropriate a and that is in view of the disposition through problems verifiability rooted the narcotic.
probation
treatment,
inadequacies
knowledge.
on
we
of our
conditioned
Our
juncture
judgment
conclusion,
present
of conviction
that at the
conclude the
compels
justice
should be
remand-
neither
nor warrants
affirmed and
case
ed,
justice,
judicial
see
of extension
doc-
interest of
28 U.
kind
degree
trine,
our
for
consideration of
is based
critical
on
S.C.
further
study
disposition
steps
a
Addict detailed
of the
under the Narcotic
successive
Congress
(NARA).
years,
by
taken
Rehabilitation
in recent
Act
heeding
expert
focusing
its
voices
ponder
In Watson
to
we started
diffi-
past mistakes,
provision
its
and its
posed
by
rigidity
iron
culties
us
and
research
continued reexamination.
of inexorable
ad-
sentences
narcotic
context,
In that
we
ultimate
think the
chargeable only
possession
dicts
problems
policy
and
be ad-
law
should
purchase
personal
But in Wat-
use.
by
Congress
judicial
dressed
without
approach
son
we did not finalize an
intrusion
time.
at this
validity
conviction,
terms of
in view
presented,
record
fo-
as
we
Our conclusion that
addiction de-
dispositional
cused on
alternatives—
recognized,
fense
not be
even for
should
NARA.
offenses,
present
at the
juncture, does not
think
mean that we
present case,
In the
we have
out-
an
defense,
contrary
policy,
right
is
sound
conviction, forcefully
attack on
rather that the
are such
presented.
presented
issues
question
as
prob-
the ultimate consideration of the
nega-
a form of mens rea defense that
policy require
lems
atten-
of law and
responsibility,
tives
and would
legislature.
tion
a court
only
way
While
society
proceed
require
judicial
its
function of
cannot abdicate
proceedings.
of civil
If we
been
had
validity
assessing
of what the Con-
prevailed
rigidity
faced with the
gress
intended,
the court
1950’s,
has done
prison
with minimum
sen-
must
into
uncer-
also take
account the
knowledge,
might
respite,
without
we
well
tences
present
tain
and the
recog-
state of
joined
opinion
have
an
salutary
Congressional
lati-
deference
defense,
nized
on common law
either
finding' way
cope
tude in
with the
grounds or constitutional considerations
problems of. heroin
and addic-
addiction
or some
of these.
combination
tion-related crimes.
opinion parallels
our
While
writ-
recognize
necessary
Judge
not
Since
Wilkey
ways,
ten
some
(or dependence) de-
addiction
insignif-
narcotic
approach
not
differences
just dispositions in the
opinion
process— fense to secure
icant. Our
reflects
provisions
future, given
the 1970
approach pre-
of reexamination of an
law,
compelling
to in-
no
reason
we see
viously,
tentatively,
if
Wat-
indicated in
gov-
ject
into convictions
the defense
son—in which
the doctrinal factors
prior
way
this is
erned
law. In a
cogent
not
as our examination
been
way
corollary by
of,
increasing
converse—to
limi-
awareness
—
Supreme
of ret-
knowledge
modern doctrine
in,
Court’s
con-
tations
technical
say prospectivi-
roactivity, or
one
aspects
should
cerning crucial
of the narcotic
ty.
Walker, 381 U.S.
thicket,
Linkletter v.
problem.
This is a
addiction
L.Ed.2d 601
impenetrable
85 S.Ct.
hope,
re-
we
but one that
judicial
contem-
decisions
tough
going,
The fact that
quires
some-
slow
good
plate changes
future
thing
sharp scythe
for the
different from a
past are
sense,
the mistakes
judicial
pro-
brush.
doctrine
cut
past
and the administrative
depend-
left to the
posed
psychological
broad
permit-
is not
of this correction
burden
require ence defense would not
adaptation to
lay
hand
dead
judicial
ted to
doc-
extension
conventional
Con-
perceptions
needs.
point
modern
out,
trine,
we
but an extension
versely,
judicial
OFFENSE,
when
intervention is
I. FACTS OF
AND DIS-
necessary
justice
fu-
to assure
for the
TRICT COURT DISPOSITION
*21
ture,
against
judgment
sound
cautions
Prosecution Evidence
any approach
judicial
of
overhaul.
police
An informant advised the
of
large,
approach permits
In the
being
heroin sales
made in the Warren
the courts to
on each individual’s
focus
by “Crip
'(room 15)
Hotel
Green”
and
disposition,
condition in terms
rather
of
(room 17),
buys
“Jumbo”
and made
on
guilt
than
offense.
substantive
January
police
and 26,
25
under
approach
many strengths.
This
It
has
supervision.
obtained,
Warrants were
strengths
particular
for the future
January
and executed on
Of-
When
possibilities
probation
in view of the
un-
Daly
ficer
entered room 15 at about
legislation.
der the 1970
p. m.,
appellant
7:00
he found
Moore
junction point
There is an awkward
per-
and
in
another man
circumstances
appellant
like
defendants
of-
whose
mitting
by police
jury
an inference
and
fenses,
prior
legislation,
under
were
appellant’s possession
of
of narcotics on
by
imposed prior
reached
sentences
also,
a bed.1
we
The evidence would
May 1,
questions
of fair-
Serious
think,
justified
ap-
finding
have
a
by
unavailability
ness are raised
of
pellant
participant
capping
was a
range
either an addiction defense or the
operation,
prosecution contended,
as the
dispositions
possible
of
by
made
by appellant
but this was denied
and the
1970 Act. To some extent a court must
put
jury
case was not
ba-
be satisfied if
a
trend
im-
sees
companion
Moore and his
were ar-
sis.
provement
justice.
particu-
of
As to the
searched;
capsules
rested and
50
case,
appropriate dispo-
lar
we think the
mixed heroin
found in Moore’s
were
sition is to remand
case for
further
charged
pockets.
trouser
Moore was
dispo-
possibility
consideration of the
two
Act
counts —under the Jones-Miller
appellant
sition of
within the structure
(unlawfully
im-
§
U.S.C.
of NARA.
ported substance)
under the Harri-
and
path
we have found
not
Act,
was
originally
son
enacted
clearly marked. We have done much
(package
4704(a)
U.S.C.
tax-
searching,
soul
bed,
reexamination of
stamped)
heroin on
—as
assumptions.
Ideally,
should
we
additional counts on the
two
preferred
opinion
to write an
half
pockets.
in his
long
crisp.
and twice as
a
But this was
Theory
emerged
picture
case
of Defense
where the
inas
a
mosaic,
defense,
after
theory
the numerous tiles were
referred to
present
guilt
sorted
defense,
and laid out. We
our
as his Watson
is that
can-
appreciation
views with
by proof
full
established
strengths
differing
by
present-
non-trafficking
addict,
views
a
by
colleagues.
Congres-
ed
(a)
our
would be inconsistent with
depth.
screen”)
Against
“cutting
(or
1. Room 15 is 10-12
feet
a makeshift
sieve
opposite
lady’s stocking
the wall
the door was a bed which
fashioned of a
stretched
being
room,
key
hanger,
was
used as a workbench.
Two
over a wire coat
bed;
up
pistol.
chairs were drawn
one was
and a
occupied
issue,
Beverly,
Sherman W.
This
does not
involve
case
by Raymond
encountered,
adequacy
other
Moore. Neither of the
sometimes
holding anything
possession,
proof
men
two
was
his
to establish defendant’s
Holland,
hands.
On the bed
front
the men
see
United States
U.S.
(1971) ;
App.D.C.
was a mirror and a record album cover on
had been filed in this court
follows:
appointed May
late
counsel
defense
Appellant
appears
an
addict —as
Danbury’s
trial counsel submitted that
testimony
from his own
was us-
appellant
conclusion did not
is an
mean
average
per day
$60
unwilling patient
one
offense;
who does
heroin9 at the time of the
Of-
Daly’s
testimony
appellant
cure,
ficer
want a
reflected the fact
addict;
report
was an
1969 NARA
Danbury
complete
pro-
uses a
abstinence
*23
judge
of the then D.C. Court of Gener-
gram
not
and
the methadone method
Sessions;
al
April
and the
treatment, with which Mr. Moore had
report
judge.
NARA
of the trial
It was
cooperating.
judge
been
the trial
When
proffered that
would
Kaufman
testi-
Dr.
sought
appellant
confirmation from
con-
fy
appellant
suffers,
from
not
cerning
record,
his criminal
defense trial
illness,
mental
but from a mental disor-
long
counsel conceded he had a
criminal
“drug
special
der of a
character
called
record but submitted that
it was “the
addiction,”
“drug
subject
that he
by
record of a man forced
his addiction
dependence
morphine type”
as defined
to commit
these various
offenses.”6
by
Organization,10
and
World Health
II,
under Title
Narcotic Addict Rehabili
Beverly,
7. As to co-defendant
who had
Act,
seq.”
tation
4251 et
U.S.C.
pleaded guilty,
4704(a),
under 26 U.S.C. §
by
On
docket sheet maintained
invoking
on a
motion
discretion
appears
Olerk of the District
the
ap-
Court
McCoy
court under
United States.
notation:
“Mar.
Notice of
1971.
(1966),
U.S.App.D.C. 177,
ent condition are no more suited disease having expen- produced blameworthy been the disease a failure has than community.12 punish itself. sive and intolerable to the It as barbarous to wbo, by by 9,13 No. That defi- continued use of narcotics one Series 273 at physically addicted, though longer the nition lists the characters of disease no drugs. inject continuing as follows: a obsession to (1) overpowering appellant an desire or need to all the WHO doctor saw taking drug basically characteristics, a continue and to obtain he found the but by any means; drugs compulsion it the can obtain need be satis- to seek and initially by years drug ruling fied taken had his behavior been morphine-like (Tr. general, properties; 199-204). another In doctor with (2) tendency begins “psychic testified, a to increase the dose a addict” such development tolerance; e., owing by taking drugs physical reasons, i. (3) psychic dependence “high” a ef- and later to ward off to attain subjective drug symptoms; period fects of to a related withdrawal after appreciation years, drugs and ef- individual those take of five or ten need to ; acquires and fects and an autonomous characteristic “involuntary physical dependence on the ef- to resist” renders the addict presence drug requiring compulsion inject drugs (Tr. fects of its 202- 203). opinion, appellant, of homeostasis re- maintenance the doctor’s sulting definite, characteristic, being addict, “com- an would be such syndrome pelled” self-limited when in some manner abstinence to obtain drug (Tr. 203-200). is withdrawn. said, particular, appellant 11. In some the doctor The amicus brief states that while pattern heroin, evidenced a characterized character- behavior violent criminals use pre- clogged system is and behavior. the Council judicial While simple exemption, statutory in the study, fer conducted A 1971 distorted. Agency, “the result we seek situation indi- exists Bail official of the D.C. charged come the context of must about within cates that all defendants ‘responsi- principles of Columbia, ap- common law crime in the District of means, bility.’ it. So be We dislike proximately an indication 50% present but we convinced that use, of charged of these were narcotics 40% desperate, conse- offenses, situation solely narcotics unacceptable. quence of its continuation primarily possession. Even the select urge to hold the Court recognizance therefore group We personal released on Raymond similar- and others Moore addicts, show a recidivism rate for may present ly the defense situated 24%, almost twice the rate all other * * * the nec- [as] their addiction However, offenders. addicts released essary process step13 first condition at D.C.’s NTA of treatment system making justice the criminal had a than recidivism rate less half that identifying addicts instrumentality for of other addicts. properly they may treated. so that agrees The WACADA Council consequence of con- . [T]he justice system the criminal should hold inability fessing law’s to the criminal non-drug crimes, who commit drug that the crimi- control addiction though with “treatment rather than sim- ple incarceration,” but submits it should problem, part process nal becomes the solution.” part of than rather possessors drugs, reach mere 23-24). (Brief at public thus burden facilities without benefit in deterrent or ef- rehabilitative power fect. A defense of lack of to con- BE DE- III. THIS CASE SHOULD trol his permit behavior would OF THE CONTEXT CIDED IN under, treatment D.C. CONGRESSION- OF EVOLUTION Hospital Act, Treatment 24 D.C.Code § PREMISED AL LEGISLATION seq. (1967), 601 et institutions devel- USE MAXIMUM BROADLY ON oped designed to deal with ad- NAR- OF OF REHABILITATION diction. COTIC ADDICTS. *25 The paradox, Council sees a in- but no Inquiry Focusing on Our The A. position in consistency, its that addicts the Law should criminally not be responsible held for necessary Harrison satisfy actions and to Act addic- The Jones-Miller tion, possession while prohibit rehabilitation nar- did not centers Act trying provisions to make addicts such, bear under more re- cotics as sponsibility “possession” for their welfare frequently to as and referred behav- others, including ior to to offenses, proof crimes sufficed and
istically passive searching ticularly the heroin user for role models and those typically they engages low-grade criminality accepting group in which to —property theft, Dupont, (num- and minor vice adminis- Robert adhere. Dr. can — running, gambling, pimping) bers Treatment Narcotics trator of the D.C. pattern being typical. in (NTA) Moore’s that Agency estimates young energy area, The addicts’ men lack of and need Model Cities 24% steady supply young perfectly cast them between 15 and 36% dealer, their steady role of addicts. small are heroin and 24 5 to 10 between 20 men programs Rarely study 5,892 retail NTA customers. in does A ages drugs August non-addict deal below retail shows 33% virtually level. It unheard of for an under 68% addict to become involved in the higher level, trade step at a will addict not where sustained since 13. It is first organized entirely. necessary. process effort are But “avoid the criminal phase Widespread system judicial especially bring addiction into has an it will par- young, reality.” deleterious influence on the focusing importation, However, or of the 1970 on on sustain conviction of purchase law. non-stamped package.14 issue, the defense in in a we have come the conclusion that while there are occa- repealed by These laws were the Con- legislative judicial sional statements trolled P.L. 91- Substances Act might have been seized on indi- that as wrought significant 518. That act three cations that the earlier in- were not laws changes. First, expressly prohibited it applicable persons pos- tended to be simple possession of narcotic as sessing purchasing heroin their 404(a), substances, controlled see § use, essentially own insub- these were Second, it made that of- U.S.C. § would, wisps stantial incidental- —which reducing misdemeanor, sharply fense a penalties ly, who have also excluded mere users might applied per- lack- had lost “control.” As to the possession. sons mere evidence of issue, of-eontrol even we conclude that Congress important, repealed Most law, in the 1970 with its more moderate provision, included the Price Daniel Congress approach, did intend to (note 18, infra) ofAct had provide drug dependence for the kind of precluded probations suspended sen- urged. appellants de- defense velopments tences toas most convictions under the out of the 1970 law round Acts, Jones-Miller and see Harrison assuring injec- picture, us 7237(d). U.S.C. Probation now drug dependence tion aof as to defense prohibited only “continuing in case of a prosecutions laws, prior under either enterprise.” U.S.C. § they law, view, as fade from or the 1970 Appellant’s counsel submit that his impermissible judicial would be an in- principles contentions rest on broad terjection. develop subsequent We require disposition the same on parts opinion of this why the reasons we prosecutions the merits under both do not believe that the de- courts should the earlier laws and the 1970 law. velop a defense such as an extension of urged us, effect, Counsel have to con- general jurisprudence provides sider the conviction as if were under it setting prosecutions. for criminal argument They the 1970 law. make no Congressional As issue of contem- particular provisions based or plation, glean con- fact we its history prior earlier statutes. large tours exami- measure from an appropriate broadly We think con- developments nation of current in nar- applicable principles Congres- sider legislation is, broadly considered, cotics light sional intention in the of the 1970 think, approach we taining for ascer- sound short, appellant’s validity law. legislative intent.16 appraised equiva- conviction will be respect lent all material one en- Increasing Severity B. knowing tered under the possession. law Legislation the 1950’s
Understanding Congres- pertinent of by areWe aware that this sional intent re- will be aided first is somewhat unusual, calling particularly Supreme legislation since the Federal narcotics recently held, 1950’s, Bradley Court has laws have been char- States,15 turning pro- United that the acterized 1970 law’s of the screw. permitting vision probation the use of mandatory minimum, proba- The no accompanied by henceforth was another tion, no-parole provisions of the Federal provision precluding its for use offenses original laws were Jones-Mill- prior committed date effective of er and Harrison Acts. These features States, supra, Llewellyn, 14. Watson v. United 141 16. Karl N. The See Common U.S.App.D.C. 344-345, ; F.2d 2 439 Tradition 529 Suther- Law land, J. Statutory 451-452. Construction Statutes (3rd 1943). 4506 ed. § Bradley States, 605, 15. v. United 410 U.S. 1151, 93 S.Ct. 35 L.Ed.2d
H67 penalties vere and marihua- were installed amendment narcotic rising 1956, tide in reaction na law violations.” drug abuse. The Reassessment 1960’s C. 1951, 82-255, Boggs The P.L. Act continuing The 1960’s witnessed two-year 767, placed a minimum 65 Stat. in- reassessment of and an approach, under on convictions sentence creasing acceptance realization and The and Harrison laws. Jones-Miller satisfactorily could not Government Report prevailing deemed sen- Senate drug prob- cope with the narcotic abuse unequal of stem- tences to the task concentrating lem on law enforce- ming appear drug “It would abuse.17 theory deter- ment activities and a punishment . that the which has rence, that there was need for removal been law afforded narcotic violators mandatory terms and reestablishment an not been effective deterrent.”18 authority, probation parole recognition of addiction dis- as beset 1956, The Price Daniel P.L. Act of aspects respond ease that could in some 84-728, Stat. mini- raised the multiple treatment, measure to paths penalty mum for a violation experiment of research and years, law five and in Jones-Miller aspects keeping with the diverse addition, no-probation introduced the problems. provision codified at 26 U.S.C. § 7237(d).19 Report The House stated: on Narcotic 1. White House Conference “Drug addiction not a It disease.” (1962): Emerg- Drug Abuse The optimism evidenced in- considerable Commitment; ence Probation Civil creasing penalties cope Parole drug problem. pen- claimed the 1951 It was the first White watershed traffic,21 alties had reduced narcptic Drug on Narcotic and House Conference Abuse, “problem illicit traffic continues September 27, 1962. convened leniency respect areas where Conference, working paper sentencing of convicted is an traffickers Drug Report Hoc Panel on of an Ad pattern It established in the courts.” drug Abuse, as a indi- identified abuse increasing severity recommended in sen- underlying of an character disor- cation der, justified by tences factual evi- “the manifesting inadequate personal- deterring proving cope ity dence value of se- stresses of with the unable Cong., S.Rep. 17. No. 82d 1st Sess. violations 26 U.S.C. which included (Harrison Act). H.R.Rep. Cong., No. 84th 2d Sess. 18. Id. The Commissioner of Narcotics was Cong. (1956), & Admin. U.S.Code quoted, pre- on the basis information p. News during hearings, inadequacy sented on the average (18-month) Cong. sentences for & Admin.News Id. U.S.Code p. year violators: sentences “Short do not deter. “The 1952 was ** * year postWorld peak There be a should minimum sen- II War years probation period tence of 5 without arrests for narcotic law viola- parole, just dry up I think it would about narcotic law [and tions. dropped. the traffic.” Id. The Committee was . . Your com- arrests] . principal told that abuse was not a serious mittee was advised *27 problem country in those sections of traffic as the cause of the decline narcotic judges reputation by where the had for im- number evidenced the reduced posing long provided penalties sentences. arrests was the severe by of the amend- [1951 the enactment prohibited probation, suspension 19. This or ments.]” sentence, upon (i) conviction of viola- Cong. 22. Id. & Admin. U.S.Code Act, (ii) tion of the Jones-Miller viola- 1956, p. News 3283. 4705(a), 4742(a); tion of 26 U.S.C. §§ (iii) second, subsequent, Cong. offenses Id. U.S.Code & Admin.- punishable 7237(a), p. under 26 U.S.C. News recognized significant do It that we A voice at the normal life. Conference origins Dodd, the of the disor- not understand of Senator Thomas J. addicts, types of ders of the various Chairman the Senate Subcommittee them, posited opposed that even Delinquency, to cure on how Juvenile who rigid imprisonment has been ter- an individual whose abuse of the features support provided law, illusory must be with minated as of value in deter- supervision damaging impact. or he could not survive rence and Without relapse.24 leniency professional without stress for “the criminals racketeering” at the vortex of narcotic particularly ad- The Conference was “excessively there must reform of legislative developments in vised of the primitive and inhumane treatment now ten York. After California and New essentially meted out to those who are increasing prison terms, years the victims of the racket.” He narcotic might legislature realized this California recommended: public panacea mind but seem a effectively prob- cope problem with the could not addiction is es- legislation study, passed sentially problem, psychi- lem. After establishing a medical centers, avail- problem. by rehabilitation It atric cannot be solved prison a court after able certification merciless sentences. I believe provision addict, of an with conviction that the law should be amended to re- supervision peal mandatory after institu- penalties for controlled minimum proba- possibility tional treatment.25 to restore parole tion and nar- rehabilitated force, law, yet in The New York cotic offenders. pro- further, permitting criminal went provision ceedings stayed, responses with stated Dodd Senator facility subject medi- to a inquiries committal showed Committee’s to his out-patient majori- supervision, release to supported cal were these views supervision, probationary officers, and abatement probation Judges, ty of Federal legal proceedings on successful States and United prison wardens completion program.26 attorneys.27 Proceedings, weighted Conference alike, White House down are who futility Drug hopelessness Abuse 293-4 bitter Narcotic seemingly, into (hereinafter “Proceedings”) stretch sentences * ¤ ”* infinity. (Analysis of 25. Id. State Sena- ff. Judge M. James District S. From U. Legisla- Regan, tor Edwin J. California Carter: ture). ago years ninth circuit at a “Several vote unanimous was a there conference (Analysis H. of Richard 26. Id. at 184 ff. mandatory man- against sentences. Kuh). in- datory extreme work sentence can gave these ff. Dodd * *” at 228 Senator * Id. justice. attorney data: Gascli, then U. S. From Oliver Against pro- of Columbia: District for the Against hibition philosophy opposed “I am probation minimum parole sentences mandatory Even in narcotic minima. .... allo- Prison wardens should be some discretion cases 92% 97% judges judge. .... The answer to District cated 86% 73% an ideal officers .. traffic is Probation elimination 86% 83% Attorneys I would recom- ... difficult of realization. U. S. 55% 50% long explanation with “conditional” follows: mend sentences His you representative parole Why? give supervision by authorities.” I will close Eugene Dupuy, Pro- F. Chief S. From U. answers. Orleans, Bennett, Officer, Director of Louisiana: Y. bation New Prom James “Existing emphasize punitive laws Federal Bureau Prisons: Federal, dealing illegal drug “Prisons, aspects both State Presumably, years immediately ahead will be reason for traffic. inevitably problems approach penalties is that faced strict expected offenders, *28 narcotic addict and nonaddict serve a deterrent
1169 drug per- Ad- is a abuser sick President’s 2. Recommendation of They (1963) his crimes to an visory Commission son. attribute compulsion for which he should inner 11076, signed Janu- Executive Order responsible held under our code not be Fed.Reg. 477, 15, 1963, created ary justice. They feel of criminal Advisory on Commission the President’s drug be treated for abuser must Drug Abuse, rec- to submit Narcotic and punished. rather than sickness evaluation on an ommendations based disease is incurable and feel his Some The Com- House Conference. the White on the he be maintained should distinguished by mission, our chaired drug. Judge colleague, E. late and revered report Prettyman, accept its rendered ei- does not Barrett This Commission 1,1963.28 attitudes, extreme November ther of these aspects certain of each. subscribes philosophy Basic ** -x- drug who steals The abuser Philosophy” section drugs The “Basic finance his habit or sells who report Prettyman re- Commission guilty other Like is of a crime. printed House Com- in full in the citizen, conse- face he should Report, stated that mittee held quences. he can be Whether measures, law, previous added criminally responsible de- can be virtually part or in effectuated whole courts, The case. case cided pertinent general made all recommendations cannot assert Commission drug every the Presidential Commissions confirmed abuser rule that (Prettyman Commission) is impelled that he his habit is so Commission).29 (so-called Katzenbach under for his acts not accountable Prettyman This how the Commission is law. Philosophy: stated its Basic penalized, is to If the abuser drugs has aroused two abuse spirit penalized in not be should punitive extreme attitudes —the concept of modern retribution. permissive. penal- apply criminology should —that offenses. as well as fit offenders primari- ties people Some are concerned drug ly with the effects abuse per- designed to Penalties should * * * community. Because wher- rehabilitation mit the offender’s drug return to most serious abusers Although society possible. must ever peo- themselves, if left to these protected offender from the often be ple down the abuser would shut specific time, penalties cases for a long pos- away society for as recognize reforma- the need for should sible. tion. attitude, others to this contrast long sen- effect of The deterrent usually is hold serious abuse vigorously debated. Some tences symptomatic disturbance of mental Cong., H.R.Rep.No.91-1444, prob- 91st greatly reduce the or eliminate 8-10, seq. (1970), valid, 16 et premise Sess. U.S.C.C. manda- lem. Were this 4566, 4574-75, (1970). The tory A.N. for all crimes minimum sentences Report in The Katzenbach Commission I that all would be the solution. believe persons on Law En President’s Commission with of- who worked approach forcement the Administration fenders that such an know Report: Justice, per- Task Force Narcotics . . [The] doomed to failure. . Drug (1967) (hereinafter problems Abuse son with mental emotional Force). support sup- Task who needs will seek irrespective legal port, social con- Report, sequences.” 30. 1963 at 2-4. Report, Advisory 28. Final The President’s Drug Commission on Narcotic and Abuse (hereinafter Report). *29 Specific of recommendations the threat indicates that evidence non-using long deter sentences Prettyman Specifically Commis- the necessarily traffickers, it does the fol- sion included recommendations drug Deterrence abuser. the deter essentially lowing : appeal normal sense to a an parole: (a) probation and As to abuser the reason which of sentences, mandatory That minimum narcotic persistence of The lost. abuse, prohibition probation, suspended and sentences, of penalties despite for severe parole, modified so be and persuasive narcotics, is
possession of sentencing judge dis- have full risk a will the abuser evidence sentencing those whose cretion in the of drug. long for his sentence possession narcotics with- offense is of (and this Com- general philosophy of for marihuana intent to sell all out The offenses).31 parts: in three be stated mission can drugs (b) to civil commitment: illegal As (1) traffic The power full with New York and attacked After discussion of the should be *** programs, Commission government. California federal of a federal civil com- recommended “that be (2) should individual abuser The provide mitment statute be enacted to *** rehabilitated. handling fed- alternative method of Drug the law users who violate erally nar- convicted offender who is a marijuana be purchases or sales should cotic or user.” small society recognize de- what made to Addict 3. Civil Commitment: Narcotic instances, these them. In of mands (NARA) Rehabilitation Act of according applied penalties should be Prettyman proposals Commission present code principles of our to the emerged, with as to civil commitment penalties involve justice. When modification, Ad- some the Narcotic however, rehabilita- imprisonment, dict Rehabilitation Act individual, than re- rather tion of the pro- (NARA). NARA was intended punishment, should be approach, tributive rather vide rehabilitative purely penal was major objective. one.33 NARA than Report, 39-42. there was ment of conviction. Otherwise resumption proceedings provision It also recommended imposition quantities intent with of narcotics of sentence. small subject imprisonment to sell be —but Cong., S.Rep.No.1667, 89th 2d Sess. mandatory minimum —and to without Cong. (1966), & Admin.News U.S.Code probation. parole, but not report 1966, p. based on 4245. This specific testimony hearings recommenda- in the Id. at with authority Prettyman Discretionary including: Re- Commission followed tions exception port. judge, for certain The Senate Committee stated: if the legislation], expert advice, proposed cases, acting upon [the deter- S.2191 represents re- offense is a fundamental mines that the defendant’s “and that innovative reorientation toward to his lated abuse grounds problem for belief addiction and the reasonable there are brief, handling drug addicts. can be rehabilitated the defendant suspend judge upon simple treatment.” that Bill is based historically sentence, that nar- the care of the unassailable fact and commit merely Attorney period General, least a cotic addiction cannot cured imprisoning ; by prosecution months, possibility of return of six community pa- addicts, hence, as a even those who of defendant narcotic offenses, supervision by rolee, have committed criminal should under close federal probation officer, provision in- treated common criminals community Instead, patient spirit retribution. S. wher- services possible. approach ever For event successful 2191 takes the more realistic seeking completion program, to utilize flexible tools there was proposal discharge expunge- psychiatry, and court re-education medicine
H71 *30 phi- drug required personal congruent for which he D.C. law’s with the 1953 seq. use. 601 et losophy, 24 D.C.Code § people, (1967), sick were that addicts requires a determi- Civil commitment per- hand, helping need who a by nation the that the narcotic ad- court of order for confinement a court mitted likely treat- dict be rehabilitated is to “drug However, Act a the user.”34 D.C. to is committed Under Title I he ment. “any expressly inapplicable to was made person Surgeon custody General the charged . . . with a up insti- treatment months—in an to 36 offense,” 603(b). NARA 24 D.C.Code § tution, or on additional release provided com- for civil went further and completes successfully community. If charged persons with mitment even of crimes, program, the criminal treatment re- deemed case of crimes otherwise, pros- charge dismissed, is excep- drug (with certain lated to abuse may Title ecution be resumed. Under tions). person II, committed the convicted custody Attorney who General provisions NARA commitment treatment, provides provi- for his with provisions com- for civil The NARA super- under sion for conditional release sum- mitment narcotic addicts of community, after six vision marized as follows: in- in a treatment months commitment pretrial for treat- Title commitment I— stitution. ment, prosecution, in lieu of of charged U.S.C. Federal crime. 28 with Dis- Rehabilitative Restoration D. of 2901 ff. § Judge: Sentencing cretion of II—commitment for treatment Title Act Substances Controlled crime. 18 addicts convicted of Federal 1970 4251 ff. U.S.C. § pertinent recommendation The other treatment Title III—commitment (1963) Prettyman Commission charged any Federal persons with (1967) for and Katzenbach Commission petition by crime, addict or on a authority discretionary restoration ff. individual. 42 3411 related U.S.C. § sentencing (probation, includ- judge the ing suspension sentence; mandato- no and was Eligibility Titles I II under e.g., minimum) parole, accom- exclusions, ry was subject statutory Act charged plished by Substances person crime the Controlled charged II of as Title person This enacted with sell- of 1970. was violence.35 A Drug Comprehensive Preven- drug Abuse 1970, ing Ti- excluded narcotic 91- I, P.L. if tion Act of II, the sale and Control tle but not' from Title Prettyman This 1236.36 a narcotic Stat. was enable him to obtain neighbor- job family The Act training, to his addiction.” reference hospital— provided supervision to a to cure for commitment in an effort hood society there for rehabilitation” —until him “confined and return the addict (1) cured, drug emotionally prepared physically or user drug temptations benefits. D.C.Code maximum return to received resist 609(a). approach— This § abuse primarily and crime. than rehabilitative rather States held valid United 35. This was every firmly supported penal —was U.S.App.D.C. Fersner, v. before Sub- witness who testified (1972). exclusions were F.2d 605 Other committee. States, v. invalid in Watson United held term 34. 24 Hamilton, D.C.Code § supra; States United “drug defined, 24 user” D.C.Code U.S.App.D.C. F.2d any person 602(a), “who uses to mean any habit-forming drug endanger so as accomplished health, safety, comprehensive public morals, wel- act 36. The mechanisms, fare, control redefinition or who is so far addicted use dangerous habit-forming sub- reclassification of such narcotic broadening provided stances, power and also self control with to have lost (text exculpation, provision Commission recommendation did embrace supra) probation parole. note 31 was reiterated treatment while on En- the President’s Commission Law Attorney Mitchell, outlining General forcement and of Jus- Administration proposal the Administration’s tice,37which stated: hearings, emphasized need for tailor- disposition requirements “to the The Commission recommends: State addict,” violation or the narcotics give and Federal laws should *31 length detention, possi- both in and in enough large measure of discretion to bility of rehabilitation and treatment the and correctional courts authorities probation parole.” “while on or flexibly to enable them to deal with taking violators, approach nature account of the This reflected in the was offense, report seriousness of the the submitted Dodd Senator prior record of the and other in offender behalf Judiciary of the Senate Com- relevant circumstances. mittee and line with Senator presentation Dodd’s the White to message, The President’s 1969 while Report40 House stat- Conference. recommending expansion of rehabilita- ed: recogni- tion and research measures obligation society help tion of to an apparent It had the also become that dependent “genuinely people” severity the penalties including sick the helps drugs, length stated their sickness to that the sentences does not affect explain, excuse, drug- the crimes drug but not extent of abuse and other they However, commit.38 Adminis- related violations. The basic consider- tration made clear that its concern increasingly ation here was that people, extending such longer sick legis- while not sentences had that been scope research, education, Hearings Legislation, and re- 39. See on Narcotics programs. I, Investigate habilitation Title “Reha- before the Subcommittee to Programs Relating Drug Delinquency bilitation Juvenile ciary Committee, of the Senate Judi- Abuse,” provisions appropri- Cong., includes 91st 1st Sess. 216 authorizations, expanded (hereinafter ation an role for Hear- 1969 Senate HEW, programs ings). broader treatment hospitals personally Public Health and more Service I believe sentences scope persons “drug reasonably for treatment of are calculated to be deter- . dependence problems” give in treatment facili- rents to crime and which also will Community judges flexibility ties established under sufficient to tailor the Act, requirements Mental Health Centers 42 U.S.C. sentences 2688(a). drug violator or the narcotics addict. only logical Prison is not the alterna- Challenge 37. The Crime a Free So- cases, tive. some be advis- ciety (1967). pro- able use Federal rehabilitation Danger- 38. See “Control of Narcotics and halfway grams, private houses and medi- Drugs,” Message ous President’s to Con- probation cal treatment while on gress, July 14, 1969, H.Doc.No.91-138, parole. Perhaps promising the most al- Cong., Sess., reprinted 91st Cong.Rec. 1st at 115 approach ternative is to the narcotics 19327-28 Part VIII function; violator in relation to his states: professional trafficker who should be Considering involved, including the risks given possible; as severe a sentence as prosecution, those of arrest and the casual the casual and intermittent user iswho experimenter any kind, must perhaps only experimenting out of curi- very least, be considered at the rash and osity; mentally physically or the ill psychologically dependent foolish. But the addict, help, who without additional can- regular physically users and the addicted not break a confirmed habit. generally people. sick While this also, July 15, See 1969 letter of they sickness cannot commit, Department excuse the crimes submitting of Justice help explain it does them. Administration bill. Id. at 909. Society obligation has both to itself people help S.Rep.No.91-613, Cong., and to these them break 91st 1st Sess. dependency. the chains of their
H73
proval
probation
past
lated in
expected
had not shown
on condition of
reduction in
law
overall
treatment:
all
cial class of
violations.
The field of
hamper
The main
[*]
mandatory
position
penalty provisions
law violations
[*]
process
penology
thrust of
[*]
minimum sentences for
professional
mandatory
except
of rehabilitation
has
to eliminate
[*]
maintained
change
criminals.
sentences
[*]
spe-
their
them will be in need of medical treat-
judges,
ment
these
prescribed
sions of this
& Admin. News
many
probation (at
Committee
persons undergo
treatment
defendants
administering
judges
section,
1970,p. 4617).
is confident
will
U.S.Code
coming
will
some
require
condition
recognize
form of
before
provi-
Cong.
that
equally
It
offenders.
been
Statutory provisions
penalties in-
such
maintained
*32
The Controlled Substances
ofAct
1970
fringe
judicial
by
on the
function
not
place prohibition
pen-
collects
one
and
allowing
judge
use his discre-
to
alty provisions previously scattered;
tion
individual cases.
simplifies determination of
conduct
what
Foreign
The House
and
forbidden;
Interstate
penalty
is
and standardizes
provisions
whereby penal-
Rep.
pattern
Committee,
Commerce
H.R.
No.
a
ties bear some rational and continuous
91-1444,
Cong.,
19,
2d
91st
U.S.
Sess.
relationship
forbidden
to
acts. Offenses
Cong.
1970, p.
Code
Admin. News
&
involving drugs
(1)
high
carry
a
which
(1970), expressly implementing
4585
recognized
abuse;
(2)
potential for
no
Presidential Commission’s recommenda-
danger
purposes
medical
of ad-
and
sentencing flexibility
pro-
tions
“to
consequences,
treat-
diction or worse
greater
vide
for rehabilita-
a
incentive
ed
involv-
as more serious than offenses
tion,”
report:
in its
stated
drugs.
ing less-dangerous, more-useful
simple possession
The misdemeanor of
in this
Action. As discussed earlier
drugs
personal
(for
of controlled
one’s
report
man-
all
elimination of almost
use)
subject
a maximum
made
to
datory
sentences,
minimum
well as
as
year
$5,000
penalty
fine. An
of
and
one
prohibition against
elimination of the
per-
$5,000
year
fine was
additional
probation
parole
of-
of narcotic
subsequent
second and
mitted
fenders,
accomplished by
bill.
offenses.41
Furthermore,
significantly,
terms were
mandatory minimum
No
single
provided
law,
by
specifically
ap-
with a
the 1970
House Committee
voiced
Attorney
with
files an information
41. 21
House
844
The
U. S.
§
U.S.C.
11,
stating
previous
Report
Act,
convic
that
on the
the court
1970
upon.
1970, p.
Cong.
Subsection
relied
& Admin.News
would be
U.S.Code
tions
may
provides
(a) (2) provides
that an information
“The
also
states:
bill
illegal possession
in
if the
this section
filed under
that
controlled
be
of
imposed
punishment may
by
be
a
creased
own use is
an individual
his
years,
up
unless
misdemeanor,
a
of three
a
term
excess
[one]
sentence
year imprisonment
This section
indicted.
the defendant was
and a fine of not more
provides
is raised
$5,000
if an issue
also
than
both.”
or
prior conviction,
Act,
issue shall
851:
U.S.C.
§Cf.
jury.
by
prior
“Proceedings
a
without
decided
a court
convic
to establish
is, apparently,
sim-
by
The intention
filed
United
tions —Information
Attorney.”
States
misdemeanor,
ple possession
provides
a
a
This section
punishment
person
by
from one
increase in
of an
reason
convicted
offense
years
prior
element
is not considered
two
conviction shall be sentenced
jury)
(not
re-
trial,
any
punishment,
or
triable to
crime
unless
increased
before
quire
entry
plea
guilty,
an indictment.
or
before
exception42
power
impose
The
not here
conditions is
material.
governed
proba
authority
one,
broad
court’s restored
to use
standard
insulating
reasonableness,
permits
provision
tion was enhanced
simple possession,
on the
the individual from the conditions that
first offense of
Whaley
complied
led him
United
if the offender
into
trouble.
v.
1963).
exceeding States,
(9th
probation (not
H75
probation flexibility,
LE-
we con-
ration of
OF
AT PRESENT STAGE
IV.
junc-
judicial role,
DEVELOPMENTS,
clude that the
APPRO-
GAL
general
ture,
upholding
validi-
LIES
lies
PRIATE
ROLE
JUDICIAL
ty
possession
verdicts
THE
unlawful
IN
GENERAL
UPHOLDING
POS-
heroin addicts.
VALIDITY OF UNLAWFUL
HER-
FOR
VERDICTS
SESSION
Congressional In-
View
A. Overall
ADDICTS, TAKING INTO
OIN
tent
THE
ACCOUNT
AVAILABILITY
widespread construction
There was
TREAT-
OF PROBATION AND
Acts, as
and Jones-Miller
Harrison
INTENT,
MENT, LEGISLATIVE
prosecutions
evi-
permitting
based
RE-
OF
JUDICIAL DOCTRINE
drugs by
narcotic
dence of
SPONSIBILITY, CONSTITUTION-
an
use. This
an
for his own
addict
FACTORS,
MEDICAL
AL
AND
dis-
entirely
from the
different matter
DATA
AND CLINICAL
putes
way
Act
Harrison
pre-
preclude medical
was construed to
Taking
into consideration
scription
outside
narcotics
Congress,
contemplation of
discernible
institution.46
responsibility,
pertinent
doctrines
possession” prohibition in
factors,
“simple
and medical
constitutional
pattern
data,
law,47
follows the
the resto-
clinical
the context of
family,
Sick,
job, home,
pressures
62 Yale L.J.
and the
for the
ers
Despite pre-passage
they
they
assur
will face when
ff.
and associates
imprison-
complete
American
in the Journal
their sentences of
ances
purpose
Association,
parole.
After-
ment or are released on
Medical
opiates
counseling,
individually
with
sales of
to ban
care
both
the law was
interposition,
improving
physician’s
groups,
after the
is essential
out
following
drug-
Treas
effective the
Act became
offenders’ chances of
Harrison
lifestyle
they
began setting,
ury Department
and stead
when
free and crime free
addition,
broadening,
periodic
ily
au
restrictions on
are on the street.
necessary
Regulations
thority
physicians.
for
deter-
urine surveillance is
except
opiates
prescribing
they
remaining
mine that
free of
bade
*34
prescription
drugs.
proposed legislation
hospital,
came to
and such
The
author-
by
community
in
AMA
unethical
izes both
treatment and urine
be declared
1924,
1923,
By
adjuncts
years
necessary
of debate.
after
surveillance
opened
clinics,
supervision already provided by
maintenance
some 40
U.
1918,
probation
mainly by
were
from about
cities
S.
officers.
proposed legislation
The
would also
closed.
opinions
Supreme
community-based
for the
Court
authorize
treatment
As
Lindesmith,
treatment,
see A.
who
reason or
for offenders
for one
medical
Early
part
in-
the Law 5
another have not taken
in an
The Addict and
prescrib-
example, pro-
precluded
program.
doctors from
stitutional
For
decisions
ing
appetite
parolees
experiment
drugs
or satis-
cater to the
bationers or
who
sup-
addict,
drugs
community
fy
craving
than
rather
while under
attempted
the habit. Webb
treatment
even
cure of
ervision
receive
States,
96,
though
249
39 S.Ct.
their infrac-
v.
U.S.
seriousness of
United
;
(1919)
States
tion does not warrant
imprisonment.
revocation and
with lesser disabilities is to accord them
verifiable, such as the mental disease or
defect that
sent a
ity. The most that it is feasible to do
meet the standards
norms with the individual’s
as an influence
to a
Only in limited areas have the courts
The criminal law cannot
depravity
disability
sentencing.”
that is both
establish
conduct.64
blocks out
they prescribe,
irresponsibil-
“vary
capacity
conscience
gross
legal
ab-
defense to one who shows coercion
lesser threats than those
there
force
hension
less strict
ity.
trol as a defense to criminal
ken a broad
The defense of
use
original
against
While
is a
of,
view,
death or
continuing
or
principle
the ALI has
doctrine
a threat
voiced in
person.69
duress does
great bodily
of lack of self-con-
limitation of
requiring appre-
some
use,
accepted
embraced
responsibil-
not beto-
unlawful
cases,
harm,68
recognized
respon-
a defense to criminal
The limited
thus
defense of duress is
sibility, on the basis
psychic
described inapplicable
purely
to a
Indeed,
internal
psychic incapaci-
condition establishes a
incapacity.
if
it is also excluded
ty negativing
recklessly
free will in the
consciously placed
broader
actor
sense. These are areas where the courts
himself
in a
it was
situation where
respond
deep
have been
able
to a
probable
subjected
call
he would be
to exter-
justice,
on elemental
and to
duress,
ap-
discern a de- nal
a limitation considered
Perkins,
(2d
63.
by accepting
Criminal Law 878
ed.
a threat
force
ment
(hereinafter
1969)
Perkins).
against
person
another
stating
the extent of the threat of force
Compare
64.
Id. at 878-79.
United States
person
one “which a
of reasonable firm-
Levy,
F.Supp.
(D.Conn.
v.
in his
have been un-
ness
situation would
1971).
able to resist.”
2.09,
65. ALI Model Penal Code
Com-
§
Perkins,
954;
supra,
ALI
note 63
(Tent.Draft
10, 1960),
ment
No.
at 6.
(Tent. Draft
Model Penal Code
2.09
66. The defense is sometimes called “com-
Coercion,
10, 1960),
4; Annot.,
No.
pulsion,”
Perkins,
supra,
see
note 63
compulsion as defense to crim
duress
Technically,
the term “coercion” is
;
prosecution,
(1955)
inal
1181 insanity exceptional de- na- diets in context of propriate “in of view the 70 ap- fense. This is accord of defense.” ture g., proach circuits, e. United of other Necessity defense (2d Freeman, F.2d 606 v. States 357 ne- of 1966). Appellant is a common law defense There di- disclaims Cir. cessity of cir- insanity “duress called rect reliance on defense.74 —sometimes agrees rulings for conditions cumstances” —available that heroin He with our involving threat value, not an external dependence probative have citation,71 Supported along force. Biblical with other mental evidence legal discussed disease,75 doctrine is more evidence of is not itself litigated, provides justifi- than and “mental disease defect” sufficient person who pro- is limited insanity cation that issue,76 raise the unless so commits an offense order to avoid in un- tracted and to result extensive as greater evil.72 usual deterioration controls. tend to cases on the doctrine opinion few declined Our Brawner suggestion involve violations undertaken accept the that it “announce” greater (or safety— good evil) lesser exculpating anyone standard whose ca- not to as in the of the master held insubstantial, case pacity control embargo he takes said, violate an law when reason, whatever cause or and dis- port safety of vessel claiming a storm “all-embracing unified field doctrine of and those on board.73 The theory,” ap- that we would discern necessity appellant’s support does not propriate rule “as arise re- the cases contrary, case; gard on the its limitation to other conditions”.77 “greater evil,” avoidance of a illustrates view, In our the rule for addic- the courts common law doctrines tion on the should be modeled rule policy proceeded support for mental of crucial disease because managea- by staking out choices limited distinctions between conditions. all-embracing theory defenses, ble not an subject though disease, of mental sub- psychic incapacity. ject indeterminacy, to some difficul- diagnosis ty of to voli- when extended dis- Crucial between mental differences cognitive drug depend- impairment proposed tional ease as well defense subject ence long incapacity,78 been defenses systematic study, in that frame- past considered decisions have Our manageable to ask it is considered work ad- the “no control” defenses 1061, 961, L.Ed.2d 88 19 (Proposed S.Ct. 390 U.S. 70. Penal Code 2.09 § ALI Model (1968). 1962) ; Draft, 1158 and see Comment Official (Tent. 10, 1960), at 8. Draft No. Collins, 139 U.S. United States v. 76. See 1, (jettison cargo Jonah, 71. 5 save ; v. (1970) C. 392, App.D.C. 550 F.2d 433 lives). U.S.App. States, 121 Heard United 43, 44 F.2d 348 D.C. Perkins, supra, ff; ALI 72. note 63 at 956 patients study found One 2% (Proposed Model Penal Code 3.02 hospitals coming the Federal narcotics Draft, 1962) ; (Tent. Comment Official disease mental for treatment suffered 1958), at 5. Draft No. Vogel, psychosis, & Maurer in the form of Gray, 73. The 29 Fed.Cas. No. William Drug 171 Addiction Narcotics p. 17,694, (C.C.N.Y.1810). 1300 U.S.App.D.C. F.2d 471 appellant’s (appellant Brief at See defect, and exhibited no mental disease or insanity present directed counsel Report Crim- on Consultant’s 78. See defense). (pre- Illness, Responsibility-Mental inal Papers Working U.S.App. Robinson), States, pared I D. Gaskins v. United (1967) ; Reform 288, 290, National Commission D.C. F.2d States, U.S.App.D.C. Green v. Federal Criminal Laws United cert, Papers.) Working denied, (hereinafter (1967), F.2d 199 distinction, subject drug dependence psychiatrists As to to address the law, all-important psychic incapacity to refrain from and crucial be- indisposition,79 Study incapacity narcotics, be- Draft tween even those who can’t and those who of the National Commission tween Staff Laws, won’t, impulse Reform of Federal between the irresistible Criminal *40 drug depend- impulse and the not resisted.80 These favors on a which balance possession, the court has ence defense to the crime of are matters which use,81 analysis accepted medicine, incapacity medi- from the of to refrain recognizes problems symptoms, candidly in- cal and on the the conditions and jail premise they paradox of can be considered a volved. One is “the basis, dangerous possessors (non-ad- dis- verifiable and with reasonable the least patch, recognized experimenters like) de- the courts have a dict and the while go important, fense even in conditions not obvious free.” More present purposes, covered in the caution verifiable as those is the Staff’s capacity first, symptoms physical older and limited of test even right wrong. might successfully feigned,”83 and, know from “be (Tent. Code, exception 79. ALI the Model Penal Comment a standard marks case general to% 4, 1955), pattern. Draft No. at 157-158. (prepared Report Drug Offenses inquiry opinion 80. The asks for an as to Schwartz, Louis B. Staff Professor capacity, the individual’s but the under Director, Professor Michael P. Rosen- and Working predicate lying expert sup is that the will thal), Papers II of the National by testimony port opinion the Reform Federal Commission on Crimi- general described mental has a re disease nal Laws 1061-1062 capacity. sult of disablement of Cf. at 1062. Id. Schwartz, Report, Professor L. B. Statement, Staff Proposed See, Dependence The Federal Penal Note on as a Defense Issues, Accomplishments (from Code: Possession Con- to Unlawful Hearings, supra, Rosenthal), Report Senate note 54 sultant’s of Prof. Papers 1132, Working 109: II 1137: barring Jurgensen, Deputy The Criterion criminal Dr. Chief Warren P. prosecution for an act done while the National Institute of Mental barring prosecution actor for an Health Research at Fort Clinical Center Worth, Texas, explained act done the actor was while ‘insane’ the writer may experienced opiate should be whether defendant suffer- that an user present ed from a mental illness of sort which to the medical examiner a false generally deprives persons suffering very convincing picture verbal power feign from such illness of substantial severe addiction and be able to question. symptoms to conform with the law some The withdrawal. require efforts, stated, This standard does not a deter- of these success likely mination, usually impossible part dependent to make re- to be at least liably, particular experience per- individual on the of the medical power raising person lacked of self-control sonnel who examine put defense, unfortunately, critical moment. I would the number proof psychiatric personnel burden of on the defendant of medical and wrongly experience show that the authorities had who have extensive drug-dependent persons brought great. him into criminal court not Report rather than civil commitment The that neg- Staff offers offset process. feign the motivation to the defense is test, adopted provision While the ALI in our en atived proceedings the Staff’s for civil opinion Browner, banc retains as a result capacity (or approxi- standard of individual lack addict could be committed for thereof), proof existence, lack, mately years. or Id. at 1138-1139. But capacity, may philosophy substantial individual is made broad of treatment encom- by analyzing consequences general- pass programs, out methadone maintenance ly may attendant on the kind of mental illness without confinement. Or involved, taking likely provide program and also into account should for con- any particular features of the individual’s finement ly an institution that is relative- exemplifies by community time, condition that show that he short followed general pattern, perhaps supervision. or that his drug use,” significant broadly, from considerable that there is there are more difficulties, difficulty there claim is need for fur- of verification inquiry: ther to refrain user that he is unable Report states: from use. Staff exempt person In order to such a significant liability prob- necessary Perhaps it is also the most that his respect proposed unduly condition not verify to the de- difficult lem with define, incapacity that this is so is fense is that substantial dangerous entirely Hence, clear. from use of value refrain verify. easy defense be illuminated ad- abusable Difficulty verification, opinions ditional from the National while relat- feigning possibility of Mental Health.85 Institute ed problem. defense, is a broader difficulty the verification According Jurgensen *41 to such a Dr. problem capacity of lack to refrain of present opiate would defense for use taking sharpened on ac- use is into problems. judgment A that several comprehends count ad- that issue ca- the defendant pacity lacked substantial participate dict’s failure treatment to opiates use of to refrain from programs. problems raises This possession is more the time of a his personal knowledge, disposition, addict’s motivation, judgment judgment than a difficult commu- well as extent of as who as- the defendant whether nity programs, may usefully be as- or lacked sub- saulted killed another by pro- considering sessed what someone capacity stantial to conform his con- gram try next, to irre- now but would law, requirements of duct to the tangle trievably trial. a why opiate person used an because is The feature that narcotic addiction particular easily time is not as at a ap- not a condition undercuts stable history per- explained by his life disease, proach patterned on the mental dynamics sonality why he assaulted as projection where is there a reasonable person. per- Even or killed another analysis particular subsequent great experience with son with clinical may as- delineate an over time incidents intelligent could make an addicts guess unrealistic It certainable condition. capaci- that the as to extent supply expect to to the addict himself ty impaired to refrain from use was nature accurate information at the time the use of- extent of addiction at time persons experi- question; less fense, “psychic de- particularly as to accurately.84 guess ence could pendence.” guesswork purposes, For clinical ap- sharpened by difficulty may The inherent “clinical intuition” preciable “addicts” part experimental ap- of narcotic number tolerated permanent- exists, who do their habits proach abandon to a disease whether larger ly, reflect degree, and much number who mode of treat- and which what ceasing use capacity their refrain But differ- to tried first. ment should be varying periods rea- The apply determination of time. ent criteria phenomenon is responsibility. The con- sons are not clear but the indisputable. Staff criminal argu- in the Staff noted are “basic It is cludes that while there by specialists punishment Report, reported voic- exempting from ments approaches addiction dependent user who different for his use the problems.86 capacity to refrain lacks substantial (“Al- Psychiatry 486, Id. at 1137-1138. though persists usually addiction heroin Id. at 1133. every decade, virtually more than spends See, Vaillant, addict absti- some of that time E. Natural G. nent.”) (general percent History Drug Addiction, trend 2 Seminars “for excuse, princi- verifia- for reasonable which contradicts salient There is need ples underlying rejects opening rea, yet bility a de- as a condition to mens society. responsibility. defense claim in the interest of fense criminal universally made, gear plea standards “The criminal its law cannot capacity questions “absent and would lead interminable to the individual’s gross incapable verifia- disability both solution.” needs that is society overriding ble, require subjective or defect disease as the mental such good irresponsibility.”87 legal faith of establish the individual as a remitting position defense, miti- from somatic defenses criminal That gation punishment and executive hinge verifiable on a conditions must clemency.91 predicate law noted has been specialists ready old Reliability legal validity to reexamine most de dogmas88 require pointed out fense and was it can be tested exculpation.89 requisite Brawner criteria as a external actions which it gird under Not dissimilar considerations invoked to excuse.92 And the Mod so maxim, ignorance rejects no el paragraph law is Penal Code’s caveat permanently risk become means substantial “desert- numbers year") ; drugs.” abstinent each ed the use of their (2) Burnham, Traps Heroin *42 88% 87. See fn. 65 and text thereto. Times, Block, Addict York New See, g., Williams, According study e. G. Criminal Law: to one “about one-third (2d The living General Part § ed. of those a his on block with 1961) “peremptorily require tory quit : courts of narcotics addiction tak heroin, considering help generally medical evidence before a without any government thought program.” defense automatism” it is possible hysterical Kolb, fugues, epileptic (3) supra 76: note percent seizures and the occur like without 210 addicts studied —“20 Of supporting number, medical The indications. entire at some time “possibility justice miscarriages during careers, their addiction had vol- accepted untarily drug must be in order to make the abstained from the law breaking workable.” succeeded habit had physicians, without hospitals from assistance U.S.App.D.C. 89. 153 471 F.2d at prisons.” or 995, referring to “other conditions —som- (4) many Dr. Jordan Scher notes that automatism; nambulism or other black- junkies “highs” who lose their use occa- voluntary due, insulin; outs e. to overdose of abstinence, including sional drug addiction. Whether these somatic hospitalization, in order to toler- reduce governed by conditions should be a rule heighten capacity ance and thus later comparable to that herein set forth for euphoria. “Little then that wonder require, mental disease would mini- at a sprints gleefully sup- the addict a judicial mum, determination, a which plier speculates on his He release.” opinion account, takes medical into find- may in some addicts time become unable ing convincing evidence of an ascertain- rejuvenated gain euphoria” through “a by able condition characterized broad ‘a “may such abstinence the eu- lose ” consensus that free will does not exist.’ phorigenic altogether” capacity and then The Brawner list of somatic conditions permanently. posits withdraw He also presumably to be considered would also fiends,” prick- that “needle ing involved g., “pathological include intoxication” euphoria, may engaged in without “grossly or a abnormal reaction to alco- compulsion “ritualistic maneuvers hol,” resulting with violence from small capacity intended to recover amounts, hypoglycemia. due to See ALI euphoria.” Scher, J. and Pro- Patterns 2.01, Model Penal § Code Comment Abuse, Drug files of Addiction (Tent.Draft 9, 1959), No. at 11. (1966), Psychiatry Archives of General People O’Brien, 171, 176, 96 Cal. reprinted Hearings, in 1969 Senate (1892). 31 P. note at 1060 ff. Compare Robertson, (5) Zinberg and Perkins, supra, note 63 at 924-25. (here- Drugs and the Public Wootton, 92. B. Social Science and Social say Zinberg Robertson) inafter who Pathology the decline nar- from one million 100,000 in cotic addicts in 1919 to NARA, 2901(a), 18 abnor 28 U.S.C. U.S.C. insanity on an § § based defense repeated 4251(a), 3411(a) 42 U.S.C. only mality § manifested anti-social con criminal or otherwise Compre- Furthermore, Title I of the approach followed duct. Brawner,93 This Drug hensive Abuse Prevention drug de defense of contains, Control Act of 1970 a charge pendence cannot use to a provision Surgeon custody General circularity. clear hurdle of only but also a an “addict” “drug person,” dependent 42 U.S.C. § verifiability interrelate Problems (1970), defined as: dangers widespread with assertion. person using is a controlled who significant particularly is since This in a substance . . and who . proposed be made defense psychic depend- physical state of or persons satisfy who available not both, arising ence, use of Organization defini- the World Health that substance a continuous basis. phys- addiction, requires tion of which Drug dependence characterized dependence, supra, ical and who responses behavioral and other make the com- a claim of action under strong compulsion to take include pulsion stress, of withdrawal but also to basis substance on a continuous persons “psychic” de- who claim mere experience psychic order to its effects pendence. Such a defense of de- caused to avoid discomfort pendence likely for most would seem its absence. making persons having possession or Surgeon law purchases establishes drugs, of narcotic contrast authority drug de- disease, General’s treat be es- mental which cannot petition, pendent persons voluntary percent- tablished for more than a small prisoner, accordance age or in transfer of A the cases defense affected. probation order put Federal court nominally forward the addict specifying treatment a condition capacity without refrain would natu- *43 probation. rally drug users, 42 U.S.C. 257-259 §§ extend to all habitual given the realities of the administration drug provision Such for treatment justice, of resources limited time and “strong dependent persons (under com- trial, prosecution available for pulsion”) probation reinforces the on difficulty any the extreme effort of contemplation the same con- lack of draw distinctions between addicts. through implied some dition was covered defense. as a criminal osmosis difficulty verifiability The of of “loss Congress side-stepped by of control” was in The Need- Restraint statutes, C. Judicial in its civil which commitment Legislative a Context Balanced
apply to one who
far ad-
is either “so
of
Addic-
Commitment
to the Narcotic
dicted
.
.
.
as to have lost
the
tion Problem
power
of self control
reference
with
any
his addiction” or “who uses
habit-
part
policy
judicial
role
Restraint as
of
forming drug
endanger
pub-
the
so as to
morals, health, safety,
analysis
lic
or welfare”.
Our
has revealed that there
concept
compound
principle
This
used in
excul-
was
the
no
common law
of
broad
“drug
ground
control,
user,”
pation
of
see
1953 definition
of
of
on
lack
602(a)
particular
defini-
D.C.Code
and the 1966
rather
of
defenses
a series
§
I,
manageable areas,
of
of
the
tion
“addict”
II and III
with
Titles
staked out
responsible seg-
93. See ALI
§
Model Penal Code
4.01
the concordance
(Proposed
1962),
professional opinion,
Draft,
the
ment of
Official
Brawner,
U.S.App.D.C.
particular
[certain
characteristics
994, provides
application
past
con-
F.2d at
constitute
actions]
criminal
room,
by
court,
underlying
vincing
of the
the
mental
“caveat”
with
evidence
an
special
“expert
impairs
substantially
be-
deviate for the
case of
disease that
testimony,
supported
showing
by a
controls.”
havioral
justice
problem,
anticipate legislative
to the individual confined
call
or to
con-
pro’s
to ascertainable
and verifiable
condi-
sideration of
of a
the
and con’s
tions,
by
dependence
and limited
the interest
soci-
possession.
defense to
ety in control of conduct.
When Senator
1962 for
Dodd
called
recognition
“drug
compelled by
is es-
addiction
Unless
constitutional
sentially
problem,
psychiat-
considerations,
injection
a medical
“drug
problem”
proposal
ric
depend-
to restore
courts
a new criminal
probation
defense,
subject
parole.
probation,
ence”
on a
extraordi-
With
process may provide,
nary
singularly
difficulty,
in-
would be
Judge Belson,
present
potent
appropriate,
juncture.
words of
at the
“a
beneficial intervention in
the life
rounding
are now
a decade
We
out
proba-
addict
....
on
Persons
approach
when
turn-of-the-screw
charged
tion from offenses such as
here
been
the 1950’s has
succeeded
[possession
para-
of heroin and narcotic
wide-ranging and
flexible attention
phernalia,
33-402,
D.C.Code
22-3601]
legislature.
problem
frequently required
participate
Drug Abuse Office and
Act
Treatment
programs;
partici-
abuse
and their
recognition
continuing
marks
pation may, in the case
individ-
of some
integrated
that law enforcement must be
uals,
strongly encouraged by
di-
education,
treatment
prevention,
jail
rect threat of a
term
reflecting
programs,
and rehabilitation
they
ensue
should
if
fail to
reason-
make
strong
prevention
“a
consensus that
cooperate
able efforts
treatment
and law enforcement are
program.”
respond
Whether addicts
enhancing
fact interrelated and can have
governmental
pre-
to such
intervention
counter-productive
well as
effects
sumably depends upon
particular
their
one another.”
personalities
their at-
and disorders and
Congress has seen
for flexi-
the need
authority.
toward
titudes
experiment,
pro-
bility,
coordination of
grams,
Certainly it
devotion of
All
cannot
said that
resources.
agreement
experts
concerning
possi-
are in
technical evidence
eliminates
extraordinary
complexity
prob-
compulsion.
ble role for
detention and
lems,
changes
years
pat-
Report
over
the Ad
Panel
Hoc
Drug
addiction,
Abuse,
working
diversity
paper
terns
in kind
addicts,
Conference,
of narcotic
reasons for addiction
House
indicates
White
underlying
possible
personality inadequacy
motivations and methods
*44
rehabilitation,
persists
drug
for diversion and
after
termi-
and
even
abuse is
nated,
pro-
above all the
our
and
limitations
knowl-
unless
individual
edge,
support
and the need for
vided
itself as
research.
manifests
“When,
soon
he
as
encounters stress.97
extirpate
process
Court cannot
criminal
however,
supervision
the dis-
firm
of
lacking
as
a role in treatment
addicts
of
charged
available, particularly
addict
encouraging
arrange-
are not to
parole
We
be taken as
under civil
criminal
prosecution
drug
encouraging
of
ment,
on the basis
able
addicts
an
are
number
possession.
present
of mere
stay
But
them-
and
off
maintain
learning
public opinion
ap-
by
employment
state
and
does
selves
honest
pro-
preciable
not allow us to
period
foreclose recourse
of time. These
process
part
grams depend
upon
as
overall
the substitution
approach
government
tangled
control,
jointly
to this
external
exercised
92-255,
(1972).
94.
Order,
P.L.
Stat.
forth
March
randum
set
Brief,
Appendix
B to Government’s
S.Rep.No.92-486,
Cong.,
95.
1st
92nd
Sess.
digested
Washington
Report-
in 99
Law
(1971).
er 541
Williams,
States
D.
United
v. Chester
Superior Court,
28001-70,
Proceedings,
Memo-
C.
No.
note
at 294.
facilitating
officers,
personnel,
medical
variable
abstinence”
and
correctional
produces
significantly
greater
workers, for the inner control
success
and social
lacking
punishment
in the ad-
rates when
appears to be
combined with
follow-up parole providing
a
personality.”
close and
dict
prolonged community supervision,100 and
to the lit-
made
Reference
also be
program
help
a work
achieve inde-
studies, supported
erature since 1966
pendence,
backdrop
prohi-
in a
of social
In-
of the National
a research award
legal
against
bition and
sanction
narcot-
long-
Health,
of Mental
stitute
two
ic
abuse.
group
follow-ups
patients,
one
term
Kentucky,
group
from
one
from New
study posits
the urban addict
York,
admitted to the United
who were
integrated
supervision
typically lacked
Lexing-
Hospital at
States Public Health
control,
in childhood
and
effect seeks
Vaillant,
study by Dr.
ton. The
E. G.
parole supervision
and that
meets
School,
identi-
Harvard Medical
has been
powerful
the addict’s need for
incen-
a
“break-through.”
study
fied
work,
tive to
as a substitute
for the sat-
securing
finds
ineffectiveness
relative
addiction,
unescapa-
isfaction of
and an
voluntary
either
treat-
abstinence from
nonparental
ally
up
ble
to back
his im-
along
pun-
model, or
ment
the medical
pulse
alone,
control,
that “external
to care
he is
ishment
but finds
when
appears
critical
coercion
some
independent.101
kind
honest and
model,
Id. at 297.
Id. at
“The medical
497:
mobilizing family
casework model
re-
Zinberg
Robertson, supra
99. See
note
legal
punish-
sources and the
model of
86, at 47-48: “His
work
[Vaillant’s]
unambiguous
ment are
failures
break-through
constitutes
because
Nor
one
treatment of addiction.
can
following
longitudinal study
up
is a
ad-
hope
help
taking away
the addict
twenty-five years.
dicts after
Most
already
little
has—at least not
what
without
reports
about
from so-called
something
providing
in return.
experts
impressionistic,
been
have
appear
There
to be three treatment
largely
generalizations
consist
from
effectively raise the an-
methods that
cases.”
hard
per
recovery
rate and lower
ual
the
cent
study
per
Dr. Vaillant’s articles from
cent annual death rate that
86, 101,
include those cited in notes
seem to be the
of the heroin addict.
fate
Follow-Up
parole,
and also
A 12
Year
These
three
treatments
III,
Synanon-
New
Addicts
York
Some Social
methadone-maintenance
Psychiatric Characteristics,
therapeutic
15 Archives
All but
like
communities.
Psychiatry
parole
history
of General
too short
encompassed by this review. Over the
Vaillant, supra
See
E.
G.
appear
dramatically
to fa-
all
short term
494:
abstinence;
term
the suc-
cilitate short
principal
Rather,
for ab-
reason
predictable
three is
cess of all
among
subjects was
stinence
O’Donnell’s
depend
history
All
prohibition
natural
of addiction.
Kentucky
narcotics
the fact that
rural
upon
backdrop of
social
Illegal
gradually became unavailable.
against
legal
narcotic
sanction
and of
dried
medical sources alike
sources and
depend upon
abuse. All
close
up.
sample, where
For the New York
supervision
prolonged supervision, but
*45
unthreatened,
availability
remained
community. Only methadone-main-
most effective motivation for abstinence
require
programs fail to
the ad-
tenance
illegal;
most
was that narcotics were
prohibiting
to work as well as
dict
super-
potent
compulsory
treatment was
drugs.
provide
All
substi-
use of
some
Thus,
is followed
vision.
if the addict
efficacy
for narcotics. The relative
tute
time,
kind
of some
over
appears
external coercion
of these three treatments await scientif-
facilitating
in
a critical variable
major
comparison. Hopefully ic
in contrast
to
abstinence. This is
working
now
with addicts will
centers
sociologists like Linde-
both of
views
recognize
and
such studies
conduct
profes-
smith and Chein and the medical
years
follow-up
inade-
or 2
will be
1
quate
of
who, encountering
large,
sion
superior.”
one is
to evaluate whicli
problem
point
of addiction at one
Twelve-year
Vaillant,
correctly
quite
Fol-
time,
A
G. E.
—that
conclude—
low-Up
punishment per
Narcotic Addicts
York
is no deterrent.
New
se
probation
province
parole
important
to assess the
and
an
It is not our
as
weapon
society’s
system
probation rein-
and effective
arsenal
value of a
against
jail
by
That there
And stu-
narcotic addiction.105
forced
sanctions.
vitality,
problem
support
dents of the
to
its
most hostile
evidence to
some
compulsion,
through
addicts,
establishes
even
civil commit-
least for some
grounds
ment, acknowledge
supervision
legal
not war-
prohibition
that such
necessary product of the
inducing
ranted as
has a
substantial effect
is,
opinion.
If
medical
consensus of
compul-
approach
abstinence.106 The
indeed,
approaches
three main
one of
supervision through probation
sory
can-
along
methadone-
with
value—
rightly
be excluded.
therapeutic
maintenance,
communi-
and
experiment
need
there is
ties—and
Significance
prior
pro-
conviction
to
study, judicial
is not
interdiction
supervision or
bation
detention
warranted.
knowledge
concerning
available
increasing
to
recourse
There has been
to im-
narcotic
is not such as
addiction
developing
experience and data
—and
grounds
pel
intervene, on
the courts to
programs
about—treatment
probationary
justice,
require
g.,
blocking drugs, e.
substitute
supervision met
civil determina-
be
cy-
(itself
“opiate”)
methadone
commitment,
compulsory
tion and civil
pres-
“antagonist”).102
(an
At
clozocine
being preceded
and to forbid its
being
ent,
programs are
maintenance
“conviction”,
accompanied by
a threat
exclusively.104
though not
stressed103—
prison
case of
violation.
on ef-
be focused
must also
Attention
fol-
community supervision and
fective
Prettyman Com-
1. When the
styles,
supporting life
low-up,
secure
civil
a federal
mission recommended
including
performance condi-
e. work
“provide
an alter-
statute
commitment
tions,
treatment
for both
that motivate
handling
federally
native method
abstinence.
offender,”107
it selected
convicted
(Califormia
describing
expert
of conviction first
model
voices
There are
prose-
plan),
preferable to deferral
supervision
form
as
compulsory
enlarge-
(1971),
I,
calls
Sess.
Treatment
to Out-
The Relation of
effective
Am.J.Psychiatry
for a more
come,
for research
ment
agent.
may
experience
addiction control
heroin
The described
be influenced
the circumstance
appears
that maintenance
Id.
“It
many parole
officers
in New York
though
may
prolonged
either treatment
workers,
system is
trained
social
medication
discontinuation
ultimate
by psychiatry,
significantly
influenced
may
possible.”
maintain considerable
and the officers
Columbia,
of-
104. In
District of
encourage parolees
personal contact and
Agency su-
Treatment
ficial Narcotics
psychiatric
re-
seek
treatment.
Such
pro-
large
pervises
maintenance
scale
inforcements
probation
should be available
supports
gram.’
methadone
it also
generally,
But
parole officers
transition,
ad-
and motivation
training
provided
are devoted
funds and
dict
abstinence.
society’s
needs.
reports:
“Neither
102. An informed voice
Rasor, The
R.
Vaillant and W.
105. G. E.
produced personality
deterioration
Compulsory Supervision
Role
fearfully predicted,
been
had
Addiction,
Fed.Probation
Treatment
prove
useful,
both
each
continue
aiding
way,
in its
the rehabilita-
own
*46
people.”
opiate-dependent
Bass,
Dr.
Kramer,
tion of
E. Bere-
A.
J.
R.
106. J. C.
Hearings
Kramer,
cochea,
the
before
John O.
for Addicts:
Commitment
Civil
Crime,
Psy-
Program,
“Narcotics
Select Committee
Am.J.
The California
Research,
chiatry
and Treat-
Rehabilitation
quoted
p.
1971),
(June
ment”
as
Report, supra
H.R.Rep.No.92-678,
71.
Cong.,
1st
in
92d
e
avoiding
non-coop
in
event of
(New
se-
detention
the
plan),
in
cfiv
cution
York
eration,
already
on a sentence
problems
if needed.108
whether
trial
rious
celerity
by
passed,
the
a
provided for
with which
as enacted
NARA
While
may
Congress
previously
im
required
deferred
be
alternatives,
sentence
both
hearing
court,
following
posed,
by
engaged
a
the
in sales
certain
that
addicts —
delay
problems
per-
other
at
the
their
without
solely
secure narcotics
to
jury
only
of the un
Ti-
on trial
a
under
tendant
before
sonal use—be committed
derlying
problem
offense.
the
And
tle
after conviction.
II
by
Prettyman Commission
the
identified
report
A
the
recent
notes that
D.C.
experience
to the actual
has contributed
Agency’s program
Narcotics Treatment
NARA,
I of
Title
under-utilization
Outpatient Abstinence,
a low
recorded
II
preferring the Title
prosecutors
only
performance
rate,
re-
15%
approach
undermined.109
lest controls be
months,
maining
whereas
in it
six
signifi-
programs
present
of available
the same
showed
state
NTA
the
Given
cantly
knowledge,
given
com
when used
ab-
need for
results
the
better
patients
reha
cooperation in
NTA
stinence
referred to
pulsion to reenforce
Department
treatment,
cannot
court
the
of Corrections.
bilitation
policy
analysis
“Programs
gainsay
of a
connect-
permissibility
comments:
the
system
criminal-justice
legislature
there be
the
the
ed with
choice
jail
usually
spur
is ordered.
to
if
treatment
have the
of return
before a
conviction
minimum,
fails,
establishes,
patient
a clear
course.”110 What
the
This
signal
prompt and effe
the
more
to
addict
need be said?
GAO,
Department
108. Id.
letter
to
Justice
pro-
problem
is raised
the
A serious
June
1970:
may
why
many
ad-
York law
the New
be
the
vision.
reasons
[There]
civilly
Attorney may
has been
com-
offender who
not want
dict
United States
prosecuted,
example,
being
if
mitted
lieu of
Title I.
For
to utilize
unresponsive
proves
to or unco-
the
is not
who
he believes
individual
may
likely
treatment,
program,
operative
returned
benefit from the
to
prosecution
orig-
get
the
into the
court for
efforts to
the individual
may
futile;
additionally,
charge.
program
If he is returned to
inal
time,
lapse
charge
pending
after a
held
court
considerable
since the
may
abeyance
behalf
of the evidence on his
on the individual
much
conditional
program,
dissipated,
successfully completing
no
and there is
assur-
have
may frequently
as fair
trial
when the
that he will
arise
ance
receive
situation
charge
successfully
if
been
have
had
does
com-
would
individual
Although
promptly prosecuted.
plete
program,
under
but because
plan,
time,
passage
must
At-
the New York
addict
the United States
procedure
try
torney
consent to this
circumstances
is unable to
individual
underlying
charge.
arise in which
could be contended
reasons,
processed
addict,
un-
were
various
48 addicts
effectively
Inquiries
waive his constitu-
21 federal
did not
der Title I.
major
rights.
It
be best
avoid
indexes of
narcotic
tional
districts with
problems by proceeding
showing
addiction,
use or
immediate-
revealed 14
no
these
judicially
ly
guilt
only
were
of Title I. Yet
cases
innocence
one use
Attorney
outset,
reported by
at the
the United
determined
under
States
partly
because
California law.
the District
Columbia —
(forgeries and
of non-violence offenses
Report
Congress by
See
theft)
elsewhere are tried
State
Comptroller General
“Limited Use of
courts,
also because
United States
Programs
Federal
Commit Narcotic
Attorney
judges
Dis-
in that
and Federal
Addicts for
and Rehabilita-
Treatment
willing
offer
were more
trict Court
(No.
tion,”
B-16403(2), Sept.
1971)
of rehabilitation.
Id. at
chance
(hereinafter
Report). During the
GAO
DeLong,
years
program
and Rehabili-
V.
Treatment
first
three
J.
tation,
Dealing
Drug
I,
Abuse 198
Title
With
addicts were committed under
Survey
Paper
Drug
compared
per
(Staff
3,No.
Abuse
with 900
estimate
annum
Foundation, 1972).
passed.
Project
Appendix
the Act was
of Ford
before
Report,
II
contains a
*47
supervi-
Furthermore,
community
permit expungement
2.
or
fol
conviction
extent,
rests,
lowing
in
sion
to a considerable
successful
treatment.115
Such
legislature
expungement
any possi
police.
help
the
The
hands
avoid
might reasonably
that,
stigma
bility
in
our
attached
conclude
the social
society
stands,
police
might impede
more
rehabilita
are
ex-convicts
vigilant
compli-
likely
they
requiring
tion
in
return
be
addicts when
community.116
parole
a
can
ance with
officer who is exact-
A
result
similar
ing payment
society”
accomplished
age-eligible
misde
a “debt to
owed
for
by
man,
by disposition
a
doctor
than with a
meanants
under the Fed
convicted
further,
worker,111 and,
Act,117
or
eral
social
Youth
which
Corrections
genuine
provides
help
probation
more
addict will be
treat
as well as
through supervision
pro-
confinement,
obtained
ment
in
has a
parole officers,
provision
they
expungement
bation and
because
of convict
likely
to be
ion.118
more “hard-nosed”
employment,
demanding, requiring
with-
law,
Section 404
the 1970
21 U.S.C.
objec-
accepting
out
the evasions and
goes
(1970),
provides
further and
§
tions,
unsuitability
discomfort,
or
expungement
as to
misdemeanor
may
persuasively presented
possession,
any “adjudica-
without
by
avowedly
person
treatment
aides
a
notwithstanding
guilt,
tion” of
a verdict
only “sick.”
plea
guilty,
in the case of a first
person
narcotics offense
under 21
foregoing
says
8. The
there
complies
who
with
conditions of
place
probation
be a
after conviction.
probation order.
deny
It does not
value
considerable
pre-trial
leg
diversion,113
problems
of other
There are
4.
difficult
relat-
conviction,114
stigma.
responsibility
islative models that avoid
supra
Rasor,
agencies
111. G. E. Vaillant and R.
crime be diverted
W.
to treatment
possible point.”
note
“at the
earliest
Commit-
tee members asked whether he favored a
“
officer,
parole
112. Ibid:
often
[The]
pre-indictment probation program similar
degree
work,
help
in social
works to
operated
Philadelphia.
to one
“I would
punish. However,
and not to
unlike
definitely support that.”
doctor,
parole
officer can often find
Special
The American Bar Association’s
‘patient’
job;
his
unlike the social work-
program
Committee favors a
under which
keep
er he can
‘client’
demand
eligible
plead guilty
addicts would
to a
”
job
.
charge
then,
after six months of suc-
Compare Zinberg
supra
and Robertson
treatment,
cessful
be allowed to withdraw
43, describing
play
note
at note
guilty plea.
later,
their
Four months
if
Daytop Village
the inhabitants
treatment,
the addict remained in
his case
Island,
Staten
a residential treatment cen-
would be dismissed
the court. For the
addiction,
produced
ter for hard-core
operating procedures prescribed by the
public.
acted
order to educate the
Superior Court,
D.C.
see fn. 130.
“Early
play
an addict has a
g.,
screaming, writhing
syndrome
I of
E.
Title
NARA.
withdrawal
jail. Later,
Daytop,
after admission to
115. E.
II of
Title
NARA.
process.
he starts the same
The others
group
it,
in his
tell him to
Ausubel,
come off
hand
Compul-
116. D. P.
The Case for
broom,
him a
sory
and indicate that he works
Closed Ward Treatment of Narcotics
Clearly,
or leaves.
he is
Addicts,
still uncomfort-
(2d
31 F.R.D.
Cir. Jud.
;
able
contrast
he
Conf.1961).
between what
experiences
Daytop
and what
ex-
§
18 U.S.C.
This
perienced
jail
key point
is a
applicable
misdemeanors, in
held
play.”
Har-
States,
U.S.App.D.C.
vin v.
United
113. An article
William L. Claiborne
(en banc, 1971).
H95 symptomatic appropriate individu- serious emotional dis- assistance purpose primary en- tress. al case. The laws
forcement of cannot We know the ultimate fate selection detection and should this or other Commission’s by persons who benefit of those recommendations. But this Re- Second prevention services. treatment port, which covers like heroin and part cocaine, is on- of the direction of legal Specifically role by going legislature, reconsideration system drug-dependent issue expert estab- here commission persons, concludes the Commission key assump- statute, lished (at 274): follows opinion. of our tion drug-dependent persons For those consump- apprehended who are D. Constitutional Considerations offenses, including posses- tion-related supra, California, In Robinson v. following sion, dispositions one of the Supreme held a Califor Court constitutionally re- in our view making mere nia statute addiction mandatory: quired and should pun “cruel and unusual crime inflicted (a) pro- to a diversion treatment Eighth ishment” violation gram or Amendments. The Court Fourteenth might said, however, im that “A state pro- (b) to a treatment diversion sanctions, example, pose gram en- but before after conviction manufacture, against the unauthorized judgment try by the court. posses sale, purchase, prescription, comply Failure an individual its borders. sion of narcotics within the conditions of treatment *52 ”131 emphasized, at . The Court return court would result in his to the that, 665-666, in the case 82 S.Ct. sentencing. prosecution In that for event, or it, jury had been instructed before the subject punish- he to should be though they the even that could convict by up year imprisonment, ment to one used narcotics never defendant had up a fine of both. $500 State, the the and overturned within space in this it is not At this time and sta- on an as based addict’s sentence one the dis- Commission’s feasible review standing alone, for the reason tus integrate depth, in much less to cussion punishing a this would be tantamount analysis opinion. It in this it into the disease, and indeed “an illness which generally observe suffices may innocently involun- be contracted large commentary in Commission’s tarily,” at at U.S. S.Ct. congruent entirely, part, if with and stated: opinion. analysis of An index im- state hold that a law We congruence ob- is the Commission’s prisons person as a a thus afflicted (at 275): servation though criminal, never he has even drug any narcotic within proposed touched re- The Commission irregular guilty of or been be- State of offense tention there, un- a inflicts cruel symbolic importance, behavior its cause of its punishment of though violation val- usual practical limited deterrent * * * legitimate Amendment. Fourteenth ue, role as mechanism its a prison day a per- one would be channelling dependent Even punishment for the identify- and unusual cruel and for into treatment sons having cold. a common ‘crime’ use others whose present (em- California was that defendant at 1419 131. 370 U.S. at S.Ct. narcotics, addicted phasis added). while punish- pointed out, authorize which would As Justice Harlan propensity, and in effect 678-679, for a ment 82 S.Ct. at U.S. at act.” a criminal jury solely proof to commit “bare desire could convicted 11% Texas, supra, rea, mens or to Court “some sort of in- In Powell v. define making sanity
upheld public drunken- test terms statute constitutional developing Marshall an- Mr. Justice ness a crime. freeze opinion dialogue productive judgment, in an nounced the between law and psychiatry rigid Chief Justice Warren into concurred constitutional simply yet He Black and Harlan. mold. It is and Justices the time to court not assert could write into the stated that Constitution formulas meaning, categorically of the criminal cast relevance, use in terms whose let alone dealing pub- yet process means is not doc- clear either to drinking problem aspects lawyers.” lacked tors or to lic 88 S.Ct. rationality. to the uncer- He referred identity cause, tainty nature, as to the opinion If this had a ma- been the disease alcohol- and treatment jority, prob- no shred of a constitutional reality that there ism. Faced lem would confront us. The criminal no effective method treat- known recognizes knowing posses- law that a ment, any event in and in view act, supra. sion see note is an text at requirements of facilities and enormous manpower implementation of a uncertain medical authorities are program addiction, “it is difficult rehabilitation say as to the causes narcotic present that the context crim- hypotheses propensity even lacking utterly process in social inal to addition are confronted ever- U.S. 88 S.Ct. at value.” 392 changing popula- nature of the addict Moreover, possibility of de- gen- importantly, tion. Most there is no significance be nullified. terrence cannot erally accepted cure. ABA Commit- Eighth Report, Amendment, supra, places tee hope management main As to the through distinguished programs on the Robinson Court ground punishment use of narcotics—methadone-mainte- there was no replacement status, nance as a mere but for the ac- addiction—to for a Powell consequences being public drunk on cabin the anti-social while tus reus— recog- Report particular heroin addiction. But the occasion. The Court was (at 57) and nizes from the record that methadone mainte- unable conclude range knowledge, might nance be effective in the medical “the current state *53 addicts, small- . suffer of and that “far alcoholics . . that chronic 25-50% by percentages” compulsion to er the can be reached such irresistible from an get public programs other that treatment discussed— and to drunk drink including utterly detoxification, they to control their are unable abstinence programs performance of with coun- either or both these civil commitment of seling input; therapeu- psychiatric at at 88 S.Ct. . . .” acts . antago- (Synanon); and to articu- tic communities And the Court declined general of doctrine nists.132 a constitutional late early side, analysis faces 233. The author low at the 132. Another released loom, slight problems as when and the that like conclusions: 1972 reaches programs. small maintenance moves from methadone the main See success for cure programs, He is con- DeLong, at 230. at to mass V. 198: J. open choice programs an methadone cerned that [detoxification cen- “[T]hese people encourage communities; may ters; therapeutic run the risk to out- they people be- patient help now avoid of that addiction abstinence] a few great people the the of unattractiveness and more to some de- cause deal addict, very life-style gree, at 233. heroin are but the failure rates high”. is beneficial is Methadone maintenancce maintenance ana- Methadone employment “helpful modality, lyzed is reduced that crime treatment by “forcing yet just helpful heroin [the him increased but is not known.” how being a methadone to switch to addict] Id. at The considers that author at 222. that addict.” Government estimates 25-33% helped by will be is methadone feet the constitu- in most context of states.133 Justices overall Warren only problem into ac- must also take Black subscribed not to Robin- tional penal affirming (a) acceptance opinion son to of a also count but compulsory civil Powell’s conviction based on sanction to enforce an actus addicts, reus. not- commitment for narcotic withstanding present at that success Justice White’s statement must be modest; (b) the rates at best read framework of his concerning already developed material uphold votes to the convictions of both possible penal sanction value Powell, Robinson his state- probation conditioned —when used with punishment ment for an offense setting, pro- In this on treatment. can be related the exercise of at will available bation-with-treatment previous some time —at least if the will- sentencing authority, Justice Marshall’s ed acts were not in time.”134 “remote penal opinion supports sanction for punishment This indicates for the knowing possession of ad- narcotics possession justified offense dicts. constitutionally, notwithstanding claima opinion of turn to the Justice present We capacity, lack of control White, the fifth member of Powell not-too-remote choice reference to some particularly pondered court. We of the addict eschew rehabilitation incapacity significant- Robinson’s his statement This is treatment available. (a disease) punish approach ly neces- addiction different the standard sarily incapacity punish insanity defense, means an as ex- of e. rule, possession emplified or use of nar- addict the ALI which fo- punishing cotics, capacity the same as which is at the time cuses on lack offense, “under a name.” for addiction different the conduct. control See U.S. 88 S.Ct. revealing ap- of Justice Also White’s reflected, Watson, court without concluding passage, proach 392 U. resolution, implication po- of that 553-554, de- that a S. S.Ct. sition. by the mere ex- fense is not established noted, degree,” already compulsion As Robinson “to some said ex- istence pressly punish pur- the state could made a defendant where the drug. showing chase avoid a narcotic “unable” to that he was just Court was There doubtless aware made criminal.135 condition possession provision part plain implication such a that defendant would Drug proof. Uniform Narcotic Act in ef- have the burden of Douglas, joined Amendment, Justice I adhere who implicit opinion, concep.t Robinson added a of “condition” concurrence noted, opinion . . . The Robinson. U.S. S.Ct. *54 subject proper inquiry of is whether that the Uniform Act does not punish brought “con- about addiction. volitional acts those are and whether acts dition” said, 134. Justice White at 392 U.S. 550- proximate sufficiently “condi- to the at 2163: 88 S.Ct. impose permissible it to tion” for to be By precluding criminal conviction for penal “condition.” sanctions on [narcotic such a addiction] “status” upheld dealing the conviction White [in the Court was Justice Robinson] assuming brought Powell, he “established a even with of condition about acts application becom- have resisted from that he could not remote time of contemplated, . 1966.” “. on December . the criminal a drunk sanctions nothing perma- relatively that more than showed condition was Powell which degree compelled duration, to he to some nent a condition of was and great significance time magnitude drunk at the that was and drink and he showing that no of arrest. made his He terms of human behavior and values. * * * stay necessary off the streets he to dis- unable If it were night question.” at tinguish on U.S. and “acts” “condi- between Eighth 553-554, purposes 88 S.Ct. at tions” of Taking opinion and sessment Doctrines Justice White’s Pertinent of Responsibility whole, a we conclude that Constitutional votes as approach of undercut Protection does not Justice Mar- per- opinion on the constitutional shall’s that We are aware in Watson it was holding missibility ad- even narcotic process indicated pos- dicts for the intentional action session, might integral- inapplicable to acts as be recognition of a de- without new ly of addiction as related status psychological dependence fense possession, and that issue de- verifiability poses problems difficult presented might fense on the merits be widespread To the extent that use. through during the motions before and contending dependence a de- those trial.136 ready accept un- fense are convictions provision statutes, without der state These references to the merits were defense, plainly their submission such a tentative, most and were intermeshed requirement, even lacks constitutional questions, with non-constitutional though may permeated consti- it pertinent history legislative tutional discussion. might earlier statutes show that Con- gress never intended “the non- to reach doctrine is concerned Constitutional trafficking possessor”137 or addict pertinent general fairness. “non-trafficking possessors personal increasing (a) availa- context combines addicts, signif- use.”138 Even as bility in the com- treatment choices opinion, icant that sustained proba- including munity, “treatment” availability conviction, on focused problems tion, (b) awareness conviction, NARA treatment after as drug dependence defense on a attendant primary consideration, final albeit not a (difficulty required of verification if solvent of the claims merits. distinguished psychic incapacity significant passage, opin- the Watson unwillingness undertake available being identifying treatment, difficulty ion dif- stated sentence was difficulty types addicts, ferences limiting vacated and remanded— to the few rather the defense [appellant] with directions that he etc.). many, combined In this regarded eligible resentencing than context, does not constitutional fairness disposition for non-criminal under probe compulsion the addict's mean Act. Narcotic Rehabilitation Addict determine, alleged compulsion represented Amicus us itself has precisely and on what basis part when . that this action on our depend- ap- for use large made a choice when “would obviate measure” ignored community’s pro- ent, pellant's problem.139 gram Columbia, (in the District Watson did not account—in- take into voluntary commitment, also deed the of—the court was not advised multi-modality programs, includ- NTA’s legislation prospect subsequent maintenance). ing methadone would misdemeanor make permit fol- to be conviction Problems
E. Current Resolution of Watson, As- even NARA Further lowed treatment without Noted U.S.App.D.C. too, aware, 439 F.2d 138. 141 that conscientious We judges sought grapple re- district *55 implications flectively of that with the U.S.App.D.C. 347, at 141 439 F.2d 139. approach. E. States v. Lind- United States, Bailey 454. See also v. United sey, (D.D.C., 1971) F.Supp. 55 324 cert, 1, (5th 1967), de 4 F.2d Cir. 386 Ashton, (Gasch, J.) ; v. United States nied, 20 L.Ed. 88 392 U.S. S.Ct. (Gesell, F.Supp. (D.D.C.1970) (1968), of in 15 Wat cited note 2d J.). provisions indicating son, that NARA’s as required U.S.App.D.C. in extension of F.2d at caution 137. 141 principle of Robinson. 452.
H99 through provision commitment, permitted of for bation and conditions treat- probation. of a condition ment. treatment as probation, flexibility The and sus- put thought The has been that we pended may (a) sentence, serve to rein- enlarge on common law
should
defenses
for
motivation
force
addict’s
rehabil-
incapacity
psychic
reach
(b)
protect
by
itation,
society,
and
we
In Brawner
considered
addiction.
ensuring against any hiatus between the
diametrically
proposal,
oriented
process
termination
the criminal
and
abolished,
insanity
med-
be
with
defense
equivalents.
civil
the institution of
disposition
for
ical
reserved
overview
advisedly;
“equivalents”
term
used
guilt.
proposal
not
noted that this
We
any widespread
compulsory
recourse
journals
appeared in
had
take
civil commitment must
account
in comments of re-
but been endorsed
increasingly
with
voices
concerned
judges.
this
We concluded that
flective
portended by
liberty
threat
actual
common law doc-
from settled
turn-about
problems are un-
confinement.140 The,
and
will
trines
on mens rea
free
based
statutes,
by
derscored
civil commitment
judicial fiat but for the kind
was not for
provide
law,
no maxi-
like the D.C.
legislative
reexamination that could
in
detention,
mum
as inheres
such
a sen-
by
accomplished
devotion of
re-
be
tence, and
for
detention
authorize
sources.
duration of “treatment.” Nor can the
commitment,
problems
compulsory
Similarly,
think it
we
should be
aptly
detention,141
hybrid
fi-
termed a
be
legislature
on whether to
focus
“treatment”;
nessed
name
expand
theory
insanity
de-
evading commitment,
penal sanction for
psychic
fense so as
add a defense
elopement,
likelihood,
in all
extends
incapacity from
addiction.
cooperate.142 Moreover,
failure to
verifying incapacity
difficulties of
are
pervaded
doubt,
all
field
about
significantly greater
posed
than those
yet known,
is certain
is that it is not
by
insanity
And
defense.
identi-
many
addicts,
how,
whether,
if not most
drug depend-
fication
the defense of
extent,
or to what
successful treatment
concepts
ence with
of mens
and free
rea
A whole-hearted com-
be achieved.
by
proposed
will is undercut
its
limita-
mitment
commitment
to civil
must
simple
tion to
offenses of
tempered
even now
with awareness
use.
sarily
this
fiat does
That
neces-
this is
“uncivil commitment”
sometimes
policy.
mean it is unsound
How-
anxiety
that overhead hovers the
ever,
poli-
kind of
is the
choice of
meaningful
detention unadorned
appropriately
cies in
tension that is
treatment.143
here,
when,
the legislature, at least
legislature
engaged
continuing
knowledge
The uncertain state of
reappraisal
addiction,
field,
flexibility,
of narcotic
need
supported
integrated approach
“unanticipated
underscored
find-
large
ings”
survey
“ghetto”
funds for
research
rehabilita-
of a
Bed-
tion,
significantly,
has,
pro-
ford-Stuyvesant community.144
restored
The sur-
Kramer,
121; Aronowitz,
may,
course,
140.
“He [the
143.
addict]
Addicts,
protec
Civil Commitment
of Narcotic
confined
or for the
for treatment
(1967).
Douglas,
society.”
67 Colum.L.Rev. 405
tion of
Justice
con
curring,
California,
supra,
Robinson
Packer,
H.
The Limits of the
tained a to search warrant programs, we note that foregoing release For work confused The is not to be 167. custody prerequisite community is a “full minimum sim- residential centers Department Justice, cases,” provided pliciter, apparently in all S.U. Prisons, An- parole pre-release “Questions by Bureau the 1970 law for (mimeo- adaptation situations, About AVork Release” swers but rather grapli), custody of NARA. We under Title II note that the Bureau of Prisons further 2(a) (1970). § 1. 18 U.S.C. possibility in of these mind the of use capsules empty capsules, full 67 De- 2. short 174 centers for commitments. U. S. large quantities heroin, of loose partment mixed Pris- of Justice Bureau of the parapher- heroin, ons, and other heroin mixed The Residential Corrections Center: dated). Community, 2, (not nalia. in the 15
1207
an air of scientific literalness
It lends
III
legal
accuracy
purely
defini-
to a
recognize
I
the mental con-
in the
foundation
tion without
resulting
dition
from narcotic addiction
30
of life or science.”
facts
except
to crime
full con-
as a defense
the rule announced
formance with
impulse
defense
as a
Irresistible
Brawner,
U.S.App.
charge
rejected
v.
153
United States
has been
crime
1972),
(en banc,
D.C.
1209
deployment
Eighth
as
approach
drug
Amendment
this insensitive
to
addic-
making
a barrier
to California’s
tragically
addic-
tion
counter-productive.
is
anything,
Twenty years
rigid
tion
it must
a crime means
criminal enforce-
(1) Congress
logic
against
also
in
mean
all
ment
laws
addicts has
expose
brought
to
non-
country,
either did not intend
this
not
dramat-
a
trafficking
possessor
to criminal
organized
addict
ic
crime,
increase
in
but a
punishment,
(2)
so
effort
to do
its
harvest of street crime
in
unknown
our
unavailing constitutionally
history.
as that
See ABA
Special
Committee
legislature.”
the California
Control,
141 U.S. Crime Prevention
New
App.D.C.
Perspectives
F.2d at 452.
439
on Urban Crime
hoping
Yet
presses on,
the court
still
Today
rejects
the Watson
this court
day, somehow,
some
the criminal
a
rationale
holds that
non-traffick-
bring
sanction will
relief.
due re-
ing
With
pos-
addict
is a criminal because he
spect,
suggest
I
do bet-
law can
satisfy
sesses
his addiction.
suggest
development
ter.
I
my judgment
per-
stigmatization
of such
of mens rea
the common
law
has reached
criminals,
sons as
than
rather
treatment
point
where it
a
should embrace
new
disease,
of them for their
raises serious
principle:
who, by
addict
reason
questions
constitutionality,
con-
drugs,
of his use of
lacks substantial
ca-
trary to established common law notions
pacity to conform his
the re-
conduct
responsibility,
of criminal
not
and is
quirements
by Congress’
adopt-
law
be held
in
mandated
intent
Moreover,
legislation.
criminally
posses-
responsible
the relevant
for mere
(1970) (en banc).
Minn.,
F.Supp.
(1968) ;
in
record
United
parties
F.Supp.
Watkins, D.D.C.,
instant case was
both
made
States
fully mind,
F)
(1971) ;
(Form
with Watson
and therefore
under NARA is
18 U.S.C.
The NARA
received
4253(a)
(1970),
sentencing
judge
which states:
“Such
the time of
suitability
nega-
commitment shall
be for
indeterminate
Moore’s
NARA was
period
years,
way
any
tive,
of time to exceed ten
and Moore has not
sought
propriety
but in no event shall it exceed the maxi-
to raise
his re-
jection
mum sentence that could
as an
otherwise have
from NARA
issue on
Baughman
imposed.”
appeal.
been
See
v. United
Under all
re-
the circumstances
States,
Cir.,
(1971),
here,
attempt
expand
judge appellant’s request quite room was 10 to 12 refused small—about (Tr. 252.) Directly depth. jury in on this feet an instruction based bed, would, its principle. therefore, I reverse across the door was from long Appel- against the case for side far wall. this conviction and remand Beverly one Sherman a new trial. lant Moore and chairs, one seated in each about were edge Neither from of the bed. foot CASE STATEMENT OF THE I. anything in On the man had his hands. 29, During January prior the week Beverly, bed, a mirror in was front 1970, Daly and Larman of Officers pow- pile there of white on which was a Squad Metropolitan Narcotics Police consisting 1,854.5 milligrams of der investigation narcotics conducted an into right mir- mixed heroin.3 To the ror, trafficking Hotel, located in the Warren appellant’s chair, there in front of Daly Street, 1024 10th N.W. Officer on cover record was a cardboard album man learned from an informant quantity of there was a similar selling Crip heroin known as Green was and mixed heroin. Between the mirror hotel, in Room 15 of the and anoth- cover, new and there were the album “Jumbo,” man, er was identified gelatin empty capsules, and to 81 used January selling heroin in Room On capsules lay the left mirror 25, super- informant, the same under the A woman’s filled with mixed heroin. Larman, Daly purchased vision of and stocking coat over han- stretched a wire capsules Crip heroin in Green containing ger package unopened and an 15, following day Room a simi- and the syringes hypodermic and nee- about ten purchase lar made from “Jumbo” edge of were toward the far dles located Room 17. search Narcotics warrants pis- key Room 15 and a the bed. The Rooms were thereafter obtained for pillow. Both were found near the tol 62-66, (M. 69- and Tr. 17 of the hotel. placed and arrest men were under 71.) These executed warrants were containing capsules A searched. vial January 29. Officer about 7:05 on P.M. appel- of mixed discovered heroin was Daly the door Room knocked on 50-54; (M. pants pocket. Tr. Tr. lant’s identity purpose. and announced his 68, the sei- 136-141.) on 37-42, Based response, There and after wait- was no capsuled heroin zure of the loose ing about 15 he forced seconds capsules on bed and the found (M. open Tr. the door with foot. pocket appellant’s a four- discovered 49-50; 36-37). 12, returned Tr. count indictment4 was transcripts proceedings powdered contained 4 The various mixture 7% 180-182.) (Tr. are referenced District Court heroin. represents the follows: “M. Tr.-” ap charged that both 4. The first count appellant’s transcript hearing on pur Beverly pellant had and Sherman 1970, pretrial motions on October chased, dispensed loose and distributed -” transcript signifies and “Tr. capsuled the bed found on heroin pro- pretrial these of the continuation 4704(a). § U.S.C. violation of 26 February ceedings on 19 and they alleged re had second count itself, trial conducted ceived, conceal and facilitated concealed February 22, 23 and. heroin violation ment of this same third A search warrant for a narcotics Beverly trial, 174. Before § 21 U.S.C. hotel, room in the Room was obtained guilty pleaded indict to Count time at about same Officer Caron thereafter count was ment the second Squad, who been con- of the Narcotics had Only appellant was him. dismissed as to independent ducting investigation remaining charged Un counts. two Daly (M. Larman. Tr. that of 72- charged count, he was the third der 15-16.) Tr. dispensed purchased, having and distrib cap pres- merely contained in the tested uted heroin 3. The chemist quan- pocket heroin, in violation sules in his and not for the exact found ence however, 4704(a). tity estimated, present. count The fourth 26 U.S.C. He *66 April 13, 1970, charging appellant stipulated,8 with Government that at the time Act, the violations of Harrison Narcotics of his he arrest was to addicted heroin. 4704(a) (1964),5 26 U.S.C. and the Indeed, pre- in immediately § the weeks Act, ceding 29, 1970, Jones-Miller January U.S.C. § addiction his (1964).6 ranged capsules day, from 50 to 70 usually price capsule. per at a of a dollar litigation trial The before focused Hotel, Moore did live not at the Warren primarily appellant’s on motion dis to lived with his wife three about authority the miss the under indictment away. blocks He testified further this court’s in Watson v. decision put capsules he had never heroin into supra. Testifying States, United on this himself, and that the he sole reason was motion, explained appellant Moore night in regular question Room the using 15 on he in had on been heroin stated, purchase capsules the basis since 1946. He and to found his received, alleged explains he concealed and conviction unless the defendant possession the heroin facilitated concealment of to the satisfaction of the pocket jury.” 21 U.S.C. § his violation of The Jones-Miller Act has since been re- 4704(a) § : U.S.C. pealed by Comprehensive Drug Abuse any person “It be shall unlawful for and Prevention Control Act of sell, purchase, dispense, or distribute seq. (1970). et § U.S.C. 801 drugs original except narcotic stamped package original Appellant suppress or from also moved stamped package; Hotel, and the absence of evidence obtained at the Warren taxpaid stamps appropriate alleging for, probable from nar- cause insufficient prim particularity improp- shall facie evi- [a] cotic be insufficient of, pur- this subsection dence of violation of er execution search warrant possession person in whose suant was arrested. may be found.” same court denied motion without elabora- this (Tr. appel- 81), has since The Harrison Narcotics Act tion of its reasons Drug repealed Comprehensive pursue been lant has not to elected this issue appeal. addition, appellant Act of Abuse Prevention Control asked seq. (1970). 1970, 21 801 et the trial treat- § U.S.C. to commit him for court ment I under Title of the Narcotic Ad- 6. 21 U.S.C. 174: dict Rehabilitation Act of 28 U.S.C. fraudulently knowingly or “Whoever (1970). Appellant ar- §§ 2901-2906 any imports brings or narcotic into gued prior felony two his convic- territory any un- United States or disqualify him, tions should not since contrary jurisdiction, or der its control court in Watson had declared uncon- conceals, buys, sells, law, receives, or exclusionary similar stitutional rule any or in manner the trans- facilitates under Title II NARA. court portation, concealment, any sale of or request 89), appellant’s (Tr. denied being im- such narcotic after ruling assigned as error. ported brought in, knowing the same or Finally, appellant dispute does not the ad- brought imported to have been into produc- rulings verse motions for contrary law, the United States conspires grand jury tion of the and for minutes such to commit acts identity disclosure informant the United violation the laws of Daly led who Officers Larman States, imprisoned shall be not less than (M. 3-4; 89-91.) Warren Hotel. Tr. Tr. twenty years and, five or more than addition, precisely more than fined not There is some confusion as to $20,000. subsequent For a second or what when it Government intended (as stipulated offense determined under section that Moore was an addict. (c) hearing of the Internal Revenue Code At the on Oct. Govern- 1954), clearly stipulated, im- offender shall be ment counsel without prisoned qualification, not less than or more ten than to the element of addic- forty years and, addition, may (M. 15.) 22, 1971, tion. On Feb. Tr. $20,000. backtracked, however, fined more than the Government stating, willing stipulate on trial “Whenever for a violation of ad- “We are represents this section the defendant shown to diction insofar addiction possession taking quantity have or to have had of a of narcotics over drug, period years.” (Tr. 122.) narcotic such shall be Brief See Appellee deemed sufficient authorize evidence at 6-7 n. 12. *67 prior had come to to the arrest. The informant pocket use. He had for his own appellant’s aas name before never mentioned about 10 or 15 minutes the room Hotel, offi- police arrived, the seller in the the admitted Warren and was pre- B.,” who sold cer did not him the hotel a man as “3. see known nights during in- capsules He vious vestigation. the course him for intend- the 50 $30. night the Moreover, for counsel ed them home that to use although that, morning going stipulated to Government before work. the next transaction, completing “J. B.” had an addict for some Moore been After the years, Metropolitan Depart- to wait the Police and asked Moore left the room being knowledge placed him a traf- After ment had no as until returned. he 53.) (M. 71; 49-50, arrest, police, as told ficker. Tr. Tr. under Moore the you testified, Daly wait a “If Officer question to There also as was a big coming.” while, The of- man is the sell, intended rather whether Moore to however, apparently the ficers, declined capsules use, in his than the 50 found 59; (M. 27-44, 73- Tr. invitation. 76.) Tr. pocket. Daly Officer testified since that wise,” they nor- most are “street addicts cap- mally carry only Relying upon decision a number court's small this argued any he appellant was Watson, that sules at one time in order avoid to non-trafficking posses- felony (rather charge simply addict than a misde- being meanor) should therefore if avoid the court arrested and sor that to Although Daly on the either the indictment robbed other addicts. dismiss ground possess- he under which that the statutes had never encountered an addict charged apply or, ing drugs if him not his own who carried was did for use application they capsules, apply, he admitted that that such more than did punish- non-selling might do so. unusual some addicts would inflict cruel and Eighth Moreover, Amend- ment counsel the Government in violation of the response stipulated was have habits some ment. The that addicts Government’s argued day First, capsules per prosecution excess of 50 that twofold. the day’s supply buy of the addic- some will an entire court’s discussion this carry supply one mere dicta time and tion defense Watson was judge. purchase. immediately binding them upon after and Second, the trial (M. 57-59.) 54-56; 49, 52, 54, Tr. Tr. event contended that it non-trafficking Moore addict. was testimony, At the conclusion of this evidence was Most of the Government’s appellant’s motion to the court denied point. devoted to this ruling dismiss. The was basis however, unclear, Daly, qualifying refused the court Officer after as accepted expert specify whether the Gov- in the conduct addicts of narcotic position despite traffickers, pur- explained ernment’s Watson and pose bed, never available defense of “addiction” is of the materials found on or, de- such including hand, other whether mirror, album the record cover, stocking the evidence of fense does exist but that trafficking over the stretched heroin, such hanger, this case was wire coat the “loose” found, gelatin appellant capsules, pre- at least empty could not was non-trafficking through law, pare a matter heroin for sale 110-111.) (Tr. 83-84, possessor. process cutting capping. addict known opened court trial (M. 45-49, 51-53.) Thus when the was clear Tr. It evidence trafficking operation still not ruled had on whether that a was de- be introduced progress, question addiction could remained on this buyer decision It deferred or the fense. question its whether Moore was could hear testimo- point, Daly until it seller. was less On this psychiatric ny Kaufman, a helpful. questioned by of Dr. Harold counsel When pres- defense; out of the witness for the appellant, Daly that he had admitted prior knowledge jury the start ence no trafficker of Moore as a day’s carry Dr. Kaufman ble such a full Government’s case. Since time, however, supply. Moreover, the defense also elic- was not available at this opinion Daly’s appel- proceed ited with the Officer the court decided 123-125.) (Tr. lant heroin —at in- addicted to least trial. repeated sofar as was a user pretrial proceedings, at the Officer As *68 drug. (Tr. 146-148, 166-169, 235-236.) Daly prosecution principal was the large Daly merely During part, re- the the Govern- course witness.9 presentation, ment’s the court the he earlier when heard iterated what had said testimony testifying Dr. out on to dismiss. Kaufman of the the motion again presence jury.10 he the events of The doctor indi- Thus described night explained question appellant in that cated that he on the and had examined periods ranging paraphernalia several found on bed ordi- occasions for narily cap heroin for from ten is used to cut minutes to two or three hours and (Tr. regard 135-145.) in sale. With duration. He had also examined relationship file, appellant police Moore’s to the Moore’s re- St. Elizabeths Daly bed, port case, on the testified in heroin other materials re- Officer and lating Beverly put appellant’s background. (Tr. both that Moore and had on leaving room, 194-195.) before he coats On basis this informa- tion, they appel- not taken was certain whether had Dr. Kaufman that concluded (Tr. 141, 234); clearly them lant from the closet an addict was within the meaning Organiza- that informant had mentioned Health World appellant Indeed, as a in the Warren tion trafficker definition of addiction.11 (Tr. 157-158); Hotel that he had no Moore’s addiction illustra- was classic knowledge prior components of Moore as traffick- tion of the five basic (Tr. 153); (1) overwhelming er he entered that when disease: desire to appellant nothing drug; room in (2) had his hands use the chronic return to 233) (Tr. ; use; (3) physiological dependence that no were run to de- tests such termine syn- whether there were traces of as evidenced the withdrawal powder (Tr. appellant’s drome; (4) psychological heroin hands dependence; 233); phenomenon that no tests run to deter- were of tolerance. (Tr. appellant’s fingerprints mine 199-201.) whether paraphernalia were on the found on the explained Dr. appellant Kaufman that (Tr. 152); finally, bed that he had years. had been an for over 25 addict register and, not checked the in- hotel (Tr. 196.) No matter what reason deed, had “no idea” whether Moore was may begin originally Moore have had any way (Tr. connected with Room 15 taking drugs, progressed “he in his 151, 224-225). ' addiction controls deteriorated * * * Daley helpless Officer further testified and he felt in the face they (Tr. since most 197.) addicts are “street wise” of his addiction.” rarely carry capsules Gradually, drugs more than 20 need take “be- gins cross-examination, one time. On how- to have an autonomous characteris- * * * ever, Daly admitted some addicts he tic and becomes a disease en- * * tity (Tr. was “aware of” had of 50 to 100 202.) habits itself As capsules per was'possi- day, addict, and that an “old” he so much “after testimony by chemist, night question. 9. There was also events of the His tes- explained piles timony who the two of loose consistent that of Of- 1,824 Daly. (Tr. 248-250.) heroin the bed contained milli- ficer grams 1,854.5 milligrams, respective- qualifications 10. Dr. Kaufman’s eminent ; ly capsules 3,650 the 67 contained milli- stipulated prosecution. (Tr. were ; grams capsules appellant’s and the 50 190-194). pocket 2,274.9 contained a total of milli- grams 1 1. supra. See text at note of mixed heroin. note 3 See infra. Larman Officer also as to testified taking defense, ever, experience counsel order to the kick but complete record, proffered of the in- the testi- become so much McKinley grained mony of part he is com- Mr. the Dis- of his life that Gore seeking up getting, trict of pletely out Columbia Narcotics Treatment bound get them, having hustling proffer, pursu- drugs, Administration.13 The living. invitation, ant to the He court’s was to the, no other reason for is dis- gusted effect that some have habits himself feels is a addicts ** capsules day per 197-198.) excess of (Tr. For failure such more appellant Moore, one have than 50 “there is solu- capsules is, problems, in their time. tion solu- one to all 203.) result, Mr. (Tr. also testified that tion.” Moore Gore would As voluntary appellant helpless enrolled in con- Moore had been “is exert ** program *69 compulsion NTA since Decem- methadone trol over this 9, 1970, (Tr. 197.) consistently forced to ber and that had He “would ob- be drugs drugs been on have to methadone since that time. His tain and since the * * * good, someplace he would chances for were be rehabilitation get there, compelled beginning and to be Moore was he would be at the problem. root of his illness.” addiction He of the nature of his had because increasing intake, been (Tr. 203.) his methadone longer and in the near future would no testimony, this conclusion of At 289-291.) (Tr. need heroin at all. ruled that Dr. Kaufman would court testify permitted not jury, before the Following proffer, the court ground apparently on the that ad jury refused to instruct the that a non- never diction can constitute defense.12 trafficking addict could not be convicted 206-214.) (Tr. Later, the Govern after under the appellant statutes under which ment rested, resumed case and then appellant’s had its charged. (Tr. 287, was 292-294.) court mo denied guilty Moore was then found on all four (Tr. judgment acquittal. tion for Acting counts of upon the indictment. 253.) Appellant then renewed his mo by appellant motion immediately made tion on to dismiss the indictment the ba after announced, the verdict was time, sis of Watson. de This court court committed him to the Federal simply nied the motion because there Danbury, Correctional Institution trafficking was sufficient evidence Connecticut, for determination of his go jury,” “to and added that it suitability for treatment under Title II ruling had reconsidered and its earlier of the Narcotics Addict Rehabilitation permit would now Kaufman to testi Dr. seg. Act of et § U.S.C. fy. (Tr. 267-269.) When trial re April 13, 1971, the On NARA following day, however, sumed the reported appellant staff was an ad position, court reverted to its earlier rul dict, physically psychologically both again once that Dr. Kaufman’s testi dependent heroin, was a suit mony was inadmissible the de able candidate for Thus on treatment. (Tr. fense of addiction unavailable. was 14, 1971, appel June the court sentenced 287.) lant to concurrent terms two to six years Thus, posture, for the violations of 26 the case in this U.S.C. § 4704(a) years and six introduce defense decided not to violations of 21 resting, further U.S.C. 174. Before evidence. how- appellant suggested, however, addition, counsel The court re- permit testify prior testimony court Dr. Kaufman to ferred the (Tr. 206-214, appellant insanity. motion issue of Moore on the to dis- rejected 288.) 218.) (Tr. The defense this alterna- miss. appel- tive, Dr. since Kaufman felt lant's did a men- addiction not constitute (Tr. 206). tal disease defect. II. HISTORICAL PERSPECTIVE plant The Sumerians cultivated the juice they order to extract a contemporary problem “gil” meaning “joy” called “rejoic — complex far-reaching, abuse both ing” primarily 17—and which used touching upon concep- our fundamental religious purposes.18 The medicinal public health, tions commerce and mo- properties “gil” “opium” as it —or rality. origins problem Yet the recog later came to be known —were quite ancient, prehistoric for since nized Egypt in Persia and about 1550 engaged energies man times throughout spread B.C. thereafter drugs search for new to make relentless the Greek and world.19 Roman writ .pleasurable and, life more at the same ings Virgil frequent of Homer and refer time, to alleviate the discomforts which ly “sleep-bringing poppy,” inevitably accompany human existence.14 Hippocrates other sources indicate Throughout quest, the use of opium recommended the use diversity has been associated with a treatment of diseases.20 numerous medical, literary, religious, criminal and patterns has, cultural widespread recent op The first incidence times, often reflected technical and iate occurred in India abuse when Brah priests scientific consumption advances medicine and min forbade of alco pharmacology.15 prob- fight our current citizenry, Thus rather hol and than *70 smoking lem is of all ban, opium reflection that has the switched as gone before, and it can be understood alternative.21 ini an China received its clearly only placed when in exposure opium historical tial from Arab trad perspective. century The ers the tenth A.D.22 therapeutic were virtues of Although origin precise of the use recognized by doctors, and soon Chinese opium past, is forever lost we medicinally it was used be centuries people now know that lower Meso practice opium fore the of recreational kingdom potamia, in the ancient of Su smoking appearance in the 16th made its meria, discovered the somniferous char century.23 largely plant (Papaver to the efforts of poppy Due acteristics of the European interests,24 Somniferum) early as 7000 commercial B.C.16 See, supra 17, See, g., g., Brown, Vogel, 19. e. at 14. e. & note D. Maurer V. Nar T. 6; Lindesmith, 17, 208; (3d supra at cotics and 1967) ; A. note Narcotics Addiction ed. Dai, Chapman, supra Drug 16, B. at 27-33. The note Addiction: Problem, 39, General 20 Fed.Prob. See, g., Terry Pellens, 20. e. M. C. The & (Sept. 1956). (1928) Opium ; Chapman, Problem 53-59 supra 14, at note 40. See, g., Ball, 15. e. Patterns of Nar- Two See, g., Brown, supra 17, Drug 21. e. note at T. cotic Addiction the United 6; H.Rep. 91-1808, Cong., States, J.Crim.L., No. 91st 2d &C. P.S. 203 Sess., (1970). (1965). See, g., Lindesmith, 17, supra 22. e. A. note See, g., Dai, Opium e. B. Addiction 208; Eldridge, at W. and the Narcotics Chicago (1970) ; D. & 27-28 Maurer V. (1962) supra ; Chapman, 14, Law 3 note Vogel, supra 5; Bell, Drug note at 40; H.Rep. 91-1808, Cong., at No. 91st Addiction, Drug 1; Abuse L.Rev. Sess., (1970). 2d Eddy, History Development The of the See, g., Lindesmith, e. The Addict A. Narcotics, Contemp.Prob. 22 Law & (1965) (hereinafter and the Law 189 Law). cited as The Addict and the See, g., Lindesmith, e. A. Addiction and Portuguese 24. The took over the lucrative Opiates ; Brown, T. 207-208 opium trade Arab Indian from the Enigma Drug Addiction merchants, displaced but were themselves by later, and, the Dutch the British. See, g., Vogel, e. D. & V. Maurer See, Law, supra The Addict supra Bell, supra 4; note note 194; Eldridge, note note W. 3; at 1. Chapman, supra at 40. publication time, smoking At the same opium in China swelled level of DeQuincy’s an Thomas rapidly proportions, and in 1729 to crisis Confessions of forbidding English Opium had a far- Eater in 1821 Emperor edict issued reaching stimulating read- interesting its effect opium.25 It is all traffic persons respectable primarily although that, edict decreed to note ers— experi- upper class—to the American strangulation for all retailers death DeQuiney’s opiates. non-trafficking ment with Most drug, users were of the drug orally, gen- disciples Throughout consumed the punishment. exempt from erally liquid “Laudan- form known as China and 19th centuries 18th (tincture opium), um” or sometimes ports sought desperately its to close gum opiate powder.32 Although trade, East opium British but the indulgence gradually became more com- ob- Company, then had India during era, yet mon it did not monopoly, to co- refused tained a virtual present problem propor- eventually of serious operate. led conflict This tions. Opium Wars 1839-42 finally legalized.26 was when trade turning point, however, came enthusiastically hypodermic sy- with the invention of the Opium used was (cid:127) ringe discovery, the American profession in 1840’s. This the medical century.27 throughout which facilitated adminis- the 18th intravenous colonies 19th tration of heightened Then, so as to achieve a in the first decade gave effect, impetus curiosity century, Sertiir- of William added brought chemist, about both medical and non-medical uses of morphine.33 ner, a German recognition result, War, separation As a Civil carnage poor opiate alkaloids.28 Sertür- with its wholesale first agent morphine, aptly battle, medical named the facilities on the field of ner god large-scale Morpheus, morphine of dreams.29 caused the first ad- after considerably problem Although diction the United States. the new *71 opium, physi- Army’s morphine potent The crude reliance on more than as pain-killer widespread reluctant first became so cians were at somewhat 1820’s, During morphine during period adopt addiction this to however, its use.30 increasing rapidly number came to be known as “Soldier’s morphine Indeed, non- persons its Disease.” more un- turned to one of the consequences fortunate of the war was medical characteristics.31 Law, See, g., Lang, See, g., 29. e. and the The President’s Crime e. The Addict 25. Blum, Report supra 23, 194; Mind- Commission Task Force note at Critique Drug Altering Drugs Dangerous Abuse: A Behavior: Narcotics and Drug Apologia, Narcotics, Abuse L. in The President’s Commission 449, the Administra- Rev. Enforcement and 453. Law Justice, Report: Force Task tion See, g., Eddy, supra 16, 30. e. note at 4. Drug 40, 41 Abuse Narcotics and See, g., Lindesmith, supra 17, 31. e. A. (hereinafter Force). note cited as Task ; Dai, supra 16, at 209 B. note at 34. supra 22, See, Eldridge, g., 26. e. note W. g., Lindesmith, supra 17, See, 32. e. A. 3; Law, supra note Addict and the at The Dai, 209; supra 16, 35; 194; 91-1808, at B. at H.Rep. note 23, at No. note Brown, supra 17, Sess., (1970). T. note at Cong., 6-7. 91st 2d See, g., supra Eldridge, 22, e. W. note See, supra g., Vogel, e. D. & V. Maurer 5; Chapman, supra 4; Dai, 16, 35; Chap at B. at note 14, 14, supra note note at man, supra 14, 40; Ball, supra note at at 40. 15, 203; supra Cazalas, note at Bucaro & 28, note at 16. Law, g., See, e. The and the Addict supra Eddy, supra XI; See, Vogel, supra at note note D. Maurer & V. 3-4; Cazalas, 6; Eldridge, at & Metha- Búcaro note W. note 5; Lang, supra 453; done : Treatment Control Narcotic Addiction, Drug King, Tulane L.Rev. Narcotic Laws and Enforce- Policies, Contemp.Prob. ment Law & large into opium of ex-soldier a new alkaloid of a class derivative of the creation —diacetylmorphine, commonly addicts, of addiction estimates referred high Initially, years four to as heroin.40 postwar ran basic char- drug population.35 acteristics of per this new were com- cent pletely ap- misunderstood. Since heroin epi- morphine As the effects of this peared symptoms to relieve the of mor- subside, began gradually newa demic phine withdrawal, it was hailed as a injected the American into element was drug morphine cure for addiction, and heroin large numbers scene rapidly was morphine substituted for immigrants entered who Chinese cough Many medicines and tonics. writ- great country canal to work on the pain-killing ers extolled the qualities of projects the mid-19th railroad century.36 drug assuring while readers that it opium practice of smok- The was free of liability.41 addiction previously ing, been unknown which had myth naive phine that heroin could cure mor- Americans, somewhat soon became exploded addiction soon after among vogue of San the demimonde finally when it was realized that spread rapidly thereafter Francisco and possessed greater heroin itself an even Initially, throughout the nation.37 potential morphine.42 addiction than up- practice primarily to the limited despite urgent, But if somewhat be- opi- per society and, unlike the strata lated, warnings profes- of the medical morphine who um eaters sion, gained heroin had a foothold and generally as victims were viewed stay. was here to vice, typical- opium smokers unfortunate ly “sporting rather were considered Perhaps the chapter most unfortunate 38 Gradually, however, the characters.” early history of American underworld, practice filtered down to practices abuse involved the vicious notoriety at- and the considerable patent medicine business late development caused tached to this early 19th and 20th centuries. These stirrings eventually to first of what was general curatives, which often contained pivotal public become attitudes shift potent narcotic, concentration of some time, a For the first toward addiction. were sold without restraint over the perceived link was abuse between pharmacies counters of and were used criminality.39 indiscriminately everything to treat major development began next simple angina headache scientist, Dresser, 1898 when a German *72 pectoris43 Through such wonder-work- modify morphine devised method to See, g., supra 40. Law, e. The g., Addict and the See, Nyswander, Drug 35. e. M. 23, XI; Cazalas, supra note at & Bucaro (1956). Addict aAs Patient 2 28, Ball, 16; supra 15, note at note at 203; Chapel Taylor, Drugs See, supra 22, Kicks, g., Eldridge, & 36. e. W. note Drug 4; Terry Pellens, 31, 52; Lang, supra 1971 Abuse at L.Rev. C. & M. note supra 29, 20, 72; Lindesmith, supra note at A. 453. at note 17, 214; H.Rep. 91-1808, at No. 91st See, g., Nyswander, supra 41. e. M. note Cong., Sess., (1970). 2d 5 35, 2; Terry Pellens, supra at C. & M. 20, 77-78; Eddy, supra 16, note at note g., supra See, Eldridge, 22, 37. e. W. note 4; 28, Cazalas, supra at Bucaro & note 4; Terry Pellens, supra at & C. M. note at 16. 20, 72; supra Ball, 15, at note at 203. See, g., Eldridge, supra 42. e. 22, W. note See, g., Lindesmith, supra 6—7; 38. e. A. at Rep.No.91 1808, Cong., note 91st H. — Sess., 17, 312; (1970). generally 2d Kane, 5 see at H. Opium Smoker America and China See, g., 43. Nyswander, e. supra M. note (1882). 35, 2; supra Chapman, 41; at 14, note at Clausen, Psychological Social and Factors See, g., Eldridge, supra 22, 39. e. W. note Addiction, in Narcotics 22 Law & Con 9-10; supra Lindesmith, 17, at A. note temp.Prob. 34, (1957) ; supra Lang, at 29, 213. note at 453. problem, Soo- ics incidence addiction as Mrs. Winslow’s medicants early proportions by thing Syrup, Cure reached crisis Dr. Catarrh Cole’s years opium, century.46 Mixture, of the 20th Estimates Perkins’ Diarrhea ranged morphine, were as to the codeine and cocaine number of addicts high although regularly million,47 as well more re spooned into children as two figure although potions placed And these authorities liable as adults. 100,000 symptoms usually for which at somewhere between relieved taken, they physi- 200,000.48 important note, It how they caused also were ever, problem dependence As existed in the user.44 as it then cal “drug facing grew quite public over their was from that concerned different patent today.49 habits,” manufac- limited medicine our nation With exceptions,50 cheap, readily responded nos- le with more these were turers readily anyone gal, addiction. de cures available to offered as trums use,51 “pusher” in reali- were sirous of their of these “cures” Yet most containing pre-World society ty preparations a different War more often I merely gro pharmacist, opiate, substitut- than not was the the user local so another, the result cer or confectioner.52 one ed frequently in- was addiction that his Moreover, addiction was not confined tensified.45 any particular class; it affect- social separate, segments society of these ex- the confluence ed most to some With although related, yet clearly tent, of the narcot most facets was disease 17, Lindesmith, supra supra 20, 536-539; supra See, g., King, A. note note at 44. e. 35, 34, 210; Nyswander, supra M. note note at 116. manufacture at Domestic Eldridge, supra 22, 1890, 2; at 5. note was taxed after Act at W. 1, 1890, 1244, 36, 38, of Oct. c. §§ supra 22, See, g., Eldridge, e. W. note 45. 620, (repealed 1970) ; its Stat. Eddy, supra 16, 5; at 3. at note importation prohibited entirely by 1909, the Jones-Miller Act of Act of eventually adoption urging of what 9, 1909, 100, 2, Feb. c. 35 Stat. 614 1914, Act of the Harrison was to become (repealed 1970). Report noted authors of the House Drugs 1906, In the Food and Act of opium-consuming nation are an “[w]e 30, 1906, 3915, 1-11, Act of June §§ c. Cong., day.” H.Rep.No.23, 63rd to (repealed 1938), 34 Stat. 768-772 Con- S.Rep.No. (1913) ; accord, Sess., 2 1st gress attempted regulate the sale of Cong., Sess., 2d 63rd drugs, adulterated or misbranded foods or Eldridge, See, g., note e. W. patent including the medicines discussed Report 7; Hynson, of the Com n. at 7 regulation earlier. State in this era was Habit, Drug Acquirement mittee on minimal, and that which exist was did (Nov.1902). A.J.Pharm. 547 largely H.Rep.No.23, ineffective. See Cong., Sess., 1, (1913) ; 453; 1st See, Lang, supra 63rd S. g., at note e. Rep.No.258, Sess., 3, 17; Cong., Cazalas, supra 63rd 2d note & Bucaro Criminality, Finestone, Narcotics ; Contemp.Prob. & Law Note, See, Lindesmith, supra A. note Outlook Problem: The Narcotics 210; King, supra 116; *73 605, Reform, 606 12 L.Rev. Buffalo for Ploscowe, Drug Some Basic Problems Cong., H.Rep.No.91-1808, (1963) ; 91st Suggestions Research, Addiction and for Sess., (1970). 5 2d Committee Bar Joint of the American problem Association and as it the American Medical a discussion today, 49. For Drugs, Drug Association Ad- at notes Narcotic *74 211; supra note at note cotics Bureau and the Act: 34, Harrison at 116. Jailing Sick, the Healers and the 62 “Suppression Opium 57. 736, (hereinafter of the Abuse Yale L.J. 737 Drugs Jailing Other Convention and Final cited as the Healers and the Sick). Protocol Between United States
1220 Although Fuey Moy, ed 241 U.S. the Act did not define these States v. Jin 658, (1916), precision, 394, doctors rea- S.Ct. L.Ed. 1061 terms with most sonably they held mere a small could continue to believed personal prescribe drugs amount of use did in order narcotics for these trigger gradual statutory simply presumption to effect withdrawal illegality. to sustain them in their condition.67 Thus as the thousands of addicts who following years immediately In the previously supplies had their obtained Act, however, passage the main of the grocers pharmacists from sud- local not whether addicts could concern was denly extinguished, found these sources rather, punished possession but, they desperation medi- turned in to the any way affected whether the statute profession help. profession cal responded willingly, right physicians prescribe and most drugs administer narcotic in order addicts were under the direct care and patients. previous As treat their addict supervision physicians.68 At ly noted,61 prior to 1914 addiction was time, morphine same free clinics were problem, primarily viewed as medical opened in more than in an ef- 40 cities and addicts could and often did receive fort to treat and control the disease.69 help profession.62 of that members although ap- And parently some of these clinics legislative history Based on of the subject abuse, were the med- suspect statute, there no reason to profession generally ical had taken Congress intended to alter meaningful steps first control- toward Indeed, specifically situation.63 the Act ling problem of addiction.70 provided “[n]othing contained in (a) apply: Unfortunately, however, this section shall dis this situation pensing largely or distribution was short-lived. Due to the ef- patient by physi aforesaid to a forts of the Federal Bureau of Narcot- ics, * * * pro of his passage cian in the course after within a decade only.” por practice profession fessional Other had Act medical been exemp qualified permanently tions of statute driven from the treatment tion, however, by requiring that of addicts. This result was achieved primarily “legitimate practice through treatment a series of court deci- “good “legitimate profession”65 interpreting of his and in sions the terms “good practice” faith.” faith” as used supra. See, g., Nyswander, supra 61. See text at note 67. e. note M. 35, 4; Jailing the Healers at See, g., Nyswander, supra 62. e. M. note Sick, 60, 739; Cantor, supra at note 35, 4; supra Vogel, at D. Maurer & V. Prob- Criminal Law and the Narcotics 51, 14, 7; Ploscowe, supra note at note lem, J.Crim.L., (1961) ; C. & P.S. 69; Sick, Jailing at the Healers and the supra 48, Note, at note supra 60, 737; supra King, note at 34, 116; Note, supra 48, Although figure may note at note be somewhat inflated, reported at 606. of 1919 it was being 240,000 approximately addicts were See, Cong., g., H.Rep.No.23, e. 63rd by physicians. treated for their addiction (1913) ; S.Rep.No.258, 1st Sess. 63rd Terry Pellens, supra See, g., & M. e. C. Cong., (1914) H.Rep.No.1196, ; 2d Sess. supra 34, 31; King, 20, at at note note Cong., (1914) ; 2d 63rd The Ad Sess. n. 44. Law, supra 23, dict and the at note See, Law, su- The Addict and the 3-4; Lindesmith, supra A. at note 136; Nyswander, pra at M. note 217; King, supra 118; note Jail supra 6-8; Terry M. note C. & supra Sick, the Healers and the 90-91; H.Rep. Pellens, note note at 737. No.91-1808, Cong., Sess., 91st 2d (1970). (1914). 64. 38 Stat. 786 70. For an excellent discussion of these 65. 38 Stat. 789 Law, clinics, su- see The and the Addict pra 66. 38 Stat. 789 at 135-161.
1221
cases,
the Act.
In the first of these
The inevitable followed. Armed with
States,
96,
language
agents
Behrman,
Webb v. United
249 U.S.
39 the broad
(1919),
217,
proper
subjects
treatment,
present misconceptions
for
such
the
of
addict and
possibly
and
Although
we cannot
conclude that a
his affliction.
addicts had
physician
improperly
traditionally
acted
or unwise-
been
of
viewed as victims
ly
purposes
or for
illness,
campaign
other than medical
an unfortunate
solely
dispensed
sought, quite
because he had
to one
successfully,
attach
them,
ordinary
stigma
criminality
course
and
to addiction. The
good faith,
portrayed
degen-
four small tablets of mor-
addict was
as a moral
phine
erate,
myth
or cocaine for relief of condi-
“dope-crazed
and
”
* * *
perpetrated.76 Grossly
tions incident
to addiction.
sex fiend” was
inflated estimates of the number of ad-
States,
5, 18,
Linder v. United
268 U.S.
circulated,77
pub-
dicts were
and as the
446,
449,
45 S.Ct.
* *
sicians to administer narcotics
to their
quantity
*. The enormous
patients,
“good
concepts
addict
drugs ordered, considered in connec-
“legitimate practice”
faith” and
recipient’s
character,
tion
necessity subject
varying interpreta-
enough
explanation,
without
seemed
tions,
given
pre-Linder experi-
their
prohibited
show
sales and to exclude
Narcotics,
ences with the
Bureau
professional
idea
bona
ac-
fide
slippery
most doctors feared to tread so
ordinary
tion in the
course.
path.
Indeed,
the Bureau
con-
itself
opinion
accepted
cannot be
as authori-
heavily
uncertainty,
tributed
to this
ty
holding
physician,
that a
who
response
not
was
its
to Linder
according
bona
to fair
acts
fide
wholly negative,
regulations
but its
were
standards, may
give
medical
never
directly contrary to that decision.
For
addict
moderate amounts
regula-
example,
long-standing
one of its
self-administration
in order to relieve
tions declares:
conditions
incident
to addiction. En-
forcement of the tax
no
demands
such
purporting
pre-
“An order
to be
rule,
if
drastic
the act had such
scription issued to an addict or habit-
scope
certainly
it would
encounter
narcotics,
ual user of
not in the course
grave
constitutional
difficulties.”75
professional
treatment but for
Following
might
Linder,
reasonably
one
purpose
providing
the user with
expected a sudden and
enthusiastic
keep
narcotics
sufficient
him com-
resurgence of
interest
medical
addic-
maintaining
customary
fortable
Unfortunately,
tion.
such
use,
prescription
within the
large-scale
case. Soon after Behrman a
meaning
Act],
and intent of
[the
propaganda
initiated,
campaign was
filling
order,
person
such
a [sic]
19-21,
74. 268
at
34,
123-124;
Terry
U.S.
medical the extensive criminal s among pro- public. these rate of addiction which ha Un so alarmed the appears fortunately, however, times public’s almost fessions greater under general standing many problem is, than that of this re uncertainty population,116 spects, confusion, individuals since these rife with ready example, mor- misconception. such as access to and cording ac For demerol, they phine frequently mythology es- popular the addict cape aggressor pay perceived the need exorbitant as a criminal prices supplies rape other for their that lead driven to and violence the evil ury Dept., supra 55; See, Force, Pro- Task note *81 Advisory Committee, supra fessional note 2-3; Advisory Commission, supra at 109, complete at 422. This reversal 79, 4; Ball, 15, supra note at note at pre-1914 period, from the when 60% 208-209; Lang, supra 29, at note 454. all addicts were women. See note 53 supra. See, Advisory g., e. 120. Professional Com mittee, supra 109, note 422. Heroin at supra. 114. at See text notes 34-35 commonly away is far used most addicting today. g., drug See, Task e. 115. For an excellent discussion medical 25, 2; Force, supra American note at addiction, Blum, supra 25, see note at Medical on Mental Association Council physical psychological 46-47. The Health, Report Addiction, aspects explained Narcotic of addiction are text Association, Narcotic at 129-159 American Medical *82 by still further the fact that addicts must Report See also of the President’s Com- pay, trafficker, mission on Crime in the District of Co- property may “fence” as well. Stolen (Appendix) (1966), lumbia 538 which re- bring as little as of the actual 20% categories veals of offenses— value when sold on the market. black rape, crimes, gambling— other sex and See, g., Force, supra 25, e. Task note there was no indication of addiction 10; Cong., H.Rep.No.91-1808, at 91st among sample a selected of offenders. Sess., (1970) ; S.Rep.No.91-613, 2d Homicide, robbery and offenders UUV Cong., (1969). Sess., 91st 1st a As than show less addiction. The re- 3% result, responsible addicts are for a sub- maining categories were of- narcotics proportion non-violent, stantial of all (86% addiction), larceny/theft fenses property-related (e. shoplifting, g., crime (16%), burglary (8%), (7%), fraud theft, pickpocketing fraud) and commit- (5%). and assault today. See, g., ted in this nation Report e. See, g., Eldridge, supra 22, Commission, e. W. note of the President’s 24-28; Chein, Gerard, supra 104, 564; Force, at I. R. Lee note at Task D. Rosenfeld, supra 25, & E. the Road to H 15-16 note at 10. often, igno- and, conceptions all too total staggering amounting lit- society — longer year.128 is no rance. But addiction erally each billions of dollars mystery was, learned have it once for we section, of this at the outset As noted concerning great years a in recent deal largely existing problem is narcotics our of the dis- and characteristics the nature gone before. that has reflection of all although many aspects of the And ease. past of which Yet there is little pos- problem obscure,130 we remain now policies proud, our have we can be body of information sess sufficient as individuals branded these unfortunate legal sig- appreciate the medical —and — society them and forced the outcasts of nificance addiction. deg- unnecessarily and to lives of crime however, widely accepted years, The authori- we most radation. In recent begun recognize in- tative definition of heroin addiction finally promulgated by policies, Health justice Con- the World and both of these Organization, gress the character- moved dra- which lists the courts have follows; istics of the matically disease as correct the situation. Sub- stigma- stituting for criminal treatment (1) overpowering an desire or need tization, suggest, I not eliminate will drug taking to ob- to continue remaining prob- all or most of the even means; by any the need can tain it step lems, represent fur- one but it does initially by drug satisfied taken hopefully ther will become toward what proper- morphine-like another with enlightenment age in our attitudes ; ties the addict and his disease. toward (2) tendency to increase dose
owing development toler- ance; III. THE OF NATURE
ADDICTION (3) psychic dependence on the ef- subjec- to a fects related is, problem of heroin addiction129 appreciation tive and individual possibly persons, the most most effects; those widely yet is- discussed least understood Indeed, popular physical dependence sue of time. no- our pres- requiring shrouded in tions of addiction are often its effects of the half-truths, mystery laden with mis- ence for of homeostasis maintenance See, g., Special Committee, supra Vogel, See, g., supra e. e. D. Maurer & V. 31; H.Rep.No.92-678, Force, supra 192-121; note at 92nd note at Task Cong., Sess., (1971) ; S.Rep.No. Advisory Commission, 4; 1st su- note 91-613, Cong., Sess., pra 91st 1st narcotic sub- note at 1-2. Other amphetamines, stances, methe- such heroin is used more than Since 99% benzedrine, drine, marijuana, cocaine, addicts, supra, of all see note peyote psilocybin, ap- LSD, do not discussion in this will section focus pear any physical addiction, al- to cause primarily etiological aspects on the though psychological dependence de- recognized, heroin It addiction. should velop. Vogel, See, & D. Maurer V. however, that heroin is no means Force, supra 131-157; Task note only addicting drug. with the 3; Advisory Commis- note greatest potential are, course, addiction sion, supra gener- at 1-2. See opiates synthetic equiva- and their ally U.S.C. opiate in- Narcotics of class lents. opium, morphine, heroin, dionon, important gaps clude 130. The most knowl- our dilaudid, metapon, codeine, eucodal, edge understanding dico- relate to our lack of apomorphine. synthetic precise etiology dide and Their heroin addiction. equivalents demerol, methadone, possible appropri- drom- Since it is neither nor *83 phenazocine oran, and leritine. These ate to enter a of the into discussion varied drugs complex are discussed in D. Maurer & V. and issues which di- theoretical supra Vogel, 14, sociologists psychoanalysts, note at 69-89. Certain vide and sedatives, pharmacologists question such as barbiturates and bro- on of causa- mides, addicting, many tion, my analysis are also of the disease as set generalizations relating gen- to heroin ad- forth in this section will be cast drugs. upon experts agree. diction do not hold true for these eral terms which most resulting definite, and istic, character- administration,134 the manner of the set syn- ting, and self-limited abstinence mood, personality expecta and drug drome when the is withdrawn.131 user, many tions of the other varia Development is, ranging such an addiction bles from the biochemical to the gradual course, process, and it is the Indeed, cultural.135 while some individu purpose explore briefly may of this section to enjoy experience, als others suf process the nature of this the ef- dysphoria, fer headache, dizziness upon fects of the disease the addict. depression, perceive and still others no effects whatever.136 As the user be psychological sociological im- drug, however, comes accustomed to the plications of the initial decision to ex- generally appreciate its ef learns periment drugs high- addicting fects, experimentation and the initial is involving ly complex, such as the factors typically followed been values, what has climate, attitudes, social stresses “honeymoon period.” termed the gratifications Dur current rele- drug stage, primarily subculture, predilec- serves vant the individual function, a recreational used potential user, and, tions of the parties, weekends, at course, drugs or when the availability particularly user depressed.137 feels themselves. But once the basic inhibi- overcome, typical tions have been popular belief, Contrary per- not all drug are, motivations for use stage eventually sons who enter will vices, quite simple most most cases —in Indeed, experts become most addicts. experimentation simply due to cu- is agree repeated now even use of her- riosity, depression group pressure.132 or usually necessarily oin will not or even exposure133 effects this initial per- result addiction unless the user’s may vary greatly depending upon the sonality particularly susceptible is quality drug, dose, the size of the psychological drug.138 effects of Organization Expert 131. World Health Contrary popular belief, 133. the indi- Addiction-Producing Drugs, Committee on invariably vidual almost receives his first Organi- Report, Thirteenth Health World acquaintance, from a dose friend or rather Report 278, zation Technical Series No. proverbial “pusher.” See, than from the (1964). Congress adopted at g., Eldridge, supra 22, 29; e. W. note at addiction, stating similar definition Advisory supra Commission, 79, note at “drug person” dependent one “who 4; Blum, supra 25, 52; Clausen, note at * * * using a controlled substance supra 43, note at 39. psychic physi- and who is in or a state of Many beginners 134. will inhale the arising dependence, both, or from the cal inject initially, although some will it in- use of substance on a continuous travenously, orally, inject take it Drug dependence basis. is characterized subcutaneously. See, g., e. I. et Chein responses behavioral and other al., supra 124, 157; supra Jaffe, note at strong compulsion include a to take 125, note at 283. substance continuous basis order experience psychic See, its effects or g., Lindesmith, supra 135. e. A. note 17, avoid the discomfort ab- 24; Blum, supra caused its 25, at note at 54. 201(q) sence.” § U.S.C. See, g., Vogel, supra e. D. Maurer V.& “any Other statutes define “addict” as 14, 81; al., supra note at et I. Chein note habitually individual uses nar- who 124, 157; Lindesmith, supra at A. note endanger public cotic so as to 17, 24; Blum, supra at note at 42. morals, health, safety, welfare, or who is so far addicted to the use of narcotic See, g., Lindesmith, supra e. A. note power as to have lost of self- 25; supra al., at I. et Chein note control with reference addiction.” 124, at 159. 802(1) (1970) ; see § U.S.C. also 18 4251; 2901; § 28 U.S.C. § U.S.C. phenomenon “addiction-prone- 138. The U.S.C. widely ness” discussed the literature. See, g., supra Vogel, e. D. Maurer & V. See, al., 91; supra Nyswander, et I. Chein note note at M. 149-157; Clausen, supra 63; al., supra note note et I. Chein Drugs 14; DeRopp, at 38-39. R. and the *84 prone makeup particularly hallucinogens, heroin does renders them Unlike “high” Although euphoric precise positive produce to addiction.141 input. Rather, causing sensory nature of the addic- disorders intensified symp- depressant proneness may drug calming, effect tion its vary,142 including general readily identifiable, dulls the sensibilities toms are insecurity oversensitivity feelings pain, allays such as an characteristics “high” inability rejection, es- into heroin to enter The an discomfort.139 difficulty others, sentially escape-oriented, direct and a close associations with inability pleasure identification, in sexual role correlation exists between an tendency cope reality, and the user’s and a one derives from Thus, inadequacy, reality. psychic al- need be overcome a sense to avoid futility though indi- individ- psychologically For the stable despair143 exhibiting symp- may experience enjoy his ual all or some vidual these generally heroin, toms, is not the use heroin seen his satisfaction irresistibly great attempt adjustment. personal him at so as to draw many result, specific his such function in use. As a fulfills a excessive experi- psychological economy, persons heroin are to administer and when able encing pre- ever becom- its effect he finds that an occasional without basis viously anx- frustrations and intolerable addicted.140 mysteriously daily ieties existence different, quite how- The situation is hunger, Feelings pain, ever, psychological users whose those evaporate144 Psychiatric diets, (1954). Ploscowe, supra (1957) ; Q. 113-125 note Mind 146 40, Chapel Taylor, supra 122, supra Bowman, note 51, 51-59; See also & note at Hospital 55; Lowry, supra 25, 1036-1037; Blum, at Treatment of at note at 50; Addict, 42, Bell, 16, 16; 44-45 20 Fed.Prob. supra Narcotic at Chein note (Dee. 1956). Use, Rosenfeld, Narcotics Juvenile & Contemp.Prob. 52, & 59-63 Law See, g., al., supra et note 143. e. I. Chein 14, Nyswander, 124, 193-226; al., su 16, See, g., supra M. at et e. note 139. I. Chein Bell, supra 35, 63; supra pra 229-241; Lindesmith, note 124, note at A. at 19; Blum, supra 25, 51; 26-27; Force, supra 17, note at Clau at sen, supra Task note at 44; 43, supra 16, 25, 2; Bell, at Chein & Rosen note at 15. note at note 60; H.Rep.No. feld, supra 138, at note Lindesmith, See, supra g., 140. e. note A. Sess., 1, 91-1444, Cong., pt. at 91st 2d 17, 47; Rosenfeld, supra note at & Chein might suspect, As one 7-8 14, 54; Chapman, supra 138, at at note breeding grounds psy foremost such 51, 25; 43; Ploscowe, supra note at Bow- cities, lives are center where choses our supra man, 122, at 1036. note early by homes, dis broken are scarred supra. poor education, poverty, hope crimination, 141. See authorities cited note 138 Indeed, Special See, g., it few has been estimated that as e. lessness and alienation. Committee, 56, 33; supra as psyehiatrieally all addicts could be termed I. note at 3.8% according 51-56; al., 124, supra to estab- normal et note at Chein See, Winick, g., supra 25, 50; Clausen, Blum, lished medical criteria. e. su at note Treatment, pra family Narcotics Addiction Its back note at 37. Contemp.Prob. plays 22 Law & ground potential 21 n. 45 user (1957) ; Offenfort, particularly develop Kolb The Treat- & role crucial Drug Lexington ment of Hospital, at See, g., Addicts I. ment of these e. disorders. (1938) ; al., 251-298; supra Note et So.Med.J. Chein note at supra Bell, supra 16; Clausen, note at 606 n. note supra 46; 37-38, & note Chein According study, example, to one supra Rosenfeld, 138, at note 60-62. Of opi- the emotional disorders adolescent course, our are the sole urban slums major categories: ate addicts fall into 4 psychoses, sources these (1) schizophrenia (19%) ; (2) overt in- important note addicts who cipient schizophrenia “borderline” paramedical members of the medical ; (25%) (3) delinquency dominated char- professions symptoms. exhibit similar (44%) ; acter disorders inade- See, g., Blum, e. quate personality (12%). See, Kornetsky, Psy- See, g., Noyes & Kolb, Gerard A Social and e. A. & L. Modern Study Opiate Psychiatry (5th chiatric 1961) ; of Adolescent Ad- Clinical ed. *85 inadequacy extinguished, vary severity and fear are behavior which will experiences depending upon and he sense aloofness the individual and the self-sufficiency length, strength and he is unable which nature of his addic- Indeed, following to attain in the real he world. based tion. account,149 something may upon experimentation he well “has observation discovered searching supervision, for all life.” been medical under process opiate describes detail the during “honeymoon period” Thus withdrawal: prone in- occasional use the addiction psychic finds the effects of dividual approaches “As the time for what and, spurred virtually irresistible would have been the next ad- addict’s security generated * * * a false sense drug, ministration of the drug itself, begins gradually he begins he to move about a rather frequency to increase the of his doses.146 way, failing aimless in one to remain tolerance, * * * development Due to the position long. With this however, same he soon discovers that the restlessness, yawning appears, soon original produce dose eu- fails which more becomes and more violent. * phoric * * effect, continually must He then lie on the floor dosage increase the size in order of his radiator, trying keep close to the Then, to achieve the desired “high.”147 contented, warm. here Even he is not period use, physical after a of excessive pacing and he either resumes his dependence The user about, again throws himself onto develops.148 “hooked”—he needs the now wrapping heavy bed himself under underlying psycho- to alleviate his blankets. At the same time he com- logical instability, but also to avoid the plains bitterly suffering with cold misery of withdrawal. flashes, mostly and then hot chills. syndrome, In the which person cold, withdrawal He like breathes who is usually begins short, jerky, to manifest itself within powerful respirations. eight abstinence, to ten hours of the ad- pi- His skin shows the characteristic * * * pattern dict activity shows an almost schematic lomotor well known al., 14; supra 124, Light, Torrance, et Karr, I. Chein note at 149. A. E. E. W. Winick, supra 20; Bowman, 141, Fry Wolff, Opium note at & W. Addiction 10- supra 122, 1036-1037; (1929), quoted Lindesmith, note at Wikler in A. Psychiatric Rasor, Drug Aspects supra 17, Ad & note at 29-30. also A. See diction, (1953) ; Blum, Noyes Kolb, supra 144, 568; 14 Am.J.Med. 566 & L. note at supra 25, DeRopp, supra 138, 152-154; at note 50. R. note at Vogel, supra 14, D. Maurer & V. note at Bowman, supra 122, at note 95; Blum, supra 25, 54; note at Plos See, g., Lindesmith, supra e. A. cowe, supra note 51, 42-44; Cantor, note at 25; 17, al., supra 124, at I. et supra Chein note 67, 523; Winick, supra note at at 159. 141, 10-11; Bowman, supra note at note 122, at 1039. See, g., Vogel, supra e. D. Maurer & V. produces Abstinence from barbiturates 33; 14, Nyswander, supra note at M. symptoms, its own severe withdrawal in 35, 50-52; Jaffe, 125, supra note at note cluding insomnia, anorexia, convulsions, 285, 287; supra Bowman, 122, at note temporary psychosis, occasionally 1038; Winick, supra 141, at note at 10. See, Noyes g., even death. e. A. & L. precise 148. The mechanisms supra Kolb, 144, 572; at note D. Maurer physical dependence develops present- Vogel, supra 124; & V. note at Ad ly unknown. For discussions of the vari- visory Commission, supra 53; note at Noyes suggested, see, ous theories A. Winick, supra note at 11. Abstin Kolb, supra 565; & L. note at A. symptoms ence are not found in users of Lindesmith, supra 33; Lowry, note cocaine, LSD, peyote, marijuana, benze 44; Jaffe, supra note drine, amphetamines methedrine, 281-282; Wikler, Progress Recent psilocybin, since these do not cause Neurophysiological in Research on the physical dependence. supra. See note 129 Morphine Addiction, Basis of 105 Am.J. Psychiat. as 'cold turkey.’ * * [*] Coincident male orgasm in female frequently feeling chilliness, he com- occur.” with this plains *86 being unable breathe symptoms The acute withdrawal through is secretion his nose. Nasal generally peak reach a between and excessive. 72 hours after the gradually during dose subside last and following week.150 period the at end of “Often this weeks, may Distress continue for how drowsy extremely may addict become ever, phys may and it be months before open. keep eyes If and unable to his iological stability But as is achieved.151 asleep, is often he falls which terrifying experience as the withdrawal case,'he deep into a slumber well falls seem, addiction, may it does not end the * * * ‘yen’ sleep. as the known depend underlying psychological long sleep may last The ence of uncured.152 the addict remains awakening eight or hours. On twelve result, As a to heroin and “[a]ddiction he more Lacri- is restless than ever. opiates, established, other once sneezing, mination, yawning, and relapsing the characteristics of a chronic feeling of chilliness extreme. A are disease.” the back of throat suffocation at Usually frequently psychological is at dependence, mentioned. This which stage, complains initially personal- this the addict derives from the basic locating cramps, frequently ity addict, them most develops disorders of the * * through conditioning. Vomiting process Each the abdomen *. drug injected, tension, pain time is may appear. He vomit and diarrhea reduced, anxiety memo- and are and the large quantities of fluid. bile-stained pana- ry experience * * * as a beckons Perspiration excessive. is daily liv- cea all the frustrations of twitchings commonly Muscular ing. Gradually, complex set of condi- present; may anywhere, they occur responses acquired, tioned is ex- are most violent in lower perpetuate tends continued use. * * * tremities. all He refuses emerges, physical dependence When water, sleep frequently food and drug need use the to avoid withdraw- point. is unknown It is at from this psychic al further reliance, the addict’s reinforces stage beg that he one minute evenually requires her- for a next minute tension, ‘shot’ and the no forms oin relieve all * ** slight.154 Indeed, physical the ad- threaten violence. matter how dependence psychological on the wall, against dict’s He his head will beat generally violently to be the is considered throw himself * * * aspect powerful of the disease.155 most floor. emission Seminal Na- Noyes See, g., Kolb, supra Medical Association 153. American 150. e. A. L.& Academy tional of Sciences —National 144, supra 468; Lindesmith, at note A. Council, Narcotic Use of Research The 17, 30; Bowman, supra 122, note at note Drugs the Medical Medical Practice at 1039. Addicts, Management in Ad- of Narcotic See, g., Committee, Special supra 151. e. visory Commission, supra 79, 83, at note 56, Jasinski, 47; Physi at & Follow-up note Martin 87; Vaillant, A Twelve-Year ological Morphine Parameters De Addicts: York Narcotic New pendence Early Tolerance, History Disease, Ab Natural a Chronic Man — supra N.Eng.J.Med. ; Jaffe, stinence, Abstinence, Protracted 7 J. 125, Psychiat.Res. 9, (1969) Blum, supra note at ; 277. 25, 54; Note, supra 84, at note note at See, supra g., Jaffe, note at e. also authorities cited See 278-279. note 155 infra. See, g., supra Eldridge, e. W. note 2; Advisory Commission, supra al., supra at See, note et note I. Chein 55; supra 524; Cantor, supra 6; Bowman, at note note Sig- Drug Dependence: 1037; Eddy, Winick, Its at 23-24. Thus with these dis- the confluence course of relentless psy- ease.” physical dependence, three factors — chological dependence tolerance —the popular notion that an in- addict’s caught spiralling web of addict life ner is serene and untroubled reality addiction. to face Unable he lives a carefree of her- world ecstasy completely hand, and oin-induced without on the one false. The confirmed addict fact a wor- requiring to avoid the horrors ried, troubled, harried Mis- individual. other, on the he turns re- withdrawal *87 ery, despair, alienation and rather than peatedly relief. to obtain pleasure ecstasy, key and are the fea- dose, Yet each the with- additional tures of his existence. he Since cannot intense, psy- drawal becomes more supply drugs legally, obtain his his chological dependence greater, the toler- up entire life becomes bound a cease- increased, ability escape ance and the quest for less heroin. He loses all desire voluntarily likely. Eventually, he less socially productive food, work,157 control, “[s]truggle loses all as he and sex, companionship, family ties may, process the curious and inexorable poverty because of his recreation,158 him. No outer moral com- overwhelms inability pure drugs, and his to obtain stay it;
pulsion
pain,
can
no authoritarian
de-
his life is scarred
constant
dis-
and,
often,
premature
ease
all
too
cree can
Punishment
cut
short.
misery
Yet
imprisonment
futile,
of the addict
meaningless,
in halt-
death.159
purchases
purity
Characteristics,
he
on the
nificance and
32 Bull.
market,
poverty,
;
black
rather
721,
(1965) Vogel,
than
Isbell &
WHO
723
See,
g.,
Eldridge,
Chapman,
to addiction
e.
itself.
W.
Ad-
Present
of Narcotics
Status
supra
22,
16-18;
diction,
;
note
at
A.M.A.J., 1019,
(1948)
The Addict and
138
1020
supra
Law,
23, X;
Winick, supra
141,
note
at
Linde-
A.
note
at 23.
smith, supra
17,
39-40;
Noyes
note
at
A.
supra
Nyswander,
35,
1;
156. M.
note
at
supra
Kolb,
144,
567;
& L.
note
at
Task
see,
g.,
supra
67,
;
Cantor,
e.
note
at 523
Force, supra
25,
2; Ploscowe,
note
at
587; Winick,
Frankel,
125,
supra note
at
supra
51,
note
at 47-49.
supra
141,
9,
note
at
24.
City,
In New York
narcotic addiction
Although
greatest single
157.
loss
is the
addiction
cause a
cause of death of
vitality
impair
persons
ages
of
ability
which can
the addict’s
between the
of 15
see,
g.,
1970,
approximately 1,825
productively,
In
to work
e.
there were
al.,
124,
166;
supra
nationally,
et
I. Chein
note
at
narcotic-related deaths
and 84
g.,
Winick, supra
141,
14;
See,
at
note
District of Columbia.
most
e.
Special
perform
capacity
supra
Committee,
56,
addicts can
in a work
note
at 31-
relatively
32; Hearings
in a
normal fashion if the
Before Subcommittee No.
readily
See,
g.,
available to
e.
4 of the House Committee on the Judi-
them.
Special Committee, supra
ciary,
56,
48;
note
at
Entitled “Treatment and Rehabili-
Lindesmith, supra
17,
39-40;
Addicts”,
Cong.,
A.
note
at
tation of Narcotic
92nd
Nyswander,
supra
35,
45;
Sess.,
(1971) (testimony
M.
note
at
1st
110
of Con-
Blum, supra
25,
49, 54;
gressman Rodino,
23, 1971) ;
note
at
Plos-
June
H.
cowe, supra
51,
Rep.No.91-1808,
Cong.,
Sess.,
note
at 46-48.
91st
2d
(1970) ; Hearings Before the House
See,
g.,
al., supra
e.
I.
et
Chein
note
Crime,
Select Committee on
entitled
124,
163;
Lindesmith, supra
at
A.
note
Importation,
“Crime in America —Heroin
17,
40-44,
Noyes
57;
Kolb,
at
A.
& L.
Distribution, Packaging
Parapher-
supra
566-567; Bowman,
note
nalia”,
Cong.,
Sess.,
91st
2d
supra
1038-1040; Ausubel,
note
(testimony
Helpern,
of Dr. Milton
June
66; Winick, supra
note
27, 1970). Most overdoses are due
at impurity
drug injected.
On the
Contrary
popular belief,
pro-
even
market,
purchased
black
the substance
longed
perma-
may range
purity
heroin use does not cause
from about
1%
organic damage.
nent
30%,
Thus the
although
illnesses
is normal. The re-
7%
frequently
usually
most
tion,
associated with addic-
mainder
consists of natural
im-
decay,
purities
such as severe tooth
malnu-
lactose,
and adulterants
such as
hepatitis,
dextrose, quinine
trition and
are due to the ad-
mannitol. Thus
preoccupation
drugs,
dict’s
the im-
dosage
user never knows what
he is actu-
incorporated
every signifi
alone,
has been
is not his
for as
into
members
rights
society
re-
cant
common
all
declaration of
modern
we
share
sponsibility
history.160 Despite
lineage,
for the
which have
conditions
its ancient
Indeed,
however,
precise
helped to make him what
is.
of the clause
limits
he
sinks,
See,
no
cannot
matter how low he
he
never been determined.
justice;
right
Utah,
(9
Otto)
lose his
and the lower Wilkerson v.
99 U.S.
sinks,
greater
(1878);
135-136,
is his claim to our
re
L.Ed. 345
-
Kemmler,
930,
436, 447,
concern.
136 U.S.
S.Ct.
(1890);
34 L.Ed.
United
Weems v.
CRIMINAL
IY.
RESPONSIBILITY
States,
349, 368,
217 U.S.
30 S.Ct.
AND ADDICTION
Dulles,
(1910); Trop
from the
some-
and unusual
dangerous
principle it
times
he even more
than
is well known.
our law
Magna
al.,
See,
g.,
represents
be traced to the
itself.
et
can
e.
I. Chein
phrase
124,
15;
Force, supra
supra
Carta,
first used
was
note
at
Task
and the
Rights
25,
Hearings
English
3;
of
the House
Declaration
note
at
Before
part
Crime,
phrase
entitled
formed a
In
Select Committee
1776
Rights,
Virginia
Heroin Para-
Declaration
in America —The
of the
“Crime
Sess.,
phernalia Trade”,
Cong.,
2
it in the constitu
2d
included
91st
James Madison
Pep-
(statement
Congressman
amendments he drafted
tional
1970).
addition,
incorporated
per,
5,
the rate
into the Constitution
In
It
Oct.
Eighth
among
part
appears
Amendment
to be
of suicide
addicts
1791 as
extremely
Bell, supra
See,
Note,
high.
See,
g.,
e.
Cruel
with little debate.
14; Vaillant,
Punishment —Conviction
note
Unusual
according
Indeed,
a re-
at 1282-1288.
for Public Intoxication
Chronic Alcoholic
Eighth Amendment,
report
Vill.
Violates the
cent
of the Center
for Studies
(1966) Note,
;
Prevention,
young heroin
The Effective
Suicide
L.Rev.
Ap
Eighth Amendment: An
of the
cocaine
in the District
Colum-
ness
Punishment,
attempt
praisal
bia
at least 15 times more
suicide
Cruel and Unusual
age
(1961) ; Note, The
in the same
N.Y.U.L.Rev. 846
often than non-addicts
Washington
Post, April
Against
group. The
Prohibition
Cruel
Constitutional
(“Addict
B3,
Present
1-5
Suicide
and Unusual
Punishment —Its
col.
Attempt
High”).
Significance,
Rate
Vand.L.Rev.
society.” Trop
Dulles, supra,
unlikely
any
v.
356 U.
“It is
State
100-101,
history
attempt
S. at
597-598.161
moment
S.Ct. at
per-
make it a
offense for a
“evolving
These
standards
of decen
mentally ill,
leper,
son to be
or to
Eighth Amendment,
cy,”
and the
be afflicted with a venereal disease.
problem
addiction met head
of narcotic
* * *
light
contempo-
[I]n
California,
supra,
on in
Robinson
rary
knowledge,
human
a law which
8 L.Ed.2d
U.S.
S.Ct.
a dis-
made a criminal offense
such
held that a Califor
which the Court
universally
ease would doubtless be
made it a criminal of
nia statute which
thought
an infliction of cruel
the use of nar
fense to “be addicted to
punishment
and unusual
violation
pun
cotics” inflicted cruel and unusual
Eighth
Fourteenth Amend-
of the
Eighth
ishment
in violation of the
* * *
ments.
Fourteenth Amendments.162 Unfortu
consider the statute
“We cannot but
nately, however,
precise
basis
category.
before us as of the same
At one
decision was somewhat unclear.
recog-
counsel for the
this Court
State
interpretation,
Court was
level
is an ill-
nized that narcotic addiction
clearly
Rob
concerned over the fact that
Indeed,
apparently
ill-
an
ness.
it is
simply
inson had
been convicted
contracted inno-
ness which
“being
addict,”
though
“even
he has
involuntarily.
cently or
hold that
We
any
drug within
never touched
narcotic
imprisons
person
a state law which
any irregular
guilty
or been
State
criminal,
even
thus
afflicted
as a
signifi
primary
there.”
If
behavior
though
never touched
nar-
he has
aspect
cance
attached to
or been
cotic
within
State
*89
might
opinion,
quite
Robinson
be viewed
irregular
there,
guilty
any
of
behavior
narrowly
prohibiting only prosecution
as
punish-
unusual
inflicts
a cruel and
commit
of those “criminals” who have
ment
in violation of
Fourteenth
jurisdiction.
ted no actus reus within the
* * *
day
Even one
Amendment.
prison
and unusual
in
would be a cruel
The Court’s extensive
of
discussion
having
punishment
of
however,
for the ‘crime’
concept
addiction,
the disease
suggests
common cold.”164
a
a far broader rationale:
establishing
rule
punish
Initially,
as
and state courts
cruel
and unusual
mode of
prohibiting
as well as
excessiveness
ment clause was
as
viewed
unconstitutionally
may
punishment
only
be
brutal
inhumane methods
Note,
physical punishment.
and Unusual
See,
The Cruel
g.,
cruel.”
e. Wilker
Utah,
(9 Otto) 130,
and the Substantive
Punishment Clause
son
99
v.
U.S.
135-
635,
Law,
640
136,
;
Harv.L.Rev.
(1878)
Criminal
79
25 L.Ed.
In
345
re Kemm
(1966). See,
g.,
ler,
436,
v. Common
446-447,
930,
e. Workman
136
10
U.S.
S.Ct.
(1968) ;
wealth, Ky.,
(1890) ;
429
374
S.W.2d
1239
compelled by his
prove
more
that he was
responsibility
issue was
criminal
public.176
be drunk in
disease to
Fortas:
in line with that of Justice
Watson,
Thus,
noted
court
an
to have
“If it
be a crime
cannot
majority
of
of
because
the absence
compulsion to
narcot-
use
irresistible
opinion,
of
this matter
“Powell
left
ics,
California,
370 U.S.
Robinson v.
responsibility,
criminal
as affected
1417,
660,
re-
758]
8 L.Ed.2d
[82 S.Ct.
Eighth Amendment,
posture
in a
905,
hearing denied,
S.
[83
U.S.
best,
is,
141 U.S.
at
obscure.”
which
202,
(1962),
I do
It has
that
tions
been
construed,
fairly
adopting
Marshall,
if
Mr. Justice
a
statute must be
restric-
“[a]
issue,
possible, so
avoid not
the con-
tive view of
constitutional
em-
as to
phasized
clusion
is unconstitutional
that
it
grave
upon
score.”
also
doubts
reus,
rea,
actus
mens
in-
“doctrines of
Fuey Moy, supra,
United
v. Jin
States
mistake,
sanity,
justification,
du-
see,
659;
401,
e.
241
at
36
at
U.S.
S.Ct.
provided
historically
ress have
g.,
41,
Rumely,
United States v.
345 U.S.
shifting
constantly
adjust-
tools for a
(1953);
543,
45,
L.Ed.
73
97
770
S.Ct.
ment
tension between
evolv-
22,
Benson,
52
62,
Crowell
U.S.
v.
285
ing aims of
the criminal
law
285,
(1932);
v.
S.Ct.
Lucas
1241
criminally responsi-
postulate of
crime,
is
hold man
outside
prod-
punishment.182
the law of
ble his actions must have been the
g.,
See,
4
of a
will.”
e.
W.
uct
“free
Despite
general principle, how
20-21,
Blackstone,
27
Commentaries
system
legal
ever,
clear
our
it
is
History
(1854);
Stephen,
2
J.
exculpate
persons
ca
does
all
whose
England
99, 183
Criminal
Law of
pacity
impaired,
what
for control
is
pro-
(1883).
no
And this conviction “is
Rather,
deter
ever cause or
reason.
uni-
vincial or
It is as
transient notion.
mining responsibility
crime,
the law
systems
persistent
in mature
versal
recognizes
assumes “free
and then
will”
hu-
of law
in freedom of the
as belief
known
there
is
deviations
“where
ability
consequent
man
and a
will
broad
will does
consensus
free
duty of
choose
the normal
individual
respect
particular
exist” with
con
to the
good
v.
Morissette
and evil.”
between
dition
at
v. United
issue.
Salzman
246, 250,
States,
72 S.
342 U.S.
United
States,
399,
U.S.App.D.C. 393,
405
131
(1952).
243,
240,
Thus
L.Ed. 288
Ct.
96
358,
(1969)
(Wright,
J., con
F.2d
364
responsibility
is assessed
curring)
;
see
v.
also United States
through
a man elects
“free will”
when
1, 27,
Brawner,
U.S.App.D.C.
F.
471
153
agent,
evil,
or
do
he is not a free
banc).
if
(en
(1972)
The
969,
2d
995
voluntarily,
to act
is unable to choose or
amply
evolving
process
is
nature
gradual
develop-
conduct which constitutes
to avoid
demonstrated
premised
they
law
on the common
the courts are
Whether
are addressed. Thus
rea,
liability
concept
reus,
willing
mens
actus
or a com
insofar as
to allow strict
two,
requirement
the ac-
bination of the
fact
concerned for
mistake of
is
ordinarily
voluntary
is fundamental
to our
action
statutes
cused under such
capable
justice.
See,
g.,
system
preventing
e.
“with
of criminal
the violation
reasonably
Columbia, supra
society might
v.
note
Easter
167,
District
more care than
no
35,
might
U.S.App.D.C.
expect
at
F.2d
124
361
than
and no more exertion
52;
States,
reasonably
102
at
App.D.C.
v. United
U.S.
who has as-
Carter
exact from one
235,
606,
responsibility.”
227,
252 F.2d
616
v.
Morissette
sumed
Pike,
399,
(1957) ;
246, 256,
States,
State
49 N.H.
72 S.Ct.
v.
United
342 U.S.
gen-
(1869) ;
Hart,
(1952).
240, 246,
H. L. A.
The
See
441-442
Morality
L.Ed.
96
288
8,
erally
supra
179,
Hall,
Law
27
at 827-
Criminal
note
J.
supra
179,
(1965) ;
Hall,
331; Williams,
J.
note
at
Law 215-238
Criminal
G.
296;
Perkins,
;
(2d
Part)
R.
Law
Criminal
749-
The
Wasser-
ed. 1961
General
1969) ;
Burdick,
(2d
Liability
strom,
ed.
W.
in the Criminal
750
Strict
(1946) ;
(1960).
Law,
M.
Law of
H.
Crime
Stan.L.Rov.
Dubin,
Hart, supra
179,
412, 414;
different,
quite
note
at
how
situation
supra,
180,
296; Sayre,
ability
ever,
note
at
to con
where the defendant’s
1004; Pound,
impaired by
note
at
Introduction
some
trol his behavior
Sayre,
disability
legally recognized
to F.
on Criminal Law
Cases
such as
duress, insanity,
chronic alcoholism ad
Supreme
incapable
persons
It should be noted that
are
diction. Since these
conforming
decisions in such cases as
Court’s
United
the law
matter what
no
Dotterweich,
277,
they
required,
States v.
320 U.S.
cannot
standard of care is
134,
(1943) ;
responsible
S.Ct.
toxication,188
tremens,189
power
delirim
narcotic
toas
have lost the
chronic alcoholism.190
with reference
to his
of self-control
194
longer
addiction.”
Thus
can no
se-
today
A similar
consensus exists
riously
questioned
least
at
area
narcotics
addiction.191
“overpowering” psycho-
some addicts the
Columbia,
Easter v.
District
124 U.S.
logical
physiological
possess
need to
App.D.C.
36,
33,
50,
(1966)
361 F.2d
53
inject
narcotics cannot be overcome
(en banc),
this court held that a “chron-
by mere exercise of “free will.”
ic alcoholic
mens rea
cannot have the
recognition
Moreover,
of a
defense
necessary
responsible
held
crimi-
“addiction”
posses-
for crimes such as
nally
being
public”
drunk in
since
sion of
narcotics
is consistent not
per-
such an individual “is in fact a sick
with our historic common law
notions
son who has lost control over
his use
responsibility
and moral ac-
beverages.”
added.)
(Emphasis
alcoholic
countability, but also with the tradition-
supra,
Hinnant,
See also Driver v.
356
goals
penology retribution,
al
deter-
Organ-
F.2d at 764. The
Health
World
—
rence, isolation and rehabilitation.
ization has ranked heroin addiction as
drug de-
goals
most
intensive
form
Unlike other
penology,
re-
pendence, far more severe than alcohol-
theory
justice
tributive
of criminal
looks
Indeed,
primary
element
solely
ism.192
past
justification,
with-
widely accepted
defini-
the most
regard
out
preven-
to considerations
overpow-
opiate
tion of
addiction
“an
Although
tion or
pri-
reformation.
See,
g.,
States,
People,
183.
e.
Allen v.
150
210,
(1910) ;
United
49 Colo.
United States v. cians, a must be at least one of whom F.Supp. days psychiatrist.213 these Within five may affirmatively the addict who For report physicians their conclusions must course, are, treatment, there desire may, Attorney, who to the United States including available, many options discretion, present a commitment in his voluntary commitm civil possibility of Superior petition Court Moreover, in the exist there ent.210 If, after of Columbia.214 District proce established District of Columbia patient hearing,215 the court finds involuntary commitment dures for hospi addict, to a he is committed be an they though even known addicts no is for treatment confinement tal until convict charged, prosecuted or not been longer necessary received he has or until Hospital offense. See ed of a criminal re After benefits.”216 “maximum Drug Act Addicts Treatment supervised lease, .patient is Columbia, D.C.Code § District of years period community of two for a Act, seq. Under et to the use return he does not insure that of Colum of the District Commissioner patient drugs.217 Finally, preliminary examina bia must conduct proceedings not be deemed “shall these probable cause he has tion whenever criminal and commitment any person211 within believe that patient deemed not be shall such If evidence an addict.212 is District preliminary ex- conviction.”218 found at addiction drugs any liabit-forming trial narcotic in the discretion of the who uses ination morals, endanger public eligible many judge, addicts so as health, safety, otherwise far be- who is so from treatment either or welfare or be excluded “likely they the use of such be rehabil- addicted to are not cause “adequate power of self-control facilities have lost or because itated” personnel his addiction.” D.C.Code are unavailable.” reference to treatment is, 1971). (Supp. 4251(a). 602(a) This IV § § course, 18 U.S.C. most other the same definition g., seq.; See, et e. § U.S.C. See, to define “addict.” use statutes ; et § 42 seq. (1967). 24 D.C.Code § U.S.C. 4251; 802(1) ; § 18 U.S.C. § 21 U.S.C. 2901; 42 § 28 U.S.C. U.S.C. § 605(a). 603(a), not available to those charged The Act 213. 24 D.C.Code §§ a criminal who are 605(a); 24 D.C.Code 24 D.C.Code § offense, serving sentence, probation 605(b) (Supp. 1971). IV pending appeal. parole, or on bond *100 right patient 603(b). non-trafficking a full evi- The has to If D.C.Code § dentiary hearing, may subject longer intro- possessors at which he addict were no subpoena possession, however, and and cross- duce evidence of mere conviction may pose witnesses. He also demand examine no obstacle to these exclusions would involuntary by jury right has a to counsel. trial and civil commitment of such 24 §§ D.C.Code 604-607. other than addicts unless some offense possession addition, is involved. under hospital 608, 216. 24 D.C.Code 609. The §§ principles announced in similar to those reports at intervals must submit 6-month Harris, U.S.App.D.C. 1, 10- Bolton v. 11, 130 explain patient’s confine- the continued 642, (1968), a de- 395 F.2d 651-652 may petition ment, patient re- and the guilty fendant found year. 608, after one 24 D.C.Code §§ lease drugs for his own use reason of ad- 609(b). may custody in diction be retained or con- appropriate patient tinued on bond under condi- 610(a). 217. 24 § D.C.Code pending proceed- may again tions civil commitment be recommitted if he becomes ings report for treatment. drug user, and failure to the Commissioner also scheduled ; note, 603(a) 212. 24 fol- § D.C.Code see 24 in for examination. result confinement lowing (Supp. 24 D.C.Code IV 602 § 610(b). D.C.Code § 1971). The Act itself the term uses “drug “drug addict, 218. 24 in a user” rather but 611. Treatment § than D.C.Code * * * “any person context, might noted, purely user” is is defined civil
1249
provi-
edge
Despite
developing
these
existence of
social and moral
sions, however,
do,
contends
values.
the Government
What the law
if
cannot
it is
rarely
that,
tradition,
been
Act
remain true
since the
has
to its
is to
presently
utilized,219
availa-
stand
facilities
still while the world
is
flux.
See, e.g.,
inadequate
Holmes,
Law,
the statute
to make
The Path of the
ble
457,
ar-
a similar
10
469
effective. Confronted
Harv.L.Rev.
Draw-
supra,
gument
upon
past,
held
Easter,
court
must
law
serve
always
unequivocally
has com-
who
—as it
has served —the needs
“[o]ne
validly
present.
sen-
no crime cannot be
Thus on the basis
mitted
above,
of a lack
criminal because
considerations discussed
I con-
tenced as a
caretaking
imposition
clude that
facilities.”
criminal liabili-
rehabilitative and
ty
non-trafficking
posses-
36,
U.S.App.D.C.
at 53.
on the
361 F.2d
addict
124
at
contrary
drunk
sor is
to our historic common
alcoholic who is
Like
chronic
pos-
non-trafficking
responsibility.
public,
law traditions of criminal
addict
being so,
ab-
no crime. The
This
it is clear
a defense
has committed
sessor
the re-
is
“addiction” must exist for these indi-
facilities
sence
treatment
Congress
addict,
expressly
sponsibility,
of so- viduals
not of the
unless
has
unequivocally
generally,
the addict should
manifested its intent
ciety
simply
preclude
See, e.g.,
a criminal
be-
such a defense.
treated as
not be
States,
society
supra,
re-
to meet its
Morissette v.
342
failed
United
has
cause
Congress
246,
240,
288;
im-
sponsibility.
acted to
72
96 L.Ed.
U.S.
S.Ct.
Had
necessary
Columbia, supra,
plement
with the
Easter
District
this statute
facilities,
prob-
43,
U.S.App.D.C.
wished an addiction to arising recognition tion out of ad- warning ample opportunity to it had suggest it diction defense I whether silent, Instead, do so. to remain it chose only should limited to those acts— be stating simply question whether that possession for such as mere use—which “ criminally such held re- addicts ‘can be are inherent itself. It can disease sponsible only can decided in the be that, hardly in at least some be doubted ” 265 courts, case case.’ instances, may in fact be an addict reasonably “compelled” engage types Thus the most that can be to in other said activity about these that Con- statutes in order to obtain suf- gress position necessary purchase has taken no whatever ficient to funds precise confronting eases, court supply issue com- of narcotics. In such today. conclude, responsi- I principles therefore on the ba- mon of criminal law through- bility clearly applicable. sis of considerations discussed In- be opinion, deed, out this that narcotics addict that it would seem intolerable such may properly addicts, “already crippled by assert defense of “addic- who are prosecution charging igno- tion” in hopeless cycle poverty, him almost receipt posses- purchase, drugs, with mere rance and further bur- should be quantity stigma guilt, sion of a of narcotics which he dened the moral blameworthy, they to use morally intends himself order to satis- because fy merely the demands of The hall- his disease. cannot afford because we legal system is, always mark of our they treat them as if are not.” United been, ability adapt U.S.App.D.C. has Carter, its remarkable States (Chief new ideas new situations. It is 436 F.2d (1970). H.Rep.No.1444, Cong., Sess., 262. See 21 § U.S.C. 844 placed Crimes 91st 2d trafficking separate pt. 1, (1970), Cong. were in a at 9 & Ad- U.S.Code section, 1970, p. 4574, quoting which authorized more severe Advis- min.News penalties. 841(a)(1) ory Commission, supra See U.S.C. at 3. The argues that, Government since Con- also gress consistently re-enacted these stat- 263. See text and notes at notes 138-140 knowledge they utes with had been supra. interpreted non-trafficking applying See, g., Hearings possessors, addict it must have intended Before the House more, Ways Legis- equally, Committee on and Means such a result. It if not Regulate Dangerous likely, however, Congress lation to intended to Controlled question Substances and Amend Narcotics remain neutral on this and to Drug Laws, Cong., Sess., 328, 91st 2d leave its to the courts. See resolution ibid. charged specified concurring) (emphasis Judge Bazelon, types Nevertheless, original). con- of violence or certain I am crimes criminally trafficking Congress be held lia manifested a should vinced that despite For lesser ex- addiction.268 preclude law ble their common clear intent crimes, fraud, shoplifting or civ beyond those such as defense tension possession, which, il commitment made available crimes like act sentencing prosecution only lieu addict cause direct harm offender had been the addict himself. after brought process.269 into the criminal amendments to Jones- Indeed, of NARA entire structure Acts,266 for exam Miller and Harrison congressional specific determi reflects Congress ple, unequivocally that stated generally nation that addicts should no treated addict should be traffickers exempt prosecution. from criminal differently traffickers: than nonaddict earlier,270 course, there Of as indicated testimony was received “Some interpreting flexibility is room for to the effect subcommittee general provisions But of NARA. degree punishment determining the might the Act is not so flexible made between distinction should be interpreted permitting reasonably the ad trafficker the nonaddict court, principles under common law group the latter dict trafficker with responsibility, require of criminal *107 being severely. It dealt with less virtually non-criminal of all treatment your that the view of subcommittee interpreta addict offenders.271 Such an just vicious the addict trafficker as would, necessity,272 tion of render the trafficker, person the as nonaddict provisions commitment of and II Titles I no less heinous his are deeds Congress practically meaningless, addiction, at of his virtue hardly could result. intended such a tempt place such in a individuals separate category with a view to deal When viewed from the constitutional severely only less with them would perspective, however, this “line-draw encourage serve to the addict traffick ing” question is somewhat less settled. society.” er to the detriment of Fortas, writing Mr. Justice four congres- underlying The rationale of Tex members the Court Powell v. judgment must, course, sional of extend as, supra, that, although noted trafficking, logically only of acts Eighth would, view, Amendment in his directly but to all crimes which threaten liability forbid infliction of criminal life, limb, property or of oth- health upon the chronic alcoholic who ers. “guilty” public of no more in than mere Moreover, enacting Titles I and II toxication, NARA, Congress expressly of intended compelled by engage July 18, 1956, their disease to 266. Act of c. § particular activity (repealed 1970). issue. Stat. 568 practical effect, however, it seems H.Rep.No.2388, Cong., Sess., 84th 2d clear that most addict crime is in fact (1956), Cong. U.S.Code & Admin. inseparable Moreover, from the disease. 1956, p. News extremely it would be difficult to differen- tiate between crimes which derive from 4251(b), (f)(1), (f) 268. See 18 U.S.C. § the addiction and crimes which (3); 2901(c), (g)(1), (g) § U.S.C. product independ- viewed as the of some ent antisocial tendencies. And since the seq.; 269. See 18 4251 et U.S.C. 28 U.S. proof burden of on this issue would seq. et §C. presumably Government, lie with the defense would in all See text and notes likelihood serve to at notes 253-260 acquit supra. most, all, least if not of their otherwise criminal acts. 271. Extension of the addiction defense to would, course, exculpate other crimes 272. See text and notes at notes 208-209 only supra. those addict offenders who were —namely such as those which are “[i]t is not foreseeable appellant’s decisive findings being here .involving viction ciety.” a chronic alcoholic for much With reference greater risk to narcotics “crimes to so- part addiction, public intoxicated
Justice Fortas’ discussion
ently
Similarly,
pattern
compulsion symptomatic
ease —could
while
case
pendent
robbery.
typically
should
27
duct which is not a characteristic
chronic
herein
involuntary part of
disease
agreed
intoxicated,
be convicted for
offenses
syndrome
Mr.
of his disease and
alcoholism.
acts or conduct
flow from and
Such
or
Justice
principle
would
afflicts
offenses
prevent
such
assault,
White,
as
If an alcoholic
be made
the disease
pattern
with much of
him, nothing
driving
criminal con
require inde
are not
of that dis
and do
who
theft,
due to
punishment.”
appar-
public
part
car
While
offered
separable
like
I would limit
diction defense
Amendment would bar conviction
sary
“such a construction
*
use.
mitting other criminal acts.”
loss
punishment only when
of a heroin addict
would not bar conviction
This doctrine or the use of
narcotics
position
mere
-x-
these comments
part
simply
Beyond
-x-
purchase,
physical
acts which are a neces-
for addiction,
personal
dicta,
availability
and mental
Court.
disease itself
receipt
* * *
it
caused sufficient
those acts
they
the addiction
would
of the
such
use,277
Consequently
Powell were
do indicate
as
faculties.
for com-
preclude
Eighth
and, at
simple
which,
only
ad-
in-
time,
intoxication
same
inflict no direct harm
stated
issue,274
upon
Eighth
might
other
Amendment
not bar con-
members of
society.278
standing alone,
273. 392
at 559 n.
“The fact
U.S.
of addiction
S.Ct.
*108
Hinnant,
permit
finding
also
does not
of mental
See
Driver v.
167, 356 F.2d at
Mr.
Justice
disease or defect. Evidence of that
fact,
probative
Marshall,
writing
however,
4
also
of
value
members
Court,
limiting prin-
conjunction
declared
the
that this
evidence of mental ill-
with
simply
ness,
deprivation
ciple was
fiat.”
of a
“limitation
392
and the effect
534,
286. Thus the defense be available nature. the defense could though physical- by any regardless even the defendant is not be asserted individual ly dependent physically As we have whether ad- narcotics. uses is seen, psychological component dicting. supra. of ad- See As a note 129 practical matter, upon however, depending cases even more diction some physical. drug involved, might considerably than I severe see no reason why, if an more raise individual’s use difficult for the defendant *111 impairment correspondingly led to a substantial of his the defense and easier for ability narcotics, avoid the use Government defeat where simply inapplicable physical dependence defense should be be- is absent. dependence psychological cause his notes — Type, Responsibility, ate and Criminal to. presented Meeting, at 33rd Annual Com- Drug Dependence, Kramer, mittee on Problems of Versus J. C. The State Council, Commitment, National Research National Addict: Bost. Uncivil Academy (Feb. 1971). of Sciences Dr. Dr. Kramer U.L.Rev. 12-13 Phillipson formerly is identified as associate di- the research director operations, program. rector for Division of Narcotic commitment California civil Drug Abuse, Addiction and National In- stitute of Mental Health. compul operate Black and Harlan sory any prohibi- concluded to undercut “carry possession, commitment would tion with it a and that this must be
Notes
notes This committee Cong., H.R.Rep.No.1486, 2d Sess. individuals 89th those also be able to consider Cong. (1966), & Admin.News another did one reason or U.S.Code who for program. 1966, p. complete the civil commitment pro- provisions in II title contained Perspectives, at 54. sentencing commitment vide for treatment, procedure be possible changes seems taken in the of Title II been NARA and also the wrought Report September appellant Staff in Evaluation his more suc- judge experience then trial cessful Court the D.C’s Narcotic Session, “Raymond Agency. assuming of General Treatment Even Danbury likely program Moore is an addict who is would not be suitable through appellant instance, rehabilitated a treatment the first program explore suitability remand could this Institution at this time. programs might possibly He at other be consid- facilities —which are operated by ered either prospect a suitable for a Methadone the Public Health appears Services or to Program, but it which that Service has ac- also that he including hospital cess, need of access the commu- care.” nity opened up treatment centers — proffered testimony of Mr. Gore legislation.165 recent See United States NTA, appellant’s for re- chances Miller, U.S.App.D.C. 110, 476 F. good, properly habilitation are while ex- explore 2d 555 The remand to trial, cluded at would of course be con- possibilities NARA could also consider disposition sidered on a remand. While II, whether under Title after conditional picture completely clear, is not there granted, release U.S.C. reason, appellant to believe that individual can receive methadone proffer (appellant’s least able to community providing treatment center 37) brief, at was not until after aftercare, if so whether methadone January ap- 1970 offense for which
notes
see
text
exists
15,
diction:
or
69
Disease?
Crime
105-128 infra.
(1961)
(hereinafter cited as Joint Com-
regulated
drug
narcotic
50. The
mittee) ; H.Rep.No.23,
Cong.,
63rd
1st
government
19th cen-
in the
the federal
tury
Sess.,
(1913) ; S.Rep.No.258,
63rd
opium
suitable
in a form
was
Cong.,
Sess.,
(1914).
2d
drug
smoking.
1866,
was sub-
In
See,
g.,
duty,
supra
high
Vogel,
prohibitively
52.
e.
jected
mak-
D.
&
Maurer V.
ato
14,
7;
Lindesmith, supra
virtually impossible
note
at
A.
note
to obtain
210;
legal
17,
King,
through
supra
34,
smoking
purposes
at
note
at 113.
Pellens,
Terry
importation.
M.&
See C.
prominent among middle-aged
adopted
cotics
though
southern
Act was
in 1914.58 Al-
upper
whites and members of the
class.53
formulated
revenue
generally measure,59
addict of that era
the Act was intended to
bring
had little or no
crimi-
involvement with
domestic
traffic
narcotics into
activity,
open
frequently
federally
nal
sponsored
was able
under a
li-
censing system
sloppy
lead his life in a
fashion.54
normal
so that
dis-
practices
day
Those addicts
who wished
avail them-
pensing
could be
apply
any
Thus,
selves of
exceptions,
medical care could
checked.
with certain
profession
any person
member of the
it was
medical
made unlawful for
treatment,
including gradual
produce,
import, manufacture,
withdrawal
com-
regime.55
“permanent
pound,
in,
sell,
or even a
comfort”
dispense,
deal
distribute
Although
give
certainly
away
ap-
any
opium
habit
was
derivative of
proved,
regarded
registered, paid
neither was it
as crim-
cocaine unless he had
required
Typically,
taxes,
inal.
addiction was
viewed as
and maintained care-
personal
an illness or
ful
misfortune —much
records of his transactions. Al-
today.56
though possession
as alcoholism is
not itself
made
criminal,
prima
it was to be treated as
As the ranks of the addicted contin-
proscribed
evidence of the
acts.
facie
neither the
swell, however,
grad-
public
ued to
language
of the statute nor
ually grew alarmed and the need for ef-
legislative history
its
is there
indi-
regulations
fective federal
to eliminate
Congress
specifical-
cation that
intended
the indiscriminate sale and distribu-
ly.
punish
possessed
addicts who
apparent.
tion of these
became
drug solely
personal
Indeed,
use.60
Against
backdrop,
the United States
quite
such an intent would have been
participated
Hague Opium
Con-
given
surprising
general regulatory
vention
purpose
of 1912 for the
of estab-
prevailing
nature of the Act and the
mo-
lishing
produc-
international controls on
res of the time. Thus when the Su-
tion,
opium
sale and use of
and coca
preme
products.57
Court first had occasion to inter-
obligations
To fulfill our
pret
“possession”
agreement,
provisions
under
in Unit-
the Harrison Nar-
See,
Powers,”
g., Lang, supra
23,
July
29,
454;
53.
Other
e.
Jan.
1912 and
note
at
9, 1913,
Note, supra
(1912).
48,
607; H.Rep.No.
note
at
38 Stat.
23,
Cong.,
Sess.,
(1913) ;
63rd
1st
S.
17, 1914,
1,
1,
58. Act of Dec.
c.
Rep.No.258,
Cong.,
Sess.,
63rd
2d
(repealed 1970).
Stat. 785
The consti-
(1914).
noteworthy
approxi-
It
tutionality
upheld
of the Act was
in Unit-
mately
of all
at
time
60%
Doremus,
86,
ed
States
U.S.
See,
g.,
Lindesmith,
were women.
e.
A.
214,
S.Ct.
notes infra. the Amer Addiction — Official Actions of See, supra 22, g., Eldridge, 116. e. W. note (1963). ican Medical Association 27; Ausubel, Compul- at The Case compiled known and Statistics sory Ward Treatment Nar- Closed approximate reported reveal addicts ; Addicts, 58, (1961) cotics F.R.D. Morphine, codeine, ly heroin. use 96% Note, 48, supra note at 608. combined account demerol and dilaudid g., See, e. Statistical for another 3%. See, Blum, 25, g., supra 117. 49. e. note at Abstract, 110, supra 116. Table No. note Dept., supra Treasury also See, See S. H.Rep.No.92-678, Cong., U. g., 118. e. 92nd 112, (1971) Sess., ; H.Rep.No.91-1808, No. 12. 1st note at Table Cong., Sess., (1970). 91st 2d depends upon noth- ior of the Yet addict also itself.121 effects truth, legal ing social context which it oc- from could be farther curs, produces tranquil, reality le- and with the realization that crimi- heroin inhibiting ag- thargic user, necessary nal behavior is neither a nor state logical gressive consequence As a even dis- and sexual activities.122 ease, rarely, result, we must fact violence face the undeniable rimes of “[c] never, commit- our of addiction almost criminalization and sexual crimes has, part, self-fulfilling become a ted addicts.” prophecy.125 Having been cut off from although public’s concern And legal supply, many all sources of criminality is over nonviolent addict market, prices resort to the black where unfounded, important ques- no means Indeed, are astronomical. cost remain unanswered. tions of causation may per day, some addicts exceed $150 course, engaged Many addicts, average requires and the addict almost prior activity to their ad- criminal even $13,000 per year simply purchase her- diction, post-ad- and to extent both some satisfy oin sufficient his addiction.126 criminality itself diction and addiction say, Needless to few street addicts can independent manifes- viewed prices supplement- afford such without underlying through tations of some other antiso- their income activity,127 and the cost of such crime to cial tendencies.124 But the social behav- (hereinafter See, g., Ploscowe, supra 51, cited as I. et 121. e. at Ohein note al.) ; Blum, supra 25, 46; Note, supra 110, note at 124. 55-57. note at See, Special g., supra Committee, 125. e. See, Law, g., e. The Addict and the 56, 25; supra Lindesmith, note at A. 23, XI; supra Force, note at Task 17, 43-44, 221; Nyswander, note supra M. important note, note at 2. It 45; Jaffe, Drug note Ad however, that those observations are lim- Drug Abuse, diction and in L. Goodman depressant-type drugs ited to such as Gilman, Pharmacological & A. Basis opiates. drugs, cocaine, Other like Therapeutics 276, (4th 285-286 ed. may stimulate the user to violent crime. 1970) ; Frankel, Addiction, Narcotic See, g., Bowman, e. Narcotic Addiction Responsibility, Criminal Com Civil Responsibility and Criminal Dur- Under mitment, 1966 Utah L.Rev. 584- ham, 53 Geo.L.J. 1041 n. 107 585; Bowman, supra note at 1040- Committee, supra 123. Joint note may range 126. The cost to the addict Similarly, the President’s Commis- per depend- day, to more than $20 $150 sion Law Enforcement and Adminis- ing upon intensity of the addiction. tration of Justice concluded that “[as- average usually habit is estimated at acts, contrary pop- saultive or violent day. per See, H.Rep. about $35 belief, exception ular are the rather than No.91-1808, Cong., Sess., 91st 2d addict, the rule for the heroin whose calming depressant has a ef- Moreover, problem aggravated Force, supra fect.” Task at 10.
see text notes § 4551 addict’s 1971). seq. (Supp. experience A number supra, IV can 521 et such an 141-143 would, Congress presently hardly thought re- before of bills to be conducive availability expand greatly g., Ausubel, adopted, See, if habilitation. involuntary of nar- commitment civil See, e. H.R. cotics addicts. the number of commitments As of ; Cong., H.R. 1st Sess. 92nd high ranged of 35 the Act under
See text and
notes
(1909).
2d Sess.
1251
drug
possess
servility
a suffi
to
elimination' of
on the
“crime” is
whose sole
drug
satisfy
part
persons
quantity of
of addicted
can best be
cient
Indeed, only
accomplished by
of his disease.227
the removal from
demands
so
adopted
ciety
years
of the illicit
after
Act was
trafficker.
It is to
two
recognizing
your
Court,
Supreme
the limited
this end that
tak
committee has
statute,
en
purpose
held that Con
action on
amend
favorable
[these
230
possession
gress
.”
ments]
mere
had not
intended
per
amount of narcotics
a small
Thus, although these amendments
did
statutory
pre
trigger
sonal
use
provisions
not alter
substantive
sumption
illegality.
United
See
existing laws,231 Congress expressly
Fuey
supra,
Moy,
241 U.S.
States v. Jin
distinguished
penalties—
terms
—in
394,
658,