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The Addict and the Law
By Alfred R. Lindesmith
Washington Post, 1961
CHAPTER 1. ADDICTION AND THE LAW
“With the language of this law we can trap addicts like animals.”
The present program of handling the drug problem in the United States is, from the legal viewpoint, a remarkable one in that it was not established by legislative enactment or by court interpretations of such enactments. Public opinion and medical opinion had next to nothing to do with it. It is a program which, to all intents and purposes, was established by the decisions of administrative officials of the Treasury Department of the United States. After the crucial decisions ha d been made, public and medical support was sought and in large measure obtained for what was already an accomplished fact.
Another unusual feature of the federal narcotic laws is that, while they are in legal theory revenue measures, they contain penalty provisions that are among the harshest and most inflexible in our legal code. This chapter is concerned mainly with the way in which the addict is affected by the law-primarily federal but also state and local.
The basic antinarcotic statute in the United States is the Harrison Act of 1914.’ It was passed as a revenue measure and made absolutely no direct mention of addicts or addiction. Its ostensible purpose appeared to be simply to make the entire process of drug distribution within the country a matter of record. The nominal excise tax tow cent per ounce),- the requirement that special forms be used when drugs were transferred, and the requirement that persons and firms handling drugs register and pay fees, all seemed designed to accomplish this purpose. There is no indication of a legislative intention to deny addicts access to legal drugs or to interfere in any way with medical practices in this area. Thus, the act provided that:
Nothing contained in this section shall apply: (a) to the dispensing or distribution of any of the aforesaid drugs to 2 patient by a physician, dentist, or veterinary surgeon registered under this Act in the course of his professional practice only.2
Other portions of the act which exempted persons who obtained drugs pursuant to a prescription from a registered physician from the penalties of the law qualified this exemption by noting that the prescription had to be “for legitimate medical purposes,” and “prescribed in good faith.” Nowhere in the statute was there a definition of what constituted legitimate medical practice or good faith in the doctor’s dealings with drug users. Hence this exemption became a matter of controversy in the early years of enforcement of the Harrison Act.
There were two major influences which led to the enactment of federal narcotic legislation at that time. One of these was that American representatives to international conferences had, before 1914 (e.g., at The Hague Convention in 19 12), urged other governments to establish systems for the internal control of narcotic drugs. It was therefore inconsistent that the United States itself did not have such a system. The other influence developed from a growing realization that there were relatively large numbers of addicts in the United States and an impression that the problems posed by this fact were not being effectively met by the various measures adopted by different States and localities.
The passing of the Harrison Act in 1914 left the status of the addict almost completely indeterminate. The Act did not make addiction illegal and it neither authorized nor forbade doctors to prescribe drugs regularly for addicts. All that it clearly and unequivocally did require was that whatever drugs addicts obtained were to be secured from physicians registered under the act and that the fact of securing drugs be made a matter of record. While some drug users had obtained supplies from physicians before 1914, it was not necessary for them to do so since drugs were available for purchase in pharmacies and even from mail-order houses.
In 1915 a Supreme Court decision in the U.S. v. Jin Fuey Moy case3 took the first important step which ultimately led to the outlawing of the addict when it ruled that possession of smuggled drugs by an addict was a violation of the law. As regards the section of the Harrison Act which specifically stated that the possession of drugs by unregistered persons was to create a presumption of guilt the defense had contended that it referred only to persons required to register and not to all persons. It was argued that making possession of illegal drugs a crime for anyone had the effect of creating an entire class of criminals with a stroke of the pen. A similar doctrine during the prohibition era would have meant that any person with a glass or a bottle of liquor would have been subject to a prison sentence if he were unable to prove that it was not bootleg liquor. This decision had the effect of forcing the addict to go to the doctor as the only source of legal drugs left to him. This remaining source was shortly eliminated by further court decisions in the doctor cases.
The early Supreme Court rulings concerning the doctor’s relationship to addicts were based upon cases involving physicians who had prescribed large quantities of drugs to many addicts in an indiscriminate manner. The Webb case 4 in 1919 the Jin Fuey Moy 5 and the Behrman 6 Cases, in 1920 and 1922 respectively, were decisive ones of such a nature. In the Webb case the court ruled that a prescription of drugs for an addict “not in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use” was not a prescription within the meaning of the law and -as not included within the exemption for the doctor-patient situation. The Su to consult medical opinion on the matter, for it said that the con that no discussion is required.” Later, in the Jin Fuey Moy case of1920, the Court ruled that a doctor could not legitimately prescribe drugs “to cater to the appetite or satisfy the craving of one addicted to the use of the drug.” Treasury Department regulations still use the Webb case language when they instruct the physician that he may not provide narcotics for a user “to keep him comfortable by maintaining his customary use. . .
The Behrman case in 922 gave further support to the idea that it was not legitimate for a physician to prescribe drugs for an addict, for in it the court ruled that such prescriptions were illegal regardless of the purpose the doctor may have had. The decision in this Case seemed to deprive physicians of the defense that they had acted in good faith, for Dr. Behrman was convicted despite the fact that the prosecution stipulated that he had prescribed drugs in order to treat and cure addicts.
After the Behrman case the legal position of the addict seemed quite clear. He was simply denied all access to legal drugs. The rulings by the Supreme Court seemed to be moving toward the idea that the physician could not legally prescribe drugs to relieve the addict’s withdrawal distress or to maintain his habit, but could provide drugs only to an addict undergoing institutional withdrawal and then only in diminishing doses. However, criticism of the law from medical sources may have shaken the Court’s confidence, for even before the Linder decision 7 in 1925, a note of doubt crept into some decisions. For example, in the Behrman case, in which vast quantities of drugs had been prescribed, the Court suggested that a single dose or even a number of doses might not bring a physician within the penalties of the law.
The Supreme Court decisions up to 1922 made it-impossible for doctors to treat addicts in any way acceptable to law enforcement officials. The ambulatory method of treatment had been condemned, and since addicts were not accepted in hospitals, the doctor’s right to administer diminishing doses during an institutional cure was mainly theoretical. The danger of arrest and prosecution was clearly recognized af ter 19 19, when the first of the important doctor cases had been decided by the Supreme Court. Most doctors simply stopped having anything to do with addicts and the few who did not do this found themselves threatened with prosecution. The illicit traffic burgeoned during these years as addicts who had formerly obtained legal supplies turned to it in increasing numbers.
If the legal situation created by court decisions on the doctor cases had been left as it was in 1922 the addict’s legal status and his relationship to the medical profession would at least have been relatively clear. A definite rule prohibiting medical prescriptions for users except under extremely restricted circumstances seemed to be in the process of emerging from a series of court decisions which were reasonably unambiguous and consistent with each other. The Treasury Department, entrusted with the enforcement of the law because it was a tax measure, had drawn up regulations which were based upon these early decisions. These regulations instructed doctors as to when they might give drugs to addicts and when they, might not, and advised them to consult the police for advice in doubtful cases. The whole theory implicit in them was that addiction is not a disease at all but a willful indulgence meriting punishment rather than medical treatment. Regular administration of drugs to addicts was declared to be legal only in the case of aged and infirm addicts in whom withdrawal might cause death and in the case of persons afflicted with such diseases as incurable cancer. Current regulations of the Federal Bureau of Narcotics are still substantially the same with respect to these points.’
THE LINDER CASE (1925)
Unlike the doctors in the earlier cases, Dr. Charles 0. Linder, a Seattle practitioner, provided only four tablets of drugs for one addict. The addict, a woman, came to his office in a state of partial withdrawal and he provided her with drugs to be used at her discretion. She was an informer who reported the incident to the police and Dr. Linder was prosecuted for criminal violation of the law. According to previous court decisions and the Treasury Department regulations in force at the time, Linder should have been convicted, and he was. The lower court could hardly, have reached any other decision, for Dr. Linder had obviously given drugs to this user to relieve withdrawal distress and to maintain customary usage and there was no thought of cure.
Nevertheless, after prolonged litigation, which is said to have cost Linder $3o,ooo and caused him to be without a medical Dr license for two years, he was finally exonerated by the Supreme Court. In its opinion, a unanimous one, the Court discussed the earlier doctor cases of Doremus, Jin FueN Moy, Webb, Balint, and Behrman. While it did not specifically repudiate the doctrines drawn from these cases concerning the doctor’s right to prescribe for addicts, it did explain that these cases had involved flagrant abuse and that the decisions had to be considered in this context.
Reiterating that the Harrison Law was a revenue measure, the Court added the following important statement:
It [the act] says nothing of “addicts” and does not undertake to prescribe methods for their medical treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that 2 physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them, in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances.9
Commenting upon the Webb case, the interpretation of which it did not accept, the Court commented that the rule therein formulated must not be construed as forbidding every prescription for drugs, irrespective of quantity, when designed temporarily to alleviate an addict’s pains, although it may have been issued in good faith and without design to defeat the revenues.10
Of the Behrman decision the Court similarly warned:
The opinion cannot be accepted as authority for holding that a physician who acts bona fide and according to fair medical standards may never give an addict moderate amounts of drugs for self -administration in order to relieve conditions incident to addiction. Enforcement of the tax demands no such drastic rule, and if the Act had such scope it would certainly encounter grave constitutional difficulties.”
The two new elements in this decision are (a) the Court’s explicit espousal of the view that addiction is a disease and (b) the rule that a physician acting in good faith and according to fair medical standards may give an addict moderate amounts of drugs to relieve withdrawal distress without necessarily violating the law.
This opinion, which is still the controlling doctrine of the federal courts, seems to make nonsense of what had gone before, for it said that the addict who had been denied medical care by earlier decisions was a diseased person entitled to such care. More important still, it clearly implies that the question of what constitutes proper medical care is a medical issue and therefore, presumably, one to be settled, not by legislators, judges, juries, or policemen, but by the medical profession. Certainly the federal courts in particular cannot legally tell doctors what to do with addicts if addiction is viewed as a disease.
The logical consequences which seem to follow from the acceptance of the Linder opinion were spelled out by Federal Judge L. R. Yankwich in 1936:
I am satisfied therefore, that the Linder case, and the cases which interpret it, lay down the rule definitely that the statute does not say what drugs a physician may prescribe to an addict. Nor does it say the quantity which a physician may or may not prescribe. Nor does it regulate the frequency of prescription. Any attempt to so interpret the statute, by an administrative interpretation, whether that adrninistrative interpretation be oral, in writing, or by an officer or by a regulation of the department, would be not only contrary to the law, but would also make the law unconstitutional as being clearly. a regulation of the practice of medicine.22
The references to administrative interpretation and regulation in this statement refer to Treasury Department regulations already referred to, which do in fact instruct physicians as to when they may and may not prescribe drugs for addicts. If this opinion is correct, the conclusion is inescapable that the present punitive system of dealing with addicts and the Treasury Department regulations on which it is based are in direct violation of federal law and based upon an unconstitutional interpretation of the Harrison Act.
If the Linder case dictum that addiction is a disease had been taken literally, a rational procedure which might have been adopted is suggested by what was done in Britain -when the same disagreement arose between enforcement authorities and British physicians concerning the physician’s right to prescribe regularly for addicts.
The Government was asked to set up a committee of medical men to investigate the question. The Rolleston Committee was the result. After extensive hearings in which this committee listened especially to the testimony, of medical men with particular knowledge and experience of the subject, the committee reported that doctors might prescribe drugs regularly for addicts and specified the conditions under which this might be done and the precautions which should be observed. This report, published in 1926, then became the official interpretation of the Dangerous Drugs Laws of 1920 which were very much like the Harrison Act in all respects except that they were not called tax measures.
No similar appeal to the medical profession was made in the United States, where the courts themselves have tried to formulate the relevant rules. The only recourse to medical advice has been through the use of expert testimony in the usual pattern, with prosecution experts supporting the prosecution’s view, defense experts opposing them, and the jury choosing between the conflicting views. This makes a jury of laymen the arbiters Of 2 technical medical dispute and in practice means that the courts intervene in a medical controversy on the side of the faction which supports the government’s enforcement program, by subjecting others to criminal trial.
As far as enforcement policies are concerned, the Linder case has had practically no effect and remains a ceremonial gesture of no practical significance for either addicts or physicians. Most assistant prosecutors acquiring trial experience in narcotics cases, and most police officers, probably do not know of its existence, for there is no reference to it in most of the literature issued by the Federal Bureau of Narcotics. The risk of arrest remains as before for physicians who attempt to treat addicts as diseased persons and addicts still find that the doors of the hospital and the doctor’s office are closed to them.
There are a number of reasons for the impotence of the Linder doctrine and prominent among them is the legal confusion in the subsequent cases. Since the Linder decision appeared in 19251 the Supreme Court has not had the opportunity to expand and clarify it by ruling on other similar cases. Reasons for this lack of opportunity are probably that few reputable physicians care to play Russian roulette with their careers by challenging existing enforcement practices, and second, that the government has been careful about prosecuting certain types of cases so as not to give the Supreme Court a chance to expand and emphasize the precedent of the Linder case.
Nevertheless, in June 1962 the Supreme Court did again affirm its position in the Robinson v. California case.13 This case involved a test of a California statute making it a crime to “be addicted to the use of narcotics” and providing that any person convicted under this provision be required to spend at least ninety days in confinement in a county jail. In ruling that the California statute was unconstitutional and in violation of the Eighth and Fourteenth Amendments because it prescribed cruel and unusual punishment, the majority opinion refers to the Linder case. There follows this remark: “To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.”14
The lower federal courts were no doubt reluctant to follow the logical implications of the Linder case, for this would have meant upsetting an established enforcement policy vigorously supported by police propaganda and to some extent by popular opinion and by pan of the medical profession. In 1925 this policy had been in operation for a decade. Apathy in the medical and legal professions, based in large part upon the addict’s low social status, his lack of funds, and the fact that he is a difficult and troublesome person, contributed heavily to the reluc nce to charge the statu quo.
A legal device favoring this conservative position was to interpret the rule of the Linder case as one which supplemented rather than replaced the older ones. Thus the Circuit Court of Appeals of the 1 0th Circuit, in Strader v. United States, reversed the conviction Of 2 doctor and stated:
The Statute does not prescribe the diseases for which morphine may be supplied. Regulation 85 [of the Federal Bureau of Narcotics] issued under its provisions forbids the giving of a prescription to an addict, or habitual user of narcotics, not in the course of professional treatment, but for the purpose of providing him with a sufficient quantity to keep him comfortable by maintaining his customary use. Neither the statute nor the regulations preclude a physician from giving an addict a moderate amount of drugs in order to relieve a condition incident to addiction [withdrawal distress], if the physician acts in good faith and in accord with fair medical standards. [Italics added.]15
The italicized statements formulate two mutually incompatible rules. The first is that of the Webb case; the second, that of Linder. A doctor who provides an addict with drugs to relieve withdrawal distress necessarily also keeps him comfortable by maintaining customary use. No medical person acquainted with addiction would ever have been guilty of making this absurd statement, which makes a distinction without a difference. Since both of these rules apply simultaneously to the reputable physician who treats an addict, there is no way of knowing whether he will be convicted under the first or exonerated under the second.
Without analyzing in detail other specific post-Linder cases, the following general points may be made concerning them and their implications: ( I ) the courts have not relinquished their right to rule on the good faith of the physician or to submit this question to the jury, and since no definite rules defining good faith have ever been formulated, the physician can only discover whether he acted legitametely after a criminal trial, (2) a physician’s sincere conviction that the oath of his profession and his ethical duty to relieve human suffering and to give first importance to the welfare of his patient obligate him to provide addicts with drugs has not been an effective legal defense; (3) physicians of admitted integrity and sound professional reputation have continued to be arrested, indicted, and convicted; (4) medical experts of national reputation in the field of addiction, whose opinions of the proper treatment of addicts would ordinarily be regarded as of decisive significance in defining legitimate medical practice, have been indicted, tried, and convicted for acting in accordance with their beliefs; (5) the federal courts have done next to nothing to restrict their jurisdiction in narcotic cases in a manner consistent with their own doctrine that addiction is a disease.
In connection with point (4), two additional cases should be mentioned, those of United States v. Anthony and Carey v. United States. 16 These two cases involved three physicians, Carev, Williams, and Anthonv, who were asked by the City of Los Angeles, at the behest of the Los Angeles Medical Association, to take over the treatment of addicts who were former patients in that city’s narcotics clinic. All were convicted in federal court for violations of the narcotic laws. The conviction of Anthony was reversed in an appeals court, but the appeals of Carey and Williams were rejected on technical grounds and their convictions stand. Of the three, E H. Williams was a prominent author included in Who’s Who, a former associate editor of the Encyclopaedia Britannica, and a nationally known expert on narcotic addiction whose writings are still read with respect.
The irony involved in the conviction of E. H. Williams is emphasized by the fact that in his trial, the stool pigeon who testified in court against him admitted that he was under the influence of drugs being supplied to him regularly by government agents. In most of the other doctor cases, drug-using stool pigeons were also used, as the records indicate. The courts have deplored this practice but have tolerated it as a necessary expedient in law enforcement, thus sanctioning the provision of drugs to addicts by the police while denying the same right to physicians.
On June 14, 1938, Congressman John Al. Coffee of the State of Washington, in an address to the House of Representatives on the narcotics question, made tile following statements concerning the cases of the three Los Angeles physicians referred to above and some of the persons involved in it:
The extent to which unlawful activities in the distribution of narcotics have invaded official life is cogently suggested by several recent happenings:
First. The arrest, prosecution, and conviction of the chief Federal narcotics agent for the State of Nevada-Chris Hanson-and a confederate who ‘Was formerly a revenue officer, for direct dope peddling and connivance with a gang of Chinese racketeers in June 1937. Hanson was sentenced to 10 years in the Federal penitentiary at McNeil Island and a fine of $9.000. It is to be noted that Hanson was chief Federal narcotic agent at Los Angeles, California, at the time of the arrest and prosecution there of physicians, through which the closure of the beneficent narcotics clinic of the county medical association and board of health was effected-and the 75 rehabilitated patients thrust back into the hands of the dope peddlers. Incidentally, it should be noted that the U.S. attorney who cooperated with the narcotic agents in the prosecutions in question was ousted from his position for his action in this affair, along with the two assistants directly involved, one of whom was held for contempt of court because of his reprehensible actions. The character of the associates of the Federal narcotics agent is further evidenced by the arrest and imprisonment of another officer-investigator for the State medical board of examiners-who had an active share in the frame-up of clinic physicians.
It is perhaps not without significance to note that no Federal bureau or agency had any share in the initial investigations through which Chief Federal Agent Hanson and the former customs officer were entrapped at Reno. On the other hand, the Commissioner of Narcotics took an active hand in the questionable proceedings at Los Angeles which led to the arraignment of the assistant United States attorney for contempt of court. And he is on record as regarding that case as the most important in the history of the Narcotics Bureau, with its record of many thousand cases.’-,
That the Linder case is an embarrassment to the federal Bureau of Narcotics is strongly suggested by the consistent failure of this Bureau to call attention to it. In one of its publications the Bureau disputes the usual interpretations and argues that the Linder decision is explained by a defect in the indictment, which did not allege that Dr. Linder acted in an unprofessional manner:
It seems, therefore, that the substance of the holding was that, in the absence of an averment in the indictment that the sale was not in the course of professional practice only, the Court could not find as a matter of law that the We of the tablets by Dr. Linder “necessarily transcended” the limits of professional practice.
We submit that the Linder case did not lay down the rule that a doctor acting in good faith and guided by proper standards of medical practice may give an addict moderate amounts of drugs in order to relieve conditions incident to addiction. What the Court stated in the Linder case was that the opinion [in the Behrman case] “cannot be accepted as authority for holding that a physician, who acts bona fide and according to fair medical standards, may never give an addict moderate amounts of drugs for self -administration in order to relieve conditions incident to addiction.” This is not an affirmative declaration that a physician may continue to dispense narcotic drugs to an addict to gratify addiction.
The Bureau then goes on to call attention to the fact that many doctors have been convicted subsequent to the Linder case for supplying drugs to addicts and that in at least ten instances these convictions were upheld by United States Courts of Appeals
The Bureau in this statement, which is one of the exceedingly rare occasions in which it takes any note whatever of the Linder case, makes no mention of the doctrine of the federal courts that addiction is a disease. Regardless of the merits of the Bureau’s position from a legal or a logical point of view, it is this position upon which its regulations are based and it is these regulations, rather than the decisions of the courts or the statutes themselves, which directly guide enforcement policy. The Bureau’s interpretation clearly leaves the determination of legitimate medical handling of addicts within the police domain and justifies, however shaky the reasoning may seem, the continued prosecution of reputable physicians.
It is difficult to understand the concern Of Officials and courts to prevent doctors from keeping addicts “comfortable” as though there were something inherently reprehensible in this. The same officials and courts know that drug-using informers working for the government are kept “comfortable” and that addiction is used as leverage to compel addicts to act in the interests of the police. This use of addicts as informers is sometimes called a “dirty business,” involving as it does the exploitation of disease, but it is nevertheless sanctioned or at least tolerated by the courts. When the police see to it that an informer is provided with drugs they are not concerned with effecting a cure nor with the addict’s welfare. The doctor, on the other hand, finds that the operation of the law prevents him from acting in the interests of an addict patient. It is generally thought to be one of the noble functions of medicine to relieve unnecessary suffering and to keep patients in comfort, and yet the medical man who seeks to apply these principles to drug users is threatened with criminal prosecution.
The withdrawal distress that develops several hours after an addict is deprived of drugs is of ten a severe and prolonged ordeal that harms the addict’s health and sometimes even results in death or in suicide. When the courts tacitly approve of present police practices which cause addicts repeatedly to undergo this experience without medical attention they in effect set up the narcotics detective as a judge and as an executioner, and invite the drug peddler to substitute for the doctor in ministering to the addict. The drug peddler is perhaps the most despised criminal in the United States today, but as the law is presently enforced, he is the only person to whom the addict can go to secure relief from his suffering. The courts appear to have been indifferent to this fact.
In addition to these practices of the police, it is of interest to note that Public Health Service officials at the Public Health Service Hospital at Lexington, Kentucky, which specializes in handling addicts, provide regular supplies of drugs to addicts over a period of time preliminary to complete withdrawal. This is recognized by experienced practitioners as a desirable practice because it permits the addict’s health to be built up and it allows for a period of needed psychological preparation for the ordeal of withdrawal. Outside of an institution this practice has the added virtue of removing the user from the control of the underworld drug peddler. Nevertheless, current enforcement practices effectively deny, the ordinary physician the right to do this.
Other Lexington practices have even more drastic implications. For example, in experimentation with human subjects in that institution nonusing, former-addict inmates have on frequent occasions been deliberately provided with drugs so as to reestablish active addiction. The Lexington officials are specifically authorized by law to experiment in this manner and the subjects they employ are always carefully selected volunteers who are withdrawn from the drug in ample time before release from the institution. Nevertheless, it seems very doubtful if such experimentation would be permitted if providing an addict with drugs were actually viewed as a crime. One may ask, if the physicians at Lexington have so much latitude, why should similar privileges not be extended to other doctors and researchers
It is probably pointless to indicate that the theory that the narcotic laws are merely revenue measures rather than police measures strains the imagination and is not taken seriously. For example, on this theory the police officers who forcibly pumped out the contents of a drug peddler’s stomach in the Rochin case” were interested only in the infinitesimal unpaid tax on the drugs found in his stomach. While the courts invalidated this technique, they have more recently, approved of a similar forcible search of a drug peddler’s rectum on the grounds that probable cause existed for believing that a quantity of drugs was there concealed.20
The penalties provided for violators also clearly do not make sense as tax collection devices.
Apart from the many obvious absurdities of the tax law theory, this view may have contributed to the fact that the narcotic law’s make no distinction in principle between the perpetrator of the crime and the victim of it. Under the tax theory it is possible to argue that the addict aids and abets the peddler in the evasion of the tax by buying and possessing illicit drugs. Under this theory the rational solution which would facilitate the collection of the tax would be to give the user access to legal drugs from registered physicians.
If the peddler’s crime is regarded as something other than a tax matter, it must be conceded that the harm done by him is upon the addict. This would seem to imply that the function of the law is to protect addicts from peddlers an obvious absurdity unless it is thought that addicts are protected from the peddler by being in jail while the peddlers largely remain outside.
From a moral point of view the chief wrong committed by the drug peddler seems to be that he makes money from addiction, but this interest in a “fast buck” is common in our society. Addiction itself cannot be attributed to the peddler except in the very general sense that it is the illicit traffic that now makes drugs available. The use of drugs is usually a voluntary matter, voluntarily begun and voluntarily continued. Whatever harm is involved in taking drugs is a harm which the individual does to himself; it is not one done to him by someone else. It is in this respect similar to the abuse of alcohol, tobacco, barbiturates. tranquilizers, sleeping tablets, and other substances the taking of which is not considered criminal.
The theory that the narcotic laws are tax measures has obscured and confused issues and prevented such questions as, “Who is the criminal?” “Who is the victim:” “What is the crime”‘ from being asked and rationally considered in shaping the statutes. The inclusion of the use of certain drugs within the scope of the criminal law may well be a mistake, an unwarranted extension of legal controls into the medical field and into the sphere of essentially personal behavior with which the criminal law ought not be concerned, and which it cannot in any case control.
The reason for the lack of distinction in the statutes between addict and peddler again represents a sacrifice of principle for expediency. The original formulation in 1915 of the theory that mere possession of illicit drugs by an addict was an offense may well have reflected pressure from enforcement sources, which have always complained of the difficulty involved in proving sale. The possession doctrine makes it easier to convict peddlers, and even easier to convict addicts. Placing the victim of the peddler under the same penalties as those provided for peddlers serves another extremely vital enforcement function by providing the leverage to force addicts to cooperate with the police in trapping higher sources of supply. All of this makes sense from the enforcement viewpoint, but it does not make sense if the addict is viewed as a diseased person, for it subjects him to exploitation not only by peddlers but also by the police, and it causes him to be sent to jail or prison solely because he is addicted or because he refuses to become an informer. In practice the injustice involved is enhanced by the relative ease with which addicts are apprehended and the great difficulty in apprehending important illicit traffickers.
To appreciate the consequences of the Harrison Act one needs to consult some of the opinions expressed at the time that it went into effect by intelligent and well-informed observers. As a single illuminating example, I shall reproduce some of the relevant comments of Dr. Charles E. Terry, who had been working with addicts in Jacksonville, Florida, from 19 1 1 until the Harrison Act went into effect in 1915:
One of the most important discoveries we made at that time was that a very large proportion of the users of opiate drugs – not cocaine were respectable hard-working individuals in all walks of life, and that the smaller part only, according to my figures about 18 per cent, could in anyway be considered as belonging to the underworld. In this 18 per cent were included those who used cocaine, as well as the true opiate addict.
Of the total number of registered addicts, about one-half were personally known to me. Many of these came regularly for their prescriptions, while others who could well afford to pay for their prescriptions, but were aware of our interest in the subject, came to me for advice and help. One of the first questions that I was asked, and this practically -as seen that I was not trying to persecute but invariably, when it were merely to discover facts, was “Where can I get treatment’ How can I get rid of this thing?” I have yet to see the first drug addict who does not honestly wish to be cured, and I have known them in all walks of life from the preacher to the prostitute.
When this law began to operate and large numbers of addicts, men and women, and even boy s and girls, came to what rapidly developed into a clinic though it was not so intended at first, I had no fixed ideas as to the nature of drug addiction. I had never discussed its characteristics with medical men. I had never attempted to treat the condition, and I was as nearly as a physician may well be, unbiased. I had of course ‘heard of gradual reduction, certain of the chain-store methods with chloride of gold, hyoscine, etc., and before our clinic had been running long, someone called my attention to the Towns-Lambert specific. was even tempted to try by gradual reduction to get certain individual who were particularly anxious to be cured, off their drugs. I early discovered that I at least could not do it, and that the condition to which I brought them was worse than that of which I attempted to relieve them.
In every case records were kept and efforts made to determine the causes or cause leading to the addiction. If any ideas lingered that inherent depravity was a common actuating cause, they were soon dispelled by the histories we recorded. We also discovered that it was no a problem for legislation or for police activity alone but that it was real medical and health program, and lacking any accurate knowledge of a satisfactory method of treatment we found ourselves in a most difficult and equivocal position. The more we looked into different methods of treatment, the more we became convinced of their un satisfactory nature.
In 1913 at the meeting of the American Public Health Association held in Colorado Springs, I reported our findings and experiences, and urged the association to take the matter up as 2 public health problem of importance.
At this stage the truth of my opening sentence is apparent, for while I recognized the medical and public health angles of the problem, I still felt that rigid laws offered great promise. I felt with others that 2 national law which would control interstate traffic in these drugs would solve the greatest part of the difficulties confronting us. It must be home in mind that at this period only a few states had restrictive laws that were not openly broken on every side and for the most part the formality of a physician’s prescription was rarely observed by druggists in dispensing any of the addiction or habit forming drugs’. Effectual restrictive legislation had never been tried and it was perhaps not unnatural to suppose that with the well-known sources of supply curbed, the use of these drugs would be very materially if not entirely prevented. It is obvious, however, that we had counted without the peddler. We had not realized that the moment restrictive legislation made these drugs difficult to secure legitimately the drugs would also be made profitable to illicit traffickers.
I had had practically no experience with this fraternity for a reason which I now understand well, namely because we furnished in the health office free prescriptions for those unable to pay for them, nor did we try to dictate to them the quantities they should take or for that Matter humiliate or persecute them in any other way. As a consequence the peddler could not make a living in our town, though he had begun to flourish in Massachusetts and New York.
Feeling as I did about the need for further restrictive legislation, I looked forward to the Passage of the Harrison Act, and during the months immediately preceding its beginning operation in May 1915 we tried to prepare our indigent cases for the drug deprivation which we believed was in store for them. They were urged to reduce their daily amount to the lowest possible limit, and they earnestly cooperated, and looked forward as did we to the time when they would be cured. Meanwhile, a fund was raised by private subscription and hospital and nursing facilities provided for about 20 beds. These beds were filled and refilled until between 65 and 75 patients had been treated. This is one of the experiences in my attempts to work out this problem which I do not like to recall. A local physician kindly volunteered to treat these cases. Although not practicing I visited them daily, and the nursing attention they received was of the highest order. The method of treatment employed was that known as the Towns treatment [rapid withdrawal plus administration of a belladonna mixture]. We felt, as do most when contemplating drug addiction treatment, that a certain amount of suffering was necessary, but I was not prepared for the extreme suffering which I witnessed in these cases, nor was I prepared for one death which occurred in an apparently healthy woman. With the exception of 2 or 3, all of these cases relapsed within a very short time after their discharge as cured, and I realized more than ever that here was indeed a medical problem and I began to harbor my first doubts as to the wisdom of blind restrictive legislation. And by this I mean legilation based upon habit and vice theories of drug addiction and upon the assumption that satisfactory methods of treatment are generally available.
Here again is recalled an unpleasant chapter when I found that for 4 years I had been attempting to administer this problem in an American city through the workings of what I believed to be a modem health department without having really made any earnest effort to inform myself as t the true nature of narcotic drug addiction.
In reviewing my own medical training I realized that I had never been shown a case of narcotic drug addiction, that I had never been given the opportunity to observe the symptoms of drug withdrawal, and that the only lectures to which I had listened in connection with opium and its derivatives dealt with its therapeutic properties, while its addiction-forming properties were mentioned in bur the most casual manner. Was not my own ignorance directly attributable to this lack of medical instruction’
That my experience was not unique was determined by the committee on habit forming drugs of the American Public Health Association, through a questionnaire submitted to the medical schools of the country.
It would seem unnecessary to state that the narcotic drug addict must be supplied with his drug in doses physically necessary until such time as he may receive treatment which will leave him in at least as good condition as that in which it found him. That to Supply this drug is not only necessary, but is vital, that to deny it is to cause a physical and possibly a moral wreck, while to heap contumely upon narcotic drug addicts as a whole is to drive them to the underworld for their supply, It never must be lost sight of that among the sufferers from this disease are numbered many of the highest intellectual types of men and women in the business and professional worlds, and that individuals of this type May not contemplate the indignities which many administrators seek to heap upon them, through their ignorance of the true nature of this condition and their apparent misconception of the character of its victims.
The above statements must not be interpreted to mean favoring or recommending the indefinitely prolonged supplying of narcotic drugs to addicts. They mean only that such supply is at present a temporary necessity designed to tide over a period of medical education after which an enlightened profession will easily relieve their condition. There is no disease known to medicine that offers greater hope of cure than does narcotic drug addiction-disease, when once practitioners shall have come to study the drug reactions and the symptom-complex of the malady in the same spirit of scientific investigation that they accord the other clinical entities.
Narcotic drug addiction-disease will never be solved by forcible measures only. There is a place and a great need for such measures and they should be limited to this field alone, namely to the control of traffickers, exploiters, charlatans and quacks.
Yet even here police measures to be successful must go hand in hand with intelligent medical services. If anyone doubts this let him try to extinguish the underground traffic in narcotic drugs by police measures alone. Experience has shown this to be impossible during the 4 years enforcement of various restrictive legislative and administrative experiments.21
The Harrison Act of 1914 provided only for a maximum prison sentence of ten years, leaving the precise determination of the term to be served in the hands of judges. While considerable federal legislation has been enacted in this field since 1914, the basic pattern and legal situation established by the 1914 act has not been changed. In 1922 the Jones-Miller. or Narcotic Drugs Import and Export, Act was passed. In 1924 the manufacture of heroin was prohibited, and in 1937 marihuana became subject to federal control through the Marihuana Tax Act. There were many other minor amendments and changes with which we shall not be concerned here.
After World War 11 there have been two important changes in federal law which have greatly increased the penalties for narcotic violators. The first of these was the 19 5 1 act known as the Boggs Bill or the Boggs Amendment; the second -was the Narcotic Drug Control Act of 1956. Apart from a variety of provisions designed to make it easier to secure convictions, the changes in penalties were the outstanding features of these statutes. The 195 1 act substituted for the old ten-year maximum, the following schedule of graduated sentences:
For a first off ense Not less than 2 years or more than 5 with probation permitted.
The 1956 measure extended this trend toward more severe and more inflexible penalties with the following schedule of punishments:
First possession offense 2 to 1 0 years with probation and parole permitted.
It will be noted that the principal change made by this measure was to extend the maximum sentences of the 195 1 act and to eliminate parole for all but first offenses for possession. The elimination of parole meant that these narcotic offenders could not become eligible for release under supervision after serving one-third of their sentences, as was true of most other federal prisoners, but were required to serve two-thirds of their sentences, The other one-third of the prison term consists of “good time,” which is deducted for good behavior in prison.
Before the 195 1 act, federal judges were able to and did impose very long prison sentences upon big-time narcotics dealers on the relatively rare occasions when such offenders were brought before them. For example, the 1936 annual report of the Federal Bureau of Narcotics (P- 30), fifteen years before the Boggs Act. notes that six principals in the Ginshery-Moody case of that year received prison sentences Of 50, 20, 20, 20, 17, and 10 years. Sentences of this length were obtained by imposing consecutive sentences on multiple counts or charges. The standard federal indictment for sale, for example, involves three counts for each separate sale so that a peddler who made two such sales prior to the Boggs Act might have been convicted on at least six separate counts, each of which was punishable by a prison term. Since it is at the discretion of the judge whether he wishes to have sentences on such multiple counts run concurrently or consecutively-, it was a simple matter to sentence major offenders to very long prison terms despite the ten-year maximum.
Important peddlers are generally first offenders and the Boggs Act actually- lowered the maximum penalty applicable to them by reducing the maximum for a first offense from ten years to five. The 1956 law corrected this oversight. Contentions that judges were to blame for the rise of addiction rates after the war because they were too lenient with peddlers are unsupported by any real evidence. The present mandatory minimum for big peddlers is only five years. ‘What he is given beyond that figure rests upon the discretion of the judge. as it did before 191; 1. The effective limitation upon judges now applies mainly to the sentencing of small offenders and addicts, where the minimum sentences of 2, 5, and 10 years have real meaning. The greatly increased average sentence of today is largely the result of the increased mandatory minimum prison terms which must be imposed upon these minor violators, who constitute the bulk of those convicted.
The 1951 and 1956 narcotics statutes are characterized by harshness and inflexibility of penalties and by the extraordinary, limitations placed upon judicial power to mitigate sentences in accordance with circumstances surrounding individual cases or to place certain persons on probation rather than sending them to prison. They have aroused opposition from judges and from many other sources. The power to mitigate punishment, which was taken out of the hands of the judges, was not simply eliminated by these laws as one might suppose from merely reading them; it was rather transferred to the police and prosecutors. The latter can now virtually fix sentences in most instances by manipulating the charge and recommending sentences to the court, and they can grant probation in the same way. Since the 1951 and 1956 laws were virtually written by police and prosecution interests. it is not surprising that this should be so, for laws of this sort give police and prosecutors greater freedom in making deals with offenders and permit them to punish defendants who refuse to cooperate with a minimum of so completely in the hands of prosecution interests.
When the Boggs Act was passed in 195 1 many of the states passed “Little Boggs Laws” of their own, just as they later imitated the 1956 legislation. An illuminating illustration of this trend was provided by New Jersey in 1956, when the state legislature passed bills to increase penalties for narcotics violators to the following levels:
Sale of narcotics by one older than 21 to a person under 18 Mandatory minimum 20 years.
Suspension of sentence and probation were barred.
Governor Robert B. Meyner, in vetoing these bills, analyzed their effects in a statement which is applicable to the anti narcotic laws, generally:
Illegal traffic in narcotics is dirty and tragic. All responsible citizens would welcome some magnificent measure which would blot it out. I deeply appreciate the high purpose which motivated these bills, bur I cannot escape the conviction that they would defeat themselves and in the course of that failure would leave a path of injustice.
The simple truth is that narcotic violations do not follow a single, simple pattern which may thus be adjudged en masse in advance of their commission. I could not approve these measures unless I could in good conscience say that I reasonably believe that all who hereafter may fall within the sweep of these bills would merit the inexorable and inflexible punishment which the bills would require. I confess that such prescience is not mine.
Let us take a few examples culled, not from a fertile imagination, but from the hard experience of men charged with enforcement of narcotic laws.
Some university students, while at college, acquired marihuana from a peddler and distributed some of it to friends in New Jersey while home on vacation. The students were convicted but sentence was suspended and the defendants placed on probation. These young men have gone on to become useful and valuable citizens. But under Assembly Bill NO. 488, they would have to be sentenced to 1 0 years at hard labor, and if one of the students was 2. 1 years or over and the marihuana was given to one under 18, the mandatory minimum of 2 0 years would be imperatively imposed.
A druggist who answered an emergency call of a physician and delivered a narcotic without a written prescription would face a mandatory minimum of 10 years, beyond the power to suspend. An inexperienced drug clerk who sold more than 4 ounces of Brown’s Mixture or Stoke Expectorant without a prescription would face a mandatory sentence of 10 years, and if the buyer was under 18 and the clerk was 17 over 21, to a mandatory 20-year sentence. A druggist or physician who fails to maintain the detailed records required by chapter 18 or to retain them for the prescribed period would have to be incarcerated for a minimum Of 2 to 10 years depending upon which of the many sections of the act he violated became these bills would forbid the suspension of sentence and probation. One who violates the provisions of the act relating to labeling would, without regard to varying circumstances, be subjected to the mandatory minimum of 10 years..
A drug user who, facing imminent arrest for possession, slips the narcotic to his son under 18 to conceal his offense, would fall within the mandatory mininimum Of 20 years provided in Assembly Bill No. 490
A drug user, who pools his funds with other users and purchases drugs which he divides with them, may be deemed to be a seller depending upon the ages of the parties.
Such are the implications of these bills. They far exceed in severity and scope the bills now under consideration by the Congress.
Because of the importance of this matter, I held a public hearing to which were invited both advocates and opponents of the bills. The conflicting views were ably and forcefully presented.
The proponents of these bills seek to reach or frustrate the non addicted supplier of drugs. If the bills reached only him, I would unhesitatingly give my approval. But they are not so confined and although the deterrent quality of punishment may be conceded in certain areas. the question remains whether deterrence may not also be achieved by severe sentences where the facts so warrant, without the inherent self defeating weakness of laws which are excessively severe in cases involving individuals whose offenses do not merit the punishment commanded by the bills…. The bulk of the narcotic problem is centered in Essex County. Yet the Chief Probation Officer of that county advises that in the 5 years 1951 to 1955, there were only 282 drug cases in the County Court of Essex County, only 42 of which were for selling. In recent years the non-addict promoter, peddler, or pusher has constituted but 2 minute percentage of the defendants. For instance, among the 55 persons convicted in the County Court of Essex County in 1955, only one was a non-addict peddler. There is no reliable evidence of increase in the tra c in our State. In these circumstances, we should hesitate before embarking upon a new program of mandatory minimum sentences devoid of discretion to fit the punishment to the offense and the offender.
Public officials representing a tremendous number of years of practical experience in law enforcement in general and narcotics in particular joined in opposition to these features of the bills. On the State level, the Attorney General of New Jersey, the Commissioner of Institutions and Agencies and the Principal Keeper of the New Jersey, State Prison oppose the measures. The Conference of County judges unanimously, disapproves of them, and Al of the county prosecutors express the same opposition. The experienced Chief Probation Officer of Essex County condemns the measures. This opposition springs not from 2 desire to retain the power vested in county judges, or the opportunity which prosecutors or probation officers have to be heard in connection with sentencing-a power and opportunity which less conscientious men would gladly forego-but rather from a conviction born of long exposure to the problem, that the bills would neither serve the public nor do justice to its members.
We have had some experience with mandatory- legislation of such severity. Under our fourth offender statute which required a mandatory life sentence, the diminishing returns and stark inequity of its provisions led to an amendment which vested discretion at the California forbade probation in narcotic cases in 1951, but found it necessary to repeal its legislation in 1953. The reasons are readily apparent.
Further, when the punishment is shockingly, beyond the offense and the offender, officials charged with the execution of the laws are driven to devices to escape the legislative mandate. Prosecutors are reluctant to prosecute; grand juries will not indict; judges join in refined constructions to avoid palpable injustice and thereby the law is weakened in later applications to real culprits; petit juries, when the stakes become known, refuse to convict. A mandatory sentence which may not be suspended means that the accused necessarily defends; he has nothing to lose. There is thus devoted to prosecutions valuable manpower which would be more productive in additional investigations. The weak link in 2 criminal chain, who would speak and inform in hope of leniency, is silenced.
The self-defeating infirmity inheres not only in 2 severe mandatory penalty. which may, not be suspended, but as well in an unduly severe mandatory penalty for a first offense even though it may be suspended. When the mandatory minimum is thus unrelated to a just result, the sentencing judge is driven to suspend the sentence, although he believes that the actual execution of a prison sentence less than the statutory minimum would be more fitting.
Thus, the public interest would be disserved. And perhaps of greater importance would be the abandonment of our principles of justice. We am dedicate to justice not only to the public at large but also to the individual. justice to the individual means treatment which accords with the offense and the offender. Equality of justice necessarily means equal treatment under like circumstances and rejects identical punishment for all who trespass, without regard to the facts of the particular case. We have developed an extensive program of presence investigation and probation to this end. We salvage when we can.
The bills seem to embrace the tenet that injustice to individual defendants is a fair price to pay for the deterrent effect upon the addict as well as the non-addict sellers, We do not sacrifice individuals for the common good; rather we find the common good in doing justice to the individual. And justice to the individual, with adequate deterrence to others, can best be achieved at the hands of an alert, conscientious and competent trial judge who has before him all of the facts relating to the offense and the offender. His is the real and intelligent opportunity to reach a sound judgment.
For these reasons, I cannot approve of bills which would impose severe mandatory penalties upon first offenders without the safety valve of the probation program. Nor can I approve of excessive mandatory minimum sentences for first offenders which may drive trial judges to suspend sentence rather than to impose a jail sentence deemed to be oppressive. I am willing to approve increases in the authorized maximums, to the end that, in appropriate cases, sentences may be imposed which will both fit the situation and serve to deter others.22
The unusual feature of Governor Meyners excellent analysis of the proposed narcotics legislation in his state is his stirring affirmation of the ideal of justice and his rejection of the tenet that "injustice to the individual is a fair price to pay for the deterrent effect upon the addict as well as the non-addict sellers. . . . We do not sacrifice individuals for the common good; rather we find the common good in doing justice to the individual.” These considerations of justice have played little part in most recent anti narcotic legislation. The emphasis has been instead upon deterrence at any cost. and justice has been sacrificed in the interests of police expediency. Even in New Jersey the laws in effect when Governor Meyner vetoed the proposed changes are not models of justice and contain the same defects as those which the Governor condemned.
Before about 1930 drug offenses were generally regarded as a matter of federal concern and very few of the states had adequate laws or did a great deal in this field. When the Federal Narcotics Bureau was created in 1930 it at once set about securing greater cooperation from the states and tightening up the legal situation by urging upon them the enactment of a Uniform Narcotics Law which -%vas prepared between 1927 and 1932.2-3 This law, modeled after the federal statutes, was designed to facilitate enforcement by promoting cooperation between federal and nonfederal officers, by creating uniform standards of record-keeping on state and federal levels, and by eliminating certain gaps in the provisions of the federal laws occasioned by constitutional limitations upon the police powers of the national government.
The Uniform Narcotics Act has been adopted by most of the states although the penalty provisions, left blank in the recommended Act. vary from state to state. As penalties were increased by the 195 1 and 1956 national legislation. the states have quickly followed suit and in many instances enacted even harsher penalties. In addition, many of them, as well as some municipalities, have enacted special measures aimed particularly at addicts. Addiction, for example, has been declared to be a crime in itself in some states and in others it has been included in the definitions of vagrancy -and disorderly behavior. Addicts have sometimes been required to register and carry cards identifying them as addicts and hundreds of drug users in Chicago have been prosecuted for being “loitering narcotic addicts.” Some states also have “needle laws” which make it a punishable offense for addicts to have in their possession the paraphernalia required to make an injection.
Most of this type of legislation at the local level is designed to permit the arrest and incarceration on sight of known drug users and has the effect of making the drug addict a virtual outlaw. There is no pretense, in most of it, of any acceptance of the Supreme Court’s dictum that addiction is a disease and should be handled medically. Many of these measures, if they were to be challenged in the higher courts. would probably be declared unconstitutional, but only rarely have they been so challenged. Similar measures against drug peddlers would be quickly taken to the higher courts because peddlers, unlike addicts, are fairly likely to have the necessary financial means.
The Indiana statutes present an interesting and fairly typical example of state legislation of the type discussed. A 1957 act specifies that “A person addicted to the unlawful use of narcotic drugs is hereby declared to be dangerous to the public peace and to the welfare and safety of the citizens of this state; and it shall be unlawful for any such person to go on, into or upon any street or public highway, alley or public place unless such person can present positive proof that he is under the care of a licensed physician for the treatment of such addiction. 24 Another part of the Indiana law makes it “unlawful for any duly registered physician, licensed veterinarian or licensed dentist to write, issue, deliver or dictate either directly or indirectly any prescription to or for any habitual user of any drugs enumerated in this section. . . .”25 Under these provisions the ordinary active addict in Indiana cannot leave his room or his home without automatically being in violation of the law. The requirement that an addict present proof that he is under the care of a physician is tantamount to requiring him to prove that he is not using drugs, i.e., that he is not an addict.
The purpose of the laws cited above is stated to be that of furnishing “a legal means for the segregation and quarantine of narcotic drug addicts in the state of Indiana, and to promote the public peace and protect the safety and welfare of the citizens of the state. 26
1. The Harrison Act, 38 Stat. 785 (1914) as amended 26 U.S.C. Also, for the text of the act, see Charles E. Terry and Mildred Pellens, The Opium Problem (New York: Bureau of Social Hygiene, 1928), pp. 983-92