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'Jailing The Healers And The Sick,' By Rufus King (Cliff Schaffer,
Creator Of The Largest And Best Online Library Of Drug Policy Information,
Posts The URL For The 1953 Article From The 'Yale Law Journal,'
Noting The Rufus King Collection Of Documents
Will Soon Join The Schaffer Library)
Date: Sun, 26 Apr 1998 22:43:00 EDT
Originator: drctalk@drcnet.org
Sender: drctalk@drcnet.org
From: "Cliff Schaffer"
To: Multiple recipients of list
Subject: Jailing the Healers and the Sick, by Rufus King
Coming soon to the Schaffer Library will be the Rufus King collection of
documents -- a lot of the most interesting stuff on the history of our drug
policy. This particular piece, from the Yale Law Journal of 1953, is a good
example. It tells the story of how the narcotics agents gained control
over the prescription of narcotics by the medical profession. It should be
read by everyone as a lesson for the future. Please feel free to distribute
it everywhere.
***
THE NARCOTICS BUREAU AND THE HARRISON ACT:
JAILING THE HEALERS AND THE SICK
RUFUS B. KING*
*Special Counsel, Subcommittee of House Committee on the Judiciary to
Investigate the Department of Justice; Special Counsel, Investigations
Subcommittee of Senate Interstate Commerce Committee.
[This issue of the JOURNAL contains two studies of the narcotics problem. A
Comment, beginning on page 751, presents a general survey of narcotics
regulation. Mr. King's Article focuses ox the interpretation and
enforcement of the Harrison Act, and the resulting impact upon addicts and
physicians.]
AT last there are faint stirrings to suggest that this nation's policies
toward its narcotic drug traffic may soon be exposed to a full critical
re-examination and review.1 Nearly forty years have gone by since Congress
passed the Harrison Act,2 intended partly to carry out a treaty obligation,3
but mainly to aid the states in combatting a local police problem which had
gotten somewhat out of hand.4 In other areas of law enforcement, when
Congress has thrown federal power into the balance, these local problems
have usually diminished or disappeared.5 In the case of narcotics control,
however, the indications are all quite to the contrary.
It must be conceded that there are large gaps in what we know about
narcotics addiction and the illicit traffic. The Comment elsewhere in the
JOURNAL6 presents a dispassionate collection of information and authorities.
Yet there is simply not much to go by. When the federal authorities took
over, we entered a forty-year eclipse; for years on end there has been
nothing but the "official line" for those who wished to inquire into the
subject. But enough information is available to convince this writer, along
with a handful of other Protestants,7 that the United States-alone among
civilized nations-has driven relentlessly down the wrong road ever since the
end of World War I. This article (which is not dispassionate) will relate
the episode in our legal history which propelled our enforcement agencies
along this road. But first it may be helpful to set forth a brief history
of the relationship between the addict and his Government.
Our grievous error was in allowing the narcotics addict to be pushed out of
society and relegated to the criminal community. He isn't a criminal. He
never has been. And nobody looked on him as such until the furious
blitzkrieg launched around 1918 in connection with the enforcement of the
Harrison Act.
That Act was a tax measure, designed and intended to bring the domestic
traffic in narcotics into the open under a licensing system, so that the
sloppy dispensing practices of the day could be checked. It said nothing
about "addicts" (partly because the word had not achieved its wide current
usage), and specifically exempted the "patient" in bona fide doctor-patient
relationships.8 Narcotics-users were "sufferers" or "patients" in those
days; they could and did get relief from any reputable medical practitioner,
and there is not the slightest suggestion that Congress intended to change
this-beyond cutting off the disreputable "pushers" who were thriving outside
the medical profession and along its peripheries.
Two things, very likely related, distorted this intent. The Act was
assigned, for enforcement, to the same righteous zealots who were
undertaking another national mistake -enforcement of our then new
Prohibition laws;9 and, secondly, a great public hullabaloo about the "dope
menace" swept the country.10 The narcotics-user suddenly became a "dope
fiend." Official estimates of the addict-population leapt to the fantastic
figure of one million - mostly young folk, many "under the age of 20."1l
The good people of our land were terrified. The Narcotics Division of the
Treasury Department came charging to the rescue; our prisons began to fill,
not with illicit peddlers only, but with addicts--and reputable medical men
who had tried to help them.12 And there has been no surcease from that day
to this.
In sum, the Narcotics Division succeeded in creating a very large criminal
class for itself to police (i.e., the whole doctor-patient-addict-peddler
cornmunity), instead of the very small one that Congress had intended (the
smuggler and the peddler). Subsequent Division officials have sustained the
enforcement-oriented propaganda barrage: the addict is a criminal, a
criminal type, or laden with criminal tendencies.13 addicts can only be
dealt with by being tracked down and isolated from society in total
confinement;14 the cureall is more arrests and stiffer criminal penalties
for all narcotics offenders;15 and anyone who raises a dissenting voice is
most likely a bungling "dogooder"16 or one who wants to undermine the
foundations of our society.17 The states have been pushed and swept along
this same vindictive line of approach,18 with very few dissents.19 And the
present campaign is as vigorous and formidable as ever.20 To this campaign,
the judiciary made its own contribution in a series of decisions rendered in
the 1920's and to which we now turn.
THE NARCOTIZATION OF THE HIGH COURT
Dr. Behrman and His Predecessors
Before the Narcotics Division could really turn the nation into a happy
hunting ground, stocked with addicts as fair game, it had to drive the
medical profession out of the way. As has been noted, Section 2 of the
Harrison Act exempted the prescription of drugs "to a patient by a physician
. . in the course of his professional practice only"21 This was
unrevealing draftsmanship,22 and many doctors felt that the agonies of
unrelieved addiction were as much encompassed in their Hippocratic Oath as
any other human suffering.
The Division's assault on this expression of the physic ian's conscience
started in the courts. The Government aimed for a construction which would
exclude from the Harrison Act exemption a doctor's dispensation of narcotics
to ease all addict's cravings The attack had two objectives: to end all
so-called ambulatory treatment 23 (including the clinic system for
controlled distribution of drugs to addicts24); and then, if possible, to
drive the profession away from the addict altogether. It succeeded in both
goals-for a brief period. But its short-lived success was enough, as we
shall see. Government victories in the Supreme Court, culminating in United
States v. Behrman,25
pose two problems that are broader than the subject matter of this
discussion. To what extent is it morally justified for an administrative
agency to select the cases it feeds our appeals courts in order to gain some
desired interpretation or result? And how far ought the rule of stare
decisis be extended into successive administrative actions and
interpretations-particularly when the court decision underlying the original
action has meanwhile been effectively overruled ?
The Harrison Act came through its first constitutional test by a
five-to-four margin.26 On the same day the Court decided Webb v. United
States,21 a physician case under the exemption in Section 2. The facts
showed flagrant abuse; the doctor had sold prescriptions-4,000 of them in
eleven months --indiscriminately to anyone for 50 cents apiece. The issue
was presented in a certified question:
"If a practicing and registered physician issues an order for morphine to an
habitual user thereof, the order not being issued by him 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, is such order a physician's
prescription under exception (b) of s. 2 ?"28
The Court replied:
"[T]o call such order for the use of morphine a physician's prescription
would be so plain a perversion of meaning that no discussion of the subject
is required."29
Note how the question was loaded: "sufficient to keep him comfortable by
maintaining his customary use" is not a description of the facts of the
case; it not only blankets the outright peddling involved in the case before
the Court, but it also reaches toward the bona fide administration of drugs
for the relief of a patient-addict.
The next case, Jin Fuey Moy v. United States,30 was likewise flagrant on its
facts. The doctor had prescribed morphine to strangers indiscriminately, in
bulk, 8 to 10 grams at a time for $1.00per gram. The Court, this time
apparently choosing its own wording, said:
"Manifestly the phrases 'to a patient' and 'in the course of his
professional practice only' are intended to confine the immunity of a
registered physician, in dispensing the narcotic drugs mentioned in the act,
strictly within the appropriate bounds of a physi6an's professional
practice, and-not to extend it to include a sale to a dealer or a
distribution intended to cater to the appetite or satisfy. the craving of
one addicted to the use of the drug."31
Again, the language goes beyond the facts of the case. It separates
"professional practice" from any administration whatsoever "intended to
cater to the appetite or satisfy the craving" of an addict.
Now the stage was set for Dr. Behrman. For purposes of finding the doctor a
peddler for profit, the case presented an ideal set of facts. He was
arrested in New York for giving one addict, at one time, for use as the
addict saw fit, prescriptions for 150 grains of heroin, 360 grains of
morphine, and 210 grains of cocaine. Again the question posed was whether
this was "in the course of his professional practice only." The Government,
however, drew up a trick indictment, alleging not that the prescriptions
were incompatible with approved and proper therapeutic treatment, but
instead alleging that, in effect, the drugs were given in a good faith
attempt to cure the addict.33
Behrman demurred. The district judge delivered a brief tirade against
"ambulatory treatment," but reluctantly sustained the demurrer, referring to
a decision in another trick-indictment case,34 and closing with an inviting
conclusion: "For the sake of uniformity in this district, however. I am
disposed to follow precedent until the question is concluded by a decision
of the Supreme Court."35
The Government appealed the case directly to the Supreme Court 36 and
promptly moved to advance it, stating in support of its motion:
"[The case involves] a matter of general public interest. viz.. what is the
meaning of the words 'in the course of his professional practice only' in
that portion of the Act which exempts from its provisions the dispensing or
distribution of the dnigs to a patient by a physician 'in. the course of his
professional practice only.'
"The practical administration of the Harrison Narcotic Act is dependent, to
a very large extent, upon the decision which this court may render in [this
case]."37
In the Behrman brief, Solicitor General Beck made no attempt to gloss over
what was being sought, apparently relying-rightly, as the outcome proved, on
the flagrancy of the case and the prevailing temper of the times:38
"The purpose of this indictment and of the present writ of error is to raise
for the determination of this court the following questions, viz.. whether
the so-called 'ambulatory treatment' of drug addicts by a physician is or is
not, as a matter of law, prohibited by section 2 of the Harrison Narcotic
Act. . . . By the term 'ambulatory treatment' is meant the treatment by a
physician of a drug addict. for the alleged cure of his drug addiction, by
giving to him a prescription for the amount of the drugs which the
physician, in good faith, believes to be necessary in the condition of the
drug addict at the time the prescription is given, for his use as one dose
or over a period of time, and allowing the addict to take the prescription
and to use it in any manner he may see fit, without any supervision or
control of the doctor over him in any manner or form whatsoever .39
"The theory of the indictment is that this action upon the part of the
defendant was, not a question for the jury. either on the defendant's
intent. or as to what constituted the legitimate practice of his profession,
but a violation of the Harrison Narcotic Act as a matter of law...
"In order that the matter may be made perfectly clear, it should be again
insisted that, according to the indictment, the so-called 'patient' in this
case was suffering from no disease whatever except drug addiction. It must
be admitted, for the purpose of the case at bar, that drug addiction is a
disease, and that the defendant intended by his method of treatment to cure
the same, and honestly believed that he could cure the disease by this
method. Nevertheless, it is a well known fact, of which this court has
taken notice, that drug addicts as a class are persons weakened materially
in their sense of moral responsibility and in their power of will. and this
court also knows, as a matter of common knowledge, that, in any community
where drugs are prescribed, there will be a large number of physicians to
whom any construction of section 2 of the Harrison Narcotic Act will be
applicable. The question therefore, is whether every physician licensed and
registered under the Harrison Narcotic Act, is at liberty, if he honestly
believes such a course to be proper, to furnish to persons of the character
o drug addicts the means to obain drugs without any supervision upon the
part of the various doctors involved of the manner or time of taking the
drugs or whether, indeed, the drugs are ever taken by the addict at all.
" . . .
"It is true that in the Doremus, Webb, and Jin Fuey Moy cases it was assumed
that the physician . . . did not honestly intend to effect the cure of the
drug addiction and did not honestly believe that his method would effect a
cure, but was merely administering the drug to satisfy the cravings of the
addict; and that this court is asked in the case at bar to go beyond these
decisions, and to hold that. irrespective of the physician's intent or
belief, the act is violated where the drugs are placed by him in the sole
control and subject to the unrestricted disposal of the drug addict."
Justice Day and five of his associates sustained the Government's position,
reversing the district court and thus putting the stamp of approval on the
Behrman indictment. That the majority of the Court did not see clearly what
they were doing-notwithstanding the Government's candid brief-is apparent
from the fact that they relied heavily on the mere amount of the
prescriptions,40 apparently without realizing that the doctrine they were
setting would make volume and good faith, as well, -irrelevant. The other
three justices, Holmes, Brandeis, and McReynolds were more clairvoyant.
Justice Holmes wrote for them:
"It seems to me wrong to construe the statute as creating a crime in this
way without a word of warning. Of course the facts alleged suggest an
indictment in a different form, but the Government preferred to trust to a
strained interpretation of the law rathr than to a finding of a jury upon
the facts. I think that the judgment should be affirmed."41
After Behrman
If some members of the Court were not fully aware of what they were giving
in the Behrman holding, the Narcotics Division nonetheless saw perfectly
clearly what it had received. Manifestly, if a Behrinitan indictment was
unassailable when it charged the dispensing of shocking amounts of drugs, it
was no less unassailable when it charged a minute quantity only. The
Division had what it wanted. Any doctor who prescribed any narcotic drug to
any addict could be threatened with prosecution or packed off to prisonand
good faith was no defense. Immediately there commenced a reign of terror.
The medical profession was shamelessly bullied and threatened, until it
withdrew, totally and irrevocably, as the addict's last point of contact
with society.42 The narcotics clinics, which had been established in a
number of states to alleviate the situation, were closed-in some instances
as a direct result of threats by Division agents.43 In 1924 a special
committee of the American Medical Association docilely reported its "firm
conviction" that ambulatory treatment of narcotics addicts "begets
deception, extends the abuse of habit-forming narcotic drugs, and causes an
increase in crime."44 An earlier version of this report (prior to its
adoption by the A.M.A.) had been reprinted by the Division (a practice, as
to "approved" materials, that continues to this day) and had been widely
circulated as an officially endorsed pronouncements.45
Doctors went to prison .46 The hunt for addicts was pressed relentlessly.47
Prices rose, prisons filled, "dope rings" throve. The United States
acquired the renown of being the world's best market for illicit narcotics-a
reputation which stands unchallenged to this day.
When the Supreme Court was jolted into further action, it was too late for
the justices to after the situation. They spoke firmly, but to no avail.
Dr. Linder's Case: A Theoretical Reversal
The jolt took the form of the next Behrman indictment case to reach the
Supreme Court.48 The facts in this case were fully as outrageous as in Dr.
Behrman's case, but invoked the opposite alignment of sympathy. Dr. Charles
0. Linder was a long-established practitioner in Spokane, Washington, with.
a large practice. At four o'clock one Saturday. while he was examining a
female patient, with other patients waiting for him, four Narcotics Division
agents burst in upon him, and "boisterously and in an ungentlemanly and
forcible manner, took charge" of his office. When he protested, the agents
showed their Treasury Department badges and told him, "This is sufficient."
After a rowdy search they took him off to jail.49
Dr. Linder was indicted in a word-for-word repetition of the Behrman
indictment, only this time the amount was three small tablets of cocaine and
one of morphine. These had been given to an "addict-stool pigeon," who was
working for the agents. She claimed she had told him she was an addict; in
his version she had represented that she had a painful stomach ailment and
that the doctor who regularly treated her was out of the city.50
Linder was convicted.51 the Ninth Circuit affirmed,52 and he petitioned for
certiorari, arguing:
"The [Harrison) act ... was not intended to trench on the policepower of the
states, and ought not to be given an interpretation which would bring within
its purview an act the cognizance of which properly belongs to the states. .
. [T]he lower courts almost uniformly try these narcotic cases on the
theory that the purpose of the statute was to punish physicians and others
dispensing morphine or other narcotics to satisfy the cravings of drug
addicts, even where all the revenue features of the act have been complied
with, as registration. payment of the tax, and the making and keeping of the
records required by the act. We submit that the United States has nothing
to do with such acts. Whether the health and morals of their people require
that such practices be repressed by penal sanction is for the states alone
to determine."
" . . .
Now what is the nature of the act charged in the indictment, giving the
indictment the widest scope claimed for it? Simply that the defendant,
being a registered physician, dispensed a small quantity of narcotic drugs
to gratify the appetite of an addict."53 .
When the petition was granted, Solicitor General Beck disposed of the
merits, in the Government's brief, in a pithy five-page statement that
attempted merely to pin the Court to its earlier declared position:
"Petitioner contends in substance that if the indictment and the statute
upon which it is founded, be construed as charging the administration of
drugs merely to gratify the appetite of an addict, such an offense is beyond
the power of Congress to create. . . .
"This is precisely what the indictment and the statute cover, and what the
court intended to uphold in U.S. v. Behrman, 258 U.S. 280, 287, 288. . . .
"The indictment in the case at bar is framed in the same language as the
indictment in the above-mentioned Behrman case, except for the amount of the
drug alleged to have been sold or distributed otherwise than in the course
of professional practice. No distinction, however, can be made between the
two cases on the ground merely of the difference between the amounts of
drugs which are charged in the two indictments. In the Behrman case, supra,
this court had before it only the strict allegations of the indictment, and
for that purpose the amount of the drug becomes immaterial in determining
whether the indictment actually and sufficiently charges it to have been
unlawfully sold or distributed.
" . . .
"Petitioner also contends that the indictment is capable of the
construction, in substance, of cha:ging that the drug was given in the
professional treatment of the addict. The Behrman case, supra, must be held
to dispose adversely of such claim, for if the indictment there, of which
the indictment at bar is a duplicate in allegation, had been capable of such
construction, this court would have said so."54
The Court's opinion, handed down in 1925, was written by justice McReynolds,
and was unanimous. Dr. Linder's Conviction was reversed, and the opinion is
as emphatic in tone as circumstances could permit:
"The enactment under consideration levies a tax, upheld by this court, upon
every person who imports, manufactures, produces, compounds, sells, deals
in, dispenses or gives away opium or coca leaves or derivatives therefrom,
and may regulate medical practice in the States only so far as reasonably
appropriate for or merely incidental to its enforcement. It 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 a physician acted improperly or unwisely or
for other than medical purpose 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."55
Of the Webb case,56 the Court said:
"The answers thus given 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."57
Of the Jin Fuey Moy case: 58
"The quoted language must be confined to circumstances like those presented
by the cause."59
And of the Behrman case 60 itself:
"This opinion related to definitely alleged facts and must be so
understood......... 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 he Act had such
scope it would certainly encounter grave constitutional difficulties." 61
The lower federal courts have since been fairly true to this corrected
interpretation of the Harrison Act, when they have had opportunities to
express themselves.62 But there have been few significant cases. The
doctors are still in retreat. And the Federal Narcotics Bureau has been
undeterred in its own lusty applications of the Act. It's regulations under
Section 263, still provide (paraphrasing the loaded question in the
discredited Webb case 64 ) :
"An order purporting to be a prescription issued to an addict or habitual
user of narcotics, not in the course of professional treatment but for the
purpose of providing the user with narcotics sufficient to keep him
comfortable by maintaining his custornary use, is not a prescription within
the meaning or intent of the Act: and the person filling such an order, as
well as the person issuing it, may be charged with violation of the law."65
CONCLUSION
It wasn't many decades ago that sufferers from tuberculosis. sub nomine
"consumption," were regarded as unclean, and shunned by society. We have
stopped treating our insane population as felons, raised the ancient stigma
from leprosy and epilepsy, and transformed our penal philosophy from one of
vengeance to one of rehabilitation. We have shown growing interest in large
scale attempts to salvage the victims of alcoholism; we caught up with most
of our error vis-a-vis the liquor drinker fifteen years ago.66 And we have
made venereal afflictions the subject of wholesome programs and campaigns.
But we have not shown comparable understanding of the addict's problems.
The true addict, by universally accepted definitions, is totally enslaved to
his habit. He will do anything to fend off the illness, marked by physical
and emotional agony, that results from abstinence. So long as society will
not traffic with him on any terms, he must remain the abject servitor of his
vicious nemesis, the peddler. The addict willcommit crimes-mostly petty
offenses like shoplifting 67 and prostitution--to get the price the peddler
asks. He will peddle dope and make new addicts if those are his master's
terms. Drugs are a commodity of trifling intrinsic value. All the billions
our society has spent enforcing criminal measures against the addict have
had the sole practical result of protecting the peddler's market,
artificially inflating his prices, and keeping his profits fantastically
high.68 No other nation hounds its addicts as we do, and no other nation
faces anything remotely resembling our problem.
Where does the solution lie? Out of reach, for the moment, because we shall
not undo forty years of carefully wrought error overnight. Out of sight,
also, at least in precise detail, because we have little reliable data to
guide us. But-at least until they are fully explored-the road would seem to
lead towards the following areas: (1) relief from persecution for the
addict; (2) therapy programs through institutions69 clinics,70 and
after-cure followups;71 (3) provisions for incurables, through clinics or
the individual practitioner or both;72 (4) a forthright out-of-the-dark
educational program on narcotics; and (5) a vigorous assault, with all the
enforcement resources we can muster, on whatever is left of the peddlers'
empire after we have freed the addict from his present bondage to it.
Sooner or later some responsible appraiser, probably Congress, will have to
take a clear look at our narcotics problem and the plight of the addict. It
is to be hoped that re-telling this tale, of Dr. Behrman, who was rightly
punished for the wrong reasons, and Dr. Linder, who was vindicated in vain,
may hasten the advent of that happy day.
1. See note 70 infra. See also SEN. REP. No. 725, 82d Cong., 1st Sess.
(1951) ; Hearings before Special Committee to Investigate Organised Crime in
Interstate Commerce, 82d Cong,, 1st Sess, pt. 14 (1951); Goldstein,
NARCOTICS, A Report by the Attorney General to the Legislature of the State
of New York, (Legis. Doc. No, 27, 1952)
2. 38 STAT. 785 (1914), 26 U.S.C. s. 2550 (1946).
3. The United States adhered to the Hague Opium Convention on January 23,
1912 (38 STAT. 1912 (1912)) ; this obliged adherents to control the
manufacter, sale, use, and transfer of "morphine, cocaine and their
respective salts."
4. See, H.R. REP. No. 23, 63rd Cong., Ist Sess. 2 (1913).
S. See. e.g.. 31 STAT. 188 (1900), 18 U.S.C. s. 43 (1946) (poaching); 41
STAT. 324
(1919), 18 U.S.C. ss. 2312-13 (1946) (transportation of stolen vehicles);
47 STAT. 326 (1932), 18 U.S.C. s. 1201 (1946) (kidnapping).
6. Comment, Narcotics Regulation, 62 YALE L.J., 751 (1953).
7. See, e.g., Remarks of Hon. John M. Coffee, 83 Cong. Rec. 2607 (1938) ;
Stevens, Make Dope Legal, Harpers Magazine, November, 1952, p. 40; Statement
of Rep. Cleveland M. Bailey, member of House Interstate and Foreign Commerce
Committee, March 23, 1953.
8. The exempting language, relieving from the duty to use
Treasury-prescribed order forms, 38 STAT. 786 (1914), 26 U.S.C. s. 2554 (c)
(1) (1946), is:
"Nothing contained in the section . . . shall apply . . . [t]o the
dispensing or distribution of any of the drugs mentioned ... to a patient by
a physician, dentist, or veterinary surgeon registered under section 3221 in
the course of his professional practice only. (Emphasis supplied.)
Those who avail themselves of this exemption must keep records of each
transaction for a prescribed period.
9. Schmeckebier, The Bureau of Prohibition in Service Monograph 57, INST.
FOR Gov'T RESEARCH, BROOKINGS INST. 3 (1929). The Narcotics Division was
merged into the Prohibition Unit of the Treasury Department in 1920, and
carried into the Prohibition Bureau when the latter was created in 1927.
Since 1930 it has been a separate entity entitled the Federal Narcotics
Bureau.
10. See, New York Times, April 10, 1919, p. 1; U.S. TREASURY DEPT. REPORT OF
SPECIAL COMMITTFE TO INVESTIGATE THE TRAFFIC IN NARCOTIC DRUGS (April 15,
1919)
(quoted in U.S. TREAS. DEPT, THE TRAFFFIC IN HABIT-FORMING NARCOTIC DRUGS
(1923) ).
11. U.S. TREAS. DEPT, THE TRAFFIC IN HABIT-FORMING NARCOTIC DRUGS (1923).
It is noteworthy that as Soon as the Narcotics Division turnd to reporting
its enforcement achievements, this estimate dropped to 100,000 and remained
at that figure until World War II.
I2. As of June 30, 1928, of the 7738 prisoners in federal penitentiaries,
2529 were sentenced for narcotics offenses, 1156 for prohibition law
violations, and 1148 for stolen vehicles transactions. Data are not
available for approximately the same number in state institutions at this
time. Schmeckehier, supra note 9, at 143.
13. See, e.g., FEDERAL NARCOTICS BUREAU, MEMORANDUM REGARDING NARCOTIC
CLINICS, THEIR HISTORY AND HAZARDS 6 (1938):
"With regard to the plan which is in effect in Formosa, we have a valuable
and informing contribution to our knowledge on the subject by Dr. Somei To
of the Health Commission of Formosa. After classifying 57,073 crimes
committed during seven years by natives of Formosa, his records show that
based upon the relative proportion of opium users to non-users we find
70.83% criminality among opium users as against 29.17% criminality among
non-users. In Formosa, opium smoking is licensed and the cost of opium is
very small. UNDER THESE CONDITIONS THE ONLY ATTRIBUTABLE CAUSE FOR GREATER
CRIMINALITY AMONG NARCOTIC ADDICTS THAN NON-ADDICTS IS THE DIRECT EFFECT OF
THE USE OF NARCOTICS UPON THE CHARACTER OF THE USER. Dr. To gives us the
answer. It is because drug addiction causes a relentless destruction of
character and releases criminal tendencies." (Emphasis as in original).
14. Id. at 4:
"Medical authorities agree that the treatment of addiction with the view
toward effecting a cure, which makes no provision for confinement while the
drug is being withdrawn, is a failure, except in a relatively small number
of cases where the addict is possessed of a much greater degree of will
power than the average addict."
15. See testimony of Commissioner Harry J. Anslinger, Fed. Bur. of
Narcotics, in Hearings before Special Committee to Investigate Crime in
Interstate Commerce, 82d Cong., Ist Sess. pt. 14, pp. 426-32 (1951).
16. See, e.g., McCarthy, A Prosecutor's Viewpoint on Narcotic Addiction in
Fed. Prohib. Q., October, 1943 reprinted and distributed by the Federal
Bureau of Narcotics in 1945).
17. In the Chicago Daily News, December 15, 1952, the last argument in
extremis was set forth by local public officials of that city: proponents of
clinic treatment for narcotic addicts are obviously communists or
communist-inspired, seeking to destroy the integrity of the American people.
18. ILLINOIS LEGISLATIVE COUNCIL, DISPOSITION OF NARCOTIC LAW OFFENDERS AND
ADDICTS 12-19 (1951). A careful distinction must be made between
incarceration per se, and programs which place true emphasis on treatment
and rehabilitation. The federal hospitals at Lexington, Ky., and Fort
Worth, Texas, are admirable examples of the latter.
19. Governors Green and Stevenson both vetoed incarceration laws for the
state of Illinois because no provisions for adequate treatment had been
made. Veto messages. July 24, 1947, and August 9, 1949, respectively. In
the words of Governor Stevenson:
"It appears that the provision in this Bill authorizing imprisonment may
have been intended only as a threat to compel the addict to undergo
treatment, but whatever may have been the intention in this regard, the Bill
does authorize imprisonment for a condition which it is admitted does not
constitute a criminal act."
20. The Narcotics Bureau is pressing a bill, H.R. 3307, 93d Cong., 1st Sess.
(1953)0 which would provide incarceration for all addicts in the District of
Columbia. The worst feature of this bill-in the light of the full
problem.-is a "sneaker" in the recitation of its purpose, which reads:
"The Congress intends that Federal criminal laws shall be enforced against
drug users as well as other persons . . ."
This may prove as effective, and as tricky, as the "rigged" indictment to
which this article is principally addressed.
21. See note 8 supra.
22. The legislative history of the provision sheds little light. The
original draft required that the physician "shall personally attend upon
such patient." H.R. Rep. No. 23. 63d Cong., 1st Sess. 3 (1913). The Senate
proposed changing this to: "shall have been specially employed to prescribe
for the particular patient receiving such drug: And provided further, That
such drug shall be dispensed in good faith and not for the purpose of
avoiding the provisions of this act." Sen. Rep. No. 258, 63d Cong., 2d
Sess. 4 (1914). The ensuing conference adopted the present language without
edifying comment, merely noting that the requirement of personal attendance
had been dropped and that the dispensing physician, etc., would be required
to keep records. H.R. Rep. No. 1196, 63d Cong., 2d Sess. (1914).
23. There is a much-neglected distinction between prescription of narcotics
to an addict for self-administration, and direct administration by the
physician. The former is the subject of valid criticism, i.e., it does
remove all restraints on consumption by the addict, and the drugs prescribed
may be resold in the illicit traffic. There is merit in the suggestion,
made from time to time, that all self-administration of narcotics should be
made illegal. The "official line" has always ignored this distinction,
equating prescription for self-administration with direct or supervised
administration, and attacking both as "ambulatory treatment."
24. See notes 70, 72 infra; Comment, Narcotics Regulation, 62 YALE LJ. 751
(1952).
25. 258 U.S. 280 (1922). See pages 741-4 infra.
26. United States v. Doremus, 249 U.S. 86 (1919).
27. 249 U.S. 96 (1919).
28. Webb v. United States, 249 U.S. 96, 99 (1919).
29. Id. at 99-100.
30. 254 U.S. 189 (1920).
31. Id. at 194.
32. Enough, as the Supreme Court noted, for over 3,000 standard injections.
United States v. Behrman, 258 U.S. 280, 299 (1922).
33. After reciting the delivery to the addict, one Willie King, the
indictment alkeged: "that on said date the said Willie King was a person
addicted to the habitual use of morphine, heroin and cocaine ;and known by
the defendant to be so addicted; that on said date the said Willie King did
not require the administration of either morphine, heroin, or cocaine by
reason of any disease or condition other than such addiction. and the
defendant did not dispense said drugs or any of them to said Willie King for
the purpose of treating any disease or condition other than such addiction;
that none of the said drugs so dispensed by the defendant was administered
or intended by the defendant to be administered to the said Willie King by
the defendant or by any nurse or person, other than the said Willie King,
acting under the direction of the defendant, nor were any of said drugs
consumed or intended by the defendant to be consumed by the said Willie King
in the presence of the defendant, but all of said drugs were put in the
physical possession and control of the said Willie King with the intention
on the part of the defendant that the said Willie King would use same by
self-administration in divided doses over a period of several days, the
amount of each of each of said drugs dispensed as aforesaid being more than
sufficient or necessary to satisfy the craving of the said Willie King
therefor if consumed by him all at one time; that said Willie King was not
at the time and place aforesaid, nor was he intended to be, during the
period in which the drugs dispensed as aforesaid were to be used, by him,
under the observation and physical control of the defendant or of any nurse
or other person acting under the direction of the defendant, nor was said
Willie King in any way restrained or prevented from disposing of said drugs
in any manner he might see fit; that said drugs dispensed by the defendant
to the said Willie King as aforesaid were not mixed with any other
substance, medicinal or otherwise, but were in the form in which said drugs
are usually consumed by persons addicted to the habitual use thereof to
satisfy their craving therefor and were adapted for such consumption;
against the peace . . . etc." Transcript of Record, pp. 2-3, United States
v. Behrman, 258 U.S. 280 (1922).
For a rather complete paraphrase of the indictment, see United States v.
Behrman, 258 U.S. 280, 286-7 (1922).
34. United States v. Balint, C. 28/136, S.D.N.Y., June 28, 1921, in
Transcript of Record, pp. 4-5, United States v. Balint, 258 U.S. 250 (1922),
in which the indictment alleged violation of s. 2 of the Harrison Act
without including the word "willfully." Defendant's demurrer to the
indictment was sustained, and the indictment dismissed. ibid. The dismissal
was ultimately reversed by the Supreme Court, United States v. Balint,
supra, which ruled that it was not necessary that defendant have knowledge
of the fact that the product sold was a drug whose sale was regulated by the
Act.
35. United States v. Behrman, C. 28/425, S.D.N.Y., Sept. 21, 1921, in
Transcript of Record, pp. 5-6, United States v. Behrman, 259 U.S. 290
(1922).
36. Under the Criminal Appeals Act. 34 STAT. 1246 (1907), now as amended, 18
U.S.C. s. 3731 (Sapp. 1951).
37. Motion to Advance, p. 2. United States v. Balint, 258 U.S. 250 (1922),
United States v. Behrman, 258 US 280 (1922)
38. Brief for the United States, pp. 7-8, 12-13, 18, United States v.
Behrman, 258 US 280 (1922)
39. This description was far from precise. See note 23 supra.
40. United States v. Behrman, 258 U.S. 280, 288-9 (1922).
41. Id. at 290 (dissent).
42. It is noteworthy, for its bearing on the addicts-are-criniinals
argument, inter alia, that addiction among doctors themselves has always
been a problem, alluded to by the narcotics authorities year after year in
their annual reports. See, e.g., U.S. TREAS. DEP'T, TRAFFIC IN OPIUM AND
0THER DANGERGOUS DRUGS, 3 (1926); id. at 3 (1927); id. at 4 (1928).
43. See, New York Times, June 23, 1920. p. 8; Stevens, supra note 7, at 43.
44. REP. REF. Comm. ON LEGIS. & PUB. RELATIONS (1924), reprinted in 82
AMA.J. 1967 (1924).
45. Stevens, supra note 7, at 43.
46. See Simmons v. United States, 300 Fed. 321 (6th Cir. 1924) ; Hobart v.
United States, 299 Fed. 784 (6th Cir. 1924) ; Manning v. United States, 287
Fed. 800 (8th Cir. 1923).
47. For many years the Division reported its "score" (in a column with other
statistics) by the number of years in sentences imposed: e.g., (1926) 10,342
violations, 5,120 convictions, 6,797 years, 11 months, 10 days; (1928) 8,653
violations. 4,738 convictions, 8,786 years, 4 months, 28 days; (1933) 3,468
violations, 1,694 convictions, 3,248 years, 10 months, 18 days. See U.S.
TREAS. DEP'T., THE TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS (1926) and
subsequent yearly reports.
48. Linder v. United States, 268 U.S. 5 (1924).
49. Motion to Quash Search Warrant, Transcript of Record, Linder v. UnIted
States, 268 U.S. 5 (1924).
50. Transcript of Trial, Linder v. United States, 268 U.S. S (1924),
51. His sentence: $1000 and two months in jail. Transcript of Record, pp.
25-6, Linder v. United States, 268 U.S. 5 (1924).
52. Linder v. United States, 290 red. 173 (9th Cir. 1923).
53. Brief in Aid of Petition for Writ of Certiorari, pp. 9-11, Linder v.
United States, 268 U.S. 5 (1924).
54. Brief of United States, pp. 3-5. Linder v. United States, 268 U.S. 5
(1924).
55. Under v. United States, 268 U.S. 5, 18 (1925) (emphasis added).
50. Webb v. United States. 249 U.S. 96 (1919).
57. Linder v. United States, 268 U.S. 5, 20 (1925).
58. Jin Fuey Moy v. United States. 254 U.S. 189 (1920).
59. Linder v. Unitcd States, ,2688 U.S. 5, 20 (1925).
60. United States v. Behrman, 238 U.S. 280 (1921).
61. Linder v. United States, 268 U.S. 5, 22 (1925) (emphasis added).
62. See United States v. Brandenberg, 155 F.2d 110 (3d Cie. 1946).
63. See note 8 jupra.
64. Webb v. United States, 249 U.S. 96 (1919).
63. U.S. Treas. Dep't, Narcotics Bureau Reg. No. 5, art. 167 (1949), 26
Code Fed. Regs. S. 151.167 (1949).
66. This analogy goes further. It was in the heyday of the bootlegger that
organized crime, as we know it today, got its start. Revenues from the
illicit narcotic trade are next to gambling, the largest current source of
underworld wealth. Quite apart from humanitarian considerations, we should
end this billion-dollar-a-year subsidy to the
nation's real criminals.
67. See Comment, Shoplifting and the Law of Arrest: the Merchant's Dilemma.
62 YALE L.J. 788, 791 n.36 (1953).
69. At frequent intervals the federal narcotics authorities publish tables
of the going rates for illicit drugs. See, e.g., U.S. TREAS. DEP'T.
TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 26 (1930). In this issue the
Narcotics Division notes a "marked general increase in the prices of
narcotic drugs. . . . This is a fair indication of the relative scarcity of
narcotic drugs in the illicit market, due to increased efficiency of
narcotic-law enforcement."
69. Such as the federal hospitals administered by the U.S. Public Health
Service, 58 STAT. 698 (1944), 42 U.S.C. 1257 (1946), the North Brother
island Hospital experiment in New York, and the proposed Seabrook Farm Unit
in New Jersey.
70. A bill to create a Federal Bureau of Clinics. to develop this approach
to the problem. is now pending in Congress: H.R. 2449, 83d Cong., lst Sess.
(1953). The bill also includes alcoholics, as beneficiaries of the same
program. For discussion of clinic system merits. see Comment, Narcotics
Regulation, 62 YALE L.J. 751. 784-7 (1953).
71. This would perhaps be another function of narcotic clinics; it is
contemplated, in connection with H.R. 2449, supwa note 70, that other
federal agencies, such as the U. S. Employment Service, would be called upon
to cooperate in placing and rehabilitating addicts.
72. See Stevens. Make Dope Legal, Harpers Magazine, November, 1952. p. 40.
to 1998 Daily News index for April 23-29