That is Holmes, Brandeis and McReynolds. This was their statement of dissent in that case.

Senator BUTLER. In other words, if you prove that the man is acting in good faith, it is all right to let it come up, but the Government cannot admit that.

Suppose the Government felt he was acting in good faith, and they admit it, and they say, "We won't try that issue," and they admit he was acting in good faith. What is wrong with that?

Mr. KING. The point is good faith is then no longer a defense, Senator, on the basis of this indictment. On this indictment-it became known as the Behrman indictment--which was used in case after case, there was no defense of good faith. They said: "Mr. Doctor, we caught you giving narcotics to an addict. This is a violation per se of the law. You are guilty."

Senator BUTLER. Certainly, because the Government admitted in its indictment this particular doctor was acting in good faith.

Mr. KING. Because the Supreme Court had ruled that, conceding good faith. In other words, conceding the defense of good faitheven if Dr. Behrman had been a reputable practitioner, and had acted in good faith-the Supreme Court, in passing on that indictment, said he was still guilty of a violation of the law per se.

Senator BUTLER. Yes.

Mr. KING. Now, if the Behrman case had been the final and authoritative interpretation of the Harrison Act during all these years since 1922, we would be facing a grave question of public policy today, but not one of legality. But that is not the situation.

As background for the case of Linder v. United States (268 U. S. 5), which I shall discuss in a moment, it should be noted again that three Justices, including the most distinguished legal minds of the day, had dissented vigorously from the Behrman holding.

Dr. Linder, a reputable practioner of Spokane, Wash., was arrested for giving 4 quarter grain tablets to a woman who was a stool pigeon for the Treasury Department, who came to him representing she had a painful illness, and that her own doctor was away.

He was arrested and convicted on one of these Behrman indictments.

He appealed to the Supreme Court from his conviction, attacking the interpretation of the Harrison Act set forth in the earlier cases.

This time the Court, Mr. Justice McReynolds writing, handed down a unanimous opinion reversing the conviction of Dr. Linder, acquitting him, and using this strong language, which I am going to read:

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 purposes solely because he has dispensed to one of them, in the ordinary courseand in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction.

Then the Court went on and talked specifically about the Behrman case, and I want to emphasize to the committee again that this was.

in 1925, and in the intervening 3 years the medical profession had taken this stand of 1924, the medical doctors had been packed off to prison, the use of this Behrman indictment had decimated the profession.

Of the Behrman case itself, the Court says, in 1925:

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.

Note that they even take in this problem that we were worried about, giving an amount for self-administration. The Supreme Court said even if a doctor wanted to turn an addict loose with narcotics, it would still be unconstitutional to bring him to account for it.

The Linder case, and not the Behrman case, is the law of the land today, and has been the law ever since 1925, when it was handed down. But the Treasury Department enforcement tactics have never changed. The current regulation on this subject reads as follows-this is the Treasury Department definition of the exemption in the act:

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 customary 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.

This is a paraphrase of the loaded-of the question; I started to say loaded question-that was presented in the Webb case. And I noticed when Dr. Howe read this regulation as of 1919, there was a difference in wording. The last phrase then was something about "is violating the Harrison Act" or "is violating the law and will be prosecuted.

The regulation now says "may be charged with violation of the law" which, technically, if we look carefully at the meaning of the words, it does not even state that this is any longer a violation. There was actually a change somewhere along the line in that regulation, from a straight statement that it is a violation of the law to this rather ambiguous wording. I do not know what date the change occurred. On this regulation that you have just read, do you see anything wrong with that regulation? In other words are we in disagreement? The wording of that regulation would appear to me to be justified under the statute.

Mr. KING. As an interpretation of the act?
Senator DANIEL. Yes.

Mr. KING. This is exactly the problem. present authoritative interpretation of the preme Court, puts it in these terms:

The Supreme Court, the
Harrison Act by the Su-

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 the Supreme Court says further that if the act is accepted as authority for holding that a physician, who acts bona fide according to medical standards, may never give moderate amounts of drugs for self-administration, it would be unconstitutional.

This regulation says that an order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment

Senator DANIEL. That is the important language, "not in the course of professional treatment," because the statute itself says doctors are exempt from the law in giving out or distributing drugs when done in their course of professional treatment only. That is the statute. Mr. KING. Yes; and who is determining what professional treatment is? The Narcotics Bureau, in prescribing this regulation? defining what professional treatment is, they are ruling out the rest of this definition

of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use.

Of that the Supreme Court says the statute-

says nothing of addicts and does not undertake to prescribe methods for the medical treatment.

Senator DANIEL. Well, go ahead. Maybe we will see where this fits in a little later, but you do feel this statement in this regulation is contrary to the law and unjustified; is that right?

Mr. KING. Yes, exactly-contrary to the law in that it has improperly cut the addict off from all contact with the medical profession. It has improperly permitted the medical doctors to be prosecuted, and has simply driven them out of a doctor-patient relation with the addict in our society. And that is a relation that, as you have heard this morning, exists in other countries throughout the world. It is, as far as I am concerned, this erroneous interpretation of a Federal statute, that has given us the whole problem.

This is what has turned the police enforcement approach loose. I know you want to hear Dr. Scheele.

Senator DANIEL. You go right ahead.

Mr. KING. Well, I will let the long statement that is on pages 6 and 7 of my statement here just stand in the record.

This is, I believe, the story of a brave doctor. I do not know much about him. But this man named Ratigan, in my own town of Seattle, tried to buck this thing in 1932, and this statement is the official report of what happened.

Mr. Ratigan opened the Ratigan Clinic and tried to administer narcotics, in his office, on the premises, to narcotic addicts for the relief of their addiction.

He was tried by a jury and acquitted once. He was tried again a couple of years later and convicted.

While he was out on bond on appeal, he still fought for his point, and continued to operate the clinic. So the Treasury Department then went to his suppliers and attempted to cut off the drug firms that were providing him with narcotics, and Dr. Ratigan tried to enjoin the Commissioner from interfering with his medical practice in this fashion.

He lost a temporary injunction, and that is where he quit. I think that story is about as good a thumbnail picture of what I find to be the problem here, of the conflict between the medical profession and the Narcotics Bureau, as I could give in 20 pages.

I can jump then to state my conclusions, the reason that I have imposed upon the committee to say all this.

I believe it is much too late to rectify this error of 40 years by any kind of administrative reform, and I believe it is too late to do anything more by judicial interpretation, because 30 years ago Supreme Court said everything it could say; the language there, that the addict is a diseased person, and that the Federal act authorizes no interference with the doctors' methods of treating him, is as strong a statement as I could conceive of to offer to the committee.

I, therefore, would urge that you consider an amendment to the Harrison Act, revising the exemption for medical practitioners so as to reaffirm the initial intent of Congress, to make it clear to everyone concerned that this exemption really means what it has said all along, and thereby to open the way for the medical profession to come back in and at least take its fair share of responsibility in this problem.

Senator DANIEL. In other words, you feel that in view of the history of the administrative practice and the Supreme Court opinions, there should be a change in the law if Congress wants to open it up, so that doctors can give narcotic drugs to addicts for the purpose of maintaining or satisfying their addiction?

Mr. KING. Yes. I believe that the responsibility is now back on Congress at least to reexamine what the act said, and what the Supreme Court has said, and to bring the two together.

Congress has the last word; Congress can wipe out that Supreme Court decision if it wants to reaffirm the prior case. But I think that that is the crux of the matter, as far as the statutes are concerned, and that is a point that I urge the committe to address particular attention to.

Senator DANIEL. Now, what is your personal view? Do you feel that Congress should amend the law so as to provide that doctors can give drugs to addicts, for the purpose of making them comfortable, by maintaining their customary use?

Mr. KING. Yes. It is my strongly held personal view, as I say, that-and I want to emphasize again the distinction I made before, for the nonaddict peddler, the man who is enriching himself on the peripheries of this thing, he deserves all the law-enforcement things that we can throw at him; the international illicit traffic and the smuggler the same but the addict himself should be enabled to reestablish a contact, a point of contact, with society.

I think that obviously the proper point of contact is the medical profession, through clinics or otherwise.

I think the clinic system has great merit. If there were time I would state some reservations, some problems that I see in that approach, but they are all part of the same alternative to further law-enforcement emphasis. I think that higher penalties and more policemen are not necessary. For 40 years this problem has gotten worse and worse. It has not gotten better. Forty years ago, Congress took hold of this one-it is the only problem where the Federal Government has intervened that has gotten worse instead of better-and I think, as I say, I think we are on the wrong track, and the alternative is a clear one, to let the medical profession back to where it started from.

Senator DANIEL. If we had a million addicts back in the twenties, and only 60,000 today, or anything near those figures, if the comparison is correct, then the situation has gotten better; has it not?

71515-56-pt. 5———7

Mr. KING. Senator, estimating the number of narcotic addicts in this country is sort of like estimating the number of unfaithful husbands; you just do not know; you cannot nail it down. There is no measure. That million figure was enormous. The next year it went down to a hundred thousand.

I would like to give you some figures that are right out of the budget, though, that are some index, at least, of the size of the problem, and those are the appropriations of the Narcotics Bureau, the amount of money that we have been spending to deal with this problem:

In 1928, $1,350,000;. in 1936, down to $1,249,000; in 1940, $1,300,000; in 1950 $1,647,000; in 1953, $2,790,000. * * *

I will not read them all.

Senator DANIEL. Back to that addiction and on the improvement of the problem, are you just going to throw all those statistics out because they are difficult, or wouldn't you feel that the addiction problem in our country today is much less than it was before the Harrison Act, and much less than it was in the 1920's?

Mr. KING. No-well, on the contrary, at least at the Federal level, we are spending $3 million a year dealing with the police problem now, where in 1936 we were spending $1,200,000.

Senator DANIEL. I'm talking now about the number of addicts in the country. You see, our population has grown, but our narcotic addicts' population, instead of being anything near as high in proportion, is much lower than it was back years ago. It is bad enough, do not misunderstand me. We would not be here if it were not a shameful situation, and we were not doing all that should be done about taking care of the addicts. But, on the other hand, I am just wondering if we want to leave it in the record, that the situation is worse today than it was back in the twenties or in period of 1914 or 1915.

Mr. KING. No. Let me revise this, because I am certainly not as qualified as some other people to make estimates.

Let us say this: There is a law-enforcement problem which has become more and more acute and more and more challenging as a law-enforcement problem. Whether that means more addicts or less addicts, I do not know.

I do know that in terms of the law-enforcement activities, the lawenforcement forces that have to be committed to it, the corruption-I was assistant counsel to a committee that Senator Butler sat on, where we found that the police department in the District of Columbia had taken over this traffic and was running it practically right out of the narcotics squad.

Senator DANIEL. Two members of the department?

Mr. KING. Well, yes; an important correction, and I thank you for it.

But nevertheless, this is one that is giving us a continuous and a mounting range of difficulties, instead of diminishing.

Look at the other things where the Federal Government has stepped in with penal laws to back up the States, kidnapping, the Lindbergh Act; white slavery, train robbery, bank robbery-every place along the line when the States have gotten into trouble, and the Federal Government has come along and Congress has passed a good law, the problem just gets back in hånd.

With this one that was not so. There was no criminal problem before the Harrison Act. The States were not in trouble. Congress