a clinic, a public-health establishment, a doctor's office somewhere, where a young person who is either embroiled in the edges of this affliction or embroiled with associates who are involved in it, can go and sit down across a desk from a man with a white coat, discuss the problem, be given guidance, be given such treatment, rehabilitation, therapy, employment assistance, help in working out whatever the other problems that are involved are this is the imperative first step. And I think that if your committee could make it possible for some such establishment to be created on at least an experimental basis, perhaps a narcotics information center would be a sufficient formulation, but something where these youngsters who still realize only that this is on the edge of a profound kind of criminality, can still reach across to society, reach across to the authoritative medical man or public-health officer, and discuss the problem and work it out, and undertake some kind of curative treatment at the outset. Mr. MITLER. Excuse me, Mr. King. What is your-you are familiar with the situation in the District of Columbia? Mr. KING. Yes. Mr. MITLER. What is the available program for youngsters in the District of Columbia? Would you comment on that? Mr. KING. Well, to my knowledge, there is nothing of the kind of facility that I have in mind, nor is there anything that approaches the kind of atmosphere that I am speaking toward in the District of Columbia. In the District of Columbia, the narcotic addict is subject either to imprisonment if he is caught in possession of narcotics, under the Federal narcotics laws, as a criminal, or he is subject to imprisonment under the recently revised Civil Commitment Act, which now permits an officer to take him into custody, to deprive him of his liberty, on suspicion he is an addict. And perhaps this is even a better way to point out what I am trying to say. This dual approach of criminal law enforcement directed at the addict to the fullest possible extent, if you can make a possession case or get him for vagrancy or loitering or peddling on the one hand, and involuntary commitment for the mere fact of addiction on the other hand, is the ultimate way in pushing the addict into the underworld community. So that I would say that the situation here is similar to the situation in most other communities, with the exception of New York, where they have done some very fine pioneering work, and I believe California, where some attempt under their Youth Authority Act has been made to approach the potential delinquent in this narcotics area before he becomes deeply involved, as actually similar efforts have been made to approach him in the predelinquency phase in other areas. Mr. MITLER. In New York, you mean the Riverside Hospital on North Brothers Island? Mr. KING. Yes. I should add, also, that I believe similar work has been undertaken in Chicago, where there is a narcotics facility which has made considerable efforts to approach salvageable addicts, if that is a fair word, before they are embroiled with the law. Mr. MITLER. The Northwestern Clinic, is that the one? I have led to this conclusion which follows from the main point I wanted to make before the committee. Mr. MITLER. Surely. Mr. KING. If I might very briefly return to that now. I have already stated that the basic philosophy which I bring to bear on this from my studies of it, is that the problem of addiction itself is a medical problem. It is a health problem. I believe that back in the 1920's, we made the disastrous mistake of converting what was in effect a tax measure, the Harrison Act, into a law-enforcement measure, and then the further mistake of wiping out any distinction between the addict who is the victim of the traffic, and the peddler who is exploiting him. And the point that I wish to emphasize and leave on this committee's record is that in my opinion as a lawyer, and based on my studies of the Harrison Act and its history, this entire position is not soundly grounded in the original legislation, and it is not consistent with the direct pronouncements of the Supreme Court on the subject. The ruling case on the interpretation of the Harrison Act with respect to its impact on the relations between narcotics addicts and the medical profession, is the case of United States v. Linder, which was decided by the Supreme Court by a unanimous court in 1925, and this language, a very brief quotation which I would like to read into the record, is the Court's pronouncement on the subject at that time, and it is still the law of the land. Referring to the Harrison Act, the Court said, and I commence the quotation: 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 then the opinion goes on to discuss an earlier case, the case of United States v. Behrman, on which the then enforcement authorities had based their law-enforcement activities with respect to the medical profession, and of this Behrman case the Supreme Court says: 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-administraiton 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. That is the end of the quotation. I have made an extensive analysis of these cases, and the quotations. that I was reading from are from this rather lengthy analysis which I would like to submit for the record, if I may. Mr. MITLER. Yes; I ask that it be made subcommittee exhibit No. 10. Chairman KEFAUVER. Let it be made a part of the record. (The document referred to was marked "Exhibit No. 10," and is as follows:) THE NARCOTICS AND THE HARRISON ACT: JAILING THE HEALERS AND THE SICK By Rufus King* 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 reexamination and review.1 Nearly 40 years have gone by since Congress passed the Harrison Act, intended partly to carry out a treaty obligation, but mainly to aid the States in combating a local police problem which had gotten somewhat out of hand. In other areas of law enforcement, when Congress has thrown Federal power into the balance, these local problems have usually diminished or disappeared. In the case of narcotics control, however, the indications are all quite to the contrary. 5 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 Journal 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 40-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," 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. 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; and, secondly, *Special counsel, subcommittee of House Committee on the Judiciary to investigate the Department of Justice; special counsel, Investigations Subbcommittee of Senate Interstate Commerce Committee. 1 See note 70 infra. See also S. Rept. No. 725, 82d Cong., 1st sess. (1951); hearings before Special Committee To Investigate Organized 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 (Legislative Doc. No. 27, 1952). 238 Stat. 785 (1914), 26 U. S. C., sec. 2550 (1946). The United States adhered to the Hague Opium Convention on January 23, 1912 (38 Stat. 1912 (1912)); this obliged adherents to control the manufacture, sale, use, and transfer of "morphine, cocaine, and their respective salts." 4 See H. Rept. No. 23, 63d Cong., 1st sess. 2 (1913). • Comment, Narcotics Regulation, 2 Yale Law Journal 751 (1953). 5 See, e. g., 31 Stat. 188 (1900), 18 U. S. C., sec. 43 (1946) (poaching); 41 Stat. 324 (1919), 18 U. S. C., secs. 2312-13 (1946) (transportation of stolen vehicles); 47 Stat. 326 (1932), 18 U. S. C., sec. 1201 (1946) (kidnaping). 7 See, e. g., remarks of Hon. John M. Coffee, 83d Congressional Record 2607 (1938); Stevens, Make Dope Legal, Harpers Magazine, November 1952, p. 40; statement of Representative 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., sec. 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 sec. 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. Schmeckebier, The Bureau of Prohibition, in Service Monograph 57, Institute for Government Research, Brookings Institute 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." 30 The next case, Jin Fuey Moy v. United States, 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 per 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 art, strictly within the appropriate bounds of a physician'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." 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. Berhman. 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.32 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," 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 36 The Government appealed the case directly to the Supreme Court 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 30 254 U. S. 189 (1920). 31 Id., at 194. Enough, as the Supreme Court noted, for over 3,000 standard injections. States v. Behrman, 258 U. S. 280, 289 (1922). United 33 After reciting the delivery to the addict, one Willie King, the indictment alleged : "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 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 adopted for such consump tion; against the peace *** etc." (transcript of record, pp. 2-3, United States v. Behr. man, 258 U. S. 280 (1922)). For a rather complete paraphrase of the indictment, see United States v. Behrman, 258 U. S. 280, 286-287 (1922). 84 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 sec. 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., September 21, 1921, in transcript of record, pp. 5-6, United States v. Behrman, 258 U. S. 280 (1922). 36 Under the Criminal Appeals Act, 34 Stat. 1246 (1907), now as amended, 18 U. S. C. sec. 3731 (Supp. 1951). paign, 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." 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. 23 99 21 The division's assault on this expression of the physician'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 an addict's craving. The attack had two objectives: to end all so-called ambulatory treatment (including the clinic system for controlled distribution of drugs to addicts "); and then, if possible, to drive the profession away from the addict altogether. It succeeded in both goals-for a brief period. But its shortlived 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 5-to-4 margin." On the same day the Court decided Webb v. United States," a physician case under the exemption in section 2. The facts showed flagrant abuse; the doctor had sold prescriptions 4,000 of them in 11 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 a 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 § 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. 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. Rept. 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." S. Rept. 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. Rept. 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 L. J. 751 (1952). 25 258 U. S. 280 (1922). See pp. 741-744, 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. |