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 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

34

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.

32 Enough, as the Supreme Court noted, for over 3,000 standard injections. States v. Behrman, 258 Û. 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 consumption; 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).

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 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).

portion of the act which exempts from its provisions the dispensing or distribution of the drugs 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].'

In the Behrman brief, Solicitor General Beck made no attempt to gloss over what was being sought, apparently relying-rightly, as the outcome provedon 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 socalled '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 drug 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 be lieves such a course to be proper, to furnish to persons of the character of the drug addicts the means to obtain 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 a 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."

40

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," 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:

37 Motion to advance, p. 2, United States v. Balint, 258 U. S. 250 (1922), United States V. Behrman, 258 U. S. 280 (1922).

38 Brief for United States, pp. 7-8, 12-13, 18, United States v. Behrman, 258 U. S. 280 (1922).

38 This description was far from precise. See note 23, supra. 40 United States v. Behrman, 258 U. S. 280, 288-289 (1922).

"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 rather than to a finding of a jury upon the facts. I think that the judgment should be affirmed." "1

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 Behrman 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 prison-and good faith was no defense. Immediately there commenced a reign of terror.

43

The medical profession was shamelessly bullied and threatened, until it withdrew, totally and irrevocably, as the addict's last point of contact with society." 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. 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."" 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 pronouncement." Doctors went to prison.16 The hunt for addicts was pressed relentlessly." 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 alter 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 alinement of sympathy. Dr. Charles O. Linder was a long-established practitioner in Spokane, Wash., with a large practice. At 4 o'clock one Saturday, while he was examining a female patient, with other patients waiting for him, four Narcotics Division agents burst :n 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."

Dr. Lindler was indicted in a word-for-word repetition of the Behrman indictment, only this time the amount was 3 small tablets of cocaine and 1 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 he had represented that she had a painful stomach ailment and that the doctor who regularly treated her was out of the city.50

41 Id., at 290 (dissent).

42 It is noteworthy, for its bearing on the addicts-are-criminals 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. Treasury Department, Traffic in Opium and Other Dangerous 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. Committee on Legislation and Public Relations (1924), reprinted in 82 American Medical Association Journal, 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, 8,876 years, 4 months, 28 days; (1933) 3,468 violations, 1,694 convictions, 3,248 years, 10 months, 18 days. See U. S. Treasury Department, 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. C. 5 (1924).

Linder was convicted," the ninth circuit affirmed,52 and he petitioned for certiorari, arguing:

"The [Harrison] act *** was not intended to trench on the police power 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."

99 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 charging 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."

9 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 unwisel y 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

51 His sentence: $1,000 and 2 months in jail. Transcript of record, pp. 25, 26, Linder v. United States, 268 U. S. 5 (1924).

62 Linder v. United States, 290 Fed. 173 (9th Cir. 1923).

63 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 Linder v. United States, 268 U. S. 5, 18 (1925).

56 Webb v. United States, 249 U. S. 96 (1919).

[Emphasis added.]

"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.

Of the Jin Fuey Moy case:

57

58

"The quoted language must be confined to circumstances like those presented by the cause.'

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 the Act had such scope it would certainly encounter grave constitutional difficuities."

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. Its regulations under section 2" still provide (paraphrasing the loaded question in the discredited Webb case **):

"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." 65

CONCLUSIONS

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 15 years ago." 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.

67

66

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 will commit crimes-mostly petty offenses like shoplifting 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." No other nation hounds its addicts as we do, and

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. United States, 268 U. S. 5, 20 (1925).

60 United States v. Behrman, 258 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 Cir. 1946). 63 See note 8, supra.

64 Webb v. United States, 249 U. S. 96 (1919).

65 U. S. Treasury Department Narcotics Bureau Reg. No. 5, art. 167 (1949), 26 Code Fed. Regs., sec. 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 traffic 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 comments, Shoplifting and the Law of Arrest: the Merchant's Dilemma, 62 Yale Law Journal 788, 791, note 36 (1953).

68 At frequent intervals the Feederal narcotics authorities publish tables of the going rates for illicit drugs. See, e. g., U. S. Treasury Department, 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."

*