Marshall v. United States

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan concur, dissenting.

Title II of the Narcotic Addict Rehabilitation Act of 1966 authorizes treatment in lieu of prison sentence for those addicts convicted of an offense against the United States who the sentencing court has determined are “likely to be rehabilitated through treatment." 18 U. S. C. §4253 (a). Petitioner was denied treatment for his disease of narcotics addiction, even though no determination was ever made that he is not likely to be rehabilitated through treatment, because the Act excludes from consideration for the NARA program any person with two or more prior felony convictions. 18 U. S. C. §4251 (f)(4). Two courts of appeals have concluded that the two-felony exclusion, though intended by Congress to serve admittedly legitimate ends, is not a sufficiently rational means toward those ends to withstand scrutiny under equal protection principles. 1 *431 The Court today, while alluding to some of the statute’s serious flaws, nevertheless finds it constitutional. I must respectfully dissent.

In the present case the Court of Appeals analyzed the constitutionality of the two-felony exclusion by focusing on what it perceived to be this Court’s two-tiered approach to equal protection issues. See 470 F. 2d 34, 38 (1972). Under this view, classifications involving a “fundamental interest” or “suspect classification” are subject to so-called “strict scrutiny,” while all other statutes are tested by a standard of minimal rationality. While the Court today neither expressly endorses nor rejects this approach, its analysis is so deferential as to confirm an earlier observation that, except in cases where the Court chooses to invoke strict scrutiny, the Equal Protection Clause has been all but emasculated. See *432 San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 98 (Marshall, J., dissenting). 2

At the outset, then, I must once again take issue with the Court’s apparently rigid approach to equal protection issues. See, e. g., Dandridge v. Williams, 397 U. S. 471, 519-530 (1970) (Marshall, J., dissenting); Richardson v. Belcher, 404 U. S. 78, 90-91 (1971) (Marshall, J., dissenting); San Antonio School Dist. v. Rodriguez, supra, at 98-110 (Marshall, J., dissenting). True, as the Court of Appeals found, this case does not fit into any neat “fundamental interest” or “suspect classification” mold. Notwithstanding, I find it hard to understand why a statute which sends a man to prison and deprives him of the opportunity even to be considered for treatment for his disease of narcotics addiction, 3 while *433 providing treatment and suspension of prison sentence to others similarly situated, should be tested under the same minimal standards of rationality that we apply to statutes regulating who can sell eyeglasses or who can own pharmacies. See Williamson v. Lee Optical Co., 348 U. S. 483 (1955); North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, Inc., ante, p. 156. This case does not involve discrimination ■ against business interests more than powerful enough to protect themselves in the legislative halls, but the very life and health of a man caught up in the spiraling web of addiction and crime.

I press my disagreement no further here, for a careful analysis of the two-felony exclusion and the ends Congress sought to achieve shows that the exclusion is a totally irrational means toward those ends. If deferential scrutiny under the equal protection guarantee is to mean more than total deference and no scrutiny, surely it must reach the statutory exclusion involved in this case.

One of Congress’ primary purposes in enacting the two-felony exclusion was to limit treatment to those convicted persons considered most deserving of the special benefits provided by the new law. As the Government argues in its brief, Congress wanted to grant the benefits of treatment to those who “were primarily addicts, and only secondarily criminals.” Brief for United States 6. To state the goal more precisely, Congress intended to give treatment to those addicts whose criminal activity was only a symptom or product of their addiction. The *434 House Report recognized that “Narcotic addicts in their desperation to obtain drugs often turn to crime in order to obtain money to feed their addiction.” H. R. Rep. No. I486, 89th Cong., 2d Sess., 8 (1966). On the other hand, Congress knew there were others who were first of all criminals, and only secondarily addicts — that is, persons whose criminal activity was independent of their narcotics addiction. It was thought important to preserve strict criminal penalties for such hardened criminals, rather than permit them to use the fact of their addiction to escape punishment for a crime. See 112 Cong. Rec. 11813 (1966).

The plain fact of the matter, however, is that the two-felony exclusion does not further this legislative end, as the following examples demonstrate. Defendant A, with a prior felony conviction for assault with intent to commit murder, is convicted of stealing funds from a national bank. Neither crime was in any way related to narcotics addiction. In fact, A was not even an addict at the time he committed the crimes, but has become an addict during the pendency of his bank theft trial. Defendant B, who has two prior felony convictions for narcotics offenses, is convicted of possession of heroin for his own use. Given the above-stated legislative purpose, one would think that Defendant B, all of whose criminal activity was related to his narcotics addiction, would be eligible for NARA treatment, while Defendant A, none of whose criminal activity was so related, would not be eligible. But just the opposite is true, because of the two-felony exclusion. 4

*435 The problem with the statute is not, as the majority would have it, that Congress chose two felonies as the cutoff point rather than one or three. Rather, the statute fails to achieve the legislative end of discriminating between people who are mainly addicts and those who are mainly criminals because a numerical test was used to achieve a qualitative result for which it was totally unsuited.

A second basic purpose sought to be achieved through the two-felony exclusion was to restrict NARA treatment to those persons deemed likely to be rehabilitated. But the two-felony rule, again, is not a rational means toward that end. To begin with, it must be remembered that the statute itself limits participation in the program to those persons who, after an examination in the custody of the Attorney General, are determined to be addicts “likely to be rehabilitated through treatment.” The two-felony exclusion, to the extent it is justified by reference to this policy, amounts to a conclusive and irrebuttable presumption that a person with two or more felony convictions is not likely to be rehabilitated through treatment. We have only recently reiterated that “permanent irrebuttable presumptions have long been disfavored,” see Vlandis v. Kline, 412 U. S. 441, 446 (1973). This is particularly true where an interest as important as personal liberty is at stake. And as one would expect of medical problems in general, whether a particular individual’s disease of narcotics addiction is amenable to treatment is the very kind of question which requires an individualized determination. 5

*436 The two-felony presumption of nonamenability to rehabilitation is also plainly contrary to fact. The Administrator of the California Youth and Adult Corrections Agency pointed out that the two-or-more-felony provision “would result in a great many persons being excluded who might prove to be the best subjects for the program.” 6 As he indicated, it was the experience of the California program, 7 upon which the federal program was modeled in large part, that “persons who have had as many as four or five previous convictions and have grown older in years respond to the program better than some of the younger persons earlier in their careers.” 8 Nor was any contrary evidence presented to Congress.

Another purpose of the two-felony exclusion was to weed out those violent, antisocial individuals whose *437 participation in the program would interfere with the rehabilitation of others. But again, Congress has drawn a numerical test to achieve a qualitative result for which it is manifestly unsuited. An addict with a prior conviction for attempted murder can participate in the NARA program, while one whose prior record includes two convictions for possession of narcotic drugs cannot. 9

It makes no sense to deem an addict a “hardened criminal” unworthy or unsuited for treatment simply because he has engaged in criminal activity which may have been the symptom or product of his addiction. Congress enacted NARA because it knew that almost all addicts are hardened criminals in this sense. Not only are they driven to rob and steal in order to obtain money to sustain their habits, but their habits themselves involve the commission of felonies every day of their lives. As the House Report stated, the purpose of the bill was “to treat the unfortunate addict who is capable of rehabilitation ..to render assistance in a manner which will enable him to extricate himself from an otherwise hopeless and repetitious pattern of addiction and crime.” 10 To deny treatment to those addicts who have been convicted of a certain number of felonies, without regard to the relationship between their addiction and the prior offenses, is, in the *438 apt words of Congressman Ryan, like “building a sanatorium to treat tuberculosis, and then refusing admittance to patients with a contagious disease.” 112 Cong. Rec. 11812 (1966). 11

It is argued that the NARA program is essentially experimental in nature, and that courts should therefore be particularly reluctant to interfere with legislative decisions. But this observation must be tempered by a realization that we are experimenting here with people’s lives and health. And it can hardly be said that a program now in its seventh year of operation is still basically experimental. Only last year, Congress broadened the NARA program to include methadone maintenance as part of the available rehabilitative treatment, recognizing the many cases of addiction which, though *439 not totally curable, can be maintained in a manner which fosters the individual’s social rehabilitation and permits him to become a productive member of society. See Pub. L. No. 92-420, 86 Stat. 677; S. Rep. No. 92-1071 (1972). With the program widened in this fashion, it seems even more irrational to exclude those who might well benefit from the expanded program through the operation of broad and arbitrary exclusions that do not reasonably further any legitimate congressional purposes.

Finally, we must be mindful that the growing concern with treatment of narcotics addicts has not arisen in a legal vacuum, but has paralleled a growing awareness of the Eighth Amendment questions raised when criminal punishment is imposed for activities which are the symptom or direct product of the disease of narcotics addiction. 12 The Court today, by dicta implying that Congress may, consistent with the equal protection concept, deny NARA benefits to persons convicted of narcotics-related offenses because of two prior convictions *440 for narcotics-related offenses, 13 only exacerbates these Eighth Amendment problems.

Mr. Justice Jackson, himself a strong opponent of substantive due process, once argued that the vitality of the Equal Protection Clause as a ground for constitutional adjudication is that it “does not disable any governmental body from dealing with the subject at hand.” Rather, it merely sends the legislature back to the drawing board to draft a statute which more precisely and more evenhandedly solves the problem. See Railway Express v. New York, 336 U. S. 106, 112 (1949) (concurring opinion). I would not deny Congress the right to limit the NARA program to persons whose criminal activity was a product of their addiction, to those who were likely to be rehabilitated, or to those whose presence in a treatment center would not interfere with the rehabilitation of others. But I would have Congress make a second attempt at drafting a statute which actually furthers these ends.

See Watson v. United States, 141 U. S. App. D. C. 335, 439 F. 2d 442 (1970); United States v. Hamilton, 149 U. S. App. D. C. 295, 462 F. 2d 1190 (1972); United States v. Bishop, 469 F. 2d 1337 (CA1 1972). In addition to the statute’s flaws noted in this opinion, these decisions also point out other anomalies implicit in the two-felony exclusion. Under the Act, an addict who has engaged in *431 trafficking to support his own habit would be eligible for noncriminal disposition under Tit. II, whereas a nontrafficking addict found, for the third time, in possession of narcotics for his own use would not. This result, “is curiously at odds with the Congressional preoccupation, underlying the Narcotic Addict Rehabilitation Act, with the distinction between traffickers and non-traffickers, and the reiterated purpose that 'strict punishment ... be meted out where required to the hardened criminal, while justice ... be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed.’ ” Watson v. United States, supra, at 349, 439 F. 2d, at 456 . Other anomalies stem from the definition of “felony” in 18 U. S. C. §4251 (d). “[T]wo persons who both had twice previously committed the identical crime of possession of marijuana might be treated differently under [the two-felony exclusion] simply because one committed his crime in Florida where possession over five grams is a felony and the other committed his in New York where it is only a misdemeanor ... or because one committed both of his crimes before May 1, 1971, and the other committed them after that date, when the federal offense of marijuana possession was reduced to a misdemeanor for first offenders . . . .” United States v. Bishop, supra, at 1345 .

Cf. Gunther, The Supreme Court 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 , 8 (1972).

Drug addiction is specifically referred to as a “disease” in the Senate Report recommending enactment of Pub. L. No. 92-420, 86 Stat. 677, which expanded the NARA program to include methadone maintenance. See S. Rep. No. 92-1071, p. 3 (1972). The most widely accepted and authoritative definition of heroin addiction is one promulgated by the World Health Organization, which lists its characteristics as:

“(1) an overpowering desire or need to continue taking the drug and to obtain it by any means; the need can be satisfied by the drug taken initially or by another with morphine-like properties;

“(2) a tendency to increase the dose owing to the development of tolerance;

“(3) a psychic dependence on the effects of the drug related to a subjective and individual appreciation of those effects; and

“(4) a physical dependence on the effects of the drug requiring its presence for maintenance of homeostasis and resulting in a definite, characteristic, and self-limited abstinence syndrome when the drug is withdrawn.” United States v. Moore, 158 U. S. App. D. C. 375, 465-466, 486 F. 2d 1139, 1229-1230 (1973) (Wright, J., dissenting), quoting World Health Organization Expert Committee on *433 Addiction-Producing Drugs, Thirteenth Report, World Health Organization Technical Report Series No. 273, p. 13 (1964).

Congress has similarly defined an “addict” to include one “who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U. S. C. § 802 (1).

Defendant A would not be excluded from the program under the statutory exclusion of “an offender who is convicted of a crime of violence,” 18 U. S. C. § 4251 (f)(1), since that exclusion applies only to a person convicted of a crime of violence in the same proceeding in which Tit. II is considered as an alternative to prison sentence. Thus, if one has just been convicted of a “crime *435 of violence” as defined in §4251 (b), one is disqualified from the program under § 4251 (f)(1), while if one had previously been so convicted but is now convicted of a nonviolent crime, one would be eligible. See United States v. Bishop, 469 F. 2d, at 1344 .

Congressman Celler remarked: “Each individual case must be scrutinized to determine whether civil commitment will be efficacious. I submit that it should not be the Congress who, at long distance, *436 makes such determinations. In the absence of the facts of individual cases, these decisions can only be arbitrary.” See Civil Commitment and Treatment of Narcotic Addicts, Hearings on H. R. 9051, 9159, 9167, and Related Bills before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 1st and 2d Sess., ser. 10, p. 55 (1965 and 1966).

The Narcotic Addict Rehabilitation Act of 1966, Hearings before a Special Subcommittee of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 91 (1966).

See Cal. Welf. & Inst. Code §§ 3050-3054 , 3104-3107, and 3109 (1972). The California statute has no exclusion similar to the two-felony exclusion. It is also interesting to note that while the California Act, like the federal Act, excludes persons convicted of certain crimes of violence, see id., § 3052, the statute also provides that even in the case of an offender convicted of a crime of violence, “the judge may request the district attorney to investigate the facts relevant to the advisability of commitment pursuant to this section. In unusual cases, wherein the interest of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, order commitment notwithstanding” the crime-of-violence exclusion. Id., § 3051.

Hearings, supra, n. 5, at 153.

The statute’s disregard of all time limits is further evidence of its arbitrary nature. “All prior felonies are counted — whether a joy-ride by a peer-imitating teenager or a rape committed by a 35-year old sex deviate during the pendency of the proceedings in which sentence is about to be imposed. Any intervening period between felonies of good behavior or attempts at rehabilitation are ignored; a person is thought to harden as a criminal merely because he accumulates a fixed number of judgments, regardless of changes in his personality or personal circumstances over time.” United States v. Bishop, supra, at 1345 .

H. R. Rep. No. 1486, 89th Cong., 2d Sess., 5 (1966)

The majority’s contention, see ante, at 420 n. 2, that prisoners not eligible for the NARA program are not actually denied treatment because they may receive the benefits of similar programs within the Federal Bureau of Prisons is simply contrary to fact. As the Government itself indicates in its brief, treatment begins immediately upon commitment under NARA, and the offender is eligible for conditional release on parole after six months of treatment. Brief for United States 2 n. 1. Addicts not committed under NARA, however, are not placed in any rehabilitation program until about one year before their anticipated release. Ibid. Thus, an addict like petitioner, who received a 10-year sentence, will have to go many years without treatment for his disease because of his exclusion from the NARA program.

More importantly, we are told that the Bureau of Prisons does not have sufficient facilities for treatment of the approximately 5,000 federal prisoners estimated to suffer from some degree of drug dependency. In the Government’s own words: “Thus, although commitment under NARA assures treatment, a judicial recommendation for similar treatment at the time an ordinary criminal sentence is imposed does not.” Id., at 3 n. 1. Indeed, there is no indication in the record in this case that petitioner has yet received any treatment for his addiction, notwithstanding the sentencing court’s recommendation of treatment.

In Watson v. United States, 141 U. S. App. D. C. 335, 439 P. 2d 442 (1970), it was argued that criminal punishment of an addict for possession of narcotics solely for his own use was impermissible under the Eighth Amendment, but the question was left undecided because not clearly raised before the trial court. See id., at 346, 439 F. 2d, at 453 . Plenary consideration of the Eighth Amendment problems of' convicting addicts for addiction-related offenses came in United States v. Moore, 158 U. S. App. D. C. 375, 486 F. 2d 1139 (en banc)/ cert. denied, post, p. 980. Although the defense of addiction was rejected by a 5-4 decision, it now appears that for two members of the majority, the rejection of the Eighth Amendment defense “rested on the availability to the defendant-addict of treatment through NARA.” See United States v. Harrison, 158 U. S. App. D. C. 229, 231, 485 F. 2d 1008, 1010 (1973).

This Court has previously dealt with related issues in Robinson v. California, 370 U. S. 660 (1962), and Powell v. Texas, 392 U. S. 514 (1968).

As the majority opinion indicates, petitioner had three prior felony convictions for burglary, forgery, and possession of a firearm, respectively, and there was no attempt to show that his prior convictions related to traffic in narcotics. In addition, there does not appear to have been any showing that petitioner’s present conviction for entering a bank with intent to commit a felony was narcotic related. Accordingly, the majority’s remarks with respect to Congress’ power to exclude from the NARA program persons whose prior and present offenses are addiction related or motivated purport to resolve questions not before us in this case. See ante, at 427-428.