# United States v. Raymond Moore

> Court of Appeals for the D.C. Circuit · October 23, 1973 · 486 F.2d 1139

URL: https://www.frixlaw.com/law-library/cases/9459986

## Case

- **Full name:** UNITED STATES of America v. Raymond MOORE, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** October 23, 1973
- **Citations:** 486 F.2d 1139; 158 U.S. App. D.C. 375
- **Precedential status:** Published
- **Opinion:** Concurrence by Leventhal
- **Judges:** Leventhal, Bazelon, Wright, McGowan, Tamm, Lev-Enthal, Robinson, MacKinnon, Robb, Wilkey
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459986

## How later opinions describe it (automated extraction)

- concluding that the judgment in Powell rested on the overlap in the views of “four members of the Court” who held that Powell’s acts of public drunkenness “were punishable without question” and the view of Justice White that Powell’s acts “were punishable so long as the acts h…
- noting that "there is definitely no Supreme Court holding" of addiction as a defense
- rejecting the assertion that "punishment of addict possessors is neither a reasonable nor a necessary means to achieve [the] goal" of reconciling the need to eliminate drug traffic with the need to rehabilitate addicts
- characterizing such an interpretation as "an amplification and extrapolation of the Supreme Court's interpretation of the Eighth Amendment advanced in the admittedly confused and divergent opinions in Robinson v. California and Powell v. Texas "

## Opinion text

LEVENTHAL, Circuit Judge; with
whom McGOWAN, Circuit Judge,
concurs.
This is an appeal from convictions under 21 U.S.C. § 174 , 26 U.S.C. § 4704 (a), following a police raid on, and arrest of appellant Moore in, a hotel room being used for a heroin capping operation. The verdict was permitted to rest on evidence that Moore was in possession of heroin. Appellant’s contention is that he was improperly precluded from proffering as a defense that he was a heroin addict, without the power of self-control with respect to the drug.
The case was put en banc to consider matters not resolved in our en banc opinion in Albert Watson v. United States, 141 U.S.App.D.C. 335 , 439 F.2d 442 (1970). After consideration of pertinent principles of common law jurisprudence, constitutional doctrine, and statutory provisions, including the 1970 law passed by Congress subsequent to *1160 Watson, permitting and implementing a disposition of narcotic. addicts through probation conditioned on treatment, we conclude the judgment of conviction should be affirmed and the case remanded, in the interest of justice, see 28 U. S.C. § 2106, for further consideration of a disposition under the Narcotic Addict Rehabilitation Act (NARA).
In Watson we started to ponder difficulties posed to us by the iron rigidity of inexorable sentences for narcotic addicts chargeable only with possession or purchase for personal use. But in Watson we did not finalize an approach in terms of validity of conviction, in view of the record as presented, and we focused on dispositional alternatives— NARA.
In the present case, we have an outright attack on conviction, forcefully presented. The question is presented as a form of mens rea defense that negatives criminal responsibility, and would require society to proceed only by way of civil proceedings. If we had been faced with the rigidity that prevailed in the 1950’s, with minimum prison sentences without respite, we might well have joined in an opinion that recognized the defense, either on common law grounds or constitutional considerations or some combination of these.
While our opinion parallels that written by Judge Wilkey in some ways, the differences in approach are not insignificant. Our opinion reflects a process— of reexamination of an approach previously, if tentatively, indicated in Watson — in which the doctrinal factors have not been as cogent as our examination of, and increasing awareness of the limitations in, the technical knowledge concerning crucial aspects of the narcotic addiction problem. This is a thicket, not impenetrable we hope, but one that requires tough and slow going, and something different from a sharp scythe of judicial doctrine to cut brush. The proposed broad psychological drug dependence defense would not only require an extension of conventional judicial doctrine, as we point out, but an extension that is inappropriate in view of the problems of verifiability rooted in the inadequacies of our knowledge. Our conclusion, that at the present juncture justice neither compels nor warrants that kind of extension of judicial doctrine, is based in critical degree on our detailed study of the successive steps taken by the Congress in recent years, its heeding of expert voices focusing on its past mistakes, and its provision for research and continued reexamination. In that context, we think the ultimate problems of law and policy should be addressed by the Congress without judicial intrusion at this time.
Our conclusion that the addiction defense should not be recognized, even for drug possession offenses, at the present juncture, does not mean that we think this defense, is contrary to sound policy, but rather that the issues are such that the ultimate consideration of the problems of law and policy require the attention of the legislature. While a court cannot abdicate its judicial function of assessing the validity of what the Congress has done and intended, the court must also take into account the uncertain state of present knowledge, and the salutary deference to Congressional latitude in finding' a way to cope with the problems of. heroin addiction and addiction-related crimes.
Since it is not necessary to recognize a narcotic addiction (or dependence) defense to secure just dispositions in the future, given the provisions of the 1970 law, we see no compelling reason to inject the defense into convictions governed by the prior law. In a way this is a corollary — by way of converse — to the Supreme Court’s modern doctrine of ret-roactivity, or should one say prospectivity. Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965). The fact that judicial decisions contemplate changes for the future is good sense, for the mistakes of the past are left to the past and the administrative burden of this correction is not permitted to lay a dead hand on adaptation to modern perceptions and needs. Con *1161 versely, when judicial intervention is not necessary to assure justice for the future, sound judgment cautions against any approach of judicial overhaul.
In the large, this approach permits the courts to focus on each individual’s condition in terms of disposition, rather than guilt of the substantive offense. This approach has many strengths. It has particular strengths for the future in view of the probation possibilities under the 1970 legislation.
There is an awkward junction point for defendants like appellant whose offenses, under prior legislation, were reached by sentences imposed prior to May 1, 1971. Serious questions of fairness are raised by the unavailability of either an addiction defense or the range of dispositions made possible by the 1970 Act. To some extent a court must be satisfied if it sees a trend in improvement of justice. As to the particular case, we think the appropriate disposition is to remand the case for further consideration of the possibility of disposition of appellant within the structure of NARA.
The path we have found was not clearly marked. We have done much soul searching, with reexamination of assumptions. Ideally, we should have preferred to write an opinion half as long and twice as crisp. But this was a case where the picture emerged as in a mosaic, after the numerous tiles were sorted and laid out. We present our views with full appreciation of the strengths of the differing views presented by our colleagues.
I. FACTS OF OFFENSE, AND DISTRICT COURT DISPOSITION
Prosecution Evidence
An informant advised the police of heroin sales being made in the Warren Hotel by “Crip Green” '(room 15) and “Jumbo” (room 17), and made buys on January 25 and 26, 1970, under police supervision. Warrants were obtained, and executed on January 29. When Officer Daly entered room 15 at about 7:00 p. m., he found appellant Moore and another man in circumstances permitting an inference by police and jury of appellant’s possession of narcotics on a bed. 1 The evidence would also, we think, have justified a finding that appellant was a participant in the capping operation, as the prosecution contended, but this was denied by appellant and the case was not put to the jury on that basis. Moore and his companion were arrested and searched; 50 capsules of mixed heroin were found in Moore’s trouser pockets. Moore was charged on two counts — under the Jones-Miller Act of 1909, 21 U.S.C. § 174 (unlawfully imported substance) and under the Harrison Act, originally enacted in 1914, 26 U.S.C. § 4704 (a) (package not tax-stamped) — as to the heroin on the bed, and two additional counts on the drugs in his pockets.
Theory of Defense
The theory of the defense, referred to as his Watson defense, is that guilt cannot be established by proof of possession by a non-trafficking addict, that this would be inconsistent with (a) Congres *1162 sional intention, and (b) constitutional principles, particularly as developed in Robinson v. California, 870 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962). The trial court rejected this so-called Watson defense, first by denying defendant’s motion to dismiss the indictment, and later by excluding evidence and denying requested instructions.
Defense counsel proffered, through the testimony of Dr. Harold Kaufman, a psychiatrist on the staff of St. Eliza-beths Hospital, heard by the court out of the presence of the jury, that appellant had a compulsion to inject heroin and therefore to possess heroin illegally, that appellant suffered from drug addiction, and that this was not a mental disease but a “disorder.” Dr. Kaufman’s proffered testimony is amplified below (see fn. 11 and text thereto). It suffices, for present purposes, that defendant was not claiming that he was under the pharmacological duress of “withdrawal” at the time of the offense. 2 The claim rather focused on his psychological compulsion to inject heroin.
The court ruled there was no defense of non-responsibility on ground of narcotic addiction, except as part of a defense of insanity. The insanity defense was negatived by Dr. Kaufman’s own testimony, and the proffer of his testimony was rejected. Defense counsel decided not to introduce further evidence. Before resting, defense counsel referred the court to appellant’s pre-trial testimony, that he was a non-trafficking addict who came to the room to buy narcotics to supplement the supply in his pocket, and made a proffer of testimony of McKinley Gore, a former addict and a counselor of drug addicts with the District of Columbia Narcotics Treatment Administration (NTA), that some addicts do use more than 50 capsules daily, and have 50 or more capsules in their possession, and that appellant had been enrolled in the NTA methadone program since December 9, 1970, and his chances for rehabilitation were good. 3
The court gave standard instructions on narcotic offenses, and a charge covering constructive possession. He charged: “It is not a crime to be a narcotics addict, nor is the use of narcotics, standing alone, a crime.” The court declined an instruction on appellant’s Watson theory, and also apparently, appellant’s requests for a “mens rea” instruction and an instruction defining addiction.
Sentencing
On February 24, 1971, the jury found Moore guilty on all counts. On February 26 the court entered an order committing defendant for examination pursuant to Title II of the Narcotic Addict Rehabilitation Act of 1966 (NARA), 18 U.S.C. § 4252 . A notice of appeal was filed March 8, 1971. 4 On April 13, 1971, *1163 the NARA staff at Danbury Federal Correctional Institution reported to the District Court that Moore “was an addict, both physically and psychologically dependent on heroin” but was not likely to be rehabilitated by treatment. 5
At the sentencing proceeding, held June 14, 1971 after the brief on appeal had been filed in this court by the appellate counsel appointed May 4, defense trial counsel submitted that Danbury’s conclusion did not mean appellant is an unwilling patient or one who does not want a cure, but reflected the fact that Danbury uses a complete abstinence program and not the methadone method of treatment, with which Mr. Moore had been cooperating. When the trial judge sought confirmation from appellant concerning his criminal record, defense trial counsel conceded he had a long criminal record but submitted that it was “the record of a man forced by his addiction to commit these various offenses.” 6 The court sentenced appellant to concurrent terms of 6 years, and 2-6 years. 7
II. CONTENTIONS FOR REVERSAL
A. By Counsel for Appellant
Counsel representing appellant in this court are signally well-informed 8 and have made an effective presentation, as follows:
1. Appellant is an addict — as appears from his own testimony that he was using an average of $60 per day of heroin 9 at the time of the offense; Officer Daly’s testimony that appellant was an addict; a 1969 NARA report to a judge of the then D.C. Court of General Sessions; and the April 13, 1971 NARA report of the trial judge. It was proffered that Dr. Kaufman would testify that appellant suffers, not from a mental illness, but from a mental disorder of a special character called “drug addiction,” that he is subject to “drug dependence of morphine type” as defined by the World Health Organization, 10 and *1164 that appellant was an “old addict,” i. e., one who continuously had not only a physiological craving but also a psychological compulsion to inject heroin. 11
2. Basic common law principles of criminal responsibility and capacity entitle a defendant to show that he is “so far addicted to use of habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction” thus rendering his drug-related actions “involuntary.”
3. Neither the statutes charged in the indictment, nor the Controlled Substances Act of 1970 preclude application of these basic principles.
4. If the statutes do preclude such application, then the Eighth Amendment—which embodies the same core principles or morality— bars appellant’s conviction, under Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 , rehearing denied, 371 U.S. 905 , 83 S.Ct. 202 , 9 L.Ed.2d 166 (1962), and Powell v. Texas, 392 U.S. 514 , 88 S.Ct. 2145 , 20 L.Ed.2d 1254 , rehearing denied, 393 U.S. 898 , 89 S.Ct. 65 , 21 L.Ed.2d 185 (1968).
5. Appellant concludes (Br. 102): . [T]he compulsive acts inherent in a disease condition are no more blameworthy than having the disease itself. It is as barbarous to punish the one as the other. * * * While it is cruel and unusual to punish an addict for the acts inherent in his addiction, it certainly could not be argued that adequate and appropriate rehabilitative treatment, including withdrawal from heroin, is anything but humane and the preferred approach. In short, Appellant does not urge that an addict has a constitutional or any other legal right to purchase and possess heroin for injection.
B. By Amicus Curiae
A reflective brief filed, with leave of court, on behalf of the Washington Area Council on Alcoholism and Drug Abuse (WACADA), supports the jurisprudential argument of appellant’s counsel, and further submits:
Our law enforcement forces are not equipped to deal with criminal behavior on the scale generated by the thousands of addicts, 17,000 officially estimated to reside in the District, who are daily (a) violating the narcotics laws and (b) engaged in other criminal activity to support the narcotics habit. The assignment of principal responsibility for dealing with drug addiction to the criminal justice system, instead of institutions better suited to deal with addiction, has produced a failure that has been expensive and intolerable to the community. 12
*1165 The judicial system is clogged and distorted. A 1971 study, conducted by an official of the D.C. Bail Agency, indicates that of all defendants charged with crime in the District of Columbia, approximately 50% have an indication of narcotics use, and of these 40% were charged solely with narcotics offenses, primarily possession. Even the select group released on personal recognizance show a recidivism rate for addicts, of 24%, almost twice the rate for all other offenders. However, addicts released on condition of treatment at D.C.’s NTA had a recidivism rate less than half that of other addicts.
The WACADA Council agrees that the criminal justice system should hold addicts who commit non-drug crimes, though with “treatment rather than simple incarceration,” but submits it should not reach mere possessors of drugs, and thus burden public facilities without any benefit in deterrent or rehabilitative effect. A defense of lack of power to control his drug behavior would permit treatment under, e. g., the 1953 D.C. Hospital Treatment Act, 24 D.C.Code § 601 et seq. (1967), by institutions developed and designed to deal with drug addiction.
The Council sees a paradox, but no inconsistency, in its position that addicts should not be held criminally responsible for actions necessary to satisfy addiction, while rehabilitation centers are trying to make addicts bear more responsibility for their welfare and behavior to others, including crimes and drug behavior. While the Council would prefer a simple statutory exemption, in the situation as it exists “the result we seek must come about within the context of the common law principles of ‘responsibility.’ So be it. We dislike the means, but we are convinced that the present situation is desperate, and the consequence of its continuation unacceptable. We therefore urge the Court to hold that Raymond Moore and others similarly situated may present the defense of their addiction * * * [as] the necessary first step 13 in the process of making the criminal justice system the instrumentality for identifying addicts so that they may be properly treated. . [T]he consequence of not confessing to the criminal law’s inability to control drug addiction is that the criminal process becomes part of the problem, rather than part of the solution.” (Brief at 23-24).
III. THIS CASE SHOULD BE DECIDED IN THE CONTEXT OF EVOLUTION OF CONGRESSIONAL LEGISLATION PREMISED BROADLY ON MAXIMUM USE OF REHABILITATION OF NARCOTIC ADDICTS.
A. The Focusing of Our Inquiry on the 1970 Law
The Jones-Miller Act and Harrison Act did not prohibit possession of narcotics as such, but under the provisions frequently referred to as “possession” offenses, proof of possession sufficed to *1166 sustain conviction of importation, or of purchase in a non-stamped package. 14
These laws were repealed by the Controlled Substances Act of 1970, P.L. 91-518. That act wrought three significant changes. First, it expressly prohibited simple possession of narcotic drugs as controlled substances, see § 404(a), 21 U.S.C. § 844 . Second, it made that offense a misdemeanor, sharply reducing penalties that might be applied to persons on mere evidence of possession. Most important, Congress repealed the provision, included in the Price Daniel Act of 1956 (note 18, infra) that had precluded probations or suspended sentences as to most convictions under the Jones-Miller and Harrison Acts, see 26 U.S.C. § 7237 (d). Probation is now prohibited only in case of a “continuing criminal enterprise.” 21 U.S.C. § 848 .
Appellant’s counsel submit that his contentions rest on broad principles which require the same disposition on the merits as to prosecutions under both the earlier laws and the 1970 law. Counsel have urged us, in effect, to consider the conviction as if it were under the 1970 law. They make no argument based on the particular provisions or earlier history of the prior statutes. We think it appropriate to broadly consider applicable principles and Congressional intention in the light of the 1970 law. In short, the validity of appellant’s conviction will be appraised as equivalent in all material respect to one entered under the 1970 law for knowing possession.
We are aware that this is somewhat unusual, particularly since the Supreme Court has recently held, in Bradley v. United States, 15 that the 1970 law’s provision permitting the use of probation henceforth was accompanied by another provision precluding its use for offenses committed prior to the effective date of the 1970 law. However, on focusing on the defense in issue, we have come to the conclusion that while there are occasional legislative and judicial statements that might have been seized on as indications that the earlier laws were not intended to be applicable to persons possessing or purchasing heroin for their own use, these were essentially insubstantial wisps — which would, incidentally, have also excluded mere users who had not lost “control.” As to the lack-of-eontrol issue, we conclude that even in the 1970 law, with its more moderate approach, Congress did not intend to provide for the kind of drug dependence defense appellants have urged. The developments of the 1970 law round out the picture, assuring us that the injection of a drug dependence defense as to prosecutions under either the prior laws, as they fade from view, or the 1970 law, would be an impermissible judicial interjection. We develop in subsequent parts of this opinion the reasons why we do not believe that the courts should develop such a defense as an extension of the general jurisprudence that provides the setting for criminal prosecutions. As to the issue of Congressional contemplation, the fact that we glean its contours in large measure from an examination of current developments in narcotics legislation broadly considered, is, we think, a sound approach for ascertaining legislative intent. 16
B. The Increasing Severity of the Legislation of the 1950’s
Understanding of pertinent Congressional intent will be aided by first recalling the Federal narcotics legislation of the 1950’s, laws that have been characterized as the turning of the screw.
The mandatory minimum, no probation, no-parole provisions of the Federal laws were not in the original Jones-Miller and Harrison Acts. These features *1167 were installed by amendment in 1951 and 1956, in reaction to the rising tide of drug abuse.
The Boggs Act of 1951, P.L. 82-255, 65 Stat. 767 , placed a two-year minimum sentence on convictions under the Jones-Miller and Harrison laws. The Senate Report deemed prevailing sentences unequal to the task of stemming drug abuse. 17 “It would appear . that the punishment which has been afforded narcotic law violators has not been an effective deterrent.” 18
The Price Daniel Act of 1956, P.L. 84-728, 70 Stat. 567 , raised the minimum penalty for a violation of the Jones-Miller law to five years, and in addition, introduced the no-probation provision codified at 26 U.S.C. § 7237 (d). 19 The House Report stated: “Drug addiction is not a disease.” 20 It evidenced considerable optimism that increasing penalties would cope with the drug problem. It claimed the 1951 penalties had reduced narcptic traffic, 21 that illicit traffic continues in “problem areas where leniency with respect to sentencing of convicted traffickers is an established pattern in the courts.” 22 It recommended increasing severity in sentences as justified by “the factual evidence proving the deterring value of severe penalties for narcotic and marihuana law violations.” 23
C. The Reassessment of the 1960’s
The 1960’s witnessed a continuing reassessment of approach, and an increasing realization and acceptance that the Government could not satisfactorily cope with the narcotic drug abuse problem by concentrating on law enforcement activities and a theory of deterrence, that there was need for removal of mandatory terms and reestablishment of probation and parole authority, for recognition of addiction as beset by disease aspects that could respond in some measure to treatment, and for multiple paths of research and experiment in keeping with the diverse aspects of the problems.
1. White House Conference on Narcotic and Drug Abuse (1962): The Emergence of Civil Commitment; Probation and Parole
The watershed was the first White House Conference on Narcotic and Drug Abuse, convened on September 27, 1962. The working paper of the Conference, the Report of an Ad Hoc Panel on Drug Abuse, identified drug abuse as a indication of an underlying character disorder, manifesting an inadequate personality unable to cope with the stresses of *1168 normal life. It recognized that we do not understand the origins of the disorders of the various types of addicts, or how to cure them, but posited that even an individual whose abuse has been terminated must be provided with support and supervision or he could not survive any stress without relapse. 24
The Conference was particularly advised of the legislative developments in California and New York. After ten years of increasing prison terms, the California legislature realized this might seem a panacea to the public mind but could not effectively cope with the problem. After study, it passed legislation establishing rehabilitation centers, available on certification by a court after conviction of an addict, with provision for controlled supervision after institutional treatment. 25
The New York law, not yet in force, went further, permitting criminal proceedings to be stayed, with provision for committal to a facility subject to medical supervision, release to out-patient probationary supervision, and abatement of the legal proceedings on successful completion of the program. 26
A significant voice at the Conference was that of Senator Thomas J. Dodd, Chairman of the Senate Subcommittee on Juvenile Delinquency, who opposed the rigid imprisonment features of the 1956 law, as of illusory value in deterrence and damaging in impact. Without leniency for “the professional criminals at the vortex of narcotic racketeering” there must be reform of the “excessively primitive and inhumane treatment now meted out to those who are essentially the victims of the narcotic racket.” He recommended:
The problem of drug addiction is essentially a medical problem, a psychiatric problem. It cannot be solved by merciless prison sentences. I believe that the law should be amended to repeal mandatory minimum penalties and to restore the possibility of probation and parole for rehabilitated narcotic offenders.
Senator Dodd stated that the responses to his Committee’s inquiries showed that these views were supported by a majority of Federal Judges, probation officers, prison wardens and United States attorneys. 27
*1169
2. Recommendation of President’s Advisory Commission (1963)
Executive Order 11076, signed January 15, 1963, 28 Fed.Reg. 477, created the President’s Advisory Commission on Narcotic and Drug Abuse, to submit recommendations based on an evaluation of the White House Conference. The Commission, chaired by our distinguished and revered late colleague, Judge E. Barrett Prettyman, rendered its report on November 1,1963. 28
Basic philosophy
The “Basic Philosophy” section of the Prettyman Commission report was reprinted in full in the 1970 House Committee Report, which stated that the 1970 law, added to previous measures, effectuated in whole or in part virtually all pertinent recommendations made by the Presidential Commissions in 1963 (Prettyman Commission) and in 1967 (so-called Katzenbach Commission). 29 This is how the Prettyman Commission stated its Basic Philosophy: 30
The abuse of drugs has aroused two extreme attitudes — the punitive and the permissive.
Some people are concerned primarily with the effects of drug abuse on the community. * * * Because most serious drug abusers return to drugs if left to themselves, these people would shut down the drug abuser away from society for as long as possible.
In contrast to this attitude, others hold that serious drug abuse is usually symptomatic of a mental disturbance and that the drug abuser is a sick person. They attribute his crimes to an inner compulsion for which he should not be held responsible under our code of criminal justice. They feel that the drug abuser must be treated for his sickness rather than punished. Some feel his disease is incurable and that he should be maintained on the drug.
This Commission does not accept either of these extreme attitudes, but it subscribes to certain aspects of each. * * -x- The drug abuser who steals or who sells drugs to finance his habit is guilty of a crime. Like any other citizen, he should face the consequences. Whether he can be held criminally responsible can only be decided in the courts, case by case. The Commission cannot assert a general rule that every confirmed drug abuser is so impelled by his habit that he is not accountable for his acts under criminal law.
If the abuser is to be penalized, he should not be penalized in the spirit of retribution. The modern concept of criminology should apply — that penalties fit offenders as well as offenses.
Penalties should be designed to permit the offender’s rehabilitation wherever possible. Although society must often be protected from the offender for a time, penalties in specific cases should recognize the need for reformation.
The deterrent effect of long sentences is vigorously debated. Some *1170 evidence indicates that the threat of long sentences may deter non-using traffickers, but it does not necessarily deter the drug abuser. Deterrence is essentially an appeal to a normal sense of reason which the drug abuser has lost. The persistence of narcotic abuse, despite severe penalties for the possession of narcotics, is persuasive evidence that the abuser will risk a long sentence for his drug.
The general philosophy of this Commission can be stated in three parts:
(1) The illegal traffic in drugs should be attacked with the full power of the federal government. * * *
(2) The individual abuser should be rehabilitated. * * *
(3) Drug users who violate the law by small purchases or sales should be made to recognize what society demands of them. In these instances, penalties should be applied according to the principles of our present code of justice. When the penalties involve imprisonment, however, the rehabilitation of the individual, rather than retributive punishment, should be the major objective.
Specific recommendations
Specifically the Prettyman Commission recommendations included the following :
(a) As to probation and parole:
That mandatory minimum sentences, and prohibition of probation, suspended sentences, and parole, be modified so that the sentencing judge have full discretion in the sentencing of those whose offense is possession of narcotics without intent to sell (and for all marihuana offenses). 31
(b) As to civil commitment:
After discussion of the New York and California programs, the Commission recommended “that a federal civil commitment statute be enacted to provide an alternative method of handling the federally convicted offender who is a narcotic or marijuana user.” 32
3. Civil Commitment: Narcotic Addict Rehabilitation Act of 1966 (NARA)
The Prettyman Commission proposals as to civil commitment emerged, with some modification, in the Narcotic Addict Rehabilitation Act of 1966 (NARA). NARA was intended to provide a rehabilitative approach, rather than a purely penal one. 33 NARA was *1171 congruent with the 1953 D.C. law’s philosophy, 24 D.C.Code § 601 et seq. (1967), that addicts were sick people, who need a helping hand, and which permitted a court order for confinement of a “drug user.” 34 However, the D.C. Act was made expressly inapplicable to “any person . . . charged with a criminal offense,” 24 D.C.Code § 603(b). NARA went further and provided for civil commitment even of persons charged with crimes, in the case of crimes deemed related to drug abuse (with certain exceptions).
NARA commitment provisions
The NARA provisions for civil commitment of narcotic addicts may be summarized as follows:
Title I — pretrial commitment for treatment, in lieu of prosecution, of addicts charged with Federal crime. 28 U.S.C. § 2901 ff.
Title II — commitment for treatment of addicts convicted of Federal crime. 18 U.S.C. § 4251 ff.
Title III — commitment for treatment of persons not charged with any Federal crime, on a petition by the addict or a related individual. 42 U.S.C. § 3411 ff.
Eligibility under Titles I and II was subject to statutory exclusions, e.g., any person charged with a crime of violence. 35 A person charged with selling a narcotic drug is excluded from Title I, but not' from Title II, if the sale was to enable him to obtain a narcotic drug which he required for his personal use.
Civil commitment requires a determination by the court that the narcotic addict is likely to be rehabilitated by treatment. Under Title I he is committed to the custody of the Surgeon General for treatment up to 36 months — in an institution, or on additional release in the community. If he successfully completes the treatment program, the criminal charge is dismissed, otherwise, the prosecution may be resumed. Under Title II, the convicted person is committed to the custody of the Attorney General who provides for his treatment, with provision for conditional release under supervision in the community, after six months commitment in a treatment institution.
D. Restoration of Rehabilitative Discretion of Sentencing Judge: The Controlled Substances Act of 1970
The other pertinent recommendation of the Prettyman Commission (1963) and Katzenbach Commission (1967) for restoration of discretionary authority in the sentencing judge (probation, including suspension of sentence; no mandatory minimum) and parole, was accomplished by the Controlled Substances Act of 1970. This was enacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236 . 36 This Prettyman *1172 Commission recommendation (text at note 31 supra) was reiterated in 1967 by the President’s Commission on Law Enforcement and Administration of Justice, 37 which stated:
The Commission recommends: State and Federal drug laws should give a large enough measure of discretion to the courts and correctional authorities to enable them to deal flexibly with violators, taking account of the nature and seriousness of the offense, the prior record of the offender and other relevant circumstances.
The President’s 1969 message, while recommending expansion of rehabilitation and research measures in recognition of an obligation of society to help the “genuinely sick people” dependent on drugs, stated that their sickness helps to explain, but not to excuse, the crimes they commit. 38 However, the Administration made clear that its concern for such sick people, while not extending to exculpation, did embrace provision for treatment while on probation or parole.
Attorney General Mitchell, outlining the Administration’s proposal at the hearings, emphasized the need for tailoring of disposition “to the requirements of the violation or the narcotics addict,” both in length of detention, and in possibility of rehabilitation and treatment “while on probation or parole.” 39
This approach was reflected in the 1969 report submitted by Senator Dodd in behalf of the Senate Judiciary Committee and was in line with Senator Dodd’s presentation to the 1962 White House Conference. The Report 40 stated:
It had also become apparent that the severity of penalties including the length of sentences does not affect the extent of drug abuse and other drug-related violations. The basic consideration here was that the increasingly longer sentences that had been legis *1173 lated in the past had not shown the expected overall reduction in drug law violations.
* * * * *
The main thrust of the change in the penalty provisions is to eliminate all mandatory minimum sentences for drug law violations except for a special class of professional criminals. The field of penology has maintained the position that mandatory sentences hamper the process of rehabilitation of offenders. It has equally been maintained that such penalties infringe on the judicial function by not allowing the judge to use his discretion in individual cases.
The House Interstate and Foreign Commerce Committee, H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. 19, U.S. Code Cong. & Admin. News 1970, p. 4585 (1970), expressly implementing the Presidential Commission’s recommendations for sentencing flexibility “to provide a greater incentive for rehabilitation,” stated in its report:
Action. As discussed earlier in this report elimination of almost all mandatory minimum sentences, as well as elimination of the prohibition against probation and parole of narcotic offenders, is accomplished by this bill.
Furthermore, and significantly, the House Committee specifically voiced approval of probation on condition of treatment:
The Committee is confident that judges, in administering the provisions of this section, will recognize that many defendants coming before them will be in need of medical treatment and that judges will require that these persons undergo some form of prescribed treatment as a condition of their probation (at 49, U.S.Code Cong. & Admin. News 1970, p. 4617).
Statutory provisions
The Controlled Substances Act of 1970 collects in one place prohibition and penalty provisions previously scattered; simplifies determination of what conduct is forbidden; and standardizes penalty provisions in a pattern whereby penalties bear some rational and continuous relationship to forbidden acts. Offenses involving drugs which carry (1) a high potential for abuse; (2) no recognized medical purposes and (3) danger of addiction or worse consequences, are treated as more serious than offenses involving less-dangerous, more-useful drugs. The misdemeanor of simple possession of controlled drugs (for one’s personal use) was made subject to a maximum penalty of one year and $5,000 fine. An additional year and $5,000 fine was permitted for second and subsequent offenses. 41
No mandatory minimum terms were provided by the 1970 law, with a single *1174 exception 42 not here material. The court’s restored authority to use probation was enhanced by a provision that on the first offense of simple possession, if the offender has complied with the conditions of probation (not exceeding one year in duration), the court shall discharge the person and dismiss the proceedings, without entering any court adjudication of guilt on the verdict or plea of guilty. If the offender is below 21 when the offense occurs, he may obtain a court order expunging from all official records all recordation relating to his arrest, indictment, trial and finding of guilt. 21 U.S.C. § 844 .
Dispositional options under probation— including treatment
The conception that narcotic addiction is a disease which explains, while it does not excuse, the conduct of defendants, is carried out by the approval, implied in the restoration of probation authority, and expressly voiced by the House Committee, contemplating probation orders conditioned on treatment.
Statutory authority to provide probation on conditions is set forth in the provisions of the Federal Probation Act, codified at 18 U.S.C. § 3651 . The suspension of imposition or execution of sentence is authorized when the court is “satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby . . . . ” When sentence is suspended, the convicted person is placed on probation “for such period and upon such terms and conditions as the court deems best.”
The power to impose conditions is a broad one, governed by the standard of reasonableness, which permits insulating the individual from the conditions that led him into trouble. Whaley v. United States, 324 F.2d 356 (9th Cir. 1963). “[T]he Probation Statute is a humanitarian piece of legislation and should, accordingly, be liberally interpreted by the courts.” Mann v. United States, 218 F.2d 936, 940 (4th Cir. 1955). An intelligent compassion was the aim of Congress as appears from the legislative history reviewed in United States v. Murray, 275 U.S. 347, 355 , 48 S.Ct. 146 , 72 L.Ed. 309 (1928).
By an amendment to 18 U.S.C. § 3651 , Pub.L. No. 91-492, 84 Stat. 1090, passed a few days before the comprehensive 1970 law, the court was given authority to require narcotic addicts to reside at or participate in treatment centers when the Attorney General certifies that adequate facilities, personnel and programs are available. By another amendment to 18 U.S.C. § 3651 , passed May 11, 1972, Pub.L. No. 92-293, 86 Stat. 136, Congress authorized a court to require a person who is an addict under the NARA definition, 43 18 U.S.C. § 4251 (a), “to participate in the community supervision programs” established by the Attorney General under Title II of NARA 44 as a condition of probation . for all or part of the period of probation.” This makes the community-based programs authorized for persons under NARA, available, under probation, for addict-offenders arguably ineligible for NARA treatment, but in like need of supportive adjustment. 45
*1175 IV. AT PRESENT STAGE OF LEGAL DEVELOPMENTS, APPROPRIATE JUDICIAL ROLE LIES IN UPHOLDING THE GENERAL VALIDITY OF UNLAWFUL POSSESSION VERDICTS FOR HEROIN ADDICTS, TAKING INTO ACCOUNT THE AVAILABILITY OF PROBATION AND TREATMENT, LEGISLATIVE INTENT, JUDICIAL DOCTRINE OF RESPONSIBILITY, CONSTITUTIONAL FACTORS, AND MEDICAL AND CLINICAL DATA
Taking into consideration the discernible contemplation of Congress, pertinent doctrines of responsibility, constitutional factors, and medical and clinical data, in the context of the restoration of probation flexibility, we conclude that the judicial role, at this juncture, lies in upholding the general validity of unlawful possession verdicts for heroin addicts.
A. Overall View of Congressional Intent
There was widespread construction of the Harrison and Jones-Miller Acts, as permitting prosecutions based on evidence of possession of narcotic drugs by an addict for his own use. This is an entirely different matter from the disputes as to the way the Harrison Act was construed to preclude medical prescription of narcotics outside an institution. 46
The “simple possession” prohibition in the 1970 law, 47 which follows the pattern *1176 of the widespread Uniform Narcotic Drug Act 48 removes a marginal gap in the prior Federal legislation — e. g., for persons who received narcotics by gift, perhaps from a pusher. 49 So far as appellant’s contention of a defense of incapacity or drug dependence is concerned, 50 the 1970 law marks no shift in Congressional intent, but rather a continuance of absence of any Congressional contemplation of such a defense.
The 1967 Task Force Report, Narcotics and Drug Abuse, note 30 supra, rendered to the President’s Crime Commission, exemplifies the widespread understanding that an addict’s constant need for drugs was no defense to a charge, under State or Federal law, of possession of or purchase of narcotic drugs. This is the same Report that supported sentencing flexibility for the addict offender (text at note 36 supra). But it did not contemplate a defense on the merits. The Report states (at p. 10):
Drug Offenses
Addiction itself is not a crime. It never has been under Federal law, and a State law making it one was struck down as unconstitutional by the 1962 decision of the Supreme Court in Robinson v. California. It does not follow, however, that a state of addiction ean be maintained without running afoul of the criminal law. On the contrary, the involvement of an addict with the police is almost inevitable. By definition, an addict has a constant need for drugs, which obviously must be purchased and possessed before they can be consumed. Purchase and possession, with certain exceptions not relevant in the case of an addict, are criminal offenses under both Federal and State law. So is sale, to which many addicts turn to provide financial support for their habits. (Emphasis added).
The pertinent state rulings support the view that drug dependence did not establish a defense. In rejecting the claim, based on Robinson v. California, that the uniform possession prohibition was inapplicable to a narcotic addict because his possession only reflected his disease of addiction, the Illinois court held that knowing “possession” signifies a “voluntary act” and not a mere “status” or “condition.” 51
The same analysis appears in other state rulings, e. g., Nutter v. State, 8 Md.App. 635 , 262 A.2d 80 (1970), stating that the victims of unlawful drug traffic “are also criminals, not by reason of being addicts, . . . but, because, notwithstanding their addiction, they *1177 are responsible for certain of their acts, even though stemming from their addiction, which are crimes, as for example, possession and control of a narcotic drug.” 262 A.2d at 86-87 .
The modern practice in drafting penal legislation is to specify defenses when intended. 52 Congress would have inserted an affirmative provision in the 1970 law, if it had contemplated a drug dependence defense. Exactly such an affirmative defense provision was proposed in § 1824 of the Study Draft of a new Federal Criminal Code, released for comment, in June 1970, by the National Commission on Reform of Federal Criminal Laws. 53
Although that Commission’s Staff on balance — after candidly discussing pertinent problems, which we shall note later —favored this defense, they (a) proposed it for adoption by the legislature, and (b) drafted it as an affirmative defense. 54
The hearings preceding the Controlled Substances Act of 1970 contain a submission by Professor Michael Rosenthal, identified as the staff consultant on Drug Laws to the National Commission on Reform of the Criminal Laws, speaking in his individual capacity. He proposed that simple possession, even of heroin, be at most a misdemeanor (except for organized criminal activity) and not a felony, subject,to high (maximum) imprisonments, as proposed by the Administration ; his view became a feature of the law as eventually enacted. He made other suggestions that were not accepted by Congress — that possession not be made a Federal crime; alternatively that it be subject to diminished punishment, or acquittal, if “a defendant proved beyond a preponderance of evidence that he possessed only for personal use.” 55 A recommendation for a drug dependence defense was made by an authoritative medical voice, 56 on the *1178 ground that it should be regarded as an illness; this was particularly urged for the amphetamines and barbiturates, which have a legitimate medical use. Congress did not enact any of these suggestions.
We do not think it can fairly be said that Congress contemplated a drug dependence defense to a Federal charge based on possession that had not been accepted by the State courts.
B. Interlock of Legislative Intent of Possession Statute and Judicial Doctrines of Criminal. Responsibility
A statute prohibiting “possession” is not to be taken in a sense “which works manifest injustice or infringes constitutional safeguards,” and so even if the words “intentionally or knowingly” had not been inserted in the 1970 law prohibiting possession of heroin and other controlled substances the court would have inferred a legislative intent to avoid criminality for “a possession which is not conscious and willing.” Baender v. Barnett, 255 U.S. 224, 225 , 41 S.Ct. 271 , 65 L.Ed. 597 (1921).
The broad question raised by this case is whether or when possession of heroin by an addict, though conscious and intentional, lacks elements indispensable to criminality under fundamentals of our system of justice. Appellant contends that his conduct is excusable for lack of ability to control offending behavior, that his “long and intensive dependence on injected heroin stands on the same footing” as “a person forced under threat of death to inject heroin.” (Brief at 4). We may fairly assume that a statute contemplates the defense of threat of death, as basic jurisprudence, even though not expressly noted. However, psychic dependence, and a claim of psychic incapacity, did not establish a defense under settled judicial doctrine that Congress may reasonably be said to have contemplated.
Untenability of impaired control concept as universal and absolute defense negativing criminal responsibility
Appellant’s key defense concepts are impairment of behavioral control and loss of self-control. These have been considered by this court most fully in discussion of the insanity defense, and the philosophy of those opinions is invoked, although appellant disclaims the insanity defense as such. In our 1962 en banc McDonald 57 opinion we required as an essential ingredient of the insanity defense evidence that the crime was the product of a “mental disease or defect” — defined as an “abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” In our 1972 en banc opinion in Brawner, 58 we adopted the test of the ALI’s Model Penal Code and required, for exculpation from responsibility for criminal conduct on ground of insanity, evidence from the defendant that as a result of “mental disease or defect,” as defined in McDonald, he lacked at the time of his conduct “substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”
Appellant’s presentation rests, in essence, on the premise that the “mental disease or defect” requirement of McDonald and Brawner is superfluous. He discerns a broad principle that excuses from criminal responsibility when conduct results from a condition that impairs behavior control. Appellant’s submission was made prior to Brawner but presumably would be modified so that the statement (Brief at 80) that it is not contended that appellant’s controls were totally destroyed would be refined with a claim that there was a lack of substantial capacity to conform conduct to the law prohibiting possession. The broad assertion is that in general the mens rea element of criminal responsi *1179 bility requires freedom of will, which is negatived by an impairment of behavioral control and loss of self-control.
If drug dependence really negatived mens rea, it would be a defense not only to the offense of possession or purchase of prohibited drugs but to other actions taken under the compulsion of the need to obtain the drug. If there is an impairment and lack of capacity to alter conduct, there is no way in which the line can be drawn in mens rea terms so as to exclude the very large percentage of addicts 59 who must support their habit by engaging in retail sales, or, indeed, committing other crimes in order to satisfy their compulsion for drugs.
Under common law doctrine the courts did recognize defenses as applicable to some but not all offenses. Thus, the defense of duress was not applicable to murder, and originally not applicable to any capital crime. But these are not defenses of lack of the “free will” or mens rea that is an ethical and moral requisite of criminality, but are affirmative defenses of justification and excuse that are based on policy assessment of the needs and limits of social control, a policy appraisal that has been resolved by the legislature for the heroin offenses.
Appellant’s surface logic loses luster with analysis. It does not follow that because one condition (mental disease) yields an exculpatory defense if it results in impairment of and lack of behavioral controls the same result follows when some other condition impairs behavior controls.
The criminal law expresses the requirements of personal and official discipline needed to protect society. By long tradition of the penal law, an actor’s behavior is “involuntary” and there is no criminal responsibility, when he is overwhelmed by force, as when his arm is physically moved by someone else. 60 By long tradition, too, the criminal law reaches only acts that are not only voluntary but also accompanied by a mental element, a “mens rea” (Law latin for guilty mind). Although some modern statutes impose strict liability, statutes defining criminal offenses are generally construed to require a mens rea, what Justice Jackson aptly referred to as the “requisite but elusive mental element” of crime. Morissette v. United States, 342 U.S. 246, 252 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952). However, this mental state may be supplied by proof of knowledge, or even by an objective standard of negligence not dependent on subjective knowledge of the actor. 61 The elements that our basic jurisprudence requires for criminal responsibility — a voluntary act, and a mental state — are plainly fulfilled by an offense of knowing possession of a prohibited article. 62
The legal conception of criminal capacity cannot be limited to those of unusual endowment or even average pow *1180 ers. A few may be recognized as so far from normal as to be entirely beyond the reach of criminal justice, but in general the criminal law is a means of social control that must be potentially capable of reaching the vast bulk of the population. Criminal responsibility is a concept that not only extends to the bulk of those below the median line of responsibility, 63 but specifically extends to those who have a realistic problem of substantial impairment and lack of capacity due, say, to weakness of intellect that establishes susceptibility to suggestion; or to a loss of control of the mind as a result of passion, whether the passion is of an amorous nature or the result of hate, prejudice or vengeance; or to a depravity that blocks out conscience as an influence on conduct. 64
The criminal law cannot “vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser disabilities is to accord them proper weight in sentencing.” 65
Only in limited areas have the courts recognized a defense to criminal responsibility, on the basis that a described condition establishes a psychic incapacity negativing free will in the broader sense. These are areas where the courts have been able to respond to a deep call on elemental justice, and to discern a demarcation of doctrine that keeps the defense within verifiable bounds that do not tear the fabric of the criminal law as an instrument of social control.
Duress
These principles of social control are illuminated by the doctrines defining the defense of duress. 66 While the defense of duress is available to one compelled against his will to perpetrate a crime, with the exception of homicide, the defense is “subject to certain important restrictions and limitations, but in general is a modifying circumstance rather than a limitation of criminal capacity.” 67
The defense of duress does not betoken a broad principle of lack of self-control as a defense to criminal responsibility. While the ALI has accepted the less strict view, voiced in some cases, of lesser threats than those embraced in the original doctrine requiring apprehension of death or great bodily harm, 68 there is a continuing limitation of the defense to one who shows coercion by the use of, or a threat to use, unlawful force against his person. 69
The limited defense of duress is thus inapplicable to a purely internal psychic incapacity. Indeed, it is also excluded if the actor recklessly or consciously placed himself in a situation where it was probable he would be subjected to external duress, a limitation considered ap *1181 propriate “in view of the exceptional nature of the defense.” 70
Necessity defense
There is a common law defense of necessity — sometimes called “duress of circumstances” — available for conditions not involving an external threat of force. Supported by Biblical citation, 71 this legal doctrine is more discussed than litigated, and it provides a justification that is limited to the person who commits an offense in order to avoid a greater evil. 72
The few cases on the doctrine tend to involve violations undertaken for the greater good (or lesser evil) of safety— as in the case of the master held not to violate an embargo law when he takes port in a storm for the safety of vessel and those on board. 73 The doctrine of necessity does not support appellant’s case; on the contrary, its limitation to avoidance of a “greater evil,” illustrates that in common law doctrines the courts have proceeded in support of policy choices by staking out limited manageable defenses, not an all-embracing theory of psychic incapacity.
Crucial differences between mental disease defense and proposed drug dependence defenses
Our past decisions have considered the “no control” defenses of drug ad-diets in the context of the insanity defense. This is in accord with the approach of other circuits, e. g., United States v. Freeman, 357 F.2d 606 (2d Cir. 1966). Appellant disclaims any direct reliance on the insanity defense. 74 He agrees with our rulings that heroin dependence may have probative value, along with other evidence of mental disease, 75 but is not by itself evidence of “mental disease or defect” sufficient to raise the insanity issue, 76 unless so protracted and extensive as to result in unusual deterioration of controls.
Our opinion in Brawner declined to accept the suggestion that it “announce” a standard exculpating anyone whose capacity for control is insubstantial, for whatever cause or reason, and said, disclaiming an “all-embracing unified field theory,” that we would discern the appropriate rule “as the cases arise in regard to other conditions”. 77
In our view, the rule for drug addiction should not be modeled on the rule for mental disease because of crucial distinctions between conditions. The subject of mental disease, though subject to some indeterminacy, and difficulty of diagnosis when extended to volitional impairment as well as cognitive incapacity, 78 has long been the subject of systematic study, and in that framework it is considered manageable to ask *1182 psychiatrists to address the distinction, all-important and crucial to the law, between incapacity and indisposition, 79 between those who can’t and those who won’t, between the impulse irresistible and the impulse not resisted. 80 These are matters as to which the court has accepted the analysis of medicine, medical conditions and symptoms, and on the premise that they can be considered on a verifiable basis, and with reasonable dispatch, the courts have recognized a defense even in conditions not as obvious and verifiable as those covered in the older and limited test of capacity to know right from wrong.
As to the subject of drug dependence and psychic incapacity to refrain from narcotics, even the 1970 Study Draft of the Staff of the National Commission on Reform of Federal Criminal Laws, which favors on balance a drug dependence defense to the crime of possession, for incapacity to refrain from use, 81 candidly recognizes the problems involved. One is “the paradox of jail for the least dangerous possessors (non-addict experimenters and the like) while addicts go free.” 82 More important, for present purposes, is the Staff’s caution first, that even physical symptoms might “be successfully feigned,” 83 and, *1183 more broadly, that there is considerable difficulty of verification of the claim of a drug user that he is unable to refrain from use. The Staff Report states:
Perhaps the most significant problem with respect to the proposed defense is that substantial incapacity to refrain from use of dangerous or abusable drugs is not easy to verify. Difficulty of verification, while related to the possibility of feigning the defense, is a broader problem.
According to Dr. Jurgensen such a defense for opiate use would present several problems. A judgment that the defendant lacked substantial capacity to refrain from use of opiates at the time of his possession is a more difficult judgment than a judgment whether the defendant who has assaulted or killed another lacked substantial capacity to conform his conduct to the requirements of the law, because why a person used an opiate at a particular time is not as easily explained by his life history and personality dynamics as why he assaulted or killed another person. Even a person with great clinical experience with addicts could only make an intelligent guess as to the extent that the capacity to refrain from use was impaired at the time of the use or possession in question; persons with less experience could not guess as accurately. 84 For clinical purposes, the guesswork
inherent in “clinical intuition” may be tolerated as part of the experimental approach to whether a disease exists, in what degree, and which mode of treatment should be tried first. But different criteria apply to determination of criminal responsibility. The Staff concludes that while there are “basic arguments for exempting from punishment for his use the dependent drug user who lacks substantial capacity to refrain from drug use,” there are significant difficulties, and there is need for further inquiry:
In order to exempt such a person from liability it is also necessary that his condition not be unduly difficult to verify or define, and that this is so is not entirely clear. Hence, the value of the defense may be illuminated by additional opinions from the National Institute of Mental Health. 85
The difficulty of the verification problem of lack of capacity to refrain from use is sharpened on taking into account that the issue comprehends the addict’s failure to participate in treatment programs. This raises problems of the addict’s personal knowledge, disposition, motivation, as well as extent of community programs, that may usefully be assessed by someone considering what program to try now or next, but would irretrievably tangle a trial.
The feature that narcotic addiction is not a stable condition undercuts any approach patterned on the mental disease, where there is a reasonable projection that subsequent analysis of particular incidents over time may delineate an ascertainable condition. It is unrealistic to expect the addict himself to supply accurate information on the nature and extent of addiction at the time of the offense, particularly as to “psychic dependence.”
The difficulty is sharpened by the appreciable number of narcotic “addicts” who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable. It is noted in the Staff Report, and reported by specialists voicing different approaches to addiction problems. 86
*1184 There is need for reasonable verifiability as a condition to opening a defense to criminal responsibility. The criminal law cannot gear its standards to the individual’s capacity “absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility.” 87
That criminal defenses from somatic conditions must hinge on a verifiable predicate has been noted by criminal law specialists most ready to reexamine old dogmas 88 and was pointed out in Brawner as a requisite for exculpation. 89 Not dissimilar considerations under gird the maxim, ignorance of the law is no excuse, which contradicts salient principles underlying mens rea, yet rejects the defense claim in the interest of society. “The plea would be universally made, and would lead to interminable questions incapable of solution.” 90 The needs of society require overriding the subjective good faith of the individual as a legal defense, remitting his position to mitigation of punishment and executive clemency. 91
Of 210 addicts studied — “20 percent of the entire number, at some time during their addiction careers, had voluntarily abstained from the drug and had succeeded in breaking the habit without assistance from physicians, hospitals or prisons.”
Reliability and validity of a legal defense require that it can be tested by criteria external to the actions which it is invoked to excuse. 92 And so the Model Penal Code’s caveat paragraph rejects *1185 an insanity defense based on an abnormality manifested only by repeated criminal or otherwise anti-social conduct. This approach was followed in Brawner, 93 The defense of drug dependence to a charge of drug use cannot clear the hurdle of circularity.
Problems of verifiability interrelate with dangers of widespread assertion. This is particularly significant since it is proposed that the defense be made available not only to persons who satisfy the World Health Organization definition of addiction, which requires a physical dependence, note 10 supra, and who make a claim of action under the compulsion of withdrawal stress, but also to persons who claim mere “psychic” dependence. Such a defense of drug dependence would seem likely for most persons having possession or making purchases of narcotic drugs, in contrast with mental disease, which cannot be established for more than a small percentage of the cases affected. A defense put forward nominally for the addict without capacity to refrain would naturally extend to all habitual drug users, given the realities of the administration of justice, limited time and resources available for prosecution and trial, and the extreme difficulty of any effort to draw distinctions between addicts.
The difficulty of verifiability of “loss of control” was side-stepped by Congress in its civil commitment statutes, which apply to one who is either “so far addicted . . . as to have lost the power of self control with reference to his addiction” or “who uses any habit-forming drug so as to endanger the public morals, health, safety, or welfare”. This compound concept was used in the 1953 definition of “drug user,” see 24 D.C.Code § 602(a) and the 1966 definition of “addict” in Titles I, II and III of NARA, 28 U.S.C. § 2901 (a), 18 U.S.C. § 4251 (a), 42 U.S.C. § 3411 (a) (1970).
Furthermore, Title I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 contains, in § 2, a provision for Surgeon General custody not only of an “addict” but also of a “drug dependent person,” 42 U.S.C. § 201 (1970), defined as:
a person who is using a controlled substance . . . and who is in a state of psychic or physical dependence, or both, arising from the use of that substance on a continuous basis. Drug dependence is characterized by behavioral and other responses which include a strong compulsion to take the substance on a continuous basis in order to experience its psychic effects or to avoid the discomfort caused by its absence.
The 1970 law establishes the Surgeon General’s authority to treat drug dependent persons on voluntary petition, transfer of a prisoner, or in accordance with a Federal court probation order specifying treatment as a condition of probation. 42 U.S.C. §§ 257-259 (1970).
Such provision for treatment for drug dependent persons (under “strong compulsion”) on probation reinforces the lack of contemplation that the same condition was covered through some implied osmosis as a criminal defense.
C. The Need- for Judicial Restraint in a Context of Balanced Legislative Commitment to the Narcotic Addiction Problem
Restraint as part of judicial policy role
Our analysis has revealed that there is no broad common law principle of exculpation on ground of lack of control, but rather a series of particular defenses staked out in manageable areas, with the *1186 call for justice to the individual confined to ascertainable and verifiable conditions, and limited by the interest of society in control of conduct.
Unless compelled by constitutional considerations, an injection by the courts of a new criminal “drug dependence” defense, on a subject of extraordinary difficulty, would be singularly inappropriate, at the present juncture.
We are now rounding out a decade when the turn-of-the-screw approach of the 1950’s has been succeeded by a wide-ranging and flexible attention to the problem by the legislature. The Drug Abuse Office and Treatment Act of 1972 94 marks continuing recognition that law enforcement must be integrated with education, prevention, treatment and rehabilitation programs, reflecting “a strong consensus that prevention and treatment and law enforcement are in fact interrelated and can have enhancing as well as counter-productive effects on one another.” 95
Congress has seen the need for flexibility, experiment, coordination of programs, devotion of resources. All the experts are in agreement concerning the extraordinary complexity of the problems, the changes over the years in patterns of addiction, the diversity in kind of narcotic addicts, reasons for addiction and possible motivations and methods for diversion and rehabilitation, and above all the limitations on our knowledge, and the need for research.
Court cannot extirpate criminal process as lacking a role in treatment of addicts
We are not to be taken as encouraging prosecution of drug addicts on the basis of mere possession. But the present state of learning and public opinion does not allow us to foreclose recourse to the criminal process as part of the overall approach of government to this tangled problem, or to anticipate legislative consideration of the pro’s and con’s of a drug dependence defense to possession.
When Senator Dodd called in 1962 for recognition that “drug addiction is essentially a medical problem, a psychiatric problem” his proposal was to restore probation and parole. With probation, the criminal process may provide, in the words of Judge Belson, “a potent and beneficial intervention in the life of the addict .... Persons on probation from offenses such as charged here [possession of heroin and narcotic paraphernalia, D.C.Code § 33-402, 22-3601] are frequently required to participate in drug abuse programs; and their participation may, in the case of some individuals, be strongly encouraged by the direct threat of a jail term which would ensue if they should fail to make reasonable efforts to cooperate with the program.” 96 Whether addicts respond to such governmental intervention presumably depends upon their particular personalities and disorders and their attitudes toward authority.
Certainly it cannot be said that the technical evidence eliminates any possible role for detention and compulsion. The Report of the Ad Hoc Panel on Drug Abuse, the working paper of the 1962 White House Conference, indicates that underlying personality inadequacy persists even after drug abuse is terminated, and unless the individual is provided with support manifests itself as soon as he encounters stress. 97 “When, however, firm supervision of the discharged addict is available, particularly under civil or criminal parole arrangement, an encouraging number are able to stay off drugs and maintain themselves by honest employment for an appreciable period of time. These programs depend upon the substitution of external control, exercised jointly by *1187 correctional officers, medical personnel, and social workers, for the inner control which appears to be lacking in the addict personality.” 98
Reference may also be made to the literature since 1966 on studies, supported by a research award of the National Institute of Mental Health, of two long-term follow-ups of patients, one group from Kentucky, one group from New York, who were admitted to the United States Public Health Hospital at Lexington. The study by Dr. G. E. Vaillant, of Harvard Medical School, has been identified as a “break-through.” 99 The study finds relative ineffectiveness securing abstinence from either voluntary treatment along the medical model, or punishment alone, but finds that “external coercion of some kind appears a critical variable in facilitating abstinence” and produces significantly greater success rates when punishment is combined with a follow-up parole providing close and prolonged community supervision, 100 and a work program to help achieve independence, in a backdrop of social prohibition and legal sanction against narcotic drug abuse.
The study posits that the urban addict typically lacked integrated supervision in childhood and in effect seeks control, and that the parole supervision meets the addict’s need for a powerful incentive to work, as a substitute for the satisfaction of addiction, and an unescapa-ble nonparental ally to back up his impulse control, and to care when he is honest and independent. 101
*1188 It is not our province to assess the value of a system of probation reinforced by jail sanctions. That there is some evidence to support its vitality, at least for some addicts, establishes that prohibition on legal grounds is not warranted as the necessary product of the consensus of medical opinion. If it is, indeed, one of three main approaches that have value — along with methadone-maintenance, and therapeutic communities — and there is need for experiment and study, judicial interdiction is not warranted.
There has been increasing recourse to —and experience and data developing about — treatment programs with the substitute and blocking drugs, e. g., methadone (itself an “opiate”) and cy-clozocine (an “antagonist”). 102 At present, maintenance programs are being stressed 103 — though not exclusively. 104 Attention must also be focused on effective community supervision and follow-up, to secure supporting life styles, including e. g., work performance conditions, that motivate for both treatment and abstinence.
There are expert voices describing compulsory supervision in the form of probation and parole as an important and effective weapon in society’s arsenal against narcotic addiction. 105 And students of the problem most hostile to compulsion, even through civil commitment, acknowledge that such supervision has a substantial effect in inducing abstinence. 106 The approach of compulsory supervision through probation cannot rightly be excluded.
Significance of conviction prior to probation supervision or detention
The knowledge available concerning narcotic addiction is not such as to impel the courts to intervene, on grounds of justice, to require that probationary supervision be met by a civil determination and civil compulsory commitment, and to forbid its being preceded by a “conviction”, or accompanied by a threat of prison in case of violation.
1. When the 1963 Prettyman Commission recommended a federal civil commitment statute to “provide an alternative method of handling the federally convicted offender,” 107 it selected the model of conviction first (Califormia plan), as preferable to deferral of prose *1189 cution (New York plan), in avoiding serious problems of trial if needed. 108 While NARA as enacted provided for both alternatives, Congress required that certain addicts — engaged in sales solely to secure narcotics for their personal use — be committed only under Title II after conviction. And the problem identified by the Prettyman Commission has contributed to the actual experience of under-utilization of Title I of NARA, with prosecutors preferring the Title II approach lest controls be undermined. 109
Given the present state of available knowledge, and given the need for compulsion to reenforce cooperation in rehabilitation treatment, a court cannot gainsay the permissibility of a policy choice by the legislature that there be a conviction before a treatment is ordered. This establishes, at a minimum, a clear signal to the addict of prompt and effecfive detention in the event of non-cooperation, whether on a sentence already passed, or by the celerity with which a sentence previously deferred may be imposed, following a hearing by the court, without the delay and other problems attendant on trial before a jury of the underlying offense.
A recent report notes that the D.C. Narcotics Treatment Agency’s program of Outpatient Abstinence, recorded a low performance rate, with only 15% remaining in it for six months, whereas the same NTA programs showed significantly better results when used for abstinence patients referred to NTA by the Department of Corrections. The analysis comments: “Programs connected with the criminal-justice system usually have the spur of return to jail if the patient fails, of course.” 110 What more need be said?
*1190 2. Furthermore, community supervision rests, to a considerable extent, in the hands of the police. The legislature might reasonably conclude that, in our society as it stands, the police are more likely to be vigilant in requiring compliance with a parole officer who is exacting payment of a “debt to society” owed by a convicted man, than with a doctor or social worker, 111 and, further, that more genuine help to the addict will be obtained through supervision from probation and parole officers, because they are likely to be more “hard-nosed” and demanding, requiring employment, without accepting the evasions and objections, of unsuitability or discomfort, that may be persuasively presented to treatment aides by a person avowedly only “sick.” 112
8. The foregoing only says there may be a place for probation after conviction. It does not deny the considerable value of pre-trial diversion, 113 or of other legislative models that avoid conviction, 114 or permit expungement of conviction following successful treatment. 115 Such expungement would help avoid any possibility that the social stigma attached to ex-convicts might impede the rehabilitation of drug addicts when they return to the community. 116 A similar result can be accomplished for age-eligible misdemeanants by disposition under the Federal Youth Corrections Act, 117 which provides for probation as well as treatment in confinement, and which has a provision for expungement of conviction. 118
Section 404 of the 1970 law, 21 U.S.C. § 844 (1970), goes further and provides for expungement as to the misdemeanor of possession, without any “adjudication” of guilt, notwithstanding a verdict or plea of guilty, in the case of a first narcotics offense by a person under 21 who complies with the conditions of a probation order.
4. There are difficult problems relating to responsibility and stigma. The *1191 issue of responsibility requires consideration not merely in terms of the abstraction of blameworthiness, but also from the standpoint of furtherance of rehabilitation. The Government’s brief presents, in an appendix, a technical paper 119 which reports on a questionnaire put to recovered addicts, that 76% of them agreed that motivation for cure would be removed if it was ruled that heroin addicts were not responsible for their actions at material times, and 69% further said they were always responsible for their actions at material times. Appellant takes issues with the writer’s methodology and conclusions. We cannot, on appeal, resolve such matters so as to override a legislative contemplation of conviction.
The role of responsibility is noted in the WACADA amicus brief, that rehabilitation depends on an acknowledgment of responsibility by the addict. Deeming it an unfortunate paradox that it must negative responsibility in order to obtain non-punitive treatment — and nowhere does amicus address itself to suspension under probation — amicus says that “conviction” of crime is contra-indicated because it is what sociologists call a “degradation” ceremony. Its use in the criminal process is said to intensify the personality configuration of the long-term heroin addict (which involves significant qualities of dependency, irresponsibility, insecurity and low self-esteem) and in effect reinforce the dynamic of addiction.
The amicus brief is forthright in recognizing the need for “responsibility,” and the problem it presents to a plea denying responsibility. Its “degradation ceremony” contention is interesting, but we are not cited to any evidence or study. The references we have cited seem to undercut any assumption that probation techniques that have proved successful are impaired by the existence of a prior conviction or even short confinement. 120
Most significant is the dilemma that the “degradation” problem, to the extent that it exists, would seem most applicable to the relatively young, whereas the testimony relied on by appellant’s counsel to support the defense of psychic incapacity highlights the special problems of the “old” addict. One may be at least skeptical whether confirmed addicts— beset with self-hate, often depressed and perhaps even suicidal — will be affected by a possession conviction as an even marginal increment of despair. That they are more likely to be attentive to the realities of controls than such nuances, appears from the reactions of addicts to the California compulsory civil commitment program: 121 Those convicted of a felony narcotics violation (about 75%) feel they are better off in a civil commitment program — with lesser potential detention time; those committed after a misdemeanor conviction would rather be in prison, with less detention time.
It may be that the invocation of the criminal process has the plus value of telling the addict: “You are responsible for what you have done and are doing.” There is a dignity in holding him responsible. And it may be ego-building, too, to offer a treatment as a choice (on probation) rather than a compulsory mandate of commitment. That it is likely to be preferred to prison does not negative the ego mechanism of choice.
Finally, there is serious question whether stigma is avoidable. Justice *1192 Black and Harlan concluded that compulsory commitment would “carry with it a social stigma little different in practice from that associated with” the label of a “crime.” 122 And it is notable that the 1970 Congressional scheme constituting the crime of possession as a misdemean- or avoids the collateral consequence that the offender will suffer the loss of voting rights. 123
Deterrence
Finally, we cannot entirely overlook the feature of deterrence. Narcotic addiction is not as prevalent today as in 1900. 124 A noted advocate of humane treatment for addicts recognizes (a) that “Federal and State laws have been exceedingly effective in preventing the addiction of normal cases, and the coercive features of narcotics laws have forced the cure of the more hopeful of the curable cases”; and (b) that a “well-defined fear of the law” is one reason why addicts try a cure. 125 Deterrence of addicts may be most effective for those who can best visualize options — like doctors and para-medical personnel who become medical addicts — but it is not limited to them. It would not be unreasonable to consider that a drug dependence defense would operate to undercut any prohibition of possession, and that this must be balanced against the evidence that a deterrent effect is wrought by the possibility of arrest followed by penalty.
The deterrent consideration is not undone by noting the addicts who were not deterred, for they must be weighed against the invisible experimenters or dabblers, who were deterred from starting or continuing. It is not decisive that the criminal law did not deter addicts in the first instance, when it could not offset the contagion of the peer-group — and most studies place the beginning of heavy use between the ages of 17 and 19, addicts often testifying that they got started through the offer, and the contagious enthusiasm, of a friend who tried it and liked it. 126 The fact that use was not deterred when the criminal law was abstract and remote, at least in comparison with peer-group pressures, does not mean it will not be deterred when the criminal law is made concrete with arrests, even the arrests of others. The deterrence is intensified when the criminal sanction is made concrete with a sentence that is suspended only on condition of treatment.
*1193 In view of the phenomenon of remission and self-abstinence, we must take into account that the prospect of criminal punishment may help an individual decide that now is the time to remove himself from involvement with narcotics, and to undertake serious rehabilitative efforts.
The deterrent aspects of prohibition of possession are noted even by those favoring a medical model, but admit that the law reducing possession to a misdemeanor has the redeeming aspects of precluding extremely severe prison sentences for non-traffickers, making it likely that many will be deemed appropriate for probation rather than detention, while still discouraging those who are deterred by criminal sanctions from experimenting into a habit, and even encouraging some addicts to give up the habit. 127
Need for judicial role of probation supervision, and doctrinal restraint, pending on-going legislative reappraisal of narcotic addiction problems
Our approach is consonant with the March 1972 report of the American Bar Association Special Committee on Crime Prevention and Control. 128
The Committee lamented the under-utilization of programs for pre-trial diversion of drug dependent defendants, and recommended that procedures be developed within the criminal justice system so that addicts, accused or convicted of possession of narcotics or of street crimes for support of their habit, would be diverted from the criminal justice system and be referred to treatment.
The subject of pre-trial diversion is one of enormous importance in the administration of justice, both in avoiding needless clogging of the courts for the cases that really identify a social and medical problem rather than a legal problem, and for the more effective protection of society through rehabilitation of the individuals involved in those cases. However, pre-trial diversion is not a sound justification for a broad dependence defense to possession charges, which may not only involve the courts in trial tangles, but would be most applicable to the older addicts, rather than the younger ones most appropriate for diversion. Pretrial diversion is a matter that requires exercise of prosecutorial discretion, 129 and it may fairly be contemplated that such discretion will be exercised for non-trafficking addicts who, the Government says, are not the real target of the criminal laws.
The Committee’s conclusion that narcotics addiction should be transferred out of the courts “to non-judicial entities, such as detoxification centers, narcotics treatment centers and social service agencies” (at 100) is a broad legislative proposal. It projects for the future a limited role for the criminal justice system.
Meanwhile, however, the Report comments with approval (at 42) that the 1970 act “contains some substantial and long-awaited reforms,” including provision for “offenders on probation subject to conditions of medical treatment.”
The efforts of the American Bar Association’s Committee, conjoined with *1194 negotiations with the United States Attorney and court officials, have led to a pre-trial diversion program in the Superior Court of the District of Columbia for first offenders charged with certain non-violent misdemeanors. 130 The courts rightly encourage and sponsor such programs. However, the courts will soundly be governed by a judicial restraint that keeps in phase with the pace of legislative advances. Injection of a judicial doctrine of psychological dependence of heroin addicts would be heavy-handed and counter-productive at least in the present state of knowledge, and the reality of critical problems of reliability. Judicial efforts at this time are more soundly oriented to improvement of disposition within the contours of the system of criminal justice rather than to outright negation of criminal responsibility for addicts. This is a time when many programs have begun and need assessment. The legislature and executive contemplate an integrated approach, wherein law enforcement aspects would be coordinated with prevention, rehabilitation, research and other programs. The literature suggests that the criminal justice system may have a useful role in this integrated approach, in reinforcing treatment by those charged with the possession misdemeanor, and put under pre-trial diversion, and by those convicted of possession and put under probation supervision. This court is in no position at this time to reject or imperil that potential. Sound judgment calls for the courts to reinforce the legislature’s rehabilitation efforts, using the probation flexibility, but to avoid at this juncture injection of new doctrine in an area still in evolution, with ongoing reappraisal of the narcotic addict problem under way by the legislature, and indeed all concerned.
* * * * * *
On March 22, 1973 — after this opinion and the others were in page proof — the National Commission on Marihuana and Drug Abuse released its Second Report: “Drug Use in America: Problem in Perspective.” It concludes (at 273):
The Commission recommends that the unauthorized possession of any controlled substance except marihuana for personal use remain a prohibited act. The Commission further recommends that as a matter of statutory or enforcement policy, assertion of control over the consumer should not be tied to concepts of criminal accountability but rather to concepts of *1195 assistance appropriate in the individual case. The primary purpose of enforcement of the possession laws should be the detection and selection of those persons who would benefit by treatment or prevention services.
Specifically as to the role of the legal system and the issue of drug-dependent persons, the Commission concludes as follows (at 274):
For those drug-dependent persons who are apprehended for consumption-related offenses, including possession, one of the following dispositions is in our view constitutionally required and should be mandatory:
(a) diversion to a treatment program or
(b) diversion to a treatment program after conviction but before entry of judgment by the court.
Failure by an individual to comply with the conditions of treatment would result in his return to the court for prosecution or sentencing. In that event, he should be subject to punishment by up to one year imprisonment, a fine of up to $500 or both.
At this time and in this space it is not feasible to review the Commission’s discussion in depth, much less to integrate it into the analysis in this opinion. It suffices to observe generally that the Commission’s commentary is in large part, if not entirely, congruent with the analysis in this opinion. An index of that congruence is the Commission’s observation (at 275):
The Commission has proposed retention of the possession offense because of its symbolic importance, its practical though limited deterrent value, its legitimate role as a mechanism for channelling drug dependent persons into treatment and for identifying others whose drug use may be symptomatic of serious emotional distress.
We cannot know the ultimate fate of this or any other of the Commission’s recommendations. But this Second Report, which covers drugs like heroin and cocaine, is part of the direction of ongoing reconsideration by the legislature, here by an expert commission established by statute, which is a key assumption of our opinion.
D. Constitutional Considerations
In Robinson v. California, supra, the Supreme Court held that a California statute making mere addiction a crime inflicted “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments. The Court said, however, that “A state might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders. . ” 131 The Court emphasized, at 665-666, 82 S.Ct. 1417 , that, in the case before it, the jury had been instructed that they could convict even though the defendant had never used narcotics within the State, and overturned the sentence as one based on an addict’s status standing alone, for the reason that this would be tantamount to punishing a disease, and indeed “an illness which may be contracted innocently or involuntarily,” 370 U.S. at 667 , 82 S.Ct. at 1420 , and stated:
We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. * * * Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.
*1196 In Powell v. Texas, supra, the Court upheld a statute making public drunkenness a crime. Mr. Justice Marshall announced the judgment, in an opinion concurred in by Chief Justice Warren and Justices Black and Harlan. He stated that the court could not assert categorically that the use of the criminal process as a means of dealing with public aspects of problem drinking lacked rationality. He referred to the uncertainty as to the nature, cause, identity and treatment of the disease of alcoholism. Faced with the reality that there is no known effective method of treatment, and in any event in view of the enormous requirements of facilities and manpower for the implementation of a rehabilitation program “it is difficult to say in the present context that the criminal process is utterly lacking in social value.” 392 U.S. at 530 , 88 S.Ct. at 2153 . Moreover, the possibility of deterrence significance cannot be nullified.
As to the Eighth Amendment, the Court distinguished Robinson on the ground that there was no punishment of Powell for a mere status, but for the ac-tus reus — being in public while drunk on a particular occasion. The Court was unable to conclude from the record and “the current state of medical knowledge, that chronic alcoholics . . . suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts . . . .” at 535, 88 S.Ct. at 2155 . And the Court declined to articulate a general constitutional doctrine of mens rea, or to define “some sort of insanity test in constitutional terms and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers.” at 536, 88 S.Ct. at 2156 .
If this had been the opinion of a majority, no shred of a constitutional problem would confront us. The criminal law recognizes that a knowing possession is an act, see text at note 62 supra. The medical authorities are uncertain as to the causes of narcotic addiction, and even hypotheses as to the propensity to addition are confronted by the ever-changing nature of the addict population. Most importantly, there is no generally accepted cure. The ABA Committee Report, note 128 supra, places main hope on management programs through use of narcotics — methadone-maintenance as a replacement addiction — to cabin the anti-social consequences of heroin addiction. But the Report recognizes (at 57) that methadone maintenance might be effective in the range of 25-50% of addicts, and that “far smaller percentages” can be reached by the other treatment programs discussed— abstinence and detoxification, including civil commitment programs with counseling and psychiatric input; therapeutic communities (Synanon); and antagonists. 132
*1197 The overall context of the constitutional problem must also take into account (a) the acceptance of a penal sanction to enforce compulsory civil commitment for narcotic addicts, notwithstanding that at present success rates are at best modest; and (b) the material already developed concerning the possible value of the penal sanction —when used with probation conditioned on treatment. In this setting, with probation-with-treatment available to the sentencing authority, Justice Marshall’s opinion supports a penal sanction for knowing possession of narcotics by addicts.
We turn to the opinion of Justice White, the fifth member of the Powell court. We have particularly pondered his statement that Robinson’s incapacity to punish addiction (a disease) necessarily means an incapacity to punish an addict for possession or use of the narcotics, which is the same as punishing for addiction “under a different name.” See 392 U.S. at 548 , 88 S.Ct. 2145 . In Watson, this court reflected, without resolution, on the implication of that position.
As already noted, Robinson said expressly that the state could punish purchase or possession of a narcotic drug. The Court was doubtless aware that just such a possession provision is part of the Uniform Narcotic Drug Act in ef-feet in most states. 133 Justices Warren and Black subscribed not only to Robinson but also to the opinion affirming Powell’s conviction as based on an actus reus.
Justice White’s statement must be read in the framework not only of his votes to uphold the convictions of both Robinson and Powell, but of his statement that punishment for an offense can be related to the exercise of will at some previous time — at least if the willed acts were not “remote in time.” 134 This indicates that punishment for the offense of possession may be justified constitutionally, notwithstanding a claim of present lack of control capacity, by reference to some not-too-remote choice of the addict to eschew rehabilitation treatment available. This is significantly different from the standard approach of e. g., the insanity defense, as exemplified by the ALI rule, which focuses on lack of capacity at the time of the offense, to control the conduct.
Also revealing of Justice White’s approach is his concluding passage, 392 U. S. at 553-554 , 88 S.Ct. 2145 , that a defense is not established by the mere existence of compulsion “to some degree,” where the defendant has not made a showing that he was “unable” to avoid the condition made criminal. 135 There is a plain implication that defendant would have the burden of proof.
*1198 Taking Justice White’s opinion and votes as a whole, we conclude that his approach does not undercut Justice Marshall’s opinion on the constitutional permissibility of holding even narcotic addicts for the intentional action of possession, without recognition of a new defense of psychological dependence that poses difficult problems of verifiability and widespread use. To the extent that those contending for a dependence defense are ready to accept convictions under state statutes, without provision for such a defense, their submission plainly lacks constitutional requirement, even though it may be permeated with constitutional discussion.
Constitutional doctrine is concerned with general fairness. The pertinent context combines (a) increasing availability of treatment choices in the community, including “treatment” probation, and (b) awareness of the problems attendant on a drug dependence defense if required (difficulty of verification of psychic incapacity as distinguished from unwillingness to undertake available treatment, difficulty of identifying differences in types of addicts, difficulty of limiting the defense to the few rather than the many, etc.). In this combined context, constitutional fairness does not mean a compulsion to probe the addict's alleged compulsion and determine, e. g., precisely when and on what basis he made a choice for use when not dependent, or ignored the community’s program (in the District of Columbia, not only voluntary commitment, but also the NTA’s multi-modality programs, including methadone maintenance).
E. Current Resolution of Problems Noted in Watson, and Further As sessment of Pertinent Doctrines of Responsibility and Constitutional Protection
We are aware that in Watson it was indicated that the criminal process might be inapplicable to acts as integrally related to the status of addiction as possession, and that the issue of this defense on the merits might be presented through motions before and during the trial. 136
These references to the merits were at most tentative, and were intermeshed with non-constitutional questions, that the pertinent legislative history of the earlier statutes might show that Congress never intended to reach “the non-trafficking addict possessor” 137 or “non-trafficking possessors for personal use.” 138 Even as to addicts, it is significant that the opinion, which sustained a conviction, focused on the availability of NARA treatment after conviction, as a primary consideration, albeit not a final solvent of the claims on the merits. In a significant passage, the Watson opinion stated that the sentence was being vacated and remanded—
with directions that he [appellant] be regarded on resentencing as eligible for non-criminal disposition under the Narcotic Addict Rehabilitation Act. Amicus itself has represented to us . that this action on our part “would in large measure” obviate appellant's problem. 139
Watson did not take into account — indeed the court was not advised of — the prospect that subsequent 1970 legislation would make possession a misdemeanor and would permit conviction to be followed by treatment even without NARA *1199 commitment, through provision for treatment as a condition of probation.
The thought has been put that we should enlarge on common law defenses to reach psychic incapacity from drug addiction. In Brawner we considered a diametrically oriented proposal, that the insanity defense be abolished, with medical overview reserved for disposition not guilt. We noted that this proposal had not only appeared in the journals but been endorsed in comments of reflective judges. We concluded that this turn-about from settled common law doctrines based on mens rea and free will was not for judicial fiat but for the kind of legislative reexamination that could be accomplished by devotion of resources.
Similarly, we think it should be for the legislature to focus on whether to expand the theory of the insanity defense so as to add a defense of psychic incapacity from drug addiction. The difficulties of verifying incapacity are significantly greater than those posed by the insanity defense. And the identification of the defense of drug dependence with concepts of mens rea and free will is undercut by its proposed limitation to simple offenses of possession and use. That this is fiat does not necessarily mean it is unsound policy. However, this is the kind of choice of policies in tension that is appropriately for the legislature, at least when, as here, the legislature is engaged in continuing reappraisal of narcotic addiction, has supported an integrated approach with large funds for research and rehabilitation, and has, significantly, restored probation and permitted conditions of treatment.
The flexibility of probation, and suspended sentence, may serve (a) to reinforce the addict’s motivation for rehabilitation, and (b) to protect society, by ensuring against any hiatus between the termination of the criminal process and the institution of civil equivalents. The term “equivalents” is used advisedly; any widespread recourse to compulsory civil commitment must take account of voices increasingly concerned with the threat to liberty portended by actual confinement. 140 The, problems are underscored by civil commitment statutes, like the D.C. law, that provide no maximum detention, such as inheres in a sentence, and authorize detention for the duration of “treatment.” Nor can the problems of compulsory commitment, aptly termed a hybrid detention, 141 be finessed in the name of “treatment”; the penal sanction for evading commitment, or elopement, extends in all likelihood, to a failure to cooperate. 142 Moreover, in a field pervaded with doubt, about all that is certain is that it is not yet known, for many if not most addicts, whether, how, or to what extent, successful treatment may be achieved. A whole-hearted commitment to civil commitment must be tempered with awareness that even now this is sometimes “uncivil commitment” and that overhead hovers the anxiety of detention unadorned by meaningful treatment. 143
The uncertain state of knowledge in this field, and need for flexibility, are underscored by the “unanticipated findings” of a survey in the “ghetto” Bed-ford-Stuyvesant community. 144 The sur *1200 vey found that a lower heroin use in their families was reported by respondents with grade school education (one-half the use of those with high school or college education); by respondents with blue collar occupations or incomes below $6,000 annually (significant difference with those employed in white collar occupations or income above $6,000 annually); by respondents from broken homes (slightly less than those in intact families); and by respondents in households headed by females (slightly less than those headed by males). These surprising findings on the profile of the addict caution against any court extension and intrusion into on-going appraisals, based on assumptions that may be undercut by studies and developments. As to the less surprising finding of this LEAA-financed study, that the highest drop-out rate from the meth-odone maintenance program was among the younger members, this reinforces the need for the availability of strong sanctions that can overcome the inducements of the drug, and motivate users to accept responsibility and the strains of changing a life style.
It is argued that civil commitment provides the protection that society needs in the ease of an individual unable to control his possession and use of narcotic drugs. This raises serious questions whether commitment juries will be ready to find such lack of self-control as to warrant involuntary confinement of those not charged with crime; whether •our society can realistically be expected to implement a civil statute with the same priorities as a violation of probation, in e. g., unrelenting enforcement of an employment requirement; whether there is a feasible way to handle the person whose extreme hostility means that his inclusion in a treatment program limits capacity for treatment of other addicts. 145 Apart from such questions there remains the problem of slippage, the inescapable problem of the narcotic user who resists confinement in jail on the ground that it has not been proved beyond a reasonable doubt that he had substantial capacity to conform his past conduct to the law’s prohibition of possession, and then resists possible confinement in a hospital by arguing to the jury that it has not been sufficiently proved by the Government that he has “lost the power of self control with reference to his addiction.” 146 Since the presence, or lack of control capacity is difficult of verification as of any one time, and is subject to change, this problem of slippage is not inconsiderable.
On the other side of the coin, so far as criminal sanctions are concerned, Congress has recognized the mistakes of the past in over-domination of medical solutions by law-enforcement officials, and has provided for HEW prescription of approved medical techniques. 147 Methadone maintenance has been given increasing recognition, and Congress has expressly permitted methadone treatment under Titles I and II of NARA, in appropriate cases. 148 Experts caution *1201 that methadone maintenance has both ultimate limits in the number of addicts who will respond, and intermediate limitations on the rate of transition from experimental to mass programs.
It has been duly noted that there were no criminal sanctions in the 19th century notwithstanding a relatively larger user population of narcotic addicts — soldier addicts; medical addicts; and significantly “drug store addicts,” predominantly female, white and middle class, and not confined to a particular geographical region or the cities — and that criminal legislation ensued only with the advent of the “pleasure” or “street” use of narcotic drugs by ethnic minorities in the nation’s cities. 149 There are reflective voices who say that the criminal sanctions approach of the more recent past, and prohibition of out-patient medical prescription of narcotics, have combined to provide an impetus to crime that besets the society with dangers worse than the evil, and that the curse of the drug abuse requires riddance from past dogmas and research in, and then acceptance of, a system of medically supervised narcotic maintenance. 150 This is a matter for policy-making that may not be mandated by the courts.
There will be on-going legislative appraisal. The 1970 law provided, § 601, 21 U.S.C. § 801 note, for a non-partisan Commission on Marihuana and Drug Abuse, with members appointed by the President (9) and Congress (4), to conduct a comprehensive study and make recommendations. The Commission’s First Report, in March 1972, recommended that the Federal law be revised so as to remove criminal prohibitions against “private” possession of marijuana for personal use. 151 The Commission disclaimed any absolutist philosophy, and explicitly recognized that so-called “private” conduct may be prohibited in furtherance of public health and welfare, but focused on the utility of the legal system, and the need for use of criminal law, in modifying noxious behavior, particularly when the behavior is invisible, private or consensual, and whether primary emphasis must not be put on other agencies of social control. 152 *1202 The Commission’s rejection for marijuana of the contention that a possession offense is needed to reach traffickers, 153 does not necessarily extend to heroin, marked by differences in consequences to user, type of user population and quantum of “sales.” Its Second Report, in 1973, recommended criminal sanctions for possession of heroin. See text supra, at 1194-1195.
The Administration’s 1969-1970 presentation sought a Federal offense prohibiting mere possession of controlled drugs as a means of reaching large-scale traffickers, 154 and disclaimed any intent to prosecute mere addicts possessing for personal use, with reliance instead on rehabilitation and civil commitment for abusers and addicts. 155 Congress agreed to make simple possession a crime, but declined the request for high penalties and felony classification.
As to possession of narcotics by addicts for personal use, we take note of the limited impact projected by Congress for the present law — with Congressional contemplation that the Government would withhold criminal prosecution of mere addicts, and that .they would be subject to pretrial diversion and the court’s broad probation authority. This, together with the provision of an executive-legislative commission for ongoing reappraisal, establish a climate conducive to a judicial restraint that would avoid a constitutional hobbling of legislative flexibility and development.
In Watson, the 1968 opinion of a panel of this court found Eighth Amendment infirmity in the excessiveness of statutory requirement imposing a minimum ten-year term on an addict, without hope of probation or parole, and without regard to the offender's dire need for treatment. 156 When the case was reargued en bane in 1969 and decided in July 1970, the court reversed by invalidating arbitrary limitation of the *1203 benefits of Title II of NARA, thus assuring the trial court would have discretion to provide for treatment of the convicted offender.
We have not shelved the concerns underling Watson. Our position is, rather, that the legislature has increasingly addressed itself to like concerns, and has not only permitted for addicts, but made clear its interest in, probation on condition of medical treatment.
Congress fairly contemplated that the trial court in a possession case, involving claim at sentencing that the defendant was a dependent, would consider information concerning the nature of the defendant’s drug dependence, before passing sentence, and the possibilities of control under treatment. 157
At this juncture, we do not think judicial interposition of a drug dependence defense would mark a sound intrusion into the on-going legislative development of the law.
V. REMAND FOR FURTHER CONSIDERATION OF DISPOSITION
Our conclusion that this case should be remanded for further consideration by the District Court of disposition arises in part from its unusual procedural posture. Under the circumstances of this case, we exercise our jurisdiction of the appeal from the conviction — accompanied as it was by a judgment placing appellant under confinement, for a Title II NARA consideration to guide disposition after sentencing, but remand to permit further consideration of NARA disposition if requested by appellant. 158 Our settled jurisprudence calls on us to apply 28 U.S.C. § 2106 so as to order a remand following a sentence when there is a possibility that there was a failure to give NARA dispositions full consideration 159 The present *1204 case is considered appropriate for such a remand order, since prior to the disposition order, by the trial judge, this court appointed counsel to argue the appeal, and he diligently filed his brief on the merits and sought the en banc consideration which we ordered. Counsel for both appellant and the Government have thus focused on conviction vel non, and yet a simple order of affirmance might preclude any further judicial consideration of the NARA issue.
In such consideration on remand, the District Court would be free to take into account all pertinent material. The material available to this court indicates that the failure of the defendant to profit from a prior experience at Danbury is not conclusive. NARA itself makes clear that a prior failure on a Title I commitment does not preclude a Title II commitment. 160 And the fact that a person is found not likely to be rehabilitated under a Danbury program does not negative a successful adjustment through a methadone-maintenance program of the kind administered by D.C.’s Narcotic Treatment Administration. The HEW Department, and the National Institute of Mental Health, have thus far limited NARA’s rehabilitation programs, notwithstanding some variations in approach, 161 to "addicts with a high motivation for treatment.” 162 While Congress contemplated in 1966 that NARA civil commitment (Titles I and III) would be limited to “selected narcotic addicts” the legislative history also underscores the need for “flexible approaches,” embodying on-going medical knowledge, and it would seem that Title II dispositions could be governed by the broad objective of NARA voiced by the Committee as follows:
[T]he bill provides alternatives which provide a needed flexibility in the law. The practical effect of the implementation of the law provided for in the bill, is that strict punishment can be meted out where required to the hardened criminal, while justice can 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. 163
There is widespread conviction that many addicts who cannot be initially motivated for the rehabilitation programs now used by the Surgeon General can be successfully rescued from criminality, and oriented toward work performance and relatively normal life as a “socially useful citizen, happy in himself and in society,” through a methadone-maintenance program coupled with effective counseling. 164 Indeed this view *1205 seems to have been taken in the NARA Staff Evaluation Report in September 1969 to a trial judge in the then Court of General Session, that “Raymond Moore is an addict who is not likely to be rehabilitated through a treatment program in this Institution at this time. He might possibly be considered a suitable prospect for a Methadone Program, but it also appears that he is in need of hospital care.”
The proffered testimony of Mr. Gore of NTA, that appellant’s chances for rehabilitation are good, while properly excluded at trial, would of course be considered on a disposition remand. While the picture is not completely clear, there is reason, to believe that appellant would at least be able to proffer (appellant’s brief, at 37) that it was not until after the January 1970 offense for which appellant was convicted that methadone maintenance programs became available to appellant, due to the efforts of the Narcotic Treatment Agency. In February 1970 appellant tried the methadone program available at the Blackman’s Development Center, but this consisted of low detoxification doses and was no help to him. Although appellant Moore’s previous request for help for his addiction while in the judicial system was unavailing, this apparently changed in September 1970 when he was referred, by his probation officer, to the Narcotics Treatment Administration, with its substantial methadone doses.
We contemplate a remand pursuant to which the District Court will arrange for a current assessment by the Surgeon General concerning Title II possibilities, one that takes into account possible changes in that official’s administration of Title II and also the possible changes wrought in appellant by his more successful experience in the D.C’s Narcotic Treatment Agency. Even assuming the Danbury program would not be suitable for appellant in the first instance, the remand could explore the suitability of programs at other facilities — which are either operated by the Public Health Services or to which that Service has access, including the access to the community treatment centers — opened up by recent legislation. 165 See United States v. Miller, 155 U.S.App.D.C. 110 , 476 F. 2d 555 (1973). The remand to explore NARA possibilities could also consider whether under Title II, after conditional release is granted, 18 U.S.C. § 4254 , the individual can receive methadone in a community treatment center providing aftercare, and if so whether methadone is now being used in NARA confinement, or at least used as a transitional means of adjusting to a more rigorous NARA program.
Our view that the interest of justice calls for thorough-going review of NARA possibilities is a corollary of the approach reflected in this opinion, that the courts should refrain from questioning convictions when Congress has authorized an on-going liberalization of post-conviction alternatives. That premise calls for more than lip-service or mechanical consideration of the reality of these alternatives.
We conclude that the appropriate disposition is an affirmance of the conviction, and a remand for further consideration of post-conviction alternatives, for disposition. 166
The remand could also consider whether remanding the defendant to the kind *1206 of custody of the Attorney General that is provided by Title II of NARA could be blended with the kind of Attorney General custody that has been developed in connection with work-release programs, and with remittance to community residential centers, which offer guidance to persons with narcotic addiction problems. 167
. Room 15 is 10-12 feet in depth. Against the wall opposite the door was a bed which was being used as a workbench. Two chairs were drawn up to the bed; one was occupied by Sherman W. Beverly, the other by Raymond Moore. Neither of the two men was holding anything in his hands. On the bed in front of the men was a mirror and a record album cover on each of which was a heap of white powder containing heroin. Also on the bed were a large number of empty gelatin capsules, 67 capsules containing mixed heroin, an unopened package of hypodermic needles, a makeshift sieve (or “cutting screen”) fashioned of a lady’s stocking stretched over a wire coat hanger, a key to the room, and a pistol.
This case does not involve the issue, sometimes encountered, of the adequacy of proof to establish defendant’s possession, see United States v. Holland, 144 U.S. App.D.C. 225, 445 F.2d 701 (1971) ; cf. C. H. Whitebread and R. Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va.L.Rev. 751 (1972).
. As was sought to be claimed at one point by Albert Watson, see Watson v. United States, supra, 141 U.S.App.D.C. at 344, note 8 , 439 F.2d at 451, note 8 .
. Proffer (Tr. 290-91) :
“Mr. Gore would testify that Mr. Moore has been on methadone consistently since (Dec. 9) ; that he is engaged in a considerable amount of counsel-ling programs, that Raymond Moore’s chances for rehabilitation from drugs were very good; that he has seen considerable growth in Mr. Moore during the time of his association with the treatment programs, and that he believes Mr. Moore is beginning to get at the root of his

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459986. Public record. Not legal advice.