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 had not been proved to be the product of an established irresistible compulsion”
How later courts described this case
- 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 had not been proved to be the product of an established irresistible compulsion”
- 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 "
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge:
My decision is to concur in Judge Wilkey’s opinion and affirm the conviction and the sentence. Failing that, I vote to affirm the conviction and remand for reconsideration of the sentence. I also concur in Judge Leven-thal’s discussion in Part IV with respect to criminal responsibility and impaired control as a possible defense to crime.
I
Despite all the writing about non-trafficking addicts, the evidence introduced against appellant Moore is sufficient to support a conclusion that, at the very least, Moore was aiding and abetting the trafficking in narcotics when he was arrested. Hence, he is guilty as a principal 1 and must be considered a trafficker.
Moore was arrested on January 29, 1971 in Room 17 of the Warren Hotel. Previously the police had learned from an informer that certain persons were selling heroin in Rooms 15 and 17 and this information had been corroborated by actual purchases of heroin from persons (other than Moore) in both rooms several days before Moore’s arrest. Acting on this information the police obtained a warrant to search both rooms and in execution thereof discovered Moore with his coat off seated on a chair facing a bed about one foot away on which was laid out all the paraphernalia and loose mixed heroin for a heroin capping operation. 2 A vial containing 55 capsules full of mixed heroin was also found in Moore’s pants pocket. Moore was thus arrested and before he was taken away he went to the closet in Room 17 and put on his overcoat. It was a permissible conclusion that his presence in the room was more than casual or temporary and that he was actually aiding the trafficking in heroin. There is thus no basis for any discussion about a non-trafficking addict. And, since Moore after full examination was found to be ineligible for treatment under the Narcotic Addict Rehabilitation Act, I would affirm the conviction and the sentence. Failing that, as stated above, I concur in the remand to consider resentencing.
II
Judge Wright’s opinion fails to recognize that the use of narcotics by addicts is the great vice. It is the use of illegal drugs by addicts that makes other crimes possible. Possession of narcotics by the addict is at the root of the evil. And while addicts are objects of pity, that does not justify a judicial reordering of our control procedures so as to protect such persons in the regular procurement of unlimited quantities of illegal narcotics to satisfy their individual desires for euphoria. If a change is to be made in the handling of narcotics it must come from Congress.
*1207 III
I would not recognize the mental condition resulting from narcotic addiction as a defense to crime except in full conformance with the rule announced in United States v. Brawner, 153 U.S.App. D.C. 1, 471 F.2d 969 (en banc, 1972), i. e., he may not be convicted
if, at the time of the criminal conduct, the defendant, as a result of mental disease or defect, either lacked substantial capacity to conform his conduct to the requirements of the law, or lacked substantial capacity to appreciate the wrongfulness of his conduct.
153 U.S.App.D.C. at 40, 471 F.2d at 1008 . Thus, he would have to prove “mental disease or defect” and a lack of “substantial capacity to conform” and I would not consider that any person “lacked substantial capacity to conform his conduct to the requirements of law” unless his “conduct . . . would not be inhibited even by a ‘policeman at the elbow’ of the offender.” 3 The essence of appellant’s claim is that if an accused person
lacks substantial capacity to conform his conduct to the requirements of the law [he] may not be held criminally responsible for mere possession of drugs for his own use. (Judge Wright’s opinion, p. 1209)
What Judge Wright is arguing for is a defense that would eliminate any requirement of a “mental disease or defect.” Such defense would be the substantial equivalent of allowing a defense of insanity without proof of insanity. The test he proposes would not even measure up to the requirements of the irresistible impulse theory, of which it has been said:
It lends an air of scientific literalness and accuracy to a purely legal definition without any foundation in the facts of life or science.” 30
“The medico-legal theory of irresistible impulse is advocated only by laymen and by psychiatrists who are scientifically not sufficiently oriented.
Irresistible impulse as a defense to a charge of crime has been rejected in England, 31 in Canada, 32 and in a majority of our jurisdictions. In 1955 the American Law Institute found it had been added to the right-wrong test in fourteen states, the federal jurisdiction and the army plus one state having a delusional-impulse test. 33
R. Perkins, Criminal Law 873 (2d ed. 1969).
In Misenheimer v. United States, 106 U.S.App.D.C. 220 , 271 F.2d 486 (1959), Judge Washington pointed out that, even under Durham, 4 a defense of irresistible impulse in the District of Columbia had to be “due to a mental disorder.” To *1208 day, in this jurisdiction, it is Brawner, supra, that sets forth the requirements for such defenses and I see no need to depart from the standards there laid down. The adoption of the defense recommended by Judge Wright’s opinion, to my mind, “would destroy social order as well as personal safety.” 5
To paraphrase Perkins’ summary of court decisions on the irresistible impulse theory to Judge Wright’s “lack of substantial capacity to conform” proposal:
The difficulty would be great, if not insuperable, of establishing by satisfactory proof whether substantial capacity to conform his conduct was or was not lacking. “It will be a sad day for this state when lack of substantial capacity to conform one’s conduct shall dictate a ‘rule of action’ to our courts.” “The vagueness and uncertainty of the inquiry which would be opened may well cause courts to pause before assenting to it. Lack of substantial capacity to conform his conduct is too incapable of a practical solution, to afford a safe basis for legal adjudication. It may serve as a metaphysical or psychological problem, to interest and amuse the speculative philosopher, but it must be discarded by the jurist and the lawgiver in the practical affairs of life.”
See R. Perkins, supra, at 872 (footnotes omitted).
In my view the most impractical aspect of the “lack of substantial capacity to conform their conduct” test is that in applying such test it would be practically impossible to separate those who lacked substantial capacity to conform their conduct to the law from those who possessed such capacity but who merely refused to conform their conduct. Under the “addiction defense,” the repeated and successive refusal to conform one’s conduct would be tantamount to proof that he was unable to conform. It would thus be the cause of great mischief besides favoring gross users of narcotics over those less addicted.
. 18 U.S.C. § 2 (a) (1970).
. 174 empty capsules, 67 capsules full of mixed heroin, large quantities of loose mixed heroin, and other heroin paraphernalia.
. Regina v. Barton, 3 Cox C.C. 275 (1848) ; Rex v. Kopsch, 19 Cr.App. R. 50 (1925); Rex v. Flavelle, 19 Cr.App.R. 141 (1926). It was proposed to be accepted in England in the bill of 1878, but rejected in the Draft Code of 1879. It was recommended by the Atkin Committee in 1923, supported by the British Medical Association but was blocked by influential opposition. The Royal Commission on Capital Punishment in 1953 recommended that the M’Naghten rules be abrogated “and the jury left to decide simply whether the accused ought to be held irresponsible for insanity.” Williams, Criminal Law § 99 (1953). And see § 163 of the second edition (1961).
. See United States v. Kunak, 17 CMR 346, 357-58 (1954).
. Wertham, The Show of Violence 13-14 (1949). And see Hall, In Defense of the McNaghten Rules, 42 A.B.A.J. 917, 918-9 (1956).
. Can.Crim.Code § 16 (1953-54).
. Model Penal Code 161 (tent. dr. 4, 1955). The states are Alabama, Arkansas, Colorado, Connecticut, Delaware, Indiana, Kentucky, Massachusetts, Michigan, New Mexico, Utah, Vermont, Virginia and Wyoming. Georgia has a delusional-impulse test.
. Durham v. United States, 94 U.S.App. D.C. 228, 214 F.2d 862 (1954). Judge Washington was one of the participating judges in Durham .
. Commonwealth v. Mosler, 4 Pa. 264 , 6 Pa.L.J. 90 (1846.)