# 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/9459989

## 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:** Dissent by Wright
- **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/9459989

## 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

WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, and TAMM and ROBINSON, Circuit Judges,
join, dissenting:
In Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962), the Supreme Court recognized that narcotic addiction, like mental illness, leprosy and venereal disease, is an illness and not a crime. The Court therefore held that a California statute making the “status” of addiction a criminal offense inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Some eight years later, in Watson v. United States, 141 U.S.App.D.C. 335 , 439 F.2d 442 (1970) (en banc), this court noted that as a practical matter an addict’s purchase, receipt, possession and use of narcotics are acts inseparable from the disease itself. As a result we suggested, without deciding, 1 that “if Robinson’s *1209 deployment of the Eighth Amendment as a barrier to California’s making addiction a crime means anything, it must also mean in all logic that (1) Congress either did not intend to expose the non-trafficking addict possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature.” 141 U.S. App.D.C. at 345, 439 F.2d at 452 .
Today this court rejects the Watson rationale and holds that a non-trafficking addict is a criminal because he possesses drugs to satisfy his addiction. In my judgment stigmatization of such persons as criminals, rather than treatment of them for their disease, raises serious questions of constitutionality, is contrary to established common law notions of criminal responsibility, and is not mandated by Congress’ intent in adopting the relevant legislation. Moreover, this insensitive approach to drug addiction is tragically counter-productive. Twenty years of rigid criminal enforcement of drug laws against addicts has brought this country, not only a dramatic increase in organized crime, but a harvest of street crime unknown in our history. See ABA Special Committee on Crime Prevention and Control, New Perspectives on Urban Crime (1972). Yet the court presses on, still hoping that some day, somehow, the criminal sanction will bring relief. With due respect, I suggest that the law can do better. I suggest that the development of the common law of mens rea has reached the point where it should embrace a new principle: a drug addict who, by reason of his use of drugs, lacks substantial capacity to conform his conduct to the requirements of the law may not be held criminally responsible for mere posses *1210 sion of drugs for his own use. The trial judge refused appellant’s request to give the jury an instruction based on this principle. I would, therefore, reverse this conviction and remand the case for a new trial.
I. STATEMENT OF THE CASE
During the week prior to January 29, 1970, Officers Daly and Larman of the Metropolitan Police Narcotics Squad conducted an investigation into narcotics trafficking in the Warren Hotel, located at 1024 10th Street, N.W. Officer Daly learned from an informant that a man known as Crip Green was selling heroin in Room 15 of the hotel, and that another man, identified only as “Jumbo,” was selling heroin in Room 17. On January 25, the same informant, under the supervision of Daly and Larman, purchased heroin in capsules from Crip Green in Room 15, and the following day a similar purchase was made from “Jumbo” in Room 17. Narcotics search warrants were thereafter obtained for Rooms 15 and 17 of the hotel. (M. Tr. 62-66, 69-71.) 2 These warrants were executed at about 7:05 P.M. on January 29. Officer Daly knocked on the door to Room 15 and announced his identity and purpose. There was no response, and after waiting about 15 or 20 seconds he forced open the door with his foot. (M. Tr. 49-50; Tr. 12, 36-37).
Upon entering, he observed that the room was quite small — about 10 to 12 feet in depth. (Tr. 252.) Directly across from the door was a bed, with its long side against the far wall. Appellant Moore and one Sherman Beverly were seated in chairs, each about one foot from the edge of the bed. Neither man had anything in his hands. On the bed, in front of Beverly, was a mirror on which there was a pile of white powder consisting of 1,854.5 milligrams of mixed heroin. 3 To the right of the mirror, in front of appellant’s chair, there was a cardboard record album cover on which there was a similar quantity of mixed heroin. Between the mirror and the album cover, there were 93 new and 81 used empty gelatin capsules, and to the left of the mirror lay 67 capsules filled with mixed heroin. A woman’s stocking stretched over a wire coat hanger and an unopened package containing about ten hypodermic syringes and needles were located toward the far edge of the bed. The key to Room 15 and a pistol were found near the pillow. Both men were placed under arrest and searched. A vial containing 50 capsules of mixed heroin was discovered in appellant’s pants pocket. (M. Tr. 50-54; Tr. 37-42, 68, 136-141.) Based on the seizure of the loose and capsuled heroin found on the bed and the 50 capsules discovered in appellant’s pocket a four-count indictment 4 was returned on *1211 April 13, 1970, charging appellant with violations of the Harrison Narcotics Act, 26 U.S.C. § 4704 (a) (1964), 5 and the Jones-Miller Act, 21 U.S.C. § 174 (1964). 6
The litigation before trial focused primarily 7 on appellant’s motion to dismiss the indictment under the authority of this court’s decision in Watson v. United States, supra. Testifying on this motion, appellant Moore explained that he had been using heroin on a regular basis since 1946. He stated, and the Government stipulated, 8 that at the time of his arrest he was addicted to heroin. Indeed, in the weeks immediately preceding January 29, 1970, his addiction ranged from 50 to 70 capsules a day, usually at a price of a dollar per capsule. Moore did not live at the Warren Hotel, but lived with his wife about three blocks away. He testified further that he had never put heroin into capsules himself, and that the sole reason he was in Room 15 on the night in question was to purchase the 50 capsules found in his *1212 pocket for his own use. He had come to the room about 10 or 15 minutes before the police arrived, and was admitted by a man known only as “3. B.,” who sold him the 50 capsules for $30. He intended to use them at home that night and the next morning before going to work. After completing the transaction, “J. B.” left the room and asked Moore to wait until he returned. After being placed under arrest, Moore told the police, as Officer Daly testified, “If you wait a while, the big man is coming.” The officers, however, apparently declined the invitation. (M. Tr. 27-44, 59; Tr. 73-76.)
Relying upon this court's decision in Watson , appellant argued that he was simply a non-trafficking addict possessor and that the court should therefore dismiss the indictment either on the ground that the statutes under which he was charged did not apply to him or, if they did apply, that such application would inflict cruel and unusual punishment in violation of the Eighth Amendment. The Government’s response was twofold. First, the prosecution argued that this court’s discussion of the addiction defense in Watson was mere dicta and not binding upon the trial judge. Second, it contended that in any event Moore was not a non-trafficking addict. Most of the Government’s evidence was devoted to this point.
Officer Daly, after qualifying as an expert in the conduct of narcotic addicts and traffickers, explained that the purpose of the materials found on the bed, including the mirror, the record album cover, the stocking stretched over the wire coat hanger, the “loose” heroin, and the empty gelatin capsules, was to prepare the heroin for sale through the process known as cutting and capping. (M. Tr. 45-49, 51-53.) It was clear that a trafficking operation was in progress, but the question remained whether Moore was the buyer or the seller. On this point, Daly was less helpful. When questioned by counsel for appellant, Daly admitted that he had no knowledge of Moore as a trafficker prior to the arrest. The informant had never mentioned appellant’s name as a seller in the Warren Hotel, and the officer did not see him at the hotel on previous nights during the course of the investigation. Moreover, counsel for the Government stipulated that, although Moore had been an addict for some 25 years, the Metropolitan Police Department had no knowledge of him as a trafficker. (M. Tr. 71; Tr. 9, 49-50, 53.)
There was also a question as to whether Moore intended to sell, rather than use, the 50 capsules found in his pocket. Officer Daly testified that since most addicts are “street wise,” they normally carry only a small number of capsules at any one time in order to avoid a felony charge (rather than a misdemeanor) if arrested and to avoid being robbed by other addicts. Although Daly had never encountered an addict possessing drugs for his own use who carried more than 15 capsules, he admitted that some non-selling addicts might do so. Moreover, counsel for the Government stipulated that some addicts have habits in excess of 50 capsules per day and that some will buy an entire day’s supply at one time and carry this supply with them immediately after the purchase. (M. Tr. 54-56; Tr. 49, 52, 54, 57-59.)
At the conclusion of this testimony, the court denied appellant’s motion to dismiss. The basis of this ruling was unclear, however, for the court refused to specify whether it accepted the Government’s position that despite Watson a defense of “addiction” is never available or, on the other hand, whether such defense does exist but that the evidence of trafficking in this case was such that appellant could not be found, at least as a matter of law, to be a non-trafficking addict possessor. (Tr. 83-84, 110-111.) Thus when the trial opened the court still had not ruled on whether evidence of addiction could be introduced by the defense. It deferred its decision on this question until it could hear the testimony of Dr. Harold Kaufman, a psychiatric witness for the defense; out of the presence of the jury prior to the start of the *1213 Government’s case. Since Dr. Kaufman was not available at this time, however, the court decided to proceed with the trial. (Tr. 121, 123-125.)
As at the pretrial proceedings, Officer Daly was the principal prosecution witness. 9 In large part, Daly merely reiterated what he had said earlier when testifying on the motion to dismiss. Thus he again described the events of the night in question and explained that the paraphernalia found on the bed ordinarily is used to cut and cap heroin for sale. (Tr. 135-145.) With regard to appellant Moore’s relationship to the heroin on the bed, Officer Daly testified that both Moore and Beverly had put on coats before leaving the room, but he was not certain whether they had taken them from the closet (Tr. 141, 234); that the informant had not mentioned appellant as a trafficker in the Warren Hotel (Tr. 157-158); that he had no prior knowledge of Moore as a trafficker (Tr. 153); that when he entered the room appellant had nothing in his hands (Tr. 233) ; that no tests were run to determine whether there were traces of heroin powder on appellant’s hands (Tr. 233); that no tests were run to determine whether appellant’s fingerprints were on the paraphernalia found on the bed (Tr. 152); and finally, that he had not checked the hotel register and, indeed, had “no idea” whether Moore was in any way connected with Room 15 (Tr. 151, 224-225).
Officer Daley testified further that since most addicts are “street wise” they rarely carry more than 20 capsules at one time. On cross-examination, however, Daly admitted that some addicts he was “aware of” had habits of 50 to 100 capsules per day, and that it was'possible for such addicts to carry a full day’s supply. Moreover, the defense also elicited Officer Daly’s opinion that appellant was addicted to heroin — at least insofar as he was a repeated user of the drug. (Tr. 146-148, 166-169, 235-236.)
During the course of the Government’s presentation, the court heard the testimony of Dr. Kaufman out of the presence of the jury. 10 The doctor indicated that he had examined appellant on several occasions for periods ranging from ten minutes to two or three hours in duration. He had also examined Moore’s St. Elizabeths file, the police report in this case, and other materials relating to appellant’s background. (Tr. 194-195.) On the basis of this information, Dr. Kaufman concluded that appellant clearly was an addict within the meaning of the World Health Organization definition of addiction. 11 Indeed, Moore’s addiction was a classic illustration of the five basic components of the disease: (1) an overwhelming desire to use the drug; (2) chronic return to such use; (3) physiological dependence as evidenced by the withdrawal syndrome; (4) psychological dependence; and (5) the phenomenon of tolerance. (Tr. 199-201.)
Dr. Kaufman explained that appellant had been an addict for over 25 years. (Tr. 196.) No matter what reason Moore may have had originally to begin taking drugs, as “he progressed in his addiction ' his controls deteriorated * * * and he felt helpless in the face of his drug addiction.” (Tr. 197.) Gradually, the need to take drugs “begins to have an autonomous characteristic and * * * becomes a disease entity in itself * * (Tr. 202.) As an “old” addict, he is not so much “after *1214 the kick but the experience of taking drugs has become so much of the ingrained part of his life that he is completely bound up in getting, seeking out drugs, hustling to get them, and having no other reason for living. He is disgusted with himself and feels he is a failure * * (Tr. 197-198.) For appellant Moore, “there is only one solution to all problems, that is, a drug solution.” (Tr. 203.) As a result, Moore “is helpless to exert any voluntary control over this compulsion * * (Tr. 197.) He “would be forced to obtain drugs and since the drugs have to be someplace * * * he would have to be there, he would be compelled to be because of the nature of his illness.” (Tr. 203.)
At the conclusion of this testimony, the court ruled that Dr. Kaufman would not be permitted to testify before the jury, apparently on the ground that addiction can never constitute a defense. 12 (Tr. 206-214.) Later, after the Government had resumed its case and then rested, the court denied appellant’s motion for judgment of acquittal. (Tr. 253.) Appellant then renewed his motion to dismiss the indictment on the basis of Watson . This time, the court denied the motion simply because there was sufficient evidence of trafficking “to go to the jury,” and added that it had reconsidered its earlier ruling and would now permit Dr. Kaufman to testify. (Tr. 267-269.) When the trial resumed the following day, however, the court reverted to its earlier position, ruling once again that Dr. Kaufman’s testimony was inadmissible and that the defense of addiction was unavailable. (Tr. 287.)
Thus, with the case in this posture, the defense decided not to introduce any further evidence. Before resting, however, counsel for the defense, in order to complete the record, proffered the testimony of Mr. McKinley Gore of the District of Columbia Narcotics Treatment Administration. 13 The proffer, pursuant to the court’s invitation, was to the, effect that some addicts have habits in excess of 50 capsules per day and that such addicts may have more than 50 capsules in their possession at one time. Mr. Gore would also have testified that appellant Moore had been enrolled in the NTA methadone program since December 9, 1970, and that he had consistently been on methadone since that time. His chances for rehabilitation were good, and Moore was beginning to get at the root of his addiction problem. He had been increasing his methadone intake, and in the near future would no longer need heroin at all. (Tr. 289-291.)
Following this proffer, the court refused to instruct the jury that a non-trafficking addict could not be convicted under the statutes under which appellant was charged. (Tr. 287, 292-294.) Moore was then found guilty on all four counts of the indictment. Acting upon a motion made by appellant immediately after the verdict was announced, the court committed him to the Federal Correctional Institution at Danbury, Connecticut, for determination of his suitability for treatment under Title II of the Narcotics Addict Rehabilitation Act of 1966, 18 U.S.C. § 4251 et seg. (1970). On April 13, 1971, the NARA staff reported that appellant was an addict, both physically and psychologically dependent on heroin, but was not a suitable candidate for treatment. Thus on June 14, 1971, the court sentenced appellant to concurrent terms of two to six years for the violations of 26 U.S.C. § 4704 (a) and six years for the violations of 21 U.S.C. § 174 .
*1215 II. HISTORICAL PERSPECTIVE
The contemporary problem of drug abuse is both complex and far-reaching, touching upon our fundamental conceptions of public health, commerce and morality. Yet the origins of the problem are quite ancient, for since prehistoric times man has engaged his energies in a relentless search for new drugs to make life more .pleasurable and, at the same time, to alleviate the discomforts which inevitably accompany human existence. 14 Throughout this quest, the use of drugs has been associated with a diversity of medical, religious, literary, criminal and cultural patterns and has, in recent times, often reflected the technical and scientific advances in medicine and pharmacology. 15 Thus our current problem is but a reflection of all that has gone before, and it can be understood clearly only when placed in historical perspective.
Although the precise origin of the use of opium is forever lost to the past, we now know that the people of lower Mesopotamia, in the ancient kingdom of Sumeria, discovered the somniferous characteristics of the poppy plant (Papaver Somniferum) as early as 7000 B.C. 16 The Sumerians cultivated the plant in order to extract a juice which they called “gil” — meaning “joy” or “rejoicing” 17 — and which was used primarily for religious purposes. 18 The medicinal properties of “gil” — or “opium” as it later came to be known — were recognized in Persia and Egypt about 1550 B.C. and spread thereafter throughout the Greek and Roman world. 19 The writings of Homer and Virgil refer frequently to the “sleep-bringing poppy,” and other sources indicate that Hippocrates recommended the use of opium in the treatment of numerous diseases. 20
The first incidence of widespread opiate abuse occurred in India when Brahmin priests forbade consumption of alcohol and the citizenry, rather than fight the ban, switched to opium smoking as an alternative. 21 China received its initial exposure to opium from Arab traders in the tenth century A.D. 22 The therapeutic virtues of the drug were soon recognized by Chinese doctors, and it was used medicinally for centuries before the practice of recreational opium smoking made its appearance in the 16th century. 23 Due largely to the efforts of European commercial interests, 24 the *1216 level of opium smoking in China swelled rapidly to crisis proportions, and in 1729 the Emperor issued an edict forbidding all traffic in opium. 25 It is interesting to note that, although this edict decreed death by strangulation for all retailers of the drug, non-trafficking users were exempt from punishment. Throughout the 18th and 19th centuries China sought desperately to close its ports to the opium trade, but the British East India Company, which by then had obtained a virtual monopoly, refused to cooperate. This conflict led eventually to the Opium Wars of 1839-42 and 1856, when the trade was finally legalized. 26
Opium was used enthusiastically by the medical profession in the American colonies throughout the 18th century. 27 Then, in the first decade of the 19th century, the curiosity of William Sertiir-ner, a German chemist, brought about the separation and recognition of the first of the opiate alkaloids. 28 Sertür-ner aptly named the agent morphine, after Morpheus, the god of dreams. 29 Although the new drug was considerably more potent than crude opium, physicians were at first somewhat reluctant to adopt its use. 30 During the 1820’s, however, a rapidly increasing number of persons turned to morphine for its non-medical characteristics. 31
At the same time, the publication of Thomas DeQuincy’s Confessions of an English Opium Eater in 1821 had a far-reaching effect in stimulating its readers — primarily respectable persons of the American upper class — to experiment with opiates. Most of DeQuiney’s disciples consumed the drug orally, generally in liquid form known as “Laudanum” (tincture of opium), or sometimes as gum or powder. 32 Although opiate indulgence gradually became more common during this era, it did not yet present a problem of serious proportions.
The turning point, however, came with the invention of the hypodermic syringe in the 1840’s. • This discovery, which facilitated intravenous administration of drugs so as to achieve a heightened effect, gave added impetus to both medical and non-medical uses of morphine. 33 As a result, the Civil War, with its wholesale carnage and poor medical facilities on the field of battle, caused the first large-scale morphine addiction problem in the United States. The Army’s reliance on morphine as a pain-killer became so widespread that morphine addiction during this period came to be known as the “Soldier’s Disease.” 34 Indeed, one of the more unfortunate consequences of the war was *1217 the creation of a large class of ex-soldier addicts, and estimates of addiction in the postwar years ran as high as four per cent of the population. 35
As the effects of this morphine epidemic gradually began to subside, a new element was injected into the American drug scene by the large numbers of Chinese immigrants who entered this country to work on the great canal and railroad projects of the mid-19th century. 36 The practice of opium smoking, which previously had been unknown to Americans, soon became somewhat of a vogue among the demimonde of San Francisco and spread rapidly thereafter throughout the nation. 37 Initially, this practice was limited primarily to the upper strata of society and, unlike the opium eaters and morphine addicts who generally were viewed as victims of an unfortunate vice, opium smokers typically were considered rather “sporting characters.” 38 Gradually, however, the practice filtered down to the underworld, and the considerable notoriety which attached to this development caused the first stirrings of what was eventually to become a pivotal shift in public attitudes toward addiction. For the first time, a link was perceived between drug abuse and criminality. 39
The next major development began in 1898 when Dresser, a German scientist, devised a method to modify morphine into a new alkaloid derivative of opium —diacetylmorphine, commonly referred to as heroin. 40 Initially, the basic characteristics of this new drug were completely misunderstood. Since heroin appeared to relieve the symptoms of morphine withdrawal, it was hailed as a cure for morphine addiction, and heroin was rapidly substituted for morphine in cough medicines and tonics. Many writers extolled the pain-killing qualities of the drug while assuring readers that it was free of addiction liability. 41 The naive myth that heroin could cure morphine addiction exploded soon after 1900, when it was finally realized that heroin itself possessed an even greater addiction potential than morphine. 42 But despite the urgent, if somewhat belated, warnings of the medical profession, heroin had gained a foothold and was here to stay.
Perhaps the most unfortunate chapter in the early history of American drug abuse involved the vicious practices of the patent medicine business of the late 19th and early 20th centuries. These general curatives, which often contained a potent concentration of some narcotic, were sold without restraint over the counters of pharmacies and were used indiscriminately to treat everything from simple headache to angina pectoris 43 Through such wonder-work *1218 ing medicants as Mrs. Winslow’s Soothing Syrup, Dr. Cole’s Catarrh Cure and Perkins’ Diarrhea Mixture, opium, morphine, codeine and cocaine were spooned regularly into children as well as adults. And although these potions usually relieved the symptoms for which they were taken, they also caused physical dependence in the user. 44 As the public grew concerned over their “drug habits,” the patent medicine manufacturers readily responded with more nostrums offered as cures for addiction. Yet most of these “cures” were in reality preparations containing a different opiate, so that the user merely substituted one drug for another, with the result that his addiction frequently was intensified. 45
With the confluence of these separate, yet clearly related, facets of the narcotics problem, the incidence of addiction reached crisis proportions by the early years of the 20th century. 46 Estimates as to the number of addicts ranged as high as two million, 47 although more reliable authorities placed the figure at somewhere between 100,000 and 200,000. 48 It is important to note, however, that the problem as it then existed was quite different from that facing our nation today. 49 With only limited exceptions, 50 these drugs were cheap, legal, and readily available to anyone desirous of their use, 51 and the “pusher” of pre-World War I society more often than not was the local pharmacist, grocer or confectioner. 52
Moreover, addiction was not confined to any particular social class; it affected most segments of society to some extent, although the disease was most *1219 prominent among middle-aged southern whites and members of the upper class. 53 The drug addict of that era generally had little or no involvement with criminal activity, and frequently was able to lead his life in a normal fashion. 54 Those addicts who wished to avail themselves of medical care could apply to any member of the medical profession for treatment, including gradual withdrawal or even a “permanent comfort” regime. 55 Although the habit certainly was not approved, neither was it regarded as criminal. Typically, addiction was viewed as an illness or personal misfortune — much as alcoholism is today. 56
As the ranks of the addicted continued to swell, however, the public gradually grew alarmed and the need for effective federal regulations to eliminate the indiscriminate sale and distribution of these drugs became apparent. Against this backdrop, the United States participated in the Hague Opium Convention of 1912 for the purpose of establishing international controls on production, sale and use of opium and coca products. 57 To fulfill our obligations under this agreement, the Harrison Narcotics Act was adopted in 1914. 58 Although formulated as a revenue measure, 59 the Act was intended to bring domestic traffic in narcotics into the open under a federally sponsored licensing system so that the sloppy dispensing practices of the day could be checked. Thus, with certain exceptions, it was made unlawful for any person to produce, import, manufacture, compound, deal in, dispense, sell, distribute or give away any derivative of opium or cocaine unless he had registered, paid the required taxes, and maintained careful records of his transactions. Although possession was not itself made criminal, it was to be treated as prima facie evidence of the proscribed acts. In neither the language of the statute nor its legislative history is there any indication that Congress intended specifically. to punish addicts who possessed the drug solely for personal use. 60 Indeed, such an intent would have been quite surprising given the general regulatory nature of the Act and the prevailing mores of the time. Thus when the Supreme Court first had occasion to interpret the “possession” provisions in Unit *1220 ed States v. Jin Fuey Moy, 241 U.S. 394 , 36 S.Ct. 658 , 60 L.Ed. 1061 (1916), it held that mere possession of a small amount of narcotics for personal use did not trigger the statutory presumption of illegality.
In the years immediately following passage of the Act, however, the main concern was not whether addicts could be punished for possession but, rather, whether the statute in any way affected the right of physicians to prescribe and administer narcotic drugs in order to treat their addict patients. As previously noted, 61 prior to 1914 addiction was viewed primarily as a medical problem, and addicts could and often did receive help from members of that profession. 62 Based on the legislative history of the statute, there was no reason to suspect that Congress intended to alter this situation. 63 Indeed, the Act specifically provided that “[n]othing contained in this section shall apply: (a) to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician * * * in the course of his professional practice only.” 64 Other portions of the statute qualified this exemption, however, by requiring that the treatment be in the “legitimate practice of his profession” 65 and in “good faith.” 66
Although the Act did not define these terms with precision, most doctors reasonably believed they could continue to prescribe these drugs to addicts in order to effect gradual withdrawal or simply to sustain them in their condition. 67 Thus as the thousands of addicts who previously had obtained their supplies from local grocers and pharmacists suddenly found these sources extinguished, they turned in desperation to the medical profession for help. The profession responded willingly, and by 1919 most addicts were under the direct care and supervision of physicians. 68 At the same time, free morphine clinics were opened in more than 40 cities in an effort to treat and control the disease. 69 And although some of these clinics apparently were subject to abuse, the medical profession generally had taken the first meaningful steps toward controlling the problem of addiction. 70
Unfortunately, however, this situation was short-lived. Due largely to the efforts of the Federal Bureau of Narcotics, within a decade after passage of the Act the medical profession had been driven permanently from the treatment of addicts. This result was achieved primarily through a series of court decisions interpreting the terms “legitimate practice” and “good faith” as used in *1221 the Act. In the first of these cases, Webb v. United States, 249 U.S. 96 , 39 S.Ct. 217 , 63 L.Ed. 497 (1919), the Supreme Court held that the medical exemption was unavailable to a doctor who had sold drugs and prescriptions indiscriminately to addicts with no view toward treatment. A similar result was reached in Jin Fuey Moy v. United States, 254 U.S. 189 , 41 S.Ct. 98 , 65 L. Ed. 214 (1920), in which the Court upheld the conviction of a doctor who had issued prescriptions for morphine “to persons not his patients and not previously known to him * * * for the mere purposes * * * of enabling such persons to continue the use of the drug, or to sell it to others * * Id. at 193 , 41 S.Ct. at 100 . Neither of these decisions was particularly surprising, however, since it was clear in both that the defendants had acted neither in “good faith” nor in the “legitimate practice of [their] profession.”
The clincher, however, came some two years later in United States v. Behrman, 258 U.S. 280 , 42 S.Ct. 303 , 66 L.Ed. 619 (1922). Dr. Behrman, like Webb and Jin Fuey Moy before him, had flagrantly abused his rights as a physician by indiscriminate prescription of large quantities of morphine. But in Dr. Behrman’s case, the indictment was drawn so as to exclude the statutory elements of “good faith” and “legitimate practice.” Over a prophetic dissent by Mr. Justice Holmes, joined by Mr. Justices Brandeis and MeReynolds, the Court affirmed the conviction, apparently construing the statute as proscribing per se administration of drugs to an addict, regardless of the doctor’s purpose or intent.
The inevitable followed. Armed with the broad language of Behrman , agents of the Bureau of Narcotics launched what has aptly been termed a “reign of terror” against the medical profession’s treatment of addiction. 71 Even those doctors who prescribed these drugs in good faith as part of their therapeutic treatment of the disease were subjected to prosecution, and the clinics which had opened so hopefully only a few years before were abruptly shut down. 72 Within the short span of three years the medical profession was “bullied into submission” and was forced to extricate itself almost entirely from the treatment of addicts. 73
One of the doctors prosecuted during this era, however, Dr. Charles O. Linder, refused to be bullied. Unlike the defendants in the„ prior Supreme Court cases, Dr. Linder had dispensed only four tablets of drugs to a single addict. The addict, an informer, had come to his office in a state of partial withdrawal, and he provided her with the tablets to be used at her discretion. Since the drugs were prescribed solely to relieve withdrawal distress and to maintain the addict’s customary usage, without any thought of rehabilitation, Linder was convicted on the authority of Behrman even though he had acted in good faith and according to legitimate professional standards.
When the ease reached the Supreme Court in 1925, however, the conviction was emphatically reversed. In a unanimous opinion, the basis for the Court’s decision was made resoundingly clear:
“ * * * [The Act] says nothing of ‘addicts’ and does not undertake to prescribe methods for their medical *1222 treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he had dispensed to one of them, in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. * * * ”
Linder v. United States, 268 U.S. 5, 18 , 45 S.Ct. 446, 449 , 69 L.Ed. 819 (1925). The holdings of Webb and Jin Fuey Moy were limited specifically to those situations in which the defendant acted in bad faith, 74 and Behrman was explained as
“relat[ing] to definitely alleged facts * * *. The enormous quantity of drugs ordered, considered in connection with the recipient’s character, without explanation, seemed enough to show prohibited sales and to exclude the idea of bona fide professional action in the ordinary course. The opinion cannot be accepted as authority for holding that a physician, who acts bona fide and according to fair medical standards, may never give an addict moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction. Enforcement of the tax demands no such drastic rule, and if the act had such scope it would certainly encounter grave constitutional difficulties.” 75
Following Linder , one might reasonably have expected a sudden and enthusiastic resurgence of medical interest in addiction. Unfortunately, such was not the case. Soon after Behrman a large-scale propaganda campaign was initiated, from which we derive many of our present misconceptions of the addict and his affliction. Although addicts had traditionally been viewed as victims of an unfortunate illness, this campaign sought, quite successfully, to attach the stigma of criminality to addiction. The addict was portrayed as a moral degenerate, and the myth of the “dope-crazed sex fiend” was perpetrated. 76 Grossly inflated estimates of the number of addicts were circulated, 77 and as the public’s alarm over the “dope menace” swept the nation, medical approaches to the problem of addiction fell gradually into disfavor.
Moreover, although Under had established beyond question the right of physicians to administer narcotics to their addict patients, the concepts of “good faith” and “legitimate practice” are by necessity subject to varying interpretations, and given their pre-Linder experiences with the Bureau of Narcotics, most doctors feared to tread so slippery a path. Indeed, the Bureau itself contributed heavily to this uncertainty, for not only was its response to Linder wholly negative, but its regulations were directly contrary to that decision. For example, one of its long-standing regulations declares:
“An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of [the Act], and the person filling such a [sic] order, *1223 as well as the person issuing it, shall be subject to [prosecution].” 78
In 1963, the President’s Advisory-Commission on Narcotic and Drug Abuse criticized this regulation as not “in accord” with Linder , and concluded that, as a result, “[t]he practicing physician has * * * been confused as to when he may prescribe narcotic drugs for an addict. Out of a fear of prosecution many physicians refuse to use narcotics in the treatment of addicts. * * * In most instances they shun addicts as patients.” 79 Similarly, the House Committee on Interstate and Foreign Commerce, in its report on the “Comprehensive Drug Abuse Prevention and Control Act of 1970,” declared that because of this regulation “[t]here are relatively few practicing physicians in the United States today who treat narcotic addicts because of uncertainty as to the extent to which they may prescribe narcotic drugs for addict patients.” 80 To remedy this situation, the Act specifically directs the Secretary of Health, Education and Welfare to determine “the appropriate methods of professional practice in the medical treatment of * * * addiction * * *.” 81 And although the Committee expressed concern about “having Federal officials determine the appropriate method of the practice of medicine,” it noted that “for the last 50 years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing drugs have not conformed to the opinions of Federal prosecutors * * 82 Thus, due largely to the misguided efforts of federal officials, the medical profession for more than half a century now has been forced to abdicate its role in the treatment of addiction. 83 And by depriving addicts of treatment on the one hand, while criminalizing their illness on the other, this nation adopted a policy toward addiction unique in all the world. 84 Equally dsturbing, moreover, is the manner in which this policy was formulated. As one scholar has capsuled the situation:
“The present program of handling the drug problem in the United States is, from the legal viewpoint, a remarkable one in that it was not established by legislative enactment or by court interpretation of such enactments. Public opinion and medical opinion had next to nothing to do with it. It is a program which, to all intents and purposes, was established by the decisions of administrative officials of the Treasury Department of the United States. After the crucial decisions had been made, public and medical support was sought and in large mea *1224 sure obtained for what was already an accomplished fact.” 85
Over the years the consequences of this policy have been disastrous for both the individual addict and society as a whole. With the closing of the narcotics clinics and the sudden elimination of medical assistance in the mid-1920’s, thousands of addicts were left stranded without any legitimate source from which to obtain their supplies. 86 “Treatment” was ceded to the underworld, which eagerly accepted the invitation. 87 Within a few years, a multimillion dollar industry had developed, and the price of drugs skyrocketed. 88 For the first time, addicts were compelled to turn to crime as a means of obtaining funds to support their addiction. 89 Gradually, a vast criminal infrastructure was developed to distribute illicit narcotics primarily to the lower socio-economic classes in our cities, and drug addiction became almost exclusively a problem of the urban poor. 90
During the 1920’s and 1930's the incidence of addiction remained relatively stable, with a few periodic bursts breaking an otherwise gradual decline. 91 With the advent of World War II, however, the rate of addiction nosedived as young men were recruited into the armed services, international smuggling was disrupted, and illicit supplies became scarce. Most officials believed that the narcotics problem had dwindled to an almost irreducible minimum. 92
Then came the postwar explosion in drug abuse, with its greatly increased involvement of young persons. 93 In an effort to check this trend, the penalties for violations of the narcotics laws were increased dramatically, and mandatory minimum sentences were introduced— two years for the first offense, five for the second, and ten for the third and subsequent offenses. In addition, suspension of sentence and probation were prohibited for all but first offenders. 94 The American Bar Association immedi *1225 ately criticized these amendments and vigorously suggested that they be reexamined. 95 In 1956 Congress did indeed reexamine its earlier decision and, convinced that harsh penalties would prove effective, 96 increased them still further. 97 As we shall see, this belief eventually proved incorrect.
During the late 1950’s a dissident movement began to gather strength and to raise fundamental questions concerning our attitudes toward the addict and his disease. Medical and psychiatric research continued to shed new light on what had previously been thought to be closed questions and, as was inevitable, the basic assumption that addiction is an evil from which the addict can extricate himself at will seemed suddenly to collapse in the face of enlarged experience and increased knowledge. As a result, in the period since 1960 we have seen a fundamental reorientation of our policies toward addiction. 98 The first important step in this direction was taken by the Supreme Court in the landmark case of Robinson v. California, supra, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed. 2d 758 , in which the Court, resurrecting Linder after 35 years, recognized once again that addiction is an illness and must be treated as such. Specifically, the Court held that a California statute making the “status” of addiction a criminal offense inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
The effects of this dramatic reorientation were not limited solely to the judiciary. Faced with the growing awareness “that for too long the law had stressed punitive solutions and neglected medical and rehabilitative measures,” 99 Congress enacted the Narcotic Addict Rehabilitation Act in 1966. Stated generally, the Act established a broad-based program of civil commitment for treatment of both “criminal” and “non-criminal” addicts. 100 Moreover, in the ensuing years an impressive series of statutes was adopted authorizing federal grants to public and nonprofit private agencies for the purpose of developing effective methods for institutional and community-based treatment of addiction. 101
Then, in order “to collect the diverse drug control and enforcement laws under one piece of legislation,” 102 Congress enacted the “Comprehensive Drug Abuse Prevention and Control Act of 1970.” 103 This Act displaced virtually all pre-existing federal narcotics legislation — including the Harrison and Jones-Miller Acts. In addition, Congress repudiated the premises underlying the harsh penalty provisions adopted in the *1226 1950’s. Indeed, after nearly two decades of experience with those provisions, it had become abundantly clear that “the severity of penalties * * * does not affect the extent of drug abuse * * 104 As a result, a more just and humane sentencing structure was devised to replace the rigid policies of the past.
Thus a beginning has been made but, unfortunately, we still have a long way to go. Although it is virtually impossible to estimate with any reasonable degree of certitude the precise number of addicts in our society today, 105 it is clear that, due in part to the Vietnam war, 106 the rate of addiction has continued to rise. 107 Indeed, most reliable authorities place the number at somewhere between 200,000 and 300,000 nationally, 108 and at about 16,000 for the District of Columbia. 109 Moreover, the average age of addicts has declined steadily over the past decade, and a recent study of addicts in New York State reveals that almost one third are under the age of 21. 110 In the District, it is estimated that some 60 per cent of all addicts are less than 25 years of age, and that one of every six men between the ages of 20 and 24 is an addict. 111 Approximately 50 per cent of all addicts are black, 112 and more than 80 per cent are male. 113
*1227 The class of persons who become addicts is not homogenous, however, and for the sake of analysis it may be divided into three identifiable subgroups. The first such group consists of those individuals who became addicted during the course of medical treatment for some other illness. As previously noted, this was the primary cause of addiction at the time of the Civil War. 114 We have learned a great deal since that time, however, and although opiates are still used widely as painkillers, the incidence of medical addiction today is relatively low. Moreover, when such addiction does occur, it frequently is not “complete” — that is, the dependence may be physical only, without the more complex psychological components. 115
The second category is comprised of those addicts who are employed in the medical and paramedical professions. The rate of addiction among these professions appears to be almost 30 times greater than that of the general population, 116 but since these individuals have ready access to drugs such as morphine and demerol, they frequently escape the need to pay the exorbitant prices for their supplies that lead other addicts to crime. As a result, many of these persons live relatively normal lives, and few are ever subjected to the indignities of a criminal prosecution. 117
The third, and by far the largest, category consists of the “street addicts.” Although street addiction no longer is confined solely to the ghetto, and has spread in recent years to suburban and even rural communities, 118 it remains primarily the plague of the inner cities where unequal education, unemployment, poor housing and high delinquency predominate 119 Indeed, within the Model Cities area of the District of Columbia, it is estimated that more than a third of all men between the ages of 20 and 24, and almost a quarter of those between 15 and 19, are addicted to heroin. 120
It is these hard core addicts who engage in the extensive criminal activity which has so alarmed the public. Unfortunately, however, the public’s understanding of this problem is, in many respects, rife with confusion, uncertainty and misconception. For example, according to popular mythology the addict is perceived as a criminal aggressor driven to rape and violence by the evil *1228 effects of the drug itself. 121 Yet nothing could be farther from the truth, for in reality heroin produces a tranquil, lethargic state in the user, inhibiting aggressive and sexual activities. 122 As a result, “[c] rimes of violence are rarely, and sexual crimes almost never, committed by addicts.” 123
And although the public’s concern over nonviolent addict criminality is by no means unfounded, important questions of causation remain unanswered. Many addicts, of course, engaged in criminal activity even prior to their addiction, and to some extent both post-addiction criminality and addiction itself may be viewed as independent manifestations of some other underlying antisocial tendencies. 124 But the social behavior of the addict depends also upon the legal and social context in which it occurs, and with the realization that criminal behavior is neither a necessary nor even a logical consequence of the disease, we must face the undeniable fact that our criminalization of addiction has, in part, become a self-fulfilling prophecy. 125 Having been cut off from all legal sources of supply, many addicts resort to the black market, where prices are astronomical. Indeed, the cost to some addicts may exceed $150 per day, and the average addict requires almost $13,000 per year simply to purchase heroin sufficient to satisfy his addiction. 126 Needless to say, few street addicts can afford such prices without supplementing their income through criminal activity, 127 and the cost of such crime to *1229 society is staggering — amounting to literally billions of dollars each year. 128
As noted at the outset of this section, our existing narcotics problem is largely a reflection of all that has gone before. Yet there is little in the past of which we can be proud, for our policies have branded these unfortunate individuals as the outcasts of society and forced them unnecessarily to lives of crime and degradation. In recent years, however, we have finally begun to recognize the injustice of these policies, and both Congress and the courts have moved dramatically to correct the situation. Substituting treatment for criminal stigmatization, as I suggest, will not eliminate all or even most of the remaining problems, but it does represent one step further toward what hopefully will become an age of enlightenment in our attitudes toward the addict and his disease.
III. THE NATURE OF ADDICTION
The problem of heroin addiction 129 is, for most persons, possibly the most widely discussed yet least understood issue of our time. Indeed, popular notions of addiction are often shrouded in mystery and laden with half-truths, misconceptions and, all too often, total ignorance. But addiction is no longer the mystery it once was, for we have learned a great deal in recent years concerning the nature and characteristics of the disease. And although many aspects of the problem remain obscure, 130 we now possess a sufficient body of information to appreciate the medical — and legal — significance of addiction.
The most widely accepted and authoritative definition of heroin addiction is that promulgated by the World Health Organization, which lists the characteristics of the disease as follows;
(1) an overpowering desire or need to continue taking the drug and to obtain it by any means; the need can be satisfied by the drug taken initially or by another with morphine-like properties ;
(2) a tendency to increase the dose owing to the development of tolerance;
(3) a psychic dependence on the effects of the drug related to a subjective and individual appreciation of those effects; and
(4) a physical dependence on the effects of the drug requiring its presence for maintenance of homeostasis *1230 and resulting in a definite, characteristic, and self-limited abstinence syndrome when the drug is withdrawn. 131
Development of such an addiction is, of course, a gradual process, and it is the purpose of this section to explore briefly the nature of this process and the effects of the disease upon the addict.
The psychological and sociological implications of the initial decision to experiment with addicting drugs are highly complex, involving such factors as the social climate, attitudes, values, stresses and gratifications current in the relevant subculture, the individual predilections of the potential user, and, of course, the availability of the drugs themselves. But once the basic inhibitions have been overcome, the typical motivations for drug use are, as for most vices, quite simple — in most cases the experimentation is due simply to curiosity, depression or group pressure. 132
The effects of this initial exposure 133 may vary greatly depending upon the quality of the drug, the size of the dose, the manner of administration, 134 the setting, the mood, personality and expectations of the user, and many other variables ranging from the biochemical to the cultural. 135 Indeed, while some individuals may enjoy the experience, others suffer dysphoria, headache, dizziness and depression, and still others perceive no effects whatever. 136 As the user becomes accustomed to the drug, however, he generally learns to appreciate its effects, and the initial experimentation is typically followed by what has been termed the “honeymoon period.” During this stage, the drug serves primarily a recreational function, and may be used at parties, on weekends, or when the user feels particularly depressed. 137
Contrary to popular belief, not all persons who enter this stage will eventually become addicts. Indeed, most experts now agree that even repeated use of heroin will not necessarily or even usually result in addiction unless the user’s personality is particularly susceptible to the psychological effects of the drug. 138 *1231 Unlike the hallucinogens, heroin does not produce a positive euphoric “high” of intensified sensory input. Rather, the drug has a calming, depressant effect which dulls the general sensibilities and allays feelings of pain, insecurity or discomfort. 139 The heroin “high” is essentially escape-oriented, and a direct correlation exists between the pleasure one derives from the drug and the user’s psychic need to avoid reality. Thus, although the psychologically stable individual may enjoy his experience with heroin, his satisfaction generally is not so great as to draw him irresistibly to excessive use. As a result, many such persons are able to administer heroin on an occasional basis without ever becoming addicted. 140
The situation is quite different, however, for those users whose psychological makeup renders them particularly prone to addiction. 141 Although the precise nature of the disorders causing addiction proneness may vary, 142 its symptoms are readily identifiable, including such characteristics as an oversensitivity to rejection, an inability to enter into close associations with others, difficulty in sexual role identification, an inability to cope with reality, and a tendency to be overcome by a sense of inadequacy, futility and despair 143 For the individual exhibiting all or some of these symptoms, the use of heroin may be seen as an attempt at personal adjustment. The drug fulfills a specific function in his psychological economy, and when experiencing its effect he finds that the previously intolerable frustrations and anxieties of his daily existence mysteriously evaporate 144 Feelings of pain, hunger, *1232 inadequacy and fear are extinguished, and he experiences a sense of aloofness and self-sufficiency which he is unable to attain in the real world. Indeed, he “has discovered something he may well have been searching for all his life.” 145
Thus during the “honeymoon period” of occasional use the addiction prone individual finds the psychic effects of the drug virtually irresistible and, spurred on by a false sense of security generated by the drug itself, he begins gradually to increase the frequency of his doses. 146 Due to the development of tolerance, however, he soon discovers that the same dose fails to produce the original euphoric effect, and he must continually increase the size of his dosage in order to achieve the desired “high.” 147 Then, after a period of excessive use, physical dependence develops. 148 The user is “hooked” — he now needs the drug not only to alleviate his underlying psychological instability, but also to avoid the misery of withdrawal.
In the withdrawal syndrome, which usually begins to manifest itself within eight to ten hours of abstinence, the addict shows an almost schematic pattern of behavior which will vary in severity depending upon the individual and the length, strength and nature of his addiction. The following account, 149 based upon observation and experimentation with addicts under medical supervision, describes in detail the process of opiate withdrawal:
“As the time approaches for what would have been the addict’s next administration of the drug, * * * he begins to move about in a rather aimless way, failing to remain in one position long. * * * With this restlessness, yawning soon appears, which becomes more and more violent. * * * He may then lie on the floor close to the radiator, trying to keep warm. Even here he is not contented, and he either resumes his pacing about, or again throws himself onto the bed wrapping himself under heavy blankets. At the same time he complains bitterly of suffering with cold and then hot flashes, but mostly chills. He breathes like a person who is cold, in short, jerky, powerful respirations. His skin shows the characteristic pi-lomotor activity well known * * * *1233 as 'cold turkey.’ * * * Coincident with this feeling of chilliness, he complains of being unable to breathe through his nose. Nasal secretion is excessive.
“Often at the end of this period the addict may become extremely drowsy and unable to keep his eyes open. If he falls asleep, which is often the case,'he falls into a deep slumber well known as the ‘yen’ sleep. * * * The sleep may last for as long as eight or twelve hours. On awakening he is more restless than ever. Lacri-mination, yawning, sneezing, and chilliness are extreme. A feeling of suffocation at the back of the throat is frequently mentioned. Usually at this stage, the addict complains of cramps, locating them most frequently in the abdomen * * *. Vomiting and diarrhea appear. He may vomit large quantities of bile-stained fluid. Perspiration is excessive. * * * Muscular twitchings are commonly present; they may occur anywhere, but are most violent in the lower extremities. * * * He refuses all food and water, and frequently sleep is unknown from this point. It is at this stage that he may one minute beg for a ‘shot’ and the next minute threaten physical violence. * * * He will beat his head against the wall, or throw himself violently on the floor. * * * Seminal emission in the male and orgasm in the female frequently occur.”
The acute symptoms of withdrawal generally reach a peak between 48 and 72 hours after the last dose and subside gradually during the following week. 150 Distress may continue for weeks, however, and it may be months before physiological stability is achieved. 151 But as terrifying as the withdrawal experience may seem, it does not end the addiction, for the underlying psychological dependence of the addict remains uncured. 152 As a result, “[a]ddiction to heroin and to other opiates, once established, has the characteristics of a chronic relapsing disease.” 153
This psychological dependence, which derives initially from the basic personality disorders of the addict, develops through a process of conditioning. Each time the drug is injected, tension, pain and anxiety are reduced, and the memory of this experience beckons as a panacea for all the frustrations of daily living. Gradually, a complex set of conditioned responses is acquired, which tends to perpetuate continued use. When physical dependence emerges, the need to use the drug to avoid withdrawal further reinforces the addict’s psychic reliance, and evenually he requires heroin to relieve all forms of tension, no matter how slight. 154 Indeed, the addict’s psychological dependence on the drug is generally considered to be the most powerful aspect of the disease. 155
*1234 Thus with the confluence of these three factors — physical dependence, psychological dependence and tolerance — the addict is caught in the spiralling web of his addiction. Unable to face reality without the drug on the one hand, and requiring it to avoid the horrors of withdrawal on the other, he turns repeatedly to the drug to obtain relief. Yet with each additional dose, the withdrawal becomes more intense, the psychological dependence greater, the tolerance increased, and the ability to escape voluntarily less likely. Eventually, he loses all control, and “[s]truggle as he may, the curious and inexorable process overwhelms him. No outer moral compulsion can stay it; no authoritarian decree can cut it short. Punishment is meaningless, imprisonment futile, in halting the relentless course of the disease.” 156
The popular notion that an addict’s inner life is serene and untroubled and that he lives in a carefree world of heroin-induced ecstasy is completely false. The confirmed addict is in fact a worried, troubled, harried individual. Misery, alienation and despair, rather than pleasure and ecstasy, are the key features of his existence. Since he cannot obtain his supply of drugs legally, his entire life becomes bound up in a ceaseless quest for heroin. He loses all desire for socially productive work, 157 food, sex, companionship, family ties and recreation, 158 and because of his poverty and his inability to obtain pure drugs, his life is scarred by constant pain, disease and, all too often, premature death. 159 Yet the misery of the addict *1235 is not his alone, for as members of a common society we all share in the responsibility for the conditions which have helped to make him what he is. Indeed, no matter how low he sinks, he cannot lose his right to justice; and the lower he sinks, the greater is his claim to our concern.
IY. CRIMINAL RESPONSIBILITY AND ADDICTION
Recognizing the implications of the historical and medical considerations discussed above, appellant Moore contends that the federal narcotics statutes cannot- be- construed as exposing non-trafficking addict possessors to criminal punishment. Indeed, prosecution and conviction of such persons, appellant argues, would raise serious questions of constitutionality, is contrary to established common law notions of criminal responsibility, and is not mandated by Congress’ intent in adopting the relevant legislation. For reasons given below, I find these arguments compelling.
A
The Eighth Amendment’s prohibition against cruel and unusual punishment may be traced as far back as the Magna Carta, and the principle it represents has been incorporated into every significant declaration of rights in modern history. 160 Despite its ancient lineage, however, the precise limits of the clause have never been determined. See, e. g., Wilkerson v. Utah, 99 U.S. (9 Otto) 130, 135-136, 25 L.Ed. 345 (1878); In re Kemmler, 136 U.S. 436, 447 , 10 S.Ct. 930 ,- 34 L.Ed. 519 (1890); Weems v. United States, 217 U.S. 349, 368 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910); Trop v. Dulles, 356 U.S. 86, 100 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958). But this judicial silence is the result, not of oversight, but of foresight, for the Supreme Court has long recognized that “[t]ime works changes, brings into existence new conditions and purposes * * * [and] a principle to be vital must [therefore] be capable of wider application than the mischief which gave it birth.” Weems v. United States, supra, 217 U.S. at 373 , 30 S.Ct. at 551 . Indeed, “[t]he basic concept underlying the Eighth Amendment,” wrote Chief Justice Warren, “is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. * * * The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing *1236 society.” Trop v. Dulles, supra, 356 U. S. at 100-101 , 78 S.Ct. at 597-598 . 161
These “evolving standards of decency,” the Eighth Amendment, and the problem of narcotic addiction met head on in Robinson v. California, supra, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 , in which the Court held that a California statute which made it a criminal offense to “be addicted to the use of narcotics” inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 162 Unfortunately, however, the precise basis of the decision was somewhat unclear. At one level of interpretation, the Court was clearly concerned over the fact that Robinson had been convicted simply for “being an addict,” “even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there.” 163 If primary significance is attached to this aspect of the opinion, Robinson might be viewed quite narrowly as prohibiting only prosecution of those “criminals” who have committed no actus reus within the jurisdiction.
The Court’s extensive discussion of the disease concept of addiction, however, suggests a far broader rationale: “It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. * * * [I]n the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. * * *
“We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. 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.” 164
*1237 In light of this language, then, the opinion might also be interpreted as holding that narcotics addiction, like mental illness, leprosy and venereal disease, is an illness and as such cannot constitutionally be punished as a crime. 165 The implications of this interpretation are far-reaching, for if punishment for having a common cold (to use the Court’s example) is constitutionally prohibited, it would make little sense to permit a legislature to punish one who has a cold for sneezing or taking medicine. Similarly, this interpretation would seem logically to prohibit not only the criminalization of the status of “being addicted,” but also punishment of an addict for those acts, such as possession or use of narcotics, which are symptomatic of the disease and therefore beyond his power to avoid. 166 Cf. Driver v. Hinnant, 4 Cir., 356 F.2d 761 (1966); Morales v. United States, 9 Cir., 344 F.2d 846 (1965).
Thus two separate yet related “standards of decency” were reflected in the Court’s analysis — one involving the disease concept of addiction and the other, somewhat more subdued, concerning the absence of any actus reus. Needless to say, this ambiguity caused considerable confusion and disagreement among the lower courts upon whom fell the difficult task of interpreting the decision. 167
Indeed, the need for Supreme Court clarification soon became apparent, and in Powell v. Texas, 293 U.S. 514 , 88 S.Ct. 2145 , 20 L.Ed.2d 1254 (1968), the Court offered its guidance.
In late December 1966 Leroy Powell was arrested and charged with violation of a Texas statute declaring it unlawful to “get drunk or be found in a state of intoxication in any public place.” 168 At the trial evidence was introduced that Powell was afflicted with the disease of chronic alcoholism, that his appearance in public while drunk was not of his own volition, and that he had been convicted of public intoxication approximately 100 times since 1949. The trial judge, sitting without a jury, entered the following findings of fact:
“(1) That chronic alcoholism is a disease which destroys the afflicted person’s will power to resist the constant, excessive consumption of alcohol.
“(2) That a chronic alcoholic does not appear in public by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism.
*1238 “(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted with the disease of chronic alcoholism.” 169
Despite these findings, the judge ruled that chronic alcoholism was not a defense to the charge, and Powell was therefore convicted. On appeal, the Supreme Court affirmed the conviction. There was, however, no majority opinion. Mr. Justice Marshall, writing for four members of the Court, adopted a restrictive interpretation of Robinson . In his view, “[t]he entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused * * * has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ or ‘occasioned by a compulsion.’ ” 170 Thus, since Powell had been convicted for commission of certain proscribed acts (i. e., getting drunk in public), rather than for the mere “status” of being a chronic alcoholic, his conviction did not fall within the principle espoused. Finally, noting the disagreement among members of the medical profession as to the precise nature of the disease, Justice Marshall concluded that “[i]t 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.” 171
Mr. Justice Fortas, on the other hand, also speaking for four members of the Court, eschewed this narrow interpretation of Robinson and construed it as holding that “criminal penalties may not be inflicted upon a person for being in a position he is powerless to change.” 172 As a corollary to this proposition, Justice Fortas declared that “a person may not [constitutionally] be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease.” 173 Admitting that “many aspects of the disease remain obscure,” he noted that “[w]e are similarly woefully deficient in our medical, diagnostic, and therapeutic knowledge of mental disease and the problem of insanity; but few would urge that, because of this, we should totally reject the legal significance of what we do know about these phenomena.” 174 Thus, accepting the trial judge’s findings that Powell was powerless to avoid drinking and that, once intoxicated, he could not prevent himself from appearing in public places, Justice Fortas concluded that infliction of a criminal penalty upon the defendant for being publicly intoxicated would be cruel and unusual punishment within the prohibition of the Eighth Amendment.
The deciding opinion, then, was that of Mr. Justice White. Although concurring in the result reached by Justice Marshall, Justice White’s analysis of the *1239 criminal responsibility issue was more in line with that of Justice Fortas:
“If it cannot be a crime to have an irresistible compulsion to use narcotics, 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), I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic should not be punished for drinking or for being drunk.” 175
Justice White voted to affirm the conviction, however, on the narrow ground that this particular alcoholic had failed to prove that he was compelled by his disease to be drunk in public. 176
Thus, as this court noted in Watson , because of the absence of a majority opinion, “Powell has left this matter of criminal responsibility, as affected by the Eighth Amendment, in a posture which is, at best, obscure.” 141 U.S. App.D.C. at 344, 439 F.2d at 451 . But insofar as five members of the Court accepted the Fortas-White position, Powell and Robinson would seem to stand for the proposition that an addict cannot constitutionally be subjected to criminal process for engaging in conduct which is itself inherent in the disease of addiction. Possession of heroin, of course, is just such conduct, for it is logically impossible for a person to be a heroin addict without also purchasing, possessing and using the drug in order to satisfy his addiction. 177 This being so, it is clear that an interpretation of the federal narcotics statutes which would permit prosecution and conviction of addicts who simply possess the drug for their own use would, at the very least, raise serious questions of constitutionality. 178 *1240 It has long been settled, however, that “[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, supra, 241 U.S. at 401 , 36 S.Ct. at 659 ; see, e. g., United States v. Rumely, 345 U.S. 41, 45 , 73 S.Ct. 543 , 97 L.Ed. 770 (1953); Crowell v. Benson, 285 U.S. 22, 62 , 52 S.Ct. 285 , 76 L.Ed. 598 (1932); Lucas v. Alexander, 279 U.S. 573, 577 , 49 S.Ct. 426 , 73 L.Ed. 851 (1929); United States v. Delaware & Hudson Co., 213 U.S. 366, 408 , 29 S.Ct. 527 , 53 L.Ed. 836 (1909). Thus, unless there is a specific indication in either the statutes themselves or the legislative history that Congress intended these statutes to apply to non-trafficking addict possessors, we should reject such an interpretation in order to fulfill “our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubts of their constitutionality.” Richmond Co. v. United States, 275 U.S. 331, 346 , 48 S. Ct. 194, 198 , 72 L.Ed. 303 (1928).
B
Although Powell left unsettled the precise relationship between criminal responsibility and the Constitution, no member of the Court expressed even the slightest disagreement with the basic proposition that the Eighth Amendment provides only the floor and not the ceiling for development of common law notions of criminal responsibility. Indeed, Mr. Justice Marshall, adopting a restrictive view of the constitutional issue, emphasized that the
“doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. * * * ”
392 U.S. at 536 , 88 S.Ct. at 2156 . Thus, no matter what interpretation of Powell eventually is adopted, the decision must “be read not as a bar, but as an exhortation toward further experiment with common-law doctrines of criminal responsibility.” Watson v. United States, supra, 141 U.S.App.D.C. at 352 , 439 F.2d at 459 (Chief Judge Bazelon, concurring in part and dissenting in part).
The concept of criminal responsibility is, by its very nature, “an expression of the moral sense of the community.” United States v. Freeman, 2 Cir., 357 F.2d 606, 615 (1966). In western society, the concept has been shaped by two dominant value judgments — that punishment must be morally legitimate, 179 and that it must not unduly threaten the liberties and dignity of the individual in his relationship to society. 180 As a result, there has historically 181 been a strong conviction in our jurisprudence *1241 that to hold a man criminally responsible his actions must have been the product of a “free will.” See, e. g., 4 W. Blackstone, Commentaries 20-21, 27 (1854); 2 J. Stephen, History of the Criminal Law of England 99, 183 (1883). And this conviction “is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United States, 342 U.S. 246, 250 , 72 S. Ct. 240, 243 , 96 L.Ed. 288 (1952). Thus criminal responsibility is assessed only when through “free will” a man elects to do evil, and if he is not a free agent, or is unable to choose or to act voluntarily, or to avoid the conduct which constitutes the crime, he is outside the postulate of the law of punishment. 182
Despite this general principle, however, it is clear that our legal system does not exculpate all persons whose capacity for control is impaired, for whatever cause or reason. Rather, in determining responsibility for crime, the law assumes “free will” and then recognizes known deviations “where there is a broad consensus that free will does not exist” with respect to the particular condition at issue. Salzman v. United States, 131 U.S.App.D.C. 393 , 399, 405 F.2d 358, 364 (1969) (Wright, J., concurring) ; see also United States v. Brawner, 153 U.S.App.D.C. 1 , 27, 471 F.2d 969, 995 (1972) (en banc). The evolving nature of this process is amply demonstrated in the gradual develop *1242 ment of such defenses as infancy, 183 duress, 184 insanity, 185 somnambulism and other forms of automatism, 186 epilepsy and unconsciousness, 187 involuntary intoxication, 188 delirim tremens, 189 and chronic alcoholism. 190
A similar consensus exists today in the area of narcotics addiction. 191 In Easter v. District of Columbia, 124 U.S. App.D.C. 33, 36, 361 F.2d 50, 53 (1966) (en banc), this court held that a “chronic alcoholic cannot have the mens rea necessary to be held responsible criminally for being drunk in public” since such an individual “is in fact a sick person who has lost control over his use of alcoholic beverages.” (Emphasis added.) See also Driver v. Hinnant, supra, 356 F.2d at 764 . The World Health Organization has ranked heroin addiction as the most intensive form of drug dependence, far more severe than alcoholism. 192 Indeed, the primary element of the most widely accepted definition of opiate addiction is “an overpowering desire or need to continue taking the drug,” 193 and Congress has repeatedly defined as an addict any individual who is “so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 194 Thus it can no longer seriously be questioned that for at least some addicts the “overpowering” psychological and physiological need to possess and inject narcotics cannot be overcome by mere exercise of “free will.”
Moreover, recognition of a defense of “addiction” for crimes such as possession of narcotics is consistent not only with our historic common law notions of criminal responsibility and moral accountability, but also with the traditional goals of penology — retribution, deterrence, isolation and rehabilitation.
Unlike other goals of penology, the retributive theory of criminal justice looks solely to the past for justification, without regard to considerations of prevention or reformation. Although the pri *1243 mordial desire for vengeance is an understandable emotion, it is a testament to the constantly evolving nature of our social and moral consciousness that the law has, in recent decades, come to regard this “eye-for-an-eye” philosophy as an improper basis for punishment. 195 But even if this barbaric notion of justice retained its validity, it clearly would be inapplicable to those persons who act under a compulsion. Revenge, if it is ever to be legitimate, must be premised on moral blameworthiness, and what segment of our society would feel its need for retribution satisfied when it wreaks vengeance upon those who are diseased because of their disease?
It is of course true that there may have been a time in the past before the addict lost control when he made a conscious decision to use drugs. 196 But imposition of punishment on this basis would violate the long-standing rule that “[t]he law looks to the immediate, and not to the remote cause; to the actual state of the party, and not to the causes, which remotely produced it.” United States v. Drew, C.C.D.Mass., 25 Fed. Cas. No. 14,993 at 914 (1828). See also Perkins v. United States, 4 Cir., 228 F. 408 (1915); Cochran v. State, 65 Fla. 91 , 61 So. 187 (1913); State v. Kidwell, 62 W.Va. 466 , 59 S.E. 494 (1907); Beasley v. State, 50 Ala. 149 (1873). In answer to a similar argument in Easter, supra, this court declared that
“chronic alcoholism resulting in public intoxication cannot be held to be criminal on the theory that before the sickness became chronic there was at some earlier period a voluntary act or series of acts which led to the chronic condition. A sick person is a sick person though he exposed himself to contagion. * * * ”
124 U.S.App.D.C. at 36 , 361 F.2d at 53 . I would adhere to that view today, for no matter how the addict came to be addicted, once he has reached that stage he clearly is sick, and a bare desire for vengeance cannot justify his treatment as a criminal. Indeed, the need for retribution “can never be permitted in a civilized society to degenerate into a sadistic form of revenge.” United States v. Freeman, supra, 357 F.2d at 615 .
The most widely employed argument in favor of punishing addicts for crimes such as possession of narcotics is that such punishment or threat of punishment has a substantial deterrent effect. Given our present knowledge, however, the merits of this argument appear doubtful. Deterrence presupposes rationality; — it proceeds on the assumption that the detriments which would inure to *1244 the prospective criminal upon apprehension can be made so severe that he will be dissuaded from undertaking the criminal act. In the case of the narcotic addict, however, the normal sense of reason, which is so essential to effective functioning of deterrence, is overcome by the psychological and physiological compulsions of the disease. As a result, it is widely agreed that the threat of even harsh prison sentences cannot deter the addict from using and possessing the drug. 197
A similar situation prevails insofar as deterrence of potential addicts is concerned. At the outset, it must be noted that nothing in this opinion would in any way affect the criminal responsibility of non-addict users for crimes they may commit — including illegal possession of narcotics. Such persons are not compelled by the disease of addiction to use and possess the drug, and they are therefore proper subjects for punishment. Thus the concept of deterrence in this context is relevant only insofar as punishment of addict possessors might inhibit non-addicts, who are themselves subject to punishment, from using narcotics. Simply to state the problem is, of course, to answer it. Since the non-addict may still be punished fop his possession of narcotics, the only consolation he might find in exculpation of addict possessors is that if he eventually attains the status of “addict” he must be treated rather than punished. But given what we now know about the pitiable life of an addict, this somewhat dubious consolation is hardly likely to “encourage” persons to use narcotics. Cf. Greenawalt, “Uncontrollable” Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 Colum.L. Rev. 927, 954 (1969).
There is another side to the question of deterrence, however, which should not be ignored. The criminal law may serve as a deterrent not only through the fear of apprehension and prosecution, but also through the more general educative or moralizing effect the law may have upon society. Viewed in this manner, punishment as a concrete expression of society’s disapproval of particular conduct helps to instill a desired moral code in the citizenry against commission of the proscribed acts. See, e. g., Hawkins, Punishment and Deterrence: The Educative, Moralizing, and Habituative Effects, 1969 Wis.L.Rev. 550; Andenaes, The General Preventive Effects of Punishment, 114 U.Pa.L.Rev. 949 (1966); Andenaes, General Prevention—Illusion or Reality?, 43 J.Crim.L., C. & P.S. 176 (1952). Indeed, the history of public attitudes in this nation toward addiction exemplifies the potential impact this moralizing effect can achieve. But in an effort to shape these attitudes, the architects of our policies swept too broadly, perpetrating such myths as the “dope-crazed sex fiend” and condemning not only the volitional drug abuser but the confirmed addict as well. And although society may and indeed should voice its disapproval of non-medical use of narcotics, it is highly questionable whether it should also condemn as “moral degenerates” those pathetic individuals who, because of the disease of addiction, can no longer control their use of the drug. See, e. g., Rosenthal, Proposals for Dangerous Drug Legislation, in President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse 80, 104 (1967).
Moreover, in any discussion of deterrence we must recognize that when an *1245 individual is punished, not for his own good, but to set an example for others, he “suffers not for what he has done but on account of other people’s tendency to do likewise.” Bittner & Platt, The Meaning of Punishment, 2 Issues in Criminology 79, 93 (1966). In such situations, the offender serves simply as a tool in the hands of society, and if punishment premised on considerations of deterrence is to be morally legitimate, the punishment meted out must be justifiable in light of the gravity of the offense and the culpability of the offender. See, e. g., Andenaes, The Morality of Deterrence, 37 U.Chi.L.Rev. 649 (1970). Since the addict’s possession of narcotics is simply a symptom of his disease and not an act of “free will,” however, this conduct cannot properly be deemed “culpable,” and. it would therefore seem inappropriate for society to utilize him as a mere vehicle through which to deter others.
This is not to suggest, of course, that society has no legitimate interest in deterring drug abuse. Narcotic addiction presents a danger to both the addict and society generally, and society therefore has a right and indeed a duty to institute those measures which are reasonably peeessary to curtail its incidence. But punishment of addict possessors is neither a reasonable nor a necessary means to achieve this goal. 198 Indeed, in enacting the Narcotic Addict Rehabilitation Act of 1966, 199 Congress itself recognized that the need to rehabilitate addicts generally outweighs any deterrent impact their imprisonment might achieve. Moreover, it should be noted that in some sense the entire question of deterrence in this context may in reality be meaningless. For after nearly two decades of experience with the harsh penalty provisions adopted in the 1950’s, 200 Congress concluded that “the severity of penalties * * * does not affect the extent of drug abuse.” S.Rep. No. 91-613, 91st Cong., 1st Sess. at 2 (1969); see also Report of the President’s Commission on Crime in the District of Columbia 572-573 (1967). And acting upon this conclusion, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, 201 in which the penalties for crimes of possession were decreased dramatically.
Shifting our focus now to the goal of isolating the offender, we arrive here at not only a justifiable basis for action but one which, in some eases at least, may be vital to the interests of society. Under our system of law, it must be remembered, criminal sanctions are withheld in cases of incompetence out of a moral sense of compassion and understanding. It would be obviously intolerable, however, if those suffering from a disease of such a nature as to relieve them of criminal responsibility were to be set free to continue to pose a danger to society. Thus, as with any individual who is afflicted with a dangerous or contagious disease, when the addict’s freedom may seriously jeopardize the safety and security of the community, society has a legitimate interest in restraining him in order to protect its citizens. See, e. g., Robinson v. California, supra, 370 U.S. at 664-665 , id. at 676 , 82 S.Ct. 1417 (Mr. Justice Douglas, concurring) ; Easter v. District of Columbia, supra, 124 U.S.App.D.C. at 37, 38 , 361 F.2d at 54, 55 ; Driver v. Hinnant, supra, 356 F.2d at 764, 765 .
This does not mean, however, that the goal of isolation justifies infliction of criminal punishment upon the addict. *1246 On the contrary, this interest may be fully vindicated through a program of civil commitment with treatment as well as by criminal incarceration. And since the addict is not a culpable offender, treatment is clearly a preferable alternative to mere imprisonment. Moreover, the community's security may be even better protected under civil commitment for, as we shall see, although incarceration may restrain the addict for the period of his sentence, it does nothing to reduce the likelihood that upon his return to the streets he will again resort to the use of drugs. 202 Finally, we should make certain that, in the words of the President’s Commission on Law Enforcement and Administration of Justice, when civil commitment is utilized as a means to isolate the addict, it “must not become the civil equivalent of imprisonment. The programs must offer the best possible treatment, including new techniques as they become available, and the duration of the commitment, either within or outside an institution, must be no longer than is reasonably necessary.” 203
This, then, brings us to the final and most important goal of modern penology —to rehabilitate the offender. In this age of enlightened correctional philosophy, we now recognize that society has a responsibility to both the individual and the community to treat the offender so that upon his release he may function as a productive, law-abiding citizen. And this is all the more true where, as with the non-trafficking addict possessor, the offender has acted under the compulsion of a disease. The task of rehabilitating the narcotic addict is not, as once was thought, a hopeless task. Great strides have been made in recent years toward development of effective and humane treatment techniques at both community-based and institutional levels, and the cure rate for addiction is now far higher than that of many other illnesses. 204 Thus, with the possible exception of those addicts who remain incurable, 205 *1247 society clearly cannot meet its responsibilities simply by confining the addict without treatment. Such an approach does nothing to cure the chronic relapsing aspects of the disease, 206 and where confinement takes the form of imprisonment the addict is thrust inevitably into a “revolving door” of arrest, conviction, imprisonment, release and arrest, with the period of incarceration serving as but a temporary and futile stopping point in an otherwise interminable cycle. 207
Under existing law, of course, at least some addicts may escape this cycle through the involuntary civil commitment procedures of Title II of the Narcotic Addict Rehabilitation Act, 18 U.S. C. § 4251 et seq. In enacting this legislation, however, Congress specifically limited its applicability to only those addicts who have been charged, prosecuted and convicted of a criminal offense. 208 Thus, with the recognition of the defense of addiction, these procedures presumably would no longer be available to non-trafficking addict possessors. 209 But this does not mean, as some may fear, that these addicts would be deprived of treatment or released without *1248 care or confinement to “prey on society.” United States v. Lindsey, D.D.C., 324 F.Supp. 55, 57 (1971).
For the addict who may affirmatively desire treatment, there are, of course, many options available, including the possibility of voluntary civil commitment. 210 Moreover, there exist in the District of Columbia established procedures for involuntary commitment of known addicts even though they have not been charged, prosecuted or convicted of a criminal offense. See Hospital Treatment for Drug Addicts Act for the District of Columbia, 24 D.C.Code § 601 et seq. (1967). Under this Act, the Commissioner of the District of Columbia must conduct a preliminary examination whenever he has probable cause to believe that any person 211 within the District is an addict. 212 If evidence of addiction is found at the preliminary ex-animation, the patient is committed to a hospital for examination by two physicians, at least one of whom must be a psychiatrist. 213 Within five days these physicians must report their conclusions to the United States Attorney, who may, in his discretion, present a commitment petition to the Superior Court of the District of Columbia. 214 If, after a hearing, 215 the court finds the patient to be an addict, he is committed to a hospital until confinement for treatment is no longer necessary or until he has received “maximum benefits.” 216 After his release, the .patient is supervised in the community for a period of two years to insure that he does not return to the use of drugs. 217 Finally, the patient in these proceedings “shall not be deemed a criminal and the commitment of any such patient shall not be deemed a conviction.” 218
*1249 Despite the existence of these provisions, however, the Government contends that, since the Act has rarely been utilized, 219 the facilities presently available are inadequate to make the statute effective. Confronted with a similar argument in Easter, supra, this court held unequivocally that “[o]ne who has committed no crime cannot be validly sentenced as a criminal because of a lack of rehabilitative and caretaking facilities.” 124 U.S.App.D.C. at 36 , 361 F.2d at 53 . Like the chronic alcoholic who is drunk in public, the non-trafficking addict possessor has committed no crime. The absence of treatment facilities is the responsibility, not of the addict, but of society generally, and the addict should not be treated as a criminal simply because society has failed to meet its responsibility. Had Congress acted to implement this statute with the necessary appropriations and facilities, this problem would not exist today. The statute is already on the books, and indeed has been for almost 20 years. Only the implementation is missing. 220
The genius of the common law has long been its responsiveness to changing times, its ability to reflect new knowledge and developing social and moral values. What the law cannot do, if it is to remain true to its tradition, is to stand still while the world is in flux. See, e.g., Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). Drawing upon the past, the law must serve —as it always has served — the needs of the present. Thus on the basis of the considerations discussed above, I conclude that imposition of criminal liability on the non-trafficking addict possessor is contrary to our historic common law traditions of criminal responsibility. This being so, it is clear that a defense of “addiction” must exist for these individuals unless Congress has expressly and unequivocally manifested its intent to preclude such a defense. See, e.g., Morissette v. United States, supra, 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 ; Easter v. District of Columbia, supra, 124 U.S.App.D.C. at 43 , 361 F.2d at 60 (McGowan, J., concurring); cf. United States v.. International Minerals & Chemicals Corp., 402 U.S. 558, 563 , 91 S.Ct. 1697 , 29 L.Ed.2d 178 (1971); Durham v. United States, 94 U.S.App.D.C. 228 , 240 & n.45, 214 F.2d 862 , 874 & n. 45 (1954); 3 J. Sutherland, Statutory *1250 Construction §§ 6201-6203 (3d ed. 1943) ; E. Crawford, The Construction of Statutes 486-492 (1940).
C
It is apparent, then, that two separate interpretative presumptions — one based on constitutional and the other upon common law considerations — combine in this case to strongly suggest, if not compel, a construction of the federal narcotics statutes which would avoid infliction of criminal liability upon the non-trafficking addict possessor. And' although these presumptions may, of course, be rebutted by a clear demonstration of a specific congressional intent to the contrary, the Government itself admits that evidence of such an intent is, at best, inconclusive. Indeed, after an exhaustive examination of almost 70 years of narcotics legislation, I must agree with the Government’s own conclusion that “Congress has not expressly provided that addiction shall not be an affirmative defense to a charge of possessing illicit narcotics * * * .’ 221
The first significant legislation in this field was the Jones-Miller Act of 1909. 222 In enacting this statute, Congress hoped to curtail the constant flow of narcotic substances into the country. To achieve this goal, the Act prohibited importation of any narcotic drug contrary to law; receipt, concealment, purchase or sale of any such drug; or facilitation of any of these acts. Possession appears in the statute only as being “sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.” No effort was made to delineate which “explanations” would be acceptable, however, and Congress apparently left this question to the courts to resolve on the basis of common law principles of criminal responsibility. Moreover, in neither the language of the statute nor the legislative history is there any indication that Congress intended to preclude recognition of “addiction” as a permissible defense for the non-trafficking addict possessor. 223 Indeed, such an intent would have been wholly incompatible with the prevailing mores of the time, for in the early years of this century the addict was viewed, not as a criminal, but as the victim of an unfortunate illness. 224
Unlike the Jones-Miller Act, which was predicated on the Commerce Clause, the Harrison Act of 19 14 225 was cast in the form of a taxing measure and was designed to control domestic distribution of legally imported narcotics. As discussed previously, prior to 1914 such drugs could be obtained legally and at minimal cost over the counters of pharmacies, grocery stores, and even confectioneries. 226 In an effort to check these sloppy dispensing practices, a strict regulatory scheme was devised in the Harrison Act to ensure that such legally imported drugs did not stray into unauthorized hands. With certain exceptions, the Act made it unlawful for any person to produce, import, manufacture, compound, deal in, dispense, sell, distribute or give away any derivative of opium or cocaine unless he had registered, paid the required taxes, and maintained careful records of his transactions. Mere possession was not itself made criminal but was to be viewed simply as prima facie evidence of the proscribed acts. Thus, as with the Jones-Miller Act, this statute was designed solely as a regulatory measure, and in neither the statute nor the legislative history is there even the slightest suggestion that Congress intended, contrary to public opinion, to punish the addict *1251 whose sole “crime” is to possess a sufficient quantity of the drug to satisfy the demands of his disease. 227 Indeed, only two years after the Act was adopted the Supreme Court, recognizing the limited purpose of the statute, held that Congress had not intended mere possession of a small amount of narcotics for personal use to trigger the statutory presumption of illegality. See United States v. Jin Fuey Moy, supra, 241 U.S. 394 , 36 S.Ct. 658 , 60 L.Ed. 1061 .
After an extended hiatus of some 35 years, Congress again turned its attention to the problem of drug abuse in response to the sudden increase in illicit narcotics traffic following World War II. 228 In 1951, and again in 1956, Congress markedly enhanced the severity of punishments to be meted out for violations of the Jones-Miller and Harrison Acts. 229 In so doing, however, Congress focused its concern primarily upon the trafficker. As one House Report noted:
“Because contact with a drug is an essential prerequisite to addiction, the elimination' of drug servility on the part of addicted persons can best be accomplished by the removal from society of the illicit trafficker. It is to this end that your committee has taken favorable action on [these amendments] .” 230
Thus, although these amendments did not alter the substantive provisions of the existing laws, 231 Congress expressly distinguished — in terms of penalties— between “actual traffickers” and those persons who were convicted simply on the basis of unexplained possession. 232 And this distinction apparently was carried over to the treatment of addicts, for although Congress made clear that addict traffickers were to be punished, 233 there is no indication whatever that Congress also intended to punish non-trafficking addict possessors 234 On the contrary, Congress recognized that addicts are sick persons, 235 and seemed generally sympathetic to the plight of non-trafficking addicts. 236
In 195 3 237 Congress enacted the Hospital Treatment for Drug Addicts Act *1252 for the District of Columbia. 238 The preámble of this Act provides:
“The Congress intends that Federal criminal laws shall be enforced against drug users as well as other persons, and [this statute] shall not be used to substitute treatment for punishment in eases of crime committed by drug users.” 239
Based on this one sentence, the Government argues that Congress specifically intended to punish all addicts for all “crimes” they may commit and, further, that Congress intended absolutely to forbid the continuing development of common law doctrines of criminal responsibility with reference to the disease of addiction. I cannot agree. 240 The underlying purposes of this legislation were set forth by Congressman Miller, the author and floor manager of the bill, during the House debate:
“ * * * [T]hese narcotic addicts are sick people. They ought not to be prosecuted and punished. The dope peddler is the one who needs to be punished, and there are criminal laws to take care of him. Many of these addicts need a helping hand, not a punishing whip, if they are to be cured of this vicious habit. The addict should not be forced to go through a criminal procedure as they do now in many States and suffer this stigma in order to get adequate treatment for their addiction.” 241
At the time this Act was adopted, possession of narcotic drugs 242 and possession of implements used to administer such drugs 243 were criminal offenses in the District of Columbia. And in 1956, when Congress drastically amended the Treatment Act to enhance the effectiveness of its provisions, it also enacted the Narcotics Vagrancy Act 244 which, among other things, made it unlawful for any addict to (a) mingle with others in public or “loiter” in any public place if he has no lawful means of support and is unable to give a good account of himself; (b) be found in any place where narcotic drugs are kept, used or dispensed; or (c) “wander about” in public places late at night if he cannot give a good account of himself. As a result, the addict became by necessity and, indeed, by definition, a walking criminal enterprise. 245 Yet under the Government’s interpretation of the Treatment Act, the rehabilitative provisions of the statute would never be available to any addict who engaged in “criminal” activity. 246 Thus, in practical effect, the Government would have us assume that Congress enacted a complex statutory scheme for treatment of narcotic addicts which it never intended to be utilized. Such an assumption is, of course, contrary not only to logic but to the basic spirit of the Act. Moreover, it ignores the obvious import of its language.
The Treatment Act defines as an “addict” any person
“who uses any habit-forming narcotic drugs so as to endanger the public *1253 morals, health, safety, or welfare, or who is so far addicted to the use of such habit-forming drugs as to have lost the power of self-control with reference to his addiction.” 247
When read with the preamble to the Act, this definition clearly indicates that Congress, while intending to punish addicts for their crimes, intended treatment rather than punishment for those addicts whose only “crime” is the use or possession of narcotics to satisfy their addiction.
Further, this express declaration that addicts are unable to control their use of narcotics is virtually identical with the congressional finding 248 this court relied on in Easter, supra, to recognize the defense of alcoholism:
“An essential element of criminal responsibility is the ability to avoid the conduct specified in the definition of the crime. * * *' In case of a chronic alcoholic Congress has dealt with his condition so that in this jurisdiction he * * * cannot be held to be guilty of the crime of being intoxicated because, as the [Alcoholic Rehabilitation] Act recognizes, he has lost the power of self-control in the use of intoxicating beverages. In his case an essential element of criminal responsibility * * * is lacking.
This element is referred to in the law as the criminal mind. * * * ” 249
It is true, of course, that, unlike the Narcotics Treatment Act, the alcoholic statute contained an express authorization to the courts “to take judicial notice of the fact that a chronic alcoholic is a sick person and in need of proper medical, institutional, advisory, and rehabilitative treatment * * * ,” 250 But this may indeed be a distinction without a difference. The entire structure of the Treatment Act is geared toward rehabilitating the addict “patient” 251 through medical care and treatment. And the legislative history of the Act makes clear that the foremost “purpose of this legislation is to establish and provide for the compulsory treatment of drug users in a manner similar to the treatment of alcoholics in the District of Columbia.” 252 Thus, with all things considered, the Treatment Act is certainly not a bar; indeed, it is an invitation to use a civil approach rather than criminal stigmatization of addict possessors.
As we entered the decade of the 1960’s, our knowledge and understanding of addiction continued to grow, and it soon became apparent that a penal solution to the problem of drug abuse is, in fact, no solution at all. 253 Thus in 1966 Congress enacted the Narcotic Addict *1254 Rehabilitation Act which, as noted in the Senate Report, was
“based upon the recognition that drug addiction cannot be cured by treating addicts as ordinary criminals, to be imprisoned and eventually released to return compulsively to a life of addiction and crime. Instead, the addict must be treated whenever possible as a medical problem, as a potentially productive citizen entitled to whatever assistance he can reasonably be given to enable him to end his dependence upon drugs and return to lead a normal, useful life.” 254
Throughout the legislative history it is repeatedly recognized that addiction is a disease, 255 and the Act itself emphasizes that, by definition, the addict has lost the power of self-control with reference to his continued use of narcotics. 256
In practical effect, the Act is divided into three separate titles. Title I contemplates civil commitment in lieu of criminal prosecution for selected addicts charged with non-violent and non-trafficking offenses under federal law. 257 Title II provides for treatment in lieu of sentencing for certain addicts prosecuted and convicted of specified federal crimes. 258 And Title III is a purely civil commitment provision under which either the addict himself or a related individual may commence the commitment proceedings. 259 It is apparent, then, that under the first two titles Congress at least assumed that addicts generally might be prosecuted for crimes they may commit. But nothing in the Act, or in the legislative history, even remotely suggests that Congress intended to deny a particular class of addicts — those who are guilty of nothing more than mere purchase and possession of a sufficient quantity of narcotics to satisfy their disease — the right to present a defense of “addiction” based upon traditional common law principles of criminal responsibility. Indeed, the underlying spirit of the Act lends itself more readily to just the opposite conclusion.
This, then, brings us to the Comprehensive Drug Abuse Prevention and Control Act of 1970, which provided increased grants for and emphasis on drug treatment and rehabilitation programs, 260 replaced virtually all prior narcotic and dangerous drug laws — including the Jones-Miller and Harrison Acts — and drastically reduced the penalties to be imposed for all federal narcotics offenses. 261 In addition, the Act *1255 eliminated the pre-existing “presumption of guilt based on possession” construct, and enacted in its stead a separate offense of possession for use. 262 As we have already seen, however, use .of narcotic drugs is by no means restricted solely to addicts, 263 and there is no indication whatever that Congress intended to punish mere addict possessors under the terms of this provision. Moreover, at the time this Act was adopted, Congress was well aware 264 of this court’s suggestion in Watson v. United States, supra, that the federal narcotics statutes might never have been intended to apply to non-trafficking addict possessors. Thus, had Congress wished to preclude an addiction defense, it had ample warning and opportunity to do so. Instead, it chose to remain silent, stating simply that the question whether such addicts “ ‘can be held criminally responsible can only be decided in the courts, case by case.’ ” 265
Thus the most that can reasonably be said about these statutes is that Congress has taken no position whatever on the precise issue confronting this court today. I therefore conclude, on the basis of considerations discussed throughout this opinion, that a narcotics addict may properly assert a defense of “addiction” in any prosecution charging him with mere purchase, receipt or possession of a quantity of narcotics which he intends to use himself in order to satisfy the demands of his disease. The hallmark of our legal system is, and always has been, its remarkable ability to adapt to new ideas and new situations. It is simply too late in the day for us to shut our eyes in ignorance and to allow injustice to persist in blind imitation of the past. As medical knowledge continues to advance and standards of decency continue to evolve, our legal concepts of crime and punishment must change as well. Yet this is not a cause for alarm, as some may fear, but a reason for hope that as our civilization progresses our treatment of unsocial conduct will consistently become both more humane and more effective.
V. THE NATURE OF THE DEFENSE
Perhaps the most troublesome question arising out of recognition of the addiction defense I suggest is whether it should be limited only to those acts— such as mere possession for use — which are inherent in the disease itself. It can hardly be doubted that, in at least some instances, an addict may in fact be “compelled” to engage in other types of criminal activity in order to obtain sufficient funds to purchase his necessary supply of narcotics. In such eases, common law principles of criminal responsibility would clearly be applicable. Indeed, it would seem intolerable that such addicts, who are “already crippled by an almost hopeless cycle of poverty, ignorance and drugs, should be further burdened by the moral stigma of guilt, not because they are morally blameworthy, but merely because we cannot afford to treat them as if they are not.” United States v. Carter, 141 U.S.App.D.C. 46, 56 , 436 F.2d 200, 210 (1970) (Chief *1256 Judge Bazelon, concurring) (emphasis in original). Nevertheless, I am convinced that Congress has manifested a clear intent to preclude common law extension of the defense beyond those crimes which, like the act of possession, cause direct harm only to the addict himself.
In the 1956 amendments to the Jones-Miller and Harrison Acts, 266 for example, Congress stated unequivocally that addict traffickers should be treated no differently than nonaddict traffickers:
“Some testimony was received by the subcommittee to the effect that in determining the degree of punishment a distinction should be made between the nonaddict trafficker and the addict trafficker with the latter group being dealt with less severely. It is the view of your subcommittee that the addict trafficker is just as vicious a person as the nonaddict trafficker, that his deeds are no less heinous by virtue of his addiction, and any attempt to place such individuals in a separate category with a view to dealing less severely with them would only serve to encourage the addict trafficker to the detriment of society.” 267
The rationale underlying this congressional judgment must, of course, extend logically not only to acts of trafficking, but to all crimes which directly threaten the life, limb, health or property of others.
Moreover, in enacting Titles I and II of NARA, Congress expressly intended that addicts charged with specified crimes of violence or certain types of trafficking should be held criminally liable despite their addiction. 268 For lesser crimes, such as shoplifting or fraud, civil commitment was made available in lieu of prosecution or sentencing and only after the addict offender had been brought into the criminal process. 269 Indeed, the entire structure of NARA reflects a specific congressional determination that addicts generally should not be exempt from criminal prosecution. Of course, as indicated earlier, 270 there is room for flexibility in interpreting the general provisions of NARA. But the Act is not so flexible that it might reasonably be interpreted as permitting this court, under common law principles of criminal responsibility, to require non-criminal treatment of virtually all addict offenders. 271 Such an interpretation would, of necessity, 272 render the commitment provisions of Titles I and II practically meaningless, and Congress could hardly have intended such a result.
When viewed from the constitutional perspective, however, this “line-drawing” question is somewhat less settled. Mr. Justice Fortas, writing for four members of the Court in Powell v. Texas, supra, noted that, although the Eighth Amendment would, in his view, forbid infliction of criminal liability upon the chronic alcoholic who is “guilty” of no more than mere public intoxication,
*1257 “[i]t is not foreseeable that findings such as those which are decisive here —namely that the appellant’s being intoxicated in public was a part of the pattern of his disease and due to a compulsion symptomatic of that disease — could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct and do not typically flow from and are not part of the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the disease as it afflicts him, nothing herein would prevent his punishment.” 273
Similarly, Mr. Justice White, who apparently agreed in principle with much of Justice Fortas’ discussion of the public intoxication issue, 274 stated that the Eighth Amendment might not bar conviction of a chronic alcoholic for “crimes .involving much greater risk to society.” 275 With reference to narcotics addiction,
“such a construction of the Eighth Amendment would bar conviction only * -x- -x- for acts which are a necessary part of addiction, such as simple use. Beyond that it would preclude punishment only when the addiction to or the use of drugs caused sufficient loss of physical and mental faculties. This doctrine would not bar conviction of a heroin addict * * * for committing other criminal acts.” 276
While these comments in Powell were offered simply as dicta, they do indicate the position of the Court. Consequently I would limit the availability of the addiction defense to only those acts which, like mere purchase, receipt or possession of narcotics for personal use, 277 are inseparable from the disease itself and, at the same time, inflict no direct harm upon other members of society. 278
*1258 Perhaps the most difficult problem associated with the limited applicability of the addiction defense concerns the distinction between the trafficking and non-trafficking addict possessor. Fortunately, the Comprehensive Drug Abuse Prevention and Control Act of 1970, which is of course applicable in all future prosecutions, provides a convenient construct within which the issue may be litigated. The Act creates two entirely separate possession-related offenses, which may be termed (a) “mere possession,” 279 and (b) possession “with intent to manufacture, distribute, or dispense.” 280 Thus whenever any individual is found in possession of illicit narcotics, he may be charged under any one of three possible indictments. First, and least likely, the accused might be charged only with possession with intent to distribute. In such a situation, evidence of addiction would be clearly irrelevant, since under the addiction defense even an addict may be convicted of trafficking. Second, the individual might be charged simply with “mere possession.” In this case, the availability of the defense would be dependent solely upon the question of addiction. Since the defendant is not accused of possession with intent to distribute, evidence of trafficking (i. e., in the past) would be inadmissible and could not be used to defeat the defense. 281 Finally, the offender might be charged with both possession with intent to distribute and, as a lesser included offense, “mere possession.” Here, evidence as to both addiction and trafficking would be relevant. If the defendant is convicted of possession with intent to distribute, the question of addiction becomes moot and the lesser included offense should, of course, be dismissed. If, on the other hand, the individual is acquitted on the trafficking count, the jury should then determine (a) whether he was in fact in possession, and (b) if so, whether he was an addict at the time of the offense.
The basic question of criminal responsibility under the addiction defense is a legal, and not a purely medical, determination. Not all drug users are “addicts” and, as with any compulsion, the degree of dependence may vary among different individuals and, indeed, even in a given individual at different stages of his addiction. Thus what we are concerned with here is not an abstract medical or psychiatric definition of addiction which sets forth a clinical checklist of relevant symptoms but, rather, a behavioral model, based upon traditional legal and moral principles, which tests the ability of the defendant to control his behavior. The essential inquiry, then, is simply whether, at the time of the offense, the defendant, as a result of his repeated use of narcotics, lacked substantial capacity to conform his conduct to the requirements of the law. 282
*1259 As noted in Watson, supra, a defendant who seeks to raise this issue as an affirmative defense at trial 283 should bea

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459989. Public record. Not legal advice.