holding that heroin addict may properly be convicted of possession of a controlled substance
How later courts described this case
- holding that heroin addict may properly be convicted of possession of a controlled substance
- concurring opinion, Bazelon, C. J.
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge
(concurring) :
I concur in this result and almost all of its underlying rationale. Our judgment is necessarily a pragmatic one. We should not delude ourselves .that present or past treatment efforts to solve our drug problem have proven sufficiently effective to form a basis for allowing addiction as a legal defense. (Majority opinion at 414.)
We have looked to legislation and concluded it has preempted the field. We have distinguished appellants’ most forceful precedents and have reviewed the social and physical consequences of heroin. In my judgment we have also, by implication at least, recognized the logic of the unaffordable proposition that addiction can substantially impair capacity to control behavior respecting drug-related conduct.
It is noted that the Narcotics Diversion Project (NDP) treats threshold offenders. The well-entrenched offender, who feeds his habit, in part, by recruiting new users or threshold offenders to buy from him, remains a problem. There is no known expectedly successful way to protect the community from these people except imprisonment. Until a better means can be developed it would be the height of folly to experiment with society by adopting a rule of exoneration which would leave drug users where they assuredly would continue to destroy the parts of civilized existence which they contact.
Therefore, with or without programs like NDP, and legal paradox notwithstanding, we must retain a law enforecment apparatus whereby addicts as well as traffickers who commit crime must be removed from society. This truth is recognized virtually world-wide in responsible law enforcement. We should not do otherwise.
*429 TABLE OF CONTENTS FOR DISSENT
Page
Introduction -429
I.The Development of Mens Rea 429
II.Appellants’ Contention-432
III. Congressional Preemption and Judicial “Legislation”-432
A. Statutory Construction — 433
B. Judicial “Legislation”-435
IV. The Drug Dependence Defense and Anti-Crime Law Enforcement - 436
A. Deterrence:
Drug Dependent Persons 437 Non-Drug Dependent Persons-438
B. Isolation of the Offender - 439
C. Reformation and Rehabilitation - 439
D. Retribution - 440
E. Preventing Illegal Drug Traffic-440
V.Elemental Justice-441
VI.The Process of Adjusting the Common Law-442
VII.United States v. Moore-442
VIII.Drug Dependence, Free Will and Mens Rea-443
IX.Conclusion - 447