Gorham v. United States

FICKLING, Associate Judge,

with whom KERN, Associate Judge, joins (dissenting) :

In my opinion the question squarely presented by these cases is whether the court below erred in refusing to accept appellants’ proffered test of criminal liability. Appellants contend that this court should recognize an affirmative defense based upon drug dependence to two crimes only, i. e., illegal possession of heroin, D.C.Code 1973, § 33-402(a), and possession of implements of crime (narcotic paraphernalia), D.C.Code 1973, § 22-3601 (hereinafter, PIC). Rather than considering appellants’ contention in the light of the long established fundamental principle of criminal law of the doctrine of mens rea, the majority opinion ignores this principle and rejects appellants’ contention on the basis of doctrines not supported by the law.

I will first present what I believe to be an accurate description of the common law doctrine of mens rea and its relation to the judicial process, and then to demonstrate why the majority opinion is not supported by the pertinent legal doctrines.

1. The Development of Mens Rea 1

As early as the twelfth century, the emphasis of criminal law in England had begun to shift from criminal liability based solely upon the doing of a prohibited act to crime as a compound consisting of the objective physical act — the actus reus (“evil act”) — and a subjective mental element. Legal scholars of the era reasoned that every act was the result of interaction between a human being’s mind and body. The mind “willed” the act and the body performed the act. This reasoning together with the pervasive influence of canon *430 law, with its insistence upon moral guilt as a condition precedent to punishment, led to the establishment of a morally blameworthy state of mind as an essential element of crime. A slightly modified Latin maxim began to be used as a convenient label for this new idea of a connection between crime and a mental element leading to moral blameworthiness. That maxim was “actus non facit reum, nisi mens sit rea” .("an act does not make [the doer of it] guilty, unless the mind be guilty”). The maxim was quickly shortened to simply “mens rea.”

By the time of Coke, 2 the requirement of a guilty state of mind — -at least for serious crimes — was well established, and by the eighteenth century the idea of a mental element of crime was so firmly rooted that Blackstone flatly stated that for there to be a crime there must first be a “vicious will.” 3

A concomitant to the development of the doctrine of mens rea was the development of various excuses from criminal liability. Because punishment was premised upon a free actor willfully and knowingly choosing to do evil rather than good, it was considered wrong to punish someone for doing an evil act if he did not do so knowingly and willfully. Moreover, even as theories of criminal liability evolved from pure retribution for the doing of moral wrongs to the utilitarian grounds of deterrence of. the offender and of the general public, isolation, reformation, and reinforcement of general community norms, excuses continued to be recognized. The rationales for excuses under these utilitarian theories paralleled their justifications. For example, just as the retributivist would excuse persons who were not morally blameworthy, the utilitarian, believing that punishment can be justified only when, on bal-anee, it would be useful, 4 would excuse persons who are beyond being deterred and whose punishment would neither deter others nor reinforce community norms.

Consequently, Blackstone 5 and Bentham 6 presented a similar list of situations in which punishment is not justified because the mental element necessary for criminal liability is not present. These lists included excuses based upon “a defect of understanding” including infancy, insanity, and involuntary intoxication; defenses of “misfortune and chance”; defenses of compulsion, duress, and “inevitable necessity”

The United States Supreme Court traced the development of the concept of mens rea and its concomitant excuses in American law in the following statement:

The contention that an injury can amount to a crime only when inflicted by intention 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. 4 A relation between some mental element and punishment for a harmful act . . . has afforded, the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.

Crime, as a compound concept, generally constituted only from concurrence *431 of an evil-meaning mind with an evildoing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” "scienter," to denote guilty knowledge, or “mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. [Morissette v. United States, 342 U.S. 246 , 250-52 and n. 4, 72 S.Ct. 240 , 96 L.Ed. 288 (1952); other footnotes omitted; italics in original.]

Among the excuses from criminal liability which have been accepted by American courts are mental disease or defect, 7 infancy, 8 compulsion (duress), 9 coercion, 10 epilepsy, 11 kleptomania, 12 delirium tremens, 13 the effect of medication, 14 sleepwalking, 15 and, most recently, alcohol dependence. 16

This review of the historical development of mens rea, leads to certain well documented conclusions. First:

[I]t seems clear that mens rea, the mental factor necessary to prove criminality, has no fixed continuing meaning. The conception of mens rea has varied with the changing underlying conceptions and objectives of criminal justice. [Sayre, Mens Rea, 45 Harv.L.Rev. 974, 1016 (1932).]

Secondly:

[T]he principle [mens real is derived entirely from case law. Although there was a considerable body of statutory criminal law at the time when these authors wrote [Coke, Hale, Blackstone, etc.], it is nowhere suggested by them, nor has it ever been suggested to my knowledge, that the principle is dependent on the direction of the legislative body. Indeed, much of the case law has evolved by way of implied exceptions *432 (that is, implied by the judges) to apparently express and precise statutory commands. [P. Brett, An Inquiry into Criminal Guilt 40 (1963).]

Finally, the changing conceptions of mens rea have often been closely related to advances in medical science which increased the courts’ understanding of human conduct and relationships. 17

II. Appellants’ Contention

Having briefly traced the development of the doctrine of mens rea, I turn to appellants’ contention.

Appellants contend that because a fundamental postulate of common law jurisprudence is that criminal punishment may be imposed only upon a defendant who, at the time of the act charged, possessed the free will to refrain from committing the act, this court should hold that:

[A] defendant charged with nontraffick-ing possession of heroin and the implements of its administration [may] raise as an affirmative defense that, because of long-standing dependence on the use of injectable heroin, he cannot be held criminally responsible for the acts with which he was charged. 18

The majority opinion rejects this contention for the following reasons :

(1) “Courts are not empowered to supersede the legislative will. [W]hat we have been asked to do here is to engage in legislative activity, purely and simply.” 19

(2) The contention of appellants, if accepted, would cut deeply into the government’s anti-crime enforcement efforts. 20

(3) Elemental justice does not require recognition of the affirmative defense. 21

(4) “The process of adjustment of the common law, to fit the times, has traditionally been the province of the states.” 22

(5) The majority agrees with the decision in United States v. Moore, 158 U.S.App.D.C. 375 , 486 F.2d 1139 , cert. denied, 414 U.S. 980 , 94 S.Ct. 298 , 38 L.Ed.2d 224 (1973), particularly Judge Leventhal’s concurring opinion. 23

III. Congressional Preemption and Judicial “Legislation”

It is hornbook law that a statute is presumed to be consistent with the common law, and such a presumption is rebuttable only by an affirmative expression of legislative will to alter the common law. Mor- *433 issette v. United States, supra; Easter v. District of Columbia, 124 U.S.App.D.C. 33, 43 , 361 F.2d 50, 60 (1966) (en banc); 2A Sutherland, Statutory Construction § 50.05 (4th ed. C. Sands ed. 1973).

This court has held that the two statutes at issue in this case, D.C.Code 1973, §§ 33-402(a) and 22-3601, are not “strict liability” 24 type statutes which require only the commission of forbidden acts or omissions. Rosser v. United States, D.C.App., 313 A.2d 876, 879 (1974); McKoy v. United States, D.C.App., 263 A.2d 649, 651 (1970); see United States v. Weaver, 148 U.S.App.D.C. 3 , 458 F.2d 825 (1972).

In fact, this court recently suggested that trial courts use the following jury instruction for simple possession of narcotics, Carver v. United States, D.C.App., 312 A.2d 773 , 775 n. 5 (1973):

You may find that the defendant knowingly and intentionally possessed the [narcotic drug] if he did so consciously, voluntarily and purposely, and not because of mistake, inadvertence or accident. [D.C. Bar Association, Young Lawyer’s Section, Criminal Jury Instructions for the District of Columbia, Instruction 4.31 at 116 (2d ed. 1972) (emphasis added).]

Given the facts that there is no affirmative prohibition in the pertinent legislation of the suggested drug dependence defense (a point which the government conceded in the Moore case 25 and conceded in its original brief 26 in these cases), and that this court has read the existing common law defenses into the statutes, one might reasonably ask where the majority opinion finds the clear expression of legislative intent to prohibit the affirmative defense of drug dependence. The answer is: in other statutes and in a misconception of the roles of the legislature and the courts.

A. Statutory Construction

After tracing the evolution of various federal narcotics statutes, which, of course, are not at issue in these cases, the majority concludes that it is “beyond dispute that Congress intended drug users, like anyone else, to come under the statute prohibiting narcotics possession” 27 because there are criminal penalties for simple possession of narcotic drugs.

There are three principal flaws in this reasoning. First, the Controlled Substances Act is not at issue in these cases and, whatever the intent behind it, it is not dispositive of the District of Columbia legislation. If this were not obvious under rules of statutory construction, it is obvious in light of the fact that attempts in 92d 28 and 93d 29 Congresses to pass a “District of Columbia Controlled Substances Act” similar to the federal statute were unsuccessful.

Second, assuming arguendo that the federal statutes are relevant to appellants’ contention, a congressional intent to deny an affirmative defense based upon drug dependence is not evident in these statutes. The House Report on the 1970 Act states that the Act combines both the punitive and rehabilitative approaches to the problem of drug dependence, and quotes with approval the following statement from the *434 Report of the President’s Advisory Commission on Narcotic and Drug Abuse (Prettyman Commission) discussing the underlying philosophy involved in this dual approach as opposed to the two rejected extreme attitudes — the punitive and the permissive.

This Commission does not accept either of these extreme attitudes, but it subscribes to certain aspects of each. Rehabilitation is the humanitarian ideal, to be sought wherever possible. But rehabilitation is not simple. It requires the skills of many disciplines and the efforts of many agencies. The drug abuser who steals or who sells drugs to finance his habit is guilty of a crime. Like any other citizen, he should face the consequences. Whether he can he held criminally responsible can only he decided in the courts, case by case. The Commission cannot assert a general rule that every confirmed drug abuser is so impelled by his habit that he is not accountable for his acts under criminal law. [Emphasis added.] 30

On the next page of the House Report, the following statement of the Prettyman Commission is quoted.

Drug users who violate the law by small purchases or sales should be made to recognize what society demands of them. In these instances, penalties should be applied according to the principles of our present code of justice. When the penalties involve imprisonment, however, the rehabilitation of the individual, rather than retributive punishment, should be the major objective. 31

Thus, it is clear that Congress intended to follow the Prettyman Commission’s dual approach philosophy and that it had no intention of intervening in the normal application of common law principles by the courts in individual cases.

The government argued in its brief, 32 and the majority implicitly accepts the argument, that the words “any person” in 21 U.S.C. § 844 (a) (1970) 33 are affirmative evidence of a congressional intent to prohibit recognition of a drug dependence affirmative defense.

The speciousness of this argument is easily discernible. If such a literal interpretation of the words “any person” is adopted, then Congress intended that all persons — infants, insane, epileptic, unknowing, compelled, etc. — be punished for possession.

It is surely significant that the various excuses recognized by the criminal law have been made by the judges without help from the legislature. Legislatures perform the task of considering conduct at large and passing judgment on it; they make broad general statements, such as “no one must kill” or “no one must steal”. It has never been thought necessary for them to spell out in detail the qualifications of these statements for individual cases. For example, they say, “no one must kill”, but they do not need to say, “a person may of course kill to save his own life or his child’s, or if he is the public hangman.” Of course, they may, on occasion, spell out qualifications of their general statements; but they do not feel themselves bound to do so. They expect the courts, in the application of these commands to individual cases, to formulate the qualifications in the light of the case at bar. And the courts have acted accordingly. [P. Brett, An Inquiry into Criminal Guilt, supra at 72.]

*435 The third flaw in the majority’s reasoning on the congressional preemption issue involves interpretation of the D.C. Narcotic Rehabilitation Act of 1953, D.C.Code 1973, § 24-601 et seq. The majority reads the preamble to the statute 34 as supplying the affirmative evidence of congressional intent necessary to rebut the presumption that the statute is consistent with the common law. That contention is simply incorrect. The words used by Congress are “shall be enforced,” and the only reasonable interpretation of those words, in my view, is that Congress intended that individuals suspected of violating federal criminal laws be arrested and prosecuted. However, arrest and prosecution are not synonymous with conviction. It is submitted that what Congress intended was that “drug users” be made to go through the criminal justice system when accused of crime rather than automatically being diverted into the rehabilitation scheme. This interpretation is borne out by a section of the same statute that provides that the procedures in the statute shall not be used for those persons “charged'with a criminal offense or under sentence for a criminal offense.” 35 This may be evidence of a congressional intent not to “legalize” possession of narcotics or other crimes, however, it is in no way inconsistent with appellants’ contention that at trial they be permitted to raise an affirmative defense to the charges of possession and PIC. If a defendant fails to raise such an affirmative defense or does raise the defense and is unsuccessful in his assertion of it, then in accordance with the statute he may be convicted and sentenced to a penal institution rather than placed in a hospital. On the other hand, an individual may be convicted of possession or PIC only upon proof of all elements of the crime, including — as per the jury instruction approved by this court 36 — that he possessed the drug “voluntarily.”

In addition, I reject the majority’s interpretation of the 1953 Act because the government does not strictly adhere to the majority’s interpretation that the federal criminal laws be enforced against drug dependent persons.

[I]n minor drug cases [i. e., non-traffickers] the United States Attorney often agrees to drop the prosecution if the addict consents to civil commitment. [President’s Commission on Crime in the District of Columbia, Final Report 571 (1967).] 37

B. Judicial “Legislation”

There being no affirmative evidence of a congressional intent to prohibit an affirmative defense of drug dependence, I turn to the majority’s concomitant argument that for this court to recognize a new common law mens rea defense based upon drug dependence would be “legislative activity.” The majority opinion implies that such “legislative activity” would be improper. That implication demonstrates an erroneous view of the nature of the judicial process. The following analysis by Mr. Justice Cardozo of the proper nature of the judicial process had long been considered the proper formulation:

My analysis of the judicial process comes then to this, and little more: log *436 ic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent.

* * * >'fi * *

Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.

If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator’s work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. [B. Cardozo, The Nature of the Judicial Process 112-13 (1921) (Yale paperback ed.) (emphasis added).]

Forty years earlier Oliver Wendell Holmes wrote that:

[I]n substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. [C. Holmes, The Common Law 31 (1881) (N. Howe paperback ed.).]

These quotations and my earlier discussion of the development of the doctrine of mens rea demonstrate, in my opinion, that the constant reexamination and readjustment of the concept of mens rea and its application to specific cases is one of the basic duties of a judge. This process involves judicial “legislation” and such “legislation” has long been one of the keystones of our legal system. Therefore, the majority’s condemnation of the recognition of a new mens rea defense on the ground of judicial “legislation” involves a fundamental misconception of the nature of the judicial process.

IV. The Drug Dependence Defense and Anti-Crime Law Enforcement

The strongest theme that continually reappears in the majority opinion is that to recognize a mens rea defense based upon drug dependence would “cut deeply into the [law] enforcement effort.” 38 We are never told how or why law enforcement efforts would be hampered although there is much space devoted to addiction-related crime.

Even though the premise that drug dependence is one of the significant root causes of crime is not without challenge, Marshall v. United States, 414 U.S. 417, 426 , 94 S.Ct. 700 , 38 L.Ed.2d 618 (1974), appellants have not contended that crime and drug dependence are unrelated.

The majority chooses to imply that the recognition of an affirmative defense of drug dependence presents the danger of *437 “legalizing” possession of heroin. Appellants have not asked that possession of heroin be legalized, and the original panel decision in the companion case of Franklin v. United States, D.C.App. (No. 5960, Feb. 27, 1973, vacated), contained several statements such as, “[w]e wish to emphasize that we are not legalizing the possession of narcotic drugs.” Id. at 42. Nevertheless, I shall endeavor to set out below an analysis of why the recognition of an affirmative defense based upon drug dependence would not hamper law enforcement efforts.

Of the various legally accepted purposes of punishment for violation of a criminal law — (1) deterrence of the offender and/or others; (2) isolation of the offender from society; (3) reformation or rehabilitation of the offender; and (4) retribution for the commission of a morally blameworthy act — the purposes of deterrence and isolation are most closely related to general law enforcement.

A. Deterrence: Drug Dependent Persons

Will nonrecognition of a drug dependence mens rea defense deter drug dependent persons or others from the commission of crime? In the case of persons who are already drug dependent, the overwhelming majority of experts agree that the threat of criminal punishment has no deterrent value. The Prettyman Commission stated that:

The Bureau of Narcotics maintains that the present severe penalties act as a powerful deterrent. The Commission does not agree. As the Commission pointed out in its introduction, it is difficult to believe that a narcotic addict who is physically and psychologically dependent on a drug will forego satisfaction of his craving for fear of a long prison sentence. . . . The weakness of the deterrence position is proved every day by the fact that the illicit traffic in narcotics and marijuana continues. 39

All available statistics show an increase of epidemic proportions in the use of abusable drugs during the last twenty years despite vigorous prosecution of addicts. 40 The explanation of these statistics is concisely stated in the report of the ABA’s Special Committee on Crime Prevention and Control:

The demand [for heroin] is created not by economic considerations but by an insatiable physiological craving of the addicts, who must obtain large and fre *438 quent doses of heroin to maintain a semblance of physical normality. As a result, the addicts’ incessant efforts to obtain heroin are undeterred by the threat of harsh punishment for illegal drug possession or by the black market’s exorbitant prices. 41

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By relying almost exclusively on law enforcement and penal sanctions, the government has ignored the medical realities of addiction and the economic realities of the black market. The evidence is that the addict’s overwhelming desire to consume heroin cannot be discouraged by prolonged jailing, involuntary abstinence or the drug’s exorbitant cost in the city streets. Denying addicts a legal narcotics source without substituting an effective treatment program simply drives them into the black market, where the pushers are solely interested in selling as much heroin as possible at the highest obtainable price. 42

Deterrence: Non-Drug Dependent Persons

If those who are already drug dependent will not be deterred from continued drug dependence or dependence-related crimes by nonapproval of the affirmative defense of drug dependence, the only other plausible deterrence argument is that other persons will be deterred from using narcotics at all or from becoming drug dependent once they begin using drugs. The facts do not support this latter deterrence argument. Experts agree that there are two recruitment patterns for new addicts. One, which accounts for a small number of addicts, is a person who was given narcotics for medical and therapeutic purposes and who became addicted as a result of this medication. 43 The second and most common recruitment pattern is socioeconomic. The addict population is “overwhelmingly black, young, poor, and concentrated in the big city ghetto areas.” 44 Dr. Jerome Jaffe, former President Nixon’s Special Advisor on Drug Abuse, has written that “[i]t would be difficult to overestimate the effects of social organization on the incidence of drug abuse.” 45 A combination of factors including culture, occupation, fashion, childhood environment, and psychopathology that antedates drug use, etc., combine to lead an individual to begin using drugs. Most addicts come from depressing environments where drug use is acceptable, drugs are available, and future prospects are pessimistic. They often try drugs out of curiosity, frustration, or boredom, and quickly become dependent. 46 Because of these factors, individuals who are most likely to become addicts are not deterred by the punishment of nontraffick-ing possessors because that punishment does not remove the causes of the new user’s interest in and desire to experiment with drugs. Moreover, the stigma of a criminal conviction is meaningless to these individuals in their environment. A recent survey of addicts in Washington, D. C., revealed that 52 percent of the addicts began *439 heroin use after 1965, and 65 percent after 1963, i. e., a period of strong anti-drug laws, mandatory sentences, etc. 47 Those drug users who do not use heroin, i. e., college students who use barbiturates and hallucinogens, do so not because of criminal sanctions which exist for the drugs that they do use, but because they fear heroin’s physically debilitating effects. In short, “[i]t is the despair that follows in the wake of social decay and poverty that triggers the addiction-crime cycle.” 48

Moreover, so long as lengthy civil commitment of addicts is sustained by courts 49 and permitted under statutes, 50 “the prospect of extended civil confinement would probably deter most persons from becoming addicts as effectively as would criminal sanctions.” 51

A final point in connection with this aspect of the deterrence argument is to keep in mind the distinction between deterrence based upon the existence of a criminal statute and deterrence based upon recognizing an excuse from liability under that statute. Despite the majority’s contentions to the contrary, we are concerned here with the latter and not the former. In this connection, it is interesting to note that the Second Report of the National Commission on Marihuana and Drug Abuse recommended the retention of criminal laws prohibiting possession of illegal drugs 52 and simultaneously stated that: “The primary purpose of enforcement of the possession laws should be the detection and selection of those persons who would benefit by treatment or prevention services-.” 53

B.Isolation of the Offender

While incarceration in prison does isolate the offender from society, incarceration in a rehabilitation facility, often located in the same prison, equally isolates the offender from the public. It is doubtful that the prospect of isolation by civil commitment would lead to the commission of more crimes than the prospect of incarceration in a penal facility.

C.Reformation and Rehabilitation

Incarceration in a penal facility neither reforms nor rehabilitates a drug dependent person beyond the immediate termination of drug use.

The only method used today in this country to deal with hard-core addicts is to incarcerate them after criminal conviction. That technique temporarily renders the addict harmless to society, for he can commit no new crimes while in prison. However, imprisonment only interrupts — and does not end — the addict’s addiction. More than 90 percent of such addicts return to addiction and street crime upon release from prison. 54

*440 In addition, imprisonment may be harmful since withdrawal without medical attention, a traumatic experience both psychologically and physiologically, may result in lasting damage to the personality of the addict. 55

D. Retribution

Retributive theory, unlike utilitarian theory, does not depend on punishment serving any socially useful purpose. Punishment is imposed because the actor is morally blameworthy, and if the actor is not blameworthy, he must be excused from criminal liability. An act is considered blameworthy only if it is the product of a “free” will, and the will of one who is the victim of a disease, compulsion, or other defect, is no longer free. If the act is the product of an overpowering compulsion, the actor is not morally blameworthy and therefore should not be punished.

Such a denial [that criminal liability is based on blameworthiness] would shock the moral sense of any civilized community; or to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear. [O. Holmes, The Common Law, supra at 42.]

Fifty years ago, the Supreme Court recognized that addicts are sick persons and are “proper subjects for . treatment.” Linder v. United States, 268 U.S. 5, 18 , 45 S.Ct. 446 , 69 L.Ed. 819 (1925). All of our subsequent advances in medical knowledge confirm that diagnosis. Robinson v. California, 370 U.S. 660, 667 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962). My review of the development of the common law has demonstrated that the fundamental requirement of all criminal liability is that the act of the accused must be a voluntary expression of his will. We are concerned with a “guilty mind,” “vicious will,” “evil mind,” etc. Thus, as Professor H. L. A. Hart has explained, mens rea is really a catalogue of excusing conditions relating to individual cases. Society, or more particularly its judges, have said that the individual will not be subject to punishment and loss of dignity or stigmatization through the criminal law unless he violates the law for reasons which were in his power to prevent, i. e., the fundamental moral principle that “persons should not be punished if they could not have done otherwise, i. e., had neither the capacity nor a fair opportunity to act otherwise.” 56 Since several means of treatment are available for the addict’s illness, conformity with this fundamental moral principle, not to mention concepts of fundamental fairness in due process of law, 57 dictates that we seek treatment rather than punishment for nontrafficking addict possessors.

E. Preventing Illegal Drug Traffic

Of course a criminal law can also be justified on the ground that it protects the public from some harm. Thus, the existence of criminal laws prohibiting possession or sale of illegal drugs can be said to protect the general public against drug trafficking. In fact, the sponsor of the Controlled Substances Act, 21 U.S.C. § 801 et seq. (1970), stated that the principal purpose of. the bill was to stop drug traffic by concentrating law enforcement efforts on importers, manufacturers, and distributors, rather than on users. 58

*441 The majority ignores two exhibits attached to Appellants’ Supplemental Reply Brief on Rehearing which pertain to the effect of the recognition of a drug dependence defense on law enforcement efforts. Exhibit “A” is a letter from the Mayor’s Advisory Committee on Narcotics Addiction, whose members include the Chief of Police, which states that the Committee supports the recognition of a drug dependence defense for nontrafficking addicts and adds:

The Committee believes further, that the recognition of the defense, coupled with effective, intelligent and meaningful use of the civil commitment statute for drug dependents could substantially improve the city’s response to the problems of addiction by offering a meaningful treatment alternative to bare incarceration. [Emphasis added.]

Exhibit “B” is a letter from the Deputy General Counsel of the Metropolitan Police Department stating that the police department has no objection to the

. recognition of a limited defense of addiction in small-amount heroin possession cases if the defense is coupled with virtually mandatory in-patient civil commitment treatment programs, to be followed subsequently by out-patient treatment, thus assuring continuing supervisory treatment for those who successfully assert the defense. [Emphasis in original.]

Appellants’ Supplemental Reply Brief on Rehearing refers to this letter and notes:

The Police Department acceptance of the defense is conditioned on a “virtually mandatory” civil commitment program. Appellants have urged throughout this case that such a virtually mandatory program can and should be used upon acquittal, by implementing the 1953 Act.

Even assuming that criminal penalties imposed for possession of illegal drugs assist the effort to stop the flow of illegal drugs by giving the police a bargaining lever to use against drug users in an attempt to learn their source of supply, 59 this benefit to society does not justify penal incarceration rather than treatment of the drug dependent person, and the benefit in no way affects the free will or lack thereof of the drug dependent person. Moreover, the threat of civil commitment for treatment may well be as effective a lever as the threat of penal incarceration.

In sum, there is no plausible explanation for the majority opinion’s unsupported assertion that approval of the affirmative defense of drug dependence would hinder law enforcement efforts.

V. Elemental Justice

The majority also contends that elemental justice does not necessitate recognition of a drug dependence defense because local laws penalizing unlawful possession of narcotics do not provide for mandatory sentences, and because the Superior Court has a partially successful pilot pretrial diversion program for drug dependent persons. The government not only made a similar contention in its Briefs, but added a specific objection to the validity of references to due process of law made in the majority opinion in the panel decision in Franklin v. United States, supra. 60 Although I realize that appellants have not raised a claim specifically based upon the constitutional *442 guarantee of due process of law and that this decision is therefore not dispositive of such a claim, I cannot let these contentions pass unchallenged.

If an individual is arrested for homicide, is medically examined, and is found to have been insane at the time he committed the homicide, the majority’s reasoning leads to the conclusion that to convict that individual of murder and to sentence him to prison would not violate principles of elemental justice because there is no local mandatory penalty for murder and because medical treatment is available before trial for some of those found to be insane. The only difference between the insane individual and the drug dependent person is that the former has the benefit of a recognized affirmative defense and the latter does not.

I can think of few ideas which are “so rooted in the traditions and in the conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934); which embrace “common and fundamental ideas of fairness and right,” Betts v. Brady, 316 U.S. 455, 473 , 62 S.Ct. 1252, 1262 , 86 L.Ed. 1595 (1942); or whose denial “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), as the idea that a person should not be punished if he did not have a fair opportunity to refrain from doing what he did. As Professor Hart has cogently noted, refusal to recognize this idea sometimes “represents an obstinate refusal to recognize that human beings may not be able to control their conduct though they know what they are doing.” 61

VI. The Process of Adjusting the Common Law

The majority opinion citing Powell v. Texas, 392 U.S. 514, 536 , 88 S.Ct. 2145 , 20 L.Ed.2d 1254 (1968), states that “[t]he process of adjustment of the common law, to fit the times, has traditionally been the province of the states.” The precise intent behind this statement is unclear, however, it appears to imply that “states,” rather than this court, should recognize new excuses under common law doctrines. Such an implication is, of course, specious. At the cited page in the Powell opinion, Mr. Justice Marshall is discussing why the United States Supreme Court has not articulated a general constitutional doctrine of mens rea. He points out that the doctrines of actus reus, mens rea, and various excuses, have continually evolved and that if the Supreme Court defined them in constitutional terms, fruitful experimentation in various jurisdictions and the concomitant productive dialogue between law and psychiatry would be halted and forced into a rigid constitutional mold. A careful reading of the Powell opinion makes it clear that there was an intent to encourage, not discourage, experimentation with the common law concept of criminal liability by local courts and by local legislatures rather than merely by legislatures acting alone.

VII. United States v. Moore

The majority opinion specifically states that its authors agree 62 with the decision of the United States Court of Appeals for the District of Columbia Circuit in United States v. Moore, 158 U.S.App.D.C. 375 , 486 F.2d 1139 , cert. denied, 414 U.S. 980 , 94 S.Ct. 298 , 38 L.Ed.2d 224 (1973).

Rather than repeat each argument made in that 121-page decision, I shall merely state that I agree with the views expressed by Judge Wright and his fellow dissenters. Moreover, it is important to note that the present vitality of the 5-4 Moore decision is extremely suspect. Of the five judges *443 who voted to affirm the conviction for possession, only three did so on the ground that the proffered drug dependence defense was invalid. 63 The other two judges who voted to affirm the conviction, Judges McGowan and Leventhal, 64 did not reach the issue of the validity of the proffered defense because they believed that Congress had decided that treatment for drug dependence was to be handled as a matter of disposition under the Narcotic Addict Rehabilitation Act of 1966 (NARA). Subsequently the United States Supreme Court held that NARA’s exclusion from treatment of those persons with two prior felony convictions 65 is constitutional. 66 Because a large number of drug dependent persons have two prior convictions and would thus be excluded from treatment, 67 it may be now that the two judges who voted against recognizing the drug dependence defense, on the ground that treatment under NARA was available, would not vote the same way if the issue were presented to them again.

VIII. Drug Dependence, Free Will and Mens Rea

The majority opinion accurately notes that “[t]he pivotal fact in appellants’ position is that heroin addiction causes or creates in them an ‘overwhelming compulsion’ to possess and use heroin. They posit that the ‘compulsion’ negates ‘free will’ thus removing any meaningful choice, in the legal sense, to refrain from possession or use of narcotics.” Then without any explanation or reference to supporting material, the majority baldly states that it does not agree with appellants’ position. 68

Although the precise etiology of drug dependence (addiction), an interaction of complex psychological, physiological, and sociological components, is not yet known, virtually all experts 69 accept the World *444 Health Organization’s (WHO) definition of “drug dependence” as authoritative. That definition is:

“Drug dependence”: A state, psychic and sometimes also physical, resulting from the interaction between a living organism and a drug, characterized by behavioral and other responses that always include a compulsion to take the drug on a continuous or periodic basis in order to experience its psychic effects, and sometimes to avoid the discomfort of its absence. Tolerance may or may not be present. A person may be dependent on more than one drug. [World Health Organization Expert Committee on Drug Dependence, Nineteenth Report, WHO Tech.Rep.Ser. No. 526, at 16 (1973).]

The WHO definition of “dependence-producing drug” includes both heroin and alcohol. 70 Drug dependence of the “opiate type,” which includes heroin and morphine, is ranked as the most intensive form of drug dependence 71 and is described as

a state arising from repeated administration of morphine, or an agent with morphine-like effects, on a periodic or continuous basis. Its characteristics include :

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

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

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

(4) a physical dependence on the effects of the drug requiring its presence for maintenance of homeostasis and resulting in a definite, characteristic, and self-limited abstinence syndrome when the drug is withdrawn. [WHO Tech. Rep.Ser. No. 273, at 13 (1964) (emphasis added).]

Congress has clearly accepted this definition because it has repeatedly defined an “addict” as:

[A]ny individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction. [ 21 U.S.C. § 802 (1) (1970); emphasis added.] 72

The same definition is used for “drug user” in the D.C. Narcotic Rehabilitation Statute, D.C. Code 1973, § 24-602(a).

Since Congress and medical experts agree that drug dependence is characterized by “a strong compulsion” which reaches the level of loss of “the power of self-control” with reference to the individual’s drug dependence, the question for us is whether this compulsion is strong enough to negate mens rea as to possession and PIC for the addict’s own use. Appellants contend that the compulsion experienced by a narcotic addict is at least as strong as *445 the compulsion felt by other persons in situations where the law now permits an affirmative defense. I agree.

Compulsion was recognized as a defense as early as the fourteenth century. 73 Like the other common law defenses, it was based on the premise that without a free exercise of will, there can be no guilty mind, i. e., if an individual is forced to choose a given course of conduct through a reasonable fear of death or serious bodily harm, he cannot be said to have a blameworthy mind. However, on policy grounds, early common law did not recognize any compulsion, even the threat of death, as a sufficient excuse for the intentional killing of an innocent person. 74

Over the centuries the law has come to recognize a number of situations where an individual lacks “free will” and is therefore not to be held criminally liable for knowingly engaging in prohibited conduct.

The most recent development in this continual evolutionary process is the recognition of an affirmative defense based upon alcohol dependence. In 1966 the United States Court of Appeals for the Fourth Circuit held:

Although his misdoing objectively comprises the physical elements of a crime [public intoxication], nevertheless no crime has been perpetrated because the conduct was neither actuated by an evil intent nor accompanied with a consciousness of wrongdoing, indispensable ingredients of a crime. Morissette v. United States, 342 U.S. 246, 250-252 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952). Nor can his misbehavior be penalized as a transgression of a police regulation — malum prohibitum — necessitating no intent to do what it punishes. The alcoholic’s presence in public is not his act, for he did not will it. It may be likened to the movements of an imbecile or a person in a delirium of a fever. None of them by attendance in the forbidden place defy the forbiddance. [Driver v. Hinnant, 356 F.2d 761, 764 (4th Cir. 1966).]

See also Fultz v. United States, 365 F.2d 404, 407-08 (6th Cir. 1966); Lewis v. Celebrezze, 359 F.2d 398, 399-400 (4th Cir. 1966); Sweeney v. United States, 353 F.2d 10, 11 (7th Cir. 1965); Weaver v. Finch, 306 F.Supp. 1185, 1194 (W.D.Mo.1969); State v. Fearon, 283 Minn. 90 , 166 N.W.2d 720 (1969).

The leading case on this point in our jurisdiction is Easter v. District of Columbia, supra at 35 , 361 F.2d at 52 , where the court stated:

An essential element of criminal responsibility is the ability to avoid the conduct specified in the definition of the crime. Action within the definition is not enough. To be guilty of the crime a person must engage responsibly in the action. Thus, an insane person who does the act is not guilty of the crime. The law, in such a case based on morals, absolves him of criminal responsibility. So, too, in case of an infant. In case of a chronic alcoholic Congress has dealt with his condition so that in this jurisdiction he too cannot be held to be guilty of the crime of being intoxicated because, as the Act recognizes, he has lost the power of self-control in the use of intoxicating beverages. In his case an essential element of criminality, where personal conduct is involved, is lacking. This element is referred to in the law as the criminal mind. See Carter v. United States, 102 U.S.App.D.C. 227 , 235, 252 F.2d 608, 616 , where the subject is well discussed. It is there stated in terms of the common-law axiom, “Actus non facit reum, nisi mens sit rea.” Coke, Third Institute *6, *107.

*446 The portion of the quotation above which relates to an Act of Congress recognizing that a chronic alcoholic loses the power of self-control refers to the definition of “chronic alcoholic” contained in D. C.Code 1961, § 24 — 502, which is identical, in relevant part, to the definition of narcotic “addict” contained in 21 U.S.C. § 802 (1) (1970) and “drug user” contained in D.C.Code 1973, § 24-602(a).

The government argues that because an addict retains “some control” over his conduct, -he cannot assert a defense based upon drug dependence. This is simply not the law in any recognized defense. The insane, chronically alcoholic, and those subject to external duress, all retain some control over their conduct. A total loss of control would render an individual nothing more than a vegetable. This is why Congress has defined an “addict” or “drug user” as one:

[W]ho is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction. [ 21 U.S.C. § 802 (1) (1970); D.C.Code 1973, § 24 -602(a); emphasis added.]

Thus we are concerned with a loss of control “with reference to his addiction,” i. e., the use of narcotics, not a complete loss of all control. 75

Although some addicts may retain the ability to choose methadone maintenance rather than continued use of heroin, 76 they should not be precluded from raising a defense of drug dependence. Sick persons, *447 whether mentally ill, alcohol dependent, epileptic, etc., are not precluded from asserting a defense because they failed to take advantage of available treatment. The relevant inquiry is into the defendant’s mental and physical condition at the time of the alleged offense, 77 i. e., the addict’s “power of self-control with reference to his addiction.”

There is little doubt that the compulsion felt by a drug addict is at least as strong as that felt by a chronic alcoholic, 78 and that while an addict’s behavior controls are not totally destroyed, they are certainly substantially impaired.

IX. Conclusion

For the foregoing reasons, I find the majority opinion in this case to be erroneous and I, therefore, dissent from it.

We judges should not be dissuaded from our responsibility because the suggested defense of drug dependence does not neatly fit within the four corners of definitions of recognized excuses from criminal liability. It is not enough to say that drug dependence does not fall squarely within the definition of “insanity,” “compulsion,” or “duress,” and therefore it cannot be recognized.

The genius of the common law has been its responsiveness to changing times, its ability to reflect developing moral and social values. Drawing upon the past, the law must serve — and traditionally has served — the needs of the present .... [United States v. Freeman, 357 F.2d 606, 624-25 (2d Cir. 1966).]

. This brief history of the development of common law mens rea in Anglo-American criminal law was drawn primarily from the following sources which are not cited in other footnotes to this section. J. Rawls, A Theory of Justice 235-43 (1971); F. Jacobs, Criminal Responsibility (1971); H. L. A. Hart, Punishment and Responsibility (1968); G. Williams, Criminal Law: The General Part (2d ed. 1961); J. Biggs, The Guilty Mind 79-119 (1955); 2 Holdsworth, History of English Law (3d ed. 1927); 2 Pollock & Maitland, History of English Law (2d ed. 1923); 2 J. Stephen, A History of the Criminal Law of England 99, 183 (1883); M. Hale, Pleas of the Crown (1675); Greenwalt, “Uncontrollable” Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 Colum.L.Rev. 927, 937-79 (1969); Dubin, Mens Rea Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility, 18 Stan.L.Rev. 322 (1966); Remington & Helstad, The Mental Element in Crime — A Legislative Problem, 1952 Wis.L.Rev. 644, 648-52; Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905 (1939); Chesney, The Concept of Mens Rea in the Criminal Law, 29 J.Crim.L. & Criminology 627 (1939); Turner, The Mental Element in Crimes at Common Law, 6 Camb.L.J. 31 (1936); Levitt, The Origin of the Doctrine of Mens Rea, 17 Ill.L.Rev. 117 (1922).

. Coke, Third Institute, 6, 56, 107 (1641).

. 4 W. Blackstone, Commentaries *21-22, *27.

. See, e. g., J. Bentham, An Introduction to Morals and Legislation, chs. 12-15 (1789).

. 4 W. Blackstone, Commentaries *21-22.

. Bentham, supra note 4, at ch. 13, para. 9.

. . “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong. . . . ” Pound, Introduction to Sayre, Cases on Criminal Law (1927).

. United States v. Brawner, 153 U.S.App.D.C. 1 , 471 F.2d 969 (1972).

. Allen v. United States, 150 U.S. 551 , 14 S.Ct. 196 , 37 L.Ed. 1179 (1893).

. Martin v. State, 31 Ala.App. 334 , 17 So.2d 427 (1944).

. “Coercion” is really a specific type of compulsion relating to the husband’s exercise of influence over his wife. See R. Perkins, Criminal Law 909-18 (2d ed. 1969).

. People v. Freeman, 61 Cal.App.2d 110 , 142 P.2d 435 (1943).

. State v. McCullough, 114 Iowa 532 , 87 N.W. 503 (1901).

. United States v. McGlue, 26 Fed.Cas.No. 15,679, p. 1093 (C.C.D.Mass.1851); United States v. Drew, 25 Fed.Cas.No.14,993, p. 913 (C.C.D.Mass.1828).

. Pribble v. People, 49 Colo. 210 , 112 P. 220 (1910).

. Fain v. Commonwealth, 78 Ky. 183 , 39 Am.R.,213 (1879).

. State v. Fearon, 283 Minn. 90 , 166 N.W.2d 720 (1969); Easter v. District of Columbia, 124 U.S.App.D.C. 33 , 361 F.2d 50 (1966) (en banc).

.“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. . . . But, in 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 . . . .” Robinson v. California, 370 U.S. 660, 666 , 82 S.Ct. 1417, 1420 , 8 L.Ed.2d 758 (1962); Salzman v. United States, 131 U.S.App.D.C. 393 , 399-401, 405 F.2d 358, 364-66 (1968) (Wright, J., concurring). See Seney, “When Empty Terrors Overawe” — Our Criminal Law Defenses, 19 Wayne L.Rev. 947 (1973).

See Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey, 54 S.Cal.L.Rev. 1227 (1966); Keedy, Irresistible Impulse as a Defense in the Criminal Law, 100 U.Pa.L.Rev. 956 (1952).

. Appellants’ Supplemental Brief on Rehearing at 10.

. Majority op. at 406.

. Id. at 403 .

. Id. at 411 .

. Id. at 405 .

. Id. at 403-412 .

. See, e. g., Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731 (1959); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); ALI, Model Penal Code § 2.05 (Proposed Official Draft 1962).

. 158 U.S.App.D.C. at 486 n. 221, 486 F.2d at 1250 n. 221.

. Brief for Appellee at 11. “Congress has not expressly provided that addiction shall not be an affirmative defense to a charge of possessing illicit narcotics or any other offense.” (Elmphasis in original.)

. Majority op. at 407.

. See H.R.Rep.No.1505, 92d Cong., 2d Sess. (1972) [to accompany H.R. 11268]. No action was taken on the report and no action was taken in the Senate on S. 2692.

. To date, the proposed legislation has not been reintroduced in the 94th Congress.

. H.R.Rep.No.1444, 91st Cong., 2d Sess., pt. 1, 9 (1970).

. Id. at 10.

. Supplemental Brief and Appendix for Ap-pellee at 40.

.“It shall be unlawful for any person knowingly or intentionally to possess a controlled substance .... Any person who violates this subsection shall be sentenced to a term of imprisonment . . . .”

. “The Congress intends that Federal criminal laws shall be enforced against drug users as well as other persons . . . .” D.C.Code 1973, § 24-601.

. D.C.Code 1973, § 24-603 (b).

. Supra p. 433.

. Another tactic formerly employed by the United States Attorney as a matter of policy was to permit an addict found in possession of a small quantity for his own use to plead guilty to a felony possession count “in the hope that the court will thereafter invoke the provisions of title II of the Narcotic Rehabilitation Act of 1966 ( 18 U.S.C. § 4251 et seq.).” Hearings on Drug Abuse in the Washington Area Before the Senate Comm. on the District of Columbia, 91st Cong., 1st Sess., pt. 2, 370 (1969) (statement of David G. Bress, former United States Attorney for the District of Columbia).

. Majority op. at 403.

. The President’s Advisory Commission on Narcotic and Drug Abuse, Final Report 40 (1963). See also Holahan, The Economics of Heroin, in Drug Abuse Survey Project, Dealing with Drug Abuse — A Report to the Ford Foundation 278-95 (1972) [hereinafter, Ford Foundation Rep.]; National Commission on Reform of Federal Criminal Laws, Working Papers 1132, 1136-37 (1970) (Note on Dependence as a Defense to Unlawful Possession); Canadian Commission of Inquiry into the Non-Medical Use of Drugs, Interim Report 517 (1970); The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse 158 (1967) [hereinafter, Presidential Task Force Rep.]; W. N. Seymour, The Young Die Quietly 55 (1972); A. Lindesmith, The Addict and the Law 61-62 (1965); I. Chein, D. Gerard, R. Lee & E. Rosenfeld, The Road to H (1964); Proceedings of the White House Conference on Narcotic and Drug Abuse 229-30 (1962); W. Eldridge, Narcotics and the Law (2d rev. ed. 1967); L. Kolb, Drug Addiction: A Medical Problem (1962); Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs, Drug Addiction: Crime or Disease? 45 (1961) [hereinafter, ABA-AMA Comm. Rep.]; Hearings on Heroin Importation, Distribution, Packaging and Distribution Before the House Select Comm. on Crime, 91st Cong., 1st Sess. (1970).

. See, e. g., DuPont, Profile of a Heroin-Addiction Epidemic, N.Eng.J. of Med. 320-24 (Aug. 5, 1971).

See generally Staff Study on Drug Abuse in the Washington Area 1970, prepared for the Senate Comm, on the District of Columbia, 91st Cong., 2d Sess. (Committee Print 1970); Hearings on Nareotics-Crime Crisis in the Washington Area Before the Senate Comm, on the District of Columbia, 91st Cong., 2d Sess., pt. 12 (1970).

. ABA Special Committee on Crime Prevention and Control, New Perspectives on Urban Crime 26 (1972) [hereinafter, ABA Crime Rep.].

. Id. at 50. See E. Brecher & The Editors of Consumer Reports, Licit & Illicit Drugs 528 (1972).

. See, e. g., Watson v. United States, 141 U.S.App.D.C. 335, 338 , 439 F.2d 442, 445 (1970).

. ABA Crime Rep., supra note 41, at 28.

. Jaffe, Drug Addiction and Drug Abuse, in the Pharmacological Basis of Therapeutics 283 (4th ed. L. Goodman & A. Gilman eds. 1970) [hereinafter, Jaffe on Drug Addiction],

. Id.; W. N. Seymour, The Young Die Quietly, supra note 39, at 77; D. Louria, The Drug Scene 5 (1968); Presidential Task Force Rep., supra note 39, at 52; I. Chein, The Road to H, supra note 39; Cohen, Control of Drug Abuse, 34 Fed.Probation 32 (1970); Rosenthal, Two Problems and a Lesson for the Draftsman of Drug Crimes Legislation, 24 Sw.L.J. 407 (1970); Bell, Drug Addiction, 22 Bull, of Narcotics 21 (1970); Skolnick, Coercion to Virtue: The Enforcement of Morals, 41 S.Cal.L.Rev. 588 (1968).

. DuPont, Profile of a Heroin-Addiction Epidemic, supra note 40.

. ABA Crime Rep., supra note 41, at 33. See also J. Cull & R. Hardy, Types of Drug Abusers and Their Abuses (1974); Lewis & Glaser, Lifestyles Among Heroin Users, 38 Fed.Probation 21 (March 1974); Rubington, Two Types of Drug Use, in National District Attorney’s Ass’n Drug Dependence and Abuse Resource Book 149-200 (1971).

. See, e. g., In re De La O, 59 Cal.2d 128 , 28 Cal.Rptr. 489 , 378 P.2d 793 (1963).

. See, e. g., D.C.Code 1973, § 24-609. See generally Kramer, The State Versus the Addict: Uncivil Commitment, 50 B.U.L.Rev. 1 (1970); Aronowitz, Civil Commitment of Narcotics Addicts, 67 Colum.L.Rev. 405 (1967).

. Greenwalt, “Uncontrollable” Actions and the Eighth Amendment: Implications of Powell v. Texas, supra note 1 , at 958.

. National Commission on Marihuana and Drug Abuse, Second Report: Drug Use in America 256 (1973).

. Id., at 273.

. ABA Crime Rep., supra note 41, at 58; Presidential Task Force Rep., supra note 39, at 226; Arthur D. Little, Inc., Drug Abuse and Law Enforcement — A Report to the President’s Commission on Law Enforcement and Administration of Justice 47-48 (1967); President’s Commission on Crime in the District of Columbia, Report 572-73 (1966); D.Maurer & V. Vogel, Narcotics and Narcotic Addiction 179-80 (3d ed. 1967); ABA-AMA Comm.Rep., supra note 39, at 85.

*440 united States District Court Judge Richey recently noted the incarceration of an addict “will do nothing to solve his problem of drug addiction or his underlying problems.” United States v. Turner, 337 F.Supp. 1045, 1047 (D.D.C.1972).

. D. Maurer & V. Vogel, supra note 54, at 172.

. H. L. A. Hart, Punishment and Responsibility, supra note 1, at 153; J. Rawls, A Theory of Justice, supra note 1, at 241.

. See text infra at note 60.

. 116 Cong.Rec. 33,605 (1970) (remarks of Rep. Springer).

One presidential commission stated that the objectives of narcotic law enforcement “are *441 to reach the highest possible sources of drug supply and to seize the greatest possible quantity of illicit drugs before use.” President’s Commission on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society 218 (1967).

. The National Commission on Marihuana and Drug Abuse has pointed out that such efforts are often ineffective because nontraf-ficking addicts usually know little about men higher up in the drug distribution chain. Second Report: Drug Use in America 255 (1973).

. Supplemental Brief and Appendix for Appellee at 37-38. References appear in the slip opinion at 23, 29, 32, and 39.

. H. L. A. Hart, Punishment and Responsibility, supra note 1, at 153. See Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107; Comment, Criminal Responsibility and the Drug Dependence Defense — A Need for Judicial Clarification, 42 Fordham L.Rev. 361, 366 (1973).

. Majority op. at 403.

. Judges MacKinnon, Robb, and Wilkey.

. United States v. Moore, 158 U.S.App.D.C. at 395 , 486 F.2d at 1159 ; United States v. Harrison, 158 U.S.App.D.C. 229, 232 , 485 F.2d 1008, 1010 (1973).

. 18 U.S.C. § 4251 (f)(4) (1970).

. Marshall v. United States, supra.

. See Task Force on Federal Heroin Addiction Programs, Federal Drug Abuse Programs, A Report Submitted to the Criminal Law Section of the ABA and Drug Abuse Council 87, 103 (1972) ; Comptroller General of the United States, Report to the Congress on the Limited Use of Federal Programs to Commit Narcotic Addicts for Treatment & Rehabilitation, reprinted in Hearings on Treatment & Rehabilitation of Narcotics Addicts Before Subcomm. No. 4 of the House Comm. on the Judiciary, 91st Cong., 1st Sess., pt. 1 at 209, 217 (1971).

. Majority op. at 410.

. See, e. g., D. Maurer & V. Vogel, Narcotics and Narcotic Addiction 37-44 (4th ed. 1973); W. Eldridge, Narcotics and the Law, supra note 39, at 2. See generally R. Blum, D. Bovet, J. Moore et al., Controlling Drugs (1974).

Dr. Jerome H. Jaffe has defined “addiction” to mean:

[A] behavioral pattern of compulsive drug use, characterized by overwhelming involvement with the use of a drug, the securing of its supply, and a high tendency to relapse after withdrawal. Addiction is thus viewed as an extreme on a continuum of involvement with drug use and refers in a quantitative rather than a qualitative sense to the degree to which drug use pervades the total life activity of the user. In most instances it will not be possible to state with precision at what point compulsive use should be considered addiction. Addiction in this frame of reference cannot be used interchangeably with physical dependence. It is possible to be physically dependent on drugs without being addicted and to be addicted without being physically dependent. [Jaffe on Drug Addiction, supra, note 45, at 277; emphasis in original.] [See for similar statements, A. Lindesmith, The Addict and the Law, supra note 39; ABA-AMA Comm.Rep., supra note 39, at 45-46.]

United States District Court Judge Gasch offered the following definition of “addict” in United States v. Lindsey, 324 F.Supp. 55, 59 (D.D.C.1971):

[O]ne who lacks the ability to abstain from taking or using narcotics or is utterly unable to control his actions in regard to the taking of narcotic drugs. .

. WHO Tech.Rep.Ser. No. 626, at 17 (1973).

. WHO Tech.Rep.Ser. No. 84, at 10-11 (1954).

. See, e. g., 18 U.S.C. § 4251 (a) (1970); 28 U.S.C. § 2901 (a) (1970); 42 U.S.C. § 3411 (a) (1970). The Public Health Service Act, 42 U.S.C. § 201 (q) (1970), defines “drug dependent person” as

a person who is using a controlled substance (as defined in section 802 of Title 21) and who is in a state of psychic or physical dependence, or both, arising from the use of that substance on a continuous basis. Drug dependence is characterized by behavioral and other responses which include a strong compulsion to take the substance on a continuous basis in order to experience its psychic effects or to avoid the discomfort caused by its absence. (Emphasis added.)

Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Government Operations, 88th Cong., 2d Sess., pt. 5, at 1300-01 (statement of Dr. Herbert A. Raskin); ABA-AMA Comm.Rep., supra note 39, at 45.

. 1 M. Hale, Pleas of the Crown, supra note 1, at 50.

. 4 W. Blackstone, Commentaries *30 (“he ought rather to die himself than escape by the murder of an innocent”) ; 1 M. Hale, id. at 51.

. The Model Penal Code proposes a “substantial capacity” standard which has been adopted by the Second Circuit. United States v. Freeman, 357 F.2d 606 (2d Cir. 1966).

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity ... to conform his conduct to the requirements of law. [ALI, Model Penal Code § 4.01(1) (Proposed Official Draft 1962).]

The drafters offer the following explanation of this section:

The law must recognize that when there is no black and white it must content itself with different shades of gray. The draft, accordingly, does not demand complete impairment of capacity. It asks instead for substantial impairment. This is all we think that candid witnesses, called on to infer the nature of the situation at a time they did not observe, can ever confidently say, even when they know that a disorder was extreme. [ALI, Model Penal Code, Comments § 4.01 at 158 (Tent. Draft No. 4, 1955).]

See also Model Penal Code § 2.01(1) :

A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

The National Commission on Reform of Federal Criminal Law recommended that there be an affirmative defense to a prosecution for possession of an abusable drug if:

[T]he drug was possessed for personal use by a defendant who was so dependent on the drug that he lacked substantial capacity to refrain from use. [National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 1824(2) (1970) ; emphasis added.]

That section was deleted, however, in the Commission’s Final Report (1971) without comment.

See generally United States v. Brawner, supra note 7 .

. Methadone is a synthetic narcotic which prevents withdrawal and satiates the addict’s craving for heroin. However, there is no euphoria associated with oral administration of methadone and it is also an addictive drug. Consequently:

[T]here are significant numbers of addicts who seem unwilling to substitute methadone for heroin. After studying a group of criminal recidivist addicts in the New York City jail, Dr. Dole concluded that only 50 percent of those crime-prone addicts would accept methadone instead of heroin. Dr. Henry Gollance, one of Dr. Dole’s colleagues, told the House Select Committee on Crime that methadone maintenance might be effective for only 25 percent of New York’s entire addict population. [ABA Special Committee on Crime Prevention and Control, New Perspectives on Urban Crime 56-57 (1972).]

. See Easter v. District of Columbia, supra note 16 , at 36, 361 F.2d at 53 ; United States v. Drew, supra note 13, at 914.

. As noted earlier in the text, supra notes 70 and 71, alcohol is classified as a “dependence-producing drug” by the WHO, and drug dependence of the opiate type is ranked as the most intensive form of drug dependence. See D. Maurer & V. Vogel, Narcotics and Narcotics Addiction, supra note 69, at 47; K. Jones, L. Shainberg & C. Byer, Drugs and Alcohol 144 (2d ed. 1973); M. Glatt, Alcoholism and Drug Dependence-Under One Umbrella?, in World Dialogue on Alcohol and Drug Dependence 311, 329-31 (E. Whitney ed. 1970); Eddy, Halback, Isbell & Seevers, Drug Dependence: Its Significance and Characteristics, 32 Bull, of WHO 721, 725-28 (1965); A. Lindesmith, Addiction & Opiates 4 (1968); Interdepartmental Committee on Narcotics, Report to the President of the U. S. 3-4 (1961).