by Edward M. Brecher and the Editors of Consumer
Very few
countries followed the United States policy of relying on
prohibition laws to curb the narcotics menace. But Canada did,
and so did the forty-eight states and the Canadian provinces. The
failure of those prohibition laws did not lead to a change in
policy. Instead, newer and stricter laws were enacted. By 1970,
Congress had passed 55* federal drug laws to supplement the 1914
Harrison Act.1 A list of the antinarcotics laws voted by the
fifty state legislatures would run far into the hundreds.
Canada's Parliament and provincial legislatures similarly amended
old laws and passed new ones over the years .2 * This number,
moreover, is incomplete in a significant respect. It excludes the
Volstead (Alcohol Prohibition) Act of 1919--and the many
subsequent laws designed to stamp out the drinking of alcohol
between 1920 and 1933, when-alcohol was also an illicit drug. Many of the
United States federal and state laws, and the Canadian laws, were
passed to stiffen the penalties for narcotics offenses. The
maximum penalty specified in the three 1909 federal laws was two
years I imprisonment. The 1914 Harrison Act increased this
maximum to five years. In 1922 a maximum federal penalty of ten
years' imprisonment was enacted.* Subsequently state laws were
stiffened to provide twenty-year, forty-year, and even
ninety-nine-year maximum sentences. Life imprisonment and the
death sentence were added to both federal and some state
antinarcotics laws during the 1950s. * In 1922,
Canada added whipping and deportation to its penalties.3 Increased
maximums, however, did not curb the narcotics black market. The
chief effect of such penalties appeared to be as a kind of
tranquilizer or opiate on public opinion, persuading the public
that severe measures were at last being taken against addiction. When high
maximum sentences failed, "softhearted" judges,
unwilling to invoke the maximum penalties, were blamed. In fact,
few offenders actually drew maximum sentences. Hence federal
laws, many state laws, and the Canadian laws were amended to
provide high mandatory minimum sentences. Under these laws, a
judge could not levy a lesser sentence after a defendant pleaded
guilty or was convicted. Neither probation nor a suspended
sentence was allowed.* * The
extreme mandatory punishment provision was enacted in Connecticut
in 1955; it decreed that a judge must impose life imprisonment
for a third offense-even if all three offenses were merely for
possession of a narcotic (or marijuana).4 Referring to similar
Canadian proposals, the 1956 British Columbia report noted:
"One is impressed with the fact that imprisonment, even for
life, is recommended for certain people because they prefer
heroin to alcohol!" 5 Dr. Stanley
Yolles, then director of the National Institute of Mental Health,
testified against mandatory minimum sentences before the House
Select Committee on Crime in the fall of 1969: This type of law has no place in a system devised to
control an illness. It has no place being used for
individuals who are addicted to drugs. This type of law angers us as doctors, because it should
not apply to people who are sick. It destroys hope on the
part of the person sentenced-hope of help, hope for starting
a fresh life. It's totally contradictory to the whole concept
of medicine. A prison experience is often psychologically
shattering. The young person is exposed to sexual assault. He
may for the first time in his life learn criminal ways. Such
mandatory sentences destroy the prospects of rehabilitation. ... I feel that judges have to be free to deal with
violators of drug laws as individuals, not as a class of
criminals. In my field, treatment is always tailored to the
individual's needs. I feel the same should be true in
dealing, under the law, with addicts and drug abusers. Why on
earth must we class the street addict, who sells to support
his habit, with the big operator who pushes the narcotics
wholesale? The former is a sick person who needs medical help
and rehabilitation. The latter is a criminal who is living
off the misery of the addicts. Many laws on the books don't
allow for this distinction. As a result, what we have in our prisons and Federal
hospitals, like Lexington, are many young people serving
irrationally long sentences, some up to 20 years. In no other
field has there been such a punitive approach. And let's not
forget this is an illness mainly of young people the very age
group with the highest potential for rehabilitation, yes, and
cure. These laws came about by sometimes well-intentioned people
who placed too much confidence in the principle of deterrents
But if mandatory penalties were that effective, what is the
rationale for limiting them only to drug abuse offenders? Why
not extend them to thieves, burglars, murderers? Even
murderers with life sentences can come up for parole after
about seven vears.6 Soon after this
testimony, the acting chairman of the House subcommittee before
which Dr. Yolles had testified-Congressman Albert Watson of South
Carolina-stated on the floor of the House: "Dr. Yolles's views are an affront to every decent,
law-abiding citizen in America. At a time when we are on the
verge of a narcotics crisis, a supposedly responsible Federal
official comes along with the incredibly ridiculous idea of
dropping mandatory jail sentences for those who push dope,
even for those adults selling hard drugs to minors ." 7 In a subsequent
interview, Congressman Watson added: "I have called for [Dr.
Yolles's] resignation because of the simple belief that it's too
much to ask the American taxpayer to pay the salary of any
individual who publicly espouses a position which we consider so
detrimental in our fight to control the drug abuse
problem...." 8 When mandatory
minimum sentences failed to close down the black markets,
"softhearted" parole boards were blamed. Congress and a
number of state legislatures accordingly passed laws depriving
narcotics law violators of eligibility for parole * or time off
for good behavior. An addict sentenced to life imprisonment under
these no-mitigation-of-sentence laws would actually have to spend
the rest of his life in prison. *Depriving
addicts of parole eligibility meant that at the end of their
terms they were simply turned loose on the streets without even
nominal parole supervision. The first addict
sentenced to life imprisonment under the federal nomitigation law
was twenty-one years old, born in Mexico, epileptic, with an I.Q.
of 69. He had recently been released after fourteen months in a
California state mental hospital. His offense was selling small
amounts of heroin to another addict-a seventeen-year-old employed
as a stool pigeon by the Federal Bureau of Narcotics.9 it was the
defendant's first federal offense, and his first narcotics
offense. Fortunately, the Constitution gives the President the
power-which Congress cannot take away-"to grant reprieves
and pardons." President John F. Kennedy reduced this and a
number of similar sentences. What have been
the accomplishments during the past half-century of the legal
provisions described here and in the next few pages? The fact is
that the use of such methods has not made heroin unavailable or
even difficult to secure. The main accomplishment of law
enforcement has been to raise black-market prices. At times,
law-enforcement officials have pointed with pride to this
achievement. Thus Federal Narcotics Commissioner Harry J.
Anslinger and United States Attorney William F. Tompkins noted in
1952 that heroin, which had been available in the United States
during the early 1920s at $25 to $50 an ounce, and which was
still available in Turkey at $100 an ounce, was currently selling
in the United States at $3,006 an ounce."' More recently,
however, even law-enforcement officials have come to realize that
this price escalation is at best a mixed blessing. As one New
York City police precinct commander told a New York Times
reporter in September 1969, when prices increase, addicts simply
steal more.11 Another common
explanation of the failure of the most Draconian laws to close
down or even seriously to curtail the black market concerned the
difficulties of securing a conviction in court. Hence various
laws have been passed and legal principles developed to make
conviction of narcotics offenders surer and easier. A typical
example is the way in which the verb "to sell" and the
noun "sale" have been legally redefined. One state court,
for example, has held that "The 'sale' of narcotics
prohibited by criminal statutes is much broader in scope than the
concept of a sale which obtains in other branches of the law. It
may include a transfer by gift as well as one for consideration
in money." 12 Another opinion
holds that "a mere gift" or even "an offer to
sell" constitutes a sale if the product in question is
narcotics, "notwithstanding the fact. that no consideration
is paid or that the sale is not fully completed by payment of the
agreed price." * 13 * A 1927
Canadian law included under "sale" the sale of
substances represented to be narcotics-even if they were innocent
substances.14 Another device
to make conviction easier is embodied in a series of state and
federal laws designed to shift the burden of proof in narcotics
cases from the prosecution to the defense. A 1922 federal law and
some similar state laws, for example, provide that the
prosecution need not prove that the defendant is in illegal
possession of narcotics; the burden is on the defendant to prove
that his possession is legal.* Similarly, various
"presumptions of law" have been built into the
narcotics statutes. In a trial for possession of heroin, for
example, it is a "presumption of law" (which the
defendant must rebut if he can) that the heroin was smuggled into
the country, and that the smuggling occurred after passage of the
law prohibiting the importation of heroin. * "Whenever
on trial for a violation of this subsection the defendant is
shown to have or to have bad possession of the narcotic drug,
such possession shall be deemed sufficient evidence to authorize
conviction unless the defendant explains the possession to the
satisfaction of the jury. " 15 Under some state
laws, an intent to provide narcotics to a minor is punishable by
imprisonment even though no narcotics are in fact provided. And
New York State has made it a crime to "loiter for the
purpose of using narcotics," even though no narcotics are
used, and even though the actual use of narcotics is not a
crime."' Conviction is
also made easier by a wide range of laws making narcotic offenses
out of ancillary matters-such as selling, or buying, or even
possessing without a prescription a hypodermic syringe, or
needle, or other equipment for the administration of narcotics.
Hundreds of persons each year in New York City alone are
convicted of such "narcotic offenses." When these and
other efforts to make narcotics convictions easier failed to curb
the black market, various "status laws" were enacted.
These laws made it a crime merely to be an addict; it was not
even necessary to possess a drug or a syringe in order to be
sentenced to imprisonment. At this point, however, the Supreme
Court called a halt; it ruled in 196-9 that imprisonment merely
for being an addict was cruel and unusual punishment prohibited
by the Bill of Rights to the Constitution.* 17 * The 1962
decision did not, however, remove the taint of criminality from
addiction. Both purchase and possession of narcotics can still be
punished, in part on the theory that anyone possessing narcotics
is in a position to sell them. It is, of course, impossible to
take a narcotic without first possessing it. At most, the 1962
Supreme Court decision changes the kind of evidence which the
police must assemble to secure the criminal conviction of an
addict. New York,
California, and the federal government have since gotten around
this decision by imprisoning ("confining") defendants
in closed institutions called "rehabilitation centers."
The imprisonment procedure is called "civil
commitment," thus avoiding constitutional restraints. The laws making
conviction of narcotics offenders easier have been accompanied by
laws making the arrest of narcotics suspects easier. If a
policeman suspects a man, for example, of having committed a
narcotics offense, he can arrest him without a warrant.
Ordinarily search warrants may be served only by day; a special
provision of some narcotics laws makes it legal to serve a
narcotics search warrant at any hour of the night as well. The
Nixon administration's 1970 "no-knock law," permitting
narcotics agents under certain circumstances to enter private
premises without knocking, was merely the most recent of these
many futile efforts to curb narcotics addiction by facilitating
arrests. All of the above
approaches are based on a simple premise: that arresting,
convicting, and imprisoning a narcotics addict will deter him and
others from using narcotics. The 1956 British Columbia study
provides cogent evidence against this premise. On the basis of
many kinds of data, Dr. Stevenson and his associates demonstrated
that about 900 addicts were subject to criminal sanctions in
British Columbia in 1955.111 (Doctors, nurses, and other health
professionals, whose addiction was associated with easy access to
narcotics, as well as those addicted through medical treatment,
were excluded from the total, since they were less harshly
punished in Canada at that time.) Of the 900 arrestable addicts,
516 were sentenced to prison between September 1, 1954, and April
15, 1956-a period of 19 % months. Quite a few, indeed, were
sentenced two or even three times during that brief period -so
that the total number of prison sentences imposed came to 755.
And quite a few of the 900 addicts were immune from arrest and
conviction during the 19% months of the study because they spent
the entire period in prison. Of 100
consecutive addicts admitted to prison during the last three
months of the study, 56 had been imprisoned at least once before
during the previous 16% months. Indeed, among these 100 convicted
addicts, only three were serving their first term, "many of
the remainder having had from five to twenty previous
convictions." 19 On an average
day, the British Columbia report continued, 550 of the province's
900 addicts were in prison. Thirty-two narcotics officers were
employed full time in suppressing the narcotics traffic-an
average of one full-time narcotics officer for every eleven
addicts at large. Yet the number of addicts did not decrease. Not
a few addicts, the report noted, were "again sentenced to
prison only a few weeks after completing penitentiary sentences
of two to five years." 20 Imprisonment, in short-even on so
intensive a scale as this-is not a cure for addiction, or even an
effective deterrent. Nor is a ratio of one full-time narcotics
officer for every eleven addicts sufficient to curb a black
market. Statistics for
cities in the United States are rarely so complete or so
reliable, but they point in the same direction. A recent example
is New York City, where the police department markedly stepped up
its antinarcotic activities during the first ten months of 1969.
The number of men assigned to the narcotics division was
increased from 340 to 500; all other members of the force were
instructed to be on the alert for narcotics offenses; and other
new measures were introduced. The results were superficially
impressive: narcotics arrests rose from 18,764 during the first
ten months of 1968 to 27,868 during the first ten months of
1969-a rise of almost 50 percent. When David
Burnham of the New York Times interviewed police officials
concerned with the narcotics drive, however, he found little
optimism. The officials told Burnham they found "no evidence
that the increased police effort was having much of an impact on
the availability of drugs." "The only
way you would know the increased arrests were really making a
dent is if there was a drug panic on the street-which there
isn't," Burnham quoted one police official as explaining.
"The use of illegal drugs is almost completely a medical
problem, which the police are unable to handle. But until the
public comes to understand this fact, we'll continue to go
through the motions ." 21 Another
police official added: "You could have 100,000 cops and not
stop the drugs." In 1971, another
antinarcotics drive was launched in New York City; but by
September of that year its failure was generally admitted. Nine
hundred pounds of heroin-nearly 40 million 10-milligram doses-had
been seized in New York between May and September, United States
Attorney Whitney North Seymour, Jr., announced. This was nearly
three times the total amount of heroin seized by the United
States Bureau of Customs at all borders during the entire year
ending June 30, 1970. But the heightened law-enforcement efforts
and the vast increase in heroin seizures had not made "the
slightest ripple" in the heroin supply of the metropolitan
area. Prices had not gone up. "The suppliers are able to
meet the demand regardless of what we do on the law-enforcement
part," Mr. Seymour was quoted as saying.22 The same has
been true with only temporary exceptions ever since 1914. Indeed,
after more than a half-century of intensive law-enforcement
efforts, this "success" can be claimed: While the
population has doubled, the number of addicts has apparently
increased only moderately. During the ten
years following passage of the Harrison Act, estimates of the
number of opiate addicts in the United States at the time it was
passed ranged from 100,000 to 1,000,000. Opponents of the
Harrison Act argued that there were only 100,000 addicts or so
before 1914 and that addiction was on the increase; proponents of
the law alleged that there had been a million addicts before 1914
and that the number was declining. Neither group offered evidence
to support its figures. In 1924 the
United States Public Health Service published the estimate of
Drs. Lawrence Kolb and A. G. Du Mez. In contrast to others, Kolb
and Du Mez collected and studied reliable data from citywide and
statewide surveys, from duties paid on opiate imports, from
examination of military recruits, and from other sources. They
were able to demonstrate that the number of opiate addicts in the
United States prior to the Harrison Act was certainly less than
246,000, and probably in the vicinity of 215,000.23 With respect to
the number of opiate addicts in the United States in 1971, most
estimates start with the number of "active" addicts
"known to the Bureau of Narcotics and Dangerous Drugs."
This number stood at 68,864 on December 31, 1970, tip from 68,088
a year earlier. This, of course, is a woeful understatement; in
some cities more addicts have applied for methadone maintenance
treatment of their addiction (see Chapter 14) than are found on
the bureau list for those cities. The question is by what factor
the bureau list must be multiplied to achieve a realistic
estimate. Using what it
calls a "capture-recapture method," the Federal Bureau
of Narcotics and Dangerous Drugs concluded in 1971: ". . .
It is virtually certain that the number of addicts in 1969 falls
somewhere between 285,000 and 345,000. The best estimate of the
number of addicts for that year is 315,000." 24 The estimate
of the National Institute of Mental Health in 1971, based on a
wide range of data, was 250,000 addicts.25 In this Report, we use
both the bureau and NIMH estimates in placing the number of
addicts at between 250,000 and 315,000 in 1971. The only
conclusion possible from either the bureau estimate or the NIMH
estimate is that the decades of enforcement of the Harrison Act
and of countless other state and federal laws designed to stamp
out opiate addiction have been a losing battle. There were almost
certainly more opiate addicts in the United States from 1969 to
1971 than in 1914. And their status, of course, was far worse. The per capita
addiction rate, it is true, has declined since 1914-that is,
addiction has not increased as rapidly as the population-but at a
disastrous cost in human suffering, and in social disorder. Three
basic conclusions can be drawn from this brief review of United
States narcotics legislation and law enforcement: We shall
consider alternative approaches later in this Report. Chapter 9.
"Tightening up" the Harrison Act
