On petition for writ of certiorari to the United States Court of
Appeals for the Fourth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs,
dissenting.
Petitioner was convicted of two counts of distributing heroin in
violation of 21 U.S.C. 841(a)(1); he later pleaded guilty to a
third count. After petitioner's plea on the third count, the
District Court sentenced him to concurrent 15-year terms on the
three counts, recommending that petitioner be given drug addition
treatment at the Federal Youth Center at Ashland, Kentucky.
Page 414 U.S.
1045 , 1046
It refused, however, to sentence petitioner under the provisions
of the Narcotics Addict Rehabilitation Act, 18 U.S.C. 4251 et seq.
Petitioner claims that in the circumstances of this case the trial
judge abused his discretion in refusing to sentence him under the
NARA.
The three charges against petitioner grew out of three
transactions in which he acted as a middleman, purchasing heroin
from two different wholesalers for a federal agent. Petitioner
received only a total of $15 from the three sales, which was used
to buy heroin for his own personal use. Petitioner also retained
some of the drug he had purchased for his own personal use.
The District Court refused to sentence petitioner under the NARA
with the possibility of early release to the community because he
had 'sold' heroin, and was not just a user. [
Footnote 1]
Under 4251 of the NARA, individuals are generally not 'eligible'
for NARA sentencing if they have sold narcotics; Congress, however,
created an express exception for those who sold primarily to
support their own addiction. Section 4252, on which the Court of
Appeals relied in affirming the District Court, provides that if a
court believes an eligible offender to be an addict, it 'may' place
him in the custody of the Attorney General to determine whether he
is an addict likely to be rehabilitated through treatment. Section
4253 provides that if a court, after this study, finds that an
offender is an addict and rehabilitatable, it 'shall' sentence him
under the NARA, with exceptions not here relevant.
Page 414 U.S.
1045 , 1047
An individual sentenced under the NARA could be released after
six months upon a report from the Attorney General and
certification from the Surgeon General that he has made sufficient
progress to warrant his release under supervision; he can also be
held up to 10 years if such progress is not made. 18 U.S.C. 4254,
4253. After release, 4255 provides for a program of aftercare in
the community. This aftercare, consisting of psychiatric, medical,
and vocational support, was considered the crucial contribution of
NARA to drug-addiction treatment. [
Footnote 2] It is recognized that without such ongoing
aftercare, the overwhelming majority of addicts return to their
habits shortly after release from prison or voluntary
drug-addiction programs. [
Footnote
3]
Section 4252 undoubtedly preserves the discretion of the
sentencing judge to refuse to apply the provisions of the NARA to
even addicts who are 'eligible' under 4251; the provisions of the
NARA are available as an alternative and are not mandatory. See
H.R. Rep.No.1486, 89th Cong., 2d Sess., in 1966 U.S.Code Cong.
& Adm.News, at 4249-4250, 4254.
Page 414 U.S.
1045 , 1048
Nonetheless, it seems that Congress contemplated a more
enlightened and less rigid approach to narcotics than was employed
by the trial judge in the instant case.
The NARA was the product of extended consideration by the
Departments of Justice, Treasury, and Health, Education, and
Welfare, which stressed the necessity for flexibility in dealing
with the problem of drug addiction:
'These procedures mark a fundamental
reorientation toward the problem of addition. The Attorney General
in his testimony before the subcommittee stated that for too long
the law had stressed punitive solutions and neglected medical and
rehabilitative measures.
'. . . [T]he bill provides
alternatives which provide a needed flexibility in the law. The
practical effect of the implementation of the law provided for in
the bill, is that strict punishment can be meted out where required
to the hardened criminal, while justice can be tempered with
judgment and fairness in those cases where it is to the best
interest of society and the individual that such a course be
followed.
'. . . The testimony presented at the
hearings has clearly shown the need for the flexible approaches
provided by civil commitment and post-conviction commitment which
would be made possible by this legislation.' Id., at
4249-4250.
Congress recognized that institutional treatment such as
petitioner might receive in this case was ineffective,
Page 414 U.S.
1045 , 1049
without more, in curing drug addiction, and that individuals
will generally return to addiction when released from prison even
if their physiological habits have been broken. It also explicitly
acknowledged that addicts, like petitioner, will engage in criminal
activity to support their habits and that they will often spread
addiction to others. Id., at 4251; S.Rep.No.1667, 89th Cong., 2d
Sess., 13. Weighing these considerations, Congress determined that
even those who sold drugs, if they did so primarily to support
their own habits, should be eligible for NARA consideration. The
exception for addicts who sold to support their own habits was not
created casually or without consideration. Hearings on Civil
Commitment and Treatment of Narcotics Addicts before Subcomm. No. 2
of the House Judiciary Comm., 89th Cong., 1st & 2d Sess., ser.
10, at 84- 85 (statement of Attorney General Katzenbach). It was
felt that the exception did not endanger public safety or allow the
NARA to be abused. See Hearings on the Narcotic Rehabilitation Act
of 1966 before a Special Subcomm. of the Senate Judiciary Comm.,
89th Cong., 2d Sess., 18 (1966) ( statement of Attorney General
Katzenbach).
The District Court Judge in this case effectively wrote this
congressional determination out of the NARA, since he apparently
refused to extend the benefits of the Act to petitioner because
petitioner had 'sold' drugs. This was the ineffective and
inflexible treatment into which judges were forced before the
passage of the NARA and which Congress attempted to cure; it does
not seem consonant with the congressional purpose to continue such
simplistic treatment of the problem of addiction after the NARA is
available. I would grant certiorari, vacate the judgment below, and
remand the case for fuller consideration of the advisability of
treatment under the NARA.
Footnotes
Footnote 1 Petition for
certiorari, at 11; Respondent's memorandum in opposition, at 3 n.
1. Similarly, the Solicitor General argues that discretion was
properly exercised because petitioner was an 'active conduit' of
drugs who knew many drug wholesalers. Id., at 3.
Footnote 2 H.R.Rep. No.
1486, 89th Cong., 2d Sess., in 1966 U.S.Code Cong. &
Admin.News, at 4253, 4255; Hearings on the Narcotic Rehabilitation
Act of 1966 before a Special Subcomm. of the Senate Judiciary
Comm., 89th Cong., 2d Sess., 19 (1966) (statement of Attorney
General Katzenbach).
Footnote 3 'Under our
present laws we confront the addict almost solely as a criminal,
and though we can effectively remove a relatively few addicts from
the streets where they are public menaces, we can do very little to
prevent them from returning to society with the cause of their
addiction unsolved.
...
'Physiologically, even a long-term
heroin addict can be cured of his physical craving in a relatively
short time. His body no longer requires the drug. But obviously,
his underly emotional problems and the more immediate factors like
environment and unemployment are as pressing as they ever
were.
...
'Clearly, neither voluntary
commitment nor criminal imprisonment are working. Civil commitment
of addicts accompanied by a program of aftercare in the community
gives us a way out of the dilemma.' Id., at 16-17 ( statement of
Attorney General Katzenbach); see id., at 36 (statements of
Attorney General Katzenbach and Myrl Alexander, Director, Federal
Bureau of Prisons).
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