CHAPTER 3 NARCOTICS OFFENDERS IN COURTS AND PRISONS
In the earlier chapters it has been pointed out that the most widely heard explanation of the gravity of our drug problem is the one offered by the Federal Bureau of Narcotics and by the police generally. According to this viewpoint the reasons for the disturbing narcotics situation are to be found primarily in the leniency with which offenders were handled in the courts. In addition to *the emphasis on the desirability of heavy penalties, police spokesmen also characteristically. complain of judicial leniency and lack of uniformity in sentencing, and of restrictions imposed upon enforcement officials by court decisions interpreting the Bill of Rights and often unduly limiting the freedom of action of the police.
While undoubtedly the police often have legitimate grounds for complaining about what judges do, it should be remembered that the police view of the narcotics problem and of what happens in the courts is inevitably biased. Police are generally disposed to be critical of judges in all areas of criminal law enforcement, and judges in their turn, like defense lawyers and prosecutors, tend to see things from their own particular occupational perspective. A balanced view requires that none of these particular perspectives be accepted on faith as the correct one, as the police interpretation in the area of narcotics has usually been.
THE ATTACK ON THE JUDICIARY
A representative criticism of judges was made by the Los Angeles Times in connection with proposals in California to stiffen penalties and limit judicial discretion in narcotics prosecution according to the pattern which is now the rule - in virtually all the states as well as on the federal level. In an editorial entitled "Frustrated Narcotics Fighters," this newspaper presented views which correspond closely to those so often set forth by the police to congressional subcommittees:
State judges and law-enforcement officials are like deck hands working the pumps of a leaking ship. They must bend their backs and sweat -and their pumps had better be functioning efficiently but they cure nothing; the ship's carpenters have got to go below on the double to plug the hole in the ship's side.
Some suggested changes in state narcotic laws-on improvements in pumps and their management-have been sent to Sacramento. The proposed amendments to the statutes have two aims, harder penalties for narcotics violators and easier rules for the police who must catch them....
But proclaimed penalties do not stop the narcotics traffic; they must be imposed on the violators. The present penalties, which may be too mild, have never been tested for their full effect. Some of the recent records tend to show that offenders are treated too leniently in the courts. The statistics suggest that judicial discretion is almost boundless.
Several undercover men of the Los Angeles Police Department were assigned last year to make narcotics purchases from pushers. They submitred their evidence to the Los Angeles County Grand Jury, which returned go indictments. Then the police rounded up 79 indicted persons. This is what happened to them:
9 without prior convictions turned over to the Youth Authority.
5 without priors sentenced to prison.
14 without priors sentenced to county jail (less than a year).
1 without 2 prior given probation.
9 with priors sent to prison as first off enders (priors ignored).
1 with a prior sentenced to jail (less than a year).
8 with priors sent to prison (priors recognized)
47 cases disposed of with some kind of sentence.
9 identified but not apprehended.
10 not identified and not apprehended
3 still pending
32 cases, making a grand total of 79.
Here is justice holding not a balance but a sieve. Note that to defendants with prior narcotics convictions were sentenced as first offenders. Also note that while the police department made go cases, all with sales to police officers, only 47 resulted in prosecution (by February). The indictments were returned last August. The tabulation suggests that harsher penalties, particularly for those with prior narcotics convictions, might not make much difference in the dope trade-unless judicial discretion were circumscribed by the legislature. Perhaps it should be mandatory upon judges to recognize prior narcotics convictions in sentencing a defendant in a present narcotics case.
The record embitters zealous law-enforcement officials naturally, and they have other complaints against the courts, which cut them very fine on search and seizure in narcotics cases under the so-called exclusionary rule. Police have a hard time digging into narcotics cases because violations differ from other crimes; there are no "victims" to run in reports ....
An examination of the figures presented in this editorial indicates that-the results which the Los Angeles Times complains of cannot be attributed to the judges but that the blame falls upon the police and the prosecutors. Thus of the go persons indicted, 30 were evidently never brought to court at all. This is a police responsibility.
Ten cases were acquitted or dismissed, probably either because theevidence was inadequate or because the prosecutor chose not to prosecute. This, again, is a police or prosecution responsibility and not a judicial one. The fact that in ten instances prior narcotics convictions were ignored does not tell us why they were ignored. It is the duty of the prosecutor to certify prior convictions to the court and judges cannot take them into account unless this is done. State and federal law generally imposes heavy mandatory penalties upon second and third offenders and judges cannot legally ignore prior convictions under these circumstances if the prosecutor has called the court's attention to them properly.
Considering that 30 of the go original cases were not brought to court, and taking account of the three that were pending, it appears that the courts convicted 47 of the 57 defendants who were brought before them. This is not a bad record. Clearly the judges cannot be blamed for the 30 who were not apprehended.
The editorial writer implies that the sentences imposed were too light in some of the cases. Since no information was presented concerning the persons involved or the circumstances surrounding the offenses, it is impossible to judge. The writer of the editorial seems to assume that all narcotics offenders should automatically be given the maximum sentence and no doubt objected to the fact that one was granted probation.
What the editorial fails to take into account is that it is common in state courts for prosecutors to recommend to judges the sentences to be imposed and for the judges to follow these recommendations in a large proportion of the cases. The prosecutor frequently determines what penalty he will ask for after consultation with the police. Both police and prosecutor bargain with the defendant, offering him reduced punishment for information, for assisting in trapping other offenders and for pleading guilty rather than demanding trial. Police in some metropolitan areas have stated that fully fifty per cent or more of the apprehended narcotics offenders agree to act as informers or to provide other forms of help to the police. It therefore seems certain that some of the lighter sentences were agreed upon as rewards for informers upon recommendation of the prosecutor and the police. It is also possible that some of the 30 who were not brought into court were being used as informers. Prior narcotics convictions may well have been ignored for the same reason.
The figures presented by the Los Angeles Times were probably part of a police handout; it is ironic that they point, not to judicial inefficiency, but to that of the police and prosecution. It is the prosecutor, not the judge, who is usually described as the nearly absolute ruler of the whole judicial process; responsibility for the results must be allocated accordingly. It is the discretion and arbitrary power of prosecutors and pol icemen, rather than of judges, that needs to be curtailed in the interests of a more efficient administration of justice.
Since prosecutors and police place such great emphasis upon the necessity for recruiting informers, and since recent antinarcotics legislation has been designed to facilitate such recruitment, it is to be expected that informers will continue to be rewarded, by lighter sentences, by substituting probation for imprisonment, by overlooking prior convictions, by charging them with lesser crimes than they in fact commit, by not prosecuting them, and by other similar devices. It is further to be expected that blame for the resultant "sieve-like" characteristics of justice will continue to be placed upon judges whenever possible. It is axiomatic that officials enjoy the exercise of power and will not easily give it up or jeopardize it by accepting the responsibilities which it entails.
The criticism of judges in the Los Angeles Times editorial is notan isolated or unusual one. The arguments it presents are almost exactly the same as those which were presented before the various congressional subcommittees which have investigated the narcotics problem by innumerable prosecuting attorneys, chiefs of police, and narcotics agents. The main difference is that this editorial attempts to present statistical evidence to support its charges; most attacks upon the judiciary have been made without such evidence.
The Los Angeles Times editorial was apart Of a vigorous; anti narcotics campaign waged in California which resulted in new legislation and a new and severe program for the handling of addicts either under criminal charges or under what is called "compulsory civil commitment." This campaign included not only attacks upon judges, but there were also the usual contemptuous references to "bleeding hearts" and "sob sisters."2 The California program adopted in 1961 has been highly touted by California Politicians, especially by the governor of that state, as a solution to the drug problem.
Judges make excellent scapegoats in matters of this kind because they are handicapped in answering their critics. While many of them are not well informed on the narcotics question, and while many are influenced by police propaganda and material in the mass media, they still do not relish the fact that recent legislation is aimed directly at limiting their discretionary powers as though they could not be trusted to handle narcotics offenders in a responsible manner, whereas the police and prosecutors can.
It is easy to understand that the Federal Bureau of Narcotics and the police in general should criticize judges and even that attempts should be made to blame the judiciary for the narcotics problem. It is not so easy to understand why Congress and the public have been so willing to accept these charges without supporting evidence and without giving the judges an opportunity to be heard in their own defense. Despite the fact that a significant proportion of our national legislature is made up of persons with legal experience and training, they have appeared, in this instance, to be extremely willing to accept a common police concept of the judge as an official who hampers efficient law enforcement by restricting the freedom of action of the police and by putting obstacles in the way of public-spirited prosecutors.
At the hearings before the Hale Boggs' subcommittee in 1955 and 1956, criticism of federal judges was especially prominent. Senator Burr P. Harrison of Virginia, for example, commented as follows:
The need for this legislation grows out of the fact that the federal judges are not doing their duty. Is that not about the sum and substance of it?3
Mr. Harrison followed up his question by asking whether prosecutors, police, and juries were doing their duties, and by a process of elimination placed the blame upon the judges. He noted that he would support the new legislation (the 1956 act) but expressed the following reservations concerning it:
I just do not know how you can, by legislation, supply some of these federal judges with the spine that they do not have. There are a great many fine men on the federal bench today, but there are just too many political touts and parlor pinks utterly incapable of understanding the danger of organized crime and organized subversion.4
The Boggs Subcommittee Hearings of 1955-1956 include reports from district supervisors of the Federal Bureau of Narcotics on the attitudes of judges in the various districts. This congressional subcommittee, like other congressional bodies that have investigated the narcotics problem, took it for granted that police reports upon judges alone provided sufficient evidence for the evaluation of a judge's competence. The police conception of what a judge should do is especially well indicated by the many letters of federal narcotics agents published in the Subcommittee Hearings of 1955-1956. The following comment in a letter from narcotics agent Albert D. Cook of Columbus, Ohio, is an illuminating example:
The United States district judge, Mell G. Underwood, Columbus, Ohio, has always taken a dim view of any offender of the narcotics laws. He has complied with the Boggs Act ( 195 1 ) in every respect. He has never granted probation to any off ender of the narcotic laws for a first offense unless such a recommendation has been made by the United States attorney, and concurred by the narcotic agent.5
In subsequent years various members of Congress have taken the Opportunity, when it was offered them by Bureau spokesmen, to join the attack upon judges. For example, in hearings before House subcommittees in 1961 and 1962 on the Matter of budget appropriations for the Bureau, there was reiteration of the Bureau's claim, by Henry L. Giordano and by Harry N, J. Anslinger, that judicial leniency was primarily responsible for ineffective narcotic law enforcement .6 Representatives John R. Pillion, J. V Vaughn Gary, and Otto E. Passman strongly supported this stand, expressing vehement hostility to federal judges and evidently elaborating and extending their points in "off the record" discussions with the Bureau spokesmen. Pillion, for example, remarked:
Where you find agents who risk their lives and perform intensive investigations and dig up and produce evidence sufficient to convict, then you find a "blockhead" on the bench who practically destroys the worthwhileness of this work, and I sat on the bench for many years. The leniency and the overindulgence for some of our criminals on the part of judges is a disgrace.7
POLICE COMPLAINTS CONCERNING THE COURTS
To illustrate some of the other typical criticisms which policemen make of courts and judges we will turn to remarks offered b y T. T. Brown of the Oakland, California, Police Department in a recent book.8 In some respects Brown's views are untypical, for he disapproves of long mandatory sentences and is willing to allow judges to exercise, their discretion in fixing sentences. He also observes that the "light" sentences sometimes imposed upon narcotics offenders are frequently recommended by the police as rewards for underworld informers, who, he concedes, supply the information on which about go per cent of the prosecutions are based.'
Nevertheless, Lt. Brown in other respects shares many views commonly expressed by police officials. Like federal narcotics officials, he is disposed to refer to non policemen with views different from his as "self-styled experts". or "do-gooders."
Lt. Brown grudgingly concedes that the Supreme Court of the United States and the Bill of Rights of the Constitution have their legitimate places and functions in the American way of life.10 However, he complains of a too liberal interpretation of the constitutional guarantees by the present Supreme Court, which, he says, has "taken vigorous steps to suppress any freedom of action of law enforcement officers.. . . The precious protection promised by the Bill of Rights has practically licensed the seller of dope," he adds." He remarks in summary:
In countless other ways the decisions of the courts have gladdened the hearts of the criminals, hampered law enforcement in making arrests, placed unreasonable limitations on the police in the interrogation of suspects, and the introduction into evidence of voluntary and truthful confessions of criminals: All because the courts put "the freedoms" above common sense, justice, and fear of minority segments whose underlying motives are subversive and not the advocacy of democracy.12
Lt. Brown concedes that drug addicts should be handled medically and that they cannot be properly treated in prison. Nevertheless, he sees nothing amiss in using them as informers. The narcotics racket, he suggests, is a dirty one which must be handled with dirty methods. Known informers, he observes, are frequently murdered, beaten, stabbed, and otherwise manhandled by those whom they betray. Lt. Brown does not provide his readers with any exact or detailed account of how addict informers are dealt with by the police or how they are used in making cases. He complains that narcotics violations differ from other criminal activity in that the police do not have the help Of 2 "victim", in preparing the case. The general public is rarely aware of drug law violations and even when an ordinary citizen knows of one he ordinarily prefers not to become involved. Narcotics offenses, it is strongly suggested, should be given special consideration and the usual rules pertaining to police actions should be relaxed
Concern over the protection of the police stool pigeon causes Lt. Brown to list as "disastrous decisions" a number of cases in which the courts ruled that the informer's identity had to be revealed in court when such disclosure is "relevant and helpful to the defense of the accused or essential to a fair determination of a case."14 Brown wants to preserve the anonymity of the "faceless informer" in narcotics cases, and if this is done what will prevent an expansion of the practice' It will be recalled that during the McCarthy era federal employees sometimes lost their jobs on the basis of information from unidentified sources and that public reaction against this has been strong. As the penalties for narcotics offenses have been increased it is inevitable and quite understandable that the courts should become a little more fussy than before about unidentified informers, especially when they are known and conceded to be among the lowest types found in the underworld.
Another complaint made by Lt. Brown has to do with the so called federal "exclusionary rule" which prevents the use in court of evidence obtained by illegal means. Brown notes that the California Supreme Court adopted this rule in 1955 in the Cahan case, and, like many other California police officers, he deplores this fact." Instead of stressing the notion that the police ought to obtain evidence by legal means, emphasis is placed upon the notion that the courts should overlook police violations of the rules in the prosecution of the accused. Brown offers the -wholly futile suggestion that police officers should be discouraged from violating the laws of arrest, search and seizure etc., not by freeing the accused but by prosecuting the individual policeman. He repeatedly suggests that courts ought to trust the police more than they do.
The general impression created by Brown's discussion is that almost the only obstacles that stand in the way of locking up the key figures of the dope traffic are the courts and the Bill of Rights. He notes that in California, as elsewhere, a large proportion of arrests are not followed by convictions but fails to explain that most of these arrests are of addicts and insignificant street peddlers and that some of them are probably so flagrantly illegal that convictions would be impossible except in a "kangaroo court." California legislators, he notes, were told that very few important illicit drug distributors are to be found in the California prisons.16 Brown suggests that this is because such offenders are sent to federal prisons, but the inquiring student who looks for these big shots in federal prisons will find that they are not there either. The facts are that big dealers are not often in prison simply because the police do not often apprehend them and do not know who they are. This is a point which Lt. Brown did not make.
A PROSECUTOR'S VERSION OF NARCOTICSLAW ENFORCEMENT
A sounder and more logical evaluation of narcotics law administration than that of the Los Angeles Times was presented in 1955 to the Senate subcommittee under Price Daniel by Warren Olney III, who was Assistant Attorney General in charge of the Criminal Division of the Department of justice which prosecuted federal narcotics cases. Mr. Olney's comments apply to the federal courts only and they pertain to the 1951 legislation known as the "Boggs amendment." Since that time, the 1956 Narcotic Control Act has increased penalties even further and imposed additional restrictions on judges.
The difficulties in narcotics law enforcement stressed by Mr. Olney bear no resemblance to those emphasized in the Los Angeles Times editorial:
Because of the various presumptions of guilt arising from the possession of narcotics in several of the narcotics statutes, the prosecution of narcotic violators, once they have been apprehended, actually presents no great problem.
As a matter of fact, it is our opinion that narcotics violators are frequently convicted on evidence that would not suffice in most other types of cases....
The problems we do encounter seem to stem directly or indirectly from the fact that the present penalties are heavy and that the courts have little or no discretion in imposing sentences.
One problem we have noted more frequently in recent months is the reluctance of some courts to convict or affirm convictions where the mandatory sentence appears to be out of line with the circumstances in a particular case. The same penalties are applicable to the vicious, despicable, big time racketeering violator as to the pitiful victim of the sordid business who has become ensnared by it and has found it necessary to become a small-time pusher or peddler of the drug to satisfy his own addiction, or to the ill fated physician who becomes involved and resorts to various illegal stratagems to obtain drugs for himself.'.
Mr. Olney took note of the problems created by the use of addict stool pigeons and hinted of illegal police practices:
Another problem inherent in many cases is the nature of the witnesses frequently necessary to the Government's case; that is, the informer or so-called special employee who is used to make the buy and who is also often a narcotic-law violator or addict himself.
Of course, enforcement necessarily requires the use of witnesses of that type. However, it has been pretty general) y recognized by the courts and apparently by the juries that the Government must rely on this type of person rather than the good citizen who has no dealing with narcotics.... The real difficulty if any lies in enforcement and in apprehending the more important violator who is most elusive,
When he is caught, he rarely escapes punishment, even though the evidence is not always as strong as might be desirable.
I think perhaps that last sentence would be more accurate if I said, "When he is brought into court he rarely escapes punishment." There are a very considerable number-in my judgment, too many-who are caught but are never brought into court, for the reason that it is apparent on the face of things that there is something irregular about the manner of arrest or the manner of obtaining evidence which would make bringing them into court useless."
Mr. Olney, in the last part of the above statement, takes note of the difficulty of apprehending important violators and hints of police tendencies to use illegal methods to secure evidence and to make illegal arrests. The police have consistently blamed judges for the failure to convict, but Mr. Olney's statement indicates that the real blame is probably more often that of the police and the prosecutor. If the evidence presented in court is insufficient, or if illegal methods have been used by the police, the defendant cannot be convicted without debasing the law. It is the sworn duty of a judge to see that trials are fairly conducted, that police and prosecutors themselves do not violate the law, and that defendants are convicted according to due process of law and on the basis of evidence. They cannot be convicted simply on beliefs and suppositions or because of evil reputation.
Mr. Olney also commented on some of the undesirable consequences of the high mandatory penalties:
Not strictly a prosecution problem, but nevertheless one which is frequently presented to the Criminal Division for explanation and resolution, is a difficulty stemming from the minimum and the mandatory penalty provisions of the Boggs Act....
One judge, in a letter to the Department, sought advice as to whether there might be some legal way of reducing a sentence of 5 years whichhe had imposed upon -a second offender. In that case, the defendant had been found guilty of purchasing two quarter grains of morphine sulphate. There was no evidence that he had ever engaged in the sale of narcotics; he had simply been an addict for several years. He had previously pled guilty to a charge of purchasing morphine in the same way for which he had served 18 months. The court was extremely reluctant to impose the minimum term of 5 years required in the case of second offenders under the act. It was necessary in that case to advise the court that there was absolutely no way in which a legal sentence other than a minimum jail term of 5 years could be imposed.
Furthermore, the minimum mandatory provisions of the Boggs Act may, at times, even thwart the rehabilitative process. This possibility was demonstrated nor too long ago in the southern district of New York where the court desired to impose consecutive sentences upon the defendant, who had been convicted under several counts Of an indictment. The court desired to grant probation on the subsequent term for the purpose of keeping control of the defendant after service of his jail sentence, and thus insure his reincarceration in the event he committed any offense during the 5-year period after his release.
Such a sentence, however, would have been illegal in as much as the defendant, being a subsequent off ender, was subject to no other sentence upon conviction than a jail term. Although the court had the right to make that term run concurrently with the terms imposed on the other counts, it did not have the authority to impose a consecutive term and order probation thereon to commence at the expiration of the other jail sentence.
Thus the action of the court was so restricted that the rehabilitation of the defendant was somewhat less assured than had the court been authorized to proceed as it desired.
Furthermore, under the present provisions of the act, a first offender must be imprisoned for a term of at least 2 years unless he is granted probation. This results quite frequently in the courts granting probation to first offenders, although were it not for the mandatory provisions of the act, the courts would probably be inclined to impose a jail sentence of something less than the 2 year minimum....
We have run into, as I have mentioned here, practical resistance on the part of certain judges in certain areas to following the provisions of the Boggs Act. We have had the experience of the United States Attorney pointing out to the judge what the law requires in the way of minimum sentence at the time of sentence, only to have the court impose a jail sentence for a far less term, maybe half of what the law says it should be, but doing that knowing full well that the defendant will never object and is not going to appeal, and that the Government can't appeal; there is nothing we can do about it.
It isn't a healthy situation at all to have a law that is so rigid in its provisions that judges feel that they have got to disregard its plain language in order to come out with what they think is a just result-19
In cases of the sort described, in which the minimum penaltyprescribed by the law is obviously unjust and excessively severe the question naturally arises as to why the defendant was tried under this penalty provision. Prosecutors and police Can, at their discretion, turn a defendant over to nonfederal courts where the penalties are lower, charge him with a lesser offense and overlook prior convictions. The fact that they do not do so in certain instances may be explained by the desire to punish the defendant f Or not "cooperating" with the enforcement officials.
Federal cases may be transferred to lower courts for a variety of reasons. In some instances it may be done to secure a lighter sentence to reward an informer; in others to secure a heavier one when state laws are more severe than the federal. In other instances, the consequences of illegal and irregular practices by federal agents may be avoided by transferring the case to. a state court. Cases may also be transferred from state to federal courts for this reason. State and federal agents frequently cooperate in handling of important cases so that prosecution may be handled in either the state or federal courts depending upon the advantages to be obtained.
INCREASED PENALTIES, GUILTY PLEAS, AND APPEALS
The criminal who knows that he faces extremely severe penalties upon apprehension and conviction tends to take unusual precautions to avoid arrest and is more likely to resort to violence either against the police or against the informer who has betrayed him.
When apprehended, he exerts greater effort to avoid conviction and appeals his case whenever he has a chance and possesses the necessary means. Under the system of mandatory penalties offenders are aware of the tendency of judges to impose the minimum sentence in a large percentage of the cases. This causes them to feel that there is no point in a plea of guilty, and that they have everything to gain and nothing to lose by fighting the case to the limit and carrying it to the higher courts whenever possible. Mr. Olney made the following observations concerning this tendency:
Another problem, if it can be so designated, is the more frequent and vigorous defenses waged, especially by second and third offenders facing long prison terms if convicted. While less than 13 per cent of the offenders disposed of in the fiscal year 1950 elected to face trial, approxamitely 22 percent did so in 1953 and 1954
There appears to have been a corresponding increase in the number of appeals and the number of motions to vacate sentence by persons convicted and those who have pleaded guilty. These contests raise 0 possible legal-defenses, particularly entrapment and illegal search.20
Statistical data presented by Mr. Olney seem to indicate a clear trend in this direction after the 1951 Boggs Act.21
|| Number of Defendants
|| Those Acquitted
|| Those Dismissed
|| Guilty Pleas
|| Tried and Convicted
The last two columns indicate that, while the total number of defendants on federal narcotics charges remained fairly constant there was a steady tendency for guilty pleas to diminish and for the number demanding trial to increase. This trend, of course, makes more work for the courts. It has probably been intensified by the 1956 law.
It is obvious that if all persons charged with crime were to exercise their constitutional rights to the full by pleading not guilty and demanding a jury trial, this would create an impossible logjam in the courts. In order to induce defendants to plead guilty in a substantial portion of the cases it is ordinarily regarded as necessary that they be rewarded with shorter sentences for doing so. This implies, on the other hand, that an accused person who elects to demand jury trial, thus putting the state to a great deal of inconvenience and expense, should receive little consideration when heis sentenced after a jury has found him guilty. If a relatively minor narcotics offender is convicted for the first time in a federal court for a selling offense he is very likely to be sentenced to the minimum of five years without parole regardless of whether he pleads guilty or not. Hence, there is no incentive in this situation for "copping a plea." It is better for the defendant, if he can afford it, to fight the case and to hire a sharp criminal lawyer who will drag it out over a long period of time hoping that the prosecution will make mistakes which will benefit his client. Even if the latter is ultimately convicted the sentence, may still be for the same five years. If the prosecution has made serious mistakes or if there is a question of illegal police practices the case may be successfully appealed. In any case the defendant has little to lose except money and it he may gain his freedom.
To carry out the legal strategy that offers the highest probability of beating the rap calls for the expenditure of money. The addict invariably has no money and is rarely able to hire a competent attorney to defend him in court. A lawyer who had to depend solely upon addicts as clients would, if he did not actually starve to death, certainly make a meager living.
This is probably a basic reason for the lack of attention given the problems of addiction by the appellate courts, by the legal profession, and by legal scholars. The latter are primarily concerned with opinions of the higher appellate courts, to which cases involving addicts rarely come. Competent defense lawyers would much rather represent drug peddlers than drug users because the former can afford to pay substantial fees and the latter cannot. This is also no doubt the reason for the fact that the higher courts devote a disproportionately large part of their time to cases involving the defenses of entrapment and illegal search and seizure in prosecutions of narcotics peddlers and very little time to issues pertaining to the legal rights of addicts.
UPGRADING OF NARCOTICS OFFENSES: MISDEMEANOR TO FELONY
Part of the trend toward heavier punishment for narcotics offenders on the state level is represented by upgrading misdemeanors to the felony level.22 A misdemeanor is ordinarily subject to a maximum sentence of twelve months in jail and legislatures consequently assume that if they-, for example, change possession of narcotics from a misdemeanor to a felony, the offense of illegal possession will be more severely punished. The argument for increasing the penalty is often that it is easier to prove possession than sale and that when possession is merely a misdemeanor actual peddlers who can be convicted only of possession escape with light sentences. By upgrading possession it thus becomes possible to punish a defendant as a peddler without having to demonstrate in court that he actually is one. State legislatures are extremely impressed by this arrangement because they generally believe that, regardless of the evidence available in court, the police know in advance who the peddlers are.
Changing possession from a misdemeanor to a felony, however, has effects of a self-defeating nature which legislatures usually ignore. Felony prosecutions, for example, take much more time and require the police to spend a great deal more time in court. Misdemeanor cases are usually disposed of within a day or two of arrest with a minimum of legal ceremony ' and without the necessity of providing attorneys for indigent defendants. A felony prosecution may require a preliminary hearing, a grand jury hearing, an arraignment and a trial at which the indigent defendant may have to be provided with an attorney at public expense.-" While the policeman appears in court only once in the misdemeanor proceedings, he may have to appear several times in the course of a felony prosecution. Policemen are usually poorly paid for this time spent in court. A felony court (usually a county or district court) pays much more attention to legal formalities and rules than does the misdemeanor court (usually a municipal or police court). The net effect of increased severity of punishment is thus, that its certainty is diminished as the probabilities of acquittal because of "technicalities" are increased. It is a recognized legal principle that the more punitive a law the greater will be the emphasis upon a literal interpretation of the law and strict adherence to the procedural rules and the greater will be the tendency to resolve all doubtful matters in favor of the accused.
More important, perhaps, than the above considerations is the fact that the extra effort and time which felony proceedings cost the police will inevitably lead them to make fewer arrests for possession than would be the case if it were a misdemeanor. Because the number of police officers and the time at their disposal is limited, they of necessity adapt themselves to such changes in the law so that actual police routine and total arrests remain fairly constant. With possession defined as a felon v. fewer possession charges will be filed and a larger proportion of actual possession cases will be prosecuted on lesser charges, such as loitering, addiction, vagrancy, and any others which continue to be classified as misdemeanors.
The net effect is that approximately y the same numbers of offenders are arrested and sent to jail or prison with about the same sentences is before, the only difference being that the labels have been changed. The addict who last year was sent to jail for six months for possession may now be sent to jail for six months as a "disorderly person."
Extremely high minimum penalties for sale of illicit drugs produce similar effects upon the machinery of law enforcement. Michigan, for example, his found that the effect of a 20-year minimum penalty y for sale in that state has been to make it difficult to convicted By common consent, judges, prosecutors, and others collaborate in avoiding the imposition of this severe penalty by allowing defendants to plead guilty to lesser charges. Over a period of a number of years in Detroit it is reported that of more than 400 arrests for sale less than 4 per cent were convicted for that offense most of the others being permitted to plead guilty to the lesser charge of possession. It has been reported that unsophisticated defendants who offer to plead guilty to charges of peddling drugs in Michigan Courts sometimes find that the judge will refuse to accept the pleas and, instead, have someone explain prevailing practices to the naive offender.
Upgrading narcotics offenses from the misdemeanor to the felony level. and increasing penalties generally, thus may have the effect of drastically changing arrest and conviction rates for certain types of offenses without in actuality changing the total narcotics situation in any material way. Regardless of whether the number of addicts in a community is increasing or decreasing. sharp upgrading of offenses and heavy increases in penalties are virtually certain to reduce convictions and arrests, thus creating a pleasant statistical mirage. The police are not likely to complain in this situation because public criticism of them is quieted and because the heavy penalties give them increased leverage in bargaining with narcotic offenders.
The tendency for customary police practices to continue regardless of changes in the law is illustrated in the opposite direction by the effects in California of the U.S. Supreme Court's nullification in 1962 of a California statute defining addiction as a punishable offense (Robinson v. California). The Court in this case reaffirmed its view that addiction is a disease, not a crime. Statistical reports from the California State Department of Justice suggest that the main effect of the decision has been that addicts who were formerly arrested as users are now arrested on other charges.25 The
effect of the decision, be it noted, was definitely not that of compelling California to handle addiction as a disease.
It has been indicated that recent narcotics legislation has increased the powers of prosecutors at the expense of judges, The reader may inquire if this is not perfectly appropriate and desirable. Can't prosecutors be trusted to use these powers wisely and in the public interest' The answer to this question is an emphatic and unqualified "No, they cannot." It is wrong in principle and vicious in practice to give the prosecutor the power of a judge, for the prosecutor in our system of justice is one of the two contending parties. To give him control of the trial and the power to determine the penalty is the equivalent, on the personal level, of permitting a person who accuses you of doing him wrong to decide whether or not you are guilty and to determine the appropriate punishment.
It is generally recognized by students of the American system of criminal justice that the prosecutor almost completely dominates or the nonfederal judicial system. A noted criminologist has made the following observations:
The prosecutor determines whether a particular case shall be prosecuted. He determines whether a compromise shall be accepted, which generally means a plea of guilty to a lesser offense in return for a recommendation for mitigation of penalty. He is responsible for the organization and presentation of evidence before the court, and upon his efficiency in doing this the decision of the court depends. He is generally very influential in regard to the disposition of cases, suggesting to the judge or jury the appropriate penalty. In fact, he is almost the absolute ruler of the whole judicial process. At the same time this prosecutor is generally elected and, as is true of other elected officers, he secures his position primarily as a favor of the political machine. Explicitly or implicitly this means subservience to the wishes of politicians, and it means also distraction of attention from
his official business for the sake of political activities; he must be careful not to antagonize any large organized group. Also, his record must show
a large proportion of convictions in cases which go to trial. It is customary in elections for the prosecutor to present statistics on this point....
The assistant prosecutors, also, secure their positions in many cases because the y have been active in political organizations, although in some communities the bar association urges and assists the voters to make selections on the basis of efficiency. The assistant prosecutors are generally inexperienced in this work at the time they are appointed and are dismissed when the administration changes. Responsibility for their work is generally not definitely located and their work is usually not well organized. In the inferior courts the assistant prosecutors generally make little preparation and even when the case conics into court they pay little attention, except in spectacular cases.26
The Wickersham Report makes the following statement concerning the prosecutor:
The system of prosecutors elected for short terms, with assistants chosen on the basis of political patronage, with no assured tenure, and charged with wide undefined power, is ideally adapted to misgovernment.27
The power of the prosecutor in narcotics cases is even more absolute than it is in ordinary criminal prosecutions because of high minimum mandatory penalties, which as we have seen transfer powers from judges to prosecutors. In the large metropolitan centers where narcotics cases are numerous they are handled as a rule by inexperienced prosecuting attorneys of the type described above. These assistants view their service in the prosecutor's office as an opportunity to acquire trial experience and to move on to other and better jobs. They do not ordinarily have any special information or training pertaining to the drug problem and because of the temporarynature of their jobs they are not interested in acquiring it. With prosecutors in general they share the "batting average" theory that they should seek the highest possible proportion of convictions and the longest possible sentences. In theory the prosecutor, as an agent of the state, is interested in ascertaining the facts and doing justice; in practice, he is often most concerned with winning cases, getting publicity, making money, and acquiring trial experience.
Under these circumstances it is easy to-understand that the prosecutor handling narcotics cases in the big cities works closely with the police and, to a large extent, shares the police viewpoint. The inexperienced assistant assigned to narcotics cases for the first time learns the routine procedures from the police, who know them better than he does. It is to his advantage, both politically and personally, to cooperate closely with them.
Under existing circumstances the main limitation upon the prosecuter's enormous powers in narcotics cases is represented by a competent defense counsel who is prepared to appeal the case if necessary. Since it is only the bigger peddlers who ordinarily have sufficient funds to engage such lawyers these offenders are in a position to take advantage of the assistant prosecutor's inexperience and lack of preparation. The ordinary addict-defendant is either not represented by counsel at all or is represented by the shyster type who more than matches the assistant prosecutor in inefficiency and lack of preparation. Representation by counsel of this type often does the defendant more harm than good by irritating the judge. Defense lawyers of this type cannot afford, because of the small fees, to make a protracted defense or to carry the case to anappellate court and are usually not interested in doing so. As a result, addicts are routinely and easily convicted and the prosecutor has only to worry about the relatively infrequent cases involving who are represented in court by well-paid, important peddlers with competent, and often unscrupulous counsel. Illegal police practices and mistakes and inefficiency of prosecutors fairly frequently prevent the successful prosecution of such cases but they make littledifference with addict defendants and minor peddlers. who make the bulk of the cases which fatten the prosecution's batting average.
While there are, no doubt, some Prosecutors who recognize the inequities involved in the present s system. they seem to be few innumber and they rarely- express themselves forcibly in public onthis matter. Those who have done so have usually been federalprosecutors, who are appointed rather than elected. and who represent a higher level of responsibility and competence than that of the average state or local prosecutor. It is unreasonable to expectprosecutors to object to a system which gives them the enormouspower and virtually unlimited discretion which they now enjoy.In the hearings before congressional subcommittees, many prosecuting attorneys testified. With very few exceptions they joinedwith the police in attacking the judiciary branch, and in supporting measures designed to increase their already enormous powers.
We are concerned here with the system rather than with individuals, for there are individual prosecutors in this country especially perhaps outside the large cities. to whom the usual generalizations do not apply However, as the prevalence of the expression "the prosecutor's complex" suggests, it is difficult for a person who specializes in sending people to jail and prison not to be influenced by his occupation, just as it is difficult not to enjoy the exercise of power. It is interesting that in the last few years reacting to the demand for a medical approach to addiction, programs of compulsory civil commitment have been devised in New York and California largely, by prosecutors, and that these plans shift some responsibility, but no real power to physicians.
A MISCARRIAGE OF JUSTICE
The case involving Max Kaplan and Nathan Kaplan originates in New York in 1937. 211 Max was a heroin salesman and Nathan a shirt salesman. The two became confused with each other becauseof a possibly perjured identification of Nathan by, a prostitute who was a drug addict. The two men closely resembled each other in appearance. Max was originally indicted for the crime; later the theory was developed that Nathan was also involved, and he was arrested. Nathan protested his innocence and fought the charge against him as vigorously, as he could. He was nevertheless convicted in a jury trial and sentenced to twelve years in the federal prison at Milan, Michigan. Shortly after the sentencing. Max, who was being sought by the police and was also thought to have been involved, consulted his lawyer gave himself up, and no doubt as a result of a bargaining process in which he agreed to "cop a plea," was sentenced to prison for 18 months for the same crime for which Nathan was already doing time. Max was sent to the same prison as Nathan but the latter became aware of his presence there too late to establish contact with him before Max was released. When Nathan completed his twelve-year sentence he returned to New York- to look for Max in order to clear himself. Max had indicated at the time he was sentenced that he alone had committed the crime and that Nathan had not been involved.
After several years of search, during which Nathan had difficulty finding regular work because of his prison record, he did finally find Max. The latter. after consulting his lawyer. gave Nathan the affidavit he asked for, proving along with other evidence that he was innocent of the crime. When Nathan took this evidence to court, the judge who heard it agreed that he was innocent, but after a long delay concluded that no legal remedy existed and suggested that Nathan apply for a pardon. After a delay of 1 year or more the request for pardon was denied. The case, which originated in 1937 was terminated eighteen years later in 1955 by the refusal of a pardon.
There are a number of interesting features of this case which deserve consideration. ( I ) Nathan's sentence was ten and one-half years longer than that of Max because he, being innocent demanded his constitutional right to jury trial and fought against conviction, whereas Max, being guilty pleaded guilty and thussaved the state the necessity of trying him. The question raised isthat of judging what constitutes a reasonable reward for "coppinga plea" and what is a reasonable punishment for not doing so. (2) There were at Nathan's trial three persons who might have identified him. Two of these said they had never seen him before, whilethe third, an addicted prostitute , identified him as the person whohad handled the illicit heroin involved in the transaction. Whilethe two Kaplans did resemble each other it seems probable that theinformer may have insisted on her identification for the sake ofthe reward offered her by her police employers, who, it may beassumed, were sincerely convinced of Nathan's guilt. (3) No explanation is offered for the refusal of a pardon and one may, onlyspeculate concerning the reasons. Nathan Kaplan had, twelve yearsearlier, in 1925, been convicted of a narcotics offense for which he had been placed on probation. This incident allegedly frightenedhim enough to cause him to turn away from the narcotics racketand from criminal activity, in general. If the pardoning authorityconsulted the Federal Bureau of Narcotics that agency, would probably have advised against a pardon in line with its policy of noleniency for dope peddlers. (4) The prosecutor who sent Nathanto prison admitted eleven years later that he had suspected, whenMax confessed to the crime and said that Nathan was not involved,that the latter should not have been prosecuted. However, he didnothing about it.
Judges of lower courts have sometimes commented upon the singular absence in their courts of well-to-do addicts, such as those from the medical profession. Such persons are sometimes prosecuted, it is true, but often they are not. Sometimes they may be given a chance, or several chances, to cure themselves of their habits before they are prosecuted, or the addict's doctor may be privately assured by, an agent that no action will be taken against him if he provides the addict with drugs. This form of what in effect is legalized addiction in the upper social strata has probably increased in prevalence as the legally prescribed penalties have become increasingly severe.
G. H. Stevenson, a Canadian physician and student of the drug problem, commented as follows upon this tendency:
we have one law for the slum-born or underprivileged addict, the socially handicapped addict, and another for the professional addict ... there are physicians, nurses, druggists and dentists and veterinarians who are drug addicts who never get into jail, the excuse offered being that the doctor has a license to be in possession of narcotic drugs, but he's an addict for exactly the same reason that the socially handicapped person is an addict. . . . But the physician addict is treated by the law and the narcotics division and the police -with the greatest consideration and gentleness, in marked contrast to the way the socially handicapped addict is used by the law and the police.... But, as a physician, I resent the fact that we physicians and other professional people are given preferred treatment a s compared with the socially handicapped people, even though we have had man%, advantages in our homes and training and education in the narcotic habit... If compulsory treatment is to be applied it should be applied to both groups equally. If punishment in prison is to be applied it should be applied to both groups equally., modifying the law if need be to see that both groups are treated equally , In contrast to the extreme leniency now shown the professional group and the extreme severity now shown to the socially handicapped.29
The Canadian expert did not, however, seem to be able to make up his mind as to 'whether the socially. handicapped should be treated more leniently or the professionals more severely.
The tendency to be easy on addicts from the middle and upper classes and the medical profession is probably even more pronounced in the United States than it is in Canada, because penalties for narcotics offenses are more severe and inflexible in the United States. Many enforcement officials regard addicts essentially as sick persons rather than criminals. When the addict is a well-to-do professional man, such as a physician or lawyer, and is -well spoken and well educated, prosecutors, policemen, and judges alike are especially strongly inclined to regard him as an "unfortunate" or as a "victim" of something like a disease. The harsh penalties of the law, it is felt, were surely not intended for a person like this, and, by an unspoken agreement, arrangements are quietly made to exempt him from such penalties.
Outstanding examples of such favored treatment of users from the upper classes are provided by Mr. Anslinger, former head of the Bureau of Narcotics, who, according to his own account, arranged to keep an addicted member of Congress, as well as a prominent Washington society lady who was addicted to demerol, out of the hands of the police." At lower levels, it is common for narcotics agents not to arrest doctors or nurses who are addicted, but to turn them over to the medical profession. A narcotics agent in the Toledo area frankly reported to his superiors that 18 physicians, druggists, and nurses in his care were not prosecuted but "were treated for addiction in lieu of prosecution. "-31 Common justifications offered for this practice are that these addicted nurses and doctors do not resort to serious crime to obtain drugs and that they are valuable and productive members of the community. The only reason that users in the medical profession do not commit the crimes against property which other addicts do, is, of course, that drugs are available to them from medical sources.
THE CHICAGO NARCOTICS COURT
The Chicago Narcotics Court may be considered as an exampleof the way in which drug offenders of the ordinary sort are currently dealt with in many of our larger cities. We have already referred to the common police practice of arresting addicts on sight. In Chicago there were, at the time I observed the court in action, in addition to the usual statutes concerning possession and sale of illicit drugs, other state laws or city ordinances which provided punishment for addicts who loitered, who were found in possession of a hypodermic needle, who had failed to register as addicts,and who had registered but did not have their identification cards.
The Narcotics Court served both as a summary trial court and as a court of preliminary hearing for cases to be prosecuted later in the county criminal court. Cases of this latter type usually involved selling offenses and the defendants either engaged their own lawyers or had lawyers provided for them, if need be, in the county court. Most of the cases in the Narcotics Court, however, involved addicts-about nine of every ten of whom were Negroes-who were tried summarily- and either acquitted, fined, or sent to jail by the judge. By special dispensation of the Illinois legislature, this court, although a misdemeanor court, was permitted to impose a jail sentence of as much as five years plus a maximum fine of $5,000
The addicts processed in this court were as a rule not represented by counsel and were not entitled to court-appointed counsel if they were indigent. This fact alone tended to eliminate the right to appeal, since errors at a trial must ordinarily be objected to at the time if an appeal is to be made. Some addicts secured the services of a number of fly-by-night courthouse lawyers who circulated about the building and accepted cases for small fees, depending upon volume of business rather than quality to make their living.
As many as from 8,000 to 9,000 cases have been handled in this court in a single year, and sometimes there were more than 100 cases on a single day's docket. Nevertheless, the court - was ordinarily cleared and all cases disposed of before one o'clock in the afternoon. Defendants, witnesses. lawyers, and prosecutors huddled before the judge's bench during a trial so that scarcely a word was audible to anyone not directly involved in the case. Defendants were disposed of rapidly, often convicted on the basis of scant evidence or with no evidence at all or simply, on the word of a policeman. in some instances groups of young Negro males who had been picked up for "loitering" were found guilty as a group even though evidence to prove that they were addicts was not produced. Little attention was paid to the niceties of legal procedure or to the rules of evidence, and no attention at all to illegal policepractices such as illegal arrest and search and third-degree practices. The judge and the prosecutor stated that some of the statuteson which they were convicting defendants were unconstitutional,although they had never been tested, probably because if a defendant charged under one of these laws had a competent lawyerit was simpler to discharge him. As pointed out earlier, State's Attorney Gutknecht told the congressional committee that most of the addicts brought into the Narcotics Court had been arrested illegally.32
The officials of the court were low-level political appointees. none of whom was acquainted with the literature on addiction and very few of whom had more than a routine knowledge of the relevant law. The prosecutor stated his philosophy quite simply and briefly, namely to send every defendant to jail for as long as possible. Visitors in the court markedly influenced the sentences handed out. When reporters and photographers from the Chicago newspapers were present, for example, more defendants were found guilty on less evidence than usual.
Writing from his experience with addicts of the type who are hustled through the Chicago Narcotics Court in record numbers. Nelson Algren has aptly summarized the legal status of the drug addict in most of our large cities:
The known addict lives in a totally lawless world, a man or -woman with no rights at all, and an all-day, dread of being locked up all night. You can turn out his pockets on the open street, walk into his home without a warrant, lock him up without bothering to book him, change the charge against him without informing him, send him to trial without a lawyer, and convict him on another addict's word .33
The Narcotics Court of Chicago was the first court of this type to be established in this country, and was hailed by some who did not know how it operated as a significant forward step in dealing with the drug problem. It was actually a kind of legal travesty in which all of the shortcomings of the present system of handling the drug problem and the injustice of current laws were illustrated in concentrated form. Respectable members of the legal profession usually knew nothing of it and never visited it.
The handling of drug addicts in cit y courts resembles reasonably closely the manner in which " vagrants" and "disorderly persons" are dealt with. Police, prosecutors, and judges know that any active addict brought before them must ordinarily be guilty of property crimes as well as of offenses against the narcotics laws. They are therefore inclined to assume guilt regardless of the quality of the evidence if addiction is admitted or known or if the defendant has been in court on prior occasions. Under these circumstances it is easy to understand the desire of these officials to send addicts to
jail, since little else can be done with them under present conditions. Even in these courts there are man y judges and other officials who regard addiction as a kind of disease akin to alcoholism, and who would be happy to be able to send the user to a hospital rather than a jail. Since medical facilities for the treatment of ordinary addicts are virtually nonexistent, the practical alternatives are to send the addict to jail or to let him go free to resume his habit. Hence, legal "technicalities" are sacrificed in order to get the addict off the streets. If the law is debased in the process this is commonly regarded as a fair price to pay for a desirable practical result.
NARCOTICS OFFENDERS IN PRISONS
In the following chapter it is indicated that the number of federal prosecutions for narcotics offenses declined between 1950 and 1960. During the same period, because of lengthened sentences and the denial of probation and parole, the number of prisoners confined for narcotics violations has increased sharply. The Federal Bureau of Prisons reports the number of prisoners serving sentences for these offenses as follows from 1950 to1960. 34
The Bureau of Prisons has repeatedly warned that this increase in the number of narcotics offenders in federal prisons has undesirable consequences because a large proportion of these prisoners are not eligible for parole and create custodial problems. In 1957 the Bureau commented as follows upon this problem:
. . . the 1956 law bars most persons convicted under it not only from the possibility of being placed on probation, but also from eligibility to parole consideration. Now for the first time since 1910, when the Federal parole law was originally enacted, a group of prisoners in federal institutions face no prospects of parole-no prospect of advancing theirrelease dates except through statutory good time or executive clemency. This no-parole group in federal prisons numbered 479 at the year end, of whom a considerable number were serving extremely long sentences including one serving a life sentence. [At the close of the next year, 1958, this total Of 479 had increased to 1,394.1 This latter offender will be denied the privilege accorded other prisoners under life sentences of being considered for parole after 15 years. He and others who may receive comparable sentences can look forward only to remaining in prison for as long as they live.
This law has serious implications for the future of the Federal prison system. We look forward to an ever-increasing population of drug offenders in our already crowded penitentiaries. Sentences of 10, 15 and 20 years are already becoming common in certain districts, with some as long as 30, 50, and 80 years. There can be no question but that in the future the steady accumulation of long-sentence drug offenders will tax to a maximum the resources of our penitentiaries, particularly those at Atlanta, Leavenworth, and McNeil Island. The changes in prison population which will stem from the enforcement of this law will necessitate modifications of institution programs in which sound correctional practices may have to be subordinated to the needs of long term custody."'
Obviously, similar problems exist in many state, county, and municipal penal establishments in areas where drug offenses are numerous. Lt. Joseph J. Healy of the Chicago Police Force boasted to the Price Daniel subcommittee that many of the Illinois institutions were "loaded" with addicts:
Now we have the house of correction loaded. I was talking to the warden today, and he said the place is loaded with addicts. The county jail is pretty well loaded. And last week at this hearing, there was a State Senator from the State of Illinois who testified as to the prisoners in Joliet; there is pretty close to a thousand addicts down there.36
It is noteworthy that some of the officials who must live on a day-to-day basis with the consequences of the present penalty provisions of our narcotics laws, i.e., prison wardens, seem to be strongly opposed to those provisions. From his survey, Senator Thomas J. Dodd, for example, found 92 per cent of the federal wardens opposed to the mandatory minimum penalties and 97 per cent to the denial of probation and parole.,",
The bare statistics on the number of narcotics offenders in penal institutions, state and federal, do not do justice to the human problems involved. The prisoner serving a long sentence without the possibility of parole feels deprived of hope. He compares himself with rapists, murderers, and other types of criminals who are eligible for parole. Narcotics offenses, even those of peddling drugs, are never exactly alike and often there are mitigating circumstances which ought to be taken into account but cannot be because of the inflexible, mandatory nature of the penalties. The consequence is that unequal Crimes are treated equally, and there is, among these prisoners, an enormous fund of resentment and bitterness.
Unquestionably the legislators who enacted the 1951 and 1956 statutes had the idea in mind that the harsh punishment prescribed would fall primarily on the professional peddler of drugs. As written, the statutes do not, however, distinguish the professional peddler from one who temporarily succumbs to the temptation of easy money or from the person who is only peripherally and somewhat accidentally involved. Thus a twenty-five-year-old woman in Chicago who was in love with a heroin distributor was asked by, him to transport a grip full of heroin. This woman had no prior criminal record and had worked regularly, at the same place for a number of years. Being in love, she was willing to do whatever her lover asked her to. One would think that in a case of this kind the wisest social policy would have been to put this girl on probation. Under the law she had to be sentenced to five years in federal prison without the possibility of parole.
At the White House Conference a federal judge told of a Marine lieutenant with an honorable civilian and military record who crossed the border into Mexico, where he became drunk. When he crossed the border a marihuana cigarette was found in his pocket. Despite his blameless record, and despite the fact that he was a married man with a wife and children, he was prosecuted and convicted for transporting marihuana and had to be sentenced to five years in prison with no parole possible, by a reluctant Judge.38
It is unnecessary to multiply examples of this sort. The laws are tailor-made to produce such results. They are based upon stereotyped thinking about drug peddlers and on the implicit assumption that all drug-selling offenses are essentially the same and that there are no mitigating circumstances.
Many persons who criticize the effects of current laws upon addicts are totally indifferent to what is done with so-called "peddlers" and frequently feel that no punishment is too severe for them.
Despite this common attitude, the question remains whether there exists any kind of criminal offense which is so severe as to justify abandoning the concept of justice in dealing with it.
In view of the large and growing numbers of prisoners serving long sentences in state and federal prisons without the possibility of parole, considering that some of these persons were sentenced with manifest injustice because of the extraordinary character of the laws, and since some of the sentences imposed undoubtedly reflected a kind of temporary mass hysteria generated by sensational and misleading propaganda, it is pertinent to suggest the need to provide relief for some of these prisoners. Certainly the wardens of our prisons would welcome such action.
THE COURTS AND THE PUBLIC
What happens to addicts and other drug offenders in court is a matter of considerable importance in enlisting cooperation and support for the agencies of justice. In general, one would expect that a public which has confidence in its police, its courts, and its laws, and which has learned to expect justice and fair play from these agencies, would cooperate with them in the enforcement process. For example, if the parents of adolescent drug users in our cities felt that it would be in the interests of their addicted sons to report them to the police, they would no doubt do so. The same holds for the members of the medical profession when they become aware of addiction on the part of a nurse or a doctor. The present attitude is largely, one of non cooperation because it is felt that arrest and prosecution aggravate the plight of the individual user rather than helping him. The addict is not generally viewed as a criminalperson, but as a sick person, and there is general agreement that he is more appropriately handled in hospitals than in jails or prisons. As a consequence, in ill strata of our society the friends and relatives of drug users try to keep them from falling into the hands of the police. To be apprehended and processed by the legal system is justifiably regarded as a disaster second only to that of addiction itself.
As we have pointed out in earlier chapters, victims are not distinguished from criminals in this area of enforcement, where there are no natural complaining witnesses who will spontaneously seek the help of the police. The addict, it is felt, needs medical care, but this the police are not in a position to give. Hence the public, or that portion of it which is closest to the addict, withholds cooperation, and tile police are forced to get along without what is ordinarily regarded as the indispensable basis of sound enforcement. The demand from the police that they be given special freedom
of action in narcotics cases, that constitutional guarantees and the laws of arrest, search and seizure be relaxed, and that the recruiting and protection of informers be given special legislative and court attention, all of these, no doubt, represent a search for substitutes for the popular support and cooperation which is lacking. The attacks on judges are part of the persistent human tendency to look for scapegoats and to pass the buck. This chapter is intended to suggest that the blame ought to be placed, not on judges or on police or prosecutors, and nor on the Bill of Rights, but rather on the control system itself and on the assumptions upon which it is based.
introduction | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10
1. Los Angeles Times, March 3, 1960, Part 3, P, 2.
2. Edwin M. Schur, Narcotic Addiction in Britain and America: The Impact of Public Policy (Bloomington: Indiana University Press, 1962),P.53.
3. Traffic in, and Control of, Narcotics, Barbiturates and Amphetamines: Hearings before a Subcommittee of the Committee on Ways and Means, U.S. House of Representatives, 84th Cong. (Washington, D.C.: U.S. Government Printing Office, 1956), P. 49. Hereafter referred to as Boggs Subcommittee Hearings, j956.
4. Ibid., p, 56.
5. Ibid., p. 167. See also the hearings in iq5z of the same subcommittee, also under Hale Boggs.
6. Treasury and Post Office Department Appropriations Hearings for iq6z and 1963; Hearings before the Subcommittee of the Committee on Appropriations, U.S. House of Representatives, 87th Cong., ist and 2d sess., March z, iq6t, and Jan. 30, 1962, pp. 233-71 and 253-3o4 respectively.
7. lbid.,P. 268, 1961 Hearings for iq6z.
8; Lt. [now Capt.] Thorvald T. Brown, The Enigma of Drug Addiction (Springfield, Ill.: C. C. Thomas, iq6i).
- 9. Ibid., p. 2.og,
10. Ibid., pp. iqq-2m.
11. Ibid., p.iot.
12. Ibid., p. 2oz.
13 - Ibid., pp. 2 o8- j o.
14. Ibid., p. 207
15- Ibid-, p- 2o3.
x6. Report by the California Board of Corrections, Narcotics in California, Feb. 19, 1959 (Sacramento, Calif.), pp. 8, 13. In this report it is stated that of 598 consecutive male adult prisoners received in 1957 not a single one qualified as a nonaddicted peddler at the "management level."
17- Daniel Subcommittee Hearings, Part 1 (1955), p. 161.
18. Ibid., p. 162.
19. Ibid., pp. 163-64
20. Ibid., pp. 161-62.
2 1. Ibid., p. 159.
22. William Butler Eldridge, Narcotics and the Low: A Critique of the American Experiment in Narcotic Drug Control (Chicago: American Bar Foundation, iq6z), pp. 150-93. In the summary of state laws in this work it appears that close to one half of the states punish possession as a felony in accordance with recently enacted statutes.
23. This discussion is based on observations made in Chicago when possession was made a felony.
24. Cf. W. B. Eldridge, Narcotics and the Law, p. 88.
25. Cf. Bureau of Criminal Statistics, California State Department of justice, Drug Arrests and Dispositions in California, 1962 (Sacramento, Calif.), PP. 4, 15, 29.
26. E. H. Sutherland, Principles of Criminology 3rd ed.; Philadelphia: Lippincott, 1939), PP. 279-80.
27. Cited in ibid., P. 28o.
28. The following account is based on the description of the case in Judge Jerome Frank and Barbara Frank, Not Guilty (New York: Doubleday-, 195 7), pp. 99- 1 1 1. The case was also extensively reported in the New York Times.
29. Daniel Subcommittee Hearings, Part 5 (1956), pp. 1801-2.
30. Harry J. Anslinger and Will Oursler, The Murderers! The Shocking Story of the Narcotics Gangs (New York: Farrar, Straus and Cudahy, 1961 ), pp. 175-76, 18 i-8z.
3 1 . Boggs Subcommittee Hearings, 1956, p. 166.
32. Daniel Subcommittee Hearings, Part 9, PP. 4295-97.
33. Chicago Tribune Magazine of Books, Aug. 17, 1958, P- I
34. From Federal Bureau of Prisons, Report of the Work of the Federal Bureau of Prisons (annual reports), 1950-ig6o. Hereafter referred to as Federal Prisons.
3 S. Federal Prisons, 1957, PP- 5-636. Daniel Subcommittee Hearings, Part 9, P- 4195
37- Proceedings: White House Conference on Narcotic and Drug Abuse, Sept. 27 and z8, 1962 (Washington, D. C.: U.S. Government Printing Office, 1963), P- 2 30
A Ibid., P. 2 3 1