Task Force report : narcotics and drug abuse annotations and consultants' papers.
- United States. Task Force on Narcotics and Drug Abuse.
- Date:
- [1967]
Licence: Public Domain Mark
Credit: Task Force report : narcotics and drug abuse annotations and consultants' papers. Source: Wellcome Collection.
111/172 (page 101)
![—— to the prescription, administration, and dispensation of “depressant or stimulant drugs” could be limited by ad- ministrative regulation or judicial decision if it is not safeguarded by statute. | USE AND POSSESSION OFFENSES There are a number of offenses which may be utilized to punish the user who improperly obtains drugs for his use. Provisions prohibiting obtaining of dangerous drugs by. fraud or misrepresentation, as by forging or altering a prescription, will often reach the user. These provisions are directed at preserving the integrity of legitimate chan- nels of distribution, but they are capable of being em- ployed to reach the user solely for his use. While no in- formation has been obtained to what extent vagrancy and disorderly persons offenses are used to reach the danger- narcotics addicts and alcoholics suggests that they are capable of being similarly employed against dangerous drug users. Unauthorized use of dangerous drugs is it- self a crime in a few States.”“* The crime of use is, of course, directed against use, but it may also be at least in part directed and utilized against distribution. Thus, prosecution for use may be directed against the user’s conduct in obtaining the drug he used. Also, since it is not always easy to prove whether a person is a seller, the police may assume or suspect that a user is a seller and charge him with use when they are really directing their activities to trafficking. The most common user offense is possession of a drug not pursuant to a prescription or not dispensed by a prac- titioner in the course of his professional practice—i.e., simple possession. Almost all State laws dealing with dangerous drugs make simple possession an offense.??° The 1965 Federal amendments, on the other hand, ex- empt from their prohibition on possession, possession for the personal use of the possessor or of a member of his household, or for administration to an animal owned by him or by a member of his household. A simple possession offense, like a use offense, can be used to serve a number of purposes. From either of two standpoints, it may be viewed as a trafficking offense. First, it may be seen as an offense directed against the possessor’s conduct in obtaining the drug. Second, it may be seen as an offense preparatory to a sale or other distribution by the possessor,?° and, 101 so viewed, may be employed against persons whom law enforcement officials believe are distributors, whether or not they are in addition users. Law enforcement officers often claim that this is how they view the offense. They claim its existence makes law enforcement easier, because chey do not have to have evidence of a sale (by making a “buy”’) to prove a case, and they do not have to prove possession of fairly large quantities or have other evidence which might throw light on the purpose of the possession as they must under the Federal possession offense or a possession with intent to distribute offense.227 Finally, simple possession may be viewed as punish- ing for use by reaching conduct preparatory to use. In fact, the user is most commonly charged with simple Possession. _ While many of the problems pertaining to the crea- tion of possession and use offenses for the commonly used “medically depressant and stimulant drugs” such as am- phetamines, barbiturates, and nonbarbiturate sedatives (including some of the so-called tranquilizers) pertain also to the creation of such offenses for hallucinogens such as LSD which have no nonexperimental medical uses in this country, it is believed that the problems are sufficiently different to warrant separate recommendations and sepa- rate discussion. The recommendations herein are not based on the view that criminal treatment of use or simple possession is unconstitutional. It is recognized that policy and con- stitutional considerations may tend to merge. However, the recommendations are based on considerations of what is believed to be proper policy. While it is possible to argue that some of the reasoning in Robinson v. Cali- fornia *** indicates that punishment for use or even sim- ple possession is unconstitutional, the Supreme Court there specifically stated that possession may still be treated as a crime.””° As to use, it was less clear.23° Most States and lower Federal courts have narrowly read Robinson and have held that use may still be made criminal.?%% In the absence of a determination by the Supreme Court, the author for the purpose of this report assumes that at present use and possession are constitutionally punish- able. “Medically Depressant and Stimulant Drugs” The “medically depressant and stimulant drugs” which are currently of concern because of their possible potential must be determined upon consideration of evidence and surrounding circum- stances.” Id., at 18 [emphasis by the Cour']. It clarified its answer to the question certified in Webb by stating: The question specified no definite quantity of drugs, nor the time intended for their use. The narrated facts show, plainly enough, that physician and druggist conspired to sell large quantities of morphine to addicts under the guise of issuing and filling orders. The so-called prescriptions were issued without consideration of individual cases and for the quantities of the drugs which applicants desired for the continuation of customary use. The answer thus given must not be construed as forbidding every prescription for drugs, irrespective of quantity, when designed temporarily to alleviate an addict’s pains, although it may have been issued in good faith and without design to defeat the revenues.”’ Ibid. It also clarified its refusal to dismiss the indictment in Behrman. This opinion related to definitely alleged facts and must be so understood. The enormous quantity of drugs ordered, considered in connection with the recipient’s character, without explanation, seemed enough to show prohibited sales and to exclude the idea of bona fide professional action in the ordinary course. The opinion cannot be accepted as authority for holding that a physician, who acts bona fide and according to fair medical standards, may never give an addict moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction. Linder v. United States, supra, 268 U.S. at 22 [emphasis by the Court]. The following year in a dictum in Boyd v. United States, 271 U.S. 104 (1926), the Court in commenting on a portion of a charge which. might have been under- stood as meaning that “it never is admissible for a physician in treating an addict to give him a prescription for a greater quantity than is reasonably appropriate for a single dose or administration,” commented ‘‘so understood the statement would be plainly in conflict with what this Court said in the Linder Case.’”’ 271 U.S, at 107. the American Bar Association and the American Medical Association on Narcotic Drugs, Appendix A to Interim Report (1958), reprinted in Drug Addiction: Crime or Disease? 68-82 (1961). 224 Md. Ann. Code, art. 43, § 313B(b) (Supp. 1966) (‘fuse or consume’’); Act of May 30, 1966, amending Nev. Rev. Stat., ch. 454 (“fuse or possess’); N.J. Rev. Stat. 2A: 170-177.8 (Supp. 1965) (‘‘uses or is under the influence of’’) ; Okla. Stat. Ann., title 63, § 469 (1961) (‘‘use’). See also Me. Rey. Stat. Ann., ch. 22, § 2215 (Supp. 1965) (‘‘found to be under the influence of’’). 225 See note 100 supra. The pending New Jersey legislation contains a possession provision identical to the Federal provision but, in addition, continues the existing proscriptions on use and ‘‘simple’’ possession. N.J. Assembly No. 548, §§ 2(f), 5 (introduced Mar. 14, 1966). Identical penalties are prescribed for all these offenses. 226 Proscriptions on acquisition or on obtaining a drug may themselves be seen as offenses preparatory to ultimate sale or distribution by the person acquiring or obtaining the drug. So viewed they reach conduct even more remote from ultimate distribution than does a simple possession offense. 227 A number of law enforcement officers, judges, and prosecutors made this point to the author. See also Blum Report at 29; Testimony of Dr. John Griffith, Hearings at 316; Letter of Walter F. Anderson, Director, North Carolina State Bureau of Investigation, to the author (July 22, 1966); Letter of Dr. Rupert Salisbury, then Executive Secretary of the Ohio State Board of Pharmacy, to the author (Aug. 1, 1966). Ee Robinson, 370 U.S. 660 (1962), the Supreme Court held that the cruel and unusual punishment clause of the eighth amendment, made obligatory upon the States by the 14th amendment, barred a State from treating narcotics addiction as a crime. Its reasoning would bar making addiction to dangerous drugs a crime. 229 ‘*A State might impose criminal sanctions, for example, against the unauthor- ized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.’ 370 U.S. at 664 (emphasis supplied). 230 See the dissenting opinion of Mr. Justice White, 370 U.S. at 685, 688. 731 See note, ‘‘Alcoholism, public intoxication and the law,’ 2 Colum. J. of Law](https://iiif.wellcomecollection.org/image/b32179911_0111.jp2/full/800%2C/0/default.jpg)
