Task Force report : narcotics and drug abuse annotations and consultants' papers.

  • United States. Task Force on Narcotics and Drug Abuse.
Date:
[1967]
Catalogue details

Licence: Public Domain Mark

Credit: Task Force report : narcotics and drug abuse annotations and consultants' papers. Source: Wellcome Collection.

    115/172 (page 105)
    It must be emphasized that even were the evidence which might support long periods of isolation for use or possession by addicts and habitual users of such drugs clearer, a determination that a person could be isolated merely because he has lost control over the use of a drug would depart from principles which at the very least re- quire a determination that the particular individual to be isolated poses a danger to himself or to society. If it is feared that dangerous drug abusers will intro- duce nonusers to drugs and distribute drugs, they may be punished for trafficking offenses including possession for the purpose of sale or distribution. If it is feared that use will lead to crime, the user may, unless he should be determined irresponsible, be punished for the crimes he commits. If particular abusers are dangerous to them- selves or others because of mental illness or otherwise meet general requirements for hospitalization of the mentally ill, they should be treated as other mentally ill persons and isolated for the safety of society and of themselves and for any possible treatment that may be afforded to them. If they only possess or use drugs and are not suffi- ciently disturbed by their use to meet usual] standards for commitment as mentally ill, or as long as there is little likelihood that they can be successfully treated, they should not be subjected to nonpunitive isolation.?** Self-Medication and Common Use. Possession and use offenses make crimes of conduct (such as self-medica- tion) which is (1) rather widespread and (2) though certainly undesirable, is not necessarily an indication of any or at least an appreciable aberration from what is normal in our society. Whether it is wise policy for the criminal law to reach such conduct is very questionable. Although the legislative history of the possession pro- vision of the 1965 Federal amendments is by no means clear on the point, apparently possession for personal use was at least in part exempted from the prohibition, because given the widespread use of “medically depressant or stimulant drugs” and the extent of self-medication in the United States, a simple possession provision would make criminals of a large number of persons for unde- sirable but rather “normal” conduct, and perhaps also because of difficulties of enforcement against such persons, the fear that prohibition of such conduct might not be taken seriously, and the belief that punishment would not benefit the user.?** Conversations between the au- thor and FDA officials who were involved in the formu- lation of the amendments revealed that a desire not to reach conduct which is so common and the belief that some users were ill persons lay behind the exception. On more than one occasion the American experience with prohibition of alcoholic beverages was referred to in Congress. One representative in pointing out that the legislation did not apply to users even if they obtained 105 drugs improperly, stated “we have to keep in mind and avoid the unfortunate experience this country had in its attempted regulation of alcoholic beverages.” 7° The report of the House Commerce Committee on H.R. 2 stated : 248 The committee is mindful of the difficulties which this country had in its attempted regulation of al- coholic beverages, and therefore, has provided for regulation of depressant and stimulant drugs by in- creased recordkeeping and inspection provisions rather than by imposing more rigid controls. The legislation does not apply to the ultimate consumer of these drugs, even when he acquires them through illicit channels, but imposes controls upon all in the chain of distribution from the manufacturer down to (but not including) the user. The desire not to make the user a criminal for small and fairly common derelictions appears in the testimony of William W. Goodrich, then Assistant General Counsel of the FDA during the hearings held on the 1965 amend- ments before the House Commerce Committee: 757 Mr. SATTERFIELD. Wouldn’t you be in a better sition from an enforcement standpoint if you could make it illegal to have it in possession without the prescribed prescription? Mr. Goopricu. This sort of an idea was consid- ered before. Since we were concerned with com- mercial distribution, it was decided that it would be best to put it in terms as it is in the bill, rather than make it so wide open that if you got your druggist to give you six pills without a prescription you would be a criminal. That is the idea of this provision. The CuHatrMAN. What this would do is to get that druggist and not to the man who may have a half dozen pills for his own use. Commissioner Larrick. That is the point. The Cuairman. But if the man who gets it il- legally, then proposed to distribute it illegally, it does reach him. Commissioner Larrick. That is the point. We could prove it probably by the large volume in his possession as well as by an actual sale. Apparently, similar views lay behind the decision to omit a simple possession prohibition from the 1961 Can- adian Federal legislation controlling the distribution of barbiturates and amphetamines. The Chief of the Divi- sion of Narcotic Control of the Canadian National De- partment of Health has written of it: *** 283 See Aronowitz Report at 8. 284 During the testimony of Dr. John Griffith, Director of the Oklahoma Mental Health Piarning Committee, before the House Commerce Committee, Dr. Griffith was asked by Chairman Harris of the committee whether he thought simple possession should be punishable: The CHARMAN. Suppose you catch an addict with some. and he obtained them from a peddler. Dr. GrirritH. Punishing him is not going to change the situation materially. The Cuairman. I am inclined to agree with you. Hearings at 316. 285 Statement of Representative Minish of New Jersey, III Cong. Rev. 4580, col. 1, 89th Cong., Ist sess. (House) (daily ed. Mar. 10, 1965). 286 House Report at 3. 287 Hearings at 362. 288 Hammond, “The control of barbiturates and amphetamines in Canada,”’ 15 Toronto L.J. 443, 445 (1964). The Canadian act prohibits trafficking and possession for the purpose of trafficking. The procedure in a prosecution for possession for the purpose of trafficking under the Canadian act is outlined in it as follows: 33. (1) In any prosecution for a violation of sub. (2) of sec. 32 [possession for the purpose of trafficking] if the accused does not plead guilty, the trial shall proceed as if the issue to be tried is whether the accused was in pos- He is the user, session of a controlled drug. (2) If pursuant to sub. (1) the court finds that the accused was not in possession of a controlled drug, he shall be acquitted but if the court finds that the accused was in possession of a controlled drug, he shall be given an opportunity of establishing (a) that he acquired the controlled drug from a person authorized under the regulations to sell or deal with controlled drugs; or (6) That he was not in possession of the controlled drug for the purpose of trafficking and thereafter the prosecutor shall be given an opportunity of adducing evidence to the contrary. (3) If the accused establishes the facts set forth in paragraph (a) or (6) of sub. 2 he shall be acquitted of the offense charged; and if the accused fails to establish he shall be convicted of the offense as charged and sentenced accordingly. 34. *.9 * (2) In any prosecution under this part the burden of proving an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment. “‘An Act to Amend the Food and Drugs Act,’’ 1961, 9-10 Eliz. II, ch. 37, §§ 33, 34.