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.

117/172 (page 107)

ties or where there is other evidence that possession was for the purpose of sale or distribution. $ince some ad- dicts and habitual users of “medically depressant or stimulant drugs” may take considerable amounts and may have relatively large supplies of drugs in their possession for their own use, there will be cases where possession of fairly large amounts will be as consistent with innocence as with guilt. However, as quantity increases, the infer- ence that possession was for distribution is strengthened. While some persons who in fact are sellers may escape liability in cases based on ambiguous quantities, it is sub- mitted that this is necessary to avoid a liability that is based solely on conduct ambiguous in its relation to the evil at which it is aimed. Burden of Proof, Presumptions, and Quantity Limita- tions. Under the Federal possession provision the Government carries the burden of proving that possession was not for an excepted purpose. ‘This provision is de- sirable. Problems involving the allocation of both the burdens of persuasion and coming forward “have as large a substantive as adjective dimension.” ?°* Were the bur- den of persuasion to be shifted to the defendant,?® it is be- lieved that some number of defendants who did not have prescriptions for the drugs they possessed but who were only users and not sellers could be convicted. In opera- tion, such a provision might become very close to a simple Possession provision. A statutory requirement making possession for per- sonal use an affirmative defense and relieving the prose- cution of the burden of producing evidence of the purpose of possession in the first instance would not seem war- ranted.*°® Such a requirement could not be justified on the basis that claims that possession was for personal use are likely to be exceptional; such claims will probably be fairly frequent, depending in large part upon the quan- tities involved in particular cases. It is recognized that where the offerse is simple possession it might be argued that the defendant should come forward with evidence that his possession was under a prescription, because it is difficult to prove a negative; however, the situation under a provision like the Federal provision is different. Although nominally the Government must prove a nega- tive, it will in effect usually be attempting to prove that possession was for the purpose of distribution. While the fact that shifting the burden of initially coming for- ward puts pressure on the defendant to testify may per- haps not be decisive,?®’ it too militates against such a requirement. Finally, such a requirement could not be said to be uniformly fair. It would be unfair when the Government proves unauthorized possession of only one or two pills and nothing more in its direct case, because if such proof suggests anything, it suggests that possession was for personal use. These considerations also suggest that a presumption assuring that the issue of the purpose 107 of the possession will be submitted to the jury upon proof of unauthorized possession of any quantity of a controlled drug, no matter how small, would be inappropriate.?% It is not believed that possession of a specified minimum quantity of a drug should in itself constitute a crime or be designated by statute as prima facie or presumptive evidence of a possession for sale or distribution offense. This recommendation is only in part based on the view, drawn from experience with such statutes in the narcotics field, that peddlers will make sure to carry less than the quantity named.” The then executive secretary of the Ohio board of pharmacy has informed the author that the possession for sale provision of the Ohio Dangerous Drug Distribution Act (which makes possession of more than 150 times the usual dose presumptive evidence that pos- session was for sale) has worked well, even though there have been some instances where pushers have taken care to carry around less than that number.®° To the extent, however, that pushers do take care to carry around less than the minimum where there is a quantity provision, the Federal provision would seem preferable. Quantity will be significant under the Federal provision. Some cases may be based entirely on it, and it is to be expected that the Federal courts will evolve some guidelines on quantity. It is unlikely, however, that these guidelines will be as inflexible as a minimum quantity denominated in a statute. Presumably, in some number of cases quan- tity will be only one factor in proving the purpose of possession.*°t Hence, under the Federal provision, it appears less likely that a peddler can be confident that he is insulated from prosecution by the quantity he is carrying. There is a more fundamental objection to a quantity limitation. Perforce, any quantity limitation must be arbitrary. If the minimum is low enough to reach almost all peddlers, it will probably also reach a not insignificant number of nontrafficking users and situations where the possession involved in the charge was for personal use. If it is high enough to exempt almost all nontrafficking users it will probably exempt some peddlers too. Thus, a provision like the Federal provision which allows all the circumstances to be taken into account would seem preferable. A quantity provision making possession of a minimum amount prima facie evidence of violation, but expressly or by implication permitting the purpose of possession to be proved in other ways, would at first glance seem to obviate some of the weaknesses of a provision where violation de- pended on quantity alone. However, it is believed that if a statute at all mentions quantity, prosecutors and trial judges will in actual practice tend to look at proof of quantity as the sole method of proof,*° or at least that proof will be difficult in cases in which the defendant did not possess the quantity named, and prosecutors will be reluctant to prosecute in such cases. It also may be antici- pated that where the defendant did possess the quantity ( 204 Bc ate to Model Penal Code, § 1.13 (now § 1.12), Tent. Draft No. 3, 108 1955). 296 There may be some doubt as to whether this would be constitutionally per- missible. Cf., note 370 infra. But see Leland v. Oregon, 343 U.S. 790 (1952). 286 On the constitutional propriety of such a provision, see note 370 infra. ( 207 ——— to Model Penal Code, § 1.13 (now §1.12), Tent. Draft No. 4, 112 1955). 298 On the constitutional standard for testing the validity of such a presumption, see note 370 infra. 298 Hutcherson v. United States, 345 F. 2d 964, 971, 975 and n. 21 (D.C. Cir. 1965), cert. denied, 382 U.S. 894 (separate opinion of Bazelon, J.); Eldridge, Narcotics and the Law 52-56 (1962). 300 Thé Secretary stated that enforcement officials, alerted to the suspect’s pos- session, observe him until he either possesses the requisite quantity, sells, or leads them to his source. Letter of Dr. Rupert Salisbury, then Executive Secretary of the Ohio State Board of Pharmacy, to the author, dated June 30, 1966. 301 In a letter to the author dated July 25, 1966, Alfred J. Murphy, Senior Inspector, Drugs Control Section, Massachusetts Department of Public Health, stated that under the Massachusetts possession with intent to sell provision (which “ does not refer to quantity) the purpose of the possession may be proved by ‘“‘a quantity of pills far above the normal amount for self-medication or abuse’’ and by other evidence of intent to sell. This other evidence may include prior sales and offers to sell. Inspector Murphy further stated: : Possession for one’s own use is not difficult to discern from possession with intent to sell in actual field operations. The user very rarely has sufficient funds to purchase large quantities 500 or more tablets [sic] and usually goes to his or her home immediately after scoring. The user very rarely carries more than two dozen tablets on his person at a time. Amounts over this are usually stashed in several readily accessible places around his home. 302 In a letter to the author dated Aug. 1, 1966, Dr. Rupert Salisbury, then Executive Secretary of the Ohio Board of Pharmacy informed the author that proof of prior sales are admissible under the Ohio possession for sale provision. That provision, of course, makes possession of more than 150 dosage units presumptive evidence of guilt. While Dr. Salisbury did not state to what extent cases are prosecuted where the possession in question is of a lesser quantity, Mr. William Pearce of the board informed the author during a telephone conversation that there is no prosecution for possession for sale in this situation.