A year ago I warned in these columns that a Senate subcommittee chaired by Senator Price Daniel had recommended for passage a new anti-narcotics bill which would set a new low in a field already characterized by ill-conceived legislatlon. Since this time the bill, known as the Narcotics Control Act of 1956, has become law. It increased the already severe mandatory penalties required by the Boggs law of 1951, and represents a further development of the punitive, prohibitlon type approach to the drug problem first established federally by rthe Harrison Act of 1914.
Both the 1951 and 1956 enactments, as well as the hearings and recommendations of the Congressional subcommittees which led to their passage, reflect conceptions of justice and penology which can only be adequately described as medieval and sadistic.
The 1956 act calls for the following penalties for illegal possession oi drugs: (1) first offense, two to ten years’ imprisonment and a fine not to exceed $20,000; (2) second offense, five to twenty years’ imprisonment and a fine up to $20,000; ( 4 ) third or subsequent offense, ten to forty years’ imprisonment plus a maximum fine of $20,000. For first and second selling offenses the penalties are the same as in (2) and (3); for the sale of heroin by a person over eighteen years of age to anyone under eighteen the penaIty is the same as ( 3 ) with the additional provision that the death penalty may be applied at the discretion of a jury.
The minimum penalties for all Offenses except (1) are mandatory; probation, suspension of sentence and parole are specifically forbidden. The elimination of parole means that persons convicted under the law will no longer be eligible for parole after serving a third of their time, but will have to serve at ieast two thirds. The death penalty is primarily a gesture, since very few cases of the kind to which it might apply are ever tried before a jury and because juries are in any case reluctant to impose the extreme penalty.
One of the basic injustices of the narcotic laws in general, and of the recent laws in particular, is that the penalties fall mainly upon the victims of the traffic—the, addicts—rather than upon the dope racketeers against whom they are designed. Assistant Attorney General Warren Olney III explained this to the Boggs subcommittee:
Probably, the most serious difficulty with the narcotic laws is the fact that they make no distinction between the violator who is a profiteering racketeer and the violator who in many respects is a victim of the drug itself, the addict. The same law is applicable to both and they are also subject to the same penalties. Unfortunately the addict and the petty pusher are much more easily apprehended than the major trafficker, who is the source of supply and is several echelons removed from the last seller who deals with the illicit consumer. The result is that the present rather severe penalties are more often applied to the relativeIy minor violator than to the “big shot” for whom they were designed.
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The truth of this statement is borne out by the fact that even on the federal level, where there is a higher proportion of important peddling cases than in the state courts, over half of the defendants are addicts.
In Chicago, Senator Daniel and the state’s attorney for Cook County, John Gutknecht, discussed the prevalence of Negro defendants among those charged with violation of narcotic laws. It was agreed that Negro peddlers operated mainly in the lower and middle branches of the illicit traffic and that they obtained their supplies ultimately from white gangsters who scarcely ever appear in ‘the Chicago courts. Mr. Gutknecht sald: “The white race is responsible for the distribution of narcotics in America, and let’s not kid ourselves. The others are the victims.” The discussion then turned to ways and means of providing more severe punishment for the ‘‘victims’’!
There was agreement in the Congressional hearings concerning the difficulty in catching the “big shots.” R. Tieken, United States Attorney for the Northern. District of Illinois testified :
The narcotics importer and wholesaler are professionals. They have plenty of money, powerful allies and expert knowledge of how to evade the law and escape detection. They are not addicts and seldom handle drugs themselves. They have no bank accounts and deal only in cash. Their errands are run by others who transport the drugs and conduct the sales. To convict the big operator is a difficult task and we fully, appreciate that we are nowhere near the big operator when we arrest the pusher who sells to the addict. Even when the pusher tells all he knows we only reach the dealer—merely one step up the ladder. The ladder may have several steps before it reaches the big importer and the profits from importing and distributing narcotics are enormous.
’The only measure suggested !for getting at the “big shots” was legalized wire tapping; such a clause was deleted from the bill before passage.
Even assuming that the big traffickers could be caught, it is a further absurdity that the new narcotic laws do not necessarily increase the penaltles against them. An illustration will clarify the point. In 1936, fifteen years before the Boggs Act, the Federal Bureau of Narcotics described in its annual report the breaking up of a dope ring which had operated in Texas, obtaining its supplles from a source in Chicago which in turn had gotten them from a hlgher source in New York. The six principals were convicted and received punishment as follows: L. Ginsberg, fifty years and a $10,000 fine; E. D. Smith, G. Payne and J.C. Allen, twenty years and a $2,000 fine each; J. Walker, seventeen years and $3,000; U. Eichenbnum, ten years and $2,000.
These persons were clearly no “big shots,” but they were fairly important middle-echelon dealers. Offenders of this caliber are not very often caught and are therefore usually first offenders. Were they tried today under the 1956 law, the minimum mandatory penalty applicable to them would be five years—a much shorter sentence than they actually received. Of course, they could get more, but only at the discretion of the judge. Sentences tend to run longer now not because important operators are being caught more often, but because the law requires heavier penalties for minor offenders.
The Congressional subcommittees seemed to accept in the abstract the idea that drug users are diseased persons (the Supreme Court declared in 1924 in the Lindner case [268 US 5] that “[addicts] are diseased and proper subjects for [medical] treatment”). But as a practical matter the "treatment” now accorded addicts consists of imprisonment and police harassment.
Besides being subject to punishment for possession and sale of drugs, and for crimes committed to raise money with which to purchase supplies, the drug user is subjec to local police harassment merely for being, or having been, addicted. Illinois, for exampIe, requires that addicts register as such; punishment is provided for those who fail to register or to carry identification cards. If the user has registered and possesses a card when he is picked up, he can be charged under a Chicago ordinance for "loitering.” A state "needle" law provides penalties for the unauthorized possession of hypodermic needles or other paraphernalia of addiction. Police policy is simply to arrest and search any known addlct and his companions on sight and to charge them in court wlth loitering if nothing more serious is turned up.
The local laws do not apply to non-addicted peddlers, who are thus in an advantageous position compared to the user. Moreover the peddler, generally represented by competent counsel, finds that illegal police practices often bring him acquittal and that he enjoys the full benefit of the presumption of innocence. To the addict, on the other hand, the presumption of innocence and other provisions of the Constitution are meaningless. For him the police state is already in being.
At the Chicago hearings of the Daniel subcommittee, it was testified that most of the drug users brought into the Chicago Narcotics Court were discharged as illegally arrested. Gutknecht commented:
In view of my background as a law professor, I am very jealous of civil rights, civil rights of indlvlduals. One of the things I determined when I got in there was that I was going to be particularIy careful about that. I must say this to you, that where narcotic addicts are concerned, I haven’t had many complaints, though I do know the police are a little prone to pick up these men. They [the police] have protection of an ordinance, and i must say the problem is so serious that even if we must admit some of their civil rights are being violated, you have to go along with a certain amount of that fringe violation, if you know what I mean. The reaction of the members of the subcommittee was to complain that not enough of those illegally arrested were jailed and that, for those sent to prison, sentences were too short.
In the Chicago Narcotics Court and in other similar courts in our large cities, there is a long, shabby, pitiful parade of indigent drug users and petty offenders, mostly Negroes. These persons, except in the rare instances when they happen to be represented by lawyers, are hustled through the courts with such haste that a decent defense is precluded. The notion that punishing these victims will deter the lords of the dope traffic is as naive as supposing that the bootlegging enterprises of the late AI Capone could have been destroyed by arresting drunks on West Madison Street or Times Square.
Apart from the fact that jails and prisons are not currently supposed to be regarded as appropriate pIaces for diseased persons, the incarceration of addicts is bad on other grounds as well. James V. Bennett, Director of the Federal Bureau of Prisons, criticized the 1951 act as follows: “I feel the law is a mistake. It is certainly a mistake so far as addicts are concerned. I feel that it has handicapped our efforts to salvage and rehabilitate them and has complicated our institutional problems.” Association within a prison tends to spread addiction among criminals and criminality among addicts. The stigma of criminality and the influence of prison associations make the drug habit more difficult to break.
Even if it were possible to establish institutions in which all known addicts could be locked up for the rest of their lives, such a program would be futile. The big-shot dealers would still be at large, creating new generations of users. There is, in short, no substitute for punishment of the guilty. As long as addicts rather than peddlers bear the brunt of the penalties, the traffic is bound to continue.
There is an economic reason for the persistence of the illegal drug trade in the face of growing public indignation and increasing penalties. Police success in arresting drug distributors inevitably raises prices and increases profits; the illicit traffic thus depends in part upon the efforts made to suppress it. Reports on the operations of dope rings and on the value of seized drugs act as advertisements which lure new talent into the business. Since those who make the profits are non-addicts, and not the same persons as those who take the risks, punishment of the latter does not deter the former but only increases their profits.
A curious feature of our narcotics laws is that their enforcement is to a great extent actually placed in the hands of the drug addicts themselves, who act as police informers. One purpose of police harassment of addicts is the securing of information and the recruitment of informers. Addicts are used to “set up” the peddlers from whom they buy their supplies. The addict-informer does this by making a purchase with marked money. When the transaction is concluded, the police attempt to clinch the case by arresting the peddler and recovering the marked money from him. Without this kind of help the police would be relatively helpless.
Since the informer, or “stool pigeon" is ordinarily rewarded by being allowed to continue hls addiction (as well as in other more direct ways which cannot be disclosed in court), it is easy to understand why, when the defendant-peddler is a non-addict who can afford a cqmpetent attorney, it is at this point that the case for the prosecution becomes vulnerabie. Since the stool pigeon is himself often a criminal engaged in the same enterprises as the defendant, and since he is being paid by the police to give testimony which will convict a fellow criminal, his evidence often requires police corroboration.
Mandatory penalties assist the police to recruit informers. The discretion, which mandatory punishment removes from the court, is transferred to the police and the prosecution, who use it to bargain with the accused for guilty pIeas and for information. Addicts who inform secure immunity from punishment, lighter punishment or release on probation.
The use of drug-using stool pigeons in the enforcement of the law is a complicated and unsavory matter which was not examined by the Congressional committees. It sometimes involves the police in violations of the narcotic laws and of other laws as well, and it leads to erratic enforcement because the penalties may be inflicted for failure to cooperate with the police rather than for the crime committed. The very abundance of informers among street-corner drug users has become a problem, with the police of one jurisdiction sometimes arresting informers working for another or with informers trying to make ‘‘buys” from each other.
The informer technique almost never leads to the top operators. Important deaIers take extensive precautions against betrayal and often kill those who squeal. Moreover, there are few informers in the upper branches of the traffic, both because addicts are excluded and because the bigger dealers do business only with persons wllom they have known for a long time and who have already proved their abllity to resist police "interrogation." The consequence of all this is that the chief result of the addict’s activities as a minor law-enforcement officer is to send his fellow addicts to jail.
The present punitive controls have been in effect since the Harrison Act of 1914. The injustice of punishing the victim of the traffic instead of the real culprit has been evident from the beginning to those familiar with the operation of the law, but it has not been evident to the public. The emergence of the traffic into a natlonal scandal merely enabled the politicians to exploit the problem; they point in alarm, they denounce—and they demand heavier and still heavier penalties. That the penalties fall upon the victim rather than the culprit makes no difference; what polltician bothers to rush to the defense of "dope fiends"?
The pressure exerted by an aroused public opinion upon essentially unjust, ineffective and unenforceable laws has resulted in a process of degeneratlve change. Laws have become, unreasonably cruel and inflexible and are now, to a considerable extent, designed in the interests of police expediency rather than of justice. In this whole process, the forgotten man has been the addict. His degradation and hopelessness have been made more complete by denying him the benefits of care from the healing professions and by turning the unsolved medical problem of addiction over to the police.
