II. The Antecedents: Criminalization of Narcotics and Alcohol
3. Watershed: The Passage of the Harrison Act
The first national legislation designed to regulate narcotics distribution, the 1909 "Act to Prohibit Importation and Use Of Opium"' 63 barred the importation of opium at other than specified ports and for other than medicinal use. The law further required the keeping of import records. The main force behind the passage of this statute was a desire to bring the United States into line with other nations that had signed international conventions against the use of the drug. 64 However, as state anti-narcotics legislation began to take on crusade proportions, pressure was generated for federal regulation of the importation of opium for medicinal purposes and of the interstate trade in cocaine, morphine and heroin. Consequently, the Harrison Act, until this year the foundation of federal law controlling narcotic drugs, was passed in 1914.65
The Harrison Act, a taxing measure, required registration and payment of an occupational tax by all persons who imported, produced, dealt in, sold or gave away opium, cocaine or their derivatives. The Act required all legitimate handlers of these narcotics to file returns setting forth in detail their use of the drugs. Each legitimate handler was required to use a special order form in making any transfer of narcotics. Since the Act also provided that only legitimate users could register and no one but a registered user could obtain the specified form, any transfer by an illegitimate user was a violation of the Act. For those failing to comply with its registration requirements, the original Harrison Act provided penalties of not more than $2,000 in fines or more than five years imprisonment, or both.
The passage of the Harrison Act was the culmination of increasing concern in the medical profession66 about the freedom with which physicians prescribed and druggists dispensed addictive drugs, primarily morphine and heroin. During the period of little or no regulation, the innocent addicts were regarded as victims of an unfortunate sickness in need of treatment; usually they could find a friendly physician or druggist willing to sustain their habits. The passage of the Harrison Act, however, by imposing a stamp of illegitimacy on most narcotics use, fostered an image previously associated primarily with opium that of the degenerate dope fiend with immoral proclivities. As the regulation of physicians and druggists became more stringent, especially after the Supreme Court held that prevention of withdrawal was not a legitimate medical use that a prescription to an unregistered person,67 this image fulfilled itself. All addicts, whether accidental or pleasure-seeking, were shut off from their supply and had to turn underground to purchase the drugs. Inflated underground prices often provoked criminal activity and this activity in turn evoked in the public a moral response,, cementing the link between iniquity and. drug addiction.68
The early clinical experiments dealing with narcotics addiction were inevitable victims of enforcement of the Act." The concept that underlay the clinical effort-that addiction was a medical problem to be dealt with by sustaining the addict cheaply while trying to induce gentle withdrawal-was antithetical to the attitude provoking the criminal classification of unlawful possessors of narcotic drugs." Clinics were run .in such cities as New York, Shreveport and Jacksonville," but by 1923 all were closed, thus removing still another legitimate source of supply for the addict. Again, the crimes committed to enable these people to tap I the illicit sources increased public hysteria and misunderstanding 72 about the link between the opiates and crime.
Another result of the physicians' resignation to pressure was that addicts to the opiates began to commit petty crimes in order to secure the drugs which could prevent their suffering. These inevitable law-induced crimes greatly accentuated the general public belief that opiates had some inherent sinister property which could change normal people into moral perverts and criminals.
In addition to redefining the public conception of narcotic addiction in a way that would not be seriously challenged for half a century, the Harrison Act also provided a strange model for the administration of narcotics laws which would significantly affect future developments' Drafted as a tax law rather than an outright criminal statute, the Act was intended to do indirectly what Congress believed it could not do directly-regulate possession and sale of the opiates. Indeed, congressional caution was justified. A five-to-four decision by the Supreme Court in the 1903 Lottery Case73 suggested what later became fact-the Court, as self-appointed arbiter of the federal system, would plant the tenth amendment in the path of congressional regulation of "local" affairs. That direct regulation of medical practice was indeed considered beyond congressional power under the commerce clause is clearly indicated in contemporary opinions. First, in its 1918 decision in Hammer V. Dagenhart,74 the Court held the Child Labor Act unconstitutional. Second, the Court ultimately upheld the Harrison Act as a valid exercise of the taxing power 75 only by a five-to-four margin. Finally, there is some fairly explicit language about congressional regulation of medical practice in subsequent Harrison Act opinions.76
This indirect regulation of narcotics traffic under the pretext of raising revenue had a number of significant consequences. First, since the Act could not penalize users or addiction directly, there was an immediate need for complementary residual state legislation in order to deal effectively with the drug problem. Second, the enforcement of the Act was necessarily assigned to the Internal Revenue Service in the Treasury Department.
The first enforcement agency for the Harrison Act was the Narcotics Division of the Prohibition Unit of the Internal Revenue Service created in 1920.77 This division was incorporated in the Prohibition Bureau which was created in 1927 .78 In 1930, the enforcement of the narcotics laws was severed from the Bureau of Prohibition and established as the separate Bureau of Narcotics in the Treasury Department .79 The existence of this separate agency anxious to fulfill its role as crusader against the evils of narcotics has done as much as any single factor to influence the course of drug regulation from 1930 to 1970." Although the impact of the Bureau on the passage of the Uniform Narcotic Drug Act and the Marihuana Tax Act will be explained in detail in subsequent sections, it is important here to note that the existence of a separate bureau having responsibility only for narcotics enforcement and for educating the public on drug problems inevitably led to a particularly prosecutorial view of the narcotics addict. Moreover, this creation of the Bureau separate from the newly created FBI in the justice Department unnecessarily bifurcated federal law enforcement operations in this area.
C. The Judicial Role and the Constitutional Framework:
The Police Power and Intoxicant Prohibition to 1920
2. Phase Two: Probibition of Sale of Opium
As noted above, the first prohibitionary narcotics legislation was enacted on the west coast in the 1880's in order to prohibit sale and distribution of opium for nonmedical purposes. The racial overtonesof this legislation were self-consciously acknowledged by the initial Oregon and Nevada decisions. Sustaining the conviction of an alien for selling opium in Ex parte Yung Jon,"' the Oregon district court noted:
Smoking opium is not our vice, and therefore it may be that this legislation proceeds more from a desire to vex and annoy the "Heathen Chinee" in this respect, than to protect the people from the evil habit. But the motives of legislators cannot be the subject of judicial investigation for the purpose of affecting the validity of their acts. 114
The opium laws were attacked on precisely the same grounds as had been the alcohol prohibition legislation. The Nevada court had no trouble in State v. Ah Chew;115 it simply cited the License Cases, the Delaware decision sustaining prohibition of alcohol sale, and distinguished Wynebamer as holding only that the sale of lawfully acquired property could not be prohibited. Within this framework, the result was obvious:
It is not denied that the indiscriminate use of opium . . . tends in a much greater degree to demoralize the persons using it, to dull the moral senses, to foster vice and produce crime, than the sale of intoxicating drinks. If such is its tendency, it should not have unrestrained license to produce such disastrous results.... Under the police power . . . in the interest of good morals, the good order and peace of society, for the prevention of crime, misery and want, the legislature has authority to place such restrictions upon sale or disposal of opium a,, will mitigate, if not suppress, its evils to society.116
The Oregon court, in the Yung Jon decision five years later, did not take the easy way out. The court was apparently not disposed to imply that sale of previously owned alcohol and cigarettes could be prohibited, and thus reject outright the Wynebamer conception of due process;117 instead it chose to hold that sale of opium for nonmedical purposes was not an incident of ownership and, since the law did not prohibit sale for medical purposes, no property right was deprived. Not as cautious as his brethren, Judge Deady inquired more actively into the nature of opium before upholding the legislation. Whether a legislative act is "prohibitory" (and by implication whether it violates the due process clause) "must depend on circumstances, and particularly the character of the article, and the uses and purposes to which it has generally been applied in the community." 118 He then noted that opium was primarily a medicinal drug; that although used in the East for centuries as an intoxicant, that use was new in the United States and confined primarily to the Chinese; that it was classed as a poison and was less easily detected than alcoholic intoxication, "which it is said to replace where law and custom have made the latter disreputable;" and that its "evil effects" were manifest upon the nervous and digestive systems, resembling delirium tremens. Thus, there was no longstanding regard of opium as a legitimate article of property except for medical use. Accordingly, the act does not in effect prohibit the disposition of the drug, but allows it under such circumstances, and on such conditions, as will, according to the general practice and opinions of the country, prevent its improper and harmful use.119
Thus, whatever the judicial propensity to limit the police power in the interest of property rights, prohibition of traffic in opium-worse than alcohol and confined to aliens-violated no
implied or express constitutional limitations.
4. Phase Four: Prohibition of Possession of Narcotics
This active 'Judicial role in alcohol cases should be compared with the courts' simultaneous refusals to second-guess legislative "findings" with regard to the criminalization of possession of opium. In a series of cases decided in Washington, Oregon and California136 in 1890, 1896 and 1911 respectively, courts held that the relation between narcotics use and public harm was to be drawn by the legislature.
In answer to the argument, accepted in the alcohol cases, that despite the absence of explicit constitutional limitations the police power of prohibition was inherently limited to acts which "involve direct and immediate injury to another," 137 the courts replied in predictable fashion: The state may prevent a weak man from doing injury to himself if it determines that such injury may cause the individual to become a "burden on society;" "' the state could find that excessive use of opium, an active poison, would debase the moral and economic welfare of' the society by causing ill health, pauperism and insanity;... the state could find that the potential for and evils attending excessive use demand a prohibition also of nondeleterious moderate use."' Accordingly, in the words of the Supreme Court of Washington,
[i]t is for the legislature to place on foot the inquiry as to just in what degree the use is injurious; to collate all the information and to make all the needful and necessary calculations. These are questions of fact with which the court cannot deal. The constitutionality of laws is not thus to be determined .141
The California court had more difficulty with the argument that punishment of possession of alcohol had been held beyond the police power. Despite its rhetoric regarding the wide bounds of legislative fact-finding, the court actually made its own determination that public injury from private abuse was more likely with narcotics than alcohol. The lower court had said so overtly:
But liquor is used daily in this and other countries as a beverage, moderately and without harm, by countless thousands ...; whereas it appears there is no such thing as moderation in the use of opium. Once the habit is formed the desire for it is insatiable, and its use is invariably disastrous. 142
The California Supreme Court shied away:
We do not understand this to have been intended to declare an established or conceded fact. So interpreted, the expression would be, perhaps unduly sweeping. But the validity of legislation which would be necessary or proper under a given state of facts does not depend upon the actual existence of the supposed facts. It is enough if the law-making body may rationally believe such facts to be established. If the belief that the use of opium, once begun, almost ]Inevitably leads to excess may be entertained by reasonable men-and we do not doubt that it may-such belief affords a sufficient 'Justification for applying to opium restrictions which might be unduly burdensome in the case of other substances, as, for example, intoxicating liquors, the use of which may fairly be regarded as less dangerous to their users or to the public. 143
What the court said is unobjectionable. What it did not say, however, is significant. This reasoning implies that if the legislature should determine that the potential for excessive use of alcohol-and consequently for the public evils of pauperism, crime and insanity-is great enough to prohibit all use, that judgment would have to stand. Probably not intending so to suggest, the court really held that it thought that opium use was more likely adversely to affect the public welfare than alcohol use; accordingly, paternal criminal legislation was "reasonable" in the former case and not in the latter, even though they were identically "Indirect." It helped, perhaps, that the legislature was not telling the and his white, middle-class colleagues that they shouldn't smoke opium, and that the objective was merely to prevent a few "Heathen Chinee" from hurting themselves through their stupidity and from spreading their nasty habit to the whites."'
The only astounding thing about the opium possession cases is that there was at least one dissenting opinion. In the Washington case, Ah Lim v. Territory,145 judge Scott, for himself and another judge, insisted on either a more conclusive demonstration that the private act of smoking opium "directly and clearly affected the public in some manner" or a more narrowly drawn statute. He catalogued the alleged public justifications:
That smoking or inhaling opium injures the health of the individual, and in this way weakens the state; that it tends to the increase of pauperism. That it destroys the moral sentiment and leads to the commission of crime. In other words, that it has an injurious effect upon the individual, and, consequently, results indirectly in an injury to the community. 146
After noting the insufficiency of all of the 'Justifications including the argument that the moderate desires of some must be sacrificed to prevent abuse by others, 147 then concluded:
[The Act] is altogether too sweeping in its terms. I make no question but that the habit of smoking opium may be repulsive and degrading. That its effect would be to shatter the nerves and destroy the intellect; and that it may tend to the increase of pauperism and crime. But there is a vast difference between the commission of a single act, and a confirmed habit. There is a distinction to be recognized between the use and abuse of any article or substance.... If this act must be held valid it is hard to conceive of any legislative action affecting the personal conduct, or privileges of the individual citizen. that must not be upheld. . . . The prohibited act cannot affect the public in any way except through the primary personal injury to the individual, if it occasions him any injury. It looks like a new and extreme step under our government in the field of legislation, if it really was passed for any of the purposes upon which that character of legislation can be sustained, if at all.148
The sanctity of "the personal conduct or privileges of the individual " had suffered first blow. The knockout was
only a few citizen rounds away.
Footnotes and References
63 Act of Feb. 9, 1909, ch. 100, 35 Stat. 614, aS amended, 21 U.S.C. S 173 (1964). This act was revised by Act of Jan. 17, 1914, ch. 9, 38 Stat. 275, in the same wave of reform that produced the Harrison Act.
64 Hearings on the Importation and Use of Opium Before the House Comm. on Ways and Means, 61st Cong., 2d Sess. passim (1910).
65 38 Stat. 785 (1914), as amended, 26 U.S.C. S§ 4701-36 (1964).
66 See, eg., Stanley, supra note 39, at 587; Fixes Blame for Dope Fiend Evil, Boston Herald, Jan. 5, 1917.
67 Webb V. United States, 249 U.S. 96 (1919).
68 See Weber, Drugs and Crime, 44 A.B.A. REP. 527 (1919). Kolb, Factors That Have Influenced the Management and Treatment of Drug Addicts, in NARCOTIC DRUG ADDICTION PROBLEMS 23, _26 (R. Livingston ed. 1958)
See generally T. Duster, THE LEGISLATION OF MORALITY 3-28 (1970).
69 See generally A. LiNDEsmITH, supra note 31, at 135-61; King, Narcotic Drug Laws and Enforcement Policies, 22 LAW & CONTEMP. PROB. 113, 124-26 (1957); King, The Narcotics Bureau and the Harrison Act, 62 YALE L.J. 736 (1953); Note, Narcotics Regulation, 62 YALE L.J. 751, 784-87 (1953).
70 For a savage attack on the clinic system by a well-known supporter of the law enforcement model of the Harrison Act, see Stanley, Narcotic Drugs and Crime, 12 J. Crim. L. & CRIMINOLOGY 110 (1921).
71 Lindesmith reports that for a brief period of time from 1919 to 1923 some forty clinics of this type existed in the United States. A. Lindesmith, supra note 31, at 136,
72 The closing of the New York Clinic in 1919 was an especially potent factor in promoting hysteria about heroin. More than 7,400 addicts, about 90 percent Of whom were users of heroin, were thrown on the streets of the city. Driven to commit crimes, including those of narcotic violations, many of these addicts were arrested. The increased number of arrests was widely interpreted as an indication of moral deterioration due to narcotics instead of evidence of maladministration of what could have been a useful law. There were, of course, physicians who dissented both as to the wisdom of closing the clinics and as to the harmful effect of the drugs. Many of those who persisted in helping their patients were arrested. Kolb, supra note 68, at 27.
73 188 U.S. 3.21 (1903).
74 247 U.S. 251 (1918).
75 United States v. Doremus, 249 U.S. 86 (1919). The four dissenters asserted that "the statute was a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the States." Id. at 95. It is interesting to note, however, that a subsequent congressional attempt to regulate child labor through the taxing power was also invalidated. Bailey v. Drexel Furniture Co., 259 U.& 20 (1922).
76 justice McReynolds stated for the Court in Linder v. United States, 268 U.S. 5, 18 (1925): Obviously, direct control of medical practice in the States is beyond the power of the Federal Government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure.
The Court also held that the Harrison Act did not apply to mere possession of opium. In reaching this conclusion the Court pointed out that any congressional attempt to punish as a crime possession of any article produced in a state would raise the 'gravest questions of power. United States v. Jin Fuey Moy, 241 U.& 394, 401 (1916).
77 Schmeckebier, The Bureau of Prohibition, in BROOKINGS INST. FOR GOVT RESEARCH, SERVICE MONOGRAPH No. 57, at 143 (1929).
78 An Act to Create a Bureau of Customs and 2 Bureau of Prohibition in the Department of the Treasury, ch. 348, 44 Stat. 1381 (1927).
113 28 F. 308 (D. Ore. 1886). The prisoner had been convicted in an Oregon court and was being heard on petition for habeas corpus.
114 Id. at 312.
115 16 Nev. 50 (1881).
116 Id. at 55-56.
117 The Supreme Court rejected it one year later in Mugler v. Kansas, 123 U.S. 623 (1887).
118 Ex parte Yung Jon, 28 F. 308, 311 (D. Ore. 1886).
119 Id. In defining property essentially in terms of habits of the community, judge Deady was leaving room for the "natural" rights argument with regard to alcohol and tobacco:
True, we permit the indiscriminate use of alcohol and tobacco, both of which are classed by science as poisons, and doubtless destroy many lives annually. But the people of this country have been accustomed to the manufacture and use of these for many generations, and they are produced and possessed under the common and long-standing impression that they are legitimate articles of property, which the owner is entitled to dispose of without any unusual restraint. . . . On the other hand, the use of opium, otherwise than as this act allows, as a medicine, has but little, if any, place in the experience or habits of the people of this country, save among a few aliens.
Id. at 311-12 (emphasis added).
136 Ex parte Yun Quong, 159 Cal. 508, 114 P. 835 (1911); Luck v. Sears, 29 Ore. 421, 44 P. 693 (1896); Ah Lim v. Territory, I Wash. 156, 24 P. 588 (1890).
137 Ah Lim v. Territory, I Wash. 156, 163, 24 P. 588, 589 (1890).
138 If the state concludes that a given habit is detrimental to either the moral, mental or physical well being of one of its citizens to such an extent that it is liable to become a burthen upon society, it has an undoubted right to restrain the citizen from the commission of that act; and fair and equitable consideration of the rights of other citizens make it not only its right, but its duty, to restrain him. Id. at 164, 24 P. at 590; accord, Ex parte Yun Quong, 159 Cal. 508, 515, 114 P. 835, 837 (1911); Luck v. Sears, 29 Ore. 421, 426, 44 P. 693, 694 (1896).
139 Ex parte Yun Quong, 159 Cal. 508, 515, 114 P. 835, 837 (1911); Luck v. Sears, 29 Ore. 421, 425, 44 P. 693, 694 (1896).
140 But it is urged . . . that a moderate use of opium . . . is not deleterious and consequently cannot be prohibited. We answer that this is a question of fact which can only be inquired into by the legislature.
Ah Lim v. Territory, I Wash. 156, 164, 24 P. 588, 590 (1890). The dissent argued that moderate use by some could not be punished to prevent excessive use by others. Id. at 172-74, 24 P. at 592-93.
141 Id. at 165, 24 P. at 590. [W]hether [opiums] nature and character is such that for the protection of the public its possession by unauthorized persons should be prohibited is a question of fact and of public policy, which belongs to the legislative department to determine. Luck v. Sears, 29 0re. 421, 426, 44 P. 693, 694 (1896).
142 Ex parte Yun Quong, 159 Cal. 508, 514, 114 P. 835, 838 (1911) (quoting lower court opinion) (citations omitted).
143 Id. at 515, 114 P. at 838 (emphasis added).
144 "It must be conceded that its indiscriminate use would have a very deleterious and debasing effect upon our race Id. at 514, 114 P. at 838.
145 l Wash. 156, 24 P. 588 (1890).
146 Id. at 168, 24 P. at 591.
147 Individual desires are too sacred to be ruthlessly violated where only acts are involved which do not clearly result in an in jury, to society, unless, possibly thus rendered necessary in order to prevent others from like actions which to them are injurious.
Id. at 173, 24 P. at 592. He concluded, however, that the statute was too broad and that this question need not be reached.
148 Id. at 174-75, 24 P. at 593,
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