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UNITED STATES of America v. Azra HAMILTON, 04/06/72
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES of America
v.
Azra HAMILTON, Appellant
[4] No. 71-1148
BLUE BOOK CITATION FORM: 1972.CDC.93
Date Decided: April 6, 1972
APPELLATE PANEL:
McGowan, Leventhal and Robb, Circuit Judges. Robb, Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
McGOWAN, Circuit Judge:
This appeal presents a single question as to the reach of our holding in Watson v.
United States, 141 U.S.App.D.C. 335, 347-350, 439 F.2d 442, 454-457 (1970). That holding
was that the statutory exclusion, because of two or more prior felony convictions, from
eligibility for consideration under Title II of the Narcotic Addict Rehabilitation Act of
1966 (18 U.S.C. §§ 4251-4255) of a defendant newly convicted of a federal offense, was
unconstitutional.
Appellant pleaded guilty to one count of an indictment charging him with a violation of
26 U.S.C. § 4704(a). Although the sentencing transcript indicates that the court may have
believed him to be a narcotics addict, the court stated that it was powerless to consider
appellant for disposition under Title II because of his prior felony convictions, and
proceeded to sentence him to a prison term of 7 years.*footnote 1 The nature and dates of
those felony convictions are as follows:
1962 -- Harrison Narcotics Act.*footnote 2
Appellant now asserts that the Watson holding is applicable, and that the sentence
should be vacated and the case remanded in order that the District Court may consider the
possibility of according appellant Title II treatment.*footnote 3 The Government,
contrarily, asserts that Watson is to be [18] confined narrowly to its facts, which were
that the prior felony convictions there held by us not to be disqualifying involved
narcotics offenses. It is the Government's submission that prior felony convictions for
any other offenses, violent or nonviolent, are not within the intendment of the Watson
holding.*footnote 4
We do not view Watson as does the Government. The underlying rationale of our
constitutional holding in Watson derived from the conflict between the benevolent and
remedial purposes sought to be achieved by the Narcotic Addict Rehabilitation Act, on the
one hand, and, on the other, the exclusion from its benefits of any addict "who has
been convicted of a felony on two or more prior occasions." 18 U.S.C. 4251(f) (4).
This latter provision operates to divide addicts awaiting sentence for a federal offense
into two classes, depending upon whether they have been convicted of two or more felonies
prior to their present criminal involvement. In Watson we did not regard this
classification as compatible with Fifth Amendment equal protection concepts, because the
disqualification of addicts with two or more prior convictions was at odds with the stated
purpose of the Act (rehabilitation of narcotics addicts), and could not be justified by
imputing to Congress an independent rational purpose.*footnote 5
There are three independent purposes which might conceivably be thought to justify the
prior felonies disqualification of subsection (4). First, there is the purpose which Judge
Robb identified in his dissent in Watson, namely, that "a hardened offender twice
previously convicted of a felony, whether before or after 1966, is not a likely prospect
for rehabilitation." 439 F.2d at 477. Since that justification was considered and
rejected by the Watson majority, however, it is foreclosed to the Government in this case.
So long as Congress has provided a procedure whereby the likelihood of rehabilitation is
determined by the trial judge, who may seek the assistance of the Attorney General in that
regard, there is no rational justification for a conclusive presumption that an addict
with two or more prior felony convictions is not rehabilitable.
A second possible congressional purpose, which might be thought to justify subsection
(4), relates to the deterrence of criminal activity. In enacting NARA, Congress clearly
did not intend to nullify the deterrent effect of the criminal law with respect to
narcotics addicts. Even though the prospect of non-criminal treatment under Title II may
reduce the law's deterrent force in some situations. Congress preserved important
disincentives to criminal activity. Thus, even the addict who contemplates that he would
be eligible for Title II disposition must reckon with the fact that he will have a
conviction on his record, as well as with the possibility that the District Court will
deny him non-criminal treatment despite his statutory eligibility.
In preserving these deterrences, Congress must have thought them sufficient for the
great majority of narcotics addicts, that is to say, for most addicts NARA would not
create a ponderable increase in the incidence of criminal activity. However, as a matter
of probability, the legislators could have thought that the reduced level of deterrence
implicit in Title II would not be sufficient for some addicts, and that the full force of
the criminal law would be necessary to prevent them from engaging in frequent criminal
activity. That purpose, it might be argued, is advanced by the classification in
subsection (4), on the assumptions that (1) persons who have committed two felonies are
demonstrably less amenable to deterrence than those who have not, and (2) reducing the
law's deterrent force for them would therefore create an unacceptable risk to the social
order.
As far as appellant is concerned, however, the answer to that argument is found in
footnote 13 of the Watson opinion. Appellant's prior convictions, like Watson's, occurred
prior to the enactment of NARA in 1966. He was, therefore, from the very beginning
precluded by subsection (4) from Title II disposition. On the other hand, in the case of
an addict who did not have two felony convictions in 1966, the "chances of never
having that second conviction are markedly enhanced" by NARA itself. 439 F.2d at 457,
n. 13.
NARA operates to enhance those chances in two ways. First, as we noted in the Watson
footnote, Title I of the Act, 28 U.S.C. §§ 2901-2906, allows some addicts charged with
crimes to embark on a treatment program which, if successfully completed, results in the
charges being dismissed. Although there is criminal conduct, there is no prosecution to
conviction. Thus, an addict who committed two felonies prior to 1966 has two convictions
on his record and is disqualified under subsection (4); but an addict who commits the same
two felonies after 1966 may receive Title I disposition in respect of each, and thereby
maintain a record free of convictions.
The second way in which NARA reduces the likelihood that an addict will get two felony
convictions is by establishing treatment programs which were previously non-existent.
Since 1966, an addict charged with a crime may, under both Titles I and II, receive
treatment instead of a prison term, and be cured of his affliction. Since obtaining funds
with which to purchase drugs is the reason for much of the crime committed by
addicts,*footnote 6 an addict who engages in criminal activity and thereafter, through the
treatment program made available by NARA, is cured of his addiction, is less likely to
accumulate two felony convictions than he would have been before 1966.
For these two reasons, the classification established by subsection (4) is not a
rational means of discriminating among addicts on the basis of responsiveness to the
deterrent concept. So long as an addict, such as Watson or appellant, is brought within
the terms of subsection (4) solely by reason of convictions rendered before 1966,*footnote
7 it cannot be said that criminal sanctions are more necessary to deter his criminal
propensities than they are for the mass of addicts who are eligible for Title II
disposition.*footnote 8
The third possible purpose which might be thought to justify subsection (4), relates,
like the second, to the deterrence of criminal activity. While the second purpose is
concerned with deterring two-time offenders from committing additional crimes, the third
concerns the deterrence of addicts with clean records. It could be urged that subsection
(4) helps to deter criminal activity by such addicts because knowledge that two
convictions will disqualify them from future Title II disposition will deter them from
committing felonies.
It is not necessary in this case to decide whether such an assumption is too
far-fetched to satisfy the equal protection test, although the connection between
subsection (4) and such third purpose is highly tenuous at best. The justification would
apply only to convictions for offenses committed after the passage of NARA in 1966.
Deterrence presupposes knowledge of the disqualification, and there could be no knowledge
before 1966. Thus, the fact that appellant's prior convictions were rendered prior to 1966
again means that a possible rational purpose cannot validate the subsection's application
to him.
We conclude, in short, that our Watson decision necessarily invalidates subsection (4)
insofar as it is applied to addicts whose prior felonies were committed before 1966. We do
not reach the questions of whether the subsection can constitutionally be applied to
post-1966 felonies,*footnote 9 or whether there might be a distinction in that regard
between violent and non-violent crimes.*footnote 10
The extent and nature of appellant's prior criminal record may, of course, be relevant
in the consideration by the sentencing court of whether he should be afforded Title II
treatment. Since, however, we hold that it cannot rule out that consideration altogether,
we vacate appellant's sentence, and remand the case for resentencing in which the District
Court shall be free to consider appellant as an "eligible offender" within the
meaning of Title II.
It is so ordered.
IN AGREEMENT
ROBB, Circuit Judge (concurring):
For the reasons stated in my dissent in Watson v. United States, 141 U.S.App.D.C. 335,
369, 439 F.2d 442, 475 (1970), I think the holding of that case is wrong; nevertheless I
must recognize it as controlling here. Accordingly, I concur in the result reached by the
majority.
***** BEGIN FOOTNOTE(S) HERE *****
*footnote 1 At sentencing, appellant's counsel represented him to be "a prime
example of a man that for more than 20 years has been addicted to narcotics, " and
asked that he be "sent to some institution where he can get the proper medical and
psychological treatment that he needs." The court's response to this was as follows:
"THE COURT: Unfortunately, as you know, because of his prior record, and the
crimes involved, he is not eligible for treatment under the Narcotics Addict
Rehabilitation Act and there is a mandatory sentence here.
"I will recommend medical treatment if possible, but I don't know what is
available under the circumstances."
Although the sentencing took place six months after our decision in Watson, neither
court nor counsel made any allusion to it.
*footnote 2 Proof only of the Harrison Act conviction appears in the record. The
Government relies on the District Court's power of judicial notice to supply this
deficiency; and further represents itself as ready to prove that, although the
housebreaking indictments are silent on this score, at least one of the housebreakings
occurred at night, which makes it a crime of violence under 18 U.S.C. § 4251(b).
At oral argument before us, appellant did not contest the fact of the existence of the
prior convictions, although it is not clear that this concession extended to the alleged
"nighttime" aspect just referred to. In the view we take of the governing law,
however, this aspect is irrelevant.
*footnote 3 See Chicquelo v. United States, 146 U.S. App.D.C. 381, 452 F.2d 1310
(1971); United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970); and Kleinbart
v. United States, 142 U.S.App.D.C. 1, 439 F.2d 511 (1970).
*footnote 4 The Government further argues that the allegedly violent nature of at least
one of the 1952 housebreaking convictions makes appellant ineligible for rehabilitative
treatment by reason of Section 4251 (f) (1), which disqualifies "an offender who is
convicted of a crime of violence." Without reference to the issue of the
constitutionality of that provision, see No. 71-1179, United States v. Fersner, argued
March 3, 1972, we think it clear that the provision, properly construed in the context of
the statutory scheme, refers only to the offense for which sentence is about to be
pronounced, and not to prior felony convictions. Our sole concern in this case, therefore,
is with the validity of the two prior felonies disqualification of subsection (4), as
applied to prior convictions which were not for narcotics offenses.
*footnote 5 "The court must . . . be prepared to ascribe a purpose to each
particular statutory classification and to coordinate these particular purposes with each
other, with the more general purposes of the statute in question, and with other relevant
statutes and public policies." Developments in the Law -- Equal Protection, 82
Harv.L.Rev. 1065, 1077 (1969). Disqualification of any offender who might be found to be
rehabilitable is at odds with the central purpose of rehabilitation, and would therefore
require justification by reference to an independent purpose.
*footnote 6 The House of Representatives Report on NARA [No. 1486, May 9, 1966] states:
"Narcotic addicts in their desperation to obtain drugs often turn to crime in order
to obtain money to feed their addiction."
It is not necessary to our rationale to assume that addicts are compelled to commit
crimes in order to obtain funds to purchase drugs. It is sufficient to assume that
obtaining such funds is a strong motivating force, as the House Report indicates.
*footnote 7 We do not necessarily imply that limiting subsection (4) to addicts with
post-1966 felonies would be rational under this purpose. Given the fact, acknowledged in
the House Report, that the need for drugs is the reason for much of the crime committed by
addicts, it may be irrational to assume that an addict's sensitivity to deterrent
influences can be measured by anything other than the strength of his addiction.
*footnote 8 This analysis also rules out retribution as a justifying purpose for
subsection (4), at least as applied to addicts whose prior felonies were rendered before
1966. Although Congress might normally conclude that a three-time offender is more
deserving of punishment than an offender who, while convicted of an identical crime, has a
clean record, that conclusion is irrational when the difference between the two offenders
may be explained by the accident of birth date, or the dates when they became addicted to
narcotic drugs.
*footnote 9 As we have noted, the second and third purposes discussed are rational, if
at all, only as applied to post-1966 felonies. Without determining the issue, we should
note additionally that, even if it were assumed that either or both of those purposes
could justify a disqualification for post-1966 felonies, it does not follow that a court
must necessarily read the statute in such a manner. While courts will sometimes be
imaginative in imputing to Congress a purpose which will justify an explicit statutory
classification, see Developments in the Law -- Equal Protection, supra note 5 at
1078-1080, they should be more restrained when inferring the classification itelf, as they
would be doing in applying subsection (4) only to addicts with post-1966 convictions.
*footnote 10 See 439 F.2d at 456, n. 12.
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