The Consumers Union Report on Licit and Illicit Drugs

by Edward M. Brecher and the Editors of Consumer Reports Magazine, 1972

Chapter 9. "Tightening up" the Harrison Act

 Very few countries followed the United States policy of relying on prohibition laws to curb the narcotics menace. But Canada did, and so did the forty-eight states and the Canadian provinces. The failure of those prohibition laws did not lead to a change in policy. Instead, newer and stricter laws were enacted. By 1970, Congress had passed 55* federal drug laws to supplement the 1914 Harrison Act. ¹ A list of the antinarcotics laws voted by the fifty state legislatures would run far into the hundreds. Canada's Parliament and provincial legislatures similarly amended old laws and passed new ones over the years. ²

* This number, moreover, is incomplete in a significant respect. It excludes the Volstead (Alcohol Prohibition) Act of 1919--and the many subsequent laws designed to stamp out the drinking of alcohol between 1920 and 1933, when-alcohol was also an illicit drug.

Many of the United States federal and state laws, and the Canadian laws, were passed to stiffen the penalties for narcotics offenses. The maximum penalty specified in the three 1909 federal laws was two years' imprisonment. The 1914 Harrison Act increased this maximum to five years. In 1922 a maximum federal penalty of ten years' imprisonment was enacted.** Subsequently state laws were stiffened to provide twenty-year, forty-year, and even ninety-nine-year maximum sentences. Life imprisonment and the death sentence were added to both federal and some state antinarcotics laws during the 1950s.

** In 1922, Canada added whipping and deportation to its penalties. ³

Increased maximums, however, did not curb the narcotics black market. The chief effect of such penalties appeared to be as a kind of tranquilizer or opiate on public opinion, persuading the public that severe measures were at last being taken against addiction.

When high maximum sentences failed, "softhearted" judges, unwilling to invoke the maximum penalties, were blamed. In fact, few offenders actually drew maximum sentences. Hence federal laws, many state laws, and the Canadian laws were amended to provide high mandatory minimum sentences. Under these laws, a judge could not levy a lesser sentence after a defendant pleaded guilty or was convicted. Neither probation nor a suspended sentence was allowed. ***

 *** The extreme mandatory punishment provision was enacted in Connecticut in 1955; it decreed that a judge must impose life imprisonment for a third offense--- even if all three offenses were merely for possession of a narcotic (or marijuana). ⁴ Referring to similar Canadian proposals, the 1956 British Columbia report noted: "One is impressed with the fact that imprisonment, even for life, is recommended for certain people because they prefer heroin to alcohol!" ⁵ 

Dr. Stanley Yolles, then director of the National Institute of Mental Health, testified against mandatory minimum sentences before the House Select Committee on Crime in the fall of 1969: 

This type of law has no place in a system devised to control an illness. It has no place being used for individuals who are addicted to drugs.

This type of law angers us as doctors, because it should not apply to people who are sick. It destroys hope on the part of the person sentenced--- hope of help, hope for starting a fresh life. It's totally contradictory to the whole concept of medicine. A prison experience is often psychologically shattering. The young person is exposed to sexual assault. He may for the first time in his life learn criminal ways. Such mandatory sentences destroy the prospects of rehabilitation.

... I feel that judges have to be free to deal with violators of drug laws as individuals, not as a class of criminals. In my field, treatment is always tailored to the individual's needs. I feel the same should be true in dealing, under the law, with addicts and drug abusers. Why on earth must we class the street addict, who sells to support his habit, with the big operator who pushes the narcotics wholesale? The former is a sick person who needs medical help and rehabilitation. The latter is a criminal who is living off the misery of the addicts. Many laws on the books don't allow for this distinction.

As a result, what we have in our prisons and Federal hospitals, like Lexington, are many young people serving irrationally long sentences, some up to 20 years. In no other field has there been such a punitive approach. And let's not forget this is an illness mainly of young people the very age group with the highest potential for rehabilitation, yes, and cure. 

These laws came about by sometimes well-intentioned people who placed too much confidence in the principle of deterrents But if mandatory penalties were that effective, what is the rationale for limiting them only to drug abuse offenders? Why not extend them to thieves, burglars, murderers? Even murderers with life sentences can come up for parole after about seven vears. ⁶

Soon after this testimony, the acting chairman of the House subcommittee before which Dr. Yolles had testified--- Congressman Albert Watson of South Carolina--- stated on the floor of the House:

"Dr. Yolles's views are an affront to every decent, law-abiding citizen in America. At a time when we are on the verge of a narcotics crisis, a supposedly responsible Federal official comes along with the incredibly ridiculous idea of dropping mandatory jail sentences for those who push dope, even for those adults selling hard drugs to minors ." ⁷

In a subsequent interview, Congressman Watson added: "I have called for [Dr. Yolles's] resignation because of the simple belief that it's too much to ask the American taxpayer to pay the salary of any individual who publicly espouses a position which we consider so detrimental in our fight to control the drug abuse problem...." ⁸

When mandatory minimum sentences failed to close down the black markets, "softhearted" parole boards were blamed. Congress and a number of state legislatures accordingly passed laws depriving narcotics law violators of eligibility for parole * or time off for good behavior. An addict sentenced to life imprisonment under these no-mitigation-of-sentence laws would actually have to spend the rest of his life in prison.

*Depriving addicts of parole eligibility meant that at the end of their terms they were simply turned loose on the streets without even nominal parole supervision.

The first addict sentenced to life imprisonment under the federal no-mitigation law was twenty-one years old, born in Mexico, epileptic, with an I.Q. of 69. He had recently been released after fourteen months in a California state mental hospital. His offense was selling small amounts of heroin to another addict-a seventeen-year-old employed as a stool pigeon by the Federal Bureau of Narcotics. ⁹ it was the defendant's first federal offense, and his first narcotics offense. Fortunately, the Constitution gives the President the power-which Congress cannot take away-"to grant reprieves and pardons." President John F. Kennedy reduced this and a number of similar sentences.

What have been the accomplishments during the past half-century of the legal provisions described here and in the next few pages? The fact is that the use of such methods has not made heroin unavailable or even difficult to secure. The main accomplishment of law enforcement has been to raise black-market prices.

At times, law-enforcement officials have pointed with pride to this achievement. Thus Federal Narcotics Commissioner Harry J. Anslinger and United States Attorney William F. Tompkins noted in 1952 that heroin, which had been available in the United States during the early 1920s at $25 to $50 an ounce, and which was still available in Turkey at $100 an ounce, was currently selling in the United States at $3,000 an ounce. ¹⁰ More recently, however, even law-enforcement officials have come to realize that this price escalation is at best a mixed blessing. As one New York City police precinct commander told a New York Times reporter in September 1969, when prices increase, addicts simply steal more. ¹¹

Another common explanation of the failure of the most Draconian laws to close down or even seriously to curtail the black market concerned the difficulties of securing a conviction in court. Hence various laws have been passed and legal principles developed to make conviction of narcotics offenders surer and easier. A typical example is the way in which the verb "to sell" and the noun "sale" have been legally redefined.

One state court, for example, has held that "The 'sale' of narcotics prohibited by criminal statutes is much broader in scope than the concept of a sale which obtains in other branches of the law. It may include a transfer by gift as well as one for consideration in money." ¹²

Another opinion holds that "a mere gift" or even "an offer to sell" constitutes a sale if the product in question is narcotics, "notwithstanding the fact. that no consideration is paid or that the sale is not fully completed by payment of the agreed price." * ¹³

* A 1927 Canadian law included under "sale" the sale of substances represented to be narcotics--- even if they were innocent substances. ¹⁴

Another device to make conviction easier is embodied in a series of state and federal laws designed to shift the burden of proof in narcotics cases from the prosecution to the defense. A 1922 federal law and some similar state laws, for example, provide that the prosecution need not prove that the defendant is in illegal possession of narcotics; the burden is on the defendant to prove that his possession is legal. ** Similarly, various "presumptions of law" have been built into the narcotics statutes. In a trial for possession of heroin, for example, it is a "presumption of law" (which the defendant must rebut if he can) that the heroin was smuggled into the country, and that the smuggling occurred after passage of the law prohibiting the importation of heroin.

** "Whenever on trial for a violation of this subsection the defendant is shown to have or to have bad possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury. " ¹⁵

Under some state laws, an intent to provide narcotics to a minor is punishable by imprisonment--- even though no narcotics are in fact provided. And New York State has made it a crime to "loiter for the purpose of using narcotics," even though no narcotics are used, and even though the actual use of narcotics is not a crime. ¹⁶

Conviction is also made easier by a wide range of laws making narcotic offenses out of ancillary matters-such as selling, or buying, or even possessing without a prescription a hypodermic syringe, or needle, or other equipment for the administration of narcotics. Hundreds of persons each year in New York City alone are convicted of such "narcotic offenses."

When these and other efforts to make narcotics convictions easier failed to curb the black market, various "status laws" were enacted. These laws made it a crime merely to be an addict; it was not even necessary to possess a drug or a syringe in order to be sentenced to imprisonment. At this point, however, the Supreme Court called a halt; it ruled in 1962 that imprisonment merely for being an addict was cruel and unusual punishment prohibited by the Bill of Rights to the Constitution. *** ¹⁷

*** The 1962 decision did not, however, remove the taint of criminality from addiction. Both purchase and possession of narcotics can still be punished, in part on the theory that anyone possessing narcotics is in a position to sell them. It is, of course, impossible to take a narcotic without first possessing it. At most, the 1962 Supreme Court decision changes the kind of evidence which the police must assemble to secure the criminal conviction of an addict. 

New York, California, and the federal government have since gotten around this decision by imprisoning ("confining") defendants in closed institutions called "rehabilitation centers." The imprisonment procedure is called "civil commitment," thus avoiding constitutional restraints.

The laws making conviction of narcotics offenders easier have been accompanied by laws making the arrest of narcotics suspects easier. If a policeman suspects a man, for example, of having committed a narcotics offense, he can arrest him without a warrant. Ordinarily search warrants may be served only by day; a special provision of some narcotics laws makes it legal to serve a narcotics search warrant at any hour of the night as well. The Nixon administration's 1970 "no-knock law," permitting narcotics agents under certain circumstances to enter private premises without knocking, was merely the most recent of these many futile efforts to curb narcotics addiction by facilitating arrests.

All of the above approaches are based on a simple premise: that arresting, convicting, and imprisoning a narcotics addict will deter him and others from using narcotics. The 1956 British Columbia study provides cogent evidence against this premise.

On the basis of many kinds of data, Dr. Stevenson and his associates demonstrated that about 900 addicts were subject to criminal sanctions in British Columbia in 1955. ¹⁸ (Doctors, nurses, and other health professionals, whose addiction was associated with easy access to narcotics, as well as those addicted through medical treatment, were excluded from the total, since they were less harshly punished in Canada at that time.) Of the 900 arrestable addicts, 516 were sentenced to prison between September 1, 1954, and April 15, 1956-a period of 19 % months. Quite a few, indeed, were sentenced two or even three times during that brief period -so that the total number of prison sentences imposed came to 755. And quite a few of the 900 addicts were immune from arrest and conviction during the 19% months of the study because they spent the entire period in prison.

Of 100 consecutive addicts admitted to prison during the last three months of the study, 56 had been imprisoned at least once before during the previous 16% months. Indeed, among these 100 convicted addicts, only three were serving their first term, "many of the remainder having had from five to twenty previous convictions." ¹⁹

On an average day, the British Columbia report continued, 550 of the province's 900 addicts were in prison. Thirty-two narcotics officers were employed full time in suppressing the narcotics traffic--- an average of one full-time narcotics officer for every eleven addicts at large. Yet the number of addicts did not decrease. Not a few addicts, the report noted, were "again sentenced to prison only a few weeks after completing penitentiary sentences of two to five years." ²⁰ Imprisonment, in short-even on so intensive a scale as this-is not a cure for addiction, or even an effective deterrent. Nor is a ratio of one full-time narcotics officer for every eleven addicts sufficient to curb a black market.

Statistics for cities in the United States are rarely so complete or so reliable, but they point in the same direction. A recent example is New York City, where the police department markedly stepped up its antinarcotic activities during the first ten months of 1969. The number of men assigned to the narcotics division was increased from 340 to 500; all other members of the force were instructed to be on the alert for narcotics offenses; and other new measures were introduced. The results were superficially impressive: narcotics arrests rose from 18,764 during the first ten months of 1968 to 27,868 during the first ten months of 1969--- a rise of almost 50 percent. 

When David Burnham of the New York Times interviewed police officials concerned with the narcotics drive, however, he found little optimism. The officials told Burnham they found "no evidence that the increased police effort was having much of an impact on the availability of drugs." 

"The only way you would know the increased arrests were really making a dent is if there was a drug panic on the street-which there isn't," Burnham quoted one police official as explaining. "The use of illegal drugs is almost completely a medical problem, which the police are unable to handle. But until the public comes to understand this fact, we'll continue to go through the motions." ²¹

Another police official added: "You could have 100,000 cops and not stop the drugs." 

In 1971, another antinarcotics drive was launched in New York City; but by September of that year its failure was generally admitted. Nine hundred pounds of heroin--- nearly 40 million 10-milligram doses--- had been seized in New York between May and September, United States Attorney Whitney North Seymour, Jr., announced. This was nearly three times the total amount of heroin seized by the United States Bureau of Customs at all borders during the entire year ending June 30, 1970. But the heightened law-enforcement efforts and the vast increase in heroin seizures had not made "the slightest ripple" in the heroin supply of the metropolitan area. Prices had not gone up. "The suppliers are able to meet the demand regardless of what we do on the law-enforcement part," Mr. Seymour was quoted as saying. ²² 

The same has been true with only temporary exceptions ever since 1914. Indeed, after more than a half-century of intensive law-enforcement efforts, this "success" can be claimed: While the population has doubled, the number of addicts has apparently increased only moderately.

During the ten years following passage of the Harrison Act, estimates of the number of opiate addicts in the United States at the time it was passed ranged from 100,000 to 1,000,000. Opponents of the Harrison Act argued that there were only 100,000 addicts or so before 1914 and that addiction was on the increase; proponents of the law alleged that there had been a million addicts before 1914 and that the number was declining. Neither group offered evidence to support its figures.

In 1924 the United States Public Health Service published the estimate of Drs. Lawrence Kolb and A. G. Du Mez. In contrast to others, Kolb and Du Mez collected and studied reliable data from citywide and statewide surveys, from duties paid on opiate imports, from examination of military recruits, and from other sources. They were able to demonstrate that the number of opiate addicts in the United States prior to the Harrison Act was certainly less than 246,000, and probably in the vicinity of 215,000. ²³

With respect to the number of opiate addicts in the United States in 1971, most estimates start with the number of "active" addicts "known to the Bureau of Narcotics and Dangerous Drugs." This number stood at 68,864 on December 31, 1970, tip from 68,088 a year earlier. This, of course, is a woeful understatement; in some cities more addicts have applied for methadone maintenance treatment of their addiction (see Chapter 14) than are found on the bureau list for those cities. The question is by what factor the bureau list must be multiplied to achieve a realistic estimate.

Using what it calls a "capture-recapture method," the Federal Bureau of Narcotics and Dangerous Drugs concluded in 1971: ". . . It is virtually certain that the number of addicts in 1969 falls somewhere between 285,000 and 345,000. The best estimate of the number of addicts for that year is 315,000." ²⁴ The estimate of the National Institute of Mental Health in 1971, based on a wide range of data, was 250,000 addicts. ²⁵ In this Report, we use both the bureau and NIMH estimates in placing the number of addicts at between 250,000 and 315,000 in 1971.

The only conclusion possible from either the bureau estimate or the NIMH estimate is that the decades of enforcement of the Harrison Act and of countless other state and federal laws designed to stamp out opiate addiction have been a losing battle. There were almost certainly more opiate addicts in the United States from 1969 to 1971 than in 1914. And their status, of course, was far worse.

The per capita addiction rate, it is true, has declined since 1914--- that is, addiction has not increased as rapidly as the population--- but at a disastrous cost in human suffering, and in social disorder.

Three basic conclusions can be drawn from this brief review of United States narcotics legislation and law enforcement: 

• There is little likelihood that further tinkering with the laws-additional legal devices of the kinds here reviewed, or of novel kinds-will prove more successful than the hundreds of such laws already on the books. Legislators who trust in such measures are failing to face the facts. Narcotic addiction remains endemic despite the most ingenious laws and vigorous law enforcement.
  
  
• The time has come to end our dependence on repressive legislation and law enforcement as a cure for the narcotics evil, and to explore more rational alternatives. 
  
  
• The history of the narcotics laws-and of alcohol prohibition (see Part IV)-should warn us against going further in the 1970s down a similar legislative blind alley with respect to marijuana, LSD, the amphetamines, the barbiturates, and other drugs of current concern.

 We shall consider alternative approaches later in this Report.

1. Opium and Narcotic Laws, compiled by Gilman C. Udell (Washington, D.C.: U.S. Government Printing Office, 1968), pp. ii-iv.

2. Ingeborg Paulus, "History of Drug Addiction and Legislation in Canada," The Narcotic Addiction Foundation of British Columbia, Vancouver, November 1966, unpublished.

3. Ibid., p. 6.

4. See. 2103d, Connecticut General Statutes, effective May 1, 1955.

5. British Columbia Study, p. 569.

6. Quoted by Gertrude Samuels, "Pot, Hard Drugs, and the Law," New York Times Magazine, February 15, 1970, p. 14.

7. Quoted by Gertrude Samuels, "Pot, Hard Drugs, and the Law," New York Times Magazine, February 15, 1970, p. 16.

8. Ibid.

9. Clemency application, Gilbert Mora Zargoza to Attorney General Robert F. Kennedy, January 18, 1962.

10. Harry J. Anslinger and William F. Tompkins, The Traffic in Narcotics (New York: Funk and Wagnalls, 1953), pp. 165, 281.

11. New York Times, September 25, 1969.

12. People v. Glass, 16 Ill. (2d) 595; 158 N.E. (2d) 639, 640 (1959).

13. People v. Robinson, 14 Ill. (2d), 325; 153 N.E. (2d) 65, 69 (1958).

14. British Columbia Study, Appendix G, p. 14.

15. Federal Jones-Miller Act (1922), cited by Udell, Opium and Narcotic Laws, p. 17.

16. New York Times, December 5, 1969.

17. Robinson v. California, 370 U.S. 660, 1962.

18. British Columbia Study, p. 415.

19. Ibid., pp. 415-416.

20. Ibid., p. 551.

21. David Burnham, reporting in New York Times, January 2, 1970.

22. New York Times, September 28, 1971.

23. Lawrence Kolb and A. G. Du Mez, The Prevalence and Trend of Drug Addiction in the United States and Factors Influencing It, Treasury Department, U.S. Public Health Service, Reprint No. 924 (Washington, D.C.: U.S. Government Printing Office, 1924).

24. Data supplied by Bureau of Narcotics and Dangerous Drugs, U.S. Department of Justice.

25. Robert van Hoek, Associate Administrator for Operations, Health Services and Mental Health Administration, U.S. Department of Health, Education, and Welfare, Statement in Narcotics Research, Rehabilitation, and Treatment, Hearings before the Select Committee on Crime, June 3, 1971, House of Representatives, 92nd Cong., 1st Sess., p. 431.