Alexander DeLuca, M.D.
Rufus B. King 26
Yale Law Journal, 784-787; 1953. Posted: 2002-12-12; Modified: 2006-09-11.
|NOTE: This issue of the JOURNAL contains two studies of the narcotics problem. A Comment, beginning on page 751, presents a general survey of narcotics regulation. Mr. King's Article focuses on the interpretation and enforcement of the Harrison Act, and the resulting impact upon addicts and physicians.|
PERSONAL NOTE from
AT last there are faint stirrings to suggest that this nation's
policies toward its narcotic drug traffic may soon be exposed to a full
critical re-examination and review. Nearly forty years have gone by since
Congress passed the Harrison Act, intended partly to carry out a treaty
obligation, but mainly to aid the states in
combating a local police
problem which had gotten somewhat out of hand. In other areas of law
enforcement, when Congress has thrown federal power into the balance,
these local problems have usually diminished or disappeared. In the case
of narcotics control, however, the indications are all quite to the
contrary. It must be conceded that there are large gaps in what we know
about narcotics addiction and the illicit traffic. The Comment elsewhere
in the JOURNAL presents a dispassionate collection of information and
authorities. Yet there is simply not much to go by. When the federal
authorities took over, we entered a forty-year eclipse; for years on end
there has been nothing but the "official line" for those who
wished to inquire into the subject. But enough information is available to
convince this writer, along with a handful of other Protestants, that the
United States-alone among civilized nations-has driven relentlessly down
the wrong road ever since the end of World War I. This article (which is
not dispassionate) will relate the episode in our legal history which
propelled our enforcement agencies along this road. But first it may be
helpful to set forth a brief history of the relationship between the
addict and his Government.
Two things, very likely related, distorted this intent. The Act was assigned, for enforcement, to the same righteous zealots who were undertaking another national mistake -enforcement of our then new Prohibition laws; and, secondly, a great public hullabaloo about the "dope menace" swept the country. The narcotics-user suddenly became a "dope fiend." Official estimates of the addict-population leapt to the fantastic figure of one million - mostly young folk, many "under the age of 20." The good people of our land were terrified. The Narcotics Division of the Treasury Department came charging to the rescue; our prisons began to fill, not with illicit peddlers only, but with addicts--and reputable medical men who had tried to help them. And there has been no surcease from that day to this.
sum, the Narcotics Division succeeded in creating a very large criminal
class for itself to police (i.e., the whole doctor-patient-addict-peddler cornmunity),
instead of the very small one that Congress had intended (the smuggler
and the peddler). Subsequent Division officials have sustained the
enforcement-oriented propaganda barrage: the addict is a criminal, a
criminal type, or laden with criminal tendencies.
addicts can only be dealt with by being tracked down and isolated from
society in total confinement;
the cure-all is more arrests and stiffer criminal penalties for all
and anyone who raises a dissenting voice is most likely a bungling
or one who wants to undermine the foundations of our society.
The states have been pushed and swept along this same vindictive line of
with very few dissents.
And the present campaign is as vigorous and formidable as ever.
To this campaign, the judiciary made its own contribution in a series of
decisions rendered in the 1920's and to which we now turn.
Before the Narcotics Division could really turn the nation into a happy hunting ground, stocked with addicts as fair game, it had to drive the medical profession out of the way. As has been noted, Section 2 of the Harrison Act exempted the prescription of drugs "to a patient by a physician . . . in the course of his professional practice only" This was unrevealing draftsmanship, and many doctors felt that the agonies of unrelieved addiction were as much encompassed in their Hippocratic Oath as any other human suffering. The Division's assault on this expression of the physician's conscience started in the courts.
The Government aimed for a construction which would exclude from the Harrison Act exemption a doctor's dispensation of narcotics to ease all addict's cravings. The attack had two objectives: to end all so-called ambulatory treatment  (including the clinic system for controlled distribution of drugs to addicts); and then, if possible, to drive the profession away from the addict altogether. It succeeded in both goals-for a brief period. But its short-lived success was enough, as we shall see.
Government victories in the Supreme Court, culminating in United States v. Behrman, pose two problems that are broader than the subject matter of this discussion. To what extent is it morally justified for an administrative agency to select the cases it feeds our appeals courts in order to gain some desired interpretation or result? And how far ought the rule of stare decisis be extended into successive administrative actions and interpretations-particularly when the court decision underlying the original action has meanwhile been effectively overruled? The Harrison Act came through its first constitutional test by a five-to-four margin. On the same day the Court decided Webb v. United States, a physician case under the exemption in Section 2. The facts showed flagrant abuse; the doctor had sold prescriptions-4,000 of them in eleven months -- indiscriminately to anyone for 50 cents apiece. The issue was presented in a certified question:
The Court replied:
Note how the question was loaded: "sufficient to keep him comfortable by maintaining his customary use" is not a description of the facts of the case; it not only blankets the outright peddling involved in the case before the Court, but it also reaches toward the bona fide administration of drugs for the relief of a patient-addict. The next case, Jin Fuey Moy v. United States, was likewise flagrant on its facts. The doctor had prescribed morphine to strangers indiscriminately, in bulk, 8 to 10 grams at a time for $1.00 per gram. The Court, this time apparently choosing its own wording, said:
Again, the language goes beyond the facts of the case. It separates "professional practice" from any administration whatsoever "intended to cater to the appetite or satisfy the craving" of an addict.
Now the stage was set for Dr. Behrman. For purposes of finding the doctor a peddler for profit, the case presented an ideal set of facts. He was arrested in New York for giving one addict, at one time, for use as the addict saw fit, prescriptions for 150 grains of heroin, 360 grains of morphine, and 210 grains of cocaine. Again the question posed was whether this was "in the course of his professional practice only." The Government, however, drew up a trick indictment, alleging not that the prescriptions were incompatible with approved and proper therapeutic treatment, but instead alleging that, in effect, the drugs were given in a good faith attempt to cure the addict.
[Note from Alex DeLuca, M.D., 12/11/2003: Just to put the dosing here in perspective, examining only the morphine component of the medication regimen, 360 grains represents near ideal outpatient dosing for an opiate dependent person based on a modern understanding of methadone dose-effectiveness research.
Now, I have no knowledge of Dr. Berhman other than what is written about him in this document by Rufus King and in "Licit and Illicit Drugs" by Edward Brecher and I do not know what his intentions were. Giving him the benefit of the doubt, we can hypothesize that the morphine / heroin / cocaine regimen was part of a detoxification-to-abstinence regimen starting with morphine at, say, 200 mg /day decreasing the dose on a weekly basis, faster at first slower towards the end, switching at some point to heroin (believed at the time to be an effective 'cure' for morphine dependence) and ultimately tapering to abstinence using the cocaine, in the accepted manner of the day, to mitigate the depression and ennui known to accompany detoxification from opiates. This detoxification regimen could be accomplished, given the amounts of the medications involved, in six to twelve months depending of the patients progress.
Again, this is a medically appropriate, even
ambulatory treatment regimen for opiate dependence and one well within the
prescribing norms of the American medical community before 1918.
Behrman demurred. The district judge delivered a brief tirade against "ambulatory treatment," but reluctantly sustained the demurrer, referring to a decision in another trick-indictment case,34 and closing with an inviting conclusion: "For the sake of uniformity in this district, however. I am disposed to follow precedent until the question is concluded by a decision of the Supreme Court." The Government appealed the case directly to the Supreme Court  and promptly moved to advance it, stating in support of its motion:
In the Behrman brief, Solicitor General Beck made no attempt to gloss over what was being sought, apparently relying, rightly as the outcome proved, on the flagrancy of the case and the prevailing temper of the times.
Justice Day and five of his associates sustained the Government's position, reversing the district court and thus putting the stamp of approval on the Behrman indictment. That the majority of the Court did not see clearly what they were doing-notwithstanding the Government's candid brief-is apparent from the fact that they relied heavily on the mere amount of the prescriptions, apparently without realizing that the doctrine they were setting would make volume and good faith, as well, -irrelevant. The other three justices, Holmes, Brandeis, and McReynolds were more clairvoyant. Justice Holmes wrote for them:
If some members of the Court were not fully aware of what they were giving in the Behrman holding, the Narcotics Division nonetheless saw perfectly clearly what it had received. Manifestly, if a Behrman indictment was unassailable when it charged the dispensing of shocking amounts of drugs, it was no less unassailable when it charged a minute quantity only. The Division had what it wanted. Any doctor who prescribed any narcotic drug to any addict could be threatened with prosecution or packed off to prison and good faith was no defense.
Immediately there commenced a reign of terror. The medical profession was shamelessly bullied and threatened, until it withdrew, totally and irrevocably, as the addict's last point of contact with society. The narcotics clinics, which had been established in a number of states to alleviate the situation, were closed - in some instances as a direct result of threats by Division agents. In 1924 a special committee of the American Medical Association docilely reported its "firm conviction" that ambulatory treatment of narcotics addicts "begets deception, extends the abuse of habit-forming narcotic drugs, and causes an increase in crime." An earlier version of this report (prior to its adoption by the A.M.A.) had been reprinted by the Division (a practice, as to "approved" materials, that continues to this day) and had been widely circulated as an officially endorsed pronouncements.
Doctors went to prison. The hunt for addicts was pressed relentlessly. Prices rose, prisons filled, "dope rings" throve. The United States acquired the renown of being the world's best market for illicit narcotics - a reputation which stands unchallenged to this day. When the Supreme Court was jolted into further action, it was too late for the justices to after the situation. They spoke firmly, but to no avail.
A Theoretical Reversal The jolt took the form of the next Behrman indictment case to reach the Supreme Court. The facts in this case were fully as outrageous as in Dr. Behrman's case, but invoked the opposite alignment of sympathy.
Dr. Charles 0. Linder was a long-established practitioner in Spokane, Washington, with. a large practice. At four o'clock one Saturday. while he was examining a female patient, with other patients waiting for him, four Narcotics Division agents burst in upon him, and "boisterously and in an ungentlemanly and forcible manner, took charge" of his office.
When he protested, the agents showed their Treasury Department badges and told him, "This is sufficient." After a rowdy search they took him off to jail. Dr. Linder was indicted in a word-for-word repetition of the Behrman indictment, only this time the amount was three small tablets of cocaine and one of morphine. These had been given to an "addict-stool pigeon," who was working for the agents. She claimed she had told him she was an addict; in his version she had represented that she had a painful stomach ailment and that the doctor who regularly treated her was out of the city. Linder was convicted. the Ninth Circuit affirmed, and he petitioned for certiorari, arguing:
When the petition was granted, Solicitor General Beck disposed of the merits, in the Government's brief, in a pithy five-page statement that attempted merely to pin the Court to its earlier declared position:
The Court's opinion, handed down in 1925, was written by justice McReynolds, and was unanimous. Dr. Linder's Conviction was reversed, and the opinion is as emphatic in tone as circumstances could permit:
Of the Webb case, the Court said:
Of the Jin Fuey Moy case: 
And of the Behrman case  itself:
The lower federal courts have since been fairly true to this corrected interpretation of the Harrison Act, when they have had opportunities to express themselves. But there have been few significant cases. The doctors are still in retreat. And the Federal Narcotics Bureau has been undeterred in its own lusty applications of the Act. It's regulations under Section 263, still provide (paraphrasing the loaded question in the discredited Webb case ) :
"An order purporting to be a prescription issued to an addict or
habitual user of narcotics, not in the course of professional treatment
but for the purpose of providing the user with narcotics sufficient to
keep him comfortable by maintaining his custornary use, is not a
prescription within the meaning or intent of the Act: and the person
filling such an order, as well as the person issuing it, may be charged
with violation of the law."
But we have not shown comparable understanding of the addict's problems. The true addict, by universally accepted definitions, is totally enslaved to his habit. He will do anything to fend off the illness, marked by physical and emotional agony, that results from abstinence. So long as society will not traffic with him on any terms, he must remain the abject servitor of his vicious nemesis, the peddler. The addict will commit crimes-mostly petty offenses like shoplifting  and prostitution - to get the price the peddler asks. He will peddle dope and make new addicts if those are his master's terms. Drugs are a commodity of trifling intrinsic value. All the billions our society has spent enforcing criminal measures against the addict have had the sole practical result of protecting the peddler's market, artificially inflating his prices, and keeping his profits fantastically high. No other nation hounds its addicts as we do, and no other nation faces anything remotely resembling our problem. Where does the solution lie? Out of reach, for the moment, because we shall not undo forty years of carefully wrought error overnight. Out of sight, also, at least in precise detail, because we have little reliable data to guide us. But-at least until they are fully explored-the road would seem to lead towards the following areas: (1) relief from persecution for the addict; (2) therapy programs through institutions  clinics, and after-cure followups; (3) provisions for incurables, through clinics or the individual practitioner or both; (4) a forthright out-of-the-dark educational program on narcotics; and (5) a vigorous assault, with all the enforcement resources we can muster, on whatever is left of the peddlers' empire after we have freed the addict from his present bondage to it. Sooner or later some responsible appraiser, probably Congress, will have to take a clear look at our narcotics problem and the plight of the addict. It is to be hoped that re-telling this tale, of Dr. Behrman, who was rightly punished for the wrong reasons, and Dr. Linder, who was vindicated in vain, may hasten the advent of that happy day.
Footnotes & References:
1. See note 70 infra. See also SEN. REP. No. 725, 82d Cong., 1st Sess. (1951) ; Hearings before Special Committee to Investigate Organised Crime in Interstate Commerce, 82d Cong,, 1st Sess, pt. 14 (1951); Goldstein, NARCOTICS, A Report by the Attorney General to the Legislature of the State of New York, (Legis. Doc. No, 27, 1952)
2. 38 STAT. 785 (1914), 26 U.S.C. s. 2550 (1946).
3. The United States adhered to the Hague Opium Convention on January 23, 1912 (38 STAT. 1912 (1912)) ; this obliged adherents to control the manufacter, sale, use, and transfer of "morphine, cocaine and their respective salts."
4. See, H.R. REP. No. 23, 63rd Cong., Ist Sess. 2 (1913).
5. See. e.g.. 31 STAT. 188 (1900), 18 U.S.C. s. 43 (1946) (poaching); 41 STAT. 324 (1919), 18 U.S.C. ss. 2312-13 (1946) (transportation of stolen vehicles); 47 STAT. 326 (1932), 18 U.S.C. s. 1201 (1946) (kidnapping).
6. Comment, Narcotics Regulation, 62 YALE L.J., 751 (1953).
7. See, e.g., Remarks of Hon. John M. Coffee, 83 Cong. Rec. 2607 (1938) ; Stevens, Make Dope Legal, Harpers Magazine, November, 1952, p. 40; Statement of Rep. Cleveland M. Bailey, member of House Interstate and Foreign Commerce Committee, March 23, 1953.
8. The exempting language, relieving from the duty to use Treasury-prescribed order forms, 38 STAT. 786 (1914), 26 U.S.C. s. 2554 (c) (1) (1946), is:
"Nothing contained in the section . . . shall apply . . . [t]o the dispensing or distribution of any of the drugs mentioned ... to a patient by a physician, dentist, or veterinary surgeon registered under section 3221 in the course of his professional practice only. (Emphasis supplied.) Those who avail themselves of this exemption must keep records of each transaction for a prescribed period.
9. Schmeckebier, The Bureau of Prohibition in Service Monograph 57, INST. FOR Gov'T RESEARCH, BROOKINGS INST. 3 (1929). The Narcotics Division was merged into the Prohibition Unit of the Treasury Department in 1920, and carried into the Prohibition Bureau when the latter was created in 1927. Since 1930 it has been a separate entity entitled the Federal Narcotics Bureau.
10. See, New York Times, April 10, 1919, p. 1; U.S. TREASURY DEPT. REPORT OF SPECIAL COMMITTFE TO INVESTIGATE THE TRAFFIC IN NARCOTIC DRUGS (April 15, 1919) (quoted in U.S. TREAS. DEPT, THE TRAFFFIC IN HABIT-FORMING NARCOTIC DRUGS (1923) ).
11. U.S. TREAS. DEPT, THE TRAFFIC IN HABIT-FORMING NARCOTIC DRUGS
(1923). It is noteworthy that as Soon as the Narcotics Division turnd to
reporting its enforcement achievements, this estimate dropped to 100,000
and remained at that figure until World War II.
13. See, e.g., FEDERAL NARCOTICS BUREAU, MEMORANDUM REGARDING NARCOTIC CLINICS, THEIR HISTORY AND HAZARDS 6 (1938): "With regard to the plan which is in effect in Formosa, we have a valuable and informing contribution to our knowledge on the subject by Dr. Somei To of the Health Commission of Formosa. After classifying 57,073 crimes committed during seven years by natives of Formosa, his records show that based upon the relative proportion of opium users to non-users we find 70.83% criminality among opium users as against 29.17% criminality among non-users. In Formosa, opium smoking is licensed and the cost of opium is very small. UNDER THESE CONDITIONS THE ONLY ATTRIBUTABLE CAUSE FOR GREATER CRIMINALITY AMONG NARCOTIC ADDICTS THAN NON-ADDICTS IS THE DIRECT EFFECT OF THE USE OF NARCOTICS UPON THE CHARACTER OF THE USER. Dr. To gives us the answer. It is because drug addiction causes a relentless destruction of character and releases criminal tendencies." (Emphasis as in original).
14. Id. at 4: "Medical authorities agree that the treatment of addiction with the view toward effecting a cure, which rnakes no provision for confinement while the drug is being withdrawn, is a failure, except in a relatively small number of cases where the addict is possessed of a much greater degree of will power than the average addict."
15. See testimony of Commissioner Harry J. Anslinger, Fed. Bur. of Narcotics, in Hearings before Special Committee to Investigate Crime in Interstate Commerce, 82d Cong., Ist Sess. pt. 14, pp. 426-32 (1951).
16. See, e.g., McCarthy, A Prosecutor's Viewpoint on Narcotic Addiction in Fed. Prohib. Q., October, 1943 reprinted and distributed by the Federal Bureau of Narcotics in 1945).
17. In the Chicago Daily News, December 15, 1952, the last argument in extremis was set forth by local public officials of that city: proponents of clinic treatment for narcotic addicts are obviously communists or communist-inspired, seeking to destroy the integrity of the American people.
18. ILLINOIS LEGISLATIVE COUNCIL, DISPOSITION OF NARCOTIC LAW OFFENDERS AND ADDICTS 12-19 (1951). A careful distinction must be made between incarceration per se, and programs which place true emphasis on treatment and rehabilitation. The federal hospitals at Lexington, Ky., and Fort Worth, Texas, are admirable examples of the latter.
19. Governors Green and Stevenson both vetoed incarceration laws for the state of Illinois because no provisions for adequate treatment had been made. Veto messages. July 24, 1947, and August 9, 1949, respectively. In the words of Governor Stevenson: "It appears that the provision in this Bill authorizing imprisonment may have been intended only as a threat to compel the addict to undergo treatment, but whatever may have been the intention in this regard, the Bill does authorize imprisonment for a condition which it is admitted does not constitute a criminal act."
20. The Narcotics Bureau is pressing a bill, H.R. 3307, 93d Cong., 1st Sess. (1953)0 which would provide incarceration for all addicts in the District of Columbia. The worst feature of this bill-in the light of the full problem.-is a "sneaker" in the recitation of its purpose, which reads: "The Congress intends that Federal criminal laws shall be enforced against drug users as well as other persons . . ." This may prove as effective, and as tricky, as the "rigged" indictment to which this article is principally addressed.
21. See note 8
23. There is a much-neglected distinction between prescription of narcotics to an addict for self-administration, and direct administration by the physician. The former is the subject of valid criticism, i.e., it does remove all restraints on consumption by the addict, and the drugs prescribed may be resold in the illicit traffic. There is merit in the suggestion, made from time to time, that all self-administration of narcotics should be made illegal. The "official line" has always ignored this distinction, equating prescription for self-administration with direct or supervised administration, and attacking both as "ambulatory treatment."
24. See notes 70, 72 infra; Comment, Narcotics Regulation, 62 YALE LJ. 751 (1952).
25. 258 U.S. 280 (1922). See pages 741-4 infra.
26. United States v. Doremus, 249 U.S. 86 (1919).
27. 249 U.S. 96 (1919).
28. Webb v. United States, 249 U.S. 96, 99 (1919).
29. Id. at 99-100.
30. 254 U.S. 189 (1920).
31. Id. at 194.
32. Enough, as the Supreme Court noted, for over 3,000 standard injections. United States v. Behrman, 258 U.S. 280, 299 (1922).
33. After reciting the delivery to the
addict, one Willie King, the indictment alkeged: "that on said date
the said Willie King was a person addicted to the habitual use of
morphine, heroin and cocaine ;and known by the defendant to be so
addicted; that on said date the said Willie King did not require the
administration of either morphine, heroin, or cocaine by reason of any
disease or condition other than such addiction. and the defendant did not
dispense said drugs or any of them to said Willie King for the purpose of
treating any disease or condition other than such addiction; that none of
the said drugs so dispensed by the defendant was administered or intended
by the defendant to be administered to the said Willie King by the
defendant or by any nurse or person, other than the said Willie King,
acting under the direction of the defendant, nor were any of said drugs
consumed or intended by the defendant to be consumed by the said Willie
King in the presence of the defendant, but all of said drugs were put in
the physical possession and control of the said Willie King with the
intention on the part of the defendant that the said Willie King would use
same by self-administration in divided doses over a period of several
days, the amount of each of each of said drugs dispensed as aforesaid
being more than sufficient or necessary to satisfy the craving of the said
Willie King therefor if consumed by him all at one time; that said Willie
King was not at the time and place aforesaid, nor was he intended to be,
during the period in which the drugs dispensed as aforesaid were to be
used, by him, under the observation and physical control of the defendant
or of any nurse or other person acting under the direction of the
defendant, nor was said Willie King in any way restrained or prevented
from disposing of said drugs in any manner he might see fit; that said
drugs dispensed by the defendant to the said Willie King as aforesaid were
not mixed with any other substance, medicinal or otherwise, but were in
the form in which said drugs are usually consumed by persons addicted to
the habitual use thereof to satisfy their craving therefor and were
adapted for such consumption; against the peace . . . etc."
Transcript of Record, pp. 2-3, United States v. Behrman, 258 U.S. 280
(1922). For a rather complete paraphrase of the indictment, see United
States v. Behrman, 258 U.S. 280, 286-7 (1922).
35. United States v. Behrman, C. 28/425, S.D.N.Y., Sept. 21, 1921, in Transcript of Record, pp. 5-6, United States v. Behrman, 259 U.S. 290 (1922).
36. Under the Criminal Appeals Act. 34 STAT. 1246 (1907), now as amended, 18 U.S.C. s. 3731 (Sapp. 1951).
37. Motion to Advance, p. 2. United States v. Balint, 258 U.S. 250 (1922), United States v. Behrman, 258 US 280 (1922)
38. Brief for the United States, pp. 7-8, 12-13, 18, United States v. Behrman, 258 US 280 (1922)
39. This description was far from precise. See note 23 supra.
40. United States v. Behrman, 258 U.S. 280, 288-9 (1922).
41. Id. at 290 (dissent).
42. It is noteworthy, for its bearing on the addicts-are-criniinals argument, inter alia, that addiction among doctors themselves has always been a problem, alluded to by the narcotics authorities year after year in their annual reports. See, e.g., U.S. TREAS. DEP'T, TRAFFIC IN OPIUM AND 0THER DANGERGOUS DRUGS, 3 (1926); id. at 3 (1927); id. at 4 (1928).
43. See, New York Times, June 23, 1920. p. 8; Stevens, supra note 7, at 43.
44. REP. REF. Comm. ON LEGIS. & PUB. RELATIONS (1924), reprinted in 82 AMA.J. 1967 (1924).
45. Stevens, supra note 7, at 43.
46. See Simmons v. United States, 300 Fed. 321 (6th Cir. 1924) ; Hobart v. United States, 299 Fed. 784 (6th Cir. 1924) ; Manning v. United States, 287 Fed. 800 (8th Cir. 1923).
47. For many years the Division reported its "score" (in a column with other statistics) by the number of years in sentences imposed: e.g., (1926) 10,342 violations, 5,120 convictions, 6,797 years, 11 months, 10 days; (1928) 8,653 violations. 4,738 convictions, 8,786 years, 4 months, 28 days; (1933) 3,468 violations, 1,694 convictions, 3,248 years, 10 months, 18 days. See U.S. TREAS. DEP'T., THE TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS (1926) and subsequent yearly reports.
48. Linder v. United States,
268 U.S. 5 (1924).
50. Transcript of Trial, Linder v. United States, 268 U.S. S (1924),
51. His sentence: $1000 and two months in jail. Transcript of Record, pp. 25-6, Linder v. United States, 268 U.S. 5 (1924).
52. Linder v. United States, 290 red. 173 (9th Cir. 1923).
53. Brief in Aid of Petition for Writ of Certiorari, pp. 9-11, Linder v. United States, 268 U.S. 5 (1924).
54. Brief of United States, pp. 3-5. Linder v. United States, 268 U.S. 5 (1924).
55. Under v. United States, 268 U.S. 5, 18 (1925) (emphasis added).
56. Webb v. United States. 249 U.S. 96 (1919).
57. Linder v. United States, 268 U.S. 5, 20 (1925).
58. Jin Fuey Moy v. United States. 254 U.S. 189 (1920).
59. Linder v. Unitcd States, ,2688 U.S. 5, 20 (1925).
60. United States v. Behrman, 238 U.S. 280 (1921).
61. Linder v. United States, 268 U.S. 5, 22 (1925) (emphasis added).
62. See United States v. Brandenberg, 155 F.2d 110 (3d Cie. 1946).
63. See note 8 jupra.
64. Webb v. United States, 249 U.S. 96 (1919).
65. U.S. Treas. Dep't, Narcotics Bureau Reg. No. 5, art. 167 (1949), 26 Code Fed. Regs. S. 151.167 (1949).
66. This analogy goes further. It was in the heyday of the bootlegger that organized crime, as we know it today, got its start. Revenues from the illicit narcotic trade are next to gambling, the largest current source of underworld wealth. Quite apart from humanitarian considerations, we should end this billion-dollar-a-year subsidy to the nation's real criminals.
67. See Comment, Shoplifting and the Law of Arrest: the Merchant's Dilemma.
68. YALE L.J. 788, 791 n.36 (1953).
69. At frequent intervals the federal narcotics authorities publish tables of the going rates for illicit drugs. See, e.g., U.S. TREAS. DEP'T. TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 26 (1930). In this issue the Narcotics Division notes a "marked general increase in the prices of narcotic drugs. . . . This is a fair indication of the relative scarcity of narcotic drugs in the illicit market, due to increased efficiency of narcotic-law enforcement."
69. Such as the federal hospitals administered by the U.S. Public Health Service, 58 STAT. 698 (1944), 42 U.S.C. 1257 (1946), the North Brother island Hospital experiment in New York, and the proposed Seabrook Farm Unit in New Jersey.
70. A bill to create a Federal Bureau of Clinics. to develop this approach to the problem. is now pending in Congress: H.R. 2449, 83d Cong., lst Sess. (1953). The bill also includes alcoholics, as beneficiaries of the same program. For discussion of clinic system merits. see Comment, Narcotics Regulation, 62 YALE L.J. 751. 784-7 (1953).
71. This would perhaps be another function of narcotic clinics; it is contemplated, in connection with H.R. 2449, supwa note 70, that other federal agencies, such as the U. S. Employment Service, would be called upon to cooperate in placing and rehabilitating addicts.
72. See Stevens. Make Dope Legal, Harpers Magazine, November, 1952. p. 40.
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