H. J. ANSLINGER
United States Commissioner of Narcotics
WILLIAM F. TOMPKINS
United States Attorney for the District of New Jersey Former Chairman, Legislative Commission to Study Narcotics, General Assembly of New Jersey
THE STATES AND THEIR RESPONSIBILITY
AT A MEETING OF THE NATIONAL CONFERENCE OF COMMISSIONERS on Uniform State Laws, held in Washington, D. C., in 1932, the fifth tentative draft submitted by the subcommittee on Uniform State Laws was approved and adopted by the Conference as a model Uniform State Narcotic Act. This Act has been enacted into law, substantially as drafted, by forty-three States and the territories of Alaska, Hawaii, and Puerto Rico, and the District of Columbia. Of the five States which have not adopted the Uniform Narcotic Law, two-Pennsylvania and California-have in effect, State narcotic laws which are considered to be of comparable efficacy.
THE ARGUMENT FOR UNIFORM LEGISLATION
Before launching into any discussion of the Act itself it is important that we understand the reasons for uniform legislation. Unfortunately, in the twenty years which have passed since this Act was drafted, the reasons for its enactment have become obscured. As a result, despite the fact that most of the States have enacted it, the obligations of the various States under the terms of the Act have not always been fulfilled as the legal authorities who framed this Act bad intended.
Prior to the enactment of any Federal statute the States which legislated against the use of narcotic drugs were impelled to do so in order to secure their citizens against injury to their health, morals, and general welfare. The very early laws were designed
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to eradicate the evils of opium smoking and the maintenance of opium dens. Later, however, some of the States enacted laws covering other narcotic drugs and providing various penalties for their violation, but so little knowledge of the traffic was possessed by the framers of the various acts that an examination of them revealed such a varied expression of ideas on a single subject that it could only be classed as chaotic and absurd.
When the Harrison Act was enacted by the Federal Government, it was contemplated that the authorities of the several States would accept and discharge the responsibility of investigating, detecting, and preventing the local illicit traffic conducted by the retail peddler, together with the institutional care and treatment of drug addicts within their respective jurisdictions. The expectation, however, proved to be totally unfounded. Instead, notwithstanding the limited power of the Federal Government, State officers became imbued with the erroneous impression that the problem of preventing the abuse of narcotic drugs was one exclusively cognizable by the United States Government and that the Federal law, alone, should represent all the control necessary over the illicit narcotic drug traffic. During the years from 1914 to 1932 the situation was such that very few States made any attempt to accept a just part of the burden of enacting and enforcing adequate laws to control the traffic.
This attitude on the part of the States resulted in an anomalous situation. The public press each day brought news of banks being robbed by organized gangs, details of kidnappings, of burglaries and of gambling rackets, and other articles concerning the operations of bandits who held up stores and citizens. Newspaper editorials criticized the police, and clamorous demands were made upon them to eliminate these menaces to the community well-being. No authoritative source then suggested, or has since suggested, that these matters were anything but State problems. As a matter of fact the person who would suggest that the Federal authorities be called upon to come into the State and catch a hold-up man would be castigated. Furthermore, the local police would be outraged. Yet, in the same community, the insidious drug peddler, carrying on his nefarious work of unlawfully taking away not only the property but also the peace of
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mind and the morals and health of the citizens and of undermining the general welfare of the community, was considered an exception to the general rule. In spite of the fact that the right to punish such criminals under certain circumstances lay only within the police power of the State, and despite the fact that the founders of our country never contemplated that such activities should be dealt with by the Federal Government, enforcement officers, as well as legislators and administrators in a number of States, conveniently decided that the United States had exclusively assumed the burden of coping with this particular problem of the local community.
This illogical, indifferent attitude not only prevented the passage of adequate laws of inestimable benefit to the State's own citizens, but it resulted in a number of the States in an almost complete failure to enforce the laws already on the statute books, even in those aspects of the crime with which only the State itself could deal. Federal courts became flooded with cases of a minor character which should have been handled in the State courts but which were not thus handled, either from lack of adequate laws or because the duties and responsibilities appeared burdensome, expensive, or distasteful. This in turn caused a slowing up of the prompt and orderly process of justice in major cases, and in many instances cases were continued from term to term because of congestion in the courts and were finally dismissed on account of the unavailability of witnesses or the unknown whereabouts of the defendants. Moreover, if the defendant pleaded guilty he was often accorded so much consideration that a fine or a short sentence was imposed and he immediately resumed his illegal activity.
Some of the reasons advanced by many State and municipal prosecutors for their reluctance or open refusal to prosecute narcotic cases were as follows:
First, that sentences imposed in Federal courts were more severe than those imposed in the State courts. Such sentences were, of course, those meted out to major violators; however, it was obvious that it did not lie within the power of State and municipal courts, where the State law was either inadequate or non-existent, to impose a sentence equal to those which were
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imposed in Federal courts in cases of greater magnitude and where the offense was a felony.
SECOND, that it was difficult to find a jury which would convict because in the smaller communities the menace of narcotic drugs was not understood. This argument was as incorrect then as it is now. The general public was, and is, fully aware of the destructive menace of drugs, and in smaller communities it has generally been found that the violation of such laws was regarded as an extremely grave, criminal offense.
THIRD, that, when the accused was a woman, the State often had no suitable institution in which to care for her. This only served to point up the need for the enactment of State legislation providing for the care and treatment of all addicts, both men and women. An argument such as this arose only from the desire to place the burden of the necessary financial outlay upon the shoulders of the Federal Government.
FOURTH, that voluntary applicants for treatment strenuously objected to incarceration in a State prison. This only reinforced the necessity for the enactment of legislation by the States for the purpose.
In addition to the reasons heretofore set forth many others were given. There is no need to recount them all. They served as excuses and pretexts to avoid responsibility. They did, however, serve to point up the need for a Uniform State Narcotic Drug Act.
Furthermore, the States, having supreme police power within their own boundaries to enact and enforce all laws necessary to the peace, health, morals, and general welfare of their citizens, are not hampered by the narrow limitations that restrict the Federal Government in its fight to control the illicit narcotic drug traffic. In other words, there were gaps in the Federal law which the States could and should plug. For example, the Federal law did not directly prohibit self-administration by a physician, and the Federal Government could not deprive him of his right to purchase narcotic drugs until the State had first deprived him
of his license to practice his profession,
Another example would be the case of a drugstore robbery where the culprit was apprehended by Federal officers while in
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possession of tax-paid narcotic drugs. This, of course, did not constitute a Federal offense and here again a State law was necessary. Such a situation could be covered in every State law by making mere possession of narcotic drugs a felony and only making it necessary for the State to show that the defendant was within the jurisdiction of the court when apprehended.
In brief, it can readily be seen that the reasons for and the need for a Uniform State Narcotic Act were both cogent and obvious. In recognition of this fact, work was started by a committee of experts in 1927 and after prolonged discussions, much study, and thorough debate, the fifth tentative draft of a uniform act was finally accepted by the Conference of 1932. This law was not perfect, nor did it present a complete solution of the narcotic problem, but it did represent a very important step toward uniformity in the laws as well as in the cooperation between the States and the Federal Government. In drafting the Uniform Act the committee had to take into consideration two Federal laws -the Harrison Act and the Narcotic Drugs Import and Export Act. While it was a fact that without these Federal laws on the subject, the individual States would have been greatly handicapped in combating the distribution of narcotic drugs within their borders, it is important to remember that these acts were not for the purpose of exercising any police power, which is a prerogative of the State. Their validity was predicated on the power of the Federal Government to tax, to regulate interstate and foreign commerce, and to make treaties.
Two other considerations were important; (1) that the State laws did not contravene Federal law; and (2) that there would be no provisions requiring records that would require the citizens in the various States to duplicate their efforts in complying with both laws.
Inherent in the drafting of the Act was the necessity of providing for the protection of those who would use the drugs legitimately, and at the same time establishing penalties for those who might use them illegally, since the architects of this Act did not lose sight of the dual fact that those who were protected by its various provisions might under certain circumstances seek to use the drugs illegally.
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THE UNIFORM NARCOTIC DRUG ACT
The Act contains twenty-six sections. In discussing the various sections of the Act it might be well to point out some of its salient provisions. First of all, it prohibits any person from manufacturing, possessing, having under his control, selling, prescribing, administering, dispensing or compounding any narcotic except as authorized in the Act. It provides for the licensing of manufacturers and wholesalers and for the qualifications thereof, as well as setting forth the classes to whom and the manner in which drugs may be sold or dispensed.
One of the sections of the Act deals with sales by apothecaries and provides that an apothecary, in good faith, may sell and dispense narcotic drugs to any person upon a written prescription of a physician, dentist, or veterinarian. A companion section deals with the professional use of narcotic drugs and provides that a physician or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs. It goes without saying that the members of the professions should be thoroughly familiar with these sections of the Act and that they should observe them implicitly.
Further sections set forth the exempt preparations of which more will be said later, prescribe the records to be kept, set up the requirements concerning labeling, and provide for the authorized possession of narcotic drugs by certain individuals.
Section 15 of the Act provides that upon the conviction of any person of the violation of any provision of the Act, a copy of the judgment and sentence and of the opinion of the court, shall be sent by the clerk of the court to the board or officer by whom the convicted defendant has been licensed or registered to practice his profession or to carry on his business, and further provides that upon the conviction of such person the court may, in its discretion, suspend or revoke the license or registration of the convicted defendant to practice his profession or to carry on his business, with the additional provision that upon the application of any person whose license or registration has been suspended or revoked, said board or officer may reinstate such license or registration. The section is both important and necessary; but
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despite that fact many States have either omitted it entirely or have inserted a watered-down provision in its place. Effective narcotic control in any State would demand its inclusion.
Obtaining or attempting to obtain a narcotic drug or procuring or attempting to procure the administration of a narcotic drug by fraud, deceit, misrepresentation, or subterfuge or by the forgery or alteration of a prescription or of any written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address is prohibited. Further sections allocate the responsibilities for the enforcement of the Act as well as the penalties for violations.
Provisions with regard to care and treatment of addicts, and search and seizure were omitted from the Act. Since it was felt that each State could better legislate on those subjects individually, and recognizing that the question of care and treatment was of vital and paramount importance and that the cure of addicts was as much a duty of the State as was the care of its insane, the committee recommended that no State delay in making an immediate and complete study of this problem. In connection therewith, the experts were in almost unanimous agreement on two points; (1) that the treatment of drug addiction was a medical and not a penal problem, and (2) that treatment looking toward the cure of addiction, without confinement in a drug-free atmosphere, was uniformly unsuccessful.
From the practical standpoint it is fundamental that a business, legal or illegal, would be bound to fail if deprived of customers, and the peddler of narcotic drugs is no exception. If the peddler were deprived of a market for his illegal wares, he would cease to exist. As long as the addict is at liberty to come and go, the peddler has a steady customer. When the addict is institutionalized he not only loses his value to the peddler but he is also thereby prevented from contaminating others.
Any one reading the draft of the Uniform Act as reprinted in the Appendix will be impressed that so complex a subject could be handled so clearly and briefly by its framers. With the exception of Sections 1, 5, 8, 9, and 20, the law remains as it was originally drafted in October, 1932. Sections I and 9 were amended in August, 1942, only because in 1932 it had been
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assumed that the dangerous drug principle of the Cannabis plant was limited to the flowering tops of the female plant. When it was subsequently determined that this dangerous drug principle was contained in the leaves and foliage of both the male and female plants, it became obvious that the Uniform Law should be made to apply to all of the potentially dangerous parts of the plant. Accordingly changes were made in both Sections I and 9. The 1942 amendment of sub-paragraph 5 of Section 5 of the Uniform Act was a technical amendment which authorized the sale of narcotic drugs by a licensed manufacturer or wholesaler to certain specified persons employed on ships or aircraft.
The August 1942 amendment of Section 8 of the Act was an excellent and much needed amendment. Section 8 of the original Act exempted from its general requirements medicinal preparations that contained in one fluid ounce or, if a solid or semi-solid preparation, one avoirdupois ounce: (1) not more than two grains of opium; (2) not more than one quarter grain of morphine or of any of its salts; (3) not more than one grain of codeine or any of its salts; (4) not more than one eighth of a grain of heroin or of any of its salts; (5) not more than one half of a grain of extract of Cannabis nor more than one half of a grain of any more potent derivative or preparation of Cannabis. The effect of the 1942 amendment to Section 8 was to limit the exemption to medicinal preparations that contained in one fluid ounce or, if a solid or semi-solid preparation, in one avoirdupois ounce, not more than one grain of codeine or of any of its salts. The reason for the change was the fact that world conditions indicated that the original provisions were too liberal, and the change had the effect of conserving the supply of opium and its derivatives as well as reducing the possibility of sale of narcotics for abusive use since persons who were unable to obtain their supply of narcotics from illicit sources were turning to druggists and other legal sources and purchasing drugs exempted under Section 8 of the original Act.
Experts in the field of narcotic control were in complete agreement that the 1942 amendment of Section 8 of the Act was necessary and in the public interest, and despite the fact that the proposal was fought in several States, forward-looking States
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such as Colorado, Kentucky, Louisiana, Iowa, North Dakota, Wisconsin, Minnesota, Montana, Oregon, New Jersey, South Dakota, Vermont, and the Territory of Alaska adopted this amendment. In relation to this section, it is noteworthy that heroin is neither lawfully manufactured in, nor imported into, the United States.
Some States have inserted in the Uniform State Narcotic Law sections providing for confinement and treatment in State hospitals for persons convicted under the Act, while other States have made drug addiction an offense under the Disorderly Persons Act. Practically every State has provided a section in their Act relative to search and seizure. Some States, such as Delaware, North Carolina, New Jersey, Maryland, and New York have added sections regulating the possession of hypodermic syringes and needles.
Section 21 of the Act, which provides that no person shall be prosecuted for a violation of any provision of the Act if such person has been convicted or acquitted under the Federal narcotic laws for the same act, or omission which it is alleged constitutes a violation of the Act, has been deleted by New Jersey and Maine. The courts have held that a single offense which violates both Federal and State criminal laws results in distinct offenses against two separate governments. In view of the viciousness of the illicit narcotic traffic, who would not want to see the offenders subject to two long prison terms?
New Jersey, considered by experts to have the strongest and finest laws in the United States pertaining to narcotics, has recently adopted as a type of offense what is known as proselytism in regard to narcotic drugs. New Jersey law, which can be particularly effective where juveniles are involved, provides that any person who induces or persuades any other person to use any narcotic drug unlawfully, or aids or contributes to such use of any narcotic drug by any other person, is guilty of a high misdemeanor, and subject to a penalty of up to seven years imprisonment, together with a fine. This broad enactment should prove a powerful weapon for prosecutors.
Section 7 of the Uniform Act, which deals with the professional use of narcotic drugs, is extremely important. It provides that a
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physician in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs. This same provision is also contained in the Federal law. Most States have required the prescription to be in writing. Federal regulations require that the prescription be in writing, except in the case of exempt preparations or where the drugs are dispensed to bona-fide patients directly. Thus, the physician's privilege is predicated on two elements-the patient, and the dispensation in the course of professional practice only. It follows, of course, that if that important second element is not present, the physician's privilege is nullified.
The Act is silent with relation to the specific diseases for which a narcotic drug may be supplied, and the question of what constitutes bona-fide medical practice is determined by a consideration of the evidence and the circumstances. The answer resolves itself on whether the prescription was real and genuine and was predicated on bad faith rather than bad judgment. A physician may prescribe narcotic drugs for a disease or injury in the treatment of which narcotic drugs are medically indicated; however, dispensing the drug for the purpose of satisfying the craving of an addict for the drug is not dispensing or distributing it in the course of professional practice and is therefore illegal.