lieve either their safety would be in jeopardy, or that the evidence was being destroyed.

Should this have any bearing on our considering this provision?

Mr. MIKVA. Well, I think it demonstrates the lack of need for this kind of a provision to get at the problem. The point about those exceptions and I agree with the Justice Department, those are clear exceptions to the rule that a police officer must identify himself, and the purpose of being there, before he can enter-but the purpose of those exceptions was to take care of most of the situations that this noknock provision is aimed at.

However, they are done in the context of, as you pointed out, all of the facts and circumstances surrounding that particular case.

What this provision seeks to do instead is to establish as a matter of law, without regard to the facts or circumstances, that as long as narcotics are involved, a police officer can go in without knocking first, or without identifying himself, even though under the particular circumstances, he would have no reason to assume that either his life was in danger, or the evidence was being flushed down the toilet, or being otherwise disposed of.

Let me be specific. A police officer comes to a door at 3 o'clock in the morning. Under the common law-and there is no sound going on inside he would have no reason to assume that either his life is in danger or that the evidence is being destroyed, and he would knock. And if someone immediately comes to the door, and says, "Who is it?" he would identify himself.

If the person opened the door at that point, there would be no reason to use any force. Only if he heard someone running to the bathroom, or if in turn he heard someone opening the window, would he then say, "Aha. There is someone trying to escape." Or if he heard someone click a revolver, "My life is in danger." He could then use extra force.

Under this proposal, however, all that goes out the window, and all he does is go to the judge in the afternoon, and say, "There are narcotics involved here," and that night, he comes in with his battering ram and rams down the door, and that is the difference between the common law exception, and the statutory provisions being urged here. Mr. ROGERS. Yes. Now the claim that they would have to make a strong showing to the judge that either there was reason to believe his life would be in danger, or that evidence would be destroyed.

I am not sure in my own mind just what they would have to show to the judge, or what this means, "A strong showing," and I think this probably should be made clear in the record, what they are intending. I would agree with you.

Mr. MIKVA. The language of the bill is very, very clear the other way. It says, if the judge is satisfied that there is probable cause to believe that if such notice were to be given, a property in this case "may be easily and quickly destroyed or disposed of."

Now, what that means is when you are talking, for instance, about heroin, as Dr. Carter knows, that is easily disposed of. Every case where they expect to find heroin could be subject of a no-knock

warrant.

Mr. ROGERS. Yes. I might say that the Senate amendment struck out "may" and put in "will."

Mr. MIKVA. "May," and put in "will." The same point, though. Mr. CARTER. Well, Mr. Chairman, one other thing: You are speaking of the common law. I am no lawyer, but what is the little precept which says the king has the keys to-do you remember that?

Mr. MIKVA. Yes, but our fourth amendment specifically denied that adage, because our forefathers, I think very wisely, said that in this country, we will not give the king, the Government, that kind of power, and we said the people shall be secure in their houses.

The king, the Government does not have the keys to every house in the kingdom in this country.

Mr. CARTER. I agree. Thank you.

Mr. MIKVA. We don't want him to.

Mr. ROGERS. Thank you very much for your testimony. It has been most helpful.

Mr. MIKVA. Thank you, Mr. Chairman.

Mr. ROGERS. Our next witness is Mrs. J. Skelly Wright, representing the National Association of Mental Health.

Mrs. Wright, the committee welcomes you, and we are delighted to have you.

STATEMENT OF MRS. J. SKELLY WRIGHT, SECRETARY, NATIONAL ASSOCIATION FOR MENTAL HEALTH, INC.; ACCOMPANIED BY MICHAEL E. FREELAND, ASSOCIATE DIRECTOR

Mrs. WRIGHT. Thank you, Mr. Chairman. I appreciate the opportunity of appearing before the committee. I should like to introduce, if I may, please, Mr. Michael E. Freeland, associate director of our National Association for Mental Health.

Mr. ROGERS. Thank you. We are familiar, and Mr. Freeland is an old friend of the committee.

Mr. FREELAND. Thank you, sir.

Mr. ROGERS. If you have a prepared statement, we will be glad to receive it into the record, and then you may comment, or proceed in any way you see fit.

Mrs. WRIGHT. Yes, I do have a prepared statement, Mr. Chairman. It is very short, and I should like to read it.

Mr. ROGERS. All right. That will be fine.

Mrs. WRIGHT. I am Mrs. J. Skelly Wright, and I reside in Washington, D.C.

I am appearing today in behalf of the National Association for Mental Health, of which I am an officer-the secretary-as well as a member of its executive committee and board of directors.

The National Association for Mental Health is a coordinated citizens voluntary organization working toward the improved care and treatment of the mentally ill and handicapped; for improved methods and services in research, prevention, detection, diagnosis, and treatment of mental illness and handicaps; and for the promotion of mental health.

As such, we are deeply concerned about the mental health implications of the problems of narcotic addiction and drug abuse. Because of the magnitude of the problems and their pervasive spread throughout our population, especially our youth, in every stratum of our society, we have been forced to the realization that what confronts

42-121-70-pt. 1-20

us is a major health and sociological problem, over and above the problem of law enforcement to prevent and control illicit traffic in narcotics, and dangerous drugs and substances.

As a health problem, it is now being dealt with in community mental health centers, at the local level, and by HEW's National Institute of Mental Health at the national level. The programs carried out by these agencies provide and support research treatment and rehabilitation services and, equally important, a massive educational program aimed, hopefully, at prevention.

We support H.R. 11701 because its provisions recognize the important distinction between the health and the law enforcement aspects of narcotic addiction and drug abuse. H.R. 11701 properly vests authority in the Secretary of Health, Education, and Welfare to: (1) conduct research and education in the field of prevention, treatment, and rehabilitation;

(2) to classify and/or reschedule drugs as to their abuse potential; and

(3) to appoint members of the Advisory Committee on Narcotics and Dangerous Drugs to advise the Secretary on the subject of narcotic or depressant or stimulant drugs.

As this committee will no doubt have concluded from the testimony of other witnesses representing various professional disciplines, there is a substantial body of professional opinion which supports the view that there are indeed serious mental health implications related to, or flowing from, the core problems of narcotic addiction and drug abuse. It is believed that the state of mental or emotional health of addicts and drug abusers is an important factor to be considered in attempting to determine causes and in trying to devise programs for their treatment and rehabilitation.

We support H.R. 11701 and urge that it be favorably reported by your committee.

Thank you very much, Mr. Chairman.

Mr. ROGERS. Thank you, Mrs. Wright. We appreciate the views of the National Association for Mental Health.

From your testimony, I think you make it quite clear you do not favor the provisions of the Senate bill, but rather, the House bill.

The Senate bill puts those powers that you think should be in HEW in the hands of the Attorney General, and you think this is not proper for a law enforcement agency to have the scientific functions assigned to it.

Mrs. WRIGHT. That is correct, and we base it on the medical aspects of the problem, the emotional aspects of the problem.

Mr. ROGERS. Thank you so much. Mr. Carter?

Mr. CARTER. Thank you, Mr. Chairman. Certainly, I think this is a good presentation, and, as it happens, I agree with you. Thank you. Mrs. WRIGHT. Thank you very much.

Mr. ROGERS. I think you will find this committee has a tendency to agree with these views, and we hope to do something about it, Mrs. Wright, in changing the legislation.

Mrs. WRIGHT. Thank you.

Mr. ROGERS. Thank you. We appreciate your coming here.
Mr. FREELAND. Thank you, sir, very much.

Mr. ROGERS. Our next witness is Mr. Lawrence Speiser, who is director of the Washington office of American Civil Liberties Union. Mr. Speiser, the committee welcomes you, and we will be glad to receive your testimony.

Without objection, your written statement will be made a part of the record, and, if you would like to highlight it for the committee, I think it would be helpful.

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON (D.C. OFFICE, AMERICAN CIVIL LIBERITIES UNION

Mr. SPEISER. Thank you, Mr. Chairman. You should have received both a rather lengthy written statement, I am afraid, some 16 pages, as well as a summary. And I would like to have both inserted in the record.

Mr. ROGERS. Without objection, so ordered. Yes, thank you.

Mr. SPEISER. The rather lengthy statement does take on a number of constitutional issues, in spite of Dr. Carter's feeling that perhaps Congress need not concern itself with the constitutionality of a bill once the Justice Department has passed on it. I will not go through those constitutional arguments in detail, but will, as you indicated, merely highlight some of the points covered in that lengthy statement. First of all, we are delighted with the concern that is being shown to this problem of drugs, narcotics, and marihuana. Drug abuse, in general, is a problem in our society, and it is all too long since we have had an intelligent and conscientious review of the problems.

In our view, many of the bills before the committee unfortunately highlight the enforcement aspect, rather than placing the primary emphasis on research, education, and treatment. We wish to place ourselves in support of the belief that the primary emphasis should be on research, education, and treatment.

Now, with regard to marihuana, which may be in a class by itself, but is within the purview of a number of the bills, the American Civil Liberties Union believes that the criminal sanctions against the use and possession of marihuana should be eliminated.

We believe that they represent excessive and unconstitutional interventions into personal and private lives. Therefore, we urge that the approach of H.R. 13743, which will leave marihuana as a narcotic drug and which would make no changes in the penalties for its use and possession, not be adopted.

We view H.R. 11701 and H.R. 12882, which would transfer marihuana out of the "narcotic" drug category, into the category of "depressant and stimulant" drugs under the Food, Drug, and Cosmetic Act, as positive steps in the right direction.

Secondly, we favor the approach in both H.R. 11701 and H.R. 12882, which would authorize the Secretary of Health, Education, and Welfare, in consultation with the Attorney General, to establish classes of drugs requiring Federal control. It seems on its face that the head of this department is in a far better position to make that kind of judgment than the Attorney General, who inevitably makes these decisions within the context of a law enforcement problem, rather than viewing the problem of drug abuse as a medical and sociological problem.

H.R. 13743 makes no changes in existing punishment for narcotic drug offenses. It drastically increases the penalties currently imposed on stimulants and depressant drugs. It makes no changes in the penalties on marihuana use. Moreover, it takes a retrogressive step in imposing mandatory minimum sentences on the use of stimulant and depressant drugs. Experts, including the National Crime Commission, Dr. Stanley Yolles, and Attorney General Mitchell have spoken out against mandatory minimum penalties. They go against the current belief in rehabilitation in penalogy. When you have mandatory minimums, leaving no discretion to the judge to take into consideration the variation in factors which exist in each case, this ties the hands of judges and creates massive injustices in the operation of the system.

There are a number of enforcements in H.R. 13743 which we oppose. One of them, the no-knock warrant, has been spelled out by Congressman Mikva; but, in addition, there are some other provisions which we feel pose grave dangers to individual freedom.

Section 703, which authorizes administrative inspection warrants without a showing of probable cause, goes against the fourth amendment. The standard provided for administrative inspection warrants is merely "for any purpose to enforce the provisions of the Act," which is a sort of a tautological kind of standard. The theory is based on some Supreme Court cases authorizing inspections to search for substandard housing or health conditions.

That is not quite the same situation in the drug context, where you are looking for contraband which could, in fact, be the basis for criminal prosecution. If contraband is turned up during an "inspection,” and its possession is unlawful, there is nothing in the law which would prohibit the use of that contraband, those drugs, in a criminal prosecution, because the search was conducted with an administrative inspection warrant. If that is the case, then there is a serious fourth amendment problem.

There is another provision, section 703, which would authorize some of these administrative inspections, even though no warrants have been issued at all. Furthermore, there is section 606 (a), which authorizes the Attorney General to hold hearings before himself, and grants him the power to issue subpenas for witnesses to appear before him and to bring documents. He is thus placed in the position of being the judge and the prosecutor. There is no neutral magistrate in there, despite the fact that this has always been conceived as necessary for search warrants, so that someone other than the prosecuting agency makes that judgment as to whether it should be issued.

There is a provision, section 707, which is another immunity provision. They seem to have a good deal of popular favor these days. Section 707 is a means of getting around the fifth amendment's privilege against self-incrimination. I have never thought that constitutional protections were things to be gotten around, but it seems to me, trying to undercut the privilege against self-incrimination is just one part of a growing tendency to do just that.

However, this provision, similar to others which have passed the Senate, doesn't provide the complete protection which we think is required, if, in fact, you are going to have a constitutional immunity

statute.