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There is a provision for a narcotics addict's registry in both H.R. 12882 and H.R. 11701, to facilitate research in drug addiction.

There is an obviously sincere attempt in those bills, those provisions, to prevent disclosure of the names of the addicts and to prevent any individual who has access to it from being required to give the name of those individuals, because obviously this information could be utilized in a criminal prosecution. The fact that an individual has signed up on a registry would be something that could be utilized against him in a criminal prosecution. However, the Secretary of Health, Education, and Welfare is given some discretion on disclosure, and it would seem to us, therefore, that there is not that complete kind of protection which is necessary, if you are, in fact, going to have a registry.

In conclusion, we believe that drug abuse is a medical problem which will not be solved by law enforcement alone, and we are delighted that this committee is giving thorough consideration to the problem, and to the steps which should be taken in order to solve the problem. (Mr. Speiser's prepared statement and summary follows:)

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

I am Lawrence Speiser, Director of the Washington Office of the American Civil Liberties Union.

SUMMARY

The solution to the problem of drug abuse demands an emphasis on research, education, and treatment for the users of drugs, over and above any law enforcement efforts to control the source of drugs. Many of the bills before the Committee recognize this need to place primary emphasis on research, education and treatment.

Marijuana

The American Civil Liberties Union believes that criminal sanctions against the use and possession of marijuana represent excessive and unconstitutional interventions into personal and private rights. Therefore, the ACLU recommends that this Committee reject the approach of H.R. 13743 which leaves marijuana as a narcotic "drug" and makes no changes in the penalties on its use and possession. The ACLU views as positive steps in the right direction both H.R. 11071 and H.R. 12882, which transfers marijuana out of the narcotic drug category into another category of "depressant and stimulant drugs" under Foods, Drug, and Cosmetic Act.

Penalties and regulation patterns

H.R. 12882 authorizes the Secretary of HEW, in consultation with the Attorney General, to establish classes of narcotic stimulant and depressant drugs requiring federal control. H.R. 13743 itself establishes these categories for stimulant and depressant drugs. However, the authority to add or subtract drugs is given to the Attorney General. The ACLU recommends that the approach of H.R. 12882 be adopted.

H.R. 13743 makes no change in the existing punishment for narcotic drug offenses. It drastically increases the penalties currently imposed on stimulant and depressant drugs. It makes no change in the penalties on marijuana use. Moreover, it reintroduces mandatory minimum penalties on the sale and 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. The ACLU recommends that the harsh approach embodied in H.R. 12743 be rejected.

Enforcement provisions

Only H.R. 13743 contains elaborate enforcement provisions. The ACLU considers that these increased law enforcement powers greatly undermine the constitutional restrictions against arbitrary government. The ACLU considers this willingness to bend the Constitution in the name of effective law enforce

ment as a serious threat to individual freedom. Among the provisions of H.R. 13743 which cause us concern are:

Section 703, authorizing “administrative inspection warrants," without a showing of probable cause to believe that seizable evidence is present in place to be searched.

Section 703, authorizing some of these "administrative inspections" to be conducted without any warrant at all.

Section 606a, authorizing the Attorney General to subpoena witnesses and documents without adequate regard for the requirement of the Fourth Amendment that warrants be specific.

Section 702(b), authorizing the controversial "no-knock warrants", permits police officers to break into homes simply where property sought "may be easily and quickly destroyed or disposed of." This authority violates the Fourth Amendment to the Constitution and cannot be defended.

Immunity

Section 707 attempts to circumvent the privilege against self-incrimination by a grant of immunity. This grant is incomplete, leaving the person compelled to testify still subject to some sanctions. Moreover, the use of immunity provisions in general undermines the privilege against self-incrimination., Narcotics addicts registry

The provisions in H.R. 12882 and H.R. 11701, establishing a registry of narcotics addicts "to facilitate research in drug addiction," contain inadequate protections against the misuse of information, especially names and other identifying characteristics placed in it.

Conclusion

Recognizing that drug abuse is a medical problem which will not be solved by law enforcement alone, we must be willing to commit both financial and human resources to research, education and treatment.

FULL STATEMENT

This Committee has before it a wide range of bills relating to the problem of drug abuse. Many of them deal with scientific, medical and financial aspects of the drug abuse problem which are outside the purview of the ACLU. Therefore, I plan to direct most of my comments to the question of penalties on marijuana use and on other drug offenses, and the enforcement provisions contained in H.R. 13743. The ACLU, which is a non-profit organization totally devoted to protection of the Bill of Rights, has considered the constitutionality of these aspects of the bills in some detail.

Before turning to these areas of direct concern to the ACLU, I would like to express my general agreement with the reasoning inherent in a number of these bills that the solution to the problem of drug abuse demands an emphasis on research, education, and treatment for the users of drugs. The bills have identified a number of troublesome areas, such as the need for counseling and treatment centers for teen-age drug users (H.R. 13460), the need to fund treatment, evaluate educational programs, train specialists and encourage research in drug abuse (H.R. 12882 and H.R. 11701), and the need to improve the federal contribution to the solution of these problems (H.R. 10342, 10408 and 14479).

The thrust of these bills reflects recognition of a factor essential to the control of drug abuse-and that is that the successful effort to deal with this problem will require an extensive commitment in money, research, education and medical help for users, over and above any law enforcement efforts to control the sources of drugs. Until very recently, drug laws have tended to overemphasize the illegality of drugs, at the expense of the need for treatment, counseling and care. The bills I have referred to seems to go a long way toward correcting that balance.

Marijuana

One of the most controversial subjects around which this debate between treatment and punishment has swirled is the question of the use and possession of marijuana. There can be no doubt that the outcome of the debate will have a far-ranging impact on a large segment of our population, as experts have estimated that over 12 million people in this country have used marijuana.

The American Civil Liberties Union has carefully examined the issues involved in sanctions against the use of marijuana and on December 14, 1968, the National Board of Directors of the ACLU adopted the following resolution on marijuana :

"The use of marijuana involves protected constitutional rights including the right to privacy. Intrusion by government on such a constitutionally protected act places a burden of justification on government. That burden has not been met with respect to federal and state laws which impose severe penalties on the use and possession of marijuana.

The showings of legitimate government interest, upon which present legislation rests, are neither clear nor conclusive, and the penalties themselves may be subject to constitutional objection as cruel and unusual punishment. Federal and state statutes applying criminal sanctions to the use and possession of marijuana are excessive and unconstitutional interventions into personal and private rights.

The Due Process Committee of ACLU is now examining the civil liberties and constitutional implications of more appropriate regulatory measures short of criminal penalties for the use and possession of marijuana especially by minors and the appropriate restrictions on the sale of marijuana. This statement of policy is based upon a number of factors, especially the belief that the government had not met its burden of demonstrating, through scientific evidence that the use of marijuana is intrinsically harmful, causes anti-social behavior or leads to use of stronger drugs. The President's Ad Hoc Panel on Drug Abuse (1962) and Dr. Goddard, Commissioner of the Food and Drug Administration, have both declared that marijuana is less harmful than alcohol.

General agreement exists among all researchers that marijuana users develop no physical dependence on the drug. Unlike more potent drugs, marijuana does not lead to a development of a tolerance which requires one to steadily increase the quantity taken to obtain the desired effects. The President's Commission itself has stated that marijuana has no special intrinsic quality which makes progression to heroin inevitable. Nor has any causal relationship been shown to exist between crime or sexual excess and marijuana.

Despite the absence of any injury to anyone but himself, the user, especially the student, is likely to have his future life career ruined if convicted under the marijuana laws. As a consequence of this punishment for seemingly harmless activity, a loss of respect for the law, in particular and in general, has occurred. Apart from the question of marijuana's harmfulness, numerous civil liberties issues are raised by the marijuana laws. In general, enforcement of the laws frequently involves infringement of various personal rights, especially the prohibition against unlawful search and seizure. Students and "hippies" are particularly plagued with this problem.

From the stand point of social and legislative policy, marijuana, being no more harmful than alcohol or tobacco, should be given equal treatment with them. While its sale and distribution may be regulated, its use should not be. The American Civil Liberties Union is therefore opposed to the continuation of any criminal penalties on the use and possession of marijuana. However, we do not recommend that you reject those bills under consideration here which distinguish between the use of marijuana and the sale of drugs and which differentiate the use of marijuana from the use of other drugs. We consider this recognition that marijuana is distinguishable from other drugs to be a major step in the right direction. Both H.R. 11071 and H.R. 12882, by transferring marijuana out of the narcotic drug category into the "depressant and stimulate" drug category under the Food, Drug and Cosmetic Act, take this important step. I do, however, urge you to reject the result of H.R. 13743 which leaves marijuana as a "narcotic" drug and makes no changes in the penalties on its use or possession. Despite the fact that the special treatment for marijuana represents real progress towards the eventual removal of all penalties on marijuana use and possession, we believe that additional steps should be taken and recommend inclusion in the bill which comes out of this Committee of a provision establishing and funding a definitive federal study of the effects of marijuana use. As Dr. Stanley Yolles, Director of the National Institute of Mental Health has suggested, the study should not take the form of another Commission, but rather should be a direction to a group of scientists, such as at NIMH to "conduct research and make a basic determination on marijuana." Cong. Rec. S-12892 (daily ed. Oct. 21, 1969). The bill would set a specified completion

date for the study and require legislative re-examination at that time of even the lower penalties contained in some of the present bills. This study would be consistent with the emphasis in most of the bills which, with the exception of the Administration's H.R. 13743, focus heavily on research, education, and treatment.

Penalties

My discussion of the penalties on marijuana leads me into another area of concern--the manner of regulation of other drugs and the penalties imposed on drug offenses.

A comparison of H.R. 12882, H.R. 11071, and H.R. 13743, reveals some interesting and significant differences. H.R. 12882 authorizes the Secretary of Health, Education and Welfare, in consultation with an Advisory Group and the Attorney General, to establish classes of narcotic and stimulant and depressant drugs requiring federal control. H.R. 13743 itself establishes the categories for federal control of stimulant and depressant drugs. However, the authority to add or subtract drugs from these categories is given to the Attorney General, with the advice of the Secretary of Health, Education and Welfare and a Scientific Advisory Committee. Consistent with our view that drug addiction is basically a a medical problem, we strongly recommend that the approach of H.R. 12882 be adopted.

H.R. 13743 makes no change in the existing pattern of regulation or punishment for narcotic drug offenses. And, equally as important, it drastically increases the penalties currently imposed on stimulant and depressant drugs under the Food, Drug, and Cosmetic Act. H.R. 13743 uses the same pattern of regulation and graduated penalties as is used in S. 3246, but the exclusion of narcotic drugs from H.R. 13743 results in stiffening of the overall penalties for stimulant and depressant drugs, without any liberalizing of the penalties on any kinds of drugs. The harshness of this bill is further apparent when you realize that, unlike almost all the bills considered in both the Senate and the House, it leaves marijuana in the "narcotic" drug category and makes no changes in the penalties imposed upon its use or sale.

In addition, H.R. 13743 reintroduces mandatory minimum penalties on both the sale and use of stimulant and depressant drugs. The current scheme of penalties has, under the Food, Drug, and Cosmetic Act (21 U.S.C. 333), no such minimums. Many experts have testified that mandatory minimum penalties are retrogressive steps in the criminal law process. The National Crime Commission warned against the dangers of mandatory minimum sentences in dealing with drug abuse. "Mandatory provisions," said the Commission, "deprive judges and correctional authorities of the availability to base their judgments on the seriousness of the violations and the particular characteristics and potential for rehabilitation of the offender."

Dr. Stanley Yolles, Director of National Institute of Mental Health, has also spoken out sharply against mandatory minimum sentences for individuals addicted to narcotics, users as well as addicts who "push" to support their habits. In the February 15, 1970, New York Times Magazine, Dr. Yolles said:

"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 It's totally contradictory to the whole concept of medicine. . . [and] destroys the prospects of rehabilitation." (p. 14)

Even Attorney General Mitchell in his testimony before the Subcommittee on Public Health and Welfare, February 3, 1970, in speaking of the Administration's bill, S. 3246, spoke in favor of graduated penalties according to the offenses, elimination of mandatory minimum sentences, and probation for first offenders. He said:

"The thrust of this approach is to allow the judge to tailor the penalty to fit the particular defendant before him, based on the presence or absence of mitigating factors that the court considers to be meaningful."

The views of these experts reinforce the emphasis on treatment and rehabilitation needed to deal with drug addicts. I recommend, therefore, that this Committee follow the approach of S. 3246, rather than the one adopted in H.R. 13743.

Enforcement provisions

Of the bills under consideration here, only H.R. 13743 contains elaborate enforcement provisions. The heavy reliance in this bill on augmented enforcement powers which are equally available for use against both sellers and users

of stimulant and depressant drugs, when coupled with the total absence in this bill of any real emphasis in research and education in drugs, is sharply inconsistent with the conclusion of most drug abuse experts, that effective handling of the drug abuse problem requires treatment and not punishment of drug offenders. Moreover, the increased law enforcement powers greatly undermine those restrictions on arbitrary government invasions of individual freedoms established by the Constitution.

Because the ACLU considers this willingness to bend the Constitution in the name of effective law enforcement as a serious threat to individual freedom in this country, I would like to speak at some length about these enforcement provisions.

I would like to begin with three provisions of H.R. 13743, §§ 702, 703 and 606, which I believe, gives administrative officials investigative powers far in excess of the limitations set by the Fourth Amendment prohibition aganst “unreasonable searches and seizures."

Administrative inspection warrants

I would first like to discuss § 703 which violates the Fourth Amendment by authorizing issuance of "administrative inspection warrants" without a showing of probate cause to believe that seizable evidence is present in the place to be searched. Section 703 permits a judge or magistrate to issue a warrant authorizing an administrative inspection of certain business premises and seizure of property found there.' The warrants, it is stated, require a showing of probable cause. However, "probable cause" is defined in a curious tautalogical fashion, as meaning "a Act of regulation sufficient to justify administrative inspection."

In selecting this standard, the drafters of this legislation appear to be relying on Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967) where the Supreme Court reversed a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant. The Court, after holding that a judicially issued order was required, held that it could be issued without a showing of probable cause to believe that a violation of the statute existed. In other words, a health inspector could get such an order just by showing a valid public need for effective enforcement of the health regulation. On the same day, the Supreme Court, in See v. City of Seattle, 387 U.S. 541 (1967), extended the Camara rule to commercial premises.

In permitting the issuance of warrants in the absence of probable cause to believe a violation existed, the Court in these cases carefully distinguished the municipal health inspection procedure from criminal investigations. It relied heavily on the need for area inspection, as opposed to the need to enter a particular dwelling. The Court said in Camara, "unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing citywide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. . . Because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." 387 U.S. at 535, 537. The Court had made the same distinction in Frank v. Maryland, 359 U.S. 360 (1959).

There can be no doubt that the focus of the administrative warrant here is the gathering of evidence that a crime has been committed. As such, the rationale of the Camara and See cases cannot be relied upon to justify the ephemeral definition of probable cause which has been written into this legislation. There is no need here to rely on area inspections. There is no risk that a health or safety violation in one house could jeopardize another. The focus is on a particular house. And most importantly, the purpose of the inspection relates entirely to the conduct of a criminal investigation. And as the Court said in Camara, ". . . in a criminal investigation, the police may seek to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city . . . Consequently, a search for these goods, even with a warrant,

1 The Senate-passed S. 3246 contains enforcement provisions almost identical to those contained in H.R. 13743. In the $703 (a) which appears in S. 3246, such searches are limited to "controlled premises." That phrase is defined in § 703(b). Section 703(b) of H.R. 13743, contains the same definition, but the limiting phrase has inexplicably disappeared from § 703 (a).

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