Marshall v. Parker

• Decision Date: 26 February 1973
• Docket Number: No. 72-1479.,72-1479.
• Citation: 470 F.2d 34
• Parties: Robert Edward MARSHALL, Plaintiff-Appellant, v. J. J. PARKER, Warden, United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.2d 34 (1972)

Robert Edward MARSHALL, Plaintiff-Appellant, v. J. J. PARKER, Warden, United States of America, Defendants-Appellees.

No. 72-1479.

United States Court of Appeals, Ninth Circuit.

November 15, 1972.

As Amended December 13, 1972.

Certiorari Granted February 26, 1973.

Frank R. Ubhaus, Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for plaintiff-appellant.

Fredric F. Tilton, Asst. U. S. Atty. (argued), Chester G. Moore, Asst. U. S. Atty, James L. Browning, U. S. Atty., San Francisco, Cal., for defendants-appellees.

Before BARNES and TRASK, Circuit Judges, and BATTIN, District Judge.^*

Certiorari Granted February 26, 1973. See 93 S.Ct. 1429.

TRASK, Circuit Judge:

On February 4, 1971, Robert Marshall, appellant, was sentenced to ten years imprisonment following his plea of guilty of the offense of entering a bank with the intent to commit a felony in violation of 18 U.S.C. § 2113(a). There was a recommendation that he receive treatment for his narcotic addiction. On October 15, 1971, he filed a petition in propria persona pursuant to 28 U.S.C. § 2255 to vacate that sentence as illegal.¹ Following appointment of counsel and oral argument on the petition it was denied on February 3, 1972, and this appeal is from the order of denial.

It was the contention of appellant in his section 2255 petition that the sentencing court erroneously denied him consideration for treatment as a narcotic addict under Title II of the Narcotic Addict Rehabilitation Act of 1966 (NARA), 18 U.S.C. §§ 4251-4255.² The order of the trial court denying the petition apparently relied on 18 U.S.C. § 4251(f)(4) which excludes from the coverage of the Act, ". . . an offender who has been convicted of a felony on two or more prior occasions." The court noted in its order that appellant had a record of prior convictions for burglary, forgery, and possession of a firearm.

Before the trial court and here, appellant relies upon decisions of the Court of Appeals of the District of Columbia which hold that the two prior felony exclusion of Section 4251(f)(4) is unconstitutional under the equal protection concept embodied in the Due Process Clause of the Fifth Amendment. Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442, 457 (1970), and the cases which have followed it,³ United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970); and Chicquelo v. United States, 146 U.S.App.D.C. 381, 452 F.2d 1310 (1971). Because the two prior felony convictions in Watson were for violations of narcotics laws there was some conjecture that the rationale of that case was limited to like facts. It now appears that such is not the case, United States v. Hamilton, 149 U.S.App. D.C. 295, 462 F.2d 1190 (D.C.Cir. 1972), and that any two prior felony convictions are within the intendment of the Watson rule of unconstitutional exclusion.⁴

We do not agree that Congress in enacting Title II of the NARA may not constitutionally limit the persons eligible to receive its benefits as it has seen fit to do.

Let us first consider the Act itself. Title I,⁵ 28 U.S.C. §§ 2901-2906, provides for civil commitment and rehabilitation of narcotic addicts charged with an offense but prior to prosecution. Under it if the district court believes that an eligible person is an addict, the court may advise him that the prosecution of the criminal charge will be held in abeyance if he elects to submit to an immediate examination to determine whether he is an addict and is likely to be rehabilitated through treatment. If the election is made and he is found qualified, he will be civilly committed to the Surgeon General for treatment. If the treatment is successful over a period of three years the criminal charge will be dismissed, but if not, prosecution will be resumed. Provision is also made for supervisory aftercare.

Title II, 18 U.S.C. §§ 4251-4255, with which we are here concerned, encompasses treatment of an individual who has been convicted of an offense against the United States. If the court believes that an eligible offender⁶ under that title is an addict, the court may place him in the custody of the Attorney General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment. If so, he may be committed to the Attorney General for treatment for an indeterminate sentence not to exceed ten years, or the maximum sentence that could otherwise be imposed.

Title III, 42 U.S.C. §§ 3411-3426, provides for civil commitment of persons not charged with any criminal offense. This procedure is initiated by an addict who desires treatment, or by a related individual. A petition may be filed in the United States District Court to commit such person to the Surgeon General for treatment in a hospital of the Public Health Service. Again, it must be determined that he is a narcotic addict "who is likely to be rehabilitated through treatment."

In Title III of the Act, 42 U.S.C. §§ 3411-3426, we find no exclusion based upon prior conviction. 42 U.S.C. § 3412 provides: "(a) Except as otherwise provided in section 3421 of this title, whenever any narcotic addict desires to obtain treatment for his addiction . . ." a petition may be filed. (Emphasis supplied).

42 U.S.C. § 3421 then states: "The provisions of this subchapter shall not be applicable with respect to any person against whom there is pending a criminal charge, whether by indictment or by information, which has not been fully determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole or mandatory release, has not been fully served, except that such provision shall be applicable to any such person on probation, parole, or mandatory release if the authority authorized to require his return to custody consents to his commitment."

It appears from these statutory sections that a narcotic addict with two or more prior felony convictions would not be excluded from treatment of his addiction under Title III of the NARA, unless there was a criminal charge pending against him at the time he petitioned. This is evidence that Congress did not intend to totally exclude persons within the class of twice-prior-convicted felons from rehabilitation treatment, but rather, in light of the overall purpose of rehabilitation, Congress wanted to assure that the program was entered into with a sincere, good-faith desire for treatment and not with a motive merely to escape criminal punishment.

Thus, in each of the three titles, i.e., Title I applying to addicts charged with a criminal offense, Title II applying to those convicted, but not yet sentenced and, Title III applying to those not charged with a criminal offense, the reach of the Act is to those who are not only addicts but also are "likely to be rehabilitated through treatment." This is consistent with the declared policy of Congress in enacting this legislation that:

"It is the policy of the Congress that certain persons charged with or convicted of violating Federal criminal laws, who are determined to be addicted to narcotic drugs, and likely to be rehabilitated through treatment, should, . . . be civilly committed for confinement and treatment designed to effect their restoration to health, and return to society as useful members.

"It is the further policy of the Congress that certain persons addicted to narcotic drugs who are not charged with the commission of any offense should be afforded the opportunity, through civil commitment, for treatment, in order that they may be rehabilitated and returned to society as useful members and in order that society may be protected more effectively from crime and delinquency which result from narcotic addiction." 42 U. S.C. § 3401; 1966 U.S.Code Cong. & Adm.News at 1670. (Emphasis supplied).

The Act treats each of these three categories a little differently as to length of treatment and procedures for obtaining it, but in each it applies to those addicts likely to be rehabilitated. Congress could, it is submitted, have broadened the scope of the Act to addicts "who by any possibility" might be rehabilitated through treatment, and pursuant to that policy have eliminated all or almost all exclusions to eligibility. It did not see fit to do so although the legislative history indicates that it had the technical advice and resources of the Attorney General of the United States, the Surgeon General of the Public Health Service, the Director of the Bureau of Prisons of the Department of Justice, and the enforcement officials of the Secretary of the Treasury, in drafting the legislation. It may be fairly presumed, therefore, that the classifications as to eligibility were both considered and felt to be logically suited to the purposes which Congress sought to obtain by the enactment.

Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), tells us that:

"To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interest asserted in support of the classification." 405 U.S. at 335, 92 S.Ct. at 999.

It is clear that standards used for the purpose of evaluating classifications and justifications for them vary in accordance with the interests affected. 405 U.S. at 335, n. 6, 92 S.Ct. at 999. In Dunn v. Blumstein, supra, where the fundamental right to vote was granted to some citizens and denied to others, the Court was required to determine whether the exclusions were necessary to promote a "compelling" state interest. 405 U.S. at 337, 92 S.Ct. at 1000. See also, Shapiro v. Thompson, 394 U.S. 618, 629, 631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Similar concern becomes necessary where distinctions are based upon wealth or race. McDonald v. Board of Education, 394 U.S. 802, 89 S.Ct. 1404, 22...