United States v. Bishop, 72-1148.

• Decision Date: 22 November 1972
• Docket Number: No. 72-1148.,72-1148.
• Citation: 469 F.2d 1337
• Parties: UNITED STATES of America, Appellee, v. Robert BISHOP, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 1337 (1972)

UNITED STATES of America, Appellee, v. Robert BISHOP, Defendant-Appellant.

No. 72-1148.

United States Court of Appeals, First Circuit.

Argued September 6, 1972.

Decided November 22, 1972.

COPYRIGHT MATERIAL OMITTED

Charles P. Dattola, Boston, Mass., with whom Henry F. Owens, III, and Owens & Dilday, Boston, Mass., were on brief, for appellant.

Frederic R. Kellogg, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

COFFIN, Chief Judge.

Appellant, Robert Bishop, was convicted on two counts of sale of heroin, under 21 U.S.C. § 841(a) (1), and sentenced to five years imprisonment and a special parole term of three years. On this appeal, he raises three claims: (1) that the provision of the Narcotic Addict Rehabilitation Act of 1966, barring all offenders with two prior felony convictions from being considered for treatment commitment in lieu of imprisonment, is a denial of the equal protection element of the Fifth Amendment; (2) that his conviction cannot stand because his heroin addiction so substantially impaired his behavioral controls that he lacked the criminal capacity required by the common law concept of mens rea; and (3) that the cruel and unusual punishment clause of the Eighth Amendment similarly precludes conviction of an addict whose control is substantially impaired.

In 1966, Congress enacted the Narcotic Addict Rehabilitation Act, P.L. 89-793, 80 Stat. 1438 hereinafter NARA, a major revision of the federal court procedures for dealing with drug-addicted individuals. Title I of the Act, now 28 U.S.C. §§ 2901-06, provides for civil treatment commitment before trial of persons charged with federal crimes, and dismissal of the charges upon successful completion of the treatment. Title II, now 18 U.S.C. §§ 4251-55, provides for similar commitment in lieu of imprisonment for those convicted of a federal crime. Title III, now 42 U.S.C. §§ 3411-26, provides for civil commitment of persons not involved in the criminal process. In each case, after following the prescribed procedures, including commitment for an examination, the court must determine whether the individual is an addict, as defined in the statute, 28 U.S.C. § 2901(a), 18 U.S.C. § 4251(a), 42 U.S.C. § 3411(a), and whether he "is likely to be rehabilitated through treatment", 28 U.S.C. § 2902(b), 18 U.S.C. § 4253(a), 42 U.S.C. § 3415. If it so finds, the court must commit the individual.

The first two titles contain, however, five parallel provisions, 28 U.S.C. §§ 2901(g)(1)-(5), 18 U.S.C. §§ 4251(f) (1)-(5), which exclude from eligibility for treatment consideration the following classes of addict-offenders:

(1) persons currently accused or convicted under federal law of a crime of violence, as defined in earlier subsections, 28 U.S.C. § 2901(c), 18 U.S.C. § 4251(b),

(2) persons currently accused or convicted under federal law of selling or importing or conspiring to sell or import a narcotic drug, except that Title II carves out of that class and makes eligible for commitment those that the court finds sold "for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug." 18 U.S.C. § 4251(f) (2),

(3) persons against whom a felony charge (other than the one under which they are being processed) is outstanding or who have not completed a prior sentence, or period of probation or parole,

(4) persons "convicted of a felony on two or more prior occasions", 28 U.S.C. § 2901(g) (4), 18 U.S.C. § 4251(f) (4) (the provision under challenge here), and

(5) persons civilly committed three times previously under any state or any specified federal program.

The term "felony" used in the third and fourth exclusions is defined as any offense classified as a felony by 18 U.S.C. § 1 or by the law of the jurisdiction in which the crime was committed at the time of its commission, 28 U.S.C. § 2901(e), 18 U.S.C. § 4251(d). Title III, which is designed for those not involved in the criminal process, contains only the third exclusion, worded to cover any criminal charge, 42 U.S.C. § 3421.

Congress' general purpose in passing the statute was, as the House Report put it, "to provide for the treatment and rehabilitation of narcotic addicts when they are charged with or convicted of offenses against the United States."¹ To effectuate this broad goal, Congress expanded the disposition alternatives available to federal courts in criminal cases and gave the courts the discretion in employing the new procedures necessary for application of the law to those Congress intended to benefit.² As the House Committee noted:

"The practical effect of the implementation of the law provided for in the bill, is that strict punishment can be meted out where required to the hardened criminal, while justice can be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed."³

To assist courts in making the distinction between hardened addict-criminals deserving punishment and other addict-criminals deserving consideration for treatment, Congress enacted the five exclusions noted above.

"The definition of `eligible individual\' as set forth in the bill insures that the persons considered as candidates for civil commitment will not include criminals charged with violent crimes or be those whose records disclose a history of serious crimes."⁴

The two-prior-felony disqualification was viewed as the mechanism for insuring punishment for those with a "history of serious crimes".⁵

Congress intended that, except for those in the excluded categories, all federal offenders should be eligible for treatment commitment and for the court determinations of addiction and likelihood of rehabilitation that were made the sole prerequisites to commitment.⁶ In light of the repeated and consistent testimony of all witnesses at the hearings, from the Attorney General on down, that narcotics addiction almost inevitably compels its victims to turn to crime and is a factor in practically all crimes that addicts commit,⁷ it was thought inappropriate also to require as a condition of commitment that the court find a connection between the particular crime for which the defendant is being processed and his addiction, although such a requirement was specifically requested by the Judicial Conference.⁸

"This close connection between crime and addiction is one of the basic reasons for this legislation. To require a court to establish such an explicit relationship would introduce a technicality which might serve to defeat one of the basic purposes of the bill which is to provide a practical and expeditious procedure to break a pattern of addiction and criminality."⁹

The only other specific guidepost erected by Congress was the maximum ten-year commitment period for post-conviction commitments, designed as a safeguard against judicial errors in determining the treatability of certain offenders.

"It also should be recognized that it provides a lengthy period of sentence for those recalcitrant offenders who do not respond to treatment."¹⁰

Congress could thus be said to have created three broad categories: hardened criminals not worthy of consideration by a court for treatment; hardened addicts who the court finds are not likely to, or actually do not, respond to treatment; and treatable addicts.

Appellant, who moved at the opening of his trial to be declared eligible for treatment under 18 U.S.C. § 4251, argues that the flat exclusion of all addicts convicted twice previously of a felony is arbitrary and in no way related to the purpose of distinguishing hardened addict-criminals who are dangerous to society and deserve punishment from addict-criminals in need of treatment. He relies heavily on Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), in which the District of Columbia Circuit, sitting en banc, held the two-prior felony disqualification here at issue unconstitutional because it found that the anomaly of permitting a one-time trafficking addict to get treatment while denying the opportunity to a three-time possessor of heroin for his own use was totally at odds with the Congressional purpose of distinguishing the hardened criminal from the addict deserving of treatment. The court also noted that it would rule the same way had Watson been convicted for the third time of selling heroin. Id. at 457.

The government claims that Watson is inapplicable here. It argues that the court in Watson was concerned about the situation where addicts made eligible for treatment by the proviso to § 4251(f) (2) for sales made primarily to obtain drugs for one's own addiction were disqualified under § 4251(f) (4) solely because they repeated that crime three times. That problem is said to be absent here because Bishop's prior felony convictions, in 1963 and 1964, were for non-narcotic offenses, specifically conspiracy to transport forged checks and conspiracy to transport implements used in forging and counterfeiting in interstate commerce, and thus as applied here the two-felony provision does not exclude a class of offenders specifically made eligible by Congress. Moreover, although admitting that Congress may have drawn the line at a somewhat arbitrary point, the government argues that the statutory distinction is reasonably related to the purpose of keeping the more criminally inclined out of NARA centers.¹¹

We find, however, when reading § 4251(f) (4) in conjunction with other parts of the Act, a whole series of anomalies, in the root sense of inequalities, indicating that the disqualification lacks "relevance to the purpose for which the classification is made". Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Baxstrom v. Herold, 383 U.S. 107, 111, 86...