II THE CONSUMPTION-INTERVENTION DECISION

In determining conditions of availability for a psychoactive substance, policy makers should err in the direction of too much restriction rather than too little. Philosophical and constitutional concerns for individual privacy and freedom of action are touched only indirectly by society's legitimate efforts to resist the adverse consequences of drug availability. Therefore, a presumption exists in favor of restriction, and decisions limiting availability may be defended on speculative grounds. "What would happen if there were widespread availability?" is a perfectly valid inquiry.
Too often, however, policy makers have taken the same perspective and employed a similar line of reasoning in connection with an entirely distinct policy decision : whether and under what circumstances society should intervene in the life of the individual who has chosen to consume a substance outside the legal channels of availability. Here, for philosophical, constitutional, and practical reasons, the presumption in favor of control is reversed : the policy-making perspective must emphasize personal freedom rather than the protection of society. In a free society, the state is obliged to justify restraints on individual liberty, and this justification must rest on facts, not on speculation.
At the present time, any person who chooses to consume a psychoactive substance outside legally prescribed channels is subject to prosecution and incarceration. In the Commission's view the burden rests on those who would continue this policy.
Today, the role of the criminal law regarding private drug-taking behavior is being challenged in the courts, in the legislative chambers and in the legal community-at-large. Consequently, the Commission has paid special attention to this sensitive issue. After reviewing the evolution of the present system, we will carefully scrutinize the various justifications for intervention and summarize our conclusions.

AN OVERVIEW OF THE POSSESSION OFFENSE

From Colonial times until the Civil War, the only drugs used to any noticeable extent in this society for non-medical purposes were alcohol and tobacco. While there were periodic local attempts to prohibit the availability of alcohol, legislatures refrained from extending a criminal sanction to the user of the prohibited substances. Prevailing constitutional doctrine held that the police powers of the states were inherently limited to protection of the public health, safety and morals, and could not extend to the mere private possession and consumption. On the other hand, almost every state, regardless of the legal status of alcohol, routinely asserted control over "inebriates" who offended the public peace and "habitual drunkards" who posed a danger to themselves or others. The purpose of this intervention does not appear to have been to treat the transgressor, but merely to restrain him.
Nineteenth century anti-narcotics laws generally did not restrict or prohibit consumption-related activities either. Between the Civil War and 1912, most states responded to increasing professional and public concern over the habit-forming properties of the opiates and cocaine by prohibiting their distribution to persons not holding a doctor's prescription. Of the 33 states prohibiting non-medical distribution of the opiates, only one (Louisiana) prohibited possession. Of the 45 states prohibiting non-medical distribution of cocaine, only five (Louisiana, Pennsylvania, South Carolina, Virginia and West Virginia) prohibited possession.
This statutory pattern reflected prevailing constitutional doctrine, and the only departure was the clearly discriminatory legislation relating to opium-smoking. Chinese immigration during the 1870's and 1880's precipitated a spate of state laws (18) against maintaining or frequenting opium dens. Four states, all in the West, also prohibited possession of smoking opium and opium pipes.
The second decade of the 20th Century marked the commencement of the "deterrence" phase of consumption policy. The public became concerned about the narcotics problem and pressure mounted in favor of federal legislation. Congress responded by passing the Harrison Act. Simultaneously, public support for alcohol prohibition increased dramatically and legislative efforts to make their states "bone-dry" by prohibiting consumption of alcohol as well as its sale met little judicial resistance after 1915. Despite the erosion of constitutional restraints, however, only five states 11 chose, as a matter of policy, to prohibit the private possession of alcohol for personal use, even during the period of national prohibition.
The Harrison Act. of 1914, and subsequent anti-narcotics legislation which blanketed the states thereafter, incorporated a different policy choice for other drugs. With few exceptions, they now extended the criminal sanction to the user of prohibited substances, reflecting the general impression that "narcotic" use inevitably resulted in dependence while alcohol could be used in moderation, and that use of narcotics was inseparable from an otherwise criminal life style while alcohol was not. Beneath all this activity was a consensus that use of narcotics for non-medical purposes was a vice and that its adherents should be punished. Such a consensus did not exist with respect to alcohol, the 18th Amendment notwithstanding. When the use of these drugs declined during subsequent decades, the consensus policy seemed validated, although no one could state with certainty what part the criminal sanction against possession had played in the decline in use.
Restricting availability and outlawing possession outside medical channels became the generally accepted public policy toward "habit forming" drugs, which soon came to include marihuana, peyote, and chloral hydrate 1" as well as opiates and cocaine. This policy was crystallized in the Uniform Narcotic Drug Act adopted by the National Conference of Commissioners on Uniform State Laws in 1932 and enacted by most states during the next decade. State legislatures also exercised considerable imagination in elaborating on the possession offense in an effort to give law enforcement officials new tools to root out users. All consumption-related activity, such as presence in a place where narcotics were being used, possession of hypodermic syringes, even the status of addiction itself, was punishable. In fact, under the "narcotics vagrancy" laws and similar statutory catchalls, policemen could arrest someone who appeared to them likely to use narcotics.
The sudden rise in heroin use, particularly in New York City, during the late 1940's and early 1950's precipitated a legislative response which carried prevailing assumptions to their logical extremes. In 1951, and again in 1956, Congress substantially stiffened the penalties for traffic in and possession of the prohibited drugs, assuming that the deterrent value of the law would naturally increase proportionately with the severity of the penalties. In time, most states followed suit. By 1960, possession was a felony under federal and state law, punishable under the former by a minimum sentence of two years for the first offense, five years for the second, and 10 years for the third and subsequent offenses. In addition, parole or probation were often unavailable after the first offense.13
Despite Draconian penalties, the use of illicit drugs, particularly marihuana, increased dramatically during the 1960's. For the first time, policy makers became aware that enforcement of these stringent possession laws enacted a social cost which exceeded the cost of the drug use itself. In a quick reversal of what seemed entrenched public policy, the penalties for possession of prohibited substances were substantially decreased. The Comprehensive Drug Abuse Prevention and Control Act of 1970 reduced the federal possession offense to a misdemeanor, and, in a commentary to the new Uniform Controlled Substances Act, the National Conference of Commissioners on Uniform State Laws expressly recommended that state legislatures make the same change.14 At the present time, possession for personal use is regarded as a misdemeanor for marihuana in 44 states, for depressants in 26 states, for stimulants in 23 states, for hallucinogens in 20 states, and for the "narcotics" (opiates and cocaine) in 13 states?'

A related development has been a statutory leniency toward first offenders extended through provisions which minimize the implications of an involvement with the criminal justice system. Thirty-two states now permit conditional discharge of first-time possession offenders 16 before a formal adjudication of guilt ; if the conditions of release are met, the case is dismissed and the defendant discharged absolutely. In most states, discharge is left to the discretion of the sentencing judge, although in Massachusetts and West Virginia discharge is mandatory.
The trend toward non-punitive dispositions of possession cases also is evident in the increasing use of the criminal justice system to refer drug users, particularly drug-dependent persons, to treatment services. Provision for treatment of opiate-dependent persons had been on the statute books for many years, but only during the last decade have legislatures actually funded programs and facilities and established procedures for channeling offenders from the criminal justice system into treatment.
These policy changes indicate an erosion of the consensus which so long supported punishment of all who consumed prohibited substances. Public opposition to drug use no longer carries the strong moral overtones characteristic in the early years of this century. With the loss of moral certainty, the entire rationale for our drug policy has come into question.
In the search for a new basis for policy, the issue most debated is the appropriate role of the criminal justice system. In the remainder of this section, we will consider three overlapping rationales for coercive intervention in an individual's life : the deterrence and punishment of deviance; the treatment of sickness; and the prevention of harm to the society. This analysis will explore whether, and for what reason, the assertion of formal control over a user of prohibited substances is justified, and when the criminal justice system is the proper means of asserting such control.

DEVIANCE, DETERRENCE, AND SYMBOLISM

The criminal law follows a relatively simple model of human behavior. Individuals are free to choose their behavior, but society has certain norms it expects all to respect. In large part, both the expression of these norms and the process of accountability are informal, carried on chiefly through non-legal institutions of social control. Some behavioral norms appear so central to the preservation and well-being of the society, however, that they require stronger expression. The instrument of such emphasis in our culture is the criminal law.
When our society first perceived drug users as a significant threat to public order and morality, it prohibited all consumption-related activity by criminal law, thereby abandoning deeply-rooted constitutional precepts. Use of prohibited substances was deemed an exercise of free will : formal accountability and punishment were not only proper, but would reaffirm and codify society's strong opposition to use and deter individuals from choosing to consume. In recent years, reliance on this rationale has been challenged on grounds that abstinence is not the kind of norm the criminal law ehould enforce—a philosophical and constitutional objection—nor the kind of norm it could enforce—a practical objection. Many observers argue further that drug-dependent persons do not exercise free choice over their conduct and, therefore, the application of criminal punishment for such behavior is inappropriate.
In the following pages we will examine closely the philosophical, constitutional and practical objections to the drug possession laws. The fourth objection will be discussed together with the therapeutic justification for coercive intervention.

Philosophical Conflict
The philosophical issue has been phrased in several different ways, but the essential question is whether formal intervention, by criminal or civil law, is appropriate when the adverse consequences of the individual's behavior pertain directly to his own health or morality, and only indirectly, if at all, to the society-at-large. As we noted in our first Report on marihuana, the Commission does not take the absolutist position that the society is philosophically forbidden from asserting formal control over persons whose behavior harms themselves. We do believe, however, that the policy maker must accord appropriate weight to the nation's preference for individual liberty, and should only assert control where the potential danger is compelling and demonstrable, rather than remote and speculative. The policy maker ,may properly be skeptical of relaxing availability controls over -,psychoactive substances; a discouragement policy at that level, and the foreclosure of speculative harm, offend no fundamental philosophical precepts. Neither does discouragement of use itself. However, when policy asserts direct restraints on the individual, skepticism must be directed toward the rationale for control, rather than away from it.

Constitutionality
The preference for individual liberty reflected in the debate over philosophical limitations on formal control is also manifested in our constitutional jurisprudence. As we noted earlier, 19th Century constitutional dootrine held that the prohibition of possession of noxious substances was beyond the "police powers" of the states. Although this concept of inherent limitations withered away in the face of 20th Century drug policy, recent decisions defining the right of privacy embodied in the First, Fourth and Fifth Amendments have raised similar questions about governmental authority, albeit in a different form, and have triggered renewed attacks on the constitutionality of drug possession offenses. The present argument is not that the state lacks such power, but that it must show a compelling reason to justify the invasion of privacy required to prevent the personal use of prohibited substances.
In its recent decision restricting governmental power to prohibit abortions, the Supreme Court first concluded that the decision whether or not to bear a child is within the constitutionally protected zone of privacy :
The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... or in the Ninth Amendment's reservation of rights to a free people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Roe v. Wade, 410 U.S.    (Jan. 22, 1973).
The Court then noted that state regulation limiting the right of privacy "may be justified only by a `compelling state interest'" and that "legislative enactments must be narrowly drawn to express only the legitimate state interests at stake."
In the Commission's view, a strong argument can be made on the basis of current doctrine that the decision whether or not to consume a drug in one's own home falls within the constitutionally protected zone of privacy. Consequently, the burden is on the state to demonstrate a compelling reason to intrude the criminal law into the area of drug consumption. We stated in the marihuana Report that "We find little in marihuana's effects or its social impact to support such a determination. Legislatures enacting prohibition did not find such a compelling reason 40 years ago ; and we do not find the situation any more compelling for marihuana today." So far, the courts have confronted this fundamental issue only in cases involving marihuana, and several recent opinions have confirmed our judgment that the possession penalty for marihuana is constitutionally suspect 17 We do believe that a stronger case can be made for the constitutionality of possession penalties for most other potent psychoactive drugs, including alcohol, because of their higher capacities for inducing dependence and affecting behavior. Even with these substances policy makers and legislatures, in deference to the high place traditionally occupied by the value of privacy in our constitutional scheme, should pay close attention to the details of any system of formal control which they impose on drug users.
Apart from the constitutional issue raised in connection with the right of privacy, present policy may also be challenged on the ground that its distinction between alcohol and other psychoactive substances contravenes the equal protection clause of the 14th Amendment. Distribution and consumption of alcohol is legally sanctioned despite the fact that its capacity for inducing dependence and affecting behavior is high ; yet, distribution of the other substances is severely restricted and their consumption criminalized.
Courts have repeatedly held that legislatures do not have to deal with similar problems in the same way or at the same time. With respect to availability of different drugs, there are a number of reasons apart from their relative risk potential to treat them separately. At the same time, it is at least questionable whether the state may treat users themselves in such divergent ways, particularly when it is a question of coercive intervention into their private lives. For example, distribution of alcohol to a minor, distribution of barbiturates to a person without a prescription and distribution of marihuana or heroin to anyone are all prohibited acts. Yet, any user of marihuana or heroin is subject to prosecution, while the person who gets barbiturates without a prescription from a friend or family member commits only a "technical violation" and is not prosecuted. The under-age user of alcohol, under most state laws, commits no criminal act at al1.18 Where the state directly and coercively restrains personal freedom, as it does with the drug possession laws, it should be required to give compelling reasons for distinctions like these.

Functional Overview
Apart from the philosophical and constitutional objections to possession penalties, serious questions have been raised regarding the functional utility of these laws. The primary goals of prudent policy in the drug area are to prevent irresponsible use of psychoactive drugs (as we defined it earlier), to deal with the consequences of such use, and to deemphasize use in general. In this connection, it is crucial for social policy to distinguish among the various patterns of drug-using behavior.
Yet, the law is simply too blunt an instrument for this kind of detail. For example, society's standard for asserting control over the class of persons who use drugs is oriented entirely toward the drug which they are using. If the drug is alcohol, users are subject to formal control only for defined public behavior ; if it is any other drug, they are subject to control irrespective of the nature of their drug-using behavior. This approach misses the mark of social concern, and results in imposing control on many persons who have posed little risk to self or society and who have not exhibited behavior of the kind which normally warrants application of the criminal law. Moreover, the criminal sanction may frustrate the primary objectives of drug policy by deterring users who are experiencing medical problems from seeking assistance, inhibiting rational and compassionate prevention efforts, and reinforcing perceptions of official unfairness and inconsistency among the various drug using populations. It seems fair to conclude that the possession penalty is more burden than benefit in dealing with those who are already using drugs despite legal prohibitions.
The functional argument for keeping the penalty, however, is not that it corrects the user, but that it prevents persons from using in the first place. In theory, the possession offenses serves the preventive goal in three basic ways : first, by deterring people from using the drugs ; second, by facilitating the enforcement of availability controls, and finally, by symbolizing society's disapproval of use. We shall discuss each of these presumed benefits in detail.

Deterrence
In considering the notion of deterrence, the Commission has tried to avoid the oversimplification to which our first Report referred. We note first of all that the criminal law is relatively ineffective as a means of control when compared with other social institutions. Nonlegal institutions, such as the church, the school, the peer group and the family have a significantly greater impact on individual behavior. In many respects the law functions best as a deterrent when it is least necessary; that is, when it merely formalizes standards of behavior affirmed and reinforced by society's other institutions.
Unfortunately, many persons opposed to drug use look primarily to the law for control, in the belief that the non-legal institutions have been too lax and too ineffective in controlling drug-using behavior. Further, the other institutions seem to rely on the criminal law to prevent use, which gives credence to fears that their influence has greatly diminished. Yet, without the support of those institutions, the law functions as a poor deterrent, dependent entirely on how credible the enforcement agencies can make the threat of punishment. With general institutional support, the law is reinforced by a shared normative order but even then, its efficacy in controlling behavior depends on a wide range of other factors.
Perhaps the most important of these factors is the nature of the behavior itself. Social science research has shown that the threat of legal sanction is much more influential in restraining "instrumental" conduct ; that is, activity viewed as a means to some other end, than it is in preventing conduct which the actor sees as an expression of his own individuality. The resistance of "expressive" behavior to considerations of apprehension and sanction is particularly strong when the individual does not think the conduct is immoral. We should expect the criminal law to have relatively little deterrent effect on drug consumption, an expressive behavior to which society in general, and users in particular, regard less and less in purely moral terms.
If drug users as a group are relatively undeterred by the threat of criminal sanction, some drug-using behavior and some potential or actual drug users are less susceptible to deterrence than others. All criminal laws deter some people and the threat of incarceration is always a factor in decisions to initiate, continue or extinguish prohibited drug-using behavior. This factor, however, is assigned different weight by different populations. For example, the threat of incarceration may be less important to a youth deciding whether to experiment with a prohibited substance than it is to an adult making the same choice. Adolescents tend to engage in some rebellious activity as an assertion of autonomy; adults are more likely to abide by established norms. To some extent, the law which deters the latter may actually encourage the former.
Legal considerations are likely to have their greatest impact in affecting a decision to proceed from experimental to repeated use rather than in the decision to try the drug initially. In this regard, the law may well play a role in containing the ratio of regular users to ever-users which we described in Chapter Two. On the other hand, the law probably has little influence on the pattern of repetitive use, once begun, particularly for those persons who have become drug dependent.
Finally, the deterrent value of the criminal law is also affected by the related factors of visibility of the behavior to others and the likelihood of enforcement. Most drug consumption occurs in private. Usually, there is no complaining witness to bring the offense to the attention of the police. Therefore, the likelihood of detection and apprehension for drug consumption compares with that for consensual sex offenses such as fornication, homosexuality and adultery. The law is relatively effective in deterring the public consumption of prohibited drugs, but significantly less effective in deterring their use in private because of this low probability of detection.

Social Costs of Enforcement
To have any deterrent effect at all, of course, the possession laws must be enforced and enforcement bears certain social costs. Yet, many defenders of the possession penalty have made the facile assumption that perpetuation of the current penalty structure is justified by whatever deterrent value it has. In the Commission's view, one need not assert that the law is no deterrent at all to argue that at some point its modest effectiveness as a mechanism of control is outweighed by the social costs of its enforcement.
Some of the most disturbing of these costs arise directly from the private and expressive nature of the drug-using behavior. Because of these qualities, anything approaching full enforcement of the laws is impossible. Inevitably, unless the law is not enforced at all, it will be enforced with an unequal hand. At best, discrimination in enforcement will be well-regulated and shaped by intelligent policy decisions regarding allocation of enforcement resources and the coiditions upon which an arrest should be processed through the system. At worst, the discrimination will be invidious, shaped only by happenstance and the personal prejudices of the enforcement agents.
Data gathered by the Commission on the enforcement of the drug laws during the last half of 1971 in six major metropolitan jurisdictions reveal that the demographic characteristics of those arrested for consumption-related offenses diverged in some important respects from the characteristics of the user population as a whole, judging from the surveys discussed in Chapter Two (Johnson and Bogomolny, 1973). Whether by design or by accident, attributes of the user extraneous to his drug use seem important in determining whether he is apprehended. The kind of car he drives, his dress, the place where he lives or frequents, and his acquaintances all appear to be related to the probability of apprehension.
Another set of discretionary decisions occurs after apprehension, and they too seem to vary according to personal characteristics. Possession cases, if based on a lawful search and seizure, are not particularly difficult to prosecute. Consequently, decisions by the police in choosing whether or not to arrest, by the prosecutor in determining whether or not to prosecute, and by the court in determining whether or not to convict, are often made on the basis of extra-legal considerations which theoretically should not enter into criminal justice decision making until the sentencing stage.
Paradoxically, there seems to be pressure for more selectivity in application of the criminal sanction to the drug user rather than less. Normally, the operating presumption in administering criminal justice is that a guilty person has committed an immoral as well as an illegal act and ought to be punished for it. Discretion is permitted in criminal justice processing in order to deal with uncommon exceptions to this rule. In drug possession cases, however, the operating presumption may have become precisely the reverse. The public attitude toward certain forms of drug use now includes a desire to assist. Consequently, criminal justice processing may now serve the function of identifying, among the 500,000 19 people arrested for such violations annually, those who deserve compassion or indulgence instead of punishment.
This institutional distortion, however well-intentioned, has an inescapable appearance of unfairness and capriciousness and results in part because the typical violators of the possession laws no longer fit the criminal typology. The Commission's empirical study of drug law enforcement 2° indicates that, a majority of those arrested for consumption-related offenses are between the ages of 17 and 26, are employed or are in school and have had no significant previous contact with the criminal justice system. The public-at-large, as well as people working within the criminal justice system, now generally acknowledge the high social cost of stigmatizing such persons as criminals. To avoid that cost, many police and prosecutors have devised informal procedures which dispose of cases without prosecution or conviction. Our study shows that, at some point between apprehension and conviction, 52% of the entire sample of closed cases (not only the consumption-related arrestees), and two-thirds of all the closed juvenile cases dropped out of the system, either by dismissal and by diversion to some non-legal institution. By contrast, only 14% of those arrested for any drug offense were incarcerated (Johnson and Bogomolny, 1973).21
Police procedures necessary to enforce possession laws are sometimes as disturbing as their uneven application. Since possession of illicit drugs is generally a private behavior, detection generally occurs without previous investigation, usually in connection with arrests for traffic violations or other minor public offenses. In this context, unjustified searches for drugs occur frequently enough to raise doubts about the integrity of the criminal process. This is not entirely the fault of the police : the very nature of the offense requires them to operate on the outer edge of constitutional limitations.

Possession and Supply
The deterrent effect of the possession penalty measured against the social cost of its enforcement is only one part of the evaluative equation. A second element is its possible usefulness in supplementing controls on availability. Indeed, this putative value of the offense often served to sustain the constitutionality of the various possession proscriptions during alcohol prohibition. In the words of the Supreme Court in Crane v. Campbell, 245 U.S. 304, in 1917 :
As the state has the power ... to prohibit [sale and manufacture], it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose.
The Commission agrees that the possession penalty may make enforcement of trafficking laws a little easier, but we do not believe that this alone outweighs some of its counterproductive effects on the allocation of law enforcement and judicial energies.
The law enforcement goal repeatedly proclaimed at both the federal and state levels has been the reduction of supply and interdiction of illicit trafficking. The federal government has stated quite explicitly that all of its investigative resources are concentrated on supply; BNDD makes very few arrests for personal use and federal cases resulting from routine border searches by the Bureau of Customs are usually handled informally or turned over to the states for prosecution unless the amount seized is large.
At the local level, however, about 80% of the arrests made in the Commission's survey sample were for ancillary consumption related offenses or for possession of small amounts presumably held for personal use. Time and resources consumed in arresting and processing these violators through the system are poorly used when they could be invested in apprehending high-level traffickers. The illicit drug supply system can be viewed as a pyramid with the major bulk of the drug traffic entering the system at the top of the pyramid through a small number of major traffickers, and then descending through wholesale and retail distributors to the base which represents the user population. If concerted law enforcement at the user level could significantly reduce demand, it might make sense from a law enforcement standpoint, but extensive detection and apprehension of users is impractical and undesirable under present conditions.
Thus, law enforcement must devote its resources to assaulting the top of the pyramid, rather than wasting them in skirmishes at the base. The argument that possession penalties are valuable in compelling users to reveal their sources, is not, in the judgment of the Commission, sufficient justification for concentrating law enforcement activities at this level. Informants at the base of the pyramid know little and tell less about operations at the apex. Possession arrests simply occur too low in the chain of distribution to have any measurable effect on supply.

Symbolism
The final purpose served by a prohibition on possession is to symbolize society's disapproval of drug use and to reinforce non-legal discouragement of this behavior.
If society feels strongly enough about the impropriety of certain conduct, it may choose to express this norm through the criminal law even though the behavior is largely invisible and will be reduced only through effective operation of other institutions of control. Laws against incest and child beating are good examples. To weigh the costs and benefits of such symbolism requires a special, non-quantitative method of measurement. The benefits consist of the value of society in reaffirming certain norms, together with a reinforcement of self-restraint by those who accept society's judgment. The costs include the effect on the integrity and functioning of the legal system of having a law that is largely unenforcible, plus the resentment of those who reject society's judgment. The scale that balances these two sets of intangibles indicates, among other things, how widely and deeply the values in question are held.
Use of prohibited substances constitutes deviance from American social values in a very special sense. When alcohol is properly regarded as a psychoactive substance, it becomes evident that discouragement of drug-taking behavior in general does not rank particularly high on this nation's scale of values. Rather, concern is for use of particular substances by particular populations; but even here the American public appears willing to tolerate more deviance today than it did previously.
In light of the ambivalent attitude toward drug use, the relative ineffectiveness of the possession penalty as a deterrent, and the high social costs of its enforcement, the Commission believes that the criminal law is not a very useful symbol for the discouragement policy. Yet, until society develops a replacement symbol and other institutions assume their share of responsibility for control, it may be a necessary codification of public policy. Unfortunately, 60 years of coercive policy have so exaggerated the symbolic importance of the criminal law that it has' become interwoven with social attitudes regarding drug use. Removing it suddenly would connote a change in values rather than merely a shift in emphasis.
Perpetuating a criminal law principally for its symbolism does not comport well with the fundamental purposes of the rule of law. The Commission is strongly of the opinion, however, that policy makers cannot abruptly displace criminal law as a central support for control of drug-using behavior. The common reaction of those opposed to our recommendation to remove the criminal sanction from personal possession of marihuana illustrates the difficulty of rearranging even a part of the structure. We observed in our first Report that a legal policy designed to curtail the availability of cannabis substances could no more be constructed as neutrality toward or approval of marihuana use than could a similar legal scheme employed during Alcohol Prohibition. Nevertheless, there has been a chorus of objections that the withdrawal of the criminal sanction would signify approval of use and encourage more consumption of the drug.
In the case of marihuana use, though, the symbolic value is plainly outweighed by the philosophical, constitutional and functional considerations. The Commission reaffirms its view that a criminal proscription of possession of marihuana for personal use is self-defeating as a means of implementing a discouragement policy. Moreover, the Commission believes that in the long run a measure of success of this nation's drug policy will be how much we have been able to disengage the criminal law from concern with consumption. As long as the legality of consuming "legal drugs" is a sign of approval and the criminality of using the prohibited drugs is the major symbol of disapproval, the law will continue to bear the sole burden of fulfilling public policy and, almost certainly, bear it badly.
In the short run, however, the Commission believes that decriminalizing possession of drugs other than marihuana would be counterproductive. We say this fully aware that some will accuse us of inconsistency. With respect to marihuana, however, the Commission concluded that no useful purpose was really served by asserting control over the users of that drug, given its relatively low capacity for inducing dependence or afáecting behavior, as well as the context in which it is presently used. With respect to the other drugs, we believe, having grappled for almost two years with this issue, that the more serious individual and social risks, the continuing deterrent force of the possession prohibition, and the symbolic value of the law, outweigh the very real costs of enforcement.
If the law is retained, though, the role of the criminal process must. be attuned to the different drug-using behaviors of individuals processed through the system. The desire to punish deviance may require no such subtleties, but as punishment is replaced as the primary purpose of intervention, the operation of the criminal justice system must adjust to redefined objectives. This brings us to the second rationale for coercive intervention.

SICKNESS AND TREATMENT

In recent years, as the desire to punish the drug user for his transgressions has waned, social policy has gradually substituted a new rationale : the purpose of asserting control is shifting from punishment to therapy. Oftentimes, however, the desire to avoid the implications of criminality while maintaining formal control has resulted in compulsory treatment of an "illness" which has never been adequately defined. The Commission warns against the tendency to assume that when its motives are benevolent, society need not attend to the philosophical and constitutional issues raised by its actions.
Concern about the emergence of the "therapeutic state" is not confined to the area of drug use; the drug user is but one of an increasing number of classes over whom society asserts control, not to hold them accountable for what they have done, but to modify their status. Before scrutinizing the role of therapeutic intervention in controlling drug-using behavior, we should take a brief look at the historical roots of the therapeutic state.

Origins of the Cult of Curability
Until the 19th Century, Anglo-American law seems to have permitted confinement of the mentally ill or other social misfits only if they were dangerous. The primary purpose of this control was to prevent the danger threatened. For persons whose mental deficiencies or impairments rendered them helpless, but not dangerous, responsibility for their care rested with their families or guardians or with the local community. Unfortunately, this often meant maltreatment, cruelty and isolation. During the middle third of the 19th Century, humanitarian reformers such as Dorothea Dix brought the sorry plight of the "helplessly insane" to light, arousing public sentiment for their hospitalization under the auspices of the state. This movement coincided with a larger trend toward institutionalization of society's misfits.
Under the rubric of "corrections," and with a philosophical spur from utilitarianism, institutions of confinement—penitentiaries, work houses, juvenile houses of refuge and insane asylums—became, by the Jacksonian period, places of first, rather than last, resort; a preferred solution to the problems of poverty, crime, delinquency and insanity. A cult of "curability," promoted by superintendents of these institutions, swept across the United States, spreading the belief that crime, particularly juvenile crime, and mental disease had their origins in social organization and environmental conditions, and that the effects of these could be corrected by time, isolation and moral therapy. Since confinement now came with charitable intentions, legislation establishing the new correctional facilities and insane asylums no longer emphasized dangerousness as the essential prerequisite for assertion of control.
In terms of constitutional doctrine, the basis of governmental intervention in cases of mental illness now shifted from the police powers (society's power to protect itself) to the implicit authority of the state to act as parens patriae or guardian, for those incapable of protecting themselves. Before this time, the parer patriae rationale had extended only to short-term emergency protection of incapacitated persons, including drunkards. Relying on the "great law of humanity," the courts upheld this significant departure from traditional constitutional doctrine and quickly blessed the somewhat perfunctory civil processes by which the state began to confine the mentally ill for indefinite periods (Dershowitz, 1973) .
The therapeutic ideal blossomed with the emergence of the juvenile court movement at the turn of the 20th Century. This new approach was unabashedly paternalistic and extended control to a new class of individuals. The idea was to identify wayward youth (those who were "delinquent," "uncontrollable," or "ungovernable") and remove them from the environment which had bred these tendencies. Once again, because the state was acting as parer patriae, a civil procest was adopted, legal procedures for asserting control were relaxed, indefinite commitment (up to the age of 21) was permitted, and the entire process usually escaped close judicial scrutiny.

Addiction and Treatment: The Early Days

Concerted professional attention was first drawn to the habitual use of opium and cocaine after the Civil War, and the search for a cure began. Optimism that one would be found reached its peak during the early years of the 20th Century, only to wane soon thereafter and virtually disappear during the 1920's (Musto, 1973). Throughout this 50-year span, however, the legal system played only an incidental role in the treatment of drug-dependent persons.
The asylum and the civil commitment laws of the period did provide for confinement of "inebriates" upon a showing of likelihood of harm, and it had long been common to commit drunkards to the care of a guardian or asylum to prevent them from injuring themselves or their property, or from being injured by others. In upholding these laws and practices, however, the courts emphasized that the power being asserted was a highly limited one, requiring a showing of specific danger to the individual or the public. Mere proof of habitual inebriation was generally held not to suffice. Incarceration of a non-dangerous alcoholic in order to treat him was generally found to be beyond the power of the state (Dershowitz, 1973) .
Although opiate-dependent persons were sometimes classified as "inebriates" under these laws, commitment does not appear to have been often employed in such cases. Private sanitaria for "curing" the drug habits proliferated in the early years of the 20th Century, reflecting the fact that dependence on "narcotic" drugs was considered to be primarily a private medical problem.
As legislative attempts to restrict availability of the narcotics intensified during this period (1900-1914), dependence on these substances became a matter for public policy.22 Some states prohibited distribution of opiates and cocaine to "habitual users," thereby precluding one treatment option. With the passage of the Harrison Act, the fate of drug-dependent persons passed to the United States Treasury Department. Government at all levels suddenly became involved in the treatment of drug dependence.
At the state and local level, the initial response in some communities was the creation of temporary morphine clinics to sustain those who could no longer obtain the drug upon which they were dependent through ordinary medical channels. After a few years, however, the clinics closed because The Treasury Department, with the endorsement of the A.M.A., found them inconsistent with the objective of restricting availability and use of opiates.
The end of maintenance treatment in 1925 also meant the end, for almost 40 years, of any therapeutic alternative to periodic withdrawal and punishment for the opiate-dependent person. The medical profession remained uninterested in the area, and the search for a cure slowed to a virtual standstill. Every opiate-dependent person was subject to prosecution and punishment for possession and acquisition, acts incident to consumption. The status of addiction and its treatment became entirely matters of law. Addiction itself was made a crime in many states.
Abstinence "therapy" was always available from a physician, although there were few who cared to treat opiate-dependent persons. Public agencies did produce a shadow of treatment opportunities. In 1929, Congress authorized two "narcotic farms," later constructed in Lexington, Kentucky and Fort Worth, Texas for the treatment of drug-dependent persons, including federal offenders. During the ensuing three decades, 34 states, analogizing drug addiction to mental illness, authorized civil commitment of drug-dependent persons under preexisting law. Half of these states also made involuntary treatment an adjunct to criminal laws against drug dependence. In addition, some states updated laws authorizing the appointment of legal guardians for drug-dependent persons, in order to permit their indeterminate confinement for medical care.
Whatever the label of the legal process and the location of confinement, control for most drug-dependent persons meant isolation, not treatment. For all practical purposes, until the last decade, the criminal justice system was the sole instrument of public policy.

The Therapeutic Premise Takes Hold

In 1962, the Supreme Court decided Robinson v. Cali f ornia.23 In this landmark case, the Court, concluding that drug "addiction" is an illness, held that a state could not make this status a crime. In an offhanded but far-reaching dictum, the Court also suggested that the Constitution would not be offended by involuntary civil commitment procedures for purposes of treating the illness. The Court thereby put its imprimatur on the therapeutic premise without considering the profound constitutional questions raised by commitment statutes whose provisions dated from the 19th Century.
The Supreme Court's approval of civil commitment and treatment of "narcotics addicts" may have been motivated in part by the enactment of a California law the year before. Under the California approach and that of New York, adopted in 1962 and expanded in 1966, emphasis was on removal of the opiate-dependent person from the community and on long-term residential treatment. These statutes, and those which other states passed in the ensuing years, were not new legal departures, since civil commitment of such persons had been possible, though rarely practiced, under a number of older mental illness and "inebriate" laws. There was one important innovation, however; the new laws required only a finding of "addiction" to sustain a commitment, abandoning any pretense of case-by-case determinations of dangerousness.
This did not mean, however, that the policy of the new statutes was purely therapeutic. The law had joined a therapeutic ideal to preventive intentions. Segregation and confinement were at once treatment methods and policy objectives, a point which the preamble to the California legislation emphasized in stating that persons who were either uncooperative or failed to respond to treatment might be detained anyway for "purposes of control."

Therapeutic Intervention Comes Under Attack

While public policy for drug dependence moved in the therapeutic direction, the entire concept of therapeutic intervention suddenly came under attack. In 1967, the Supreme Court, in the Gault 24 decision, imposed legal restraints on the curative model as applied to juveniles. Noting that many persons committed to juvenile facilities were treated no differently than if they had been in a penal facility, the Court revitalized the procedural rights of juveniles and warned that the parer patriae power would not serve as an excuse to circumvent the Constitution.
Similarly, the entire theory of commitment of the mentally ill has been challenged. Despite the humanitarian intentions of the 19th Century reformers, state mental hospitals soon became warehouses for the mentally ill. This was apparent as early as 1908 when the mental health movement began. Then in the 1950's, the American Psychiatric Association initiated efforts within the profession to reduce the population of state mental hospitals. More recently, the commitment approach has been supplanted by the trend toward a community-based approach, including community mental health centers.
Despite these reforms, the state mental hospital has suddenly encountered vigorous legal attack. The exemption of the mental illness commitment order from procedural restraint has always been something of an anomaly. In 1972, the Supreme Court, pointing to the large number of persons processed through various civil commitment schemes,25 expressed surprise that the state's power to coerce a person to receive treatment had been so seldom the subject of litigation.2ó Indeed, the Court seemed to invite litigation to consider the appropriate contours of therapeutic intervention.
Thus, state and federal courts are about to encounter a legion of constitutional and philosophical questions which have been ignored for over a century. The issues raised by therapeutic intervention mostly derive from a single philosophic difficulty : when introduced into a constitutional framework dealing with crime and punishment, the therapeutic approach has no limits.

Harnessing the Therapeutic Response

The legal issues now receiving careful scrutiny in the areas of juvenile justice and mental illness are being glossed over in the area of drug consumption. Characterizing all drug users as "sick" and in need of treatment has become increasingly common. Diversion of persons arrested for drug offenses out of the criminal process and into treatment programs is a standard provision of states criminal codes, even if, in practice, such provisions are not routinely invoked.
It is likely that most persons apprehended for possession of prohibited substances are neither abnormal nor in need of treatment in any meaningful sense of those terms. By substituting the therapeutic premise for its punitive counterpart in dealing with drug consumption, policy makers have ignored an important fact : the individual's choice to use prohibited drugs generally signifies no personality defect or abnormality but simply a failure of the network of social control.
The elasticity of therapeutic standards is perhaps a value in treatment, but not in law. Coupled with an actual duty to intervene and treat whenever that appears possible, the flexibility of therapeutic standards enables the state to coerce conformity in many instances where the protection of society would neither require nor justify coercion (Wexler, 1973).
Legislators and official spokesmen must realize that therapy is not a justification for assertion of control over the great majority of people who use prohibited substances. The person may have deviated from the prevailing norms of the larger group (though not necessarily those of his peer group), but he is not necessarily sick, and, if he is not, treatment cannot be devised for him, much less provided.
With respect to drug dependence, therapeutic intervention does have an appropriate role. Yet, even here, problems of standards and limits abound. As we demonstrated in Chapter Three, drug dependence is not easily defined ; indeed it is readily identifiable only when physical dependence has developed. Similarly no specific treatment has been developed for persons dependent on these drugs which do not induce physical dependence. Even when treatable, the illness is not subject to ready cure, if this means abstinence. Thus, a drug-dependent person subject to control until cured may never regain his liberty.
Moreover, once society alleges that its sole interest is coextensive with the patient's interest, it follows that the therapist should be empowered to employ whatever therapeutic devices he considers appropriate. Yet, some therapeutic techniques, such as aversion therapies and compulsory use of opiate antagonists or mandatory drug maintenance, offend some of society's traditional respect for human dignity and personality.
Defining the procedures by which control is asserted constitute yet another problem with therapeutic intervention, one which has already received some judicial attention. Under Anglo-American law, the deprivation of liberty for purposes of punishment is considered so drastic a measure that it can occur only after an adversary proceeding at which the accused is represented by competent counsel and enjoys every procedural advantage against the awesome power of the state. Yet, where the state's aim is not to punish but to cure, theoretically an adversary process is unnecessary because all parties have the prospective patient's best interest at heart. Indeed, at its logical extreme, the question is entirely a medical or scientific one, and the courts have no competence to judge the need for treatment at all.
The present disenchantment with prosecution and punishment as a means of dealing with the drug problem is justified ; however, we must avoid substituting in their place the facile notion that drug depend-
.` once is a disease as susceptible to cure as ordinary maladies of the body. Drug dependence is often an illness of the spirit, relating in large part to the individual's relationships with the total society. As in the case of other social maladjustments, there are no quick solutions.
For this and all of the other reasons discussed in Chapter Three, formal therapeutic intervention in the lives of drug-dependent persons should be carefully circumscribed both substantively and procedurally. Given the present state of the art, therapeutic control is justified only when the individual's dependence on psychoactive substances and consequent drug-seeking behavior have had a substantial detrimental impact on his capacity for normal functioning, and when treatment is available. The class of persons covered by this standard is presently quite small, being limited essentially to chronic alcoholics and opiate dependent persons.
Even within this group, individuals vary widely, as do the conditions which precipitated their drug use. In treating and rehabilitating such persons, society must not expect too much. No policy maker or legislature can define "success," unless it means that the person becomes motivated to continue treatment on a voluntary basis. Relaps  into the use of illicit drugs is not an indication of failure, and absence of criminal behavior is not necessarily a measure of success. The cornplex social and psychological causes of drug dependence require that each person's progress be measured by criteria that are to some degree individualized.
The legal mechanism designed to assert and monitor formal control over drug-dependent persons must reflect the uncertainty and limita-ons of our present knowledge. Coercive intervention should be a last resort. Although present data suggest that coercion may sometimes be 't necessary element of treatment for those whose drug use dominates their life style, the Commission rejects the notion that coercion alone can motivate a person to become drug-free.
We agree, therefore, with the many state and federal courts which have held that, when the state asserts control over a person for purposes of treatment, he has a right to treatment. The nature of this treatment, of course, is another question. The state cannot promise a cure for the "illness" of drug dependence any more than it can promise a cure for schizophrenia. At best, it can only ensure that the person receives sufficient services, facilities and expertise to provide a reasonable opportunity of overcoming his dependence.
Whenever the force of law is joined with therapy, many serious questions arise. We have tried to identify the most important ones. Legislative attention to these matters is crucial. The Commission's "Compilation of Current Drug Dependence Treatment and Rehabilitation Laws in the 50 States and Five Territories," issued as our third Interim Report on December 14, 1972, suggests that the states have given little attention to these questions as they have placed numerous civil commitment and diversion provisions on the statute books.

Involuntary "Civil" Commitment : The Problems of a Therapeutic Response

As we have noted, drug-dependent persons have been covered by the general mental illness commitment statutes of most states for many years, although these procedures have rarely been invoked. Beginning with the California, New York and federal (NARA) civil commitment programs, many states enacted separate statutes specifically dealing with drug-dependent persons. At the present time, 34 states have involuntary commitment laws which apply expressly to drug-dependent persons. In 24 of these states a person may be committed upon a showing of "addiction" or "drug dependence ;" the remaining 10 states require a showing of "dangerousness" as well. The consequences of commitment under these therapeutic programs vary widely. In 17 states, confinement is indefinite. In the others the possible periods of commitment range from 30 days in Washington and Montana to
10 years in California.
By and large, persons against whom civil commitment petitions are filed are entitled to very few procedural safeguards, and the details of commitment procedure differ enormously from state to state. Almost every state permits the subject to be detained pending a hearing without any kind of preliminary adjudication,27 although some states limit the time of pre-hearing detention. In most states commitment proceedings are conducted without a jury. Eight states do not provide for representation by counsel, and Indiana and Illinois appoint the District Attorney to represent indigent patients. Several states do not even give the patient notice that a proceeding is being initiated against him. As is true in most procedures shaped by the therapeutic premise, a patient's silence is generally regarded as proof of his illness rather than as the exercise of a constitutional right.
Only Nebraska and Wisconsin require the state to demonstrate the grounds for commitment beyond a reasonable doubt. In most states, the petitioner need only establish "addiction" or dependence on the basis of a preponderance of the evidence. Only nine states accord the patient an immediate appeal of a commitment order, and in the other states review is limited to habeas corpus or permitted only after completion of a specified period in treatment.
Very few of the state legislatures have applied fundamental controls to the treatment process itself. It is now generally accepted that a person committed for purposes of treatment has a right to receive treatment, though the contours of this right remain ill-defined. This area requires the most careful legislative attention, yet, very few states have spoken to the issue in even an oblique way.
Nine states require the facilities to provide "adequate and appropriate" or "humane" treatment ; and Massachusetts requires the preparation of individual treatment plans. To date very few states actually have special facilities for drug-dependent persons ; the common outcome for the drug-dependent person is commitment to the state mental hospital. Moreover, patients may be held in jails while awaiting space in a treatment institution.
At the present time, involuntary commitment laws are clearly superfluous and rarely invoked. The criminal justice system still functions as the method by which most drug-dependent persons enter treatment. Involuntary civil commitment may have a useful role after the criminal justice framework has been disengaged from the area of drug consumption, but, even then, it should be limited to individuals who have refused to enter treatment voluntarily, who present a clear and immediate danger to the safety of themselves or others, and for whom treatment is available. In the meantime, existing laws require a fundamental restructuring in terms of procedure, substantive criteria for commitment, length of commitment, and nature of treatment services.

Therapy and the Criminal Process
Despite the increased substitution of treatment for criminal punishment, the criminal justice system remains the primary means of detecting drug users and asserting control, either punitive or therapeutic, over them. Many awkward and undesirable features of the present response reflect the fact that the therapeutic approach to drug use and dependence is still a stepchild of the criminal process. To correct this situation, it is necessary to develop a formal process, with appropriate internal and external restraints, for asserting therapeutic control, for choosing the least restrictive method of treatment adequate.to the case, and for assuring that the treatment is satisfactorily administered.
Concluding that possession of prohibited substances except marihuana for personal use should remain a criminal offense, we believe the criminal justice system must continue to serve as the mechanism for detecting those in need of assistance and channelling their entry into a treatment system. The Supreme Court's decision in Robinson v. California made it clear that traditional criminal justice concepts are constitutionally suspect when applied to drug-dependent persons. In this case, the Court held only that a person may not be punished for being drug-dependent, reasoning that this status was not a matter of free moral choice. Many commentators, however, think that the rationale in Robinson precludes making drug-dependent persons criminally responsible for much of their status-related behavior as well ( Silverman, 1973). Although the Supreme Court has not yet exempted drug-dependent persons from traditional criminal prosecution for the acts which are symptomatic of the illness, such as possession of the drug upon which he is dependent or being under the influence of the drug, its decision in Robinson indicates a change in the operation of the criminal justice system when it deals with the dependent offender.
In the Commission's view, the criminal justice system may properly function in such cases as a detection mechanism. However, since the premises of free choice and punishment are not always applicable to the behavior of drug-dependent persons, the process after detection must shift to determining whether the relationship between the person's status and his anti-social behavior permits application of the punitive premise. For certain conduct (possession for personal use, being under influence and other consumption-related behavior), the Commission believes that criminal responsibility may not be affixed?8 For other conduct, involving violence or the threat of violence against the person, the possible relationship with drug dependence is more tenuous, and the public interest in preserving order and safety is so great that criminal liability must be assessed. For other behavior, the Commission believes that the participants in the criminal process (the district attorney and the judge) must have the discretion to determine whether or not the drug-dependent person should be held accountable.
When punitive intervention is inappropriate, the Commission does not conclude that society must forego control altogether. Instead, in such cases it may be constitutionally permissible to rest formal control on the therapeutic premise and on the state's parens patriae power, if treatment is indeed available and the nature of control is no more restrictive than necessary to provide effective treatment. As we have noted, the constitutional bounds of therapeutic intervention seem to be narrowing. Nonetheless, the Commission believes that imposition of therapy is a legitimate exercise of state power, as long as control is asserted only when the individual's drug dependence has had a substantially detrimental impact on his capacity for normal functioning, unnecessary restraint is avoided, adequate treatment is provided, and the entire process is subject to strict procedural limitations.
It is important to emphasize that the distinction between punishment and therapy is not a matter of procedural labels. As experiences with the juvenile court and commitment procedures for mental illness indicate, "civil" procedures do not guarantee a therapeutic result. The Commission is convinced that the criminal justice system may be utilized to assert control for therapeutic purposes provided that the indicia and implications of criminality which would render the process constitutionally impermissible are avoided.
In this regard the Commission recommends that all states attempt to rationalize the operation of the criminal justice system as a process for identifying drug-dependent persons and for securing their entry into a treatment system. The states should establish, as part of the comprehensive prevention and treatment program, a separate treatment process which runs parallel to the criminal process, and which may be formally or informally substituted for the criminal process.
In the long run, however, the Commission believes that coercive intervention should not rest simply on the need for therapy alone. Primarily, entry into treatment should become voluntary, and society should aim to maximize the number of drug-dependent persons who seek assistance on their own. The legal status of dependence on opiates, barbiturates or any other drug restricted to medical channels should compare to that of alcohol dependence : coercive intervention should be limited to those persons posing an immediate and substantial danger to their own safety or the safety of others. This leads us to consideration of the third justification for control : prevention.

DANGEROUSNESS AND PREVENTION

Since the turn of the century, the public's image of drug dependence has always included, in varying proportions, elements of both disease and danger. The policies underlying civil commitment as well as the diversion of drug-dependent persons from the criminal justice system manifest this ambivalence : these mechanisms are appealing both as a way to aid the helpless and as a more convenient means of confining the dangerous and disliked. Thus, society's motives in imposing treatment have not been entirely benevolent, and intervention has often been justified not because of what the individual has done, but because of what he might do.
Preventive intervention has deep roots in Anglo-American law, which ha's always permitted the state to assert control over a person in order to prevent imminent harm to himself or to others. Commitment of the dangerously insane, quarantine of the contagiously ill, and emergency detention of persons temporarily incapacitated by mental or physical ailments all reflect this rule of necessity.
The emergence in the 19th Century of the cult of curability and its expansion in the 20th Century have changed the notion of dangerousness and made it more open-ended. Emergency restraints designed to prevent imminent injury have largely been replaced by long-term confinement to avoid more remote harms. The step from what was immediately threatened to what was only possible in time also marked a step from determining dangerousness in individual cases to determining it for entire classes of individuals sharing a certain status.
In some ways, the present reconsideration of mental commitment laws is a retreat from the open-ended preventive rationale. What we have labelled as the therapeutic intervention is actually one end of a continuum of preventive intervention, where the social harm being prevented is a remote and speculative function of "harm" the individual is doing or threatening to do to himself.
In other areas, however, preventive confinement has not been premised on harm to the individual himself. Indeterminate confinement of habitual offenders, sexual psychopaths and "defective delinquents" rests on the prediction that persons so classified will harm others unless they are restrained or rehabilitated. Generally these determinations have been made on an individual case basis with appropriate procedural safeguards. The courts are now struggling with the numerous constitutional issues raised by these statutory schemes.
There have been other instances of preventive intervention where an entire class of persons has been confined without regard to the dangerousness of any single individual either to himself or others. Vagrancy laws, for example, are nothing more than a loosely designed preventive device, and the courts have made it abundantly clear that such laws are constitutidnally suspect. The classic example of the j perils of the preventive ideology is the internment of West Coast Japanese-Americans during World War II. Because of a sweeping class determination based only on national origin, persons were incarcerated and dispossessed without any regard to the likelihood that individually they posed any danger to the nationl security or to the war effort. Although the Supreme Court upheld the constitutionality of this internment during the war, subsequent opinions have indicated that the decision was an historical abberation. Confronted by what it thought were the exigencies of the war, the Court simply held the Constitution in abeyance.
The Japanese internment case indicates that preventive intervention, even when controlled by a doctrine of immediate necessity, is susceptible to gross abuse unless it is also based on determinations of individual dangerousness. Developments in almost every legal area outside of drug use indicate that common status alone is not enough to justify intervention in an individual case.
The Commission believes that it is time to face squarely the implications of preventive intervention as applied to persons who have chosen to consume or have become dependent upon prohibited substances. Public concern about the drug problem more and more often is expressed in terms of the need for intervention, not to treat or to punish, but rather, to prevent crime and to curtail the spread of the drug "epidemic." The Commission has carefully considered this issue, particularly because the shrillness with which prevention is advocated does not bode well for emergenec of a rational public policy in this or in any other area of social deviance. In the subsequent discussion, we will try to return the discussion to a less emotional level so that a more dispassionate judgment can be made about the appropriate role of preventive intervention with regard to drugs.

Crime and the Public Safety

Crime prevention is the primary argument made for preventive control over drug users and drug-dependent persons. From the earliest days of prohibitory drug policy, consumption has been associated with criminal life style. Public fears of drug-induced crime and drug dependence inspired many of the early prohibitions.
As we noted in Chapter Three, the relationship between the use of various drugs and violent crime is complicated by the interplay between the pharmacologic properties of the drugs and the psychosocial
,,.characteristics of the individuals who use them. It does appear, however, that alcohol is strongly associated with violent crime, and research.
dings linking barbiturate and amphetamine use with aggressive :havior are increasing. Yet, none of these relationships is strong
ough to justify preventive control of persons who merely consume these drugs.
With regard to use of other psychoactive substances, there does not pear to be any significant connection with violent behavior. Marina and opiate users tend to be underrepresented among violent nders, especially when compared with users of alcohol, barbiturates amphetamines. Except in rare instances related to drug-induced is or toxic reactions, users of other drugs are not inclined toward behavior. Consequently, there is no basis in fact or in law to assert
entive control over the entire class of users of those drugs.
With regard to the relationship between drug dependence and crime. most authorities agree that dependence, particularly on the opiates. reduces rather than stimulates aggressive and violent impulses (Blaine et al., 1973). In Chapter Three, we also explored the oft-postulated relationship between opiate dependence and property crime, observing that that relationship is not as strong as is often suggested. More important for present purposes is that the relationship derives from the social policy of prohibition which makes it costly and difficult for the dependent user to satisfy his need, rather than from the pharmacology of the drug itself. This raises the question whether the state may utilize the prevention rationale to assert control over the drug-dependent person, because it has adopted another policy that increases the likelihood that such persons will commit crimes."
Even if crime prevention were a defensible rationale for asserting control over drug-dependent persons, difficult questions of standards remain. May the legislature determine that as a class, opiate-dependent persons are likely to commit crime, and require only a showing of dependence before control is asserted or must a finding as to potential danger be made on an individual case basis, involving, for example, a showing that the individual does not have the means to support his habit ? More important are the restrictions on the preventive controls. May the state compel a person to take methadone on the ground that it reduces the likelihood of criminal activity? May it confine someone indefinitely because no one can predict whether he will relapse into dependence and therefore into crime?
In sum, the Commission believes that preventive intervention is an impermissible answer to the dilemma our drug policy itself creates. Instead society must decide what concerns it most. If dependence-related crime is the main concern, then it should remove or modify the current restrictions on availability of dependence-producing substances, particularly the opiates. If, on the other hand, society's major concern is to reduce the incidence of dependence and minimize its adverse effect on the public health and welfare, it should continue to restrict availability. But it may not rely on the consequences of that decision, increased criminal activity, to place drug-dependent persons under preventive control.

Contagion and the Public Health and Welfare

Concern for public health and welfare suggests a second preventive rationale, one exemplified by the state's power to restrain those infected with contagious diseases. Heroin dependence, and even illicit drug use in general, has repeatedly been characterized in recent years as an epidemic. A number of people have demanded a mass quarantine to curb the contagion.
While it is true that the idea of drug use, like other ideas, is tranmitted from person to person and that opiate-dependent persons are generally introduced to heroin by other opiate users, the contagion analogy is not a useful tool for legal analysis. In a free society, the communication of one person's behavior to another cannot be equated with the spread of microbes or viruses.
The fatal flaw in the contagion analogy from the legal standpoint is the victim's consent. With truly infectious diseases, the victim does not want to contract the disease. In the area of drug use, however, the "peer-victim" chooses to use a drug; in most cases he probably is eager to try it, notwithstanding the risk of dependence. In this sense, the drug-dependent person is at best a catalyst for social communication rather than an agent of contagion. At worst he may encourage his friends to experiment. More commonly, he may only provide them with samples and show them how to take the drug.
In high risk areas, particularly among vulnerable populations, peer example probably does spread the use of drugs, but whether this is the cause of high incidence of consumption or simply an effect of it is unclear. For example, in low risk socio-economic settings, the same kind of interpersonal transfer does not seem to occur on any significant scale. Whatever role "contagion" plays, there are plainly a number of other important factors which incline certain individuals and certain populations to intensified or compulsive drug use. It should be noted in this connection that of all the factors which seem to be correlated with incidence of drug dependence, ready availability of dependence-producing substances is probably the most important. Justification of prevention intervention on the contagion rationale may actually be an admission by the state that it cannot enforce a prohibitory policy by minimizing supply of the drug, so that it must eliminate demand instead by eliminating users.
If the contagion analogy continues to be part of the debate over legal controls, it deserves some additional probing. The state, for instance, can arrest the spread of a smallpox epidemic by detecting and quarantining the carriers of these diseases, but this would not work with all infectious diseases. Quarantining yellow fever victims would have no effect at all, because the victim is not the carrier; something else is.
Similarly, it is doubtful that removal of all opiate-dependent persons, even if this were possible, would achieve more than a short-term gain. If the social environment in high risk areas were unchanged and some dependence-producing substances, such as alcohol and barbiturates, remained available, compulsive drug use would continue and, after a while, even use of prohibited substances would reappear.
Another important feature of the analogy is the practical consequence of intervention. Heroin users are most "contagious" in their first year of use before they are dependent to any significant degree at all. During this time they tend to still retain contact with their social groups, and remain employed and functional. It is during this period that they may share their new experience with their friends. Upon becoming heavily involved in drug-taking behavior, their "infectious" days are over ; they are now withdrawn and unlikely to be proselytizing. Thus, assertion of control over drug-dependent persons who come to the attention of the police is unlikely to have any impact on the incidence of use.
A final difficulty with basing legal doctrine on a contagion theory is that it seems to require exactly those controls least consistent with treatment and rehabilitation : removal and indefinite confinement, lasting at least until some official has determined that the epidemic is over. The quarantine model of intervention would not permit community-based ambulatory treatment or other efforts to reintegrate the person into the community.
More disturbing, it would also dictate the exercise of control, in one way or another, not only over drug-dependent persons, but over all users of prohibited substances, and perhaps over the entire class of individuals who are most susceptible to use of and dependence on these drugs. For example, statistically, people between the ages of 18 and 25, who come from pathological family settings and who have dropped out of high school, are more likely than other segments of the population to become dependent upon opiates (Cuskey, et al., 1973). If drug dependence requires the same measures as a plague epidemic, the state might conceivably require every person in an at-risk population to undergo periodic urine analysis, and possibly to submit to further intervention if the analysis tests positive. In fact, such suggestions have been made in recent months. The Commission does not feel such an approach would be constitutionally permissible.
The Appropriate Role of Preventive Intervention
The Commission believes that there are sound policy reasons and ample historical precedent to support assertion of short-term emergency control over persons who are incapacitated by psychoactive substances or who require medical attention for acute adverse effects of such substances. To justify more extensive intervention in the lives of drug-dependent persons, however, the Commission prefers a tightly-tailored therapeutic premise to an open-ended projection of social danger.3°
In the long run, if society moves to disengage the criminal law from the system of control over drug-dependent persons, residual control over dependent persons who present a clear and immediate danger to their safety or to the safety of others will rest on a synthesis of the therapeutic and preventive premises. This combined rationale will re-5 quire a showing of substantial and imminent danger before control is asserted and the provision of adequate treatment services afterward. Taken together, the dual rationale for control, which constitutes the emerging constitutional basis for commitment of the mentally ill, will minimize the possibilities for undue intervention, since each of the two premises will act in part as a limitation on the other.

CONCLUSION : THE POSSESSION OFFENSE AND ITS ENFORCEMENT

Having discussed deterrence, therapy and prevention as justifications for assertion of control over persons who have chosen to consume prohibited substances, we can now draw some conclusions concerning the appropriate scope and method of intervention.
The Commission recommends that the unauthorized possession of any controlled substance except marihuana for personal use remain a prohibited act. The Commission further recommends that as a matter of statutory or enforcement policy, assertion of control over the consumer should not be tied to concepts of criminal accountability but rather to concepts of assistance appropriate in the individual case. The primary purpose of enforcement of the possession laws should be the detection and selection of those persons who would benefit by treatment or prevention services.

Treatment and prevention programs will be detailed in later sections ; the role of the legal system will be outlined here.
For those drug-dependent persons who are apprehended for consumption-related offenses, including possession, one of the following dispositions is in our view constitutionally required and should be mandatory:
(a) diversion to a treatment program in lieu of prosecution; or
(b) diversion to a treatment program after conviction but before entry of judgment by the court.
Failure by an individual to comply with the conditions of treatment would result in his return to the court for prosecution or sentencing. In that event, he should be subject to punishment by up to one year imprisonment, a fine of up to $500 or both.
For those non-drug-dependent persons who are apprehended for consumption-related offenses, including possession, one of the following dispositions should be mandatory:
(a) diversion to a prevention services program in lieu of prosecution;
(b) diversion to a prevention services program after conviction but before entry of judgment by the court:
(c) a fine of up to $500; or
(d) probation with appropriate conditions.
Failure by the individual to comply with the conditions of prevention services under alternatives (a) or (b) would result in his return to the court for prosecution or sentencing. In that event, he should be subject to punishment by up to one year's imprisonment, a fine of up to $500 or both.
The Commission supports the conditional discharge provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which includes expungement of criminal records. Experience with this provision and a similar one in the Uniform Controlled Substances Act,31 indicates that they are useful in providing flexibility in the criminal justice process.
These recommendations should be implemented by the state legislatures and the Congress by amendments of their possession laws, or as part of a comprehensive drug dependence treatment and rehabilitation act, such as that now before the National Conference of Commissioners on Uniform State Laws.

Functional Enforcement
The Commission has proposed retention of the possession offense because of its symbolic importance, its practical, though limited deter- rent value, its legitimate role as a mechanism for channelling drug dependent persons into treatment and for identifying others whose drug use may be symptomatic of serious emotional distress. At the same time, we must recognize that not all persons are in need of such assistance. The criminal justice community already acknowledges this fact by distinguishing among consumers of illicit substances. Arrest, charge, prosecution and conviction have all become highly selective
i    dispositions, despite the comprehensive nature of the offense itself.
Consequently, in framing an immediate policy response, the Corn-
1`  mission suggests a dose of realism. We must be honest about the law and its enforcement : the impact of a criminal law upon behavior and
T the social cost of its enforcement are determined less by the words of the statute than by the manner in which the law is carried out. In order to make the possession laws truly functional in terms of society's
r objectives, the Commission urges police and prosecutors to design enforcement policies which are consciously oriented toward different drug-using behavior patterns. Until now, in most areas, selective en- forcement policy has been ad hoc and hidden. The Commission believes that since selectivity is inevitable, enforcement policies should be well considered, carefully defined, and highly visible (Whitebread, 1973).
i  Specifically, with respect to the youthful user, participants in the juvenile justice system should tailor their response to the needs of the
i  individual young person. Where appropriate, the youthful offender should be reprimanded or referred to appropriate social or health
p care services. Formal intervention should occur only as a last resort. For the young adult user, diversion to prevention services or a fine will generally be the appropriate response. For drug-dependent persons, we have noted that the only legitimate role of the criminal justice system is to function as an entry mechanism into a treatment
r    system, provided always that treatment services are available.

Role of the Police
A particularly important feature of functional intervention, as we have defined it, is the redefinition of the role of the police. Within the last decade, there has been an increased recognition that the police are well suited to perform a number of non-enforcement functions (American Bar Association, 1972). Some of these functions are particularly important in the drug area, and, in order to identify them, the Commission joined the Police Foundation is sponsoring a comprehensive study of the present and potential role of the police in the area of drug consumption, with particular emphasis on non-arrest dispositions and diversion (Moody, et al., 1973).
On the basis of this study, as well as the six-jurisdiction law enforcement study, the Commission has several recommendations. First, local police departments should participate with other community institutions in the development of a prevention services program. As part of this program, the departments should formulate precise guidelines for non-arrest dispositions of persons apprehended for consumption-related offenses and for their referral to appropriate prevention or treatment services. Each police department should consider using citations, or other formal means of directing persons into the appropriate programs.
The Commission further recommends that those states which have not already done so should authorize law enforcement officials or public health officers to make non-criminal referrals of persons under the influence of controlled substances or possessing controlled substances for personal use. They should also authorize law enforcement or public health officials to assert protective custody over persons incapacitated by controlled substances in order to transport the person to an emergency medical facility. Such a person should be detained for treatment without his consent for no longer than 48 hours.32
The Commission also recommends that local police act as an early warning system on emerging patterns of drug use in the community, including changes in at-risk populations and non-drug developments which may be relevant to drug-using trends. For example, a constant analysis of drugs on the street can be extremely useful in preparing other community agencies to launch specifically-targeted preventive efforts. Conversely, police participation in these community efforts can generate community support for new enforcement programs aimed at disrupting illicit distribution.
With regard to drug dependent persons, including alcoholics, the Commission recommends that local police receive appropriate training in dealing with the medical needs of such persons. In particular, guidelines should be developed for diverting them to treatment facilities for emergency care, and, if necessary for formal treatment. In this connection, each community should consider the utility of concerted outreach efforts to identify drug-dependent persons and to attract them into treatment programs. The police might be useful agents in this effort, too.
Finally, the federal government should carefully consider whether local police agencies as a condition of receiving federal assistance, should be required to train for such community services roles.

As we have noted, the long-term social response should aim to develop replacement symbols for the possession offense and to relieve the police of primary responsibility for social control of drug-using behavior. Ultimately, the emergence of a coherent social response will provide the best reinforcement for self-restraint in drug-using behavior. In the meantime, however, a policy of functional intervention will give some coherence to public policy by converting the selectivity inherent in drug law enforcement from a detriment to a benefit.
In addition, by maintaining the structure of formal control, society will be giving other social institutions an opportunity to evolve a proper response to drug use. As we noted in the Marihuana Report, this society has too long relied on the legal system to function not only as policemen, but as father-confessor, disciplinarian, educator, rehabilitator and standard bearer of our moral code. Over-reliance on the law has weakened the force of legal controls where they are really needed and has had a depressing effect on the ability of other institutions to provide necessary social control. Gradual, though not precipitous disengagement of the police and the criminal justice system from the area of intervention will give other institutions time for revitalization.

u Georgia, Idaho. Indiana, Kansas and Tennessee.
I' Fifteen states had restricted distribution of chloral hydrate to medical channels before the Harrison Act.

" Interestingly, when availability of amphetamines, barbiturates and hallucinogens was restricted to medical channels under the 1965 Drug Abuse Control Amendments, Congress departed from tradition and did not extend the criminal sanction to unauthorized possession. This omission reflected an unwillingness to criminalize the behavior of those who received prescribed drugs from family or friends and would be in "technical violation" of a possession law ; it did not indicate an erosion of legislative desire to punish street users. In 1968, Congress decided to extend criminal sanction to possession of these drugs anyway. but treated possession offenders only as misdemeanants and expressed the wish that prosecutors not enforce the law against "technical" violators.
34 In urging this, the Conference broke a long tradition of silence on appropriate penalties for proposed uniform criminal laws.
is The felony/misdemeanor distinction is not always a clear one, particularly when an offense may he prosecuted or punished as either in the discretion of the prosecutor or court. This is the case for each drug category in a majority of the remaining states.

" In two of these states, New York and North Carolina, conditional discharge is available only for marihuana offenders. In Missouri, eligibility is limited to offenders under 21.

" See for example, People v. Sinclair, 194 N.W. 2nd 878 (Michigan Supreme Court, 1972) ; State v. Kantner, 493 P. 2nd 306 (Supreme Court of Hawaii, 1972).

18 Though, if he is still subject to juvenile court jurisdiction, his unlawful use may in theory justify a delinquency petition.

1° About 45% of these arrests were for marihuana offenses (Federal Bureau of Investigation, 1972.)
90 The cases included in the survey constituted separate random samples of arrests in six urban jurisdictions for offenses relating to drugs other than marihuana and for non-specific consumption-related offenses such as "being under the influence of a drug." The eases were weighted according to the total number of arrests for each type of offense in each jurisdiction.
' These patterns are more pronounced in some jurisdictions than in others, and vary according to drug-type. Heroin offenders for example, tend to have been more extensively involved with the criminal justice system than persons apprehended for hallucinogen offenses. Similarly, the patterns in Manhattan, where heroin-related arrests predominate, differ significantly from those in Los Angeles, where non-opiate arrests predominate.

22 Interestingly, when New York enacted its major anti-narcotics law in 1914 (The Boylan Act), the legislature included the following provision:
§ 249-a. Commitment of habitual drug users; procedure; discharge. The constant use by any person of any habit-forming drug, except under the direction and consent of a duly licensed physician, is hereby declared to be dangerous to the public health. Whenever a complaint shall be made to any magistrate that any person is addicted to the use of any habit-forming drug, without the consent or direction of a duly licensed physician, such magistrate, after due notice and bearing, is satisfied that the complaint is founded and that the person is addicted to the use of a habit-forming drug, shall commit such person to a state, county or city hospital or institutions licensed under the state lunacy commission.

23 370 U. S. 660 (1962).

° In re Gault, 387 U.S. 1 (1967) .
• In 1967, for example, there were 426,309 residents in state and county mental hospitals compared to 194,896 inmates in federal and state prisons.
° Jackson v. Indiana, 406 U.S. 415 (1972) .

27 Pennsylvania and Hawaii actually permit the person to be confined without a hearing until he himself protests.

That drug-dependent persons may not be held criminally responsible for consumption-related conduct does not mean that the criminal justice system has no role in the treatment process. See the Commission's recommendation regarding the possession penalty on pages 273-74 and regarding treatment and rehabilitation on pages 338-42.

2' The issue comes into even clearer focus when we consider that persons who are dependent on other substances like barbiturates do not commit crimes to obtain money to finance their habit ; yet most civil commitment laws include such persons as well. Nor is there a substantial proclivity to property crime among persons who are physically as well as psychologically dependent on alcohol since their drug is legally available and relatively inexpensive.

"At best, it is possible to construct only a contingent emergency rationale for a limited preventive intervention. It could be argued that under existing social circumstances, the combination of a prohibitory policy toward availability, an identifiable population at risk and an apparent increase in the incidence of dependence would justify temporary preventive measures. The status of drug dependence together with the availability of treatment services would justify intervention on a class basis to prevent the public health problem from becoming more serious and to keep it contained. Under this theory, behavioral incapacitation would not have to be shown on an individual case basis, since the intervention is status-related. However, the nature of the control asserted would have to be as unrestrictive as possible, maximizing use of ambulatory modalities, and treatment would have to be provided. Full adoption of the contagion analogy and the technique of removal and quarantine would not be constitutionally permissible. The emergency rationale could not be perpetuated beyond the life of the "epidemic."

31 The Uniform Controlled Substances Act does not provide for expungement of the criminal record.

' See discussion relating to emergency care in the Treatment and Rehabilitation section of this Chapter.