C.A. 4th Cir. Reported below: 478 F.2d 1400.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.
Petitioner was convicted of two counts of distributing heroin in violation of 21 U.S.C. § 841(a) (1); he later pleaded guilty to a third count. After petitioner's plea on the third count, the District Court sentenced him to concurrent 15-year terms on the three counts, recommending that he be given drug addiction treatment at the Federal Youth Center at Ashland, Kentucky.
It refused, however, to sentence petitioner under the provisions of the Narcotic Addict Rehabilitation Act of 1966 (hereafter NARA), 18 U.S.C. § 4251 et seq. Petitioner claims that in the circumstances of this case the trial judge abused his discretion in refusing to sentence him under the NARA.
The three charges against petitioner grew out of three transactions in which he acted as a middleman, purchasing heroin from two different wholesalers for a federal agent. Petitioner received only a total of $15 from the three sales, which was used to buy heroin for his own personal use. Petitioner also retained some of the drug he had purchased for his own personal use.
The District Court refused to sentence petitioner under the NARA with the possibility of early release to the community because he had "sold" heroin, and was not just a user.*fn1
Under 18 U.S.C. § 4251, individuals are generally not "eligible" for NARA sentencing if they have sold narcotics; Congress, however, created an express exception for those who sold primarily to support their own addiction. Section 4252, on which the Court of Appeals relied in affirming the District Court, provides that if a court believes an eligible offender to be an addict, it "may" place him in the custody of the Attorney General to determine whether he is an addict likely to be rehabilitated through treatment. Section 4253 provides that if a court, after this study, finds that an offender is an addict and is likely to be rehabilitated, it "shall" sentence him under the NARA, with exceptions not here relevant.
An individual sentenced under the NARA could be released after six months upon a report from the Attorney General and certification from the Surgeon General that he has made sufficient progress to warrant his release under supervision; he can also be held up to 10 years if such progress is not made. 18 U.S.C. §§ 4254, 4253. After release, § 4255 provides for a program of aftercare in the community. This aftercare, consisting of psychiatric, medical, and vocational support, was considered the crucial contribution of the NARA to drug-addition treatment.*fn2 It is recognized that without such ongoing aftercare, the overwhelming majority of addicts return to their habits shortly after release from prison or voluntary drug-addiction programs.*fn3
Section 4252 undoubtedly preserves the discretion of the sentencing judge to refuse to apply the provisions
of the NARA even to addicts who are "eligible" under § 4251; the provisions of the NARA are available as an alternative and are not mandatory. See H.R. ...