United States v. Moore, 486 F.2d 1139 (D.C. Cir. 1973), was a case heard by the United States Court of Appeals for the District of Columbia Circuit in which the Court ruled that narcotics addicts are not protected from prosecution for narcotics possession. Police officers investigating a drug trafficking ring found the defendant, Raymond Moore, in a hotel room with heroin capsules in his pocket; he was charged and convicted of narcotics possession. Moore claimed at trial and on appeal that his addiction to heroin forced him to possess and use drugs. He argued that because he did not have the free will to keep himself from possessing drugs, he should not be held criminally responsible.[a]
Moore's defense in the D.C. Circuit was based on three legal foundations. First, he argued that when the U.S. Congress made possession of narcotics a crime, they did not intend for the law to apply to narcotics addicts. Second, he argued that narcotics addicts are protected by the common law principle of mens rea (meaning a "guilty mind"), which generally requires the government to prove that a person had the free will to commit a crime before they can be found guilty of it.[b] Third, he argued that the U.S. Supreme Court's ruling in Robinson v. California – in which the Court struck down a state law that made it illegal to be a narcotics addict, citing the Eighth Amendment – would also prevent a narcotics addict from being convicted of possession. The government argued in return that Congress never intended to create a defense to drug possession based on addiction and mens rea, and that Robinson did not apply to this case.
The D.C. Circuit upheld Moore's conviction, refusing to create an addiction-based defense to narcotics possession. The Court's ruling was made per curiam, meaning that no one judge wrote for the majority, but judges Malcolm Richard Wilkey and Harold Leventhal wrote separate concurring opinions that laid out the majority's reasoning. Wilkey and Leventhal doubted that addicts physically cannot keep themselves from taking drugs and worried that the defense could potentially apply to crimes more serious than possession, or lead people to fake addiction. They also rejected Moore's interpretations of Robinson and Congress's intent. Judge J. Skelly Wright wrote the main dissent, supporting all of Moore's legal claims and arguing even further that the justice system accomplishes nothing by imprisoning an addict for possession.[c] He also wrote that the practical problems of an addiction defense would also apply to the insanity defense, which has safeguards and limitations to prevent abuse.
Moore's case was remanded to the lower court to reconsider his sentencing; the Supreme Court denied a petition to hear the case later that year. Legal commentators wrote that the decision mainly solidified the split over the proposed addiction defense in the courts and noted that a defense that only applied to possession would not have helped Moore's long prior record of convictions and imprisonment because of his heroin addiction.
Facts
On January 19, 1971, police officers searched a hotel room in Washington, D.C., as part of an investigation into a heroin smuggling operation. In the hotel room was drug paraphernalia and a man named Raymond Moore, who had 50 heroin capsules in his pocket. Moore was arrested and charged with four counts of violating the Harrison Narcotics Tax Act and the Jones–Miller Act, which, among other offenses, make it illegal for a person to possess heroin. Moore claimed to be a heroin addict who only took enough heroin to satisfy his addiction.[2]
Moore asked the court to dismiss the charges against him, arguing that since he was addicted to heroin but did not sell or distribute to others,[d] he should be exempt from the charges on two grounds: first, that addicts lack the mens rea ("guilty mind") to be held criminally responsible, and second, that enforcing the law against addicts would be in violation of the Eighth Amendment. The court refused. It also suppressed testimony from a psychiatrist who said that Moore had been an addict for over 25 years, and could not control his urge to take heroin, because the court ruled that addiction is not a defense to heroin possession. The jury convicted Moore; the court did not refer him for treatment under the Narcotics Addict Rehabilitation Act, sentencing him instead to a total of six years in prison.[e] Moore appealed to the D.C. Circuit Court of Appeals.[6]
Medical and legal experts have long debated whether, and to what extent, a defendant's addiction should excuse them from criminal responsibility for their actions. Richard C. Boldt, writing in the University of Pennsylvania Law Review, explains the debate through the lens of free will and determinism; according to Boldt, the medical field tends to take a determinist view in which the same set of conditions will lead to the same outcome every time, while the legal system is built on the presumption that people can control their actions. While loss-of-control defenses do exist under the law, Boldt argues that those are separated from addiction in the legal context because addicts are treated as having the "opportunity and capacity for reflection".[7] Elaine M. Chiu, writing in the Buffalo Criminal Law Review, connects the debate to the American public's attitudes on whether criminal punishment should reflect utilitarian or retributive values.[8]
According to Boldt, medical research has for the most part workably defined addiction as a disease, although there is some fuzziness over terminology.[a] The World Health Organization and American Psychiatric Association have recognized addiction as such since the 1950s.[9] While there were still major open questions at the time of Moore and afterward – particularly on who is vulnerable to developing alcoholism – research on alcoholism has documented how addicts develop an increasingly high alcohol tolerance, as well as withdrawal symptoms if they stop using.[10] Some experts also point to an informal observation called "alcoholic denial", which is a tendency of alcoholics to deny that they have a problem.[11] These defining symptoms, according to the literature, tend to make alcoholics completely or mostly unable to control their drinking; these tendencies present and work similarly in cases of narcotics addiction.[12] Judge J. Skelly Wright, a dissenter in this case, observed that society generally agrees that addiction forces people to acquire and use drugs, and that addicts cannot overcome the urges from addiction on free will alone.[13]
Under U.S. common law, in order to convict someone of a crime, the government generally has to show that the accused had mens rea ("guilty mind"), which involves the accused having had the free will to commit the crime.[14][b] One example of a defense based on a lack of mens rea is the insanity defense, which generally excuses the accused of all criminal responsibility.[16] The D.C. Circuit ruled in Heard v. United States (1965) that addiction alone does not meet the legal definition of insanity; however, the Court also ruled en banc in Easter v. District of Columbia (1966) that alcoholism can be a defense against public intoxication because, despite not being a form of insanity, alcoholics still lack the free will necessary to keep themselves from committing that particular act.[17][c]
The addiction defense finds some amount of support in the legislative history of the acts criminalizing possession; the history does not endorse the defense, but it also does not rule it out. The acts were mainly intended to regulate acts around possession like importing and distributing narcotics, and possessing narcotics was viewed as strong evidence that some other illegal act had been committed. Since the act makes no mention of whether or not the law should apply purely to non-trafficking addicts, some argue that Congress never intended for the law to apply to them, but other argue that Congress never intended to create a specific exception for them, either.[18] The interplay between addiction and free will can also affect crimes other than drug possession – in fact, drug addicts are most often not charged with possession. Moore had not been convicted of possession once and still spent 13 years in prison on various charges related to his addiction before this case.[19]
Some legal scholars dispute the idea that addiction should be considered a disease, or else that loss of control or free will from addiction should excuse a person from criminal responsibility. One particularly vocal advocate of this idea was Herbert Fingarette, who argued that a behavior being a symptom of a disease does not automatically mean that the behavior should be considered involuntary.[20] Fingarette points to the many people who drink or use narcotics without developing an addiction, or who do develop an addiction but later stop, either on their own or with treatment.[21] He also argues that addiction's impact on alcohol and drug use is overstated, and that abuse is more often predicted by "widespread influence of social and psychological inducements" – in this view, drug and alcohol abuse are seen as a choice that can be made correctly with the right character.[22]
Robinson v. California
The U.S. Supreme Court, pictured in 1962
In Robinson v. California (1962), the Supreme Court struck down a law that made it illegal to be a narcotics addict, ruling that it violated the Eighth Amendment's protection against "cruel and unusual punishments".[23] However, the language of the decision made it unclear what exactly the Supreme Court was protecting; under one theory, the Court was protecting all acts that are compelled by addiction – including the possession of drugs – but under a narrower reading, the Court was only ruling against criminalizing the status of being an addict, simply requiring that there be an actus reus ("guilty act").[24]
Lower courts, met with addicts claiming protection from possession charges under Robinson, mainly endorsed the narrow view that Robinson only protected people from status crimes, but legal scholars and some appellate courts disagreed; the Fourth Circuit Court of Appeals interpreted Robinson broadly, ruling in Driver v. Hinnant (1966) that it protects alcoholics from being convicted of public intoxication.[25][f]
Looking to resolve the conflict, the Supreme Court upheld the conviction of an alcoholic for public intoxication in Powell v. Texas (1968) in a 5–4 vote, but they could not agree on a rationale; four justices upheld the conviction because they agreed with the narrow view that Robinson does not protect acts compelled by addiction.[26] They also were shy about creating substantive criminal law out of the Constitution, encouraging defendants to raise mens rea and necessity defenses in state courts.[27] Justice Byron White provided the fifth vote on a different rationale; he took the broad view that Robinson does protect acts compelled by addiction, but he argued that public intoxication is not compelled by alcoholism. The Court's failure to reach a consensus added complexity and confusion to the debate over Robinson, rather than clarifying it.[26] David Robinson Jr., who represented Texas before the Supreme Court in Powell v. Texas, argued in the American Journal of Criminal Law that if Powell had been decided differently, it would have "almost surely" changed the eventual outcome in Moore.[28]
Most courts taking up the issue after Powell followed the narrow interpretation,[29] but the D.C. Circuit disagreed with that trend in Watson v. United States (1970), a case similar to Moore in that it also involved an addict charged with heroin possession. Unlike most courts after Powell, the majority in the case wrote that Congress never intended for the heroin possession law to apply to addicts and that even if they did, narcotics addicts would be protected by Robinson, but that was not the focus of the decision – the case was decided on other grounds, making their holdings on Robinson and congressional intent obiter dicta ("said in passing"). Lower courts in D.C. could not agree whether the D.C. Circuit's holding on Robinson was binding.[30]
District of Columbia Circuit Court of Appeals
Moore, represented by future D.C. Circuit judge Patricia Wald,[31] argued that the court should allow addiction as a defense to possession on three grounds: first, that Congress never intended for the law to apply to addicts; second, that addicts do not have the free will to prevent them from committing the crime and do not have mens rea; and third, that Robinson v. California makes it unconstitutional to criminalize the status of addiction, and that possession is an unavoidable consequence of addiction. The government disputed all three of those points and raised some evidence that suggested that Moore was not a non-trafficking addict, meaning that the addiction defense would be useless to him anyway.[5]
The D.C. Circuit Court of Appeals voted 5–4 to uphold Moore's conviction in a per curiam opinion released on May 14, 1973; that was the only issue the Court formed a clear majority on.[32] The five in favor – judges Malcolm Richard Wilkey, George MacKinnon, and Roger Robb in one opinion and judges Harold Leventhal and Carl E. McGowan in another – doubted that drug use could be attributed solely to addiction and loss of control[33] and raised concerns about whether the defense would be manageable in practice.[34]
Wilkey argued in his concurring opinion that drug use should be seen as a failure of character; in his view, a person turns to drug use when their "strength of character" is not enough to overcome their cravings.[35] He wrote that a person's choice to use drugs rather than go through the "admittedly painful process of withdrawal" is one they can be blamed and held criminally responsible for.[36] Otherwise, he argued, the courts would be forced to excuse addicts who commit robbery for money to buy drugs, since those acts would be seen as coming from an even greater loss of self-control.[37] Wilkey also argued that a drug addict does have to willingly take drugs at least once before becoming addicted;[33] therefore, he said, every use after that is "the direct product of a freely willed illegal act".[36]
Leventhal, in his concurring opinion, wrote that courts might have a difficult time determining whether a given defendant is really an addict and not faking addiction to get out of drug charges.[34] This was a key distinction he drew between the proposed addiction defense and the already-existing duress and insanity defenses; for one of these defenses to be successful, Leventhal held, it should be "gross and verifiable" and linked to the conduct, in order to distinguish "those who can't" from "those who won't". Leventhal argued that duress is possible to prove or disprove because that loss of control comes from an identifiable third party, and that insanity is possible to prove or disprove because it can be documented based on a set of diagnostic criteria beyond just the narrow conduct that brought them to court. For addiction, Leventhal said, the only evidence of the disease is often the drug use itself, which creates a problem of circular reasoning. As such, he felt a judge or jury would not be able to reliably determine whether someone is responsible for their own drug use.[38]
On the issue of precedent, Wilkey and Leventhal both considered Robinson and Powell to not apply to the case, taking the narrow view that they prohibited only status crimes. Wilkey acknowledged the confusion coming from the Court's lack of a majority in Powell, but felt the Supreme Court should be the one to clarify their intent.[39] Leventhal disagreed that White's opinion in Powell endorsed the broad view of Robinson, arguing that even though he did suggest that Robinson would protect an addict from being charged with possession, his overall approach was still closer the narrow view.[40] The D.C. Circuit's previous decision in Watson was held to not be binding on the Court,[41] and the majority felt that Congress's trend of giving judges discretion to sentence convicts to rehabilitation indicated a Congressional intent to be sensitive towards addiction without completely removing criminal responsibility.[42]
MacKinnon and Robb filed separate concurring opinions voting to uphold the conviction and the sentences.[43] Leventhal argued in his opinion to remand the sentence to the trial court so that the court could consider a lighter sentence under the Narcotics Addict Rehabilitation Act; Wilkey disagreed, but without a majority to uphold the sentence, the sentence was remanded to the trial court.[44] The Supreme Court denied a petition to take the case on October 23, 1973; Justice William O. Douglas dissented.[45]
The main dissent was written by Judge J. Skelly Wright and joined by judges David L. Bazelon, Edward Allen Tamm, and Spottswood William Robinson III. Wright would have accepted Moore's arguments to create an addiction defense based on mens rea and Robinson. On the issue of mens rea, he argued that standard practice in criminal law is to not hold someone criminally responsible for something they had no control over. On the issue of Robinson, he pointed to White's concurrence and the four justices in dissent on Powell, all of whom interpreted Robinson in a way that would create some kind of addiction defense. Wright even would have extended the defense to crimes other than possession, but felt that Congress's intent in passing anti-narcotics laws and the Supreme Court's ruling in Powell ruled that out.[46] In response to the judges who worried that people accused of narcotics possession could fake being an addict, Wright responded that a jury has to make a similar judgment call when a defendant claims legal insanity, and that the jury would be provided with as much evidence as need to decide whether or not someone really is an addict.[47]
More fundamentally than the issues of mens rea, Robinson, or congressional intent, Wright argued that sending an addict to prison for possession went against the defining goals of imprisonment – to punish an offender, to restrain them from committing the same crime immediately, to deter them from committing the same crime in the future, and to rehabilitate them into society after their sentence has been served. Wright argued that since addiction forces addicts to take drugs, the threat of jail would have no deterring effect on an addict, and that the justice system cannot punish people for things outside of their control. While he did acknowledge that prison does restrain an addict from using drugs, he wrote that confinement to a drug rehabilitation facility under civil law would accomplish the same thing and do a better job of rehabilitating the addict.[48]
David L. Bazelon wrote separately to concur in part and dissent in part.[49] Addressing the concern raised by Wilkey that an addiction defense would have to extend beyond possession to any act compelled by an addiction, like a bank robbery for drug money, Bazelon wrote that an addiction defense should exist and that Wilkey's concern was correct; he argued for a sweeping addiction defense that protects a person from being punished for anything their addiction forces them to do.[50] While Bazelon acknowledged that his position had practical difficulties, he still felt that limiting Robinson only to possession was logically untenable.[49] He was the only judge to hold that Congress might have intended to protect acts other than possession in their lawmaking.[51]
Reaction
Gary W. Barrick, writing in the American Criminal Law Review, commented that Moore did not appear to settle the issues raised by Robinson and Powell, only confirming the broader split among judges' opinions on an addiction defense. He predicted that Moore might spark some new interest in the courts on whether mens rea and Robinson could support an addiction defense for non-trafficking addicts.[52] Despite Moore's narrow split, other courts have generally adopted reasoning similar to Wilkey's plurality opinion.[28] David Robinson Jr. wrote in the American Journal of Criminal Law that had Moore gone the other way, it could have interfered with the enforcement of drug sale and possession laws.[28]
Richard Boldt also agreed, pointing to Wright's dissent as a "powerful argument" for the addiction defense in the University of Pennsylvania Law Review. He approvingly noted the large amount of medical evidence cited by Wright to show that addiction removes the ability for self-control;[53] however, he criticized Wright's argument for leaving no room for someone to suffer from addiction but still make a willing choice in addition to use drugs.[54] Alan R. Sankin, writing in the University of Toledo Law Review, agreed with the dissent on some of the substantive issues, arguing that "there is a basic logic which would excuse the addict from criminal responsibility for any act in which he lacked substantial capacity to conform his conduct to the requirement of the law."[19] On the issue of congressional intent, Sankin argued that Congress not having specified whether the possession laws apply to addicts does not mean that Congress intended for the law to apply to them, only that the issue was left to the courts to resolve.[55]
Boldt criticizes Wilkey's "strength of character" argument as vague, writing that it does not sufficiently define the term, and criticizes it as inconsistent. Under Wilkey's formulation, Boldt writes, two people with identical strength of character are treated differently if one has strong enough cravings to force them to use drugs and the other does not – the first person's punishment turns on the strength of their craving, something they cannot control.[56] Boldt also disagreed with Leventhal's concerns about whether addiction can be reliably diagnosed, citing the medical evidence he presented as background in the article; however, he acknowledges that many other legal scholars agree with Leventhal.[20] Elaine M. Chiu, writing in the Buffalo Criminal Law Review, agreed with Leventhal, arguing that addiction is not easily verifiable as a condition.[57]
Sankin wrote that, practically speaking, it would be difficult to create an addiction defense for crimes other than possession. While Sankin acknowledged that extending an addiction defense beyond possession would be difficult to put in practice,[19] he argued that if a court were willing to create an addiction defense in order to help reduce drug addiction, it should be willing to maximize the effect of the defense by diverting as many people to civil treatment as possible.[55] Boldt echoed Wilkey's criticism of Wright's argument, arguing that limiting the addiction defense to possession was arbitrary and logically inconsistent.[54]
12This case touches on biomedical topics, like the classification and nature of addiction. This article's coverage of those topics is largely shaped by the perspectives of contemporaneous legal scholars, and should not be taken to reflect contemporary medical understanding.
12In other contexts, legal sources interpret voluntariness to be a part of the actus reus (guilty act); under that framework, the mens rea is only the perpetrator's mental state at the time they committed the act.[15]
12The scope of this case only concerns criminal charges and punishment; if a court ruled that addiction is a defense to the criminal charge of possession, the government could still involuntarily confine an addict to a drug rehabilitation facility under civil law.[1]
↑Moore being a non-trafficking addict was, to some extent, a legal fiction; some evidence in this case did point to him being involved in trafficking, and in over 25 years of narcotics addiction, he spent 13 years in prison due to 14 different criminal convictions, none of which were for drug possession. For the purposes of the legal questions here, though, Moore was treated as a non-trafficking addict.[3]
↑Gary W. Barrick writes that Moore was convicted on all four counts;[4] Alan R. Sankin writes that he was sentenced to "concurrent terms of two to six years on one violation and six years for the other".[5]
↑The facts of Driver are similar to the facts of Easter v. District of Columbia, and both courts reached the same conclusion; but in Easter, the D.C. Circuit ruled based on the defendant's mens rea, which is a common law principle. Driver cited Robinson, which is based on the Eighth Amendment's prohibition against "cruel and unusual punishments".
Barrick, Gary W. (1974). "Narcotic addict's lack of mens rea not a defense to conviction for illegal possession of narcotics – United States v. Moore". American Criminal Law Review. 12 (1): 219–230.
Sankin, Alan R. (1974). "Criminal law – the addiction defense: criminal responsibility of an addict charged with possession – United States v. Moore". University of Toledo Law Review. 5 (2): 388–403.
Brownstein, Alan; Dau, Paul (July 1992). "The constitutional morality of abortion". Boston College Law Review. 33 (4): 689–782.
Robinson, David Jr. (Summer 1999). "Powell v. Texas: The case of the intoxicated shoeshine man; some reflections a generation later by a participant". American Journal of Criminal Law. 26 (3): 401–454.
United States v. Moore,486F.2d1139(D.C. Cir.1973).
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