The Drug Hang Up, America's Fifty-Year Folly
by Rufus King
Chapter 6
Dr. Behrman, Dr. Linder, and the High Court
THE EXEMPTION which Congress wrote into the Harrison Act for medical practitioners
has already been set out. So long as doctors were shielded by this clear provision, police
authorities could not get at the addict who turned to them for help, while, on the other
side of the coin, if addicts were able to find relief at the hands of doctors or public-health
authorities, the illicit trafficker would have a scant market and little to keep his prices up.
Thus cops and pushers found themselves identically interested in squeezing the addict by
cutting him off from possible help as a patient, and have maintained a de facto
partnership ever since.
The federal Act, as was to be expected with a measure so innovative, gave rise to
questions which needed to be resolved by court tests. But especially in testing criminal
sanctions, which was what the agents wanted at this time, the government has a degree of
control because it can pick and choose in initiating prosecutions that are likely to be
appealed and thus become ruling cases. This was clearly an important factor in what
happened with the doctors. Recall the astonishing number of 47,800 reported federal
violations by registered persons where the charges had been used merely as threats and
then dropped. The first cases actually prosecuted were selected by waiting for offenders
with medical degrees but whose abuses in the administration of drugs were most flagrant
and outrageous, that is, the worst of the "scrip doctors."
The initial interpretation was given by the Supreme Court on the same day in 1919 that
the justices handed down their divided opinion (five to four) affirming the
constitutionality of the Act itself. The constitutional case was United States v. Doremus,
in which the Court found the tax to be valid even though obviously imposed for purposes
other than the raising of revenue. The doctor case was Webb v. United States.
It was clear from the record that Dr. Webb had been making no effort to practice his
profession conscientiously with respect to addicts who applied to him; on the contrary, he
simply sold prescriptions by the thousands, indiscriminately to all comers, for fifty cents
apiece. On this state of facts, the Attorney General had taken the unusual procedural step
of posing a certified question to the High Court (perhaps to make quite sure, among other
things, that the issue would get there first in Dr. Webb's case rather than via the appeal of
some less culpable offender). The certified question was:
If a practicing and registered physician issues an order for morphine to an habitual user
thereof, the order not being issued by him in the course of professional treatment in the
attempted cure of the habit, but being issued for the purpose of providing the user with
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morphine sufficient to keep him comfortable by maintaining his custom use, is such order
a physician's prescription under exception (b) of s.2?
Now note how this question is itself a misrepresentation: by no stretch could what Dr.
Webb had been doing be fairly characterized as a prescription to a patient "to keep him
comfortable by maintaining his customary use." But the Court, doubtless outraged by the
underlying facts and responding to popular hysteria which was then at crescendo,
answered: "To call such order for the use of morphine a physician's prescription would be
so plain a perversion of meaning that no discussion of the subject is required."
The next doctor case had the additional advantage, from the government's viewpoint, of
involving a Chinese, Dr. Jin Fuey Moy, thus capitalizing on the then-current association
of all the evils of the drug traffic with the mysterious Orient. Dr. Jin was also an out-andout peddler, having given prescriptions for morphine by the gram to anyone who made
application, at the rate of a dollar per gram. Upholding his conviction in an opinion
rendered in 1920, the Court said of the crucial exempting language:
Manifestly the phrases "to a patient" and "in the course of his professional practice only"
are intended to confine the immunity of a registers physician, in dispensing the narcotic
drugs mentioned in the act, strictly within the appropriate bounds of a physician's
professional practice, and not to extend it to include a sale to a dealer or a distribution
intended to cater to the appetite or satisfy the craving of one addicted to the use of the
drug.
And now the stage was set for the trick. The doctor selected, likewise a flagrant violator,
was named Behrman, a name made dubiously famous in immediately succeeding years
because, after the government pulled it off, medical doctors were rounded up in large
numbers by means of what came to be known as the "Behrman indictment." And that is
were the trick lay: though Behrman was proved to have given a known addict, at one time
for use as the addict saw fit, prescriptions for 150 grains of heroin, 360 grams of
morphine, and 210 grams of cocaine (which the court reckoned world be enough for
about 4,000 doses), the indictment against him was drawn so as to omit any accusation of
bad faith, and to recite, on the contrary, that this "treatment was for the purpose of curing
the addict.
Thus, the validity of the indictment was made to depend on a holding that prescribing
drugs for an addict was a crime regardless of the physician's intent in the matter. If it
were wrong for Dr. Behrman to give such great quantities while really intending to deal
with the symptoms of addiction in the course of an attempted cure, as the charge alleged,
it would be wrong for the most conscientious doctor to give any amount of any addicting
drug for the same purpose.
The United States District Court in which Behrman was arraigned sustained a demurrer,
which meant, in effect, that the District Judge declined to be taken in by any such
nonsense and found the indictment faulty. But the government invoked a special statutory
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right to appeal directly to the Supreme Court. And there the District judge was reversed
and the government prevailed.
It is noteworthy, in passing, that in this maneuver, as sometimes elsewhere, the American
Medical Association seems to have been lined up on the side of the enforcement
authorities. In 1921, besides throwing its weight on the wrong side of the "ambulatory"
argument and, by implication, sponsoring intemperate attacks on drug addicts as
malefactors rather than patients, through a special committee the AMA called on
Department of justice officials in Washington to confer "as to the practicability of
obtaining decisions from the United States Supreme Court which will remove existing
uncertainties as to the meaning and application of the provisions of the Harrison law."
That might have been all right if the Association had held out for honest test cases fairly
brought. But when Solicitor General Beck exhorted the Court to expedite its
consideration of the Behrman case, he was authorized to invoke the authority of the
AMA as calling for this particular clarification, and thus by implication supporting the
government's position.
The Behrman decision was not unanimous-and in that far-off day divisions among the
justices were exceptional and not, as recently, the rule. (Remember, in the same
connection, that the Act itself had been upheld in Doremus only by a five-to-four divided
court.)
The majority in Behrman detailed the flagrant facts, clearly relying upon them to justify
its opinion. The dissenting minority consisted of three: Justice Holmes, who wrote for
them, and two other heavyweights, Justices Brandeis and McReynolds. The dissent is a
good example of Holmes's terse genius. In its entirety it reads:
It seems to me wrong to construe the statute as creating a crime in this way without a
word of warning. Of course the facts alleged suggest an indictment in a different form,
but the Government preferred to trust to a strained interpretation of the law rather than to
the finding of a jury upon the facts. I think the judgment should be affirmed.
The Behrman decision was handed down March 27, 1922, whereupon the Narcotics
Division launched a reign of terror, threatening doctors who had anything further to do
with drug addicts, and sending a goodly number of recalcitrant practitioners off to prison
with the Behrman formula. Any prescribing of drugs for an addict, unless he had some
other ailment that called for treatment with narcotics, was likely to mean trouble with the
Treasury agents. The addict-patient vanished; the addict-criminal emerged in his place.
And so instead of policing a small domain of petty stamp-tax chiselers, Treasury was able
to expand its drug-law enforcement until the prison population began to swell with
thousands of felony drug convictions each year.
Far more than in the parallel campaign against liquor, the typical victim of this war on
drug users often tended to be a respected member of his community until the T-men
caught him. In cases that went all the way to trial, the ratio between arrests and
convictions remained notably low, indicating abusive use of the indictment processes: in
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1420, 3,477 arrests produced 908 convictions; in 1921, 4,014 arrests produced 1,583; at
the peak, in 1925, 10,297 federal arrests produced 5,600 convictions. And while we are
recording figures, note another surprising one: in a 1928 census of federal prisoners (in
federal institutions), in the very heyday of Prohibition, there were two prisoners serving
sentences for narcotic offenses for every one incarcerated for liquor-law violations. Drug
offenders constituted one-third of the total federal prison population (2,529 out of 7,138;
the numbers are small because many federal convicts were then farmed out to state
institutions, but the ratio is typical).
Reacting to abusive practices by Treasury "special employees," a prominent physician
wrote in 1922:
There is a criminal element in the ranks of the "addict" that would be criminals in the
church or in the Masonic fraternity or elsewhere, and the courts of justice should make
searching investigations into the indictments brought against physicians or others for
alleged violations of the narcotic drug act when the charges are based on the testimony of
this element. Give any one of them into my hands for 48 hours, and I can make him
swear in any court, with a good face, too, that he had just witnessed the battleship Maine
riding at anchor at the corner of State and Adams, with Washington at the helm, "Bob"
Evans lashed in the rigging, and Woodrow Wilson in the hold stoking. A promise of a
continuation of the drug, or a threat to discontinue it, is sufficient. Many physicians in the
United States have been dealt with on just such unreliable evidence.
But returning to the mainstream of our narrative, the Behrman ruling soon found a
challenger. In 1924 Dr. Charles 0. Linder, completing a lifetime of honorable practice in
Spokane, Washington, was induced by one of Treasury's addict stool-pigeons to write a
prescription for four tablets of cocaine and morphine. (At the trial the doctor claimed she
told him she was in great pain from a stomach ailment, and that her regular physician was
unavailable; she swore she had disclosed to him that she was a drug addict.) Several
Treasury agents thereupon descended on his office on a Saturday afternoon, stamped
through his waiting room crowded with patients, and broke in on him in the midst of a
consultation. After a rough-and-tumble search of the premises, they dragged him off to
jail. He was indicted in the Behrman formula, convicted, sentenced, and lost his
intermediate appeal to the Circuit Court. But Dr. Linder persisted. In the Supreme Court
his conviction was reversed and he was completely vindicated.
The opinion in Linder v. United States (April 13, 1925), unanimous this time, was written
by justice McReynolds, one of the dissenters three years earlier in Behrman. It sets forth
at length what became the controlling interpretation of the federal law:
The enactment under consideration levies a tax, upheld by this Court, upon every person
who imports, manufactures, produces, compounds, sells, deals in, dispenses or gives
away opium or coca leaves or derivatives therefrom, and may regulate medical practice in
the States only so far as reasonably appropriate for or merely incidental to its
enforcement. It says nothing of "addicts" and does not undertake to prescribe methods for
their medical treatment. They are diseased and proper subjects for such treatment, and we
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cannot possibly conclude that a physician acted improperly or unwisely or for other than
medical purposes solely because he has dispensed to one of them, in the ordinary course
and in good faith, four small tablets of morphine or cocaine for relief of conditions
incident to addiction.
In the Linder opinion, moreover, the Court returned to, and carefully circumscribed, its
decisions in Webb and Jin Fuey Moy, pointing out that both earlier cases must be
narrowly limited in application to the facts which were involved in each. Then it
dismissed the Behrman case (and blasted the Behrman indictment) in the following
strong disclaimer:
This opinion related to definitely alleged facts and must be so understood. . . . The
opinion cannot be accepted as authority for holding that a physician who acts bona fide
and according to fair medical standards, may never give an addict moderate amounts of
drugs for self-administration in order to relieve the conditions incident to addiction.
Enforcement of the tax demands no such drastic rule, and if the Act had such scope it
would certainly encounter grave constitutional difficulties.
Note that the Court extends itself even to the extreme position of endorsing the giving of
"drugs for self-administration,' as well as drugs administered under the control of a
physician. This is vigorous language, for a pronouncement from the High Court, leaving
no doubt that further assaults upon the medical profession in the Behrman formula were
intended to be denounced.
Yet by 1925 strong language from the Court was not enough to change the pattern. The
trick had worked. The medical profession had withdrawn completely from the field, and
the doctors never permitted the addict to reapproach them. The peddler had moved in and
taken over, and his profits soared as enforcement efforts kept reducing his competition
and driving his customers ever deeper into the underworld, where they were easy prey.
Even in the 1960's, four decades after Linder, Narcotics Bureau regulations advising
doctors and pharmacists of their rights in dealing with addicts continued to ignore what
the Supreme Court had so plainly said, and still relied on the discredited language of
Webb v. United States:
An order purporting to be a prescription issued to an addict or habitual user of narcotics,
not in the course of professional treatment but for the purpose of providing the user with
narcotics sufficient to keep him comfortable by maintaining his customary use, is not a
prescription within the meaning or intent of the Act; and the person filling such an order,
as well as the person issuing it, may be charged with violation of the law.
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