Drugs and Crime: Behavioral Aspects

It would appear that American drug policy originated from two competing models of addiction. As noted above, the "criminal model" viewed addiction as one more of the many antisocial behaviors manifested by the growing classes of predatory and dangerous criminals. But there also was the "medical model," in which addiction was considered to be a chronic and relapsing disease that should be addressed in the manner of other physical disorders—by the medical and other healing professions.

Many commentators have viewed the Harrison Act of 1914 as the ultimate triumph of the criminal model over the medical view, and as such that single piece of legislation served to shape the direction of drug policy for years to come and generations yet unborn. However, history suggests a somewhat alternative story. Briefly, the Harrison Act required all people who imported, manufactured, produced, compounded, sold, dispensed, or otherwise distributed cocaine and opiate drugs to register with the Treasury Department, pay special taxes, and keep records of all transactions. As such, it was a revenue code designed to exercise some measure of public control over narcotics and other drugs. Certain provisions of the Harrison Act permitted physicians to prescribe, dispense, or administer narcotics to their patients for "legitimate medical purposes" and "in the course of professional practice." But how these two phrases were to be interpreted was another matter entirely.

On the one hand, the medical establishment held that addiction was a disease and that addicts were patients to whom drugs could be prescribed to alleviate the distress of withdrawal. On the other hand, the Treasury Department interpreted the Harrison Act to mean that a doctor's prescription for an addict was unlawful. The United States Supreme Court quickly laid the controversy to rest. In Webb v. U.S., 249 U.S. 96 (1919), the Court held that it was not legal for a physician to prescribe narcotic drugs to an addict-patient for the purpose of maintaining his or her use and comfort. U.S. v. Behrman, 258 U.S. 280 (1922), went one step further by declaring that a narcotic prescription for an addict was unlawful, even if the drugs were prescribed as part of a "cure program." The impact of these decisions combined to make it almost impossible for addicts to obtain drugs legally. In 1925 the Supreme Court emphatically reversed itself in Linder v. U.S., 268 U.S. 5 (1925), disavowing the Behrman opinion and holding that addicts were entitled to medical care like other patients, but the ruling had almost no effect. By that time, physicians were unwilling to treat addicts under any circumstances, and well-developed illegal drug markets were catering to the needs of the addict population.

In retrospect, numerous commentators on the history of drug use in the United States have argued that the Harrison Act snatched addicts from legitimate society and forced them into the underworld. As attorney Rufus King, a well-known chronicler of American narcotics legislation, once described it, "Exit the addict-patient, enter the addict-criminal" (p. 22). However, the Harrison Act did not instantly create a criminal class. Without question, at the beginning of the twentieth century, most users of narcotics were members of legitimate society. In fact, the majority had first encountered the effects of narcotics through their family physician or local pharmacist or grocer. Over-the-counter patent medicines and "home remedies" containing opium, morphine, and even heroin and cocaine had been available for years, and some even for decades. Yet long before the Harrison Act had been passed, or had even been conceived, there were indications that this population of users had begun to shrink. Agitation had existed in both the medical and religious communities against the haphazard use of narcotics, defining much of it as a moral disease. For many, the sheer force of social stigma and pressure served to alter their use of drugs. Similarly, the decline of the patent-medicine industry after the passage of the Pure Food and Drug Act in 1906 was believed to have substantially reduced the number of narcotics and cocaine users. Moreover, by 1912, most state governments had enacted legislative controls over the dispensing and sales of narcotics. Thus, it is plausible to assert that the size of the drug-using population had started to decline years before the Harrison Act had become the subject of Supreme Court interpretation. In addition, there is considerable evidence that the Harrison Act was the culmination of a broad, popularly and professionally based social reform movement. It was not governmental intrusion on an unwilling citizenry, but rather a reflection of then-current progressive social reform.

In addition, there is historical evidence that a well-developed subculture of criminal addicts had emerged many years before the passage of the Harrison Act. The opium den, "dive," or "joint," for example, was not only a place for smoking, but a meeting place, a sanctuary. For members of the underworld it was a place to gather in relative safety, to enjoy a smoke (of opium, hashish, or tobacco) with friends and associates. The autobiographies of pickpockets and other professional thieves from generations ago note that by the turn of the twentieth century, opium, morphine, heroin, and cocaine were in widespread use by criminals of all manner. And it might also be pointed out that the first jail-based program for the treatment of heroin addiction was established in the infamous New York Tombs (Manhattan City Prison), two years before the Harrison Act went into effect. At the time, it was estimated that some 5 percent of the city's arrestees were addicted to narcotics.

Thus, while the Harrison Act contributed to the criminalization of addiction, subcultures of criminal addicts had been accumulating for decades before its passage. Nevertheless, the Harrison Act was the first piece of federal antidrug legislation, and it carried with it the potential for applying the criminal label to addiction in a broader sense. Not only was the possession of the narcotic drugs interpreted as a criminal offense, but the risk of arrest was also expanded in that the drugs became available only through nonlegal sources. During the period shortly after the new drug law was enacted, it was widely held that 25 percent or all crimes were committed by addicts, and that such offenses were due to the alleged "maddening" effects of drugs.