Dr. Behrman, Dr. Linder, and the High Court

The Drug Hang Up, America's Fifty-Year Folly

by Rufus King

Chapter 6

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 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-and-out 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 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 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 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.