(concurring in part and dissenting in part):
The majority opinion, it seems to me, stands for the proposition that when the issue is next before us, we will be compelled to hold that those provisions of the federal narcotics laws involved in this ease do not apply to a narcotics addict, not trafficking in narcotics, who has purchased or otherwise received narcotics not in the original stamped package,1 who has imported narcotics contrary to law,2 or who has received, concealed, purchased, or facilitated the transportution or concealment of narcotics imported contrary to law,3 so long as the narcotics involved are for the addict’s own use.4 Likewise, today’s decision would appear to compel the conclusion that, when these acts are engaged in even by an addict who trafficks in narcotics, Robinson v. California5 makes unavailing any attempt to apply these statutes to him.6 The majority, however, refuses to apply these conclusions to appellant on his present appeal, because his court-appointed counsel did not, in its view, adequately raise the matter below. For like reasons it refuses to pass on his suggestion that we undertake in the present case a reformulation of the insanity defense, in light of Robinson and Powell v. Texas,7 to take into account the special problems of that defense when a narcotics addict is prosecuted for unlawfully obtaining the narcotics necessary to support his habit. Finally, the majority concludes that the Narcotic Addict Rehabilitation *459Act of 19668 is unconstitutional insofar as it seeks to deny consideration for rehabilitative disposition under the Act to addicts twice convicted of the importation or sale of narcotics prior to the passage of the Act.9
I concur in that holding, as set forth in Part IV of today’s majority opinion. For the reasons hereafter set forth, however, I believe that this case is an appropriate vehicle for reexamination by the court en banc of the relationship between drug addiction and our developing doctrine of criminal responsibility. Unless the case may be disposed of on such a basis, however, I think we are compelled to conclude that appellant has adequately raised his claims that the government did not properly bring him within the reach of the statute; or that, if it did, the Constitution precludes his conviction on the present record. On this ground, accordingly, I would apply the majority’s reasoning today to appellant and remand this case to the District Court with instructions to enter judgments of acquittal.
I.
Writing for four members of the Court in Powell v. Texas,10 Mr. Justice Marshall emphasized that the
doctrines of actus reus, mens rea, insanity, mistake, justification and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.
392 U.S. at 536, 88 S.Ct. at 2156. Four other Justices in that case would have reversed Powell’s conviction for public intoxication on Eighth Amendment grounds.11 But no member of that Court expressed the slightest disagreement with what I had thought to be the self-evident proposition that the Eighth Amendment’s proscription of cruel and unusual punishments should provide the floor rather than the ceiling for the development of doctrines of criminal responsibility. In my view, Powell should be read not as a bar, but as an exhortation toward further experiment with common-law doctrines of criminal responsibility.
The suggestion that this case would be an appropriate vehicle for reexamination of our tests of criminal responsibility in the context of a narcotics addict charged only with obtaining narcotics for his own use was made for the first time in the brief amicus auriae filed just prior to our rehearing this case en banc. The majority rejects the suggestion primarily because it finds “problems in this approach to the extent that it is derived, as it largely purports to be, from the Eighth Amendment.” (emphasis added). I have already indicated why I believe that the teaching of Powell is that the standards of accountability for criminal conduct should be developed, in the main, independently of the Eighth Amendment. And nowhere in the argument of amicus, urging upon us a modified test of criminal responsibility, do I find the suggestion that such a test must be derived from the Eighth Amendment. Rather, amicus would have us derive such a test from traditional doctrines of duress and involuntary actions. See Brief Amicus Curiae at 30-40.12 Accordingly, the majority in this *460ease is rejecting not the argument of amicus, but merely a straw man of its own devising.
Nor can I say with anything approaching the necessary confidence that our insanity defense, under Durham13 and McDonald,14 provides a satisfactory solution.15 Narcotics addiction, of course, may be symptomatic of an underlying mental illness that will relieve the actor of criminal responsibility for the crime charged.16 Continued addiction may itself result in a deterioration of mental processes of such magnitude that the actor’s conduct will be removed from the sphere of criminal liability.17 In either of these situations, it may well be that the Durham-McDonald instructions adequately present the question to the jury. But our cases have also indicated that physical addiction may engender in the addict a compulsion to use drugs sufficient to override behavioral controls that could otherwise allow the addict to exercise a meaningful choice to refrain from the use of narcotics.18 The Durham-McDonald instructions, with their emphasis on mental illness, are not in my view adequate to present this last defense — a defense of physical compulsion — to the jury. Nor do I find traditional doctrines of duress, under which this defense is presently subsumed,19 a satisfactory remedy. To begin with, depending as it must on medical and psychiatric testimony, such a defense is far closer to the defense of insanity than is a defense of duress based upon external physical compulsion. Furthermore, acquittal on traditional grounds of duress would deny the trial court power to order a mental examination to test his present sanity, a power it possesses following acquittal by reason of insanity and which I believe it should possess when acquittal is grounded on an overwhelming compulsion to use drugs. Accordingly, I would undertake an en banc examination of the insanity defense in contexts such as this one to determine whether modifications should be made to cover such situations.20
Finally, I do not believe that we may fairly pass over this issue by reliance upon the failure of appellant’s counsel to request specific instructions below.21 *461Appellant, an indigent, was represented at trial by two attorneys specializing in patent law. When the trial began, one of them addressed the court as follows:
Your Honor, at this time I would like to point out that Mr.-and myself are patent lawyers and we are relatively unfamiliar with criminal procedure. I apologize in advance for any procedural errors we may commit in this courtroom.
Tr. 9. Confirmation was not long in coming. Chief counsel had barely begun his opening statement when the trial court found it necessary to advise him that the “opening statement is supposed to indicate what you expect the evidence will show.”22 Aside from failing to raise the defense of physiological duress, despite the fact that even the psychiatrist testifying for the government had characterized their client as “a man who has to be running all the time to keep up with his [“overwhelming”] need for narcotics,”23 counsel allowed the prosecutor to grossly misstate the law in his closing argument.24
I have nothing but praise for the character and dedication of appellant’s counsel at trial. Criminal trial litigation is a difficult and specialized line of practice in general, and the problems of presenting an adequate insanity defense are notorious.25 Doubtless as a result of substantial intelligence and diligent labor, appellant’s trial counsel avoided many pitfalls and presented the jury with a far better picture of their client’s mental state than is often the case. But “every prosecution of an accused is unique on the facts and the law, and makes its unique demands on the skills and character of the defense attorney.” 26 I have no doubt of trial counsel’s high character. The obvious effort with which they prepared for this case, representing an indigent defendant, is ample evidence of that. But the short of the matter is that they were novices, forced out beyond their depth in a complex field of law. Failure.to insist on proper instructions with regard to appellant’s addiction was not the sort of strategic choice which must often be made and which, once made, must be followed for good or ill. It amounted rather to abandonment of appellant’s strongest ground for acquittal by reason of insanity. I would reach the question presented and, if warranted, remand for a new trial under proper instructions.
II.
The majority concludes that we do not have before us “the kind of record upon which either the trial or appellate court can confidently adjudicate a serious issue of statutory construction with constitutional implications.”27 Appellant, the majority believes, should have “clearly and unequivocally” made his contentions to the trial court “to the end that a record can be made of the facts upon which they rest.” 28 His court-appoint*462ed patent attorneys, in short, should have divined the procedure the majority sets down “[f]or the future * * *. To the extent that [a defendant] wishes to assert that the statutes are not to be read as applicable to him, his primary attack should, as amicus suggests, be by a motion to dismiss.”29 Or if he wishes to “raise these matters as affirmative defenses at trial,” he “presumably must bear the burden of going forward with evidence which places him in the category of an addict in possession of narcotics solely for his own use.”30 In either event, says the majority, the record upon which decision is to be based must include “fact-finding sufficiently close in point of time to the events in question as to assure its integrity.” 31
I find the majority’s strictures completely unwarranted. Insofar as appellant’s attack is to the sufficiency of the indictment under which he was tried, it is clear that, under the Federal Rules, the challenge is properly before us and we may not with propriety avoid decision. To the extent that appellant’s arguments are regarded as affirmative defenses that must be raised at trial, the evidence introduced by him was certainly sufficient to raise an issue for jury consideration.32 Finally, as to appellant’s constitutional claims, we do not sit as triers of fact. Appellant was entitled to have his ease presented to the jury under a constitutional construction of the statutes under which he was tried. We may not avoid deciding whether or not the statute was constitutionally construed by the trial court simply by speculating that, in any event, the jury might have resolved the factual issues against appellant.
First. I am unable to discern the grounds upon which the majority refuses to decide appellant’s challenge to the sufficiency of the indictment. The Federal Rules expressly provide that “the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.” Fed.R.Crim.P. 12(b) (2). Specifically, such a claim may be raised for the first time on appeal, Walker v. United States, 342 F.2d 22 (5th Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed. 97 (1965); 33 it may be raised for the first time on a petition for rehearing in the appellate court, Hotch v. United States, 208 F.2d 244 (9th Cir. 1953); or it may be raised for the first time on collateral attack, Marteney v. United States, 216 F.2d 760 (10th Cir. 1954). Nor may a defective factual record justify refusal to decide the question presented, for it is hornbook law that a motion to dismiss for failure to charge an offense tests only the sufficiency of the indictment on its face. See, e. g., Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932). Accordingly, the question of the sufficiency of the indictment is properly before us and we may not refuse to decide it.
*463Second. The majority notes that defendants who wish to raise, as affirmative defenses at trial, the argument that their status as nontrafficking addicts in possession of narcotics solely for their own use removes them from the reach of the statute “presumably must bear the burden of going forward with evidence which places [them] in [this] category.” 34 It completely fails, however, to explain in what way appellant failed to meet this burden. Testimony at trial from both of the psychiatrists who testified was that, at the time of the offense, appellant was addicted to narcotics with a daily habit of roughly 25 capsules of heroin. Dr. Platkin, who testified for the government, seemed to be as convinced of this as was Dr. Baughman, who testified for the defense. The only narcotics with receipt and concealment of which appellant was charged were 13 capsules of heroin, or slightly over half his daily requirements. The government’s case raised not the slightest hint that appellant possessed these capsules in order to sell them, and indeed the prosecutor’s closing argument admitted as much.35 Conceivably, on such a record we might conclude that the jury was not compelled to find for appellant, and that it could permissibly believe, beyond a reasonable doubt, that appellant was not addicted. But the majority opinion does not rest upon such a conclusion. Rather, it appears to hold that appellant had not met his burden of coming forward with evidence to show that he was addicted to narcotics and that there was at least a reasonable doubt that the narcotics found in his possession were other than for his own use. Accordingly, it refuses to decide whether such a defense, if raised, would be valid. I believe that appellant has met the burden of coming forward with evidence to establish an affirmative defense, and that if such a defense is valid he should receive the benefit of it.
Third. With respect to the constitutional issue, we do not sit as triers of fact. Appellant was entitled to have the case submitted to the jury under instructions presenting a constitutional construction of the statutes under which he was tried.36 The present case is not like Powell v. Texas,37 which was tried to a court sitting without a jury and where, in consequence, issues of law were not preserved by a charge to the jury;38 it is not like United Public Workers v. Mitchell,39 an anticipatory attack on a statute, where judicial discretion may fairly impose a stricter burden of coming forth with evidence to present a constitutional claim; nor is it like Morales v. New York,40 where the constitutional claim presented involved issues not normally tried to a jury.41 Appellant’s trial counsel did present his constitutional claim to the trial court, by specifically moving at the close of all the evidence for a judgment of acquittal on the ground that Robinson v. California42 precluded his client’s conviction. *464I believe that this adequately raised the constitutional claim.43
III.
No one involved with this case has expressed satisfaction with the narcotics laws as applied to persons such as appellant. In the court below, the prosecuting attorney told the jury that
I don’t like that law, I don’t think there should be a law that governs narcotics and, particularly, narcotic addicts. * * * I don’t like a law which governs narcotic addicts and says that a narcotic addict, if found in possession, can be charged and brought before a jury.
Tr. 337-338. I agree with the prosecutor; and so, apparently, does the majority. But the government, which addicted appellant to opiates in the first place, also provided him with counsel at trial whose admitted abilities in the field of patent law did not permit them to raise appellant’s statutory and constitutional claim in the manner the majority deems proper. Accordingly, the majority refuses to give appellant the benefit of his admittedly meritorious claims. I have already indicated the reasons that I believe these claims are properly before us. But even if I did not, I would not force this indigent addict to suffer for the mistakes of his court-appointed counsel. I would reverse appellant’s convictions.
APPENDIX
Opinions issued December 13, 1968 and vacated on April 18, 1969 by the Court en banc:
Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit Judges.
BAZELON, Chief Judge:Appellant, a narcotic addict, was convicted of narcotics offenses1 and sentenced to the statutory minimum ten years’ imprisonment for narcotics recidivists.2 The evidence showed that at the time of his arrest he was in possession of thirteen capsules containing heroin— half the amount of his habitual daily use. He invoked the insanity defense 3 and the eighth amendment’s prohibition against cruel and unusual punishment.
At trial, Appellant called two staff members from Saint Elizabeths Hospital as defense witnesses. Dr. Baughman, a psychiatrist, testified that Appellant was a “schizoid personality” and a narcotic addict, that his addiction was the product of his mental illness, and that his possession of narcotics for his own use was a direct result of his addiction. Dr. Stammeyer, a clinical psychologist, diagnosed Appellant as a “paranoid personality” on the basis of extensive tests administered under his direction.
In rebuttal, the Government called Dr. Platkin, the physician in charge of the Maximum Security Division at Saint *465Elizabeths. He discussed at length the symptoms found by Dr. Baughman and concluded that, though somewhat withdrawn, Appellant was not mentally ill. He further testified that Appellant was a narcotic addict, that addiction entails both an “overwhelming” physical need and a psychological urge, that most addicts manage nonetheless to stay off drugs for some time, and that Appellant himself had been “off and on.” Asked why, once off, an addict would go back to drugs, he compared the psychological craving to that experienced by a smoker trying to give up cigarettes: in both cases, the urge to go back is “extremely difficult” to resist.
I
Appellant contends that the trial court should have directed a judgment of acquittal in his favor because the Government introduced no evidence to rebut his showing of mental illness. On the contrary, he says, Dr. Platkin’s testimony conclusively establishes that his addiction “substantially affect[ed his] mental and emotional process and substantially impair[ed his] behavior controls.”4 Therefore Dr. Platkin’s conclusion that he was not mentally ill must have rested on the medical — not the legal —definition of insanity.5 And since it was undisputed that the thirteen capsules found by the police amounted to less than a day’s supply, he maintains there was no evidence that his illegal possession was not the “product” of his addiction.6
Our cases make clear that the issue of criminal responsibility cannot be raised merely by evidence of narcotic addiction. That issue may arise if, but only if, the evidence shows that a particular addiction is such as to “substantially affect mental and emotional processes and substantially impair behavior controls.” 7 Even where there is evidence of such an effect, however, the criminal responsibility of an individual addict under the Durham-McDonald rule would still present a jury question. Accordingly, Appellant was not entitled to a directed verdict.
The jury were properly instructed in substance that they were to acquit Appellant unless they found beyond a reasonable doubt that his offense was not the product of an “abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavioral controls.” 8 The trial court did not say specifically that Appellant’s addiction could be such an abnormal mental condition. But Appellant requested no such instruction, nor did he argue that his addiction alone entitled him to an acquittal. In these circumstances, he understandably does not even now contend that the court erred in failing to instruct on addiction sua sponte.
He does eomplain that in summarizing' the evidence on the insanity issue, the trial court misled the jury by citing Dr. Platkin’s statement that appellant was not mentally ill without also mentioning his testimony concerning appellant’s addiction. But the omission was misleading only to the extent that the diagnosis of addiction contradicted or qualified the conclusion of no mental *466illness. Since Dr. Platkin testified that it did not, and appellant did not argue that it did, we find no reversible error.
II ,
Appellant also argues that it is cruel and unusual punishment under Robinson v. California,9 either (a) to punish him at all, or (b) to sentence him to prison for an irreducible minimum term of ten years,10 solely because he was in possession of drugs he needed to satisfy his addiction.
(a) Certainly filling the prisons with persons whose transgressions are largely, if not wholly, beyond their control is an unfortunate “solution” for any social ill. The sterility of the legislative scheme for dealing with the persistent problem of narcotic addiction is well illustrated by the apparent facts of this case. Appellant told Dr. Baughman that his addiction began in a U.S. Army hospital in Japan during his convalescence from wounds suffered in the Korean War. When the doctors took him off morphine, a Japanese nurse slipped him heroin to ease his pain. His addiction, of course, immediately brought him into conflict with the law upon his return to the United States, and he was twice convicted of narcotic violations. While on parole from the second conviction, he turned himself in to the parole officer and requested medical help to prevent him from “slipping.” He was sent to the U.S. Public Health Service Hospital at Lexington, Kentucky, where he was kept for two years. After his release, he avoided drugs for nine months, during which he studied for the Baptist ministry. Then, evidently no longer able to abstain, he dropped out of school when he was on the verge of ordination and went back to narcotics. The congressional response to this tragic history is to order the victim out of sight and presumably out of mind for the next decade.
In Robinson,11 the Court held that punishment for the disease of addiction violates the eighth amendment. At the same time it said in dictum that legislatures were free to punish addicts for possessing drugs.12 The logic of this distinction was not transparent, but since the Supreme Court made it, we said only that Court should change it.13
Thereafter, however, in Powell v. Texas,14 the Court spoke to the issue, albeit in muffled tones. Powell was a prosecution of an alcoholic for public drunkenness. The Court affirmed the conviction in three separate opinions. But a majority of the Justices were of the opinion that Robinson prohibits punishment of some conduct performed under the direct compulsion of a disease, as well as punishment of the status of being sick.15 And Justice White, who east the deciding vote for affirmance, specifically asserted that “unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.” He found no constitutional defect in Powell’s conviction because nothing in the record supported the finding that Powell had a compulsion “to *467frequent public places when intoxicated.” 16
Thus, Powell does not preclude a holding that the eighth amendment prohibits punishing an addict for possessing narcotics exclusively for his own use. On the other hand, Powell does indicate that where a claim of cruel and unusual punishment rests wholly on the premise that the punished conduct was compelled by a disease, the claimant bears an unusually heavy burden of proof. Apparently, punishment is constitutionally barred only if there is clear and convincing evidence that the defendant was practically without “free will” to desist.17
In the instant case, it is undisputed that Appellant is an addict in the sense that he is unable to abstain permanently from the use of drugs. It is less clear, however, that he was an active, physically-addicted addict at the time of his offense. He was arrested on April 22, 1966, but his psychiatric examination did not occur until nine months later. He had been completely off narcotics in March, 1966, and the only evidence which suggests physical addiction in April is Dr. Baughman’s statement:
Well this is what he tells us, that is that he was on drugs at the time. * * *
On cross-examination, Dr. Baughman testified that Appellant had “some freedom of choice” not to take drugs on April 22. Though that freedom was limited by the psychological pressure of his addiction, we cannot say with confidence that this record makes the clear showing of compulsion required, in the light of Powell, to bar any punishment whatever under the eighth amendment.18
(b) But Appellant says that even if his offense is punishable, it is “cruel and unusual” to imprison him “for the minimum statutory term of ten years, without the hope of probation or parole, and without regard to his dire need of treatment.” 19 Thus, he suggests that the *468eighth amendment prohibits excessive punishment as well as bizarre forms of punishment and, in some cases, punishment itself.
This contention finds substantial support in Weems v. United States.20 There, the Supreme Court struck down a sentence of 15 years imprisonment at “hard and painful labor” imposed under Philippine law for the offense of falsifying a public document to conceal a minor misuse of public funds.21 That sentence for such an offense was deemed “cruel in its excess of imprisonment” as well as “unusual in its character,” and was condemned “both on account of [its] * * degree and kind.” 22
The decision in Weems was undoubtedly influenced by the peculiar incidents of the challenged imprisonment: “a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property * * 23 But the Court did not find this mode of punishment forbidden as “inhuman and barbarous” under the eighth amendment.24 Instead, it emphasized the relative triviality of the offense punished, especially in relation to other crimes which were punished less severely, and it combed the case law, both state and federal, for opinions that the eighth amendment
was directed, not only against punishments which inflict torture, “but against all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged.” 25
Though the Court has not had occasion to follow it, Weems “has generally been accepted by both federal and state courts as establishing the rule that excessiveness as well as mode of punishment may be unconstitutionally cruel.”26 In Pow*469ell the Court cited it for the proposition that under the eighth amendment “the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed.”27 And in Trop v. Dulles,28 the Court said the case shows that “the words of the Amendment are not precise, and that their scope is not static.” “The basic concept underlying the Eighth Amendment,” wrote Chief Justice Warren,
is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonments, and even execution may be imposed depending on the enormity of the crime * * *. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.29
In support of the holding in Robinson, Justice Douglas observed: “the principle that would deny power to exact capital punishment for a petty crime would also deny power to punish a person by fine or imprisonment for being sick.” 30 Conversely, we think Robinson plainly severed the few strands in Weems which might have tied the eighth amendment exclusively to prohibiting uncivilized modes of punishment. Once it is established that the nature of the offense or the offender may affect the constitutionality of the punishment, we can perceive no good reason why this consideration should be relevant only where the conduct cannot be punished at all. We recognize that the seriousness of an offense and the necessary or appropriate amount of punishment are primarily matters for resolution by the legislature. But that is equally true of the question of what should be punished in the first place. The “evolving standards of decency that mark the progress of a maturing society,” which underlie the eighth amendment,31 are not readily confined within the artificial alternatives of impermissible mode of punishment or unpunishable offense.
In view of the wide scope that must be given to legislative discretion in the area of sentencing, relatively few sentences will be so severe in relation to the punished conduct as to offend the eighth amendment. But we think that two elements of the offense of possession of narcotics by an addict to satisfy his own needs render its punishment particularly vulnerable to constitutional scrutiny.
First, the Supreme Court has both recognized that narcotic addiction is a dis*470ease and held that the eighth amendment precludes punishment of that disease.32 The use and incidental possession of narcotics are invariable symptoms of addiction. Even if an addict retains some minimal “free will” not to indulge at a particular moment in time, no one would deny that his use of narcotics is largely involuntary — indeed is the essence of his disease33 Thus, although some punishment of an addict’s use may be permissible, the fine distinctions 34 and conflicting opinions in Powell show how close to the line of unconstitutionality any such punishment lies. Where the eighth amendment barely permits any punishment of an offense, it may reasonably be thought to set relatively strict limits on the amount of punishment' which may be imposed.35
Second, mere possession of narcotics is not in itself a grave offense. Its principal victim is the possessor, and a severe jail sentence is hardly defensible as an act of benevolence toward him. But the public has a legitimate interest in controlling the traffic in narcotics. While absolute prohibition has not been a notably successful approach — indeed, it may well have made control more difficult — ,36 we do not say that prohibition of *471use, possession, or purchase is a constitutionally unreasonable means to that end.37 At the same time, we would be less willing to question Congress’s prescribed measure of punishment if the sanctioned conduct more obviously or more directly threatened the life or limb or health or property of others.38 Thus, a prosecution for “pushing” narcotics, which may cause others to become addicted, is likely to present a different case.39
In the instant case, these two elements which trigger eighth amendment scrutiny converge. Appellant is an addict. There is some indication that even his original, fatal contact with drugs may not have been culpable. Whether or not he was physically addicted at the time of his arrest to the point that deprivation of drugs induced withdrawal symptoms, his daily habit was said to be twenty-five capsules. He was convicted solely on evidence that he had in his possession thirteen capsules — a half-day’s supply. In these circumstances we think his possession must be regarded as a symptom of his addiction.
It is true that technically appellant was not convicted of possession. Rather, the presumptions of the narcotics statutes converted his possession into sufficient proof that he illegally “purchased, sold, dispensed, and distributed” 40 (count 1) and “facilitated the concealment and sale” 41 (count 2) of a narcotic drug. Each of the relevant narcotic statutes42 creates a single hydra-headed crime which may be committed either (1) under one of its specific heads, such as purchase, receipt, transportation, concealment, or sale, or (2) under its *472undifferentiated collective head, by unexplained possession. If, as here, the evidence shows only possession, the Government may charge all the prohibited acts (as it did in the first count) or only selected acts (as it did in the second); but whatever the charge, the presumption from possession proves only “a violation of [the] * * * section” — not the commission of any specific prohibited act.43
Of course, anyone who possesses unstamped narcotics has almost certainly either bought or received them, and if he values his freedom he is undoubtedly also concealing them; these offenses are the necessary concomitants (and are punished in order to prevent) possession and use. Thus, the presumption that a possessor has violated some part of each statute is not unreasonable.44 But an addict’s possession of a small amount of narcotics does not, without more, reasonably support a specific presumption that he possessed it for purposes of sale, much less that he actually sold it.45 We are satisfied that Congress intended no such ill-founded presumption, but even if it did, we could hardly dispose of an eighth amendment question by concluding that the defendant’s punishment was not excessive in relation to a crime which there was no persuasive evidence he had committed.
*473In lieu of such evidence, the Government has on several occasions sought to assure us that it never brings a prosecution based on the statutory presumption from possession unless the defendant is in fact guilty of a substantially more serious crime, such as sale. Our task would be much easier if we could safely accept such assurances. But we cannot ignore the danger that, by error or design, mere possessors will be punished as sellers. In our system the responsibility for assaying the evidence of guilt is reposed in court and jury, not in the prosecutor. Especially where the penalty at stake is so harsh, the same policy which requires strict construction of criminal offenses prevents us from relying on prosecutorial good faith or on evidence which has not been submitted to the scrutiny of the adversary process.46
Ten years in prison is at least twice as long as the maximum federal sentence for such major felonies as extortion,47 blackmail,48 perjury,49 assault with a dangerous weapon or by beating,50 arson (not endangering human life),51 threatening the life of the President,52 and selling a man into slavery.53 It is severe both in its length and in its callous disregard for appellant’s obvious need for treatment54 — which, if successful, would substantially serve all the possible legitimate purposes of punishing him.
But there are other indices of the severity of the sentence besides the absolute length of the prison term. Ten years is the minimum sentence authorized by Congress for a “subsequent” narcotic offender,55 and Congress has rarely seen fit to fix minimum sentences. With the exceptions of such grave crimes as first degree murder56 and treason,57 the standard federal sentencing scheme sets a statutory maximum for the most egregious offender and assigns to the trial judge the task of determining what lesser sanction will serve the interests of society without unjustly penalizing the defendant. Thus, the imposition of a statutory minimum, denying the defendant the benefit of any special equity or mitigating circumstances which would otherwise result in a lighter sentence, is itself a mark of unusual severity. And we note that, at least on the record before us, this appellant has *474numerous special equities and mitigating circumstances in his favor.
Nor is this all. The general federal rule permits the court to supend all or part of a sentence imposed for any offense not punishable by death or life imprisonment.58 Moreover, most criminals are eligible for parole after serving one-third of their term.59 But Congress has made a special exception for narcotic offenders, denying them either probation or parole.60
The result of this sentencing scheme is that a convicted murderer,61 kidnapper,62arsonist,63 rapist, 64 traitor,65 robber,66 or saboteur 67 may receive a lighter sentence than is mandatorily imposed on an addict who possesses narcotics more than once. And all these dangerous felons may be eligible for release before the hapless addict if they are sentenced to any term less than thirty years.
We recognize, of course, that probation and parole are matters of legislative grace which Congress may in its discretion deny.68 We do not dispute Congress’ right to set minimum prison terms. And we defer to any reasonably defensible congressional judgment as to the relative seriousness of different offenses. But we think any judgment that mere possession of unstamped narcotics to meet a compelling personal need is a more heinous offense than many murders, arsons, rapes, or kidnappings would be arbitrary and capricious. The only plausible justification for punishing such possession more severely is that, though less serious, it is harder to deter. But that rationale, while entitled to consideration, cannot support a penalty “out of all proportion to the offense”69 or to the culpability of the offender. Appellant’s ten-year sentence, without provision for treatment, probation, or parole, “excite [s] wonder in minds accustomed to a more considerate adaption of punishment to the degree of crime.” 70 We are constrained to hold that on this record the sentence imposed is a cruel and unusual punishment in violation of the eighth amendment.
The disposition of the case on this holding, however, presents something of a dilemma. We are reluctant to intrude upon the congressional prerogative by dismantling the narcotics sentencing statutes brick by brick until we reach a constitutionally acceptable result.71 And *475it is not clear that a court has authority, under Section 2106 of Title 28 of the United States Code or any other statute, to impose a lighter sentence.72 But since we do not hold that Appellant could not constitutionally be punished, and since the question of disposition has not been briefed or argued, we hesitate to resolve the matter without affording the parties an opportunity to present their views. We therefore invite Appellee to submit a brief within thirty days; if he does so, we invite Appellant to respond within twenty days of the date Appellee’s brief is filed.73 After receipt of any such memoranda, we shall advise the parties whether oral argument is required.
So ordered.
McGOWAN, Circuit Judge:I have never been able to understand how, short of being given narcotics under duress, one can be a narcotics addict without periodically possessing narcotics. If the Eighth Amendment, as the Supreme Court held in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), prohibits a state legislature from making addiction a crime, then surely Congress is under a similar restraint. But, under existing federal statutes, an addict, upon proof of possession along, goes to prison without even the benefit of probation or parole. This comes about because the proof of possession of any amount of narcotics, no matter how small, is enough to convict one of such acts as purchasing, receiving, or concealing narcotics — acts which seem to me realistically inseparable from the status of addiction.1
This is a double standard of constitutional interpretation with a vengeance— *476one rule for the state legislature, another for the national. I thought so when, as a member of the panel in Castle v. United States,2 I joined in leaving correction to the Court which seemingly had created the imbalance. Meanwhile, four years later, we are presented with another record not unlike that involved in Castle. I think the time has come to make the Constitution speak with the same voice in the District of Columbia as in California.
There is a vast difference between using drugs and trafficking in them. It is a difference which Congress has, since Robinson, explicitly recognized.3 That recognition has not gone so far as to result in a rational reexamination and revision of the federal criminal statutes themselves, but, pending that event, I believe that Robinson, so long as it stands, compels either invalidation of those statutes as applied to a record like the one before us, or an interpretation of them as limited to trafficking — an offense neither alleged nor proved here.
. 26 U.S.C. § 4704(a) (1964) forbids the purchase, sale, distribution, or dispensing of narcotics not in the original stamped package. Tiie reasoning of the majority opinion would not seem to apply to the sale, distribution, or dispensing of such drugs.
. 21 U.S.C. § 174 (1964).
. 21 U.S.C. § 174 (1964) also forbids the sale, or facilitation of sale, of narcotics imported contrary to law if the act is carried out with knowledge of tiie drugs’ illegal importation. Again, I do not read the majority opinion as applying directly to such acts, even if committed by a non-trafficking addict.
. The majority opinion, see p. 443 supra, states its conclusion in the alternative: “So it is that, if Robinson's deployment of tiie Eighth Amendment as a barrier to California’s making addiction a crime means anything, it must also mean in all logic that (1) Congress either did not intend to expose the non-trafficking addict possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature.” It appears to mo, however, that the majority's recognition of a substantial constitutional problem if the stat-ufes are applied to nontrafficking addicts in the circumstances set forth in the text above would compel a construction of the statute that would avoid these constitutional problems. Watts v. United States, 394 U.S. 705, 707-708; 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) ; United States v. Rumely, 345 U.S. 41, 45-48, 73 S.Ct. 543, 97 L.Ed. 770 (1953) ; Ashwander v. TV A, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed. 851 (1929).
. 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
. So long as the narcotics involved in the offense charged are those intended by the addict for his own personal use, I can see no way that the applicability of Robinson v. California can be thought to turn upon whether the addict is also engaged in trafficking. Of course, the majority opinion does not seem to me to preclude application of these statutes to the sale of narcotics whether or not the seller is also addicted.
. 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
. 18 Ü.S.C. §§ 4251 — 4255 (Supp. IV, 1969).
. I do not mean to imply by this statement that the majority’s holding may not have a broader reach, a question upon which I express no opinion.
. 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
. Id. at 554-570, 88 S.Ct. 2145, 2173. Mr. Justice White concurred in the re-suit on the narrow ground that Powell had not shown that his alcoholism compelled him to be intoxicated in public.
. Amicus relied in his argument solely on clinical materials and traditional doctrines of mens rea, insanity and duress as set forth in cases and in R. Perkins, Criminal Law 951-960 (2d ed. 1969).
. Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954).
. McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc).
. See United States v. Carter, 141 U.S. App.D.C. ---, ---, - ---, 439 F.2d 436, 200-203 (decided June 5, 1970) (Bazelon, C. J., concurring).
. Gaskins v. United States, 133 U.S.App.D.C. 288, 410 F.2d 987 (1967); Brown v. United States, 118 U.S.App.D.C. 76, 331 F.2d 822 (1964). Gaskins contains a comprehensive review of our cases to the date of its decision.
. See Hansford v. United States, 124 U.S.App.D.C. 387, 389, 365 F.2d 920, 922 (1966).
. We have referred to this as the defense of “pharmacological duress.” Castle v. United States, 120 U.S.App.D.C. 398, 400-401, 347 F.2d 492, 494-495, cert. denied, 381 U.S. 929, 953, 85 S.Ct. 1568, 14 L.Ed.2d 687 (1965).
In the present case, Dr. Platkin, a psychiatrist from Saint Elizabeths Hospital testifying for the government on rebuttal, said that the “physical need for [narcotics] becomes overwhelming,” tr. 300, and characterized appellant as “a man who has to be running all the time to keep up with his need for narcotics.” Nevertheless, he .said, “there was nothing that would lead me to conclude that he was mentally ill.”
. See Castle v. United States, note 18 supra.
. In view of the majority’s disposition of this question, I have not undertaken to determine the precise formulation that might be advisable. Compare United States v. Carter, supra note 15.
. Counsel did, however, move for acquittal at the close of the government’s case and again before the case was submitted to the jury, the latter time on the grounds that the government had not proved its case, had not sufficiently rebutted the evidence of insanity, and “on constitutional grounds in view of the decision in the Robinson case that it would be improper to criminally incarcerate an addict for his addiction.” Tr. 44, 318-20.
. Tr. 16.
. See note 18 supra.
. After telling the jury he could understand their sympathizing with the plight of a man whose addiction, arising initially from drugs administered in a hospital, compelled him to use narcotics, the prosecutor told them that “sympathy has no place in a criminal case, ladies and gentlemen, with respect to determining your verdict. In the event of a conviction Her Honor will take into consideration all the various facets with respect to imposition of sentence and that is the Court’s function.” Tr. 330. Upon conviction, of course, appellant was sentenced to a mandatory minimum term of ten years in prison.
. See, e. g., Heard v. United States, 121 U.S.App.D.C. 37, 45, 348 F.2d 43, 51 (1965) (statement of Bazelon, C. J.); Jackson v. United States, 118 U.S.App.D.C. 341, 343-347, 336 F.2d 579, 581-585 (1965) (Bazelon, C. J., concurring and dissenting).
. A. Amsterdam, B. Segal, & M. Miller, Trial Manual for the Defense of Criminal Cases §3, at p.2-2 (1967).
. Ante, at 453. But compare the panel opinions in this case reproduced as an Appendix to this opinion.
. Ante at 453.
. Ante, at 453. It should be pointed out that amicus never suggested that such a prospective ruling should be invoked to bar appellant from having his claims considered.
. Id. 454.
. Id. 454.
. The government, at trial, introduced not a scintilla of evidence to indicate that appellant was a trafficker in drugs. The majority, however, concludes that appellant did not “exclude or negate” the possibility that the heroin in his possession might have been available for sale. In so doing it relies solely upon the statement of an unknown informer, as reproduced in an affidavit in support of a search warrant introduced for the first time on appeal in this case. Appellant has had no opportunity to challenge the unknown individual who made the statement, and his own motions for a remand for further factfinding have been denied. Compare California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Goldberg v. Kelly, 397 U.S. 254, 267-270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969).
. Accord, e. g., United States v. Manuszak, 234 F.2d 421 (3d Cir. 1956); Finn v. United States, 256 F.2d 304 (4th Cir. 1958); Carlson v. United States, 296 F.2d 909 (9th Cir. 1961).
. Ante, at 454.
. See also note 24, supra.
. See, e. g., Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957).
. 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
. Powell, of course, did include purported “findings of fact” by the trial court; but as the majority opinion noted, they were hardly supported by the evidence. See 392 U.S. at 521-522, 88 S.Ct. 2145. If tlie majority’s conclusion that the factual record in this case is inadequate because of the government's failure to contest appellant’s addiction, affirmance of the conviction is hardly the proper remedy.
. 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947).
. 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969).
. In any event, the Court in Morales did not affirm the conviction there at issue, but remanded for further findings.
. 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
. See text accompanying notes 21-26 supra. Of course, the constitutional claim may, since this court refuses to rule on it, now be raised by collateral attack. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Rollerson v. United States, 394 U.S. 575, 89 S.Ct. 1300, 22 L.Ed.2d 557 (1969), reversing 132 U.S.App.D.C. 10, 405 F.2d 1078 (1968). Furthermore, the majority opinion, by refusing to rule on appellant’s strongest defenses because it finds that they were not properly raised by his counsel, appears to have established as a matter of law that appellant was denied effective assistance of counsel under the standards prevailing in this Circuit. See Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (decided April 15, 1970).
. 21 U.S.C. § 174, infra note 41; I.R.C. § 7237(d) (1954), 26 U.S.C. § 4704(a), infra note 40.
. Id. Further relevant sentencing provisions are found in I.R.C. § 7237(d) (1954), 26 U.S.C. § 7237(d).
. Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 874-875, 45 A.L.R.2d 1430 (1954); McDonald v. United States, 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1952) (en banc).
. McDonald v. United States, supra note 3, at 124, 312 F.2d at 851.
. See id. at 123-124, 312 F.2d at 850-851; Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444, 446 (decided December 13, 1967).
. Durham v. United States, supra note 3.
. See Castle v. United States, 120 U.S.App.D.C. 398, 400, 347 F.2d 492, 494, cert. denied, 381 U.S. 929, 953, 85 S.Ct. 1568, 1811, 14 L.Ed.2d 687, 726, reh. denied, 382 U.S. 874, 86 S.Ct. 13, 15 L.Ed.2d 116 (1965); Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1965); Green v. United States, 127 U.S.App.D.C. 272, 383 F.2d 199 (1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1061, 19 L.Ed.2d 1158 (1968); Gaskins v. United States, 133 U.S.App.D.C. 288, 410 F.2d 987 (decided December 20, 1967).
. McDonald v. United States, supra note 3, at 124, 312 F.2d at 851.
. 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
. Under I.R.C. § 7237(d) (1954), 26 U.S.C. § 7237(d), a person convicted of either of Appellant’s statutory offenses, see note 1, supra, is not entitled to either probation or parole.
. Supra, note 9.
. Id. at 665, 666, 667-668, 82 S.Ct. 1417.
. Castle v. United States, supra note 7, 120 U.S.App.D.C. at 401, 347 F.2d at 495.
. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
. Id. (opinion of White, J., at 548 et seq., 88 S.Ct. at 2162, dissenting opinion of Fortas, J., at 554 et seq., 88 S.Ct. at 2165.) The four dissenting Justices found it “cruel and unusual” to punish an alcoholic “for a condition- — being ‘in a state of intoxication’ in public — which is a characteristic part of the pattern of his disease and which the trial court found, was not the consequence of appellant’s volition hut of ‘a compulsion symptomatic of the disease of chronic alcoholism.’ ”
Id. at 558, 88 S.Ct. at 2167.
. Id. at 548-549, 88 S.Ct. at 2162.
. Of. the extended discussion in Powell of the difference between “loss of control” and “inability to abstain.” Id. at 524-526, 88 S.Ct. at 2150. Justice Marshall concluded that
It is one thing to say that if a man is deprived of alcohol his hands will begin to shake, he will suffer agonizing pains and ultimately he will have hallucinations ; it is quite another to say that a man has a “compulsion” to take a drink, but that he also retains a certain amount of “free will” with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement.
Id. at 526, 88 S.Ct. at 2151. Justice White’s concurring opinion also makes clear that he would find an eighth amendment violation only where there was an “irresistible compulsion” to drink. Id. at 548, 549, 551, 88 S.Ct. at 2163 n. 3.
. We also note Justice Marshall’s admonition in Powell that the continually evolving common law doctrine of mens rea, not the eighth amendment, ought generally to govern the question of criminal responsibility. Id. at 533-537, 88 S.Ct. at 2154-2156. Thus, an addict charged with possession of narcotics may in an appropriate case raise an insanity defense, see note 7, supra, or a defense of “pharmacological duress,” Castle v. United States, supra note 7, 120 U.S.App.D.C. at 400-401, 347 F.2d at 494-495; Hutcherson v. United States, 120 U.S.App.D.C. 274, 288, 345 F.2d 964, 978, cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965) (dissenting opinion of Bazelon, Ch. J.).
. We have not previously confronted directly this particular challenge to the narcotics laws. Our opinion in Hutcher-son v. United States, supra note 18, did appear to reject summarily an addict’s claim that a ten-year sentence was cruel and unusual. However, it appears from the concurring and dissenting opinions that the argument rejected there was “not that the penalty inflicted is too harsh for the alleged crime. * * * Rather it [was] * * * that the acts could not constitutionally be considered a crime, subject to criminal punishment of any nature, when performed by a drug addict wholly because of his drug addiction.” 120 U.S.App.D.C. at 287, 345 F.2d at 977 (dissenting opinion of Baze-lon, Ch. J.) ; id. at 280, 345 F.2d at 970 (opinion of Burger, J.).
*468Some other courts have, however, refused to find narcotic sentences unconstitutionally excessive under the eighth amendment. IS. g., Stewart v. United States, 325 F.2d 745 (8 Cir.), cert. denied, 377 U.S. 937, 84 S.Ct. 1344, 12 L.Ed.2d 301 (1964); Vera v. United States, 288 F.2d 25 (8 Cir. 1961), Gallego v. United States, 276 F.2d 914 (9 Cir. 1960); Lathem v. United States, 259 F.2d 393 (5 Cir. 1958). In none of the aforementioned cases was the Appellant shown to be an addict, and each is also distinguishable either by the length of the sentence or by the specific offense proved. In Gallego, the court appeared to concede that in some circumstances a five year sentence without probation and parole might be cruel and unusual punishment. 276 F.2d at 918. But it found no such circumstances in a prosecution for illegal importation of marijuana, which is not addicting and which was found on the appellant’s person by a customs inspector at the border. United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir. 1965), cert. denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, is more directly in point. But there an addict was sentenced to a term of 1% to 4 years for self-administration of a drug under a statute providing for a maximum sentence of 5 years. The legislature had specifically authorized a lighter sentence for such cases than for other narcotic offenses. In these circumstances, Judge Friendly found the sentence and statute very different from those condemned in Weems v. United States, infra note 20. 344 F.2d at 264.
. 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).
. The Court said the cruel and unusual punishment provision of the Philippine Bill of Rights, under which the case was argued, “was taken from the Constitution of the United States, and must have the same meaning.” Id. at 367, 30 S.Ct. at 549. And the punishment imposed would have the same “bad attributes even if they were found in a Federal enactment and not taken from an alien source.” Id. at 377, 30 S.Ct. at 553.
. Id. at 377, 30 S.Ct. at 553.
. Id. at 366, 30 S.Ct. at 548.
. Id. at 368, 30 S.Ct. at 549.
. Id. at 371, 30 S.Ct. at 551, quoting O'Neil v. Vermont, 144 U.S. 323, 339-340, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (dissenting opinion of Mr. Justice Field).
. Note, “The Cruel and Unusual Punishment Clause and the Substantive Criminal Law,” 79 Harv.L.Rev. 635, 640 (1966). See, e. g., Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968); State v. Evans, 73 Idaho 50, 245 P.2d *469788 (1952); State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 (1948). See also State v. Ross, 55 Or. 450, 104 P. 596, 42 L.R.A.,N.S., 601 (1909), modified 106 P. 1022, 42 L.R.A.,N.S., 613 (1910); State ex rel. Garvey v. Whitaker, 48 La.Ann. 527, 19 So. 457, 35 L.R.A. 561 (1896).
In State v. Evans, supra, the Idaho Supreme Court aptly summarized the case law as follows:
Cruel and unusual punishment were originally regarded as referring to such barbarous impositions as pillory, burning at the stake, breaking on the wheel, drawing and quartering, and the like. But it is now generally recognized that imprisonment for such a length of time as to be out of all proportion to the offense committed, and such as to shock the conscience of reasonable men, is cruel and unusual within the meaning of the constitution.
245 P.2d at 792. So saying, the court proceeded to read a mandatory life sentence provision out of the statute punishing lewd and lascivious acts performed on a minor under the age of 16 with the intent of arousing or gratifying sexual desires. It said the statute would be unconstitutional if applied to the “acts of a more or less trivial nature [which] are within its broad terms.” Id. at 793.
. Powell v. Texas, supra note 14, 392 U.S. at 532, 88 S.Ct. at 2154.
. 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
. Id. at 100-101, 78 S.Ct. at 597-598 (emphasis added).
. Robinson v. California, supra note 9, 370 U.S. at 676, 82 S.Ct. at 1425 (opinion of Douglas, J.).
. Trop v. Dulles, supra note 29.
. Robinson v. California, supra note 9, 370 U.S. at 667 and n. 8, 82 S.Ct. 1417.
. Congress itself has indicated dissatisfaction with punishing an addict for offenses entailed by his addiction in the Narcotic Addict Rehabilitation Act of 1966. 80 Stat. 1438 et seq. (1966). It authorized civil commitment in lieu of conviction for addicts charged, inter alia, with narcotic offenses not involving unlawful importation or sale. 80 Stat. at 1438-1439, 28 U.S.C. §§ 2901(g) (2), 2902 (Supp.1967). It also provided for sentencing convicted addicts to treatment, 80 Stat. at 1443, 18 U.S.C. § 4253 (Supp. 1967), subject to a similar exception for importers and peddlers; but here, the exception is itself subject to an exception permitting commitment where “the court determines that [the] * * * sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.” 80 Stat. .at 1442, 18 U.S.C. § 4251(f) (2) (Supp.1967).
. The Court opinion in Powell did not attempt to explain why, if the eighth amendment does not bar punishment of conduct compelled by a disease, it nonetheless prohibits punishment of the “status” of having the disease. Justice Marshall merely asserted that punishment for an alcoholic’s public behavior “seems a far cry from convicting one for being an addict, a chronic alcoholic, being ‘mentally ill or a leper * * 392 U.S. at 532, 88 S.Ct. at 2154, and relied heavily on the difficulties of determining when conduct is truly involuntary. Justice Black, concurring, did attempt to rationalize the line he drew between a status and behavior entailed by the status. He conceded that the reasons — other than the manifest injustice of punishing involuntary conduct — for Robinson’s “refusal to permit conviction without proof of an act are difficult to spell out,” but he found them “nonetheless perceived and universally expressed in our criminal law.” He then cited the relative unreliability of evidence of a “propensity” to act rather than of an actual act, and the resultant danger of punishing mere evil thoughts or fantasies. Id. at 543-544, 88 S.Ct. at 2159-2160. He did not say how this rationale applied to preclude punishment of narcotic addiction. And ultimately he finished by emphasizing how hard it often is to say whether conduct was involuntary. Id. at 544, 88 S.Ct. at 2160.
. Other courts have recognized that characteristics of the offender may affect the constitutionality of a severe sentence. The Kentucky Supreme Court recently invalidated a life sentence without eligibility for parole imposed for the crime of rape. The sentence could have been given an adult, the Court said, but as applied to a 14-year old boy it was cruel and unusual punishment. Workman v. Commonwealth, supra note 26. In State v. Kimbrough, supra note 26, the court found thirty years’ imprisonment a constitutionally excessive punishment for burglary — “one of the worst crimes, — ” because the facts showed “no particular circumstances of aggravation” and because the jury had recommended mercy. 46 S.E.2d at 277.
. Prohibition of narcotics, like prohibition of alcoholic beverages, has created a black market which operates largely out of sight of public authority and often, because of its size and enormous profita*471bility, out of reach as well. Black marketeers also have a compelling material incentive to entrap the unwary into becoming addicts. See generally H. Howe, An Alternative Solution to the Narcotic Drug Problem, 22 Daw & Contemp. Prob. 132 (1957); A. Lindesmith, The Addict and the Law, chs. 5 and 10 (1965).
. Cf. Yee Hem v. United States, 268 U.S. 178, 183, 45 S.Ct. 470, 69 L.Ed. 904 (1925).
. In Weems, supra note 20, the Court compared the defendant’s crime with other harshly punished offenses and concluded, “In all such cases there is something more to give character and degree to the crimes than the seeking of a felonious gain, and it may properly become an element in the measure of their punishment.” 217 U.S. at 380, 30 S.Ct. at 554. The falsification of a public document to conceal misuse of funds, it said, may “injure nobody.” Id. at 365, 30 S.Ct. at 548. See also State ex rel. Garvey v. Whitaker, supra note 26, where a Louisiana court found unconstitutionally excessive a sentence of six years in jail in the event of non-payment of a fine for 72 consecutive violations of an ordinance forbidding “destroying -plants in public squares.”
. Cf. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in which the Supreme Court upheld severe sentences for sale of narcotics.
. 26 U.S.C. § 4704(a) provides:
It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.
. 21 U.S.C. § 174 provides :
Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law * * *, shall be imprisoned not less than five or more than twenty years * * *.
Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.
. See notes 40 and 41 supra.
. See, e. g., Bates v. United States, 95 U.S.App.D.C. 57, 219 F.2d 30, cert. denied, 349 U.S. 961, 75 S.Ct. 891, 99 L.Ed. 1283 (1955); United States v. White, 228 F.2d 832 (7 Cir. 1956).
In Yee Hem v. United States, supra note 37, in which the Supreme Court upheld the presumptions of 21 U.S.C. § 174, supra note 41, the defendant had been charged specifically with “concealing.” But the Court did not concern itself with the specific act of concealment. Instead it said broadly :
Legitimate possession, unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity, “since you are bound to know that it cannot be brought into this country at all, except under regulation for medicinal use, you must at your peril ascertain and be prepared to show the facts and circumstances which rebut, or tend to rebut, the natural inference of unlawful importation, or your knowledge of it,” is not such an unreasonable requirement as to cause it to fall outside the constitutional power of Congress.
Id. 268 U.S. at 184, 45 S.Ct. at 471. Thus, the presumptions in the unlawful importation statute are essentially only that “the narcotics were imported contrary to law and * * * that the person in possession had knowledge of such unlawful importation.” United States v. Feinberg, 123 F.2d 425, 427 (7 Cir. 1941); cert. denied, 318 U.S. 801, 62 S.Ct. 626, 86 L.Ed. 1201 (1942); cf. United States v. Moe Liss, 105 F.2d 144, 146 (2 Cir. 1939).
. Thus, the Supreme Court has found “a rational connection” between proved possession and presumed purchase under the Harrison Act. (26 U.S.C. § 4704(a), supra note 40.) “In dealing with a poison not commonly used except upon a doctor’s prescription easily proved or for a debauch only possible by a breach of law,” the Court said, “it seems reasonable to call on a person possessing it in a form that warrants suspicion to show that he obtained it in a mode permitted by law.” Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 374, 72 L.Ed. 632 (1928).
. Of course, the proposition recited in the indictment that appellant “sold” and “facilitated the * * * sale” of the narcotics found in his possession refutes itself. And though many addicts undoubtedly sell narcotics to support their habit, we can scarcely indulge in the presumption that anyone who possesses narcotics is or has been a seller. We find no case in which a court has said possession reasonably supports an inference of sale. In United States v. Santore, 290 F.2d 51, 59-61 (2 Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 749, 752, 5 L.Ed. 2d 744 (1961), the court sustained a conviction for sale on the strength of the presumption arising from constructive possession of narcotics. But .there the evidence showed there had been a sale, and the question was whether the appellant was sufficiently involved in the narcotic conspiracy to implicate him in the specific act of sale as well.
Undoubtedly, however, possession of a sufficiently large quantity of narcotics, even by an addict, can give rise to a reasonable inference that they are intended for sale.
. In the instant case, we are referred to the search warrant issued for Appellant’s apartment, in which the affiant cited information from a “reliable source” that Appellant was preparing and retailing heroin from his apartment. The warrant specified “heroin, syringes, tourniquets, cookers, and paraphernalia used in the preparation and disposition of heroin. * * * ” In fact, the officers found only a very small quantity of heroin. We dare not treat such anonymous hearsay, untested by cross-examination, as proof of the matter asserted.
. 18 U.S.O. § 872.
. 18 U.S.O. § 873.
. 18 U.S.C. § 1621.
. 18 U.S.O. § 113(c) and (d). But see 18 U.S.O. § 111.
. 18 U.S.C. §81.
. 18 U.S.O. § 871.
. 18 U.S.O. § 1584.
. The court recommended that Appellant be committed to the U. S. Public Health Service Hospital at Lexington, Kentucky, but he has instead been confined in the penal facilities of the District of Columbia.
. “For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.” 21 U.S.C. § 174, supra note 41.
. 18 U.S.C. § 1111. The minimum federal penalty for first degree murder is life imprisonment. There is no minimum for any other homicide.
. 18 U.S.C. § 2381. The minimum is five years in prison. See also the anomalous twenty-five year mandatory sentence for attempting to rob with a dangerous weapon any person having custody of mail, money, or other property of the United States. 18 U.S.C. § 2114. Piracy is punished by a life sentence. 18 U.S.C. § 1651.
. 18 U.S.C. § 3651.
. 18 U.S.C. § 4202.
. Supra note 10.
. See note 56, supra.
. 18 U.S.C. § 1201.
. 18 U.S.C. § 81. There is no minimum sentence for arson even if life has been placed in jeopardy, of. note 51, supra.
. 18 U.S.C. § 2031.
. Supra note 57.
. 18 U.S.C. § 2111 et seq. But see note 57, supra.
. 18 U.S.C. § 2152 et seq.
. E. g., Stewart v. United States; Vera v. United States; both supra note 19.
. Robinson v. California, supra note 9, 370 U.S. at 676, 82 S.Ct. at 1425 (opinion of Douglas, J.).
. Weems v. United States, supra note 20, 217 U.S. at 365, 30 S.Ct. at 548.
. 21 U.S.C. § 174, supra note 41, provides for a ten-year minimum term and incorporates by reference the denial of probation and parole of I.R.O. § 7237(d) (1954). It contains no severability clause. Accordingly, we doubt that we can separate the elements of Appellant’s sentence on count 2. Appellant’s concurrent ten-year sentence on count 1 was imposed under subsections (a) and (d) of the same I.R.C. § 7237. There is a general severability clause applicable to the entire Internal Revenue Code. I.R.C. § 7852(a) (1954), 26 U.S.C. § 7852(a). But it may well be that § 7237, like 21 U.S.C. § 174, supra, establishes an integrated sentencing scheme which we are not at liberty to tamper with. Gf. United States v. Marchetti, 390 U.S. 39, 58-60, 88 S.Ct. 716, 19 L.Ed.2d 906 (1968); Weems v. United States, supra note 20, 217 U.S. at 381-382, 30 S.Ct. 544. If so, the question of the constitutionality of the ten-year minimum sentence alone, subject to probation and/or parole and/or provision for treatment, is not before us.
. Cf. Weems v. United States, supra note 20 at 382, 30 S.Ct. at 555, where the Court said:
It follows from these views that, even if the minimum [authorized] penalty * * * had been imposed, it would have been repugnant to the Bill of Bights. In other words, the fault is in the law, and, as we are pointed to no other under which a sentence can be imposed, the judgment must be reversed, with directions to dismiss the proceedings.
. In addition to any other matters affecting disposition, we suggest that the parties address themselves in particular to the following questions:
(1) Can and should this court separate the sentencing scheme into its distinct provisions and determine whether the excision of one or more of the provisions would yield a constitutionally permissible sentence?
(2) If the congressional scheme is so divisible, which provisions must be excised? What sentence would not be excessive under the eighth amendment?
(3) If on the other hand Congress must decide which parts of its prescribed sentence it values most, must this court reverse the conviction for lack of a law under which Appellant can be sentenced, or is there some other less drastic disposition of the case?
. In Robinson the majority strove manfully to minimize the reach of its de-cisión by analogizing narcotics addiction to the condition of suffering from such illnesses as leprosy — a dubious parallel indeed since leprosy does not, so far as I am aware, disappear by a willed effort to stop doing something. A concurring Justice purported to conceive of addiction as nothing more than a disposition to use narcotics. This is like defining an alcoholic as one who likes the taste of whiskey but does not drink it. But, as Justice White pointed out in dissent, “[a]s defined by the trial court, addiction is the regular use of narcotics and can be proved only by evidence of such use.” It is this same realistic perception and acceptance of the relationship between the status of addiction and the use of narcotics which caused Justice White to assert in Powell v. Texas, 392 U.S. 514, 548, 88 S.Ct. 2145, 2162, 20 L.Ed.2d 1254 (1968), that: “Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.” The concept of an addict using narcotics without ever possessing, purchasing, receiving, or concealing them is surely beyond the bounds of practical logic. Thus when the Robinson majority says that criminal sanctions may be imposed with respect to the possession of narcotics, I can only assume it does not intend to include possession by addicts not engaged in trafficking.
. 120 U.S.App.D.C. 398, 347 F.2d 492 (1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726, rehearing denied, 382 U.S. 874, 86 S.Ct. 13, 15 L.Ed.2d 16 (1965).
. The Narcotic Addict Rehabilitation Act of 1966, 80 Stat. 1438. The substantive provisions of this statute are preceded by a declaration of Congressional policy to the effect that addicts convicted of or charged with narcotics offenses should be civilly committed for rehabilitative treatment rather than criminally punished. In the definition of those eligible to be civilly committed rather than prosecuted, an exclusion is made of those “eharged with unlawfully importing, selling, or conspiring to import or sell” narcotic drugs. 28 U.S.C. § 2901(g) (2). These are, of course, the acts customarily associated with trafficking. The definition of those who, although convicted, are eligible for civil commitment as opposed to criminal sentencing contains the same exclusion although mitigated in this instance by a proviso that eligibility continues if “the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.” 18 U.S.C. § 4251(f) (2).