These cases were consolidated for trial1 and on appeal. After a panel of this court had issued a decision in Franklin v. United States (D.C.App.) 339 A.2d 398 the court en banc vacated that decision sua sponte and consolidated these appeals therewith for reargument before the court sitting en banc. The basic issue presented is whether a criminal defendant charged with possession of heroin for personal use or possession of implements of crime (narcotics paraphernalia) may raise an affirmative defense of lack of common law criminal responsibility due to heroin addiction.
It is necessary, at the outset, to relate what this case actually involves and where appellants’ contention leads us. We are considering heroin addiction in the context of crime. During the past several years it has become increasingly evident that “the problem of urban crime is largely a problem of heroin addiction.”2 Once a user becomes an addict, “[h]e is then bound to a treadmill that requires increasing amounts of heroin to feel healthy and increasing amounts of criminal activity to obtain the heroin.” 3 It has been reported that “[s]ome criminal court judges have found that 75 percent of all the cases they try involve defendants with a history of heroin abuse.” 4 Other estimates “attribute 33 percent to 50 percent of the hold-ups, burglaries, muggings and thefts committed in the nation’s 34 major urban centers to heroin addicts.”5 Whatever the accurate prevailing percentage may be, the argument advanced does not have the limited impact of a holding concerning a rare claim of duress, or the occasional defense of insanity,6 rather, it would cut deeply into the enforcement effort on a massive amount of crime in this city.
The defense sought to be asserted has been explored inch by inch and rejected in a recent en banc decision by the Circuit Court in this jurisdiction in United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973), with which we agree. The plurality opinion and the concurrence by Judge Leventhal searched all the nooks and crannies in this issue. Consequently, there is no point in retracing that ground. We will confine ourselves for the most part to the peculiarities of this case and a discussion of additional considerations.
I. PROCEDURAL HISTORY
Pursuant to the procedure suggested in Watson v. United States, 141 U.S.App.D.C. 335, 346-47, 439 F.2d 442, 453-54 (1970), the defendants made a pretrial motion to dismiss under Super.Ct.Cr.R. 12 and the trial court received extensive testimony from appellants and experts on their behalf which was directed at establishing that their addiction precluded prosecution for the charged offenses under the Eighth Amendment. In an order issued on March 14, 1971, the motion was denied.7 There is no contention here on the Eighth Amendment issue, as will appear.8
*404Before trial appellants sought leave to introduce evidence to establish that because of their addiction they were not criminally responsible, under common law principles, for possession of narcotics. They made a proffer of evidence and proposed jury instructions in support of their request which was denied by a pretrial order entered on May 18, 1971.9 At trial the court again denied appellants’ motions to introduce evidence to establish an affirmative defense based on heroin addiction.
Appellant Gorham was found guilty of possession of heroin10 and possession of implements of crime (narcotics paraphernalia) 11 while appellant Williams found guilty only of the latter crime. They contend it was error to deny the motions wherein they sought to establish an affirmative defense of lack of common law criminal responsibility due to heroin addiction.
II.THE RECORD
Appellant Gorham was arrested on August 4, 1970. That morning her room was entered and searched by Metropolitan Police Department officers pursuant to a search warrant. The officers discovered a quantity of white powder containing heroin and various narcotics paraphernalia which contained traces of heroin. On these facts ' she was found guilty with imposition of sentence suspended and probation imposed.12
Appellant Williams was arrested July 16, 1970, when a police officer discovered him seated on the floor in an abandoned house in this city surrounded by various narcotics paraphernalia, all of which contained traces of heroin. On these facts he was found guilty with imposition of sentence suspended and conditions imposed.13
Because these cases were tried upon stipulated facts appellants’ personal histories as to narcotic usage were not developed on the record now before us. However, Judge Belson’s comprehensive memorandum opinion and order (Appendix A) disposing of appellants’ pretrial motion to dismiss sets out these facts concisely at pp. 10-14.
III. THE PROFFERED DEFENSES
Appellants, unsuccessful in their attempt to prevail on the motion to dismiss, made an extensive proffer of evidence and jury instructions to the trial court. The proffer, boiled down to its essentials, is as follows:
Defendants offer to prove, through their own testimony, the testimony of psychologists and psychiatrists who have interviewed, examined, and diagnosed them, and through the testimony of expert witnesses who have substantial reputations in the field of drug dependence, that each defendant was a heroin dependent person at the time of [his] arrest; that as such each was unable to restrain from further use of injectable heroin; that each had an overpowering desire or need to continue taking the drug and to obtain it by any means either because of the psychic dependence or the physical dependence on the drug, or both; that this dependence took the form of an overpowering and irresistible craving or compulsion to continue taking the drug and to obtain it by any means; that this dependence resulted in such an overwhelm*405ing involvement with the use of heroin and the securing of its supply that their need to obtain and use it was the central feature of their lives; and that it resulted in a substantial impairment of their behavior controls and lack of choice or control and directly caused the acts with which they are presently charged.
Concomitantly, appellants proffered that they were “so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to [their] addiction,” D.C.Code 1973, § 24-602, 28 U.S.C. § 2901(a) (1970), and that they were “drug dependent person^)” in that each was using heroin and was in “a state of psychic or physical dependence, or both, arising from the use of that substance on a continuous basis” and were under “a strong compulsion to take the substance on a continuous basis in order to experience its psychic effects or to avoid the discomfort caused by its absence.” 42 U.S.C. § 201 (q) (1970).
Appellants then proffered a series of jury instructions which boil down to an instruction that the jury must acquit the accused unless it is convinced beyond a reasonable doubt that he was not heroin dependent at the time of the offense or that his possession of heroin or narcotics paraphernalia was not a direct product of his heroin dependence. The jury was to be instructed that a person is heroin dependent if, by reason of long and intensive use of heroin, the ability to refrain from using heroin is substantially impaired.
Although the proffer is in the language of federal and local statutes relating to drug addiction in a medical sense, appellants’ proposed defense is based upon common law doctrines of criminal responsibility which they seek to have extended to provide a defense for the heroin addicted individual who is charged with possession of heroin or possession of implements of crime (narcotics paraphernalia) and whose possession is for personal use only. Simply put, they argue the heroin dependent individual is compelled to commit the crimes of possession of heroin and the narcotics paraphernalia necessary to administer it by reason of addiction.
The trial court declined to permit appellants to develop the evidence to support their theory of defense when it ruled as a matter of law that their proffered test of criminal responsibility was not in accord with existing precedent because it was not framed in terms of the insanity defense.14 It is from this ruling that this appeal is mainly taken.
The United States Supreme Court has stated that “[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as a belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952) (footnote omitted). In this jurisdiction, as in most others, criminal responsibility is discussed most frequently in the area of insanity. What we are asked to do in this case is to develop a new limited doctrine of criminal responsibility because, according to appellants, its time has come. The process of adjustment of the common law, to fit the times, has traditionally been the province of the states. Powell v. Texas, 392 U.S. 514, 536, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (plurality opinion).
We must determine at the threshold, however, whether Congress’ treatment of the subject precludes us from establishing a new rule of criminal responsibility in the area of drug addiction, if we were so inclined.
*406IV. THE LEGISLATIVE SCHEME
Unlike the judges who were questioned by the House of Lords in M’Naghten’s case,15 we are not confronted with a legislative vacuum in the area of drug abuse as they were in determining whether the insane should be held responsible for their acts.16 Congress, as well as most moderately informed persons in this country, has long been aware that heroin is highly addictive and that most heroin users are, or are likely to become, drug addicts. Every recent congressional enactment relating to narcotic drug abuse recognizes the large addict population in this country.17 Moreover, by providing for treatment instead of, or in addition to, incarceration in a penal facility, Congress recognized that addicts are subject to criminal penalties.18
Congress has been concerned with the problem of narcotic drug abuse since 1909 when it enacted the Jones-Miller Act.19 This was followed by the Harrison Narcotics Act20 which was enactee in 1914. This legislation had a long and variegated history of enforcement.21 After examining various studies dealing with drug abuse, Congress in 1970 responded with the Drug Control Act which reduced, but nonetheless retained, criminal penalties for simple possession of narcotic drugs. This demonstrates to us that Congress knew of, and intended, the prosecution and conviction of all persons, whether or not drug dependent, for the violation of federal narcotic laws.
What we see in the current federal legislative scheme is an effort by Congress to provide federal law enforcement agencies with a comprehensive and flexible vehicle for diminution of the drug abuse problem confronting this country. It is most unlikely that Congress intended anything less for the District of Columbia, i. e., one standard for the District of Columbia and another to be applied through federal prosecutions here and in the states. Congress recognized, as we all do, that there is no simple solution to drug abuse. It must be attacked by educating the young to its perils ; by curtailing the illegal importation of drugs into the country; and by prosecuting those who trade upon misery by trafficking in drugs. Perhaps the last, but nonetheless important, line of offense is enforcement control by the prosecution, but not necessarily the imprisonment, of the nontraf-ficking addict.22 It is a part of the overall drug enforcement scheme to pursue narcotics into the hands of the users. This is an investigative method and fits into the entire law enforcement effort in relation to narcotics.
Courts are not empowered to supersede the legislative will. As we will show, what we have been asked to do here is to engage in legislative activity, purely *407and simply.23 This is not the court’s function.
The Federal Statutory Scheme
NARA24 and the Drug Abuse Office and Treatment Act,25 recent federal legislation, persuade us that Congress has expressed a preference for a flexible approach for dealing with narcotic addiction both in and out of the federal criminal system. Under NARA certain addicts charged with crime are eligible for commitment for treatment in lieu of prosecution,26 although the criminal charge is held in abeyance pending the result of treatment. Other addicts are eligible for treatment in lieu of imprisonment if they have been convicted of a federal crime,27 and addicts not charged with a crime are eligible for civil commitment.28
The Drug Control Act of 1970 provides, inter alia, for criminal penalties for simple possession of narcotics,29 enlightened disposition for first offenders,30 and imposes heavy penalties for more serious offenses such as unauthorized manufacture or distribution of controlled substances.31 Although the Act distinguishes between traffickers and nontraffickers,32 the distinction relates only to the gravity of the proscribed conduct, not to whether a particular class of offenders can be convicted for their acts.
The recent Drug Abuse Office and Treatment Act of 1972 33 establishes an office for coordinating the various federal narcotic programs, provides funding for a national commitment for controlling drug abusé, and demonstrates Congress’ concern over the marginal success of existing civil and criminal narcotic rehabilitation efforts.
These enactments rely on judicial or prosecutorial discretion, or, in the case of the 1972 Drug Abuse Office and Treatment Act, executive discretion, for invoking their provisions. Although emphasizing rehabilitation where possible, they also show beyond dispute that Congress intended drug users, like anyone else, to come under the statute prohibiting narcotics possession. United States v. Moore, supra.
The Local Statutory Scheme
Our local statutory scheme is not unlike the federal. Possession of heroin is a criminal offense, D.C.Code 1973, § 33^102, and treatment is statutorily available to drug addicts, D.C.Code 1973, § 24-601 et seq. This latter statute, the Narcotic Rehabilitation Act, demonstrates clearly that Congress did not intend treatment to substitute for conviction for possession by addicts of heroin but rather that addicts be given no exemption from conviction:
The purpose of sections 24 — 601 to 24— 611 is to protect the health and safety of the people of the District of Columbia from the menace of drug addiction and to afford an opportunity to the drug user for rehabilitation. The Congress intends that Federal Criminal laws shall be enforced against drug users as well as oth*408er persons, and [the Act] shall not he used to substitute treatment for punishment in cases of crime committed by drug users. D.C.Code 1973, § 24-601. (Emphasis added.)
Prior to the passage of the Narcotic Rehabilitation Act in 1953, the only available treatment was as part of a criminal sentence. With the passage of the Act addicts not charged with a crime could seek treatment through civil procedures. As Congressman Miller, the author and floor manager of the bill, explained :
. . . The addict[s] should not be forced to go through a criminal procedure as they do now in many States and suffer this stigma in order to get adequate treatment for their addiction. [99 Cong.Rec. 2240, 2241.]
The purpose of the Narcotic Rehabilitation Act was only to provide a civil commitment procedure for drug users. The Act operates independently of the criminal system. “[The federal] NARA went further and provided for civil commitment even of persons charged with crimes, in the case of crimes deemed related to drug abuse (with certain exceptions),” United States v. Moore, supra at 407, 486 F.2d at 1171 (Leventhal, J., concurring), whereas those addicts in the local criminal justice system are treated at penal institutions or through conditions of probation34 and parole.35 This statute contemplates full enforcement of the criminal laws against habitual drug "users as well as other persons.
In the absence of impelling constitutional considerations it is not our role to supplant the legislative judgment. Congress’ avowed intent to prosecute and convict drug users where indicated for all crime necessarily nullifies this court’s authority to formulate a new common law rule of criminal responsibility which would insulate those same drug users from criminal punishment, even if we were so inclined which, for reasons that will appear, we are not.
V. EASTER v. DISTRICT OF COLUMBIA
Appellants place considerable reliance upon the decision in Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966). This reliance is misplaced. DeWitt Easter was a chronic alcoholic who was arrested, tried and convicted upon a charge of public drunkenness.36 He asserted three reasons why his conviction could not stand: 1) Congress, by enacting the Alcoholic Rehabilitation Act, had precluded punishing chronic alcoholics for public drunkenness, 2) the common law rules of criminal responsibility precluded a conviction, and 3) the Eighth Amendment prohibition against cruel and unusual punishment barred any punishment from being imposed.
Only the first view, that Congress did not intend the punishment of chronic alcoholics for public drunkenness, commanded a majority of the court. Easter v. District of Columbia, supra at 43-44, 361 F.2d at 60-61. It is asserted here, however, that the 1947 statute involved in Easter closely resembles the 1953 D.C. Narcotic Rehabilitation Act, discussed supra, and that Congress thereby intended to do the same thing for narcotic addicts as the 1947 statute did for alcohol-dependent persons, and that the Easter rationale precludes punishing addicts for possession of heroin.
Easter, however, rested on a finding that Congress had excluded chronic alcoholics from the class of persons who could be criminally convicted for public drunkenness. In the D.C. Narcotics Rehabilitation Act, on the other hand, Congress has required that narcotics laws be enforced *409against drug users as well as other persons.
The Circuit Court did not base its decision on any particular provision of the Alcoholic Rehabilitation Act, but rather examined the Act as a whole:
The full flavor of the enlightened treatment of the subject by Congress, demonstrating its intention that the chronic alcoholic be subjected to civil processes when found intoxicated in public, rather than convicted as a criminal, can be gathered only by perusal in full of the Act of 1947. [Easter v. District of Columbia, supra at 34 n. 2, 361 F.2d at 51 n. 2.]
The two provisions of the Alcoholic Rehabilitation Act which the court focused on were the definition of chronic alcoholic, which is similar to the definition of a drug user in section 24-602(a), and the purpose of the Act:
The purpose of this chapter is . . . to substitute for jail sentences for drunkenness medical and other scientific methods of treatment which will benefit the individual involved and more fully protect the public. D.C.Code 1961, § 24-501. (Emphasis added.)
In contrast, the purpose of the Narcotic Rehabilitation Act demonstrates that Congress did not intend treatment to substitute for conviction for possession by addicts of heroin but rather that addicts be given no exemption from conviction:
The Congress intends that Federal criminal laws shall be enforced against drug users as well as other persons, and [the Act] shall not be used to substitute treatment for punishment in cases of crime committed by drug users. (Emphasis added.) 37
Moreover, a provision of the Narcotic Rehabilitation Act, conspicuously absent from the Alcoholic Rehabilitation Act, makes the former inapplicable to any person
charged with a criminal offense, whether by indictment, information, or otherwise, or if the said person is under sentence for a criminal offense, whether he is serving the sentence, or is on probation or parole, or has been released on bond pending appeal.38
There are valid and rational differences between addiction to heroin and alcohol. The first is obvious: alcohol is legal, although regulated, while heroin is prohibited. The second is more complex and is fairly stated as follows:
Alcohol, some will say, has consequences for many individuals and for society at least as destructive as those of heroin, yet no one would propose returning to a system of prohibition. Alcohol and heroin are different problems, however, both medically and legally. A far smaller proportion of alcohol users than of heroin users become addicted in any meaningful sense of that term; the risks to the average individual of experimentation are accordingly far less in the former than in the latter case. And of those “addicted” to alcohol, there have been a larger proportion of “cures,” though not as many as one would wish. Finally, alcohol use is so widespread as to be nearly universal, while heroin use remains an exotic habit of relatively few, and thus presents easier problems of control. Perhaps because of this, while no advanced society has been able to eliminate alcohol use, virtually every society but ours has been able to eliminate, or keep to trifling proportions, heroin use. [Emphasis in original.] Wilson, Moore & Wheat, The Problem of Heroin, 29 The Public Interest 26-27 (1972).
Moreover, Congress, in light of Easter, has made unmistakable its agreement with *410that decision. As amended in 1968, the statute now reads, in part:
[A]ll public officals in the District of Columbia shall take cognizance of the fact that public intoxication shall be handled as a public health problem, rather than as a criminal offense, and that a chronic alcoholic is a sick person- who needs, is entitled to, and shall be provided appropriate medical, psychiatric, institutional, advisory, and rehabilitative treatment services of the highest caliber for his illness. [Emphasis supplied; D. C.Code 1973, § 24-521.]
It is not permissible to apply the congressional intent underlying one statutory scheme to another, significantly different, statutory scheme. The statutes are mutually exclusive. Both deal with problems of human conduct that have a disabling impact on society in general. Congress, the legislative voice of societal attitudes, has made its judgment clear. Two forms of addiction, medically distinguishable, are to be handled in different ways when they are accompanied by criminal conduct. Once that legislative judgment is apparent, our role ends unless there is unconstitutionality.
VI. THE OVERWHELMING COMPULSION TO POSSESS AND USE HEROIN
The pivotal fact in appellants’ position is that heroin addiction causes or creates in them an “overwhelming compulsion” to possess and use heroin. They posit that the “compulsion” negates “free will” thus removing any meaningful choice, in the legal sense, to refrain from possession or use of narcotics.
Even accepting these propositions as valid, and we do not do so, we have concluded that the affirmative defense urged upon us should not receive the sanction of this court.
Addiction in its Proper Context
It is important to recognize at the outset that we are dealing here with heroin addiction in the context of crime. Congress has made it a crime to possess heroin, D.C. Code 1973, § 33-402, despite the recognition that narcotic drug users, the primary possessors of heroin, might from a medical viewpoint be addicted. In addition, society and its judicial system is confronted with heroin addiction in the context of other crimes, those against person, property, and community.
Drug addiction is an individual medical characteristic. The degree of an individual’s addiction predicts the amount of heroin required to support his or her craving for the drug. But the drug is not free and it is not cheap. Heroin is priced on the market at a level that is set by the available supply, the amount of demand and the ability of a monopolistic market structure to exact as high a price as possible for the commodity. This results, for most addicts, in a daily dollar requirement for heroin that is greater than their income if they have any. Unless the addict can afford it, he turns to the community to support his addiction.
The community does not support addiction willingly. Two sources of income for the addict are available: 1) directly through street crime, or, 2) by the sale of small amounts of drugs to other addicts. “It is well known that most addicts support their habits through criminal activities.” 39 It is dubious, therefore, to view this purely as a “victimless crime”, if there is such a thing in a profound sense. In the long run the sales from addicts to addicts is self-perpetuating as older addicts service new addicts. Thus the addict who cannot support his habit through legal means contributes to the misery of the community in two distinct ways: through the commission of crimes against person or property or *411through perpetuation, if not enlargement, of the addict population.
It is reported through statistical analysis that in New York City a “10 percent increase in the price of heroin is predicted to lead to a 3.6 percent increase in robberies, a 1.8 percent increase in burglaries, a 2.0 percent increase in larceny under $50, and a 2.5 percent increase in auto theft.” G. Brown and L. Silverman, The Retail Price of Heroin: Estimation and Applications 36 (The Drug Abuse Council, Inc. 1973).40 Moreover, “predicted increases in . murder [5.3 percent] and aggravated assault [1.5 percent], may be attributed either . to increases in violence within the addict population and distribution system as a result of high prices, or to peculiarities in crime-recording. Larger numbers of murders might, in fact, be the result of an increase in robberies, burglaries, and other revenue-raising crimes, some of which lead to murder.” Id.
Another researcher estimates that only 3.8 percent of the money used to purchase heroin is raised through legal sources including welfare payments, while shoplifting accounts for 12 percent, burglary for 14.2 percent, pickpocket and con games for 5.2 percent, armed robbery and mugging for 1.8 percent. The bulk of income is derived from providing the community with illegal services: dealing in the drug, 46.5 percent, and prostitution, 16.5 percent. See Moore, Economics of Heroin Distribution, in 3 Policy Concerning Drug Abuse in New York State 65 (Hudson Inst., 1972).
Still another researcher has noted that since 1937 observers of the criminogenic effects of opioid [heroin] use have noted “the necessity to resort to crime in order to support an addiction.” Tinklenberg, Drugs and Crime, in 1 Technical Papers of the Second Report of the National Commission on Marihuana and Drug Abuse 242, 262 (1973). He also notes that there are studies indicating that “when opioid [heroin] use decreases by treatment or other means, so does criminal behavior.” Id.
Judicial Intervention
What we are asked to do in this case is to change the course of settled principles of criminal responsibility to uncharted seas by validating a limited defense (to personal possession offenses) based upon an addict’s overwhelming compulsion to possess heroin. Such a course cannot be lightly taken. As was stated in United States v. Moore, supra at 416, 486 F.2d at 1180:
Only in limited areas have the courts recognized a defense to criminal reponsi-bility, on the basis that a described condition establishes a psychic incapacity negativing free will in the broader sense. These are areas where the courts have been able to respond to a deep call on elemental justice, and to discern a demarcation of doctrine that keeps the defense within verifiable bounds that do not tear the fabric of the criminal law as an instrument of social control. [Leventhal, J., concurring.]
Accepting that proposition as a concise statement of when a court should recognize a defense such as that asserted here, we will undertake an examination of whether the premises for such action are met in this case.
Elemental Justice
When we consider the general concept of justice we must address the process as a whole insofar as it relates to drug addition- *412and the personal possession offenses. The basic question would be whether it is fundamentally unfair to deny the defense asserted here. We have discussed the community’s interest by placing addiction in its proper context so we turn now to the individual addict.
The penalties for possession are substantial41 but our local law has never required the mandatory penalties that caused the federal statutes to be carefully reexamined. See United States v. Moore, supra at 402-10, 486 F.2d 1166-74 (Leventhal, J., concurring). A probational disposition coupled with a requirement that the defendant seek and remain in a treatment program is available in all cases at the discretion of the trial court and was in fact utilized in these cases under review. See nn. 12 and 13, supra.
Moreover, the Superior Court has recently inaugurated a pilot pretrial diversion program for drug abusers called The Narcotics Diversion Project which is available to those charged with possession of narcotics. It operates as follows:
. The program . . . will divert selected drug abusers out of the regular criminal justice process, after arraignment but before trial, and offer them an intensive program of narcotics treatment, counseling and supportive services. Provided a diverted defendant progresses satisfactorily and is not rearrested while participating in the program, the charge(s) against him will be nolle prosequied by the Office of the United States Attorney.42
The services available are extensive:
The Narcotics Diversion Project enjoys the status of a “cooperative program” with the Narcotics Treatment Administration. Thus, multimodality narcotics treatment — methadone maintenance, methadone detoxification or abstinence —is available. Participants will retain the status of clients of NTA while in the Project. However, all counseling, job development and supportive services will be provided by Project staff, who are employees of the Superior Court. Project participants will report to Project counselors, stationed at an existing NTA outpatient facility, several times weekly.
High-intensity individual counseling on a small case-load basis is an integral feature of the Project. Group and family counseling, remedial education, job development and placement services, assistance with food stamps, housing and medicare will also be provided. Initial failure to report for counseling sessions or appointments will result in outreach by Project staff to locate delinquent participants, identify the reasons for their absences, and encourage them to return to active participation.
The Project, during its first year, will be a small carefully monitored pilot program. A staff of a dozen professionals and paraprofessionals, including two full-time job developers and four counselors, will serve an estimated 100-1S0 participants. Once intake warrants it, the services of skilled volunteers will be *413actively sought in order to augment the regular Project staff.43
We think this is a promising approach in an attempt to accommodate humanitarian aspects of this problem with the criminal justice system. Diversion, probation and incarceration are the methods that the community has now chosen in reaction to the crime of heroin possession. At a minimum, criminalization forces the nontraf-ficking addict who will not seek out treatment into the treatment facilities made available through the criminal justice system. This is to the good of all concerned. The addict who is able to refrain from heroin usage after he has been processed through this system has benefitted personally as has the community which will no longer have to support his self-destructive habit which carries with it a harmful effect on society.
Because we have concluded that the existing criminal justice system as it pertains to the heroin possession offense comports, on balance, with our concepts of elemental justice, we need not consider the issue of whether the defense asserted here could be kept within verifiable grounds, a factor viewed yvith skepticism in United States v. Moore, supra at 417-21, 486 F.2d at 1181-85 (Leventhal, J., concurring). If the dissent’s affirmative defense were judicially recognized the actuality is that to establish addiction one would need only show habitual use accompanied by an assertion of compulsion to use it, a proposition within the control of the defendant and by its nature not likely to be rebutted by evidence available to the government. With this prospect, there would be little point to the arrest or prosecution of known users for possession. Viewing it realistically, this would amount to legalization of possession of the narcotic. What would society through the government be telling the citizenry and especially the young? In the eyes of the young, there would no longer be governmental, that is to say, societal, restriction on possession or use of narcotics.
The dissent says that individuals who are most likely to become addicts are not deterred by the punishment of nontraffick-ing possessors. One might say with just as much significance that individuals who are most apt to rob are not deterred by the robbery statute. Even though criminalizing possession of narcotics has hardly stopped narcotics addiction it would be a worse thing for society, and especially the young society, if the government were to remove even these barriers. It would be undiscerning to think that if this were done it would not be considered by the youth as, in effect, tacit approval. How much worse this would be.
It is the trend in this jurisdiction to approach the problem humanely and to utilize the criminal justice system not primarily as a means to punish addicts for possession of the substance but as a method to control its distribution and also locate addicts and *414bring- them into the system where, in many instances, they are shunted into treatment opportunities with the incentive of escaping imprisonment by cooperating, which in turn provides a strong deterrent. We consider that this entire problem requires a pragmatic approach and we are inclined to observe the results of current experience resulting from studies of the recent narcotic epidemic.44 See Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413 (1975), for a recent penetrating analysis of the problem.
We know of no appellate decision that has approved this affirmative defense. Interestingly the National Commission on Marihuana and Drug Abuse recommends that “[t]he primary purpose of enforcement of the possession laws should be the detection and selection of those persons who would benefit by treatment or prevention services.”45
VII. CONCLUSION
We are dealing with heroin addiction in the context of criminal activity. Had Congress left it available to us to “legalize”, in effect, the possession of heroin by nontrafficking addicts, which it has not, our doing so might well upset the delicate balance of efforts in this community that has had marked success over the past several years in reducing heroin addiction here. We are of the opinion that the continuation of this city’s efforts on heroin addiction through law enforcement and treatment may, in the long run, serve the community well. We would not now upset the balance of this multi-pronged effort even if it were open to the court to do so, which statutorily it is not.
Affirmed.
APPENDIX A
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA-CRIMINAL DIVISION
Nos. 28001-70 29895-70 42860-70
UNITED STATES OF AMERICA v. CHESTER WILLIAMS, ARNOLD GREGORY SMITH, LAVERNE FLORENCE GORHAM
MEMORANDUM ORDER
These consolidated cases come before the Court upon the defendants’ motions to dismiss the informations. The three defendants are charged with one or more of the following offenses: possession of a narcotic drug, heroin, in violation of the Uniform Narcotic Act, D.C.Code § 33-402 (1967); possession of the implements of crime, to wit, narcotic paraphernalia, in violation of D.C.Code § 22-3601 (1967); and possession of a dangerous drug, desoxyn, in violation of 21 U.S.C. §§ 331 (q) (3) (B) and 360a(c) (2).1 The defendants ground *415their motion to dismiss on the contention that at the times pertinent to these charges they were narcotics addicts who did not traffic in narcotics but who were under a compulsion to possess and use the drugs in question and who, therefore, under the Cruel and Unusual Punishment Clause of the Eighth Amendment of the United States Constitution, cannot be held criminally responsible for their actions. Their motions are denied.
I.
In attacking the informations by motion to dismiss, the defendants have followed the procedural and substantive suggestions of the United States Court of Appeals for the District of Columbia Circuit set forth in Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970). Although limiting its holding to the matter of the eligibility of the defendant for sentencing under Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-55, the United States Court of Appeals in Watson discussed at great length the origins of the defense raised here. In essence, the defendants’ contentions are proffered as a necessary corollary to the holding of the United States Supreme Court in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), that the State of California was barred by the Cruel and Unusual Punishment Clause from prosecuting a heroin addict for his “status” of addiction. The U.S. Court of Appeals summarized its review of the matter as follows:
“So it is that, if Robinson’s deployment of the 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.” Watson, supra, 439 F.2d at 453.
The first meaning ascribed by the U.S. Court of Appeals to Robinson has limited relevance to the case at bar since these defendants are not being prosecuted, as was Watson, for violations of the Harrison Narcotics Act, 26 U.S.C. § 4704(a), or the Jones-Miller Act, 21 U.S.C. § 174. Those statutes do not make mere possession of a narcotic drug a substantive offense. Rather, they are so constructed that proof of the possession of the narcotic drug makes possible the conviction of a defendant for a variety of other prohibited acts, such as selling or dispensing narcotics upon which appropriate taxes have not been paid. In the locally applicable Uniform Narcotic Act, however, the Congress, with knowledge of the existence of the phenomenon of addiction, specifically made it a crime to possess heroin. Accordingly, it is .to the second meaning which the U.S. Court of Appeals ascribed to Robinson that the defendants in this Court have directed their arguments.
Again following the course suggested in Watson, the defendants have made an extensive record embracing the testimony of all three defendants, their counsellors at the narcotic treatment programs in which they are presently enrolled, and two psychiatrists. The government countered by adducing the testimony of a psychiatrist and, in response to a request by the Court, arranging for the presence of three court witnesses who testified concerning various aspects of local drug programs.2
*416II.
There was substantial agreement among both the psychiatric and lay witnesses that narcotic addiction has two main components — the physiological dependence and the psychological dependence upon or attraction for the drug. The physiological aspect of addiction is characterized by a strong physical craving for the narcotic drug, the onset of withdrawal symptoms if that craving is not satisfied, and the phenomenon of tolerance, which means that the addict becomes used to a certain level of dosage of a drug and must raise it to a higher level in order to experience the sought-after “high” or “rush,” a brief feeling of intense pleasure which is obtainable by the intravenous injection of drugs of the opiate family and is obtainable to the highest degree through the use of heroin.
The second principal component of addiction is the psychological dependence or attraction which the addict has with regard to the drug. The psychological aspect exists apart from the physiological and remains with an addict even after he has gone through withdrawal or has been detoxified and is, therefore, no longer physiologically dependent.3 There was substantial agreement that a strong pull of an emotional or psychic nature is exerted upon the addict and that constituents of that pull or attraction are the need for the “rush” and also the need for the feeling of euphoria or tranquility which follows the rush. There was also testimony that a third constituent of the psychological- dependence was the presence of psychic tensions which existed and demanded amelioration through the use of a drug.
The witnesses agreed that there is a cross-tolerance between certain drugs. Important to this case is the fact that heroin and methadone are cross-tolerant. As a result, a heroin addict’s physiological craving, dependence or need for heroin can be satisfied by the administration of methadone. While the latter can be administered intravenously, it is taken orally by persons in drug abuse programs. When so administered, methadone does not produce a “high.” One administration of methadone every 24 hours protects the heroin addict from withdrawal and its severe attendant discomfort, which approximates the symptoms of a severe case of influenza.
There are two methods through which methadone is used to treat heroin addicts. The addict can be furnished with dosages of methadone which are gradually diminished over a period of time ranging from 5 to 30 days and thus be detoxified with minimal discomfort. He then is no longer physiologically addicted. Alternatively, an addict can be “maintained” on methadone for an extended period or indefinitely and thus never experience withdrawal. The use of methadone in an amount which is sufficient, in view of the addict’s prior level of heroin use, will not only avoid withdrawal; but it will also prevent the addict from experiencing a “rush” if he should use heroin during the period the methadone dose is effective. The practice in maintenance is to increase gradually the dosage of methadone to such a level that it makes the amount of heroin needed by the addict to experience a “rush” so great, and accordingly so expensive, that it is beyond the reach of most addicts. This practice is referred to as the administration of a “blocking” or “blockading” dose.4
The parties also stipulated to terminology concerning customary measurements of *417heroin on the Washington, D. C. market, as set forth in the footnote.5 To the extent that the foregoing facts underlie generally the conclusions reached by this Court in disposing of these motions, they are to be considered findings of fact.
Mr. Louis Dogoloff, Deputy Director of the Narcotic Treatment Administration (hereinafter “NTA”), testified that there are approximately 10,400 addicts in the District of Columbia. He stated that as of July 30, 1971 (the time period pertinent to these motions) every such addict had access to methadone through NTA.6 Almost 2,000 persons were actively enrolled in NTA’s programs, 80 percent of whom came in voluntarily and the remainder through referral from the court or corrections systems.
NTA was not the only source of methadone available to the heroin addict as of the time of the offenses charged here or as of the time of the hearings. The Black-man’s Development Center also operated a highly publicized and intensive campaign against drug abuse through its four centers located in various parts of the city. The chief judicial officer of the Blackman’s Center estimated that they had at one time or another enrolled 17,000 addicts in some aspect of their programs as of the time of his testimony, and roughly approximated the Washington area’s addict population at 30,000. Over 1,000 were actively enrolled as of the time of his testimony. The Blackman’s Center has supplied addicts with methadone in connection with a detoxification regimen and has buttressed that approach with person-to-person motivation which has proven markedly successful in some cases, for example, that of the defendant Smith.
A third source of methadone generally available to addicts in the city, and apparently widely known, has been through prescription by private physicians. In sum, methadone was widely available and its availability well known in the addict community as of the time of the offenses charged against the three defendants in these cases.
Apart from the matters of general agreement discussed above, the psychiatrists who testified held widely varying views of important aspects of addiction. The first psychiatrist called by the defense was Dr. Harold Kaufman, a 1957 graduate of Harvard Law School and a 1964 graduate of the Medical School of the University of California at San Francisco. He testified that he does not believe that addiction is a mental illness. Rather, he believes that it is a physical illness which has psychological components. He is also of the belief that a person who is merely psychically dependent on drugs, but not physiologically dependent, may act under a compulsion. Specifically with respect to the defendant Laverne Gorham, he testified that on the basis of her psychic dependency alone she had an “overwhelming compulsion” to use heroin on the day of her arrest. He was of that opinion even though (1) she was not then using heroin on a regular basis but was using it intermittently, (2) she was using methadone to *418block her physiological craving, and (3) she had obtained some degree of control over her actions. He testified that the word “compulsion,” as he used it, covers a wide variation “ranging from inclinations on the one hand, and the inability to resist in the face of death on the other.” He also testified that an addict who had no other source of drugs other than to obtain money would be compelled to obtain money. He acknowledged that the invoking of the legal process to force an individual to go through with a program to cure his addiction is sometimes beneficial and in the case of some addicts is the only way to achieve that result.
The second psychiatrist called by the defense was Dr. Leon Wurmser. The Court attaches considerable weight to his testimony. Dr. Wurmser testified that drug addiction is not in itself an emotional disorder or mental illness, but rather that there is in his experience almost invariably an underlying emotional pathology which predisposes one toward addiction. He favored the use of methadone for the following reasons:
(1) It copes with the addict’s physical dependence upon heroin.
(2) It deals to a considerable extent with the psychological dependency, substantially eliminating or greatly reducing the craving which one experiences even after physical dependence has been removed.
(3) It eliminates the addict’s emotional dependency upon heroin.
Dr. Wurmser stressed, however, that the methadone as administered by drug programs cannot give the “rush.” He shares the general view that a program which merely administered methadone but did not give more, such as counselling, would not be an effective drug cure program.
Even more explicitly than Dr. Kaufman, Dr. Wurmser stated that one cannot separate the compulsion to take a drug from the compulsion to steal or rob to obtain funds to purchase the drug. He also testified that the legal barrier prevents the existence of an even greater number of heroin addicts and explained that the more illegal the activity in question the more compelling must be the motivation to induce one to transgress the legal barrier.
Dr. Wurmser also stated his opinion that an addict can have an overwhelming compulsion to take heroin on the basis of psychic dependency alone, even where he is not physiologically dependent upon the drug. He qualified that opinion by noting the tremendous fluctuations in the amount of compulsion facing each individual. He also stated that if an addict is taking a blocking dose of methadone he will not in most cases have an overwhelming compulsion to take heroin for a high, although some could have such a compulsion even under those circumstances.
Dr. Richard Phillipson, a psychiatrist called by the government, stated the opinion that an addict has some freedom of choice with respect to his further use of narcotics and to support his position cited the fact that thousands of addicts have made the requisite decision and have stopped using narcotics. He testified that addicts have a choice unless they are insane, that is, are suffering from a “disease of the mind” or a “defect of reason.” He testified further that there is no such thing as an “overwhelming compulsion” to use narcotics, and he based that statement in part on his conversations with addicts concerning the extent of their ability to stop using narcotics.
Dr. Phillipson also stated that the use of methadone not only eliminates the physiological aspects of the addiction, but also takes care of the addict’s psychological dependency in a sense, but qualified that “you can’t separate the body from the mind that plainly.” In his opinion, however, it is very much easier for an addict *419to resist psychic dependence alone than to resist combined physiological and psychological dependence.
III.
Before treating of the legal issues raised here, it is appropriate to describe in more detail the circumstances surrounding the charges against the three , defendants. Chester Williams, Jr., is charged with possession of the implements of crime, to wit, narcotic paraphernalia, in violation of D. C.Code § 22-3601 and possession of a dangerous drug, to wit, desoxyn, in violation of 21 U.S.C. §§ 331 (q) (3) (B) and 360a(c)(2). Both offenses are alleged to have occurred on July 16, 1970. Mr. Williams is now 35 years of age and has been using heroin since 1965. He has supplemented heroin with desoxyn or “Bam” since 1968. His heroin habit had reached the 30 capsule per day level during the two to three months prior to his arrest. He testified that when he was arrested he had just completed preparations for an intravenous administration of heroin and that when he realized he was about to be arrested he disposed of the contents of the syringe. The narcotic paraphernalia were in his possession to facilitate the injection he was about to make, and the desoxyn tablets in his possession were to be used to boost the “high” which he sought. He testified also that at the time of his arrest he was aready beginning to feel the symptoms of withdrawal because some 5]/2 hours had elapsed since his last injection of heroin.
Mr. Williams testified that he had made various efforts to overcome his heroin habit prior to his arrest. He had placed himself in a two-week detoxification program at St. Elizabeth’s Hospital which involved the administration of gradually reduced amounts of methadone. Thereafter he was placed at Lexington, Kentucky for a 60-day period of evaluation, after which he was given a one-year term in prison. Following his release therefrom in July of 1968 he returned to the use of heroin. He had also placed himself in the program of the Blackman’s Development Center from June to September of 1969, the first two weeks of which involved another methadone detoxification program and the balance of which consisted of supportive counselling. Following his jail term but prior to his enrollment with the .Black-man’s Development Center, Mr. Williams had two “consultations” with a private physician who prescribed dolophine (methadone) for him. The “consultations” cost $10, and a prescription of 21 tablets of do-lophine cost an additional $2.75.
Mr. Williams stated that while in prison he had no physical craving for heroin, but only a mental or psychological craving for it. Similarly, he acknowledged that while using methadone he had no craving for heroin. He stated that he took heroin to get a high or a feeling of relaxation but takes methadone to achieve “just a feeling of being normal.”
Mr. Williams testified that he had never engaged in any criminal activity to secure the money he needed to support his heroin habit.
On July 29, 1970, Arnold Gregory Smith was arrested and charged with unlawful entry and possession of implements of crime, to wit, narcotic paraphernalia, the latter in violation of D.C.Code § 22-3601. His motion to dismiss is directed only to the charge of possession of implements of crime. Mr. Smith, who is now 22 years of age, first began to use heroin in March of 1966. His habit grew rapidly, as is evidenced by his testimony that he has on occasion used as much as two spoons or 30-50 capsules in a single injection. As of July 1970 his average consumption was 1J4 spoons per day, administered in the course of three or four injections. He testified that he would ordinarily begin to feel “bad” some four hours after an administration of heroin and that his discomfort would become severe after eight or nine hours. He tried unsuccessfully to break his habit in the Spring of 1970. His at*420tempt consisted of two days of participation in the methadone program at D. C. General Hospital, after which he returned directly to the use of heroin. Following his arrest on the offenses involved here, he was released to the Blackman’s Development Center and as a part of their program took methadone for one day. For the following two weeks he returned to the use of heroin and took no methadone. Then, resolving to break the habit, he took progressively smaller doses of methadone for four to five days under the auspices of the Blackman’s Development Center. Since then, he testified, he has used neither heroin nor methadone.
Mr. Smith testified that curing one’s self of addiction is a matter of making up your mind that you are bigger than the drug. It is “the idea of wanting to be a man.” He freely admitted that before he broke the habit he supported it by robbing and stealing.
“Q. Why did you do those things ?
“A. Because I needed the money.
“Q. Did you feel compelled to do them, did you have any choice ?
“A. No, sir, not really.”
‡ ‡ ;jc ‡ if: %
“Q. Was your compulsion to rob to get the money any different from your compulsion to shoot up itself ?
“A. No.”
Laverne Gorham is charged with possession of heroin in violation of D.C.Code § 33-402 and possession of the implements of crime, to wit, narcotic paraphernalia, in violation of D.C.Code § 22-3601. Both offenses are alleged to have occurred on August 4, 1970. Miss Gorham is 26 years old and has been injecting heroin since the age of 19. Her habit had grown from a mere l]/2 pills or capsules to four spoons per day. She administered the four spoons, which amounts to 60-100 capsules, over the course of four injections per day and, except to the extent of her substitution of methadone as described below, had remained at that level for more than one year prior to her arrest.
She testified that she now has no urge to take heroin and has been on a methadone maintenance program of increasing dosage for some five or six months.
Miss Gorham had enrolled in the methadone maintenance program at D. C. General Hospital prior to her arrest and was taking what was supposed to have been a “blocking” or “blockading” dosage of methadone. Although she testified that as of the time of her arrest she acquired no high from heroin because of the amount of methadone she was taking and was using little or no heroin as of that time for that reason, she explained that the methadone was not totally satisfying and she still used heroin at times to keep from feeling bad. She finally indicated that at the time of her arrest she was not getting a high. She further clarified that since the time of her arrest her methadone dosage has been increased even further and that it has now taken away the craving for heroin. She had 81 heroin pills on her person when arrested. She first indicated that she had those for the purpose of selling them but later indicated that they were for her own use. The clear import of her testimony as a whole was that she had at times engaged in the sale of heroin for a profit, although that profit appears to have been utilized mainly to support her own heroin habit.
IV.
We turn now to the legal issue whether Congress is forbidden by the Cruel and Unusual Punishment Clause of the Eighth Amendment from imposing criminal penalties on the nontrafficking addict’s possession and use of heroin under the circumstances presented by the cases before the Court. In Robinson, supra, the Supreme Court stated unequivocally that the state can impose criminal sanctions upon the unauthorized possession of narcotics. It *421made it clear that the California statute in question ran afoul of the Eighth Amendment because California was attempting to punish the addict merely for his “status” of being an addict and entirely apart from his having performed any specific criminal act.
“The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in [Minnesota ex rel.] Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819, this Court explicitly recognized the validity of that power: ‘There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs .. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.’ 256 U.S. at 45, 41 S.Ct. [425], at 426.” Id. 370 U.S. at 664, 82 S.Ct. at 1419.
In the somewhat analogous area of chronic alcoholism, the U. S. Court of Appeals for the District of Columbia Circuit held in 1966 that chronic alcoholism is an illness and that a chronic alcoholic cannot be punished for being drunk in public. Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966). The Court of Appeals based its holding alternatively (1) on the Eighth Amendment and (2) on the congressional intent evinced in the Rehabilitation of Alcoholics Act of 1947, D.C.Code § 24-501 et seq. (1961), which authorized the courts of the District of Columbia to “take judicial notice of the fact that a chronic alcoholic is a sick person and in need of proper medical, institutional, advisory and rehabilitative treatment . . ..” The Eighth Amendment grounds for Easter were placed in substantial doubt by the Supreme Court opinion in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), discussed below, with the result that the Easter holding remains the law of the District of Columbia, with certainty at least, only because of the alternative legislative basis for the holding.
Powell affords the Supreme Court’s most recent discussion of the problems involved in the case at bar. There an almost evenly divided Court upheld a Texas statute which made public drunkenness a crime. Mr. Justice Marshall announced the judgment of the Court and delivered an opinion which was concurred in by Chief Justice Warren and Associate Justices Black and Harlan. Mr. Justice Marshall stated:
“The entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ or ‘occasioned by a compulsion.’ ” Id. 392 U.S. at 533, 88 S.Ct. at 2155.
After discussing such factors as the lack of adequate facilities for the public treatment of inebriates, the absence of any coherent approach to the problem of the treatment of alcoholics, the desirability of removing the helpless and sometimes dangerous inebriate from the streets to a place where he can sober up, and the limitations upon a period of incarceration which accompany the use of criminal as opposed to “civil commitment” proceedings, Mr. Justice Marshall concluded:
“[I]t is difficult to say in the present context that the criminal process is utterly lacking in social value. This Court has never held that anything in the Con*422stitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects . . ..” Id. at 530, 88 S.Ct. at 2153.7
Recognizing that an extension of Robinson beyond “status” to embrace “compelled” acts would involve the creation of a new constitutional doctrine of criminal responsibility, Mr. Justice Marshall asked what the scope and content of that doctrine would be. The question of where to draw the line if the compulsion of addiction provided of itself the basis for a defense is shown by the testimony on these motions to be extremely troublesome. Defendant Smith stated that his compulsion to rob to finance his habit was no different than his compulsion to shoot heroin. Psychiatrists Dr. Wurmser and Dr. Kaufman testified to the same effect.
The dissenting Justices in Powell suggested that the defense be available to exempt only conduct which is “a characteristic and involuntary part of the pattern of the disease as it afflicts” the person in question. Powell, supra, dissent at 559, 88 S.Ct. at 2167. The defense in these motions suggests that the proper policy might be to permit the defense of compulsion by reason of addiction as to crimes against property but not as to crimes against persons.
On the basis of the record before this Court it is clear that the same logic which would extend Robinson beyond the status of addiction to acts of possession, purchase and use by a nontrafficking addict would extend it still further to other criminal acts, such as theft, burglary and robbery, committed by typically impecunious addicts. As Mr. Justice Marshall stated, any curtailment of that logic would be “limitation by fiat.” Id. at 534, 88 S.Ct. 2145.
The ultimate question for this Court is not whether, if it were sitting in the capacity of a legislature, it would direct the use of civil commitment instead of criminal prosecution for the nontrafficking heroin addict as is proposed by the defendants or would prefer to make civil commitment an alternative to prosecution, as was proposed by the Report of the President’s Commission on Crime in the District of Columbia, Chapter 7, § IV at 577-85 (1966). Rather, the question is whether under the Constitution Congress has the power to make criminal proceedings the primary means of proceeding against persons in this jurisdiction who possess or administer heroin, even if they are addicts not engaged in heroin traffic. Stated otherwise, it is whether the use of the criminal process for that purpose is precluded because it is cruel and unusual or because its use is without social value.
In answering the question, as last stated, in the negative, the Court considers several values inherent in the use of the criminal process which must be weighed in determining whether such legislation is valid. Its use discourages trafficking in narcotics by making criminal the very act of serving as the final repository for the commodity. It is probable that heroin traffic would be aided, if the courts were to remove the pressure of the criminal law from the final step of the series of transactions which brings heroin from foreign sources to our community’s addict-consumers. If the courts legalize possession by the nontraf-ficking addict, we must logically legalize his purchase of the heroin, his administration of heroin to himself, presumably in public or in private, and sales between non-trafficking addicts which are not for profit but merely for convenience or mutual support. The legislature has the function of *423weighing the value of keeping all of the foregoing acts illegal so that the pressure of the criminal law will continue to bear against them and, through them, against the entire heroin trade.8
A second value of the use of the criminal process is that individuals are discouraged from becoming addicts by the very fact that to possess or administer heroin is illegal. The testimony of defendant Williams and Dr. Wurmser makes it clear that the threat of criminal sanctions not only inhibits the use of heroin but also saves some persons from addiction.
It is clear, thirdly, that the use of the criminal process provides the occasion for a potent and beneficial intervention in the life of the addict. The three defendants before the Court in these cases are mute testimony themselves to that value since all three, following their arrest on the pending charges, were successfully enrolled in drug abuse programs. Persons on probation from offenses such as charged here are frequently required to participate in drug abuse programs; and their participation may, in the case of some individuals, be strongly encouraged by the direct threat of a jail term which would ensue if they should fail to make reasonable efforts to cooperate with the program.
Fourthly, there is the undoubted value of getting the addict off the street, a consideration referred to in the analogous context of alcoholism by Mr. Justice Black in his concurring opinion in Powell, supra at 539, 88 S.Ct. 2145, and of even greater importance in the context of an addiction which leads persons to steal and rob.
Obviously, the legislative assessment of such values as the foregoing should be entitled to great weight in considering a challenge of the type made by the defense here. The fact that Congress has made mere possession a crime in the District of Columbia might itself be regarded as expressing the legislature’s assessment of those values which inhere in the use of the criminal process. It is worthy of note, however, that in the recently enacted Controlled Substances Act9 Congress, after a thorough study of the nation’s drug problem, which included consideration of the recommendations of the Prettyman and Katzenbach Commissions, concluded that “simple possession” of heroin and certain other substances should be prosecuted as a misdemeanor and provided special sentencing alternatives for first offenders.10
Turning to another facet of the cruel and unusual punishment issue, it seems apparent that the permissibility of a statutory scheme which permits criminal prosecution for mere possession must be examined also in the light of the criminal penalties imposable. Importantly, there is no mandatory minimum sentence which must be imposed on one charged with possession of heroin in this jurisdiction. Further, addicts charged only with possession may qualify for treatment under the Narcotic Addict Rehabilitation Act.11 In this respect the instant cases are distinguishable from Watson, the author of which acknowledged with respect to the use of that statute:
“Although the act cannot be a final solvent of some of the claims not irrationally rooted in Robinson, it is true that, as amicus says in its brief, ‘the problem in this case would in large measure be obviated if appellant could be treated under the Narcotic Addict Rehabilitation *424Act, from which he is excluded as a twice- previously convicted offender.’” Watson, supra 439 F.2d at 457, fn. 15.
A judge of this Court may sentence one convicted of possession of heroin to a period of probation with a condition of cooperation in a drug abuse program. On the other hand, the judge may in his discretion impose a term of confinement where he deems such to be appropriate, e. g., in the case of a nontrafficking addict who had previously failed to make reasonable efforts to cooperate in such a program as a part of a sentence or as a term of pretrial release. Watson, therefore, is distinguishable in that the statutes in question there are not directed at possession, per se, and in that the scheme of penalties imposable under those statutes is substantially different from those imposable for the crimes charged here.
The availability of methadone to the defendants is an important part of the overall context in which these defendants come before the Court. They had available in methadone a means of avoiding withdrawal and neutralizing the physiological aspect of their addiction. Any compulsion to use illegal heroin was limited to a purely psychological dependence, the product in large measure of remembered pleasures. Mr. Justice Marshall’s opinion in Powell stated :
“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. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions.” Powell, supra 392 U.S. at 526, 88 S.Ct. at 2151 (footnotes omitted).
It is concluded, then, that entirely apart from the matter of limiting the prohibition of Robinson to criminal charges based on status, the absence of true physiological compulsion dictates that these defendants’ motions be denied.
V.
A humane concern for the plight of the victim of the heroin trade should not impel this Court to adopt novel judicial concepts which in the long run would ill serve both the general public and those individuals who will be exposed to the blandishments of the heroin pusher. The concept of compulsion advanced by the defendants, whether applied through the Eighth Amendment or through an alteration of the test of criminal responsibility,12 will, if accepted, lead by inexorable logic to the excusing not only of narcotic possession but also of “compelled” theft, burglary, robbery, and even felony murder.
The legal issues presented by these motions should not be confused or distorted by the desirability of well-funded, carefully conceived, diversified programs to assist drug abusers. Those goals should be sought through legislation and ought not to be accomplished by altering sound judicial concepts.
FINDINGS OF FACT
(1) It is found that on the day of his arrest for the instant charges defendant Williams was a nontrafficking heroin addict. It is further found that he was aware that methadone was available for the purpose of satisfying his physiological craving for heroin through the program at *425D. C. General Hospital, from a private physician at a relatively nominal cost, or possibly through a reapplication to the Black-man’s Development Center. Theré is not evidence of record which would support a finding that this defendant was addicted to desoxyn. At most the record would support a finding that he craved the enhanced “high” that desoxyn afforded.
(2) It is found that defendant Smith was a nontrafficking heroin addict at the time of his arrest. It is also found that he was aware that methadone was available for the purpose of satisfying his physiological craving for heroin and that he also knew how to obtain it.
(3) It is found that defendant Gorham was a heroin addict at the time of her arrest. Unless the term trafficking includes sales made to support one’s own habit (as opposed to more extensive sales which would return, apart from her own habit, a net profit to the addict), she is found on the present record to be a nontrafficking addict. It is further found that as of the time of her arrest she was not only aware of the availability of methadone, which could be used effectively to satisfy her physiological need for heroin, but that she was also being supplied at no expense to herself with a substantial amount of methadone daily, which had the effect of eliminating her physical need for heroin in whole or in substantial part and the further effect of reducing her psychological need for heroin.
(4) Each defendant was at the time of arrest physiologically dependent upon heroin or a cross-tolerant drug such as methadone.
(5) Each defendant was at the time of arrest psychically dependent upon heroin, but that dependency was subject to reduction through the use of methadone.
(6) Each defendant was at the time of arrest suffering from a substantial diminution of his ability to abstain from a further dose of heroin or of a cross-tolerant drug.
(7) The defendants were not at the time of their arrests entirely without control or power of decision with respect to whether to abstain from the use of heroin, irrespective of the availability of methadone.
(8) In the case of each defendant, the use of the available methadone would not only have substantially or fully satisfied his physiological dependence, but would have also reduced his psychological dependence upon heroin.
(9) The remaining constituents of the psychological attraction present in each of the defendants has not been shown to be appreciably different from attractions toward other types of remembered past pleasures which are commonly experienced by human beings. The psychological attraction was, of itself, substantially less than the combined physiological and psychological attraction which is faced by the addict who does not have available to him the use of a cross-tolerant drug such as methadone and which in the cases before the Court was in fact faced by the defendants Smith and Williams only because, as of the time of their arrests, they chose not to take advantage of the availability of methadone.
(10) While each of the defendants had experienced a substantial diminution of his power to abstain from the use of narcotic drugs, at the time of arrest each defendant was substantially free to choose between the use of heroin and the use of a cross-tolerant drug such as methadone.
CONCLUSIONS OF LAW
(1) The Uniform Narcotics Act and the Dangerous Drug Act do not punish the defendants for their status as addicts, trafficking or nontrafficking, but rather for specific criminal acts and, accordingly, are not unconstitutional as violative of the Eighth Amendment’s proscription against cruel or unusual punishments. The use of the statute prohibiting the possession of implements of crime to punish the addict for his possession of narcotic paraphernalia survives the same challenge.
(2) Assuming that a nontrafficking addict is exempt from punishment for the *426possession of heroin or the implements of its use if his possession thereof is found to be compelled by his addiction, the three defendants before the Court are not so exempt because they had a knowing, effective, free choice between using illegally obtained heroin and legally obtainable cross-tolerant methadone to satisfy their physiological need for a narcotic drug and to avoid the symptoms of withdrawal but chose the illegal heroin. Viewed apart from physiological compulsion, and itself subject to relief in part by the use of methadone, the psychological aspect of addiction does not give rise to a compulsion which can serve as a basis for exempting the defendants from the criminal statutes under which they are prosecuted. To punish them under these circumstances is not violative of the Cruel and Unusual Punishment Clause.
No other grounds justifying dismissal having been advanced by defendants, their motions to dismiss are denied.
/s/ James A. Belson JAMES A. BELSON, JUDGEMarch 4, 1971
APPENDIX B
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION
Nos. 28001-70 29895-70 42860-70
UNITED STATES OF AMERICA v. CHESTER WILLIAMS ARNOLD GREGORY SMITH LAVERNE FLORENCE GORHAM
PRETRIAL ORDER
These cases have come before the Court for two pretrial hearings upon the request of the defendants that they be informed in advance of trial whether they will be permitted to place before the trier of fact a defense of nonresponsibility based upon narcotic addiction which does not rest in any part upon a showing that they have an abnormal condition of the mind.1 They propose what is described in Watson v. United States 2 as a “new defense of involuntariness for addicts not equatable to the traditional insanity defense.”
For the purpose of placing the matter before the Court prior to trial, defendants filed a proffer of evidence and a wide range of suggested jury instructions, all of which were carefully constructed so as to avoid any reference to the adducing of evidence of a mental or emotional disease or defect, heretofore a threshold requirement for the creation of an issue of nonrespon-sibility pursuant to the Durham-McDonald line of cases.3
Counsel for defendants have briefed and argued the matter diligently, and their development of the argument that their request is justified as a new but logical application of the concept of mens rea cannot lightly be rejected. At the same time, however, it is apparent that there are weighty considerations which countervail defendants’ request and which suggest that the novel and sweeping approach defendants espouse ought not be adopted by this trial court.
If the Court were to eliminate the requirement of a predicate of emotional or mental disease or defect, a serious problem would arise with respect to the disposition to be made of defendants if they should be *427found not guilty on that basis. In several instances appellate judges in this jurisdiction have suggested by way of dictum that courts faced with a defense of the type raised here might use procedures analogous to those employed in connection with the traditional insanity defense.4 It is at best doubtful, however, that it would be appropriate to commit one to a mental institution unless he has been acquitted by reason of mental illness. It is equally unclear that following such commitment the so-called Bolton 5 hearing as to eligibility for release would involve the application of criteria appropriate to such persons. The result might well be that persons seriously in need of treatment would receive none.
A most troubling aspect of the proposed new test of criminal responsibility is the extent to which the proffered defense would be available to defendants charged not with mere possession of narcotics but with theft, burglary, robbery or indeed any drug-related offense, including murder.6 Once the availability of such a defense were established by the courts on the basis suggested by defendants, there would be no logical means of curtailing its application to relatively minor offenses of the type now before this Court.
The only readily apparent means of attaining the objectives here sought for non-trafficking addicts without incurring a heavy risk of extending a defense to all crimes committed by addicts would appear to be through action by the legislature. That branch, if it saw fit, could undertake by statute to limit the availability of the defense to cases involving mere possession or charges of similar gravity committed by persons who were not trafficking in narcotics, could prescribe post-trial commitment and the criteria for release therefrom, and could determine and provide for the type of facilities made necessary by such a policy. The legislative branch can give special treatment to narcotic offenses committed by nontrafficking users without sacrificing the application of well-established legal principles to more serious offenses. In fact, the Congress has recently accorded mere users such special treatment, including the opportunity to serve probation without verdict and, in certain cases, expungement of arrest records.7
Under all the circumstances this Court declines to apply in these cases the new test of criminal responsibility proposed by defendants but instead will adhere to existing precedents. The defendants may undertake to establish that they are not responsible by reason of insanity pursuant to the test developed in the Durham-McDonald line of cases. They will be required to make a threshold showing in order to raise the issue 8; and they will, pur*428suant to recent enactment 9, be required to establish that defense by the preponderance of the evidence.
Once they have properly raised the issue10, they will be permitted to adduce evidence concerning the physiological11 as well as the psychological components of addiction.12 Should that defense succeed, they will be committed pursuant to statute13 but will be accorded by this Court a prompt hearing for the purpose of determining their suitability for conditional or unconditional release.
/s/ James A. Belson JAMES A. BELSON, JUDGE
May 18, 1971
cc: Counsel
. Several other defendants were tried with Gorham and Williams but were acquitted or failed to note an appeal.
. ABA Special Committee on Crime Prevention and Control, New Perspectives on Urban Crime 25 (1972) [hereinafter cited as New Perspectives on Urban Crime].
. Id. at 44.
. Id. at 25.
. Id.
. See United States v. Brawner, 153 U.S.App.D.C. 1, 21, 471 F.2d 969, 989 (1972), where the court points out the limited number of cases involving acquittal by reason of insanity.
. The order is set out as Appendix A to this opinion.
. In any event, this issue has been disposed of by this court in Wheeler v. United States, D.C.App., 276 A.2d 722 (1971).
. The order is set out as Appendix B to this opinion.
. D.C.Code 1973, § 33-402.
. D.C.Code 1973, § 22-3601.
. The probationary plan required that
1) she live with her mother,
2) she attend the Narcotic Treatment Administration Program at D.C, General Hospital on an out-patient basis for one year (including thrice weekly urine surveillance for drug use), and
3)that she obtain a job as a cook.
. The conditions imposed were 1) good behavior, 2) cooperation with the Narcotic Treatment Administration, and 3) cooperation with Vocational Rehabilitation.
. E. g., McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). The Durham-McDonald Rule was modified in United States v. Brawner, supra note 6.
. 10 Clark & F. 200, 8 Eng.Rep. 718 (H.L.1843).
. See United States v. Moore, supra at 390, 486 F.2d at 1154; id. at 411, 486 F.2d at 1175 (Leventhal, J., concurring).
. See, e. g., Drug Abuse Office and Treatment Act of 1972, P.L. 92-255, 86 Stat. 65 (1972); Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236 (1970) [hereinafter Drug Control Act]; The Narcotic Addict Rehabilitation Act of 1966, P.L. 89-793, 80 Stat. 1438 (1966) [hereinafter NARA]; President’s Commission on Law Enforcement and Administration of Justice, the Challenge of Crime in a Free Society, 211-31 (1967); President’s Advisory Commission on Narcotic and Drug Abuse, Final Report (1963).
. 21 U.S.C. § 844 (1970).
. Act of Feb. 9, 1909, c. 100, § 2, 35 Stat. 614 (repealed 1970).
. Act of Dec. 17, 1914, c. 1, § 1, 38 Stat. 785 (repealed 1970).
. See United States v. Moore, supra at 451-65, 486 F.2d at 1215-1229 (Wright, J., dissenting) .
. This is an inexact term as many addicts sell on a small scale to support their own habit.
. The dissent apparently misunderstands this statement and states that our “condemnation of the recognition of a new mens rea defense on the ground of judicial ‘legislation’ involves a fundamental misconception of the judicial process.” What we say is that an appellate court may not supersede the expressed legislative will — always barring, of course, unconstitutionality. Otherwise, we are usurping the function of the legislative branch. We would have considered this proposition to be well nigh indisputable.
. 28 U.S.C. § 2901 et seq. (1970).
. See n. 17, supra.
. 28 U.S.C. § 2902 (1970).
. 18 U.S.C. § 4251 et seq. (1970).
. 42 U.S.C. § 3411 et seq. (1970).
. 21 U.S.C. § 844 (1970).
. Id.
. 21 U.S.C. § 841 et seq. (1970).
. Id. See H.R.Rep.No.1444, 91st Cong., 2d Sess. 11 (1970), U.S.Code Cong. & Admin. News, p. 4566.
. See note 17 supra.
. D.C.Code 1973, § 16-710.
. D.C.Code 1973, § 24-204.
. D.C.Code 1961, § 25-128.
. D.C.Code 1973, § 24-601.
. D.C.Code 1973, § 24-603 (b).
. Lowinson, Langrod & Alperin, Legal Services in Treating the Addict, 130:5 Am.J.Psychiatry 592 (1973).
. In spite of tlie humanitarian efforts to help addicts in this city, the Washington Post recently reported a “disturbing” increase in heroin deaths in the city in recent months because of greater availability of the drug. Washington Post, Mar. 15, 1975, at E-1, col. 5.
. D.C.Code 1973, § 33-708(a) provides:
Any person violating any provision of this chapter, or of any regulation made by the [District of Columbia Council] under the authority of this chapter shall upon conviction be punished, for the first offense, by a fine of not less than $100 nor more than $1,000, or by imprisonment for not exceeding one year, or by both such fine and imprisonment; and for any subsequent offense by a fine of not less than $500 nor more than $5,000, or by imprisonment for not exceeding ten years, or by both such fine and imprisonment.
. Superior Court of the District of Columbia, The Narcotics Diversion Project (1974).
. Id. We are concerned, however, by the following passage from the July 15, 1974, Quarterly Programmatic Progress Report of the Narcotics Diversion Project of the Superi- or Court of the District of Columbia:
The problems which developed over the last two quarters — poor cooperation from a sizeable segment of the defense bar, coupled with restrictive Project eligibility criteria— continued to hamper Project intake. Of the 78 defendants who were screened as eligible “on paper” this quarter — i. e. who had a nonviolent misdemeanor, and had no prior felony or violent misdemeanor convictions — the Project was unable to schedule 32 of them (41.0 percent) for enrollment conferences due to no other reason but disinterest or downright noncooperation on the part of defense counsel in those cases. Id. at page 2. [Citation omitted.]
We note also that the Superior Court has also indicated concern:
[F]ailure on the part of counsel to keep scheduled appointments with representatives of the Project and the Office of the U.S. Attorney concerning client enrollment is viewed with special concern by the Court and may be grounds for the removal of appointed counsel from a case. [The Narcotics Diversion Project, supra n. 42].
. In a recent report relating the results of a continuing study of men who had served in Vietnam and had there used narcotics, it is stated:
Most of the men who had been heavy users of narcotics in Vietnam had not used any since their return. The deterrents they cited most frequently were expense, fear of addiction, and fear of arrest. Men highly dependent on narcotics in Vietnam who said they had been detected as users at DEROS because they were too addicted to quit had the highest risk of use and readdiction after return. But half of these men stopped narcotic use entirely on return, and only 14% became readdicted. [The Vietnam Drug User Returns, A Study Sponsored by the Special Action Office for Drug Abuse Prevention, X (Sept. 1973).]
. [D]rug Use In America: Problem in Perspective, Second Report of the National Commission on Marihuana and Drug Abuse 273 (March, 1973).
. Defendant Smith is also charged with unlawful entry. His motion to dismiss does not go to that charge. Defense counsel also move to dismiss the charges of possession of the implements of crime against all three defendants on the ground that the statute in question was not intended to extend to posses*415sion of narcotic paraphernalia. Those motions are denied inasmuch as the D.C. Court of Appeals has repeatedly sanctioned the challenged application of the statute, e. g., McKoy v. United States, 263 A.2d 645, 649 (1970).
. The transcript of the hearings, consisting of 730 pages, was completed on February 3, 1971.
. One psychiatrist, Dr. Leon Wurmser, testified that there is a belief in certain -medical circles that physical characteristics remain after withdrawal and endure for a period of several months. Dr. Wurmser did not share that belief, and there is no testimony before the Court to the effect that physical indicia of addiction survive withdrawal.
. There was also some testimony to the effect that methadone is regarded with some reservations or suspicion by many in the addict community, testimony which the Court regards as substantially negated by the fact that immense numbers of persons are now using methadone.
. The parties have stipulated that one capsule or cap or pill of heroin consists of 50 milligrams of white powdery substance, approximately three to eight percent of which is, on the Washington, D. C. market, heroin and the rest of which is cutting or diluting material. The retail market price for heroin at most times relevant to these proceedings was $1 per capsule. A “bag” of heroin generally consists of the equivalent of ten capsules and accordingly sells for $10. Bags of half that size for $5 have sometimes been available. A “spoon” of heroin is approximately two $10 bags and generally is equivalent to 15 to 25 capsules.
. As of the time of his testimony there was a two-week waiting period for an addict who wished to become enrolled in an NTA methadone and counselling program. However, an addict who applied would he referred to another agency, such as Blackman’s Development Center or Bonabond, where he could obtain methadone in a detoxifying dosage pending his acceptance into the program.
. It is noted that, apart from what the Constitution requires, Congress has recently indicated its intent that rehabilitation rather than retribution should be the major objective of the criminal process with respect to defendants who are not drug traffickers. H.R. Rep.No. 91-1444, 91st Cong., 2d Sess. (1970), to Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236 (Oct. 27, 1970), as reported in U.S. Code Congressional and Administrative News, p. 4566 (1970).
. In Title II, § 101(4) of P.L. 91-513, supra, Congress made the finding that “local distribution and possession, of controlled substances contribute to swelling the interstate traffic in such substances.” (Emphasis added)
. Title II, § 404 of P.L. 91-513, supra at note 7. The Act was approved on October 27, 1970, and most of its provisions become effective on May 1, 1971.
. See H.R.Rep.No. 91-1444, supra at note 7.
. Clearly, the civil commitment procedures of Title III are available to persons in this jurisdiction. The D.C. Court of General Sessions utilized Title II of the Act in cases where the defendant was subject to at least three years confinement, and it appears that Superior Court defendants are eligible for treatment under that title under similar circumstances.
. On the issue whether addiction per se constitutes a mental illness, see United States v. Collins, 139 U.S.App.D.C. 392, 433 F.2d 550 (1970), and Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964). The denial of these motions does not preclude defendants from raising at trial the defense of insanity or lack of criminal responsibility.
. This request followed the Court’s earlier refusal to dismiss the informations on Eighth Amendment grounds. See, in that connection and generally, Wheeler v. United States, D.C.Ct.App., 276 A.2d 722 (May 5, 1971).
. 141 U.S.App.D.C. 335, 439 F.2d 442 at 450 (1970).
. McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954).
. See, e. g., Watson, supra, 439 F.2d at p. 461 (majority opinion) and 439 F.2d at p. 460 (opinion of Bazelon, Chief Judge, concurring in part and dissenting in part) ; and, for a suggestion that the civil commitment statute be used following an acquittal of any charge by reason of chronic alcoholism, Salzman v. United States, 131 U.S.App.D.C. 393, 407, 405 F.2d 358 (1968) (opinion of Wright, J., concurring).
. Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
. See opinion of Wright, J., concurring in Salzman v. United States, supra at footnote 4, for a development of the argument that a similar approach in cases of chronic alcoholics should be adopted and should serve as the basis for “denying criminal responsibility for any actions produced by the disease” (emphasis added).
. Title II, § 404, Comprehensive Drug Abuse and Control Act of 1970, P.L. 91-513, 84 Stat. 1236 (Oct. 27, 1970).
. The fact of addiction, standing alone, does not permit a finding of disease or defect. As Judge, now Chief Justice, Burger expressed it in Salzman, supra at 399, 405 F.2d at 364: “The accused must show some evidence that he has lost the. capacity to control his behavior not simply with respect to drinking, but in other contexts as well.” See also Gaskin v. United States, 129 U.S.App.D.C. 308, 394 F.2d 933 (1967); and Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964).
. D.C.Code § 24-301(1) (1971 Supp.).
. The evidence adduced in connection with the pretrial motion to dismiss on Eighth Amendment grounds suggests that the defendants may be able to raise an insanity issue.
. See in this connection Watson, supra, 439 F.2d at p. 460 (opinion of Bazelon, Chief Judge, concurring in part and dissenting in part).
. The Court views its requirement that defendants produce “some evidence” of mental illness as consistent with Judge Burger’s concurring opinion in Hutcherson v. United States, 120 U.S.App.D.C. 274, 280, 345 F.2d 964, 970, cert. den. 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965). The indication there that it is sufficient for defendant to make a showing that “addiction to and long or intensive use of narcotics have eroded and impaired his capacity to control his conduct” is taken by this Court to embrace a requirement that the use in question resulted in a mental illness. See jury instruction by Gasch, J., to same effect at p. 8 of charge in U. S. v. McCollough, McNair and Johnson, U.S. District Court for D.C., Crim.No.467-67, April 16, 1968).
. D.C.Code § 24-301 (d)(1) (1971 Supp.).