Backman v. United States

FERREN, Associate Judge,

concurring in the result:

I have a somewhat different approach from the majority to resolving the definition of “narcotic drug” in the addict exception adopted by voter initiative. I also believe the equal protection issue requires further elaboration.

I.

The voter initiative did not necessarily have to define “narcotic drug,” for purposes of the addict exception, in precisely the same way that this term is defined for other purposes in the UCSA. The voters, in accordance with a common, if incorrect, understanding, could have intended the term to mean, more broadly, all psychologically and pharmacologically addictive drugs. The problem is, the initiative itself did not define the term. Nor does the legislative history warrant a conclusion that the voters intended a definition of “narcotic drug” (drawn from a dictionary or any other source) that includes cocaine for purposes of the addict exception but not for other UCSA purposes.

Even if we assume, moreover, that the voters believed cocaine is addictive, we cannot further assume the voters necessarily intended to provide an addict exception with respect to all addictive drugs. The initiative itself provided different mandatory minimum sentences for possession with intent to distribute narcotic drugs (four years) and non-narcotic drugs (twenty months), respectively. This distinction must be said to reflect voter awareness of a fundamental difference between types of controlled substances, including an under*928standing that cocaine is not a narcotic within the meaning of the UCSA. It would simply not make sense, therefore, to assume that the voters intended a different definition of “narcotic drug” in the provision for an addict exception from the definition on which they necessarily relied in adopting two categories of mandatory minimum sentences. Accordingly, the only sound inference is that the initiative incorporated the UCSA definition of “narcotic drug” for purposes of the addict exception.

II.

I agree with my colleagues that, within the meaning of the equal protection clause, there is a rational basis for limiting the addict exception to users of narcotic drugs.

If there are plausible reasons for the legislative action, our scrutiny is “at an end,” for the Supreme Court has never insisted that a legislative body articulate its reasons for enacting a statute. United States R.R. Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980); accord United States v. Thorne, 325 A.2d 764, 766 (D.C.1974) (citing United States v. Carotene Products Co., 304 U.S. 144, 153-54, 58 S.Ct. 778, 784-85, 82 L.Ed. 1234 (1938)). Nonetheless, although the people acting as a legislature need not give reasons for the addict exception to have a rational basis for it, see Fritz, 449 U.S. at 179, 101 S.Ct. at 461, there must be a “state of facts either known or which could reasonably be assumed affords support for it.” Thorne, 325 A.2d at 766 (quoting Carotene Products Co., 304 U.S. at 154, 58 S.Ct. at 784).

One such possibility — premised on the belief that cocaine and other non-narcotics in Schedules I and II are addictive — could be a rational decision to limit scarce rehabilitation resources to narcotic users, which are perceived (by reference to the mandatory minimum sentence provisions) as a more serious social problem.

Another possibility could be premised on evidence that could lead a legislature reasonably to conclude that proscribed nonnarcotics, including cocaine, are not addictive, or at least are not addictive in the way and/or to the extent that narcotics are addictive. That distinction would reasonably justify a statutory exception permitting treatment of first-time narcotics users, but not other offenders, in lieu of mandatory minimum prison sentences — especially since narcotic users would otherwise be subject to four-year minimum prison sentences in contrast with the twenty-month mínimums applicable to non-narcotic users.

This latter possibility has a demonstrable basis. Five years before the voter initiative at issue here, the Supreme Court of Alaska evaluated a constitutional attack on criminal laws prohibiting possession and sale of cocaine. State v. Erickson, 574 P.2d 1 (Alaska 1978). The defendants le-velled equal protection and due process challenges to the classification of cocaine users with narcotic users under a statute banning use or sale of narcotic drugs. Basically, they argued that the statute was “over-inclusive” and “arbitrary” since cocaine was not a narcotic. Id. at 3. Agreeing with defendants to a point, the court found it was “undisputed that cocaine is not a narcotic under the pharmacological definition of the term.” Id. at 7. Cocaine is a “stimulant” whereas a narcotic is a “depressant.” Id. Moreover, the court acknowledged expert testimony of record, as well as other scientific sources, tending to prove that, although “cocaine can cause death as a direct effect of its pharmacological reaction,” id. at 9, “[i]t is not physically addictive and is generally considered less harmful than heroin or alcohol.” Id. at 8. The court further acknowledged “[tjhere is a dispute in the evidence pertaining to whether cocaine is psychologically addictive.” Id. at 10 (footnote omitted). The court nonetheless sustained the law, concluding that “[wjhile it is clear that cocaine is not a narcotic pharmacologically,” d. at 16, “the word ‘narcotic’ in common usage includes cocaine,” id. at 15, and “there is ample, respectable scientific evidence of harm or potential harm from the use of *929cocaine to sustain the legislature’s inclusion of cocaine in its classification of narcotics.” Id. at 18.1

The UCSA, unlike the Alaskan statute, classifies cocaine as a non-narcotic, implying an awareness of the scientific distinctions advanced by the defendants in Erickson, including the one addressed to addiction. Accordingly, with widely available expert opinion questioning the addictiveness of cocaine within a few years of the District’s voter initiative, we cannot say that the limitation of the addict exception to narcotics users — thereby excluding cocaine user — lacked a rational basis. We cannot invalidate a legislative enactment by making “a judicial determination of a debatable medical issue.” Brookins, 383 F.Supp. at 1216.

It is true that, under the UCSA, the “Mayor shall place a substance in Schedule II,” which includes cocaine, if the Mayor finds, among other things, that “[t]he substance has high potential for abuse ... and ... [t]he abuse of the substance may lead to severe psychological or physical dependence.” D.C.Code § 33-515 (1986 Supp.). But this is not the equivalent of a legislative finding that cocaine itself, as a dangerous drug, is in one way or another addictive or, perhaps more to the point, as addictive as a narcotic drug.

While there is a legitimate, intensifying public out-cry over cocaine abuse, we have been given no record basis demonstrating that more recent scientific evaluations have confirmed cocaine’s addictiveness since the date of the voter initiative. Nor have we been presented with an argument that new scientific evaluations make a previously rational addict exception now unconstitutional, without further legislative action.

It seems strange that the addict exception is available at sentencing when a convicted cocaine dealer proffers credible evidence that he or she distributed the drug to support a heroin habit, see Banks v. United States, 516 A.2d 524 (D.C.1986), but is not available when a convicted heroin dealer can prove that he or she sold the drug to support a cocaine habit. That, however, is what the voter initiative provided, and I cannot say under the circumstances that the distinction lacks a rational basis.

. See also United States v. Brookins, 383 F.Supp. 1212, 1215 (D.N.J.1974) ("there is an honest scientific difference of opinion concerning the effects of cocaine”), aff'd, 524 F.2d 1404 (3d Cir.1975); People v. Beasley, 193 Cal.Rptr. 86, 89 n. 2, 145 Cal.App.3d 16, 22 n. 2 (1983) (cites February 1, 1983, scientific source calling cocaine " 'most addictive drug’ in popular use,” as well as an earlier source stating that according to one “longstanding medically accepted definition ... cocaine is not addictive”).