concurring:
I join Judge Belson’s opinion for the court. I write separately, however, to articulate some thoughts about the proper construction of the mandatory minimum statute and the addict exception. These thoughts may be implicit in what Judge Belson has written, but in my view they merit more explicit expression.
The mandatory minimum sentencing law restricts a trial judge’s traditional sentencing discretion. It mandates comparatively harsh punishment where a greater measure of mercy was previously permissible. It limits the judge’s authority to differentiate between the big drug profiteer and the little guy on the street. It is a criminal statute, and an inflexible one to boot.
We must, of course, give effect to the legislative intent, which was, in substantial measure, to take off the kid gloves when dealing with drug dealers and armed offenders. See Lemon v. United States, 564 A.2d 1368, 1379-81 (D.C.1989). Nevertheless, the rule of lenity1 applies not only to interpretations of the substantive ambit of criminal proscriptions but also to the penalties they impose. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). Accordingly, the reach of the mandatory minimum statute should not be artificially expanded beyond what its language plainly requires. *1005Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Conversely, while the “addict exception” was not designed to assure leniency to sellers who also use drugs, it should not be accorded a grudging construction which few if any addicts can meet. It is important to recognize that eligibility for the addict exception does not require the judge to impose less than the mandatory minimum; it merely permits him or her to do so in an appropriate case.
Given this background, I think it would be most unfortunate to adopt a construction of the word “addict” which would exclude a defendant who, like Ms. Dupree, succeeded for some time in retaining a responsible job. As Judge Belson has explained, there is nothing in the statutory language which would compel that result. The practical consequence of such a cramped reading of the term would be to provide a user like Ms. Dupree, who has sold drugs allegedly to support her addiction, with an incentive not to try to keep a job, because the ability to continue to work would necessarily mean that a long prison term would be assured. Surely the legislative intent was not to encourage addicts to give up their ability to earn an honest day’s wage, and perhaps to spend even more of their time on the street selling or juggling their poisonous wares for the purpose of obtaining another fix.
By the same token, Ms. Dupree should not be deemed ineligible for the addict exception because she had two “clean” drug tests (out of eight) while being monitored by the Pretrial Services Agency. Presumably, she was under court order at the time not to use unlawful drugs, and subject to contempt of court penalties and other unfavorable consequences if she disobeyed that directive. See D.C.Code §§ 23-1329, -1330 (1989). To hold that her ability to muster the strength to combat her illness and stay drug-free even for a brief period of time made her ineligible for the addict exception, so that the judge would be required to sentence her to a four-year mandatory minimum term of imprisonment, would severely punish attempts at abstinence which merit encouragement, not the certainty of years in jail. Indeed, such a rule would provide an insidious but compelling motive to an addict to give in to the perverse compulsion to use the drug and not to try to fight it. The statutory message would be: obey the court order, stay clean,2 and spend at least four years in prison; disregard it and be eligible for probation! The Council did not say this, and I cannot believe that such a perverse and unjust sentencing scheme was intended by anyone.
To be sure, the “addict exception” itself contemplates that, in some eases, those who use drugs may be treated more mercifully than those who do not. It is unnecessary, however, to carry this proposition to extremes. The statutory definition with which we are dealing here is somewhat circular; an addict is one who, inter alia, has “lost the power of self-control with reference to his addiction.” D.C.Code § 33-501(24) (1988) (emphasis added). These words do not compel us to restrict the addict exception to those who have given up the fight, lost their jobs, and tested “dirty” every single time. Courts should not divest themselves of any remaining discretion by giving the legislation so destructive a construction.
. "The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.” Riggs Nat'l Bank of Washington, D.C. v. District of Columbia, 581 A.2d 1229, 1262 (D.C.1990) (quoting United States v. Wiltberger, 5 Wheat (18 U.S.) 76, 95, 5 L.Ed. 37 (1820)).
. Even if the negative tests had occurred when Ms. Dupree was not under court order, the statute should not be so construed as to permit them to disqualify her. Well-motivated addicts progress, regress, get off the floor, and try again. To disqualify them from more lenient sentencing because they tried to stay clean would provide a counter-incentive to abstinence, potentially negating all the good advice from those who want them to "kick the habit.”