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Form DJ-150
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
CONFIDENTIAL
TO
:
The Honorable John W. Dean III
DATE: May 21, 1969
Associate Deputy Attorney General
FROM
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics and Dangerous Drugs
SUBJECT: Comments regarding the Department's proposed drug
legislation received from Malincrodkt Chemical Company
I have read the comments relating to the new importation
provisions and license requirements for manufacturers
contained in Schedules I and II of the proposed "Controlled
Dangerous Substances Act of 1969. Essentially, they hold
nothing new in the way of arguments that have not already
been explored in our conversations with the Antitrust
Division. As a matter of fact, these are the very same
arguments that Donald E. Miller and I raised against the
expansion of the importation provisions and the inclusion
of a "reasonable prices" criteria.
It should be pointed out that Iran is now legalizing the
production of opium and there is no question but that there
will be pressure from abroad (Turkey, India, and Iran) to
permit importation now that it is authorized. However,
since the decision to follow the Antitrust Division
recommendations has already been made, I do not see what value
there is in further pursuing this point at the Executive
Branch level. In my judgment this is one of the "negotiable"
points to be worked out during the committee hearings before
the Congress.
It is my understanding that a more detailed statement will be
forthcoming shortly from the law firm of Steptoe and Johnson,
counsel for Melincrodkt Chemical Company. That brief will
be carefully reviewed by this Office and we will prepare a
response, once the legislation is before the Congress. It is
my opinion that the introduction of the proposed legislation
should in no way be delayed in anticipation of this brief.
DECLASSIFIED
E.O. 12958, Sect. 3.6
By
RRS
NARA, Date
9.5.57
Reproduced at the Richard Nixon Presidential Library
CONFIDENTIAL
The Honorable John W. Dean III
May 21, 1969
Associate Deputy Attorney General
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics and Dangerous Drugs
Comments regarding the Department's proposed drug
legislation received from Malincrodkt Chemical Company
I have read the comments relating to the new importation
provisions and license requirements for manufacturers
contained in Schedules I and II of the proposed "Controlled
Dangerous Substances Act of 1969." Essentially, they hold
nothing new in the way of arguments that have not already
been explored in our conversations with the Antitrust
Division. As a matter of fact, these are the very same
arguments that Donald E. Miller and I raised against the
expansion of the importation provisions and the inclusion
of a "reasonable prices" criteria.
It should be pointed out that Iran is now legalizing the
production of opium and there is no question but that there
will be pressure from abroad (Turkey, India, and Iran) to
permit importation now that it is authorized. However,
since the decision to follow the Antitrust Division
recommendations has already been made, I do not see what value
there is in further pursuing this point at the Executive
Branch level. In my judgment this is one of the "negotiable"
points to be worked out during the committee hearings before
the Congress.
It is my understanding that a more detailed statement will be
forthcoming shortly from the law firm of Steptoe and Johnson,
counsel for Melincrodkt Chemical Company. That brief will
be carefully reviewed by this Office and we will prepare a
response, once the legislation is before the Congress. It is
my opinion that the introduction of the proposed legislation
should in no way be delayed in anticipation of this brief.
Reproduced at the Richard Nixon Presidential Library
Form DJ-150
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
TO
: Mr. John W. Dean, III
DATE:
JUN 9 1969
Associate Deputy Attorney General
FROM
MAS
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics and Dangerous Drugs
SUBJECT: Congressman Poff's letter to the Attorney General -
May 21, 1969
Having discussed this letter with you in detail over the
phone, it is my understanding that many of the problems
raised in the letter have already been satisfactorily
explained to the Congressman. As to his comments with
regards to probation and parole for second and third
offenders, I feel that an accommodation can be made
except with regard to simple possession.
It is my understanding that you spoke with Congressman Poff
and that he has no major complaint with the first offender
provisions in the proposal. Further, I believe you have
indicated that his comments regarding illegal importation
have been answered and he is now more fully cognizable of
the type of individual who normally "imports" these drugs.
Under our existing scheme all second offenders, other than
NOT
those involved with Schedule IV substances or found guilty
TRUE
of simple possession, cannot have their sentence suspended
nor can they be placed on probation or parole. With respect
to narcotic drugs listed in Schedules I and II, suspension,
probation, and parole rights are withheld regardless of the
offense charged. As to all other drugs in Schedules I, II,
and III, suspension, probation, and parole rights are
withheld only if the violation comes under section 501,
which deals with the unlawful distribution, manufacture,
importation, and exportation, etc., of these drugs.
Imposition of suspension, probation and parole restrictions
were not considered useful or equitable with respect to
commercial violations such as those enumerated in prohibited
Acts B and C, as many of those crimes are considered to be
of a lesser danger to the community. With regards to simple
possession, it appears that no purpose is served at the
Federal level by restricting the court's ability to handle
the simple possessors in a flexible way. From the point
of view of halting illicit drug traffic, simple possession
is the least meaningful enforcement tool in terms of agent
time, court time, and the Bureau's overall mission. In
Reproduced at the Richard Nixon Presidential Library
- 2 -
many instances those persons repeatedly caught in possession
of dangerous drugs (excluding the professional criminal) are
usually less than normal in their social behavior and their
ability to function within the society. As to these people,
the greatest threat to society lies in their withdrawal
from the mainstream of society and their commission of
crimes or antisocial behavior while under the influence of
drugs. Incarceration without the ability to modify a
sentence with respect to these people does not appear to
serve a useful enforcement end. As to these people,
maximum flexibility in sentencing should be maintained.
As to professional criminals, we can add to section 509
a proviso under (c) (2) that "imposition or execution of
such sentence shall not be suspended, probation shall not
be granted, and Section 4202 of Title 18 of the United
States Code and the Act of July 15, 1932 (47 Stat. 696;
D.C. Code 24-201 and following) as amended, shall not
apply.' This would require the court to sentence the
professional criminal in a restrictive manner from the
first. Since this is the type of individual the Federal
Government is primarily interested in investigating,
convicting, and incarcerating, I feel less concern about
restricting the court's sentencing alternatives. This
means that the professional criminal would have to serve
a jail term if convicted. I feel by emphasing this aspect
of the penalty structure the type of person that Congressman
Poff is most concerned about will be dealt with severely
in the penalty structure without recourse to minimum mandatory
sentences and without recourse to a generalized scheme which
would work inequities as to other persons caught within the
criminal structure of the Act. It should be noted that,
should a person be adjudged a professional criminal for illegal
sale of narcotics, first offense, his sentence would be not
less than 4 years, nor more than 24 years, with a 6 year
special parole term and no suspension, probation or parole.
This is a tough sentence by any standard.
Reproduced at the Richard Nixon Presidential Library
Mr. John W. Dean, III
Associate Deputy Attorney General
JUN
9 1969
Michael R. Sonnenreich
Deputy Chief Counsel
Bureau of Narcotics and Dangerous Drugs
Congressman Poff's letter to the Attorney General -
May 21, 1969
Having discussed this letter with you in detail over the
phone, it is my understanding that many of the problems
raised in the letter have already been satisfactorily
explained to the Congressman. As to his comments with
regards to probation and parole for second and third
offenders, I feel that an accommodation can be made
except with regard to simple possession.
It is my understanding that you spoke with Congressman Poff
and that he has no major complaint with the first offender
provisions in the proposal. Further, I believe you have
indicated that his comments regarding illegal importation
have been answered and he is now more fully cognizable of
the type of individual who normally "imports" these drugs.
Under our existing scheme all second offenders, other than
those involved with Schedule IV substances or found guilty
of simple possession, cannot have their sentence suspended
nor can they be placed on probation or parole. With respect
to narcotic drugs listed in Schedules I and II, suspension,
probation, and parole rights are withheld regardless of the
offense charged. As to all other drugs in Schedules I, II,
and III, suspension, probation, and parole rights are
withheld only if the violation comes under section 501,
which deals with the unlawful distribution, manufacture,
importation, and exportation, etc., of these drugs.
Imposition of suspension, probation and parole restrictions
were not considered useful or equitable with respect to
commercial violations such as those enumerated in prohibited
Acts B and C, as many of those crimes are considered to be
of a lesser danger to the community. With regards to simple
possession, it appears that no purpose is served at the
Federal level by restricting the court's ability to handle
the simple possessors in a flexible way. From the point
of view of halting illicit drug traffic, simple possession
is the least meaningful enforcement tool in terms of agent
time, court time, and the Bureau's overall mission. In
Reproduced at the Richard Nixon Presidential Library
- 2 -
many instances those persons repeatedly caught in possession
of dangerous drugs (excluding the professional criminal) are
usually less than normal in their social behavior and their
ability to function within the society. As to these people,
the greatest threat to society lies in their withdrawal
from the mainstream of society and their commission of
crimes or antisocial behavior while under the influence of
drugs. Incarceration without the ability to modify a
sentence with respect to these people does not appear to
serve a useful enforcement end. As to these people,
maximum flexibility in sentencing should be maintained.
As to professional criminals, we can add to section 509
a proviso under (c) (2) that "imposition or execution of
such sentence shall not be suspended, probation shall not
be granted, and Section 4202 of Title 18 of the United
States Code and the Act of July 15, 1932 (47 Stat. 696;
D.C. Code 24-201 and following) as amended, shall not
apply.' This would require the court to sentence the
professional criminal in a restrictive manner from the
first. Since this is the type of individual the Federal
Government is primarily interested in investigating,
convicting, and incarcerating, I feel less concern about
restricting the court's sentencing alternatives. This
means that the professional criminal would have to serve
a jail term if convicted. I feel by emphasing this aspect
of the penalty structure the type of person that Congressman
Poff is most concerned about will be dealt with severely
in the penalty structure without recourse to minimum mandatory
sentences and without recourse to a generalized scheme which
would work inequities as to other persons caught within the
criminal structure of the Act. It should be noted that,
should a person be adjudged a professional criminal for illegal
sale of narcotics, first offense, his sentence would be not
less than 4 years, nor more than 24 years, with a 6 year
special parole term and no suspension, probation or parole.
This is a tough sentence by any standard.
Reproduced at the Richard Nixon Presidential Library
RICHARD H. POFF
COMMITTEE ON THE JUDICIARY
6TH DISTRICT, VIRGINIA
SUBCOMMITTEE ON
COPYRIGHTS AND PATENTS
HOME ADDRESS:
POLICY COMMITTEE
RADFORD, VIRGINIA
Congress of the United States
ROBERT E. BRADFORD
ADMINISTRATIVE ASSISTANT
house of Representatives
Washington, D.C.
May 21, 1969
Honorable John N. Mitchell
Attorney General
U. S. Department of Justice
Washington, D. C.
Attention of Mr. John W. Dean III
Dear John:
In response to John Dean's request, I submit a few brief com-
ments concerning the proposed Controlled Dangerous Substances
Act of 1969.
The objective of reform, revision and recodification in the regula-
tory field is good.
I like the 4-category apparatus.
By all means, the Attorney General should have initial and final
authority with respect to category power and other administrative
powers involving the application of good judgment and discretion.
I think the Scientific Advisory Committee function should be
emphasized in order to make the reform proposal more salable.
In general, I applaud Titles I, II, III, IV, VI, VII and VIII.
Now my comments take a somewhat different course. I am deeply
disturbed about the proposed new penalty structure in Title V. I
am disturbed for two reasons: first, because a few items are
philosophically objectionable to me; and second, because most of
the items will be unacceptable to most of the Members of the House
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
2
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
of Representatives and particularly to those who feel some personal
pride of authorship in the statutes on the books. Let me list a few
of the proposed changes most likely to provoke resistance:
1) Possession of heroin, second offense, now a minimum
can
mandatory penalty of 5-10 years, would become a misde-
meanor with no minimum mandatory features; and suspen-
sion and probation would be aithorized on second and third
offenses:
2-12
2) Sale of heroin, suspension and probation would be authorized
for the first offense;
3) Sale of heroin to a person under 18 by a person more than
4-24
3 years his senior, the minimum mandatory penalty, 10
years to life or death (21 USC 1766) would be repealed;
plantly
suspension and probation would be authorized;
4) Importation of heroin, suspension and probation would be
2-12
authorized for the first offense.
Even more dramatic changes are suggested in connection with
marijuana offenses:
1) Possession of majijuana, third offense, the minimum
mandatory penalty, 5-20 years, would be repealed; the
second offense would become a misdemeanor only; suspen-
Mrshi
sion and probation would be authorized for the second and
third offenses;
2) Sale of marijuana, first offense, the minimum mandatory
penalty, 5-20 years, would be repealed; second offense, the
minimum mandatory penalty, 10-40 years, would be repealed;
and suspension and probation would be authorized for the
first offense;
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
3
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
3) Sale of marijuana to a person under 18 by a person 3 years
dovbling
his senior, the minimum mandatory penalty, 10 years to
life or death (21 USC 1766), repealed; and suspension and
probation would be authorized;
4) Importation of marijuana, first offense, minimum mandatory
penalty, 5-20 years, would be repealed; and probation and
parole would be authorized on first offense.
With respect to these 8 specific points, I believe I should say that
I appreciate the need to treat different dangerous substances
differently and the victimized user and the commercial taafficker
differently. I approve greater use of carefully supervised parole
in prisoner rehabilitation. I am aware that larger fines and more
remedial in certain cases than prison sentences. I am also fully
conversant with the enlightened arguments against the minimum
mandatory sentence: it discourages prosecutors from prosecuting
or prompts them to indict for lesser offenses; it discourages juries
from convicting; it is therefore often self-defeating. However, the
application of the minimum mandatory concept in the narcotics
field, at least in certain echelons of defined offenses, is not subject
in the same degree to the same frailties. Prosecutors and jurors
alike recognize that the crimes of importation and sale justify
greater penalties, more certain penalties and penalties more likely
to deter. This is especially true for second and subsequent offenses.
The use of suspension and probation authority is also productive as
a rehabilitation technique in connection with minor offenses and some
first offenses; but these proposals extend the authority beyond both.
On the dark side of the Timothy Leary decision, Congress is in no
temper to buy this penalty structure. An attempt to make the sale
might poison the rest of the freform package. Yes, the present
penalty structure is disjointed. However, I would recommend that
Congress be asked to use its own judgment in correcting present
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
4
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
penalty conflicts, inconsistencies and inequities. In other words,
you could leave the penalty definitions in Title V blank and in the
message invite Congress to make its own decisions.
Hoping that these few random thoughts will be helpful, I am
Sincerely,
RICHARD H. POFF
Reproduced at the Richard Nixon Presidential Library
LOUIS B. NICHOLS
BOX 419 RT. 1
LEESBURG. VIRGINIA 22075
June 6, 1969
Mr. John W. Dean, III
Associate Deputy Attorney General
U. S. Department of Justice
Washington, D. C. 20530
Dear Mr. Dean:
I regret exceedingly my delay in responding
to your letter of May 1 asking for comments on the pro-
posed "Controlled Dangerous Substances Act of 1969. It
I have been delayed by virtue of travel commitments.
I have now studied the Act and I think this
is a great step forward. There will be some resistance
until the penalty structure is thoroughly understood.
This is strictly in line with the new Minimum Standards
for the Administration of Criminal Justice which have
been approved by the House of Delegates and the American
Bar Association. I am sure you know this is set forth
in the report sentencing alternatives.
I have a couple of minor observations. In
Section 509 a and b I would insert the words "or his
designee" after "Attorney General." The Attorney
General cannot begin to pass on all these matters and
while he has the inherent authority to delegate, a real
narrow construction might proscribe that this had to be
a personal function. I think you have some precedence
for this in the antitrust laws and if the words "or
his designee" are set forth in the statute, then there
can be no question.
I would also think that this would be a good
opportunity to make a provision whereby a sentencing
judge upon presentation of a plan of institutionalized
treatment might very well be given the sentencing al-
ternative of prescribing institutionalization until
such time as competent medical testimony is presented
indicating the success of the therapy.
Reproduced at the Richard Nixon Presidential Library
Mr. John W. Dean, III
-2-
June 6, 1969
I would even be content and happy to see some
provision, if we could ever find the wherewithal to pro-
vide for t he treatment, to sentence all persons addicted
to dangerous substances to treatment. I think the re-
habilitation is equally important in the sentencing al-
ternative to the deterrent effect, although we must have
the deterrent effect. This is something you no doubt
have already considered but I am passing it on in the
event you haven't.
With best wishes and kind regards.
Sinc erely,
town B Rulas
Louis B. Nichols
LBN: js
9 Have latted Twice ASD
Had Some Jdens to explore but
younners Hot AVAILALLI of you
HAM AN Uniterst you CAN CALL
At your 703-777-1109
Reproduced at the Richard Nixon Presidential Library
U.S. POSTAGE
6c
ESBURG
JUN PM 7 VA
1969
22075
FRANKLIN D.ROOSEVELT
Mr. John W. Dean, III
Associate Deputy Attorney General
U. S. Department of Justice
Washington, D. C. 20530
Reproduced at the Richard Nixon Presidential Library
SUMMARY OF HEW STAFF VIEWS ON JUSTICE DRAFT BILL,
"CONTROLLED DANGEROUS SUBSTANCES ACT OF 1969"
A. REGULATION AND LICENSING
The bill would expand Justice's mission beyond law enforce-
ment by
authorizing Justice to determine medical and scientific
questions
vesting in Justice (and the Government) excessive control
over practice of medicine and medical research
vgiving Justice a role in research and education which
could duplicate HEW responsibilities
1. Regulation--general. HEW questions soundness of Reorgan-
ization Plan No. 1 of 1968 transferring to Justice regulatory
and related scientific functions from HEW and Treasury, contrary
to Prettyman Commission which recommended in 1963 organizational
distinction between regulation (HEW) and law enforcement (in-
vestigation and prosecution--Justice)
The bill would broaden Justice's regulatory authority by
-- including not only specified drugs but also to an almost
unlimited range of substances which the Attorney General
finds to have a "potential for abuse."
-- giving the Attorney General authority to add substances
to, or reclassify substances among, four schedules based
on drug characteristics and abuse levels. The particular
schedule would determine the degree of regulatory control
(including manufacturing quotas and import and export
control), licensure control, and penalties. The bill
specifies the factors to consider and findings to be made
in categorizing substances, but with one exception all the
factors and findings are primarily matters with the
special competence of medical, scientific, or public
health experts. The Attorney General would not be re-
quired to consult HEW, but would have an advisory commit-
tee which would include two consultants designated by HEW.
HEW recommends either that (a) the regulatory functions,
including licensure, be vested in HEW or (b) that the bill
direct the Attorney General to delegate those functions to
HEW
Reproduced at the Richard Nixon Presidential Library
2
2. Control over medical practice and research. (a) The
bill would require every person who manufactures, distributes,
or dispenses any covered substance (including Schedule IV over-
the-counter drugs) to obtain an annual license from Justice.
This would include, among others, physicians, dentists, veteri-
narians, scientific researchers, pharmacies, and hospitals --
and would include the direct administration of covered substan-
ces to a patient--human or animal. Practitioners would be
granted a license to dispense substances in Schedules II through
IV if they are so authorized to dispense under the law of the
State in which they practice. As to Schedule I substances
practitioners would be granted a license, with consistency with
the public interest as the basic test.
HEW strongly opposes a requirement of Federal licensing of
physicians and researchers, let alone by a law enforcement agency.
If licensing is required, it should be done by a health agency.
HEW would not object to a requirement of registration, as of
right, of physicians, researchers, and other practitioners
authorized by State law to conduct such research. HEW points
out that it now has pervasive control over research on drugs
which are not yet approved for market or which are the subject
of research to determine safety and effectiveness for use under
conditions for which they have not yet been so approved. Addi-
tional controls could be added by amendment to the Food and Drug
Act.
HEW has no objection to a licensure requirement for manu-
facturers and commercial distributors of Schedule I or II drugs,
but questions the broad discretion given to a law enforcement
rather than a health agency in granting or denying a license
in the "public interest." It believes that registration is suf-
ficient for other drugs, as is the case now for manufacturers
and wholesalers of depressant or stimulant drugs.
3. Manufacturing quotas. Under the bill the Attorney Gen-
eral would determine the total quantity of and production quotas
for each Schedule I and II substance, based on U.S. medical,
scientific, and industrial needs, export requirements, and reserve
stock needs. HEW endorses the Prettyman Commission recommendation
that such regulatory functions be in HEW -- or at a minimum HEW
believes it should have the responsibility for determining needs
for scientific and medical purposes. HEW points out that it now
has a similar function with respect to crude opium, cocoa leaves,
and their salts, etc.
4. Export and import controls. HEW notes that the Prettyman
Commission recommended that these functions with respect to nar-
cotics be vested in HEW and believes that those with respect to
non-narcotic drugs should follow whatever decision is made for
exports and imports generally in this field.
Reproduced at the Richard Nixon Presidential Library
3
B. EDUCATION AND RESEARCH
The bill would give Justice a broad charter in research
relating to all phases of drug use and abuse -- origins, causes,
prediction, prevention, control, correction, and rehabilitation,
Justice would also be authorized to carry on programs of educa-
tion, training, instruction, and information dissemination for
the purpose of assisting or improving research.
HEW believes this authority would furnish a potential for
largely duplicating the massive educational and research ef-
forts underway or planned in HEW, and recommends that it be
deleted or clarified (i.e., narrowed to be incidental to basic
functions of Justice under the bill).
C. PENALTIES
HEW believes that, although the penalty provisions fall
short of the reforms under consideration by the National Com-
mission on the Reform of Federal Criminal Laws, the bill points
in that direction and represents an improvement. However, it
suggests a number of changes, including deleting disqualifica-
tion of recidivists for parole, especially in the case of non-
narcotic offenses where parole is now authorized, and making
drug addiction a defense in cases of possession of a drug for
one's own use.
D. COVERAGE
Because HEW believes the breadth of coverage -- any substance
which the Attorney General determines to have a "potential for
abuse" (except for distilled spirits, wine, malt beverages and
tobacco) -- to be greater than needed, it suggests alternative
definitions drawn from the Food and Drug Act and a UN report on
psychotropic drugs.
HEW also suggests separate schedules for narcotics and other
psychotropic drugs, because their inclusion in the same schedule
breaks down in the operative portions of the bill dealing with
exports and imports and penalties.
E. TIMELINESS
HEW questions the bill's timeliness with respect to the vast
range of psychotropic non-narcotic drugs, since a new multi-
lateral treaty on such drugs is in process of development, with
control standards that might differ in significant aspects from
those of the Single Convention on Narcotic Drugs.
Reproduced at the Richard Nixon Presidential Library
4
In addition, Justice's summary description of the bill
states that "prior to the final passage of this legislation,
the Bureau's (Bureau of Narcotics and Dangerous Drugs) scientific
experts and its Advisory Committee should review the proposed
list [of drugs by Schedule] and adopt a final series of sub-
stances to be included " HEW believes it inadvisable to
submit a bill to the Congress which does not represent a com-
pleted piece of work.
(The bill was originally drafted in 1968 for consideration
of the National Commission on Reform of Federal Criminal Laws,
which was asked by President Johnson to review the narcotics
and drug abuse laws and recommend a balanced and consistent
approach to the problem as soon as possible.)
F. OTHER
HEW raises a number of other more technical or specialized
issues (see point #7, pp 3-5, in attached HEW summary).
(Prepared by BOB)
Reproduced at the Richard Nixon Presidential ibrary
LOUIS FREY, JR.
OFFICES:
5TH DISTRICT, FLORIDA
1315 LONGWORTH HOUSE OFFICE BUILDING
COMMITTEES:
WASHINGTON, D.C.
SCIENCE AND ASTRONAUTICS
210 BREVARD AVENUE
MERCHANT MARINE AND
Congress of the United States
Cocoa, FLORIDA 32922
FISHERIES
1703 NORTH MAIN STREET
Kissimmee, FLORIDA 32741
house of Representatives
18 SOUTH MAGNOLIA AVENUE
ORLANDO, FLORIDA 32801
Washington, D.C. 20515
June 13, 1969
The Honorable John Dean
Associate Deputy Attorney General
for Legislation
Department of Justice
Washington, D.C.
Dear Mr. Dean:
Enclosed is a chart of present narcotic
and dangerous drugs penalty provisions, which
I understand you would be interested in seeing.
In recent weeks, I have been working on
a proposed bill in the area of narcotics and dan-
gerous drugs. This is to be a comprehensive bill
involving changes in penalties and a more direct
line of administration of this field.
I shall be most interested in learning of
the Administration's views in this area, and in
cooperating with you in any way possible.
With best wishes,
Most sincerely,
Lou Frey Jr.
LFjr/eb
Enclosures
Reproduced at the Richard Nixon Presidential Library
RICH ARD H. POFF
COMMITTEE ON THE JUDICIARY
6TH DISTRICT, VIRGINIA
SUBCOMMITTEE ON
COPYRIGHTS AND PATENTS
HOME ADDRESS:
POLICY COMMITTEE
RADFORD, VIRGINIA
Congress of the United States
JOHN T. WHITE =
ADMINISTRATIVE ASSISTANT
house of Representatives
Washington, D. C.
May 21, 1969
Honorable John N. Mitchell
Attorney General
U. S. Department of Justice
Washington, D. C.
Attention of Mr. John W. Dean III
Dear John:
In response to John Dean's request, I submit a few brief com-
ments concerning the proposed Controlled Dangerous Substances
Act of 1969.
The objective of reform, revision and recodification in the regula-
tory field is good.
I like the 4-category apparatus.
By all means, the Attorney General should have initial and final
authority with respect to category power and other administrative
powers involving the application of good judgment and discretion.
I think the Scientific Advisory Committee function should be
emphasized in order to make the reform proposal more salable.
In general, I applaud Titles I, II, III, IV, VI, VII and VIII.
Now my comments take a somewhat different course. I am deeply
disturbed about the proposed new penalty structure in Title V. I
am disturbed for two reasons: first, because a few items are
philosophically objectionable to me; and second, because most of
the items will be unacceptable to most of the Members of the House
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
2
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
of Representatives and particularly to those who feel some personal
pride of authorship in the statutes on the books. Let me list a few
of the proposed changes most likely to provoke resistance:
1) Possession of heroin, second offense, now a minimum
mandatory penalty of 5-10 years, would become a misde- -
meanor with no minimum mandatory features; and suspen-
sion and probation would be aithorized on second and third
offenses;
2) Sale of heroin, suspension and probation would be authorized
for the first offense;
3) Sale of heroin to a person under 18 by a person more than
3 years his senior, the minimum mandatory penalty, 10
years to life or death (21 USC 1766) would be repealed;
suspension and probation would be authorized;
4) Importation of heroin, suspension and probation would be
authorized for the first offense.
Even more dramatic changes are suggested in connection with
marijuana offenses:
1) Possession of marijuana, third offense, the minimum
mandatory penalty, 5-20 years, would be repealed; the
second offense would become a misdemeanor only; suspen-
sion and probation would be authorized for the second and
third offenses;
2) Sale of marijuana, first offense, the minimum mandatory
penalty, 5-20 years, would be repealed; second offense, the
minimum mandatory penalty, 10-40 years, would be repealed;
and suspension and probation would be authorized for the
first offense;
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
3
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
3) Sale of marijuana to a person under 18 by a person 3 years
his senior, the minimum mandatory penalty, 10 years to
life or death (21 USC 1766), repealed; and suspension and
probation would be authorized;
4) Importation of marijuana, first offense, minimum mandatory
penalty, 5-20 years, would be repealed; and probation and
parole would be authorized on first offense.
With respect to these 8 specific points, I believe I should say that
I appreciate the need to treat different dangerous substances
differently and the victimized user and the commercial trafficker
differently. I approve greater use of carefully supervised parole
in prisoner rehabilitation. I am aware that larger fines are more
remedial in certain cases than prison sentences. I am also fully
conversant with the enlightened arguments against the minimum
mandatory sentence: it discourages prosecutors from prosecuting
or prompts them to indict for lesser offenses; it discourages juries
from convicting; it is therefore often self-defeating. However, the
application of the minimum mandatory concept in the narcotics
field, at least in certain echelons of defined offenses, is not subject
in the same degree to the same frailties. Prosecutors and jurors
alike recognize that the crimes of importation and sale justify
greater penalties, more certain penalties and penalties more likely
to deter. This is especially true for second and subsequent offenses.
The use of suspension and probation authority is also productive as
a rehabilitation technique in connection with minor offenses and some
first offenses; but these proposals extend the authority beyond both.
On the dark side of the Timothy Leary decision, Congress is in no
temper to buy this penalty structure. An attempt to make the sale
might poison the rest of the reform package. Yes, the present
penalty structure is disjointed. However, I would recommend that
Congress be asked to use its own judgment in correcting present
Reproduced at the Richard Nixon Presidential Library
Honorable John N. Mitchell
4
May 21, 1969
Attorney General
U. S. Department of Justice
Washington, D. C.
penalty conflicts, inconsistencies and inequities. In other words,
you could leave the penalty definitions in Title V blank and in the
message invite Congress to make its own decisions.
Hoping that these few random thoughts will be helpful, I am
Sincerely,
RICHARD H. POFF
Reproduced at the Richard Nixon Presidential Library