Justice McReynolds and the War on Drugs

I’m come across a really interesting case that I wanted to share.  In Casey v. United States, 276 U.S. 413 (1928), an attorney was convicted of supplying morphine to some of his clients (in prison) under a statute that made it unlawful to purchase morphine from an unauthorized source . The statute also said that if you possessed the drugs in a package without official stamps (as Casey did) that was prima facie evidence of guilt. Justice Holmes wrote a 5-4 decision upholding the conviction and rejecting Casey’s Sixth Amendment claim.

McReynolds dissented, along with Brandeis, Butler, and Sanford.  Here is the text of McReynolds’ dissent (it’s a very powerful critique that could be used today).

I accept the views stated by Mr. Justice BUTLER. With clarity he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

 

 

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