The opinion of the court was delivered by: DIAMOND
Before us is the government's motion to vacate our order of September 15, 1987, which committed the defendant for an examination to determine his suitability for treatment under Title I of the Narcotic Addict Rehabilitation Act of 1966 ("NARA"), Pub.L. 89-793, 80 Stat. 1438, codified at 28 U.S.C. §§ 2901 et seq. For reasons that follow, we will grant the government's motion and vacate our order.
Melvin Cicero Butler is charged with several counts of possession with intent to distribute controlled substances. He is a dentist and a drug addict. These facts prompted us to order, on September 15, 1987, that the Surgeon General examine Dr. Butler to determine if he is likely to be rehabilitated through treatment under NARA.
Unfortunately, a chasm opened between our order and its execution. Dr. Butler was examined, but by agents of the Attorney General, not of the Surgeon General as required by 28 U.S.C. § 2902(a). We committed Dr. Butler again on October 29, 1987, for a proper examination. The Surgeon General did not examine Dr. Butler within the time set by our order, and on November 25, 1987, we ordered the Surgeon General to explain his noncompliance.
The Surgeon General responded with a certification that he did not have adequate facilities or personnel available for treatment of Dr. Butler under NARA. See 28 U.S.C. § 2902(b). The last Public Health Service facility for the treatment of addicts was closed in 1974, and the Surgeon General has not received any commitments under NARA since fiscal year 1977. Congress has not appropriated funds for examinations or treatment under Title I of NARA. The Surgeon General informed the court that he would ask the United States Attorney for the Western District of Pennsylvania to move to vacate our September 15, 1987, order in light of this certification.
Faced with this new information, we ordered the parties to brief the following issues:
1. How the court may best effectuate the clear intent of its prior orders; namely, that the defendant, being eligible for treatment under the Act, shall be examined by the Surgeon General or his designee in accordance with the procedures set forth in 28 U.S.C. § 2902.
2. The effect of the Surgeon General's certification on the availability of treatment under the Act. See 28 U.S.C. § 2902(b).
3. If treatment is not available under the Act, the effect of this unavailability on the propriety of ordering an examination of the defendant and the effect on how the court should proceed in this case.
Memorandum Order (December 10, 1987). The government responded by reiterating the arguments made in its motion to vacate. Dr. Butler conceded that if adequate facilities or personnel for treatment were unavailable, he could not be committed under NARA, but Dr. Butler suggested that treatment was available. NARA authorizes the Surgeon General to delegate performance of his functions to any public or private agency. 28 U.S.C. § 2905. Dr. Butler argued that his private health plan could pay for his treatment or that the Surgeon General could persuade some organization to treat him without charge. Dr. Butler also requested us to await his attempts to secure an emergency appropriation of Congress for his treatment or that the Surgeon General could persuade some organization to treat him without charge. Dr. Butler also requested us to await his attempts to secure an emergency appropriation of Congress for his treatment by appeal to the President and local Congressmen.
Enacted in 1966, NARA reflects a different attitude toward crime and punishment than that which prevails today. NARA advocated treatment and rehabilitation of addicted offenders so that they may return to society as productive citizens. See H.R.Rep. No. 1486, 89th Congress, 2d Sess., reprinted in 1966 U.S. Code Cong. & Admin. News, pp. 4248-4251; United States v. Bishop, 469 F.2d 1337, 1340-41 (1st Cir. 1972). In contrast, Congress' present mood finds expression in the recently enacted sentencing guidelines: retribution, deterrence, and the removal of the offender from society -- not rehabilitation -- are the objectives of the ...