You see, doctors will not police doctors. Lawyers will police lawyers pretty well; we do have lawyers disbarred periodically, but I don't know of doctors that get kicked out too much.

Mr. CARPENTIER. May I?

I may say, Your Honor, that the problem that you are surfacing is basically what they call diversion within the law enforcement community, and the committee did have two hearings, one in Chicago-this is Ross Starek's hometown-where there was an actual pill factory that was operating with amphetamines, and we also had a hearing in Washington at which we had people from the Maryland State Medical Society.

But the bottom line of that hearing of both hearings-was that it is up to the State basically up to the State medical society, which does have, within the State of Maryland-I think it is indicative of the similar authority with other States-to take investigation and punitive action against doctors, and they have done it in the State of Maryland.

At the Federal level, basically, it is enforcement of the Controlled Substances Act which limits the doctor's authority to prescribe, but basically, I am speaking then in terms of the Georgia State Medical Society, which I presume has the same administrative responsibilities

Judge PHILLIPS. They do.

Mr. CARPENTIER [continuing]. As does the State of Maryland.

But they have to be made aware of it. They have to be geared up to be able to competently conduct their inquiries and make their own harsh individual judgments.

Judge PHILLIPS. Well, there ought to be some way, though I still think legally something could be done. We have got procedures, for instance, even in the State of Georgia; we have a judicial commission that, if a judge gets out of line, they actually try him, and we have kicked judges off the bench. We have taken away their rights to be judges, and they have tried more than that on all sorts of matters where the public is involved.

And what I am saying is, I believe that the judiciary, and perhaps the legal profession, is a little bit more interested in keeping their own people policed. Maybe they don't still do it quite as well as they should, but we at least make an effort to do it, while I don't think the medical profession does.

Mr. COUGHLIN. In most cases, if you are convicted of a felony, you are automatically disbarred. That is the end of it.

Judge PHILLIPS. Some way or another, it would seem to me if the doctors will not do it, you have to have some legislation that will do it, you see.

Mr. CARPENTIER. They tried it in California, I understand, and the reaction was so difficult to get over the objections of the AMA, which is a very, very potent organization-I guess one of the strongest in the country.

Judge PHILLIPS. Well, I realize a lot of things are involved in enforcement, and those things you can't do much about. If the law is not going to be enforced, there is nothing you can really do.

But having been in the legislature myself, I feel like there are a lot of things that you can do to provide the ammunition for the en

forcement people to do something, and I am of the opinion that something needs to be done about our drug laws and our drug-writing laws with doctors.

Mr. CARPENTIER. One view, if you don't mind me pursuing this, Mr. Evans-within the Controlled Substances Act, the authority to prescribe or to pass on the prescription rests with the Justice Department. So there is an element of control when there have been alleged wrongdoings.

But it is very difficult, in that they cannot withdraw authority unless there has been a conviction. They need that first conviction; just the technical application of the Controlled Substances Act to be able to withdraw. However, all they could do is withdraw his right to prescribe those controlled drugs. They do not prevent his right to practice. And there are instances where a doctor was convicted in Washington, his license was taken in Washington, and he is now practicing medicine in New York.

Judge PHILLIPS. I am too friendly with too many doctors, and I love them to death, and they know I do. I don't think any doctor who is a legitimate practitioner would object to the type of legislation that you would have that would control the rascals, is what I am trying

to say.

If you could somehow gage that, that is the key on how to control the rascals without hurting those people who are trying to decently do their jobs.

You don't want to put restrictions on so much that they wouldn't be free to adequately prescribe, and adequately give drugs to people who do need them. There is nothing wrong with that. I think that ought to be, but I think somewhere along the line, something needs to be done to give them the ammunition they need, and let them know you are trying to help them and not hurt them.

Because even though the doctors I know so well-I laughingly tell someone they are just glorified mechanics. Everything is about the same-cut in this way, this is where you take it out, sew them up, and you have saved somebody's life. You haven't done anything; you just go through a mechanical procedure, but they take great pride in being able to do a lot of things for you.

But I am very close to them and very fond of them, and I wouldn't want to see anybody hurt as long as they are doing what legitimately ought to be done.

I think this ought to be true in every field we are in, lawyers or anybody else, and anybody that objects to being required to do their job legitimately and honestly, I don't care whether they object to it

or not.

Mr. COUGHLIN. I would like to ask, if I may, Mr. Chairman-
Mr. EVANS. Sure.

Mr. COUGHLIN [continuing]. A further question on the attitude of the Bench toward prosecution of drug cases.

You indicated that it was your policy to fine someone on a firstpossession charge $150; is that correct?

Judge PHILLIPS. Yes.

Mr. COUGHLIN. You do actually take every possession charge, and it is prosecuted?

Judge PHILLIPS. Yes.

Mr. COUGHLIN. And they go through, and you do act on them?
Judge PHILLIPS. Yes.

Mr. COUGHLIN. Which is more than they do in most places.

Judge PHILLIPS. In some instances, we either do this, and there are some very pressing instances for this. You get some young people that are almost accidental victims of something like this, and we have in Georgia what is called "first offenders statute," which allows you to treat them as a first offender, to go ahead and impose a fine, put them on probation, but if they live through that 12 months and they don't get into trouble, it is as if they had no record, or nothing ever happened to them, you see.

We do that very frequently on some of the younger people to try to keep them from having records, and let them know how important it is to straighten up, and I have never had one of those first offenders come back, never, which is an unusual situation.

But we are careful who we put under the first-offenders statute. We have had none come back at all.

And every one of them-not every one, but many of them-have come back to me and thanked me for it and told me that they are grateful that they have had the opportunity to get their life straightened out, you know. So it is just the older ones, those that are other offenders, where they get in trouble on other occasions, and they are the kind of troublemakers anyway, where you can tell it was an overt act on their part.

We go ahead and treat it, even still, as a first offender, by imposing the fine and probation. But it does become a matter of criminal record with them.

Mr. COUGHLIN. Would you decriminalize possession of a limited amount of marihuana?

Judge PHILLIPS. No. No, I don't believe in that. I believe people are either guilty or not guilty. I can't conceive people-if you are guilty, you ought to have something on you. If you are not, you shouldn't, and the first-offenders statute gives us the right to practically decriminalize it, because what we do is, you say: "You live through this 12 months, and you don't get in any trouble, it is as if you never had a case of any kind."

And we do a tremendous amount of this, and I think it is a good weapon. And I think it ought to be promoted.

Mr. EVANS. Citation diversion is one of the recommendations that is made by legislation, that Chairman Wolff, the chairman of this committee, and Mr. Beard and some of the other members have offered. This would just provide that in a limited amount of marihuana possession, that there would be up to $1,000 fine, but no criminal record. What would be your reaction to that type of legislation? Judge PHILLIPS. Hard!

Mr. EVANS. Plus the opportunity for counseling on drugs.

Judge PHILLIPS. I think it ought to be done on the basis of a caseby-case thing, rather than complete decriminalization. It seems to me I see marihuana as more of a danger than a lot of people do, apparently today. I know in our area here—and I know statistically they say 95 percent of the hard-drug users started on marihuana. This may or may not have some validity, and it may be based on the fact that they are going on hard drugs anyway.

Whether they ever started on marihuana, it doesn't matter. But there

are still too many unknown factors about marihuana itself that the people tell me that the different grades have different effects on you. The doctors that I know, and the chemists tell me that there are some unknown quantities in this thing, as to what effect it may have on future generations, even.

And with all these unknown factors, I would hate to see it decriminalized. I think you ought to still make it a real terrible thing for you to do it. It is just like drinking liquor; you know, decriminalize the drinking and they are doing a lot of that now, saying that alcoholics ought to be treated as alcoholics and not penalized, but on the other hand, it depends on what you do when you are drinking, as to whether or not you ought to be punished.

If you get out and drive a car and run over and kill somebody, you have another situation.

You can't punish him; it is an alcoholic, and you have to realize it is an illness. Somewhere you have to have some responsibility for these people, and I still think we need to restore some responsibility of people.

And I think having criminal laws on the books and hopefully trying to educate some judges to administer those with some degree of compassion and concern, and some intelligence, is the better answer than it is to decriminalize as a blanket matter all over the Nation. That is just my personal opinion-feeling.

Mr. STAREK. Your Honor, while you were speaking about educating judges, about some of the concerns and problems, one of the approaches taken by a number of Members of Congress in their efforts to thwart drug trafficking, is to look at the criminal statutes and impose mandatory minimum sentencing requirements on the judiciary and, I guess, for largescale trafficking, for instance, and we have a couple members of this committee who are sponsoring such legislation.

And I wondered what your feeling is as a measure of the move to mandatory sentencing?

Mr. EVANS. And before you answer, I might state I am one that did that.

Judge PHILLIPS. You have done a lot of things bad, but I am not going to blame you for that. I don't know; I think mandatory sentencing may be all right. It may not be all right. I just generally react poorly to mandatory sentencing because I look at sentencing as a very personal thing, on a very personal basis.

For instance, I think somebody driving an automobile 90 miles an hour on Cherry Street, which is a heavily congested street, is a lot different than driving 90 miles an hour out here on an interstate highway. If you say you have to have a mandatory sentence for everybody that drives 90 miles an hour, regardless of where they are, that, to me, is ridiculous.

I think you need to keep things in perspective, and I think, to take away discretionary powers of a court who could let people have a little compassionate concern in certain instances, is wrong.

For instance, we have shoplifting statutes now that are mandatory. They say on a second offense, you have got to do so and so to them; I am not sure that is a good law.

And incidentally, I don't go ahead and follow it too well, and nobody could complain-other than the defendant, and normally they don't-if they get less than they should.

For instance, I know people that steal food that really get hungry, and every time they steal, it is food in some grocery store. I had one man who has been up before me five or six times; he has stolen food each time, nothing else. They caught him in the store.

I always make him pay for whatever he took, and I realize it is stealing, and I realize it is wrong. On the other hand, with mandatory sentencing, now, really, the last time I should have sent him off to the public work camp for 12 months, because he was hungry. And I am not going to do it.

Mr. EVANS. What are you going to do with somebody who keeps smuggling 1,000 pounds of marihuana in?

Judge PHILLIPS. That is why I say everything has to be in perspective.

Mr. EVANS. I know, Judge, but there "ain't" much way you can. Judge PHILLIPS. You "ain't" in perspective when you are talking about that. If you can spell out certain things, I think that is good. I think if you can't spell out something like that, there "ain't" much you can do with folks like that. They are in the business. It is like these smut peddlers up in Atlanta; we tried pornographers. Those people are in the business; they know what they are doing. They get the maximum, every one of them. I wish I could give them more, every one I have tried and convicted up there. There ought to be something terrible done to them.

Mr. EVANS. But the point about a mandatory sentence is, you have judges who treat marihuana, no matter what amount, as if it was nothing.

Judge PHILLIPS. No; but I think it ought to be a quantity basis.
Mr. EVANS. It is on a quantity basis.

Judge PHILLIPS. But not on the number at the time basis. What I am saying, suppose it is under an ounce, and suppose you make it mandatory on the third offense that they have to serve 12 months in the public work camp. I am just saying that shouldn't be done.

I can see why the quantity, if it gets up to some size, it ought to be a mandatory sentence of some kind. I have no quarrel with that; so let's be sure we are talking about the same thing.

But I am just saying that general mandatory sentences worry_me, in that I don't want to see judges restricted too much. Some of them have got some idea of their duty, and their discretion, and their compassion. Maybe I do, maybe I don't. But I just don't want judges to be so hidebound that we can't exercise a little bit in some cases.

Now, your bad cases you are talking about, there is no reason for it; it is just like saying somebody who commits a second murder should get the electric chair, something like that. No, I can see some validity in some mandatory sentencing on quantities, when you are talking about quantities, but not the times they have been caught, or something

like that.

I still think you have to look at an individual case, at the individual facts, what individual it happened to. You certainly have some guidelines on that.

I think, in your letter, you had one of these things.

Mr. EVANS. Mandatory robbery.

Judge PHILLIPS. Right; and I have no quarrel with that. I think that was good.