Lumbard, Smith and Kaufman, Circuit Judges. Irving R. Kaufman, Circuit Judge (concurring).
J. JOSEPH SMITH, Circuit Judge:
Appellants in these two cases, which were argued and are considered together, challenge the constitutionality under the Fourteenth Amendment's Equal Protection and Due Process Clauses of New York State's Mental Hygiene Law, McKinney's Consol.Laws c. 27, Section 208, subd. 4(b). A challenge premised upon the Equal Protection Clause is also made against section 208, subd. 5 of the same act. Under the terms of section 208, subd. 4(a), part of a broader statute enacted in 1966 dealing with the problems of narcotics addiction,*fn1 a person found to be a narcotics addict who has pleaded guilty to or been found guilty of a misdemeanor or the offense of prostitution is automatically certified to the care of the Narcotics Addiction Control Commission (NACC) for treatment. In situations where the defendant has pleaded guilty to or been found guilty of a felony, under the terms of section 208, subd. 4(b), the sentencing court may in its discretion either certify the defendant for treatment under the auspices of the NACC or sentence him to prison. Section 208, subd. 5 provides that "in no case to which subdivision four of this section is applicable shall the court suspend sentence, the execution thereof or impose a sentence other than that specified in subdivision four of this section."
Appellant Kyle, a 36-year-old heroin addict, was convicted on his plea of guilty in State Supreme Court, Erie County, on two counts of criminal possession of a dangerous drug in the third degree, which under New York law is a felony. He was sentenced to consecutive sentences of four years on each count. Although found after a medical examination to be an addict, Kyle was not certified for NACC care. He filed a petition under the Civil Rights Law, 42 U.S.C. § 1983, in the United States District Court for the Northern District of New York, attempting to enjoin application of Section 208, subd. 4(b) under which he was sentenced to prison, and further requesting the convening of a three-judge federal court, pursuant to 28 U.S.C. § 2281, to determine the constitutionality of the New York law. The district court (Harold P. Burke, Judge) held that the petition presented no substantial federal question and therefore denied the requested relief.
Appellant Smith, at the time of his arrest a 19-year-old student at Suffolk Community College, was convicted in County Court, Suffolk County, of the crime of the sale of marijuana. Though, like appellant Kyle, he was found to be a narcotics addict, he was sentenced on two counts of the indictment to prison for a mandatory term of seven to fifteen years on each count, the sentences to run concurrently. The conviction was affirmed on appeal by the Appellate Division, Second Department,*fn2 and leave to appeal to the New York Court of Appeals was denied. Before the decision of the Appellate Division, Smith filed a civil rights action under section 1983 in the United States District Court for the Southern District of New York, contesting the constitutionality of the law under which he was sentenced to prison, seeking the issuance of an injunction and the convening of a three-judge federal court. The State moved before Judge Charles H. Tenney to dismiss the section 1983 action on the ground that it was really in the nature of an application for habeas corpus and appellant had failed to exhaust his state remedies, required by 28 U.S.C. § 2254(b). This motion was granted. The motion to convene a three-judge court was denied by Judge Walter R. Mansfield, who ruled that appellant Smith had failed to raise a substantial question of federal constitutional law.
At the outset, we note the existence of serious questions of federal jurisdiction in both cases. It does not appear that appellant Kyle appealed his conviction in the state courts, and although appellant Smith did appeal, it is unclear whether he raised the same constitutional issues in the state courts which he attempts to raise in federal court, a requirement of exhaustion in habeas corpus cases.*fn3
Appellants argue that the relief sought is not in the nature of habeas corpus, since they are not challenging the authority of the State to retain them in custody, but are questioning rather the nature of the custody. We need not reach this jurisdictional issue, however, since we have concluded that no substantial constitutional issue has been presented by appellants' challenge to either section 208, subd. 4(b) or section 208, subd. 5 of New York's Mental Hygiene Law, and therefore there is no need to convene a three-judge federal court and dismissal of the complaints was proper.
The claim is made that section 208, subd. 4(b) denies equal protection of the laws by conferring medical treatment on all convicted misdemeanants and prostitutes who are found to be addicts, but giving similar treatment to only those felons specifically designated to receive it by the sentencing judge. It is further contended that the section violates the Due Process Clause, since it provides the sentencing judge with standardless discretion to determine which felons are to receive NACC care. It is thus possible that two identically situated felons will receive different treatment, one being sentenced to prison, and the other being afforded medical care. The argument is also made that addicted felons are constitutionally entitled to treatment, and that they may not be punished for offenses compelled by their addiction. Finally, it is contended that section 208, subd. 5 of the Mental Hygiene Law denies equal protection of the laws, since it denies to addicted criminals the opportunity for a suspended sentence, an opportunity often afforded to similarly situated non-addicted criminals.
The standard to be applied in determining the necessity for the convening of a three-judge court is whether or not the constitutional claim is "obviously without merit" or "its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 82 L. Ed. 1323 (1938) (per curiam). Although there exists no specific Supreme Court decision foreclosing the constitutional challenges presented here, established constitutional principles, as recently underscored by the Supreme Court, demonstrate the appellants' claims are, in fact, "obviously without merit."
I. EQUAL PROTECTION OF THE LAWS
In enacting the broad statute of which section 208, subd. 4(b) is a part, the State Legislature recognized that "[a] comprehensive program of compulsory treatment of narcotic addicts is essential to the protection and promotion of the health and welfare of the inhabitants of the state * * *."*fn4 "Experience has demonstrated that narcotic addicts can be rehabilitated and returned to useful lives only through extended periods of treatment in a controlled environment," the State concluded, and therefore it was decided "to provide a comprehensive program of human renewal of narcotic addicts in rehabilitation centers and aftercare programs."*fn5
The fact that felons are not assured of treatment, however, causes appellants to question the comprehensiveness of the program. It is argued that often the distinctions between felonies and misdemeanors are trivial or arbitrary, and that in any case an addicted felon is just as much in need of medical treatment as is an addicted misdemeanant. It is therefore contended that the distinction imposed by section 208, subd. 4(b) is wholly arbitrary and capricious.
Though state laws which have no rational basis whatsoever for the classifications imposed may be held to violate the Equal Protection Clause, in situations where the Equal Protection claim is one of arbitrariness, rather than intentional and invidious discrimination against a particular racial, religious, ethnic, social or political group, the state is permitted considerably greater latitude in distributing its resources and administering its laws. Cf. James v. Valtierra, 402 U.S. 137, 91 S. Ct. 1331, 1333, 28 L. Ed. 2d 678 (1971). A state is often required by reason of administrative or judicial necessity to draw fine distinctions. For example, the exact age at which an individual is qualified to vote. Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272 (1970).*fn6
New York's resources for purposes of narcotics treatment are limited. Thus the State must attempt to allocate these resources in the most reasonable and fair way within its ability. We should not force New York State to discontinue its entire program of criminal narcotics rehabilitation because it is unable to provide treatment to all those who might benefit by it. The State might reasonably have concluded that felons, who are ordinarily more serious offenders, as a rule, would not benefit as greatly by this form of treatment as might lesser criminals. ...