|
Lawrence ROBINSON, Appellant,
v.
STATE OF CALIFORNIA
Supreme Court of the United States
370 U.S. 660 (1962)
Mr. Justice STEWART delivered the opinion of the Court.
A California statute makes it a criminal offense for a person to 'be addicted to the use of narcotics.' [n. 1] This
[p. 661] appeal draws into question the constitutionality of that provision of the state law, as construed by the California
courts in the present case.
1. The statute is s 11721 of the California Health and Safety Code. It provides:
'No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered
by or under the direction of a person licensed by the State to prescribe and administer narcotics. It shall be the burden
of the defense to show that it comes within the exception. Any person convicted of violating any provision of this section
is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in the county
jail. The court may place a person convicted hereunder on probation for a period not to exceed five years and shall in all
cases in which probation in granted require as a condition thereof that such person be confined in the county jail for at
least 90 days. In no event does the court have the power to absolve a person who violates this section from the obligation
of spending at least 90 days in confinement in the county jail.'
The appellant was convicted after a jury trial in the Municipal Court of Los Angeles. The evidence against him was given
by two Los Angeles police officers. Officer Brown testified that he had had occasion to examine the appellant's arms one
evening on a street in Los Angeles some four months before the trial. The officer testified that at that time he had observed
'scar tissue and discoloration on the inside' of the appellant's right arm, and 'what appeared to be numerous needle marks
and a scab which was approximately three inches below the crook of the elbow' on the appellant's left arm. The officer also
testified that the appellant under questioning had admitted to the occasional use of narcotics.
Officer Lindquist testified that he had examined the appellant the follow morning in the Central Jail in Los Angeles.
The officer stated that at that time he had observed discolorations and scabs on the appellant's arms, [p. 662] and he identified
photographs which had been taken of the appellant's arms shortly after his arrest the night before. Based upon more than
ten years of experience as a member of the Narcotic Division of the Los Angeles Police Department, the witness gave his opinion
that 'these marks and the discoloration were the result of the injection of hypodermic needles into the tissue into the vein
that was not sterile.' He stated that the scabs were several days old at the time of his examination, and that the appellant
was neither under the influence of narcotics nor suffering withdrawal symptoms at the time he saw him. This witness also
testified that the appellant had admitted using narcotics in the past.
The appellant testified in his own behalf, denying the alleged conversations with the police officers and denying that
he had ever used narcotics or been addicted to their use. He explained the marks on his arms as resulting from an allergic
condition contracted during his military service. His testimony was corroborated by two witnesses.
The trial judge instructed the jury that the statute made it a misdemeanor for a person 'either to use narcotics, or
to be addicted to the use of narcotics * * *. [n. 3] That portion of the statute referring to the 'use' of narcotics is based
upon the 'act' of using. That portion of the statute referring to 'addicted to the use' of narcotics is based upon a condition
or status. They are not identical. * * * To be addicted to the use of narcotics is said to be a status or condition and not
an act. It is a continuing offense and differs from most other offenses in the fact that (it) is [p. 663] chronic rather
than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. The
existence of such a chronic condition may be ascertained from a single examination, if the characteristic reactions of that
condition be found present.'
3. The judge did not instruct the jury as to the meaning of the term 'under the influence of' narcotics, having
previously ruled that there was no evidence of a violation of that provision of the statute. See note 1, supra.
The judge further instructed the jury that the appellant could be convicted under a general verdict if the jury agreed
either that he was of the 'status' or had committed the 'act' denounced by the statute. [n. 4] 'All that the People must
show is either that the defendant did use a narcotic in Los Angeles County, or that while in the City of Los Angeles he was
addicted to the use of narcotics * * *.' [n. 5]
4. 'Where a statute such as that which defines the crime charged in this case denounces an act and a status or condition,
either of which separately as well as collectively, constitute the criminal offense charged, an accusatory pleading which
accuses the defendant of having committed the act and of being of the status or condition so denounced by the statute, is
deemed supported if the proof shows that the defendant is guilty of any one or more of the offenses thus specified. However,
it is important for you to keep in mind that, in order to convict a defendant in such a case, it is necessary that all of
you agree as to the same particular act or status or condition found to have been committed or found to exist. It is not
necessary that the particular act or status or condition so agreed upon be stated in the verdict.'
5. The instructions continued 'and it is then up to the defendant to prove that the use, or of being addicted to
the use of narcotics was administered by or under the direction of a person licensed by the State of California to prescribe
and administer narcotics or at least to raise a reasonable doubt concerning the matter.' No evidence, of course, had been
offered in support of this affirmative defense, since the appellant had denied that he had used narcotics or been addicted
to their use.
Under these instructions the jury returned a verdict finding the appellant 'guilty of the offense charged.' [p. 664]
An appeal was taken to the Appellate Department of the Los Angeles County Superior Court . . . . Although expressing some
doubt as to the constitutionality of 'the crime of being a narcotic addict,' the reviewing court in an unreported opinion
affirmed the judgment of conviction, citing two of its own previous unreported decisions which had upheld the constitutionality
of the statute. We noted probable jurisdiction of this appeal, 368 U.S. 918, 82 S.Ct. 244, 7 L.Ed.2d 133, because it squarely
presents the issue whether the statute as construed by the California courts in this case is repugnant to the Fourteenth Amendment
of the Constitution.
The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than
forty years ago, in Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819, this Court explicitly recognized the validity
of that power: 'There can be no question of the authority of the state in the exercise of its police power to regulate the
administration, sale, prescription and use of dangerous and habitforming drugs * * *. The right to exercise this power is
so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond
saying that it is too firmly established to be successfully called in question.' 256 U.S. at 45, 41 S.Ct. at 426.
Such regulation, it can be assumed, could take a veriety of valid forms. A State might impose criminal sanctions, for
example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.
In the interest of discouraging the violation [p. 665] of such laws, or in the interest of the general health or welfare of
its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics. [n. 7] Such a
program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to
comply with established compulsory treatment procedures. Cf. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed.
643. Or a State might choose to attack the evils of narcotics traffic on broader fronts also--through public health education,
for example, or by efforts to ameliorate the economic and social conditions under which those evils might be thought to flourish.
In short, the range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any
particular choice within the allowable spectrum is not for us to decide. Upon that premise we turn to the California law
in issue here.
7. California appears to have established just such a program in ss 5350--5361 of its Welfare and Institutions Code.
The record contains no explanation of why the civil procedures authorized by this legislation were not utilized in the present
case.
It would be possible to construe the statute under which the appellant was convicted as one which is operative only upon
proof of the actual use of narcotics within the State's jurisdiction. But the California courts have not so construed this
law. Although there was evidence in the present case that the appellant had used narcotics in Los Angeles, the jury were
instructed that they could convict him even if they disbelieved that evidence. The appellant could be convicted, they were
told, if they found simply that the appellant's 'status' or 'chronic condition' was that of being 'addicted to the use of
narcotics.' And it is impossible to know from the jury's verdict that the defendant was not convicted upon precisely such
a finding.
[p. 666] The instructions of the trial court, implicitly approved on appeal, amounted to 'a ruling on a question of state
law that is as binding on us as though the precise words had been written' into the statute. Terminiello v. Chicago, 337 U.S.
1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. 'We can only take the statute as the state courts read it.' Id., at 6, 69 S.Ct. at
896 Indeed, in their brief in this Court counsel for the State have emphasized that it is 'the proof of addiction by circumstantial
evidence * * * by the tell-tale track of needle marks and scabs over the veins of his arms, that remains the gist of the section.'
This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession,
or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide
or require medical treatment. Rather, we deal with a statute which makes the 'status' of narcotic addiction a criminal offense,
for which the offender may be prosecuted 'at any time before he reforms.' California has said that a person can be continuously
guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he
has been guilty of any antisocial behavior there.
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be
mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and
welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine,
confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of
such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments. See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed.
422.
[p. 667] We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized
that narcotic addiction is an illness. [n. 8] Indeed, it is apparently an illness which may be contracted innocently or involuntarily.
[n. 9] We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any
narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in
violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which
is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel
and unusual punishment for the 'crime' of having a common cold.
8. In its brief the appellee stated: 'Of course it is generally conceded that a narcotic addict, particularly one
addicted to the use of heroin, is in a state of mental and physical illness. So is an alcoholic.' Thirty-seven years ago
this Court recognized that persons addicted to narcotics 'are diseased and proper subjects for (medical) treatment.' Linder
v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 449, 69 L.Ed. 819.
9. Not only may addiction innocently result from the use of medically prescribed narcotics, but a person may even
be a narcotics addict from the moment of his birth. See Schneck, Narcotic Withdrawal Symptoms in the Newborn Infant Resulting
from Maternal Addiction, 52 Journal of Pediatrics, 584 (1958); Roman and Middelkamp, Narcotic Addiction in a Newborn Infant,
53 Journal of Pediatrics 231 (1958); Kunstadter, Klein, Lundeen, Witz, and Morrison, Narcotic Withdrawal Symptoms in Newborn
Infants, 168 Journal of the American Medical Association, 1008, (1958); Slobody and Cobrinik, Neonatal Narcotic Addiction,
14 Quarterly Review of Pediatrics, 169 (1959); Vincow and Hackel, Neonatal Narcotic Addiction, 22 General Practitioner 90
(1960); Dikshit, Narcotic Withdrawal Syndrome in Newborns, 28 Indian Journal of Pediatrics 11 (1961).
We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of government.
There are, as we have said, countless fronts on [p. 668] which those evils may be legitimately attacked. We deal in this
case only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.
Reversed.
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
Mr. Justice DOUGLAS, concurring.
While I join the Court's opinion, I wish to make more explicit the reasons why I think it is 'cruel and unusual' punishment
in the sense of the Eighth Amendment to treat as a criminal a person who is a drug addict.
Sixteenth Century England one prescription for insanity was to beat the subject 'until he had regained his reason.'
Deutsch, The Mentally Ill in America (1937), p. 13. In America 'the violently insane went to the whipping post and into prison
dungeons or, as sometimes happened, were burned at the stake or hanged'; and 'the pauper insane often roamed the countryside
as wild men and from time to time were pilloried, whipped, and jailed.' Action for Mental Health (1961), p. 26.
As stated by Dr. Isaac Ray many years ago:
'Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable
in its humanity and its logic, that the insane should be punished for criminal acts, in order to deter other insane persons
from doing the same thing.' Treatise on the Medical Jurisprudence of Insanity (5th ed. 1871), p. 56.
Today we have our differences over the legal definition of insanity. But however insanity is defined, it is in end effect
treated as a disease. While afflicted people [p. 669] may be confined either for treatment or for the protection of society,
they are not branded as criminals.
Yet terror and punishment linger on as means of dealing with some diseases. As recently stated:
'* * * the idea of basing treatment for disease on purgatorial acts and ordeals is an ancient one in medicine. It may
trace back to the Old Testament belief that disease of any kind, whether mental or physical, represented punishment for sin;
and thus relief could take the form of a final heroic act of atonement. This superstition appears to have given support to
fallacious medical rationales for such procedures as purging, bleeding, induced vomiting, and blistering, as well as an entire
chamber of horrors constituting the early treatment of mental illness. The latter included a wide assortment of shock techniques,
such as the 'water cures' (dousing, ducking, and near- drowning), spinning in a chair, centrifugal swinging, and an early
form of electric shock. All, it would appear, were planned as means of driving from the body some evil spirit or toxic vapor.'
Action for Mental Health (1961), pp. 27--28.
That approach continues as respects drug addicts. Drug addiction is more prevalent in this country than in any other
nation of the western world. S.Rep.No.1440, 84th Cong., 2d Sess., p. 2. It is sometimes referred to as 'a contagious disease.'
Id., at p. 3. But those living in a world of black and white put the addict in the category [p. 670] of those who could, if
they would, forsake their evil ways.
The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway. It may come from medical
prescriptions. Addiction may even be present at birth. Earl Ubell recently wrote:
'In Bellevue Hospital's nurseries, Dr. Saul Krugman, head of pediatrics, has been discovering babies minutes old who are
heroin addicts.
'More than 100 such infants have turned up in the last two years, and they show all the signs of drug withdrawal: irritability,
jitters, loss of appetite, vomiting, diarrhea, sometimes convulsions and death.
"Of course, they get the drug while in the womb from their mothers who are addicts,' Dr. Krugman said yesterday when
the situation came to light. 'We control the symptoms with Thorazine, a tranquilizing drug.
"You should see some of these children. They have a high-pitched cry. They appear hungry but they won't eat when
offered food. They move around so much in the crib that their noses and toes become red and excoriated.'
'Dr. Lewis Thomas, professor of medicine at New York University-Bellevue, brought up the problem of the babies Monday
night at a symposium on narcotics addiction sponsored by the New York County Medical Society. He saw in the way the babies
respond to treatment a clue to the low rate of cure of addiction.
"Unlike the adult addict who gets over his symptoms of withdrawal in a matter of days, in most cases,' Dr. Thomas
explained later, 'the infant has to be treated for weeks and months. The baby continues to show physical signs of the action
of the drugs.
[p. 671] "Perhaps in adults the drugs continue to have physical effects for a much longer time after withdrawal than
we have been accustomed to recognize. That would mean that these people have a physical need for the drug for a long period,
and this may be the clue to recidivism much more than the social or psychological pressures we've been talking about."
N.Y. Herald Tribune, Apr. 25, 1962, p. 25, cols. 3--4.
The addict is under compulsions not capable of management without outside help. As stated by the Council on Mental Health:
'Physical dependence is defined as the development of an altered physiological state which is brought about by the repeated
administration of the drug and which necessitates continued administration of the drug to prevent the appearance of the characteristic
illness which is termed an abstinence syndrome. When an addict says that he has a habit, he means that he is physically dependent
on a drug. When he says that one drug is habit-forming and another is not, he means that the first drug is one on which physical
dependence can be developed and that the second is a drug on which physical dependence cannot be developed. Physical dependence
is a real physiological disturbance. It is associated with the development of hyperexcitability in reflexes mediated through
multineurone arcs. It can be induced in animals, it has been shown to occur in the paralyzed hind limbs of addicted chronic
spinal dogs, and also has been produced in dogs whose cerebral cortex has been removed.' Report on Narcotic Addiction, 165
A.M.A.J. 1707, 1713.
Some say the addict has a disease. See Hesse, Narcotics and Drug Addiction (1946), p. 40 et seq.
[p. 672] Others say addiction is not a disease but 'a symptom of a mental or psychiatric disorder.' H.R.Rep.No.2388,
84th Cong., 2d Sess., p. 8, U.S. Code Congressional and Administrative News, 1956, p. 3281. And see Present Status of Narcotic
Addiction, 138 A.M.A.J. 1019, 1026; Narcotic Addiction, Report to Attorney General Brown by Citizens Advisory Committee to
the Attorney General on Crime Prevention (1954), p. 12; Finestone, Narcotics and Criminality, 22 Law & Contemp. Prob.
69, 83--85 (1957).
The extreme symptoms of addiction have been described as follows:
'To be a confirmed drug addict is to be one of the walking dead. * * * The teeth have rotted out; the appetite is lost
and the stomach and intestines don't function properly. The gall bladder becomes inflamed; eyes and skin turn a billious
yellow. In some cases membranes of the nose turn a flaming red; the partition separating the nostrils is eaten away--breathing
is difficult. Oxygen in the blood decreases; bronchitis and tuberculosis develop. Good traits of character disappear and
bad ones emerge. Sex organs become affected. Veins collapse and livid purplish scars remain. Boils and abscesses plague
the skin; gnawing pain racks the body. Nerves snap; vicious twitching develops. Imaginary and fantastic fears blight the
mind and sometimes complete insanity results. Often times, too, death comes--much too early in life. * * * Such is the torment
of being a drug addict; such is the plague of being one of the walking dead.' N.Y.L.J., June 8, 1960, p. 4, col. 2.
Some States punish addiction, though most do not. See S.Doc. No. 120, 84th Cong., 2d Sess., pp. 41, 42. Nor does the
Uniform Narcotic Drug Act, first approved in 1932 and now in effect in most of the States. Great Britain, beginning in 1920
placed 'addiction and the [p. 673] treatment of addicts squarely and exclusively into the hands of the medical profession.'
Lindesmith, The British System of Narcotics Control, 22 Law & Contemp. Prob. 138 (1957). In England the doctor 'has almost
complete professional autonomy in reaching decisions about the treatment of addicts.' Schur, British Narcotics Policies, 51
J.Crim.L. & Criminology 619, 621 (1961). Under British law 'addicts are patients, not criminals.' Ibid. Addicts have
not disappeared in England but they have decreased in number (id., at 622) and there is now little 'addict-crime' there. Id.,
at 623.
The fact that England treats the addict as a sick person, while a few of our States, including California, treat him
as a criminal, does not, of course, establish the unconstitutionality of California's penal law. But we do know that there
is 'a hard core' of 'chronic and incurable drug addicts who, in reality, have lost their power of self-control.' S.Rep.No.2033,
84th Cong., 2d Sess., p. 8. There has been a controversy over the type of treatment-- whether enforced hospitalization or
ambulatory care is better. H.R.Rep.No.2388, 84th Cong., 2d Sess., pp. 66--68. But there is little disagreement with the statement
of Charles Winick: 'The hold of drugs on persons addicted to them is so great that it would be almost appropriate to reverse
the old adage and say that opium derivatives represent the religion of the people who use them.' Narcotics Addiction and its
Treatment, 22 Law & Contemp. Prob. 9 (1957). The abstinence symptoms and their treatment are well known. Id., at 10--11.
Cure is difficult because of the complex of forces that make for addiction. Id., at 18--23. 'After the withdrawal period,
vocational activities, recreation, and some kind of psycho-therapy have a major role in the treatment program, which ideally
lasts from four to six months.' Id., at 23--24. Dr. Marie Nyswander tells us that normally a drug addict [p. 674] must be
hospitalized in order to be cured. The Drug Addict as a Patient (1956), p. 138.
The impact that an addict has on a community causes alarm and often leads to punitive measures. Those measures are justified
when they relate to acts of transgression. But I do not see how under our system being an addict can be punished as a crime.
If addicts can be punished for their addiction, then the insane can also be punished for their insanity. Each has a disease
and each must be treated as a sick person. [n. 2] As Charles Winick has said:
'There can be no single program for the elimination of an illness as complex as drug addiction, which [p. 675] carries
so much emotional freight in the community. Cooperative interdisciplinary research and action, more local community participation,
training the various healing professions in the techniques of dealing with addicts, regional treatment facilities, demonstration
centers, and a thorough and vigorous post-treatment rehabilitation program would certainly appear to be among the minimum
requirements for any attempt to come to terms with this problem. The addict should be viewed as a sick person, with a chronic
disease which requires almost emergency action.' 22 Law & Contemp. Prob. 9, 33 (1957).
The Council on Mental Health reports that criminal sentences for addicts interferes 'with the possible treatment and
rehabilitation of addicts and therefore should be abolished.' 165 A.M.A.J. 1968, 1972.
The command of the Eighth Amendment, banning 'cruel and unusual punishments,' stems from the Bill of Rights of 1688.
See State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422. And it is applicable
to the States by reason of the Due Process Clause of the Fourteenth Amendment. Ibid.
The historic punishments that were cruel and unusual included 'burning at the stake, crucifixion, breaking on the wheel'
(In re Kemmler, 136 U.S. 436, 446, 10 S.Ct. 930, 933, 34 L.Ed. 519), quartering, the rack and thumbscrew (see Chambers v.
Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716), and in some circumstances even solitary confinement (see In
re Medley, 134 U.S. 160, 167--168, 10 S.Ct. 384, 386, 33 L.Ed. 835).
[p. 676] The question presented in the earlier cases concerned the degree of severity with which a particular offense
was punished or the element of cruelty present. A punishment out of all proportion to the offense may bring it within the
ban against 'cruel and unusual punishment.' See O'Neil v. Vermont, 144 U.S. 323, 331, 12 S.Ct. 693, 696, 36 L.Ed. 450. So
may the cruelty of the method of punishment, as, for example, disemboweling a person alive. See Wilkerson v. Utah, 99 U.S.
130, 135, 25 L.Ed. 345. But the principle that would deny power to exact capital punishment for a petty crime would also
deny power to punish a person by fine or imprisonment for being sick.
The Eighth Amendment expresses the revulsion of civilized man against barbarous acts--the 'cry of horror' against man's
inhumanity to his fellow man. See O'Neil v. Vermont, supra, 144 U.S. at 340, 12 S.Ct. at 699 (dissenting opinion); State
of Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 473, 67 S.Ct. at 381 (dissenting opinion).
By the time of Coke, enlightenment was coming as respects the insane. Coke said that the execution of a madman 'should
be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others.' 6 Coke's
Third Inst. (4th ed. 1797), p. 6. Blackstone endorsed this view of Coke. 4 Commentaries (Lewis ed. 1897), p. 25.
We should show the same discernment respecting drug addiction. The addict is a sick person. He may, of course, be confined
for treatment or for the protection of society. Cruel and unusual punishment results not from confinement, but from convicting
the addict of a crime. The purpose of s 11721 is not to cure, but to penalize. [p. 677] Were the purpose to cure, there
would be no need for a mandatory jail term of not less than 90 days. Contrary to my Brother CLARK, I think the means must
stand constitutional scrutiny, as well as the end to be achieved. A prosecution for addiction, with its resulting stigma
and irreparable damage to the good name of the accused, cannot be justified as a means of protecting society, where a civil
commitment would do as well. Indeed, in s 5350 of the Welfare and Institutions Code, California has expressly provided for
civil proceedings for the commitment of habitual addicts. Section 11721 is, in reality, a direct attempt to punish those
the State cannot commit civilly. [n. 5] This prosecution has no relationship to the curing [p. 678] of an illness. Indeed,
it cannot, for the prosecution is aimed at penalizing an illness, rather than at providing medical care for it. We would
forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished
for being sick. This age of enlightenment cannot tolerate such barbarous action.
5. The difference between s 5350 and s 11721 is that the former aims at treatment of the addiction, whereas s 11721
does not. The latter cannot be construed to provide treatment, unless jail sentences, without more, are suddenly to become
medicinal. A comparison of the lengths of confinement under the two sections is irrelevant, for it is the purpose of the
confinement that must be measured against the constitutional prohibition of cruel and unusual punishments.
Health and Safety Code s 11391, to be sure, indicates that perhaps some form of treatment may be given an addict
convicted under s 11721. Section 11391, so far as here relevant, provides:
'No person shall treat an addict for addiction except in one of the following:
'(a) An institution approved by the Board of Medical Examiners, and where the patient is at all times kept under
restraint and control.
'(b) A city or county jail.
'(c) A state prison.
'(d) A state narcotic hospital.
'(e) A state hospital.
'(f) A county hospital.
'This section does not apply during emergency treatment or where the patient's addiction is complicated by the presence
of incurable disease, serious accident, or injury, or the infirmities of old age.' (Emphasis supplied.)
Section 11391 does not state that any treatment is required for either part or the whole of the mandatory 90-day
prison term imposed by s 11721. Should the necessity for treatment end before the 90-day term is concluded, or should no treatment
be given, the addict clearly would be undergoing punishment for an illness. Therefore, reference to s 11391 will not solve
or alleviate the problem of cruel and unusual punishment presented by this case.
Mr. Justice HARLAN, concurring.
I am not prepared to hold that on the present state of medical knowledge it is completely irrational and hence unconstitutional
for a State to conclude that narcotics addiction is something other than an illness nor that it amounts to cruel and unusual
punishment for the State to subject narcotics addicts to its criminal law. Insofar as addiction may be identified with the
use or possession of narcotics within the State (or, I would suppose, without the State), in violation of local statutes prohibiting
such acts, it may surely be reached by the State's criminal law. But in this case the trial court's instructions permitted
the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics.
[n. *] Since addiction alone cannot [p. 679] reasonably be thought to amount to more than a compelling propensity to use
narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.
* The jury was instructed that 'it is not incumbent upon the People to prove the unlawfulness of defendant's use
of narcotics. All that the People must show is either that the defendant did use a narcotic in Los Angeles County, or that
while in the City of Los Angeles he was addicted to the use of narcotics.' (Emphasis added.) Although the jury was told that
it should acquit if the appellant proved that his 'being addicted to the use of narcotics was administered (sic) by or under
the direction of a person licensed by the State of California to prescribe and administer narcotics,' this part of the instruction
did not cover other possible lawful uses which could have produced the appellant's addiction.
If the California statute reaches this type of conduct, and for present purposes we must accept the trial court's construction
as binding, Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131, it is an arbitrary imposition which exceeds
the power that a State may exercise in enacting its criminal law. Accordingly, I agree that the application of the California
statute was unconstitutional in this case and join the judgment of reversal.
Mr. Justice CLARK, dissenting.
The Court finds s 11721 of California's Health and Safety Code, making it an offense to 'be addicted to the use of narcotics,'
violative of due process as 'a cruel and unusual punishment.' I cannot agree.
The statute must first be placed in perspective. California has a comprehensive and enlightened program for the control
of narcotism based on the overriding policy of prevention and cure. It is the product of an extensive investigation made
in the mid-Fifties by a committee of distinguished scientists, doctors, law enforcement officers and laymen appointed by the
then Attorney General, now Governor, of California. The committee filed a detailed study entitled 'Report on Narcotic Addiction'
which was given considerable attention. No recommendation was made therein for the repeal of s 11721, and the State Legislature
in its discretion continued the policy of that section.
Apart from prohibiting specific acts such as the purchase, possession and sale of narcotics, California has taken certain
legislative steps in regard to the status of being a narcotic addict--a condition commonly recognized as a threat to the State
and to the individual. The [p. 680] Code deals with this problem in realistic stages. At its incipiency narcotic addiction
is handled under s 11721 of the Health and Safety Code which is at issue here. It provides that a person found to be addicted
to the use of narcotics shall serve a term in the county jail of not less than 90 days nor more than one year, with the minimum
90-day confinement applying in all cases without exception. Provision is made for parole with periodic tests to detect readdiction.
The trial court defined 'addicted to narcotics' as used in s 11721 in the following charge to the jury:
'The word 'addicted' means, strongly disposed to some taste or practice or habituated, especially to drugs. In order
to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard.
Does he use them habitually. To use them often or daily is, according to the ordinary acceptance of those words, to use them
habitually.'
There was no suggestion that the term 'narcotic addict' as here used included a person who acted without volition or
who had lost the power of self-control. Although the section is penal in appearance--perhaps a carry-over from a less sophisticated
approach--its present provisions are quite similar to those for civil commitment and treatment of addicts who have lost the
power of self- control, and its present purpose is reflected in a statement which closely follows s 11721: 'The rehabilitation
of narcotic addicts and the prevention of continued addiction to narcotics is a matter of statewide concern.' California Health
and Safety Code, s 11728.
Where narcotic addiction has progressed beyond the incipient, volitional stage, California provides for commitment of
three months to two years in a state hospital. [p. 681] California Welfare and Institutions Code, s 5355. For the purposes
of this provision, a narcotic addict is defined as
'any person who habitually takes or otherwise uses to the extent of having lost the power of self-control any opium, morphine,
cocaine, or other narcotic drug as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.' California
Welfare and Institutions Code, s 5350. (Emphasis supplied.)
This proceeding is clearly civil in nature with a purpose of rehabilitation and cure. Significantly, if it is found
that a person committed under s 5355 will not receive substantial benefit from further hospital treatment and is not dangerous
to society, he may be discharged--but only after a minimum confinement of three months. s 5355.1.
Thus, the 'criminal' provision applies to the incipient narcotic addict who retains self-control, requiring confinement
of three months to one year and parole with frequent tests to detect renewed use of drugs. Its overriding purpose is to cure
the less seriously addicted person by preventing further use. On the other hand, the 'civil' commitment provision deals with
addicts who have lost the power of self-control, requiring hospitalization up to two years. Each deals with a different type
of addict but with a common purpose. This is most apparent when the sections overlap: if after civil commitment of an addict
it is found that hospital treatment will not be helpful, the addict is confined for a minimum period of three months in the
same manner as is the volitional addict under the 'criminal' provision.
In the instant case the proceedings against the petitioner were brought under the volitional-addict section. There was
testimony that he had been using drugs only four months with three to four relatively mild doses a [p. 682] week. At arrest
and trial he appeared normal. His testimony was clear and concise, being simply that he had never used drugs. The scabs
and pocks on his arms and body were caused, he said, by 'overseas shots' administered during army service preparatory to foreign
assignment. He was very articulate in his testimony but the jury did not believe him, apparently because he had told the clinical
expert while being examined after arrest that he had been using drugs, as I have stated above. The officer who arrested him
also testified to like statements and to scabs--some 10 or 15 days old--showing narcotic injections. There was no evidence
in the record of withdrawal symptoms. Obviously he could not have been committed under s 5355 as one who had completely 'lost
the power of self-control.' The jury was instructed that narcotic 'addiction' as used in s 11721 meant strongly disposed
to a taste or practice or habit of its use, indicated by the use of narcotics often or daily. A general verdict was returned
against petitioner, and he was ordered confined for 90 days to be followed by a two-year parole during which he was required
to take periodic Nalline tests.
The majority strikes down the conviction primarily on the grounds that petitioner was denied due process by the imposition
of criminal penalties for nothing more than being in a status. This view point is premised upon the theme that s 11721 is
a 'criminal' provision authorizing a punishment, for the majority admits that 'a State might establish a program of compulsory
treatment for those addicted to narcotics' which 'might require periods of involuntary confinement.' I submit that California
has done exactly that. The majority's error is in instructing the California Legislature that hospitalization is the only
treatment for narcotics addiction--that anything less is a punishment denying due process. California has found otherwise
after a study which I suggest was more extensive than that conducted by the Court. [p. 683] Even in California's program for
hospital commitment of nonvolitional narcotic addicts--which the majority approves--it is recognized that some addicts will
not respond to or do not need hospital treatment. As to these persons its provisions are identical to those of s 11721--confinement
for a period of not less than 90 days. Section 11721 provides this confinement as treatment for the volitional addicts to
whom its provisions apply, in addition to parole with frequent tests to detect and prevent further use of drugs. The fact
that s 11721 might be labeled 'criminal' seems irrelevant, [n. *] not only to the majority's own 'treatment' test but to
the 'concept of ordered liberty' to which the States must attain under the Fourteenth Amendment. The test is the overall
purpose and effect of a State's act, and I submit that California's program relative to narcotic addicts--including both the
'criminal' and 'civil' provisions--is inherently one of treatment and lies well within the power of a State.
* Any reliance upon the 'stigma' of a misdemeanor conviction in this context is misplaced, as it would hardly be
different from the stigma of a civil commitment for narcotics addiction.
However, the case in support of the judgment below need not rest solely on this reading of California law. For even
if the overall statutory scheme is ignored and a purpose and effect of punishment is attached to s 11721, that provision still
does not violate the Fourteenth Amendment. The majority acknowledges, as it must, that a State can punish persons who purchase,
possess or use narcotics. Although none of these acts are harmful to society in themselves, the State constitutionally may
attempt to deter and prevent them through punishment because of the grave threat of future harmful conduct which they pose.
Narcotics addiction--including the incipient, volitional addiction to which this provision speaks--is no different. California
courts have taken judicial notice that 'the inordinate use of a narcotic drug tends [p. 684] to create an irresistible craving
and forms a habit for its continued use until one becomes an addict, and he respects no convention or obligation and will
lie, steal, or use any other base means to gratify his passion for the drug, being lost to all considerations of duty or social
position.' People v. Jaurequi, 142 Cal.App.2d 555, 561, 298 P.2d 896, 900 (1956). Can this Court deny the legislative and
judicial judgment of California that incipient, volitional narcotic addiction poses a threat of serious crime similar to the
threat inherent in the purchase or possession of narcotics? And if such a threat is inherent in addiction, can this Court
say that California is powerless to deter it by punishment?
It is no answer to suggest that we are dealing with an involuntary status and thus penal sanctions will be ineffective
and unfair. The section at issue applies only to persons who use narcotics often or even daily but not to the point of losing
self-control. When dealing with involuntary addicts California moves only through s 5355 of its Welfare Institutions Code
which clearly is not penal. Even if it could be argued that s 11721 may not be limited to volitional addicts, the petitioner
in the instant case undeniably retained the power of self-control and thus to him the statute would be constitutional. Moreover,
'status' offenses have long been known and recognized in the criminal law. 4 Blackstone, Commentaries (Jones ed. 1916), 170.
A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of drugs.
Nor is the conjecture relevant that petitioner may have acquired his habit under lawful circumstances. There was no
suggestion by him to this effect at trial, and surely the State need not rebut all possible lawful sources of addiction as
part of its prima facie case.
The argument that the statute constitutes a cruel and unusual punishment is governed by the discussion above. [p. 685]
Properly construed, the statute provides a treatment rather than a punishment. But even if interpreted as penal, the sanction
of incarceration for 3 to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition
posing a serious threat to the State. Under either theory, its provisions for 3 to 12 months' confinement can hardly be deemed
unreasonable when compared to the provisions for 3 to 24 months' confinement under s 5355 which the majority approves.
I would affirm the judgment.
Mr. Justice WHITE, dissenting.
If appellant's conviction rested upon sheer status, condition or illness or if he was convicted for being an addict who
had lost his power of self-control, I would have other thoughts about this case. But this record presents neither situation.
And I believe the Court has departed from its wise rule of not deciding constitutional questions except where necessary and
from its equally sound practice of construing state statutes, where possible, in a manner saving their constitutionality.
[p. 686] I am not at all ready to place the use of narcotics beyond the reach of the States' criminal laws. I do not
consider appellant's conviction to be a punishment for having an illness or for simply being in some status or condition,
but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest and in violation
of the California law. As defined by the trial court, [n. 2] addiction is the regular use of narcotics and can be proved
only by evidence of such use. To find addiction in this case the jury had to believe that appellant had frequently used narcotics
in the recent past. [n. 3] California is entitled to have its statute and the record so read, particularly where the State's
only purpose in allowing prosecutions for addiction was to supersede its own venue requirements applicable to prosecutions
for the use of narcotics and in effect to allow convictions for use [p. 687] where there is no precise evidence of the county
where the use took place.
2. The court instructed the jury that, 'The word 'addicted' means, strongly disposed to some taste or practice or
habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect
an inquiry as to his habit in that regard. * * * To use them often or daily is, according to the ordinary acceptance of those
words, to use them habitually.'
3. This is not a case where a defendant is convicted 'even though he has never touched any narcotic drug within
the State or been guilty of any irregular behavior there.' The evidence was that appellant lived and worked in Los Angeles.
He admitted before trial that he had used narcotics for three or four months, three or four times a week, usually at his place
with his friends. He stated to the police that he had last used narcotics at 54th and Central in the City of Los Angeles
on January 27, 8 days before his arrest. According to the State's expert, no needle mark or scab found on appellant's arms
was newer than 3 days old and the most recent mark might have been as old as 10 days, which was consistent with appellant's
own pretrial admissions. The State's evidence was that appellant had used narcotics at least 7 times in the 15 days immediately
preceding his arrest.
Nor do I find any indications in this record that California would apply s 11721 to the case of the helpless addict.
I agree with my Brother CLARK that there was no evidence at all that appellant had lost the power to control his acts. There
was no evidence of any use within 3 days prior to appellant's arrest. The most recent marks might have been 3 days old or
they might have been 10 [p. 688] days old. The appellant admitted before trial that he had last used narcotics 8 days before
his arrest. At the trial he denied having taken narcotics at all. The uncontroverted evidence was that appellant was not
under the influence of narcotics at the time of his arrest nor did he have withdrawal symptoms. He was an incipient addict,
a redeemable user, and the State chose to send him to jail for 90 days rather than to attempt to confine him by civil proceedings
under another statute which requires a finding that the addict has lost the power of self-control. In my opinion, on this
record, it was within the power of the State of California to confine him by criminal proceedings for the use of narcotics
or for regular use amounting to habitual use. [n. 5]
5. Health and Safety Code s 11391 expressly permits and contemplates the medical treatment of narcotics addicts
confined to jail.
The Court clearly does not rest its decision upon the narrow ground that the jury was not expressly instructed not to
convict if it believed appellant's use of narcotics was beyond his control. The Court recognizes no degrees of addiction.
The Fourteenth Amendment is today held to bar any prosecution for addiction regardless of the degree or frequency of use,
and the Court's opinion bristles with indications of further consequences. If it is 'cruel and unusual punishment' to convict
appellant for addiction, it is difficult to understand why it would be any less offensive to the Fourteenth Amendment to convict
him for use on the same evidence of use which proved he was an addict. It is significant that in purporting to reaffirm the
power of the States to deal with the narcotics traffic, the Court does not include among the obvious powers of the State the
power to punish for the use of narcotics. I cannot think that the omission was inadvertent.
[p. 689] The Court has not merely tidied up California's law by removing some irritating vestige of an outmoded approach
to the control of narcotics. At the very least, it has effectively removed California's power to deal effectively with the
recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond
this it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment.
I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances.
But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another
case.
Finally, I deem this application of 'cruel and unusual punishment' so novel that I suspect the Court was hard put to
find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered
liberty. If this case involved economic regulation, the present Court's allergy to substantive due process would surely save
the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress.
I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best
to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.
I respectfully dissent.
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