Robinson v. State Of California/Concurrence Douglas

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.

'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 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 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.

"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.

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.C.ode 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 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 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. As Charles Winick has said:

'There can be no single program for the elimination of an     illness as complex as drug addiction, which 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).

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 § 11721 is not to cure, but to penalize. 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 § 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. This prosecution has no relationship to the curing 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.