# Robinson v. California/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Douglas Harlan
* Dissenting Opinions Clark White
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.
In 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 [p669] 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 [p670] 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. [p671]
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. [p672]
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 [p673] 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 psychotherapy 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 [p674] 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 [p675] 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. 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), quartering, the rack and thumbscrew (see Chambers v. Florida, 309 U.S. 227, 237), and, in some circumstances, even solitary confinement (see In re Medley, 134 U.S. 160, 167-168). [p676]
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. 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. 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, at 340 (dissenting opinion); Francis v. Resweber, supra, at 473 (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. [p677] 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 [p678] 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.

## Notes

↑ . Drug Addiction: Crime or Disease? (1961), p. XIV.
    . . . even if one accepts the lowest estimates of the number of addicts in this country, there would still be more here than in all the countries of Europe combined. Chicago and New York City, with a combined population of about 11 million, or one-fifth that of Britain, are ordinarily estimated to have about 30,000 addicts, which is from thirty to fifty times as many as there are said to be in Britain.
↑ . "The sick addict must be quarantined until cured, and then carefully watched until fully rehabilitated to a life of normalcy." Narcotics, N.Y.Leg.Doc. No. 27 (1952), p. 116. And see the report of Judge Morris Ploscowe printed as Appendix A, Drug Addiction: Crime or Disease? (1961), pp. 18, 19-20, 21.
    These predilections for stringent law enforcement and severer penalties as answers to the problems of drug addiction reflect the philosophy and the teachings of the Bureau of Narcotics. For years, the Bureau has supported the doctrine that, if penalties for narcotic drug violations were severe enough and if they could be enforced strictly enough, drug addiction and the drug traffic would largely disappear from the American scene. This approach to problems of narcotics has resulted in spectacular modifications of our narcotic drug laws on both the state and federal level. . . .
    Stringent law enforcement has its place in any system of controlling narcotic drugs. However, it is by no means the complete answer to American problems of drug addiction. In the first place, it is doubtful whether drug addicts can be deterred from using drugs by threats of jail or prison sentences. The belief that fear of punishment is a vital factor in deterring an addict from using drugs rests upon a superficial view of the drug addiction process and the nature of drug addiction. . . .
    . . . The very severity of law enforcement tends to increase the price of drugs on the illicit market and the profits to be made therefrom. The lure of profits and the risks of the traffic simply challenge the ingenuity of the underworld peddlers to find new channels of distribution and new customers, so that profits can be maintained despite the risks involved. So long as a non-addict peddler is willing to take the risk of serving as a wholesaler of drugs, he can always find addict pushers or peddlers to handle the retail aspects of the business in return for a supply of the drugs for themselves. Thus, it is the belief of the author of this report that, no matter how severe law enforcement may be, the drug traffic cannot be eliminated under present prohibitory repressive statutes.
↑ . See 3 Catholic U.L.Rev. 117 (1953); 31 Marq.L.Rev. 108 (1947); 22 St. John's L.Rev. 270 (1948); 2 Stan.L.Rev. 174 (1949); 33 Va.L.Rev. 348 (1947); 21 Tul.L.Rev. 480 (1947); 1960 Wash.U.L.Q., p. 160.
↑ . As to the insane, see Lynch v. Overholser, 369 U.S. 705; note, 1 L.R.A. (N.S.), p. 540 et seq.
↑ . The difference between § 5350 and § 11721 is that the former aims at treatment of the addiction, whereas § 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 § 11391, to be sure, indicates that perhaps some form of treatment may be given an addict convicted under § 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 § 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 § 11391 will not solve or alleviate the problem of cruel and unusual punishment presented by this case.