Can we punish for the acts of addiction?
Author: S. Carter McMORRIS
Pages: 43 to 48
Creation Date: 1970/01/01
Robinson v.California held in 1962 that the status of being a narcotics addict could not be punished through the processes of the criminal law. A logical extension of that position, Mr. McMorris argues, is that criminal law treatment of acts resulting from addiction - such as possession and sale of narcotics and even crimes compelled by the addiction - also is unconstitutional as cruel and unusual punishment. He predicts that courts are moving in this direction.
In Robinsonv. California, 370 U.S. 660 (1962), the United States Supreme Court rendered a historic decision to the effect that narcotics addiction, as such, must be medically treated, not penalized.
Two divergent schools of thought have arisen. One, represented by the majority of state court decisions, notably those in California, has taken a restrictive view that the rule of the Robinson case should not be extended beyond its facts - that is, not beyond the mere status of addiction. The other view, which I espouse in this article, is that Robinson applies to acts incidental to narcotics addiction as well. The most notable of these is the possession of the narcotic used in the course of the addiction, but these acts also might include derivative ones, such as the sale of drugs or the commission of secondary crimes to support addiction.
David L. Bazelon, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, in Hutcherson v. United States, 345 F. 2d 964 (1965), declared: "The Supreme Court did not bar punishment for possession of drugs, use of drugs, or even the act of being under the influence of drugs. On the other hand, its references to the continued permissibility of punishing use, possession, etc., could hardly be taken to approve the punishment of persons not responsible for their conduct." [ 1] In a footnote he added: "It seems to me that the failure to consider this obvious truth explains a California District Court of Appeals rejection of the Robinson rationale suggested here."
The liberal view is summarized well by Professor Anthony G. Amsterdam:
Robinson has been the subject of considerable speculation. Its implications for a constitutional doctrine of criminal irresponsibility by reason of drug or alcohol addiction are suggested by the decisions in Driver v. Hinnant, 356 F. 2d 761 (4th Cir. 1966) (holding punishment of chronic alcoholic for public drunkenness unconstitutional); Easter v. District of Columbia, 361 F. 2d 50 (D.C. Cir. 1966) (exculpating a chronic alcoholic from the offense of public drunkenness on statutory grounds under an awareness of constitutional compulsion)... Any federal prohibition of a state's punishing a "status" equally prohibits the state's punishing as an "act" conduct which is an inevitable and endemic attribute of the status. No plausible construction of the rationale of Robinson would permit California to make an addict's possession or use of drugs criminal, any more than his addiction itself. [ 2]
I have no quarrel with the right of federal and state courts to apply criminal sanctions "to fight trafficking in contraband heroin ", but I submit that it is only the trafficker, not the addict, or indeed the addict-possessor, as such, against whom such sanctions may be constitutionally applied. In fact, one of the dissenting opinions in Robinson lends support to this view by implying that the dissent was based on a distinction between the "volitional" addict and the nonvolitional addict. As to the latter, Justice Clark suggested that he must be afforded curative, not punitive, treatment.
Furthermore, a new view of the insanity issue is raised in the Robinson case. Under a reasonable application of the case's principle, to punish for addiction is to punish for insanity per se, so that a statute that fails to differentiate between insane or compulsive possessors of narcotics and those who possess it voluntarily for sale is unconstitutional. State and federal courts have an affirmative duty to see that addicts brought before them are hospitalized or treated as the sick people they are.
There are three possible levels of thought or argument in this connection: (1) that the "condition" of addiction may not be penalized; (2) that "acts of addiction ", those things without which addiction does not exist, may not be penalized; (3) that "derivative crimes" (whether sales of narcotics or non-narcotics crimes), compelled by addiction, may not be penalized. No one would suggest that an addict is entirely immune from penal control for acts entirely unrelated to addiction. The farthest that the principle logically can be extended is to compelled, or derivative, crimes.
The power to "regulate" may be penal, civil or remedial. A state may be, within its police power, physician or welfare worker, not always policeman. While it is true that the Supreme Court stated in Robinson that a state may impose criminal sanctions for" possession" as well as sale, in the context used the Court meant "possession for sale" and the words "for sale" must be supplied to prevent unconstitutionality. This was done by the Pennsylvania court in Pennsylvania v. Warner, 87 Pa. D. & C. 91 (1954), which held that "so interpreted, the amendment... does not conflict with either our state or federal constitution".
It is cruel and unusual punishment to treat as crime any aspect of the syndrome of addiction.
There is a consensus to date in the legal commentary on the importance and meaning of Robinson from the standpoint of the essential point of this article: that the whole of the syndrome of addiction, including possession and use of the drug involved, is included, by necessary implication or logical extension, in the reach and compass of Robinson.
The one such article that seems to criticize the opinion did so, in fact, precisely on the basis of its going beyond the punishment of "something which is not conduct" to deal with penal treatment of the illness of addiction in all its aspects. [ 3]
On the other hand, the approach I urge as the reasonable one and the one implied by Robinson has been taken by the Supreme Court of Errors of Connecticut:
The obvious purpose of the 1959 Act was to reduce the penalty or permit treatment rather than imprisonment in the case of violations by those who were engaged only in self-administration of drugs or ministering to their own drug addiction. [ 4]
In fact, a relatively liberal approach has been taken by the Illinois Supreme Court, in a case summarized editorially as follows:
Provisions of the Narcotic Drug Act making it a criminal offense to be under influence of or addicted to unlawful use of narcotic drugs and imposing penalty for the offense violates the 14th Amendment of the United States Constitution prohibiting cruel and unusual punishment. [ 5]
It is my basic contention that addiction, by definition, comprises these things: a physical status necessarily dependent on possession of the narcotic; use of the narcotic; and the consequent influence of the narcotic, whether by virtue of the withdrawal syndrome and the craving caused by the narcotic's absence or by virtue of the direct effect upon the body of its presence in the blood. Without all these, there can be no addiction. Therefore, in decriminalizing the "status" of addiction, the Robinson opinion of the Supreme Court by necessary implication forbids the prosecution of all the elements of the sickness. The symptoms of the withdrawal syndrome, the hypodermic paraphernalia, the needle marks on the arms, the unnatural dilation of pupils, plus the drug itself (held for use), are mere aspects and evidence of the " status ", and to punish any of these phenomena is to punish a part of addiction itself.
Nearly ten years before Robinson, the principle found its harbinger in a Pennsylvania case:
The possessor of drugs is subject to the fines and imprisonments... only if he possesses them for the purpose of selling, dispensing, or giving them away in violation of the act; the fines and imprisonments prescribed by the amendment, if imposed on the ultimate consumer of the drugs, would constitute such cruel, unusual and excessive punishment as would make the amendment violative of Article I, Section 13, of the Pennsylvania Constitution and the Eighth Amendment to the Federal Constitution. [ 6]
Of similar import, also before Robinson, was a New Jersey case which held that" such possession of narcotics as is either inseparable from actual use thereof by the accused, or solely of a nature necessarily incidental to imminent actual use by him, is removed from the scope of punishable possession under the Uniform [Narcotic Drug] Act" by the Disorderly Persons Act. [ 7]
The dissenting opinion of Justice White in Robinson touched upon a point that is certain to present itself to the Court for future resolution and perhaps eventual extension of the ruling. It is this: If a state cannot punish for the status or condition of drug addiction, how consistent with the Eighth Amendment stricture are those statutes that proscribe the use of drugs ? It is apparent that an addict uses drugs because he is addicted to their use. For the same reason he will possess narcotics as well as the instruments for their use and may perhaps even sell narcotics to other addicts to support his own habit. He will sell, possess and use narcotics only because he is addicted to them, because he has the status of being an addict, a state or condition which cannot now be punished. [ 8]
In a major treatment, John B. Neibel of the University of Houston Law School summarizes:
The Uniform Narcotic Drug Act does not make the use of narcotic drugs a crime...
To treat the acts of obtaining, using, or possessing, or being under the influence of narcotics as compulsive and nonvolitional, and thus to justify treating him as a sick person and not as a criminal, would be analogous to the treatment of the acts of the insane person. Due process ought to protect the addict in similar fashion as to these compulsive violations of the narcotic laws. [ 9]
Narcotics addiction is a form of insanity, rendering the subject incapable of committing the offense alleged, so that it is a denial of due process and equal protection of the laws to punish him for the offense.
The importance of the connection between narcotics addiction and insanity is set forth in Justice Stewart's opinion in Robinson as follows:
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 required 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.
Similarly, in explaining his dissent, Justice White stated: "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 entire concurring opinion of Justice Douglas seemed centered around the insanity theory of addiction.
In Prather v. Kentucky 287 S. W. 559 (1926), the Court of Appeals of Kentucky said, in a case in which the defendant, who had been convicted of the conversion of trust funds, was shown to have used eight to twenty grams of morphine a day:
It is common knowledge that such addicts have a desire to stop using the drug but are unable to resist the craving for more of it, and it can hardly be said that a person in such condition is acting voluntarily in continued use... If such insanity actually exists, the responsibility for the commission of such a crime is not to be distinguished from that of other insane persons. According to the evidence, such addict is insane and will commit any character of crime to obtain the drug and is utterly irresponsible for such acts.
If mania or insanity, although caused by the use of a drug, is permanent and fixed in character, so as to destroy the knowledge of right and wrong as to the act, the person laboring under such infirmity will not be responsible. The same principle applies if accused has become an addict unable to control his craving for the drug, in which case he will be regarded as insane and irresponsible when committing a crime under the influence of the drug. Being an addict, he is deemed to be an involuntary user, whether his addiction resulted from a voluntary or other use of the drug in the first place. [ 10]
The law does not hold a person of disordered and deranged mind criminally accountable for his acts without reference to the cause of such condition, whether by the use of drugs or otherwise.
In my brief for the defendant in the Robinson case I stated:
The criminal punishment of addiction is further unreasonable in that it penalizes a condition or status which could, in many instances, negative guilt of substantive crime under the principle that "where insanity or unconsciousness is produced by intoxication, and where a specific mental state is an element of the crime charged," the party is incapable of committing a crime. Section 11,721 punishes the "insanity or unconsciousness" or semiconsciousness, as such.
That addiction is in fact insanity and that certain other criminal acts may be compulsively or irresponsibly caused by the insanity is suggested by Hesse. [ 11]
"There begins the transition to the marantic state. A decrease of intelligence, periods of moodiness, delusions, lack of self-confidence, negligence of duties, moral aberration, and finally acute mental derangement, in the form of acute psychoses, may set in... The human wrecks not infrequently put an end to their lives with their own hands."
The courts must be alert in this context both against punishing the condition of addiction and against punishing a person for acts over which he had no control because of his addiction, or punishing a person whose mental state, when entering a plea, is that of such derangement or compulsion.
My position is supported by a recent case note:
This controversy has not been waged exclusively in professional journals, but has received much attention in popular periodicals. See Demott, The Great Narcotics Muddle, Harpers, March, 1962, p. 46; Cobbler, The Narcotics Dilemma: Crime or Disease ?, The Saturday Evening Post, September 6, 1962, p. 64; and Calb. Let's Stop This Narcotics Hysteria, The Saturday Evening Post, July 28, 1956, p. 19.
... A joint committee of the American Bar Association and the American Medical Association, in a recently published report, advocates a new legal approach to the narcotics problem. Among the recommendations of this committee were the following:
Present statutes requiring the incarceration of addicts in prisons should be replaced by laws requiring hospitalization.
The law should not prevent the addict from legally obtaining a supply of narcotics if he cannot be cured. To replace the nebulous Linder rule, physicians should be given definite criteria to guide them in treating drug addicts.
A legal distinction should be made between the addict and non-addict purveyor of narcotics.
A new uniform state narcotics act should be drafted on the premise that narcotic addiction is symptomatic of illness. This proposal implies revision or abolition of the minimum sentence provisions of present laws. [ 12]
The President's Advisory Commission on Narcotic and Drug Abuse declared in its final report:
All [narcotic drugs] profoundly affect the central nervous system and the mind. The effects produced by taking these drugs are primarily on the brain and range from euphoria through excitement to depression... Many bring about a deep feeling that everything in life must be made to serve the purpose of maintaining a supply of the drug. These drugs are psychotoxic (mind poisoning). A psychotoxic drug is any chemical substance capable of adducing mental effect which leads to abnormal behaviour. They affect or alter, to a substantive extent, consciousness, the ability to think, critical judgment, motivation, psychomotor co-ordination, or sensory perception.
In a Washington state court case, one judge, dissenting, said:
Under the reasoning of the Robinson case, supra, had the jury found the defendant could not control his conduct by reason of a diseased mind, the imposition of punishment would have contravened the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment.
The addict develops a physical and mental dependence on narcotics that compels him to obtain and use drugs. It is anomalous that these acts, which are as involuntary as the status itself, are punishable under the Robinson doctrine. Heardv . United States, 348 F. 2d 43 (D.C. Cir. 1964), held that a "mere showing of narcotics addiction, without more" does not raise the issue of criminal responsibility. It is submitted that to require an addict who is attempting to base his defense on the grounds of compulsion to meet the requirements of any of the traditional tests for criminal insanity is to ignore the fact that an addict suffers from both physical and mental compulsion and, therefore, should be given special consideration. In three recent cases, decided by the United States Court of Appeals for the District of Columbia Circuit, opinions have been expressed that support this conclusion.
Chief Judge Bazelon of that court, dissenting in Lloydv . United States, 343 F. 2d 242 (1964), and in his separate opinion in the Hutcherson case, supra, undertook a penetrating analysis of Robinson. In Castlev . United States, 347 F. 2d 492 (1964), the court declared that the contention that it is a logical contradiction to forbid punishment for possession or use of narcotics by an addict was "neither remote nor insubstantial ". In McDonaldv . United States, 312 F. 2d 847 (1962), the court said:
... Our purpose now is to make it very clear that neither the court nor the jury is bound by ad hoc definitions or conclusions as to what experts state is a disease or defect. What psychiatrists may consider a "mental disease or defect" for clinical purposes, where their concern is treatment, may or may not be the same as mental disease or defect for the jury's purpose in determining criminal responsibility. Consequently, for that purpose the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.
An addict has a constitutional right to treatment for the illness of his addiction if he is to be incarcerated at all.
Closely analogous to the argument just made is the position that an addict has a right to be treated in a hospital, if indeed incarcerated at all, rather than be sent to a penal institution. Here again, I am not alone in my view. In the article by Professor Neibel, it is stated:
The willingness of the state to treat imprisoned addicts might become critical in this class of crimes since Robinson now raises the possibility of urging that imprisonment without treatment is a cruel and unusual punishment.
The California Law Review article cited in footnote 8 further lends its support to this position:
The impact of the Robinson decision in some respects is difficult to predict. As a practical matter, Robinson will compel a state that wants to deal with addiction to do so by treatment, probably on a civil rather than a criminal basis. A state might be able to avoid the cruel and unusual punishment objection by clearly prescribing treatment in the criminal addiction statute. Robinson, however, makes somewhat questionable the constitutionality of criminal statutes that forbid an addict to use, possess for use, or be under the influence of narcotics. They are clearly jeopardized if the illness of addiction, whenever encountered, must be treated. Although the opinion suggests that these statutes are constitutional, the addict-user, the addict-possessor, or the addict-under the-influence needs treatment as much as a person convicted of addiction alone.
Further support for this position is found in the articles in the Northwestern Law Review and the Vanderbilt Law Review, both cited in footnote 8.
Since the beginning of organized society, man has attempted to control disapproved behavior by punishing those who commit such acts by fines, imprisonment, banishment or death. One result of this punishment theory has been that large numbers of human beings have led unproductive lives within prison walls at the expense of the taxpayers. To find any other positive consequence would be difficult. Prevention of crime has not been demonstrated, reformation of the criminal has been rare, and the usual outcome, directly attributable to prison confinement, has been the hardening of anti-social attitudes of the convicted persons.
While it may be true that a small number of persons should be removed from ordinary social intercourse for their own protection or that of the community, certainly we have overvalued the benefits of punishment. As in the case of physical or mental ills, the only sane approach to the particular social evil that we call crime is an attack on the causes, not on the criminal, who is only a symptom. In an enlightened, civilized society, more scientific means are available than a get-tough policy, which in many fields will increase, rather than solve, the problem. Nowhere is this principle in greater evidence than in our abortive attempt to control the use of narcotics by legislative fiat. [ 13]
Had Robinson been decided fifty years ago, it would probably have allowed the conviction of the narcotic addict. But with our present scientific knowledge of the nature and methods of treatment for narcotics addiction, the Court could only say that narcotics addiction is not truly a type of criminal conduct. Inherent in Robinson is all the medical knowledge that has been gained in recent years. As medical and scientific knowledge increase, especially in the fields of mental and emotional illness, perhaps even greater emphasis will be placed on treatment of wrongdoers, rather than on their punishment. Indeed, to the extent that nearly all criminal activity is the result of emotional or social maladjustment, perhaps some future generation will see the termination of penal sanctions as we know them today.
For the immediate future, Robinson places in question the constitutional validity of laws which merely punish convicted persons when no purpose of deterrence, rehabilitation or prevention of crime is or reasonably can be hoped for.
Once he is physically addicted, the addict's life becomes centered around his compulsion for narcotics. The addict fears withdrawal above all else - probably even death. Fear of punishment will not deter the addict either from seeking or using-narcotics. Deterrence presupposes rationality, and the addict is not rational. Since addiction is a sickness rather than a crime and fear of punishment is of no use as a deterrent, Robinson was a sound decision.
Under an enlightened program, the addict would be civilly committed to a hospital for treatment. The state might institute ambulatory treatment for drug adiction, which would also end the need for the illicit drug traffic. This method would operate through state-operated clinics that would issue the addict decreasing dosages of drugs in its plan to effect a cure.
To put it another way, the function of law enforcement in the narcotics area, poperly conceived, is to punish those woho unqestionably are criminals: those who produce, manufacture, grow, import and sell this contraband in the underworld market. The customers of such people, the addicts, who were until Robinson treated as though in par decto must now either be let alone or, better, treated by physicians, psychiatrists and social engineers for their sickness.
I habe marshalled the arguments of legal writers, judical. professional and scholarly, in support of the view htat the rule in the Robinson case, by necessary extension, must apply to every aspect of the syndrome of nacotics addiction. Even beyond this, I suggest that the principle enunciated by the Court in Robinson will in cases yet to come be extended into the areas of homosexuality, alcoholism and insanty. I believe that the evolution of the law to a more humane approach eventually will substitute psychiatric treatement for much of the ill and ill-conceived conduct we now call crime.
Our current "liberal" approach of the indeterminate sentence, individualized treatment, probation and prole only scratches the surface of a real and effective program, in which causes will be dealt with harshly, while the victim of law natural to him in his environment, will be treated with humantity and understanding. The battle must be fought not by an attack on all fronts against those social determinants-proverty, ignorance and insecurity - that lead to crime.1
This article is reprinted by permission of the American Bar Association Journal (Volume 54). 345 F. 2d 964 at 977.2
Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers and the Like, 3 Crim. L. Bull. 205, 235 (1967).3
Muller, Criminal Law and Administration, in 1962 Annual Survey of American Law 100 (1962).4
Connecticut v. Da Vila, 183 A. 2d 852 at 855 (1962).5
Illinois v. Davis, 188 N. E. 2d 225 (1963).6
Pennsylvania v. Warner, 87 Pa. D. & C. 91 (1954).7
New Jersey v. Reed, 162 A. 2d 873 (Sup. Ct. 1960).8
Manak, The Narcotics Problem: Outlook for Reform, 12 Buff. L. Rev. 605 (1963). See also McCloskey, The Supreme Court, 1961 Term, 76 Harv. L. Rev. 54 at 143 (1962); Enloe, Criminal Sanctions for the "Status" of Narcotics Addiction, 17 Sw. L. J. 134 (1963); Note, 41 Texas L. Rev. 444 (1963); Note, 16 Vand. L. Rev. 214 (1962); Note, 14 Am. U. L. Rev. 243 (1965); Note, 42 Nebr. L. Rev. 685 (1963); Note, 51 Calif. L. Rev. 219 (1963); Note, 1 Duquesne L. Rev. 257 (1963); Note, 57 Nw. L. Rev. 618 (1962); Note, 41 N. C. L. Rev. 244 (1963).9
Implications of Robinson v. California, 1 Houston L. Rev. 1 (1963).10
22 C.J.S. Criminal Law § 72, notes 68 and 69, citing Strickland v. Georgia, 137 Ga. 115, 72 S. E. 922 (1911); New Jersey v. White, 27 N. J. 158, 142 A. 2d 65 (1958); West Virginia v. Painter, 135 W. Va. 106, 63 S. E. 2d 86 (1950); Prather v. Kentucky, 215 Ky. 714, 287 S. W. 559 (1926); Johnson v. Alabama, 32 Ala. App. 217, 24 So. 2d 228 (1945).11
Hesse, Narcotics and Drug Addiction (1946).12
Yockey, Constitutional Law - Criminal Sanctions Against Narcotic Addiction, 37 Tulane L. Rev. 119 (1962). Of similar import are Note, 111 U. Pa. L. Rev, 122 (1962); Cohen, Narcotics Addiction and Criminal Responsibility in Illinois, 1963 U. III Law Forum 273; Manes, Robinson v. California, 22 Law in Transition 238 (1963); Note, 47 Minn. L. Rev. 484 (1963); Broeder & Merson, Robinson v. California: An Abbreviated Study, 3 Am. Crim. L. Q. 203 (1965). See also Bowman, Narcotic Addiction and Criminal Responsibility Under Durham, 53 Geo. L. J. 1017 at 1047 (1965); Note, 51, Iowa L. Rev. 207 (1965).13
McMorris, Narcotics Clinics - An American Viewpoint, 8 [ Canadian] Crim. L. Q. 182 (1965).