A California statute makes it a misdemeanor punishable by
imprisonment for any person to "be addicted to the use of
narcotics," and, in sustaining petitioner's conviction thereunder,
the California courts construed the statute as making the "status"
of narcotic addiction a criminal offense for which the offender may
be prosecuted "at any time before he reforms," even though he has
never used or possessed any narcotics within the State and has not
been guilty of any antisocial behavior there.
As so construed and applied, the statute inflicts
a cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. Pp. 370
U. S. 660
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." [Footnote 1
Page 370 U. S. 661
appeal draws into question the constitutionality of that
provision of the state law, as construed by the California courts
in the present case.
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. [Footnote 2
] 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,
Page 370 U. S. 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. . . . [Footnote 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
Page 370 U. S. 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."
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. [Footnote 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. . . .
Under these instructions, the jury returned a verdict finding
the appellant "guilty of the offense charged."
Page 370 U. S. 664
An appeal was taken to the Appellate Department of the Los
Angeles County Superior Court, "the highest court of a State in
which a decision could be had" in this case. 28 U.S.C. § 1257.
See Smith v. California, 361 U. S. 147
361 U. S. 149
Edwards v. California, 314 U. S. 160
314 U. S. 171
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. [Footnote 6
] We noted probable jurisdiction of this appeal,
368 U.S. 918, 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.
, this Court explicitly recognized the validity of
"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 256 U. S.
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
Page 370 U. S. 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. [Footnote 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
. 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.
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.
Page 370 U. S. 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.
, 337 U. S. 4
can only take the statute as the state courts read it."
at 337 U. S. 6
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 Francis v. Resweber, 329 U. S. 459
Page 370 U. S. 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. [Footnote 8
] Indeed, it is apparently an illness which may
be contracted innocently or involuntarily. [Footnote 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.
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
Page 370 U. S. 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.
MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.
The statute is § 11721 of the California Health and Safety Code.
"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
At the trial, the appellant, claiming that he had been the
victim of an unconstitutional search and seizure, unsuccessfully
objected to the admission of Officer Brown's testimony. That claim
is also pressed here, but, since we do not reach it, there is no
need to detail the circumstances which led to Officer Brown's
examination of the appellant's person. Suffice it to say that, at
the time the police first accosted the appellant, he was not
engaging in illegal or irregular conduct of any kind, and the
police had no reason to believe he had done so in the past.
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
"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, constitutes 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."
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.
The appellant tried unsuccessfully to secure habeas corpus
relief in the District Court of Appeal and the California Supreme
California appears to have established just such a program in §§
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.
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
268 U. S. 18
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).
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
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
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
Page 370 U. S. 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. [Footnote 2/1
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
Page 370 U. S. 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
"In Bellevue Hospital's nurseries, Dr. Saul Krugman, head of
pediatrics, has been discovering babies minutes old who are heroin
"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
" 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
"the infant has to be treated for weeks and months. The baby
continues to show physical signs of the action of the drugs. "
Page 370 U. S. 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
"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
and Drug Addiction (1946), p. 40 et seq.
Page 370 U. S. 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
"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
Page 370 U. S. 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."
Addicts have not disappeared in England, but they
have decreased in number (id.
at 622) and there is now
little "addict-crime" there. Id.
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
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.
"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."
at 23-24. Dr. Marie Nyswander tells us that
normally a drug addict
Page 370 U. S. 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. [Footnote
] As Charles Winick has said:
"There can be no single program for the elimination of an
illness as complex as drug addiction, which
Page 370 U. S. 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,
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.
, 329 U. S. 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
136 U. S.
), quartering, the rack and thumbscrew (see
Chambers v. Florida, 309 U. S. 227
309 U. S.
), and, in some circumstances, even solitary
confinement (see In re Medley, 134 U.
, 134 U. S.
Page 370 U. S. 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. [Footnote
] 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
144 U. S. 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
99 U. S. 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,
at 144 U. S. 340
(dissenting opinion); Francis v. Resweber, supra,
329 U. S. 473
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. [Footnote 2/4
] 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.
Page 370 U. S. 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 § 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. [Footnote 2/5
prosecution has no relationship to the curing
Page 370 U. S. 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.
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
"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
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
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.
; 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
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,
"No person shall treat an addict for addiction except in one of
"(a) An institution approved by the Board of Medical Examiners,
and where the patient is at all times kept under restraint and
"(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
(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.
MR. JUSTICE HARLAN, concurring.
I am not prepared to hold that, on the present state of medical
knowledg,e 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. *
Page 370 U. S. 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
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.
, 337 U. S. 4
, 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.
* 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
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
] 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.
MR. JUSTICE CLARK, dissenting.
The Court finds § 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
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 § 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
Page 370 U. S. 680
Code deals with this problem in realistic stages. At its
incipiency, narcotic addiction is handled under § 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 §
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 § 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, § 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.
Page 370 U. S. 681
California Welfare and Institutions Code, § 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
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, § 5350. (Emphasis
This proceeding is clearly civil in nature with a purpose of
rehabilitation and cure. Significantly, if it is found that a
person committed under § 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. § 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
Page 370 U. S. 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 § 5355 as one who had completely "lost the power of
self-control." The jury was instructed that narcotic "addiction" as
used in § 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
viewpoint is premised upon the theme that § 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.
Page 370 U. S. 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 § 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 § 11721 might be labeled
"criminal" seems irrelevant,* 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.
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 § 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
"the inordinate use of a narcotic drug tends
Page 370 U. S. 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.
, 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
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 § 5355 of its Welfare Institutions Code, which
clearly is not penal. Even if it could be argued that § 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
The argument that the statute constitutes a cruel and unusual
punishment is governed by the discussion above.
Page 370 U. S. 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 § 5355 which the majority approves.
I would affirm the judgment.
* 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.
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. [Footnote 3/1
Page 370 U. S. 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, [Footnote 3/2
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. [Footnote 3/3
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
Page 370 U. S. 687
where there is no precise evidence of the county where the use
took place. [Footnote 3/4
Nor do I find any indications in this record that California
would apply § 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
Page 370 U. S. 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. [Footnote 3/5
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.
Page 370 U. S. 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
I respectfully dissent.
It has repeatedly been held in this Court that its practice will
"to decide any constitutional question in advance of the
necessity for its decision . . . or . . . except with reference to
the particular facts to which it is to be applied,"
Alabama State Federation v. McAdory, 325 U.
, 325 U. S. 461
and that state statutes will always be construed, if possible, to
save their constitutionality despite the plausibility of different
but unconstitutional interpretation of the language. Thus, the
Court recently reaffirmed the principle in Oil etc., Workers
Unions v. Missouri, 361 U. S. 363
361 U. S.
"When that claim is litigated, it will be subject to review, but
it is not for us now to anticipate its outcome. "Constitutional
questions are not to be dealt with abstractly.' . . . They will not
be anticipated, but will be dealt with only as they are
appropriately raised upon a record before us. . . . Nor will we
assume in advance that a State will so construe its law as to bring
it into conflict with the federal Constitution or an act of
Congress." Allen-Bradley Local v. Wisconsin Board,
315 U. S. 740, at
315 U. S.
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."
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.
The typical case under the narcotics statute, as the State made
clear in its brief and argument, is the one where the defendant
makes no admissions, as he did in this case, and the only evidence
of use or addiction is presented by an expert who, on the basis of
needle marks and scabs or other physical evidence revealed by the
body of the defendant, testifies that the defendant has regularly
taken narcotics in the recent past. See, e.g., People v.
Williams, 164 Cal.
App. 2d Supp. 858
, 331 P.2d 251; People v.
Garcia, 122 Cal.
App. 2d Supp. 962
, 266 P.2d 233; People v.
Ackles, 147 Cal. App. 2d
, 304 P.2d 1032. Under the local venue requirements, a
conviction for simple use of narcotics may be had only in the
county where the use took place, People v. Garcia, supra,
and, in the usual case, evidence of the precise location of the use
is lacking. Where the charge is addiction, venue under § 11721 of
the Health and Safety Code may be laid in any county where the
defendant is found. People v. Ackles, supra,
Cal.App.2d, at 42-43, 304 P.2d at 1033, distinguishing People
v. Thompson, 144 Cal.
App. 2d Supp. 854
, 301 P.2d 313. Under California law, a
defendant has no constitutional right to be tried in any particular
county, but, under statutory law, with certain exceptions, "an
accused person is answerable only in the jurisdiction where the
crime, or some part or effect thereof, was committed or occurred."
People v. Megladdery, 40 Cal. App. 2d
, 762, 106 P.2d 84, 92. A charge of narcotics addiction is
one of the exceptions, and there are others. See, e.g.,
781, 784, 785, 786, 788, Cal.Penal Code. Venue is to be determined
from the evidence and is for the jury, but it need not be proved
beyond a reasonable doubt. People v. Megladdery, supra,
Cal.App.2d, at 764, 106 P.2d, at 93. See People v.
Bastio, 55 Cal. App. 2d
, 131 P.2d 614; People v. Garcia, supra.
reviewing convictions in narcotics cases, appellate courts view the
evidence of venue "in the light most favorable to the judgment."
People v. Garcia, supra.
Health and Safety Code § 11391 expressly permits and
contemplates the medical treatment of narcotics addicts confined to