OCTOBER TERM, 1961.

Opinion of the Court. 370 U. S.

ROBINSON v. CALIFORNIA.
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR
COURT OF CALIFORNIA, LOS ANGELES COUNTY.

No. 554. Argued April 17, 1962.-Decided June 25, 1962.

A California statute makes it a misdemeanor punishable by impris-

onment for any person to "be addicted to the use of narcotics,"
and, in sustaining petitioner's conviction thereunder, the Cali-
fornia 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. Held: As so con-
strued and applied, the statute inflicts a cruel and unusual punish-
ment in violation of the Eighth and Fourteenth Amendments. Pp.
660-668.
Reversed.

Samuel Carter McMorris argued the cause and filed

briefs for appellant. -
William E. Doran argued the cause for appellee. With
him on the brief were Roger Arnebergh and Philip E.
Grey.

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." ' This
I The statute is § 11721 of the California Health and Safety Code.
It provides:
"No person shall use, or be under the influence of, or be addicted
to the use of narcotics, excepting when administered by or under the
direction of a person licensed by the State to prescribe and administer
narcotics. It shall be the burden of the defense to show that it comes
within the exception. Any person convicted of violating any provi-
sion of this section is guilty of a misdemeanor and shall be sentenced
 ROBINSON v. CALIFORNIA.

660 Opinion of the Court.

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. The officer testified
that at that time he had observed "scar tissue and dis-
coloration 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 following 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,
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 is 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 con-
finement in the county jail."
2 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 cir-
cumstances 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.
662 OCTOBER TERM, 1961.

Opinion of the Court. 370 U. S.

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 mili-
tary 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 nar-
cotics, or to be addicted to the use of narcotics....' 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
3The judge did not instruct the jury as to the meaning of the term
"under the influence of" narcotics, having previously ruled that there
was no evidence of a violation of that provision of the statute. See
note 1, supra.
 ROBINSON v. CALIFORNIA.

660 Opinion of the Court.

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 con-
dition 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 appel-
lant 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.' "All that the Peo-
ple 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."

S"Where a statute such as that which defines the crime charged

in this case denounces an act and a status or condition, either of which
separately as well as collectively, constitute the criminal offense
charged, an accusatory pleading which accuses the defendant of hav-
ing 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.
 OCTOBER TERM, 1961.
Opinion of the Court. 370 U. S.

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,
149; Edwards v. California,314 U. S. 160,171. 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 convic-
tion, citing two of its own previous unreported decisions
which had upheld the constitutionality of the statute.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.
41, this Court explicitly recognized the validity of that
power: "There can be no question of the authority of the
State in the exercise of its police power to regulate the
administration, sale, prescription and use of dangerous
and habit-forming 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 discus-
sion of it beyond saying that it is too firmly established
to be successfully called in question." 256 U. S., at 45.
Such regulation, it can be assumed, could take a variety
of valid forms. A State might impose criminal sanctions,
for example, against the unauthorized manufacture, pre-
scription, sale, purchase, or possession of narcotics within
its borders. In the interest of discouraging the viola-

6 The appellant tried unsuccessfully to secure habeas corpus relief

in the District Court of Appeal and the California Supreme Court.
 ROBINSON v. CALIFORNIA.
660 Opinion of the Court.

tion 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.! 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. Mas-
sachusetts, 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 con-
strued 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 appel-
lant could be convicted, they were told, if they found
simply that the appellant's "status" or "chronic condi-
tion" 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.

7 California appears to have established just such a program in

§§ 5350-5361 of its Welfare and Institutions Code. The record con-
tains no explanation of why the civil procedures authorized by this
legislation were not utilized in the present case.
663026 0-62-46
 OCTOBER TERM, 1961.
Opinion of the Court. 370 U. S.

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. Chi-
cago, 337 U. S. 1, 4. "We can only take the statute as
the state courts read it." Id., at 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 result-
ing 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 nar-
cotic 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 com-
pulsory 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 viola-
tion of the Eighth and Fourteenth Amendments. See
Francisv. Resweber, 329 U. S. 459.
 ROBINSON v. CALIFORNIA.
660 Opinion of the Court.

We cannot but consider the statute before us as of the

same category. In this Court counsel for the State recog-
nized that narcotic addiction is an illness." Indeed, it is
apparently an illness which may be contracted innocently
or involuntarily.' 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 con-
sidered 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 nar-
cotics traffic have occasioned the grave concern of gov-
ernment. There are, as we have said, countless fronts on
8 In its brief the appellee stated: "Of course it is generally conceded
that a narcotic addict, particularly one addicted to the use of heroin,
is in a state of mental and physical illness. So is an alcoholic."
Thirty-seven years ago this Court recognized that persons addicted
to narcotics "are diseased and proper subjects for [medical] treat-
ment." Linder v. United States, 268 U. S. 5, 18.
9Not 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 Symp-
toms in the Newborn Infant Resulting from Maternal Addiction, 52
Journal of Pediatrics 584 (1958); Roman and Middelkamp, Nar-
cotic 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 Amer-
ican Medical Association 1008 (1958); Slobody and Cobrinik, Neo-
natal 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).
 OCTOBER TERM, 1961.
DOUGLAS, J., concurring. 370 U. S.

which those evils may be legitimately attacked. We deal

in this case only with an individual provision of a partic-
ularized local law as it has so far been interpreted by the
California courts.
Reversed.

MR. JUSTICE FRANKFURTER took no part in the con-

sideration or decision of this case.

MR. JUSTICE DOUGLAS, concurring.

While I join the Court's opinion, I wish to make more
explicit the reasons why I think it is "cruel and unusual"
punishment in the sense of the Eighth Amendment to
treat as a criminal a person who is a drug addict.
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 some-
times 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 defini-
tion of insanity. But however insanity is defined, it is
in end effect treated as a disease. While afflicted people
 ROBINSON v. CALIFORNIA.

660 DOUGLAS, J., concurring.

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 pur-
gatorial 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.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 cate-
1 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."
 OCTOBER TERM, 1961.
DouGAs, J., concurring. 370 U. S.

gory 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 Krug-
man, 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 tran-
quilizing 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 nar-
cotics 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 symp-
toms 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.
 ROBINSON v. CALIFORNIA.
660 DOUGLAS, J., concurring.

"'Perhaps in adults the drugs continue to have

physical effects for a much longer time after with-
drawal 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 man-
agement without outside help. As stated by the Council
on Mental Health:
"Physical dependence is defined as the develop-
ment 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 charac-
teristic illness which is termed an abstinence syn-
drome. 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, Nar-
cotics and Drug Addiction (1946), p. 40 et seq.
 OCTOBER TERM, 1961.
DOUGLAS, J., concurring. 370 U. S.

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. And see Present Status
of Narcotic Addiction, 138 A. M. A. J. 1019, 1026; Nar-
cotic 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
 ROBINSON v. CALIFORNIA.
660 DOUGLAS, J., concurring.

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 Nar-
cotics Policies, 51 J. Crim. L. & Criminology 619, 621
(1961). Under British law "addicts are patients, not
criminals." Ibid. Addicts have not disappeared in Eng-
land 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 per-
son, while a few of our States, including California, treat
him as a criminal, does not, of course, establish the uncon-
stitutionality 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 appro-
priate to reverse the old adage and say that opium deriva-
tives represent the religion of the people who use them."
Narcotics Addiction and its Treatment, 22 Law &
Contemp. Prob. 9 (1957). The abstinence symptoms and
their treatment are well known. Id., at 10-11. Cure is
difficult because of the complex of forces that make for
addiction. Id., at 18-23. "After the withdrawal period,
vocational activities, recreation, and some kind of psycho-
therapy have a major role in the treatment program, which
ideally lasts from four to six months." Id., at 23-24.
Dr. Marie Nyswander tells us that normally a drug addict
 OCTOBER TERM, 1961.

DOUGLAS, J., concurring. 370 U. S.

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 trans-
gression. 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 elimina-
tion of an illness as complex as drug addiction, which
2 "The sick addict must be quarantined until cured, and then care-

fully watched until fully rehabilitated to a life of normalcy." Nar-

cotics, 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 con-

trolling 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 punish-
ment 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
 ROBINSON v. CALIFORNIA.
660 DOUGLAS, J., concurring.

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 deal-
ing with addicts, regional treatment facilities, demon-
stration 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 treat-
ment 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 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), quarter-
ing, the rack and thumbscrew (see Chambers v. Florida,
309 U. S. 227, 237), and in some circumstances even soli-
tary confinement (see Medley, 134 U. S. 160, 167-168).

ingenuity of the underworld peddlers to find new channels of distribu-

tion 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 enforce-
ment may be, the drug traffic cannot be eliminated under present
prohibitory repressive statutes."
 OCTOBER TERM, 1961.
DOUGLAS, J., concurring. 370 U. S.

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 pun-
ishment out of all proportion to the offense may bring
it within the ban against "cruel and unusual punish-
ments." 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 Wilker-
son 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. 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.
3See 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.
4 As to the insane, see Lynch v. Overholser, 369 U. S. 705; note, 1
L. R. A. (N. S.), p. 540 et seq.
 ROBINSON v. CALIFORNIA. 677
660 DOUGLAS, J., concurring.

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, can-
not 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 commit-
ment 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
5The 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, with-
out 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
 OCTOBER TERM, 1961.
HARLAN, J., concurring. 370 U. S.

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.

MR. JUSTICE HARLAN, concurring.

I am not prepared to hold that on the present state of
medical knowledge it is completely irrational and hence
unconstitutional for a State to conclude that narcotics
addiction is something other than an illness nor that it
amounts to cruel and unusual punishment for the State
to subject narcotics addicts to its criminal law. Insofar
as addiction may be identified with the use or possession
of narcotics within the State (or, I would suppose, with-
out 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 per-
mitted the jury to find the appellant guilty on no more
proof than that he was present in California while he
was addicted to narcotics.* Since addiction alone cannot
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.
*The jury was instructed that "it is not incumbent upon the People
to prove the unlawfulness of defendant's use of narcotics. All that
the People must show is either that the defendant did use a narcotic
in Los Angeles County, or that while in the City of Los Angeles he
was addicted to the use of narcotics." (Emphasis added.) Although
the jury was told that it should acquit if the appellant proved that
his "being addicted to the use of narcotics was administered [sic] by
or under the direction of a person licensed by the State of California
to prescribe and administer narcotics," this part of the instruction did
not cover other possible lawful uses which could have produced the
appellant's addiction.
 ROBINSON v. CALIFORNIA.

660 CLARK, J., dissenting.

reasonably be thought to amount to more than a com-

pelling propensity to use narcotics, the effect of this
instruction was to authorize criminal punishment for a
bare desire to commit a criminal act.
If the California statute reaches this type of conduct,
and for present purposes we must accept the trial court's
construction as binding, Terminiello v. Chicago, 337 U. S.
1, 4, it is an arbitrary imposition which exceeds the power
that a State may exercise in enacting its criminal law.
Accordingly, I agree that the application of the California
statute was unconstitutional in this case and join the
judgment of reversal.

MR. JUSTICE CLARK, dissenting.

The Court finds § 11721 of California's Health and
Safety Code, making it an offense to "be addicted to the
use of narcotics," violative of due process as "a cruel and
unusual punishment." I cannot agree.
The statute must first be placed in perspective. Cali-
fornia 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 pur-
chase, possession and sale of narcotics, California has
taken certain legislative steps in regard to the status of
being a narcotic addict-a condition commonly recog-
nized as a threat to the State and to the individual. The
 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U. S.

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 excep-
tion. 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 com-
mitment of three months to two years in a state hospital.
 ROBINSON v. CALIFORNIA.
660 CLARK, J., dissenting.

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
any opium, morphine, cocaine, or other narcotic drug
as defined in Article 1 of Chapter 1 of Division 10
of the Health and Safety Code." California Welfare
and Institutions Code § 5350. (Emphasis supplied.)
This proceeding is clearly civil in nature with a purpose
of rehabilitation and cure. Significantly, if it is found
that a person committed under § 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 con-
finement of three months to one year and parole with fre-
quent 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 help-
ful, the addict is confined for a minimum period of three
months in the game manner as is the volitional addict
under the "criminal" provision.
In the instant case the proceedings against the peti-
tioner 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
663026 0-62-47
 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U. S.

week. At arrest and trial he appeared normal. His tes-

timony 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" admin-
istered during army service preparatory to foreign assign-
ment. 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 with-
drawal 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 con-
fined for 90 days to be followed by a two-year parole dur-
ing 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 authoriz-
ing 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 instruct-
ing 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.
 ROBINSON v. CALIFORNIA.

660 CLARK, J., dissenting.

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. Sec-
tion 11721 provides this confinement as treatment for the
volitional addicts to whom its provisions apply, in addi-
tion 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 pur-
pose and effect of a State's act, and I submit that Cali-
fornia'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 judi-
cial notice that "the inordinate use of a narcotic drug tends
*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.
 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U. S.

to create an irresistible craving and forms a habit for its

continued use until one becomes an addict, and he respects
no convention or obligation and will lie, steal, or use any
other base means to gratify his passion for the drug, being
lost to all considerations of duty or social position."
People v. Jaurequi, 142 Cal. App. 2d 555, 561, 298 P. 2d
896, 900 (1956). Can this Court deny the legislative and
judicial judgment of California that incipient, volitional
narcotic addiction poses a threat of serious crime similar
to the threat inherent in the purchase or possession of
narcotics? And if such a threat is inherent in addiction,
can this Court say that California is powerless to deter it
by punishment?
It is no answer to suggest that we are dealing with an
involuntary status and thus penal sanctions will be inef-
fective 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 invol-
untary 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 facie case.
The argument that the statute constitutes a cruel and
unusual punishment is governed by the discussion above.
 ROBINSON v. CALIFORNIA.

660 WHITE, J., dissenting.

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 vol-
untarily 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.

MR. JUSTICE WHITE, dissenting.

If appellant's conviction rested upon sheer status, con-
dition 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 prac-
tice of construing state statutes, where possible, in a
manner saving their constitutionality.'

I It has repeatedly been held in this Court that its practice will
not be "to decide any constitutional question in advance of the nece.-
sit), for its decision . . .or . . .except with reference to the par-
ticular facts to which it is to be applied," Alabama State Federation
v. McAdory. 325 U. S. 450, 461, and that state statutes will always
be construed, if possible, to save their constitutionality de;pite the
plausibility of different but unconstitutional interpretation of the
language. Thus, the Court recently reaffirmed the principle in Oil
Workers Unions v. Missouri, 361 U. S. 363, 370: "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
 OCTOBER TERM, 1961.

WHITE, J., dissenting. 370 U. S.

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,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 appel-
lant had frequently used narcotics in the recent past.'
California is entitled to have its statute and the record so
read, particularly where the State's only purpose in allow-
ing 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
construe its law as to bring it into conflict with the federal Consti-
tution or an act of Congress.' Allen-Bradley Local v. Wisconsin
Board, 315 U. S. 740, at 746."
2 The court instructed the jury that, "The word 'addicted' means,

strongly disposed to some taste or practice or habituated, especially

to drugs. In order to inquire as to whether a person is addicted to
the use of narcotics is in effect an inquiry as to his habit in that
regard. . . . To use them often or daily is, according to the ordinary
acceptance of those words, to use them habitually."
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.
 ROBINSON v. CALIFORNIA.

660 WHITE, J., dissenting.

where there is no precise evidence of the county where the

use took place.
Nor do I find any indications in this record that Cali-
fornia 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 been 10

4 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
858, 331 P. 2d 251; People v. Garcia, 122 Cal. App. 2d 962, 266 P.
2d 233; People v. Ackles, 147 Cal. App. 2d 40, 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. 147
Cal. App. 2d, at 42-43, 304 P. 2d, at 1033, distinguishing People
v. Thompson, 144 Cal. App. 2d 854, 301 P. 2d 313. Under Cali-
fornia law a defendant has no constitutional right to be tried in
any particular county, but under statutory law, with certain excep-
tions, "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 748, 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, 40 Cal. App. 2d, at 764, 106 P. 2d, at 93. See
People v. Bastio, 55 Cal. App. 2d 615, 131 P. 2d 614; People v.
Garcia, supra. In reviewing convictions in narcotics cases, appellate
courts view the evidence of venue "in the light most favorable to the
judgment." People v. Garcia, supra.
 OCTOBER TERM, 1961.

WHITE, J., dissenting. 370 U. S.

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 uncon-
troverted 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 find-
ing 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 proceed-
ings for the use of narcotics or for regular use amounting
to habitual use.'
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 con-
vict 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.

5 Health and Safety Code § 11391 expressly permits and contem-

plates the medical treatment of narcotics addicts confined to jail.
 ROBINSON v. CALIFORNIA.
660 WHITE, J., dissenting.

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 effec-
tively 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 Consti-
tution 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 Consti-
tution its own abstract notions of how best to handle the
narcotics problem, for it obviously cannot match either
the States or Congress in expert understanding.
I respectfully dissent.