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Article Excerpt
I. INTRODUCTION
In its 1962 opinion Robinson v. California, (1) the United States Supreme Court held that a jail sentence of ninety days to one year for the status of being "addicted to the use of narcotics" constituted cruel and unusual punishment. Robinson broke new constitutional ground by its unprecedented employment of the Eighth Amendment to strike down a sanction as cruel on grounds other than its mode or its proportion. (2)
Robinson precipitated immediate controversy. (3) For Herbert Packer, perhaps the leading criminal law commentator of the day, Robinson raised more questions than it answered and planted the seeds for a radical remaking of the criminal law, possibly even sounding its death knell. In Packer's words, "[I]f [Robinson's] premise, that the legislature may not make it a 'crime' to be 'sick' is to be taken literally, the demise of the criminal law may be at hand." (4)
Such perceptions of the impact of Robinson were only strengthened by the Court's subsequent decision in Powell v. Texas (5) rendered several years after Robinson. Powell addressed the question of whether it constituted cruel and unusual punishment to punish an alcoholic for public drunkenness. The defendant argued that alcoholism is a disease and appearances by alcoholics in public are but symptoms of the disease, so to punish acts inherent in the disease is to punish the disease itself. While the Powell Court did not find a constitutional violation under the facts of the case, the inconclusive nature of the opinion (6) nevertheless left open the possibility that acts deemed uncontrollable as manifestations of diseases or other status conditions may in future cases fall within Robinson's ban.
After Powell, the Supreme Court offered no more guidance on the meaning of Robinson. In the ensuing years, the lower courts generally sustained punishments attacked under Robinson so long as an act rather than a mere status was being punished. (7) Robinson thus had little impact and certainly did not result in radical doctrinal change. A recent lower court development suggests, however, that Robinson's period of dormancy may be ending. In its 2006 opinion Jones v. Los Angeles, (8) the Ninth Circuit Court of Appeals relied on Robinson and Powell in finding that it was cruel and unusual punishment to impose criminal sanctions upon homeless persons who violated a city ordinance prohibiting, among other things, sitting, lying, or sleeping on public sidewalks. The Jones court found that the acts of sitting or sleeping on the sidewalk were inherent in the status of homelessness, and therefore to punish such acts was to punish the status contrary to Robinson.
The Jones approach represents a dramatic change of direction in Eighth Amendment jurisprudence. At a minimum, the case introduces the constitutionalization of the traditional mens rea principle. If followed to its logical conclusion, Jones portends radical doctrinal change, potentially signaling the very "demise of the criminal law" foretold by Packer.
This Article explores the ramifications of the Jones case and argues that, while the decision may in part be consistent with Robinson and Powell, it should nevertheless be rejected. I argue that the mischief created by Jones is the consequence of a fundamental mistake made by the Robinson Court in grounding that case in the Cruel and Unusual Punishments Clause rather than in more appropriate substantive due process doctrine. Specifically, I argue that the problem with the sanction applied to drug addiction in Robinson was not that it was cruel punishment under the Eighth Amendment but that its application was blatantly irrational as a due process matter. The due process analysis of Robinson I recommend would resolve the problem posed by criminalizing status conditions by articulating a sound but narrow constitutional principle, thus avoiding the radical implications of Jones.
In Part II, I discuss Robinson and Powell and their progeny up to Jones. In Part III, I critique Jones and argue that a failure to attend to the concept of punishment led the court erroneously to grant standing to unconvicted homeless litigants to raise Eighth Amendment claims. I then explore the unwelcome implications of the Jones case and trace its existence as a product of Robinson's Eighth Amendment underpinnings. In Part IV, I examine the concept of punishment in light of Supreme Court definitions as well as relevant philosophical literature. This discussion illustrates that the sanction at issue in Robinson was not in fact "punishment." To make this point, I appeal to John Rawls's heuristic distinction between "telishment" (his term) and "punishment" in coining my own term, "malishment," to describe the sanction in Robinson. Because "punishment" was not at stake in Robinson, the Court inappropriately utilized the Cruel and Unusual Punishments Clause in reaching its decision, resulting in a much broader decision in Robinson than was necessary to decide the issue raised in the case. I then analyze Robinson in Part V under what I believe to be the proper constitutional theory, the Due Process Clause, and demonstrate the unconstitutionality of employing the malishment sanction.
All of this is to urge the Supreme Court, at its earliest opportunity, to revisit Robinson and rethink it under a substantive due process footing. Such a rethinking will preserve the results in Robinson and Powell but avoid the Jones approach with its deleterious implications. Proper analysis of the issue raised by Robinson will, in the end, result in the modest, but essential, constitutional conclusion that without a criminal act there can be no punishment.
II. ROBINSON AND ITS OFFSPRING
Prior to Robinson, the Cruel and Unusual Punishments Clause of the Eighth Amendment (9) had played a relatively unimportant role in American constitutional jurisprudence. In the nineteenth century, the clause was seldom invoked in the courts, and then only as a vehicle to address the constitutionality of questionable methods of punishment, but not as a means of measuring the proportionality of punishment to crime. (10) The clause was so insignificant that some nineteenth-century courts and commentators actually believed it to be obsolete. (11)
Early in the twentieth century the Supreme Court expanded the scope of the clause to invalidate acceptable modes of punishment deemed excessive in relation to the offense being punished. (12) Yet even then, the clause was seldom used to invalidate harsh sentences. (13) Given this background, the Robinson Court's sudden application of the clause in a case questioning neither the method nor the proportionality of punishment (14) was deemed a "sweeping" (15) and "novel" development. (16)
A. ROBINSON K CALIFORNIA
The Robinson Court considered the constitutionality of a California statute making it a misdemeanor, inter alia, to "be addicted to the use of narcotics." (17) Persons violating the statute were subjected to a confinement of ninety days to one year in the county jail. (18)
Although the Cruel and Unusual Punishments Clause previously had never been applied to the states, (19) a five-member majority of the Court utilized the clause to invalidate the statute's application to drug addicts. The Court noted that the statute made the mere "status" of narcotic addiction a criminal offense whether or not the offender had ever used or possessed narcotics within the State or had engaged in any antisocial behavior there. Citing but one Eighth Amendment case as authority (20) and offering no further analysis or explanation, the Court said:
A State might determine that the general health and welfare require that the victims ... of human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration.... [N]arcotic addiction is an illness ... which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal ... inflicts a cruel and unusual punishment.... 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. (21)
In dicta, the Court further allowed that the States retained broad power to impose criminal sanctions against the "unauthorized manufacture, prescription, sale, purchase, or possession of narcotics" within its borders. (22)
While the Robinson majority merely concluded without analysis that the Eighth Amendment invalidated the California statute, (23) Justice Douglas, in a concurring opinion, appealed to the Court's proportionality cases as grounds for the Robinson Court's decision. For Douglas, "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." (24) Douglas further elaborated:
Cruel and unusual punishment results not from confinement, but from convicting the addict of a crime. The purpose of [the statute] is not to cure, but to penalize. Were the purpose to cure, there would be no need for a mandatory jail term of not less than 90 days.... [The statute] is, in reality, a direct attempt to punish those the State cannot commit civilly.... 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. (25)
Justice Harlan also concurred in the result in Robinson but not on Eighth Amendment grounds. Citing no authority, Harlan appeared to have seen the problem in substantive due process terms, finding it an "arbitrary imposition" of State power to apply the California statute under the circumstances of Robinson. Assuming that the State could properly punish narcotics use by addicts, who by definition possess a compelling propensity to use narcotics, Harlan saw the statute's application to addicts per se as an unconstitutional authorization of criminal punishment "for a bare desire to commit a criminal act." (26)
In a dissenting opinion, Justice White expressed concern about the implications of the majority opinion in Robinson. White found insufficient evidence in the record to find that the appellant in the case had in fact been convicted solely on the basis of his status as an addict rather than for the regular use of narcotics. (27) Had such evidence existed he "would have [had] other thoughts about the case," (28) presumably, however, not as an Eighth Amendment matter. In warning of the ill-advised use of the Eighth Amendment to decide the issue in Robinson, White said:
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 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. (29)
For White, the majority opinion cast doubt on the continued ability of states to punish use of narcotics by addicts. (30)
Finally, Justice White chided the majority for substituting its judgment for that of policymakers. White suggested that the majority's "novel" application of the Eighth Amendment was a consequence of the Court's "allergy" to substantive due process. (31)
Clearly, Robinson left important questions unanswered. Did the case stand for the narrow proposition that commission of an offense is an essential prerequisite for punishment, thus simply constitutionalizing traditional actus reus principles? If so, whether or not a person possesses power to control his actions, amens rea issue, would be irrelevant. (32) Or, on the other hand, did the Robinson Court's focus on drug addiction as a disease entail a broader rationale, as feared by Justice White, (33) extending also to mens rea issues addressing criminal responsibility for acts inherent in the disease? (34) As shown by the discussion of the Powell case in the next section, the broader actus reus plus mens rea interpretation appears to have captured the meaning of Robinson.
B. POWELL V. TEXAS
In its 1968 decision Powell v. Texas, (35) the Supreme Court offered its next and final word on the scope of Robinson. Leroy Powell, an alleged alcoholic, was convicted of "be[ing] found in a state of intoxication in a public place" and fined $20. On appeal Powell argued that he was afflicted with the disease of chronic alcoholism, that his appearance in public while drunk was not volitional, and that to punish him for that conduct would essentially be punishing him for his disease contrary to Robinson.
The Court affirmed Powell's conviction in a 5-4 decision but divided three ways. In a four-Justice plurality opinion, Justice Marshall rejected Powell's constitutional claim on a variety of grounds. Marshall found the record in the case did not clearly reveal the circumstances of Powell's drinking bout on the day of his arrest nor his drinking problem in general and thus provided an inadequate basis for announcing "an important and wide-ranging new constitutional principle." (36) While recognizing that alcoholism is a disease, Marshall found little agreement within the medical profession regarding its causes and manifestations. (37) Moreover, the record did not provide a basis for determining what, for Marshall, was a crucial issue in the case: the ability to distinguish between "loss of control" by Powell once he commenced to drink and his "inability to abstain" from drinking in the first place. (38) "Presumably a person would have to display both characteristics in order to make out a constitutional defense, should one be recognized." (39)
Future recognition of such a defense was not necessarily foreclosed, however, by other aspects of Marshall's opinion. In noting that effective treatment of alcoholism was not at the time available, Marshall saw some virtue in treating public aspects of alcoholism through the criminal justice system with its fixed, relatively brief periods of confinement for offenses such as Powell's rather than through therapeutic civil commitments that might entail confinement for a longer period of time. (40) By implication, improved treatment might give more credibility to claims like those of Powell's in the future.
Notwithstanding his view of the faulty record, Marshall addressed the applicability of Robinson to Powell's situation by pointing out a simple distinction: unlike the defendant in Robinson, Powell was not convicted for his status, here a chronic alcoholic, but for his "act" of "being [appearing] in public while drunk on a particular occasion." (41) This narrow interpretation was attractive to Marshall:
Robinson so viewed brings this Court but a very small way into the substantive criminal law. And unless Robinson is so viewed it is difficult to see any limiting principle that would serve to prevent this Court from becoming, under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country. (42)
Marshall specifically attempted to limit Robinson's thrust to actus reus concerns rather than to the more expansive mens rea issues entailed in Powell's claim that he was not criminally responsible because he could not control his actions due to his alcoholism. Noting that the Supreme Court "ha[d] never articulated a general constitutional doctrine of mens rea," (43) Marshall was reluctant to do so in Powell, at least
on the state of this record or on the current state of medical knowledge that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts. (44)
Noting the value of leaving to the States the power to determine the broad range of mens rea doctrines (45) in light of shifting "religious, moral, philosophical, and medical views of the nature of man," (46) Marshall found that "[i]t is simply not yet the time to write the Constitutional formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers." (47)
While Marshall's plurality denied, at least for the time being, a mens rea component to Robinson, Justice Fortas, writing for three other dissenting Justices, would recognize Powell's defense. Fortas saw the issue in the case as "a narrow one": "[W]hether a criminal penalty may be imposed upon a person suffering the disease of 'chronic alcoholism' for a condition--being 'in a state of intoxication' in public--which is a characteristic part of the pattern of his disease." (48) Fortas found adequate evidence in the record to establish that Powell was an alcoholic who was unable to resist the constant excessive consumption of alcohol which, in turn, "leads him to 'appear in public [not] by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism."' (49) Thus, punishment of Powell was precluded by the principle of Robinson: "Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change." (50)
With the Powell Court equally split between the Marshall plurality and the Fortas dissent, Justice White cast the decisive, concurring vote. (51) However, White agreed with the dissenters' general position. White expressed his view of Robinson as it related to the issue in Powell as follows:
If it cannot be a crime to have an irresistible compulsion to use narcotics [under Robinson], I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic with an irresistible urine to consume alcohol should not be punishable for drinking or for being drunk. (52)
Given Justice White's views, the Powell dissent more closely states "the principles accepted by a majority of the Court than does the plurality opinion." (53) Thus while some on the Powell Court would limit Robinson to "a firm and impenetrable barrier to the punishment of persons who, whatever their bare desires and propensities, have committed no proscribed wrongful act," (54) a majority of the Court would extend the case to assessments of responsibility for actions inherent in disease conditions.
C. IMPLICATIONS: THE DEMISE OF THE CRIMINAL LAW?
A leading commentator has noted that if Justice White had joined the dissent in Powell, the case would have "generated a precedent of revolutionary proportions." (55) However, as noted immediately above, White's opinion shares a much closer affinity to the dissent than to the plurality opinion. (56) It is thus important to explore the implications of the Powell dissent as possibly viable in shaping future law. (57)
Justice Marshall warned in his Powell opinion that embracing the dissenting position would lead to the Supreme Court's becoming "the ultimate arbiter of ... standards in diverse areas of the criminal law." (58) In his concurring opinion in Powell, Justice Black expanded on this concern:
[A]ny possible limits proposed for the rule [urged upon us] would be wholly illusory. If the original boundaries of Robinson are to be discarded, any new limits too would soon fall by the wayside and the Court would be forced to hold the States powerless to punish any conduct that could be shown to result from a "compulsion," in the complex, psychological meaning of that term. The result, to choose just one illustration, would be to require recognition of "irresistible impulse" as a complete defense to any crime; this is probably contrary to present law in most American jurisdictions. The real reach of any such decision, however, would be broader still, for the basic premise underlying the argument is that it is cruel and unusual to punish a person who is not morally blameworthy.... The criminal law is a social tool that is employed in seeking a wide variety of goals, and I cannot say the Eighth Amendment's limits on the use of criminal sanctions extend as far as this viewpoint would inevitably carry them. (59)
Thus, "irresistible impulses" by drug addicts to steal in order to support their habits may be a defense to theft charges brought against the addict. (60) Theft charges against "kleptomaniacs" and arson charges against "pyromaniacs" may be excused. (61) Punishment of sex offenders may be unconstitutional if the offense is "compulsive and symptomatic of disease." (62)
Ultimately, the implications of the Powell dissent may be far more extensive than even Justices Marshall and Black recognized. Rather than merely making the Court the "arbiter of mens rea" standards of the criminal law, the Powell dissent might render the principle of mens rea, and indeed the criminal law itself, a relic of the past. Recognition of the idea that persons are not responsible for actions produced by status conditions beyond their ability to change plants the seeds for radical change:
Considered in light of an increasingly more sophisticated science of psychiatry, the "status one cannot change" rationale might conceivably yield results antithetical to the criminal law itself. It has been suggested that virtually all criminality may be the result of mental abnormality of some sort. Under this view of Robinson, the acceptance of such a position--like the acceptance of philosophical determinism--would lead to virtual abandonment of the criminal law; for the hypothesis upon which any system of criminal law must be founded is that individuals possess free will and are to be held responsible for their acts. (63)
D. LOWER COURTS AND POWELL
Until the recent Jones decision, discussed in the next section, the lower courts have generally refused to recognize mens rea defenses for acts attributable to illnesses or other status conditions (64) even though the Powell dissent remains arguably authoritative. Attention will be directed here to just one case denying such recognition, Moore v. United States, (65) "a judicial conversation of uncommon erudition." (66) The holding in Moore represents the "near universal [judicial] hostility" to any version of a mens rea, lack-of-control defense pressed by alcoholic or drug-addicted defendants under Powell. (67)
In Moore, the United States Court of Appeals for the District of Columbia considered, among other things, whether the "admittedly confused and divergent" opinions in Robinson and Powell precluded the conviction of a heroin addict, Moore, for possession of that substance. (68) Moore argued that his addiction created an overpowering need to use and thus to possess the drug.
While there was no majority opinion for the court, a majority did refuse to extend a defense under Powell. In his plurality opinion, Judge Wilkey admitted that "the interpretation that Robinson held that it was not criminal to give in to the irresistible compulsion of a 'disease[]' weaves in and out of the Powell opinions, but there [was] definitely no Supreme Court holding to this effect." (69) But even if the Powell dissent were viewed as authoritative, Wilkey unconvincingly attempted to distinguish Moore on the ground that "acquisition and possession of the addictive substance [heroin] ... are illegal activities, whereas in Powell the 'addict' induced his [alcohol] addictive state through legal means." (70) Probably the primary reason for Wilkey's refusal to extend a Powell defense to Moore was his concern about the implications of such a move. The "logic" of Moore's claim, if recognized, "would carry over to all other illegal acts of any type whose purpose was to obtain narcotics for his own use." (71)
In a dissenting opinion joined by three other members of the Moore court, Judge Wright observed that while Powell left the state of the law "obscure," Powell and Robinson appear "to stand for the proposition that an addict cannot constitutionally be subjected to criminal process for engaging in conduct which is itself inherent in the disease of addiction." (72) Therefore, Wright argued that Moore could not be punished for possession of heroin because heroin possession was logically entailed in being a heroin addict.
Judge Wright expounded on the status of the Cruel and Unusual Punishments Clause after Robinson and Powell:
Although Powell left unsettled the precise relationship between criminal responsibility and the Constitution, no member of the Court expressed even the slightest disagreement with the basic proposition that the Eighth Amendment provides only the floor and not the ceiling for development of common law notions of criminal responsibility.... .... The concept of criminal responsibility is, by its very nature, "an expression of the moral sense of the community." In western society, the concept has been shaped by two dominant value judgments--that punishment must be morally legitimate, and that it must not unduly threaten the liberties and dignity of the individual in his relationship to society. As a result, there has historically been a strong conviction in our jurisprudence that to hold a man criminally responsible, his actions must have been the product of a "free will." ... Thus criminal responsibility is assessed only when through "free will" a man elects to do evil, and if he is not a free agent, or is unable to choose or to act voluntarily, or to avoid the conduct which constitutes the crime, he is outside the postulate of the law of punishment. (73)
Judge Wright saw the Eighth Amendment's homage to "evolving standards of decency" and protection of human dignity as particularly fertile ground for generating constitutional principles of mens rea. (74) As "the constitutional floor," the Amendment's abhorrence of "cruel punishment" provided a rich doctrinal basis for bringing the Constitution to the substantive criminal law.
In addressing "perhaps the most troublesome question arising out of recognition of the addiction defense," Wright read Powell as indicating that the Court's position was that the defense should be limited to acts such as possession that are "inherent in the disease itself" rather than extend to instances where "an addict may in fact be 'compelled' to engage in other types of criminal activity in order to obtain sufficient funds to purchase his necessary supply of narcotics." (75) Wright saw his position as "but a short step past the principles announced in the Supreme Court's opinions in Robinson and Powell." (76)
Finally in a separate dissent, Judge Bazelon would go farther:
I cannot...
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