Martínez Rodríguez v. Delgado

92 P.R. 613

• Court: Supreme Court of Puerto Rico
• Decided: June 30, 1965
• Docket: No. HC-64-21
• Status: Published

Opinions

Mr. Justice Dávila

delivered the opinion of the Court.

A law of the state of California, West’s Annotated Health and Safety Code, § 11721 (1964 ed.), made addiction to the use of narcotic drugs a public offense punishable by imprisonment in jail. It having been shown that the person was an addict to the use of drugs, he violated the law without the need of establishing specific acts such as use, possession, or transportation. Its constitutional validity was assailed. In Robinson v. California, 370 U.S. 660 (1962), the Supreme Court of the United States, considering that being addicted to the use of narcotic drugs apparently is an illness, held that the criminal conviction of a person merely for being an addict was a cruel and unusual punishment and, hence, prohibited by the Eighth Amendment.

Relying on that decision, petitioner requests this Court to release him.¹ Let us examine his reasoning. On May 17, 1961, he was charged with having in his possession and control the narcotic drug known as marihuana.² The trial was held and he offered no evidence in his defense. On the following September 15 he was sentenced to serve from 6 to 10 years’ imprisonment in the penitentiary. Three years later, September 23, 1964, he requested his release alleging that he is an addict “afflicted with a disease marked by an irresistible craving for the use of drugs, wherefore both the trial and the sentence are null and void at law since an offense could not, nor can it ever be established in the absence of criminal intention, and that his conviction would amount to prosecuting or punishing a person for being afflicted with cancer or tuberculosis.” He then cites from the Robinson case the following:

“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.”

. The State alleges that petitioner did not show at the trial against him that he was an addict. Robinson did not establish when the habitual use of narcotics becomes a disease. Note, 111 Pa. L. Rev. 122, 124 (1962). We shall assume, however, that petitioner established that he is a sick person.³

Although it is true that Robinson held that the infliction of a prison punishment by virtue of a judgment in a criminal case on an addict to the use of narcotic drugs merely because he is such an addict-is a cruel and unusual punishment, it is also true that the Court clearly established that a “State might impose criminal sanctions, for example1, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.” And in considering the question it makes clear that “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. . . . 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.’ ” And at the end the majority opinion asserts:

“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 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.”

Thus, in Robinson it was made clear that what was repugnant to the constitutional guarantee consecrated in the Eighth Amendment was the infliction of criminal punishment on a person solely for being an addict. Punishment was being inflicted, not for an “act,” but for a “status.” In considering the question, the Court emphasized that the State could use diverse means to control the traffic and use of drugs. It could punish the possession of the drug, its sale, its purchase, and other activities relating to the traffic of narcotic drugs.

Petitioner’s interpretation of Robinson, is that it maintains that a jail punishment on an addict for possessing a narcotic drug is a cruel and unusual punishment. Robinson does not hold that. The Court made it clear that it did not. It said at p. 664 that “a State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.”

There is nothing in the ruling which holds “that the fact of being a drug addict may be a valid defense in favor of the addict when he is caught making ‘use, possessing, or transporting a drug, if such operations are incidental to its proper use.’ ”

That is not the construction placed upon Robinson by the courts of other jurisdictions having statutes like ours. Regarding the comments on the holding, the majority is agreeable with the construction of the courts. Some say that it is logical and reasonable to extend the doctrine to specific acts to the effect that the criminal conviction of an addict for using or possessing narcotic drugs is a cruel and unusual punishment. Let us examine first the case law, then thé comments.

On June 30, 1964, the Supreme Court of Wisconsin rendered judgment in Browne v. State, 129 N.W.2d 175, which was ratified six months later in State v. Brown, 130 N.W.2d 760. The constitutionality of a statute which punished the use of drugs without a prescription was assailed. The information was based on the fact that defendant used an un-prescribed drug. He invoked Robinson and set up the defense that he was an addict. The court upheld the validity of the statute and affirmed the judgment sentencing him to serve a maximum penalty of five years. In so holding, it said:

“Robinson is clearly distinguishable. The California statute that was held unconstitutional made it a crime to be a drug addict. Robinson came to California from Oregon and was charged with the status crime of being addicted to the use of narcotics. He was not charged with, nor was there any evidence offered of any particular incident of use of drugs either in California or otherwise. . . .

“Robinson does not invalidate any state statute . . . that makes it a crime for a person, whether an addict or not, to take and use narcotic drugs without a legal prescription. In the case at bar Browne was not charged with being an addict but with a specific act of taking and using drugs not pursuant to a prescription.”

In Salas v. State, 365 S.W.2d 174 (1963), another phase of the question under consideration was before the Court of Criminal Appeals of the State of Texas. The statute makes it a crime (1) to habitually use narcotic drugs, (2) to be addicted to, and (3) to be under the influence of narcotic drugs. Salas was charged with being under the influence of narcotic drugs. He attacked the constitutionality of the statute in the light of the holding in Robinson. The Court held that that part of the statute, insofar as it makes it a crime for a person to be addicted, is invalid. Subsequently it ratified this holding in Ex parte Rogers, 366 S.W.2d 559 (1963), and in Martínez v. State, 373 S.W.2d 246 (1963), but sustained the remainder of the statute. These cases conclude that being under the influence of narcotic drugs is an act which may be punished criminally. Defendant appealed to the Supreme Court of the United States, and his case was dismissed for want of substantial federál question. Salas v. Texas, 375 U.S. 15 (1963).

In Martínez the Court of Texas, after Robinson was invoked, stated the following':

“The cases cited furnish no authority for striking down the statute which provides life as the maximum punishment for the unlawful possession of a narcotic drug.”

In State v. Margo, 191 A.2d 43 (1963), the Supreme Court of New Jersey had under consideration the same question raised in Salas which we have just considered. In deciding the same, it stated as follows: ■

“Our statute does not punish for an unsatisfied craving for drugs. Rather it denounces the state of being under their influence. As we have said, the statute deals with the influence of narcotics to obviate an issue as to whether the drug was taken here or in another jurisdiction. We see no reason why, if a person may constitutionally be punished for using a drug, he may not be punished for being under its ‘influence,’ for realistically the use of a drug offends society’s interests precisely because of its baleful influence upon the person and the harm to which that influence may lead. In other words, being under the influence of a drug is itself antisocial behavior. It is not some latent or passive proclivity; it is an active state, voluntarily induced and laden with a present capacity for further injury to society. We think society may use the criminal process to protect itself against that harm. Robinson is not to the contrary.”

In Murray v. State, 203 A.2d 908 (1964), the Court of Appeals of Maryland considered another phase of the question. Murray was charged with possession of narcotics. Relying on Robinson, he offered medical evidence to establish that addiction is a disease, and it was excluded. On appeal, the trial court was upheld. The following is the expression of the Court:

“In Maryland narcotics addiction is not a crime, and- the defendant was not prosecuted for being an addict. Instead, he was tried and convicted of a violation of Code (1957), Art. 27, § 277, which prohibits one from manufacturing, possessing, controlling, selling, prescribing, administering, dispensing, or compounding any narcotic drug unless authorized by law to do so, and it is for possessing and controlling narcotics that the defendant is being punished. While the multiple offender statute, Code (1964 Supp.), Art. 27, § 300, applies to addicted and non-addicted alike, it does not, as the defendant claims, punish one for being an addict. Moreover, despite the apparent election of the defendant to ignore it, the law provides for the treatment, care and confinement of one charged with the commission of a criminal offense ‘who is habitually addicted to the use of narcotic drugs as that term is defined in § 276 of Article 27.’ Code (1964 Supp.), Art. 16, § 49. This statute does not make narcotics addiction a crime, nor is it punitive in nature.

“The Robinson case, holding that a California statute that punished one for drug addiction was in violation of the constitutional guarantee against cruel and unusual punishment, is clearly distinguishable from the present case. There the statute in question specifically made it unlawful for a person to be addicted to the use of narcotics. In Maryland, as we have seen, there is no statute making addiction a crime.”

In State v. DaVila, 183 A.2d 852 (Conn. 1962), the defendant was convicted of having in his possession a narcotic drug: heroin. He admitted being an addict and purchasing the drug for his own use. The State offered evidence to prove that defendant became acquainted with one Leach, with whom he smoked marihuana. They discussed narcotics and defendant offered to sell some to Leach, who stated that he had a friend who would be interested. Defendant told Leach that he was going to New York to obtain narcotics which he desired to dispose of through Leach. The following day defendant returned, with 10 bags of heroin, to his apartment, where Leach met him by prearrangement. They then went to a car. After being introduced, defendant sold nine of the bags to a man who turned out to be a federal agent. Defendant did not want to sell the tenth bag because he wanted it for a friend. Defendant admitted the foregoing, hut claimed that Leach induced him to do so and that he kept the last bag for his own use.

The defendant requested the trial court to charge that if the jury found that the drug was in his possession for purposes of administration to himself who was an addict, the jury should so indicate in their verdict. The court did not so charge. On appeal, it was held that it was correct.

The Connecticut statute provides that “no person shall manufacture, possess, have under his control, sell, prescribe, dispense, compound, administer to himself or to another person, or be addicted to the use of any narcotic drug.”

In holding that the court was correct in refusing the instruction requested, the Court said that the law makes no distinction “between possession or control of the drug for sale and possession or control for self-administration or by one who is an addict. A person who has the drug in his possession or under his control for any purpose other than a lawful one as described in the uniform act is guilty of a crime.”

The Supreme Court of Louisiana was confronted with the problem presented in the Robinson decision, holding that “inasmuch as the habitual use of a narcotic as denounced by the Louisiana statute necessarily comprises a series of acts committed intentionally or voluntarily, our law can and could have no application in the prosecution of a person for the mere status or condition of addiction which might possibly, as pointed out by the various opinions in the Robinson case, result unintentionally or involuntarily. And since the federal decision declared the California statute invalid solely because of such a possibility that holding is not controlling, or even relevant, in a determination of the constitutionality of LRS 40:962 (A) under which these relators were charged.” State v. Walker, 154 So.2d 368 (1963), cert. denied, 375 U.S. 988 (1964). And in State v. James, 169 So.2d 89 (1964), it is held that since defendant was not charged with addiction but with possession of morphine, he had no standing to attack the constitutionality of the addiction provisions of the statute.

A statute similar to that of California was construed in People v. Davis, 188 N.E.2d 225 (Ill. 1963). And the Supreme Court of Illinois, on the theory of Robinson, held that it was unconstitutional to convict a person for being an addict.

In State v. Bridges, 360 S.W.2d 648 (Mo. 1962), the question involved was the same. The Supreme Court of Missouri held that the legal provision punishing “to be or become addicted to any narcotic drug” was void, as was the statute construed in Robinson.

On April 21 past the Court of Appeals for the Second Circuit decided United States v. Réincke, 344 F.2d 260. One convicted for the use of drugs filed a petition for habeas corpus alleging that since he was an addict, his criminal conviction for the use of drugs was a cruel and unusual punishment. He invoked Robinson. In denying the writ the court said that in Robinson:

. . The Court recognized ‘the broad power of a State to regulate the narcotic drugs traffic within its borders,’ affirmed the power of a state to ‘impose criminal sanctions’ against unauthorized ‘possession of narcotics within its borders,’ 370 U.S. at 664 — without drawing an exception for addicts — and emphasized that it was dealing ‘only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.’ 370 U.S. at 668.”

We turn next to examine the comments published about Robinson. In a note appearing in 12 Buffalo L. Rev. 605 the following is stated at p. 620:

“The dissenting opinion of Mr. Justice White has, however, touched upon a point that is certain to present itself to the Court for future resolution and perhaps eventual extension of the scope of the instant ruling. It is simply this: if a state cannot punish for the status or condition of drug addiction, how consistent with the Eighth Amendment stricture will be those statutes that proscribe the use of drugs? It is apparent that an addict uses drugs because he is addicted to their use. For the same reason he will possess narcotics as well as the instruments for their use and may perhaps even sell narcotics to other addicts to support his own habit. He will use, possess, and sell narcotics only because he is addicted to them, because he has the status of being an addict, a state or condition which cannot now be punished.

“It may be enough to say that all of these elements are ■severable and that the inability of the states to constitutionally proscribe the status of drug addiction will not affect the constitutionality of the incidents thereof.”

In 42 Neb. L. Rev. 685-91 (1962) it is made clear that Robinson “raised, but did not answer, the question of whether a person could be convicted for the use of narcotics.”

In a study of the decisions of the Supreme Court annually made in Har. L. Rev. the following comment on Robin~ son appears in vol. 76 at p. 143 et seq.:

". . . The majority emphasized that the decision did not preclude punishment for the related offenses of ‘unauthorized manufacture, prescription, sale, purchase, or possession of narcotics,’ or compulsory civil confinement of addicts for treatment.

“. . . However, as Mr. Justice White emphasized, the majority opinion appears broadly to assume that any habitual user of drugs, the trial court’s definition of an addict, is necessarily an addict in the medical sense, who acts under physical and psychological compulsion. As he also pointed out, the majority’s catalogue of acts which a state constitutionally may punish did not include the use of narcotics. While this list clearly was not exhaustive, a distinction between penalties for use and penalties for addiction appears tenuous, at least where addiction is regarded as no more than habitual use. The principal difference would seem to be the degree of particularity required in the indictment and the necessary proof of such matters as time and place of use.' Moreover, even if the majority holding does not require elimination of use as a separate offense, it is at least arguable that it indicates that a defendant should be permitted to interpose addiction as a defense to a prosecution for use, since otherwise the state would seem to be punishing addiction indirectly. The same might sometimes be true of the offense of illegal possession. That the majority opinion meant to go so far, however, seems doubtful, since Mr. Justice Stewart emphasized that the present case is not considered to have involved a punishment for any antisocial acts. Mr. Justice Harlan also stressed the distinction between an act and a condition or status as the basis for criminal sanctions — a distinction which others have thought constitutionally significant. Adoption of such an analysis might cast doubt on the constitutionality of the numerous statutes prohibiting such ‘crimes of personal condition’ as vagrancy, which in many jurisdictions is punishable on proof that the defendant was an ‘idle’ or ‘dissolute’ person, rather than on proof of specific antisocial behavior.

“The decision would seem at least to bar prosecution where the state is unable to prove any specific instance of use or possession of narcotics within the jurisdiction.”

In the note commenting Robinson appearing in 37 Tul. L. Rev. 119, 121 (1962), it is said:

“The decision in the instant case notwithstanding, the addict remains outside the law for all practical purposes. By using, possessing, or purchasing narcotics, he is engaging in extralegal activity.”

And in that appearing in 47 Minn. L. Rev. 484, 493 (1963), it is asserted:

“. . . If the Court is willing to grant the status of addiction immunity on the basis of its similarity to mental illness, there appears to be no logical reason why that similarity should not also be recognized for the purpose of granting the addict immunity from prosecution for acts incidental to his condition. Thus, the Court’s reasoning suggests that the status of narcotic addiction ought to be recognized as an affirmative defense in criminal actions for acts incidental to that status.”

In the Note published in 16 Yand. L. Rev. 214, 218 (1962) it is commented:

“Although the Court expressly limited its holding to those statutes which make a criminal offense of the addict’s status, its reliance upon the substance of the eighth amendment tends to broaden the effect of the holding to include statutes which subject the addict to criminal prosecution because of an act essential to his status. The use of the eighth amendment raises the question of whether it would be any less cruel and unusual to imprison an addict for acquiring, possessing, or using narcotics. Logic dictates a negative answer.”

In 41 Texas L. Rev. 444, 446 (1963) it is asserted that: “if the constitutional ban on cruel and unusual punishment precludes treating the addict as a criminal, then it makes no sense to permit the states to treat as criminal the conduct of an addict which is only symptomatic of his disease.”

In an article entitled Implications of Robinson v. California, 1 Houston L. Rev. 1, 7 (1968), a study is made of the holding as well as of others of state courts, especially State v. DaVila, supra, of the Supreme Court of Connecticut. It concludes thereon that “while the decision of the Robinson case does not compel any certain result, and the decision of the Connecticut Court seems unduly restrictive, it may be suggested with some confidence that the law will he that an addict may not be jailed for the crimes of narcotic condition.”

The author is of the opinion that the implication of Robinson is that “where the addict violates the narcotics law by obtaining, using, or possessing the drug in order to maintain his habit, the state can not impose jail sentence on him.”

Thus, we see that the courts have unanimously construed Robinson in the sense that a criminal sanction may be imposed on an addict if he commits one of the acts prohibited by law.

However, the opinions of those who have commented on the decision, the students who write the notes and those who comment on them as well, are diverse. Some say that they are agreeable with the reasoning of the opinion to the effect that the State may impose a criminal punishment on an addict for using, possessing, etc., the narcotic drug. Others admit that that is the tenor of the decision, but that it is neither logical nor reasonable. Others maintain that the final result of the holding is that criminal sanctions on an addict for possessing or using drugs should not be imposed. . ■

If the constitutional validity of a penal provision dealing with a problem of serious social impact on which there is diversity of criteria as to the wisest manner of treating the same can be upheld, it is our duty to uphold ■it. We must not attempt to impose our particular preference on how to solve it.

We may not agree with the manner of attacking the problem which the illegal narcotic drugs traffic represents to society. Those who have studied the problem, those with a broad knowledge of the addict’s behavior, have been unable to agree on “which is” the best method. As stated by Dr. Fernández Marina at the hearing of the present case when he was asked whether the addict should be treated “as a delinquent or as a patient”:

“At all times he is a patient and since, of course, there are two points of view here which must be reconciled, the point of view to protect society against a delinquent', and from the medical point of view to treat a patient. The problem is nowhere decided.”

In ReincJce, supra, it is said that:

“We are well aware of the serious difference of opinion concerning the wisdom of antinarcotics legislation seemingly so harsh as Connecticut’s. But the very lack of an agreed solution argues against judicial interposition rather than for it.”

Furthermore, our statute is .not couched in the same terms of the statute considered in Robinson. Ours follows the uniform pattern adopted in practically all state jurisdictions. It is scientific, all-embracing, with penalties for certain acts, but at the same time with provisions for facing the problem of ill addicts. It does not make addiction, a crime.

Notwithstanding petitioner was criminally convicted, he testified that he is receiving group psychiatric treatment in the penitentiary. Evidently, the State has not treated him as a common criminal. He avails himself of his imprisonment to cure his illness. The law also provides for the treatment of those persons who voluntarily submit to treatment. It does not consider them delinquents. 24 L.P.R.A. § 976L

The petition for habeas corpus is denied.

Mr. Justice BelavaT dissented- in an opinion in which Mr. Chief Justice Negron Fernández and Mr. Justice Hernán-dez Matos and Mr. Justice Santana Becerra concur. Mr. Justice Santana Becerra delivered a separate opinion in which Mr. Chief Justice and Mr. Justice Belaval and Mr. Justice Hernández Matos also concur.

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1 Petitioner had been previously convicted in the Federal District Court for the District of Puerto Rico for the crime of selling drugs, and he was on probation.

2 The provision violated is the following:

“There is hereby absolutely forbidden the holding, possession, conveyance, use, application, prescription, manufacture, preparation, or any transfer or receipt, as well as the introduction, concealing, and transportation in Puerto Rico of:

“(3) The drug known as marihuana, as well as any liquid or solid mixture, including cigarettes or cigars of whatever form and nature containing any portion of residue of marihuana.” (24 L.P.R.A. § 974z.)

3 At the hearing of the habeas corpus petitioner admitted being an addict to the use of narcotic drugs; that he had a craving for drugs. There was also evidence that he was receiving group treatment in the penitentiary. Dr. Fernández Marina’s testimony merely stated in general terms the addict’s symptomatology. He did not examine petitioner. Whether this is sufficient to establish the condition of addict as a “disease,” quaere.-