HARSHBARGER, Justice:
After Mark Harper, of South Charleston, was arrested and incarcerated for public intoxication more than a dozen times in 1980, he petitioned by habeas corpus to test the constitutionality of jailing chronic alcoholics who are intoxicated in public.1
I.
Medical experts and professional groups have concluded that alcoholism is a disease.2 The World Health Organization [745]*745named it “alcohol dependency syndrome”, described to be:
“A state, psychic and usually physical, resulting from taking alcohol, characterized by behavorial and other responses that always include a compulsion to take alcohol on a continuous or periodic basis in order to experience its psychic effects, and sometimes to avoid the discomfort of its absence; tolerance may or may not be present.” World Health Organization, International Classification of Diseases, 1977.
The National Council on Alcoholism, American Medical Society on Alcoholism, Committee of Definitions concluded:
ALCOHOLISM is a chronic, progressive, and potentially fatal disease. It is characterized by tolerance and physical dependency or pathologic organ changes, or both — all the direct or indirect consequences of the alcohol ingested.
1. “Chronic and progressive” means that the physical, emotional, and social changes that develop are cumulative and progress as drinking continues.
2. “Tolerance” means brain adaptation to the presence of high concentrations of alcohol.
3. “Physical dependency” means that withdrawal symptoms occur from decreasing or ceasing consumption of alcohol.
4. The person with alcoholism cannot consistently predict on any drinking occasion the duration of the episode or the quantity that will be consumed.
5. Pathologic organ changes can be found in almost any organ, but most often involve the liver, brain, peripheral nervous system, and the gastrointestinal tract.
6. The drinking pattern is generally continuous but may be intermittent, with periods of abstinence between drinking episodes.
7. The social, emotional, and behavioral symptoms and consequences of alcoholism result from the effect of alcohol on the function of the brain. The degree to which these symptoms and signs are considered deviant will depend upon the cultural norms of the society or group in which the person lives. Approved by the Executive Committee of the National Council on Alcoholism Board of Directors, June, 1976, 85 Annals of Internal Medicine, No. 6, December, 1976.
An American Medical Association publication, Manual on Alcoholism, defined it:
Alcoholism is an illness characterized by preoccupation with alcohol and loss of control over its consumption such as to lead usually to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse. It is typically associated with physical disability and impaired emotional, occupational, and/or social adjustments as a direct consequence of persistent and excessive use of alcohol. American Medical Association, Manual on Alcoholism 6 (1968).
See Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, 42 U.S.C.A. § 4541 (1977) (Congress declared that “alcoholism is an illness requiring treatment and rehabilitation”). See generally E.M. Jellinek, The Disease Concept of Alcoholism (1960); Keller and McCormick, A Dictionary of Words About Alcohol (1968); President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 1 (1967). Cf, Davies, Is Alcoholism Really A Disease?, 3 Contemp. Drug Problems 197 (1974) (alcoholism is a medical and social problem that is best dealt with by physicians and other disciplines); S. Shaw, A Critique of the Concept of the Alcohol Dependence Syndrome, 74 Brit.J. of Addiction 339 (1979) (recognizing that a purely medical model is too narrow). See also, Easter v. District of Columbia, 361 F.2d 50 (D.C.Cir.1966) (alcoholism as a sickness); Driver v. Hinnant, 356 F.2d 761 (4th Cir.1966) (alcoholism as a chronic illness); Sweeney v. United States, 353 F.2d 10 (7th Cir.1965) (abstention cannot be part of a probation agreement if a probationer is a chronic alcoholic); State v. Fearon, 283 Minn. 90, 166 N.W.2d 720 (1969) (widespread acceptance that alcoholism is a disease); State v. Street, 498 S.W.2d 523 (Mo.1973) (“alcohol[746]*746ism is a chronic disease”); Dayton v. Sutherland, 42 Ohio Misc. 35, 328 N.E.2d 416 (1974) (alcoholism as a disease); Wheeler v. Glenn Falls Insurance Co., 513 S.W.2d 179 (Tex.1974) (“a substantial school of thought supports the proposition that alcoholism is a disease”).
We agree that alcoholism is a disease. We also believe that criminally punishing alcoholics for being publicly intoxicated violates the prohibition against cruel and unusual punishment. W.Va. Const, art. Ill, § 5.3
Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), found that the United States Constitution prohibited criminal punishment of any person for being addicted to narcotics.
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 91 L.Ed. 422, 67 S.Ct. 374. Robinson v. California, supra 370 U.S., at 666, 82 S.Ct., at 1420, 8 L.Ed.2d, at 763.
In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), five Justices agreed that alcoholism was a disease, but because of a confusing trial court record the majority was unwilling to extend Robinson’s rationale to public intoxication.
Powell decided that public intoxication may be criminally punished, but distinguished Robinson because the Robinson statute sought to punish people who were addicted to a narcotic in Los Angeles County, or who had used a narcotic in Los Angeles County, Robinson, 370 U.S. at 663, 82 S.Ct. at 1418; and Texas did not punish Powell for being an alcoholic, or even for being drunk, but rather for being drunk in public. Powell, 392 U.S., at 532, 88 S.Ct., at 2154.
Justice White, apparently the deciding vote in Powell, wrote that when a record indicated that a defendant is an alcoholic and has no place to be but in public, a prosecution for public intoxication violates the Constitution. 392 U.S., at 551-552, 88 S.Ct. at 2163-2164, (White, J., concurring).4
Two landmark decisions recognized that alcoholism is a disease and that alcoholics cannot be criminally prosecuted. In Driver v. Hinnant, supra, Driver, an alcoholic, brought a habeas corpus proceeding protesting his criminal conviction and sentence under the North Carolina public drunkenness statute. The Fourth Circuit held that the Eighth Amendment prohibited punishment of alcoholics:
Although his misdoing objectively comprises the physical elements of a crime, nevertheless no crime has been perpetrated because the conduct was neither actuated by an evil intent nor accompanied with a consciousness of wrongdoing, indispensable ingredients of a crime.... The alcoholic’s presence in public is not his act, for he did not will it. It may be likened to the movements of an imbecile or a person in a delirium of a fever. None of them by attendance in the forbidden place defy the forbiddance.
[747]*747This conclusion does not contravene the familiar thesis that voluntary drunkenness is no excuse for crime. The chronic alcoholic has not drunk voluntarily, although undoubtedly he did so originally. His excess now derives from disease. However, our excusal of the chronic alcoholic from criminal prosecution is confined exclusively to those acts on his part which are compulsive as symptomatic of the disease. With respect to other behavior — not characteristic of confirmed chronic alcoholism — he would be judged as would any person not so afflicted. 356 F.2d, at 764.
Driver was followed by Easter v. District of Columbia, supra. The court relied on a recently enacted law that provided for rehabilitation and treatment of alcoholics, holding that alcoholism was a defense to a public intoxication charge. The District of Columbia Circuit Court recognized that:
An essential element of criminal responsibility is the ability to avoid the conduct specified in the definition of the crime. Action within the definition is not enough. To be guilty of the crime a person must engage responsibly in the action. Thus, an insane person who does the act is not guilty of the crime. The law, in such a case based on morals, absolves him of criminal responsibility. So, too, in case of an infant. In case of a chronic alcoholic Congress has dealt with his condition so that in this jurisdiction he too cannot be held to be guilty of the crime of being intoxicated because, as the Act recognizes, he has lost the power of self-control in the use of intoxicating beverages. In his case an essential element of criminality, where personal conduct is involved, is lacking. This element is referred to in the law as the criminal mind. 361 F.2d, at 52.
These pre-Powell cases prophesied a better approach to problems of alcoholism; but Powell failed to help. Since Powell, no state court has held that alcoholics could not be punished criminally for public intoxication, except Minnesota. Minn.Stat. § 340.96 provided that “every person who becomes intoxicated by voluntarily drinking intoxicating liquors is guilty of the crime of drunkenness.”5 (Emphasis added.) In State v. Fearon, supra, that court determined “voluntarily drinking” applied only to those who consumed liquor by choice, not to alcoholics:
However, on the evidence presented in this case, defendant was no more able to make a free choice as to when or how much he would drink than a person would be who is forced to drink under threat of physical violence. To ignore such evidence or distort the meaning of words used by the legislature in order to avoid application of advances in man’s knowledge of himself and his environment to existing laws would, we think, be a disservice to the law. 283 Minn., at 96, 166 N.W.2d, at 724.
Although statutes and ordinances involved here do not use the word “voluntary”, we agree with the reasoning of the Minnesota court.
Other courts, however, have held that alcoholism is not a defense to public drunkenness charges. They have emphasized one or more of these notions: drinking is a voluntary action; if alcoholism is allowed to be a defense to public intoxication charges it might become a defense to other crimes, State v. Brant, 162 W.Va. 762, 252 S.E.2d 901 (1979); fear that an alcoholism defense will be expanded to other crimes; jail benefits drunks; and there is a distinction between the status of being an alcoholic and the act of appearing drunk in public. See Comment, Public Drunkenness Statutes: An Insanity Defense, 19 St. Louis U.L.J. 530 (1975). We believe that none of these reasons justifies incarceration of alcoholics.
In Seattle v. Hill, 72 Wash.2d 786, 435 P.2d 692 (1967), the Washington Supreme Court found that although Hill was diagnosed to be an alcoholic he did not seem physically deteriorated, and therefore, jail-ings must have been keeping him healthy.
If uninterrupted drunkenness is a direct cause of death, then undeniably fre[748]*748quent periods of confinement in a clean city jail with nourishing food during 20 years of chronic addictive alcoholism, were of beneficial therapeutic effect. Defendant’s medicad history contributes to the idea that laws against public drunkenness are designed to protect not only society but the offender too. Although we would not recommend jail confinement as a suitable substitute for medical, psychiatric and social therapy in the treatment of alcoholism, we observe that, in the absence of any other available alternatives, the afflicted person derives considerable benefit and protection from it. So did Mr. Hill.
Undoubtedly a beneficial therapy must have intervened to keep the defendant in so good a physical condition that, after 20 years of chronic addictive alcoholism, his doctor could find no physical symptoms of the sickness and had to rely exclusively on a case history to confirm the diagnosis of chronic addictive alcoholism. It thus seems reasonable to conclude that Mr. Hill’s frequent periods of confinement in jail, following his bouts of drunkenness, were to a large degree responsible for his continuing physical health. 72 Wash.2d, at 790-1, 435 P.2d, at 696.
See also Burger v. State, 118 Ga.App.2d 328, 163 S.E.2d 333 (1968); People v. Hoy, 380 Mich. 597, 158 N.W.2d 436 (1968).
The Alaska Supreme Court feared that should alcoholism be a defense to public drunkenness charges, there would be a flood of new defenses to other crimes:
The inevitable result of such a holding is that the chronic alcoholic would also have to be relieved of the legal consequences of other crimes committed while under the influence of alcohol .... Thus, the person who becomes intoxicated involuntarily would have to be excused from acts performed while intoxicated, such as murder, rape, assault and battery, and others. Vick v. State, 453 P.2d 342, 344 (Alaska 1969).
The Vick court incorrectly analyzed the Driver/Easter rule. Alcoholism is only a defense to those acts which are compulsive and symptomatic of the disease. Driver, supra 356 F.2d, at 764. The same circuit that decided Easter, later held in Salzman v. United States, 405 F.2d 358 (D.C.Cir.1968), that alcoholism is not a defense to a robbery charge.
Some courts also seem to believe that alcoholics can control their drinking and their appearances in public, contradicting all recognized medical evidence about alcoholics’ overwhelming compulsion to drink. See Seattle v. Hill, supra; Budd v. Madigan, 418 F.2d 1032 (9th Cir.1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1394, 25 L.Ed.2d 669 (1970); Portland v. Juntunen, 6 Or.App. 632, 488 P.2d 806 (1971). Despite Justice Douglas’ warning that “those living in a world of black and white put the addict in the category of those who could, if they would, forsake their evil ways,” Robinson, supra 370 U.S. at 669-670, 82 S.Ct. at 1421-1422 (Douglas, J., concurring), courts continue to believe that alcoholics could simply stop drinking.
Other courts rely on a distinction in Powell between the status offense of being an alcoholic and the act of appearing in public while drunk. The Ninth Circuit wrote:
He is not, however, being punished for being a chronic alcoholic; nor is he being punished for drinking. He is being punished for the performance of an act forbidden to one while in a state of extreme intoxication; that of appearing in a public place. Budd v. Madigan, 418 F.2d, at 1034.
See also Seattle v. Hill, supra; In Re Spinks, 253 Cal.App.2d 748, 61 Cal.Rptr. 743 (1967).
We disagree with these analyses. Relying on the protections mandated by the West Virginia Constitution, we hold that no chronic alcoholic can be criminally prosecuted for public drunkenness.
Most states have adopted the Uniform Alcoholism and Intoxication Treatment Act that deals with alcoholism as a disease.6 [749]*749Others stopped short of decriminalization, and instead developed diversionary systems for both alcoholics7 and public drunks.8 In each of these states, when the courts failed to act, the uniform act, or a variant thereof, was soon adopted. We urge our Legislature to enact a comprehensive plan for dealing with alcoholics in a humane and beneficial manner.9
Criminal punishment of chronic alcoholics violates constitutional prohibitions against cruel and unusual punishment. W.Va. Const, art. Ill, § 5. However, their public presence is a potential threat to their own and others’ well-being, is often offensive, even obnoxious to other people, and the State has a legitimate right to get them off the streets or out of whatever public area in which they may be gamboling.10
ii.
Harper contends that incarceration in a “drunk tank” is cruel and unusual punishment. He was imprisoned in the South Charleston City Jail, and testified that only two meals were served each day, and neither bedding nor personal hygiene items such as soap and toothbrush were provided.11 He submitted a deposition by Robert Allen, a former sanitarian for the Department of Health and currently employed by the Kanawha-Charleston Health Department and consultant to the State Facility Review Panel (generally called the Juvenile Justice Committee, W.Va.Code, 49-5-16b). Allen has inspected, evaluated and ranked sanitary conditions in various county jails. His deposition revealed jail-by-jail descriptions of “drunk tanks” that defy imagination.12
[750]*750No one expects jails to be luxury hotels, or as editorialists delight in declaiming, country clubs. But we cannot permit human beings to be penned en masse with dangerous, oftentimes murderous, companions 13 in filthy cages without flushing commodes, with no place to sleep but concrete floors spewn with human excrement, vomit and rodents or insects. Jail conditions are often evaluated by the cumulative effect of intolerable conditions, and using a “totality of the circumstances” test, we notice that many jails in this State are unfit for humans. Accord, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Fielder v. Bosshard, 590 F.2d 105 (5th Cir.1979); Kirby v. Blackledge, 530 F.2d 583 (4th Cir.1976); Black v. Brown, 513 F.2d 652 (7th Cir.1975); Poindexter v. Woodson, 510 F.2d 464 (10th Cir.1975), cert. denied, 423 U.S. 846, 96 S.Ct. 85, 46 L.Ed.2d 68; McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975), on remand, 399 F.Supp. 271, cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86; Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324; LaReau v. MacDougall, 473 F.2d 974 (2d Cir.1972), cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973); Burks v. Walsh, 461 F.Supp. 454 (W.D.Mo.1978); Johnson v. Levine, 450 F.Supp. 648 (D.Md. 1978), modified and affd., 588 F.2d 1378 (4th Cir.); Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa.1978); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), aff'd., 616 F.2d 598 (1st Cir.1980), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45; Laaman v. Helgemoe, 437 F.Supp. 269 (D.N.H.1977); Walnorch v. McMonagle, 412 F.Supp. 270 (E.D.Pa.1976); Miller v. Carson, 401 F.Supp. 835 (M.D. Fla.1975), aff'd., 563 F.2d 741 (5th Cir. 1977); Derrickson v. Keve, 390 F.Supp. 905 (D.Del.1975); U.S. ex rel. Ingram v. Montgomery County Prison Board, 369 F.Supp. 873 (E.D.Pa.1974); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff'd., 501 F.2d 1291 (5th Cir.1974); Hendrick v. Jackson, 10 Pa.Cmwlth. 392, 309 A.2d 187 (1973), modified on other grounds, 321 A.2d 603 (1974). But see Crowe v. Leeke, 540 F.2d 740 (4th Cir. 1976).
Incarceration in some of the county and city jails in West Virginia' does constitute cruel and unusual punishment, and they should be cleaned up or else be closed.
Resources are available under existing programs to establish clean and sanitary centers for publicly inebriated people. W.Va.Code, 60-3-9c (1969), directs increases in prices of alcoholic liquors to provide for care, treatment and rehabilitation of alcoholics:
For the purpose of providing revenue for care, treatment and rehabilitation of alcoholics, the commissioner in the exercise of his authority under section nine [§ 60-3-9] of this article is hereby directed to increase the price of alcoholic liquors in addition to the price increases provided in sections nine, nine-a and nine-b [§§ 60-3-9, 60-3-9a, 60-3-9b] hereof on or before the last day of March, one thousand nine hundred sixty-nine, in an amount sufficient to produce an additional annual revenue of one million dollars on an annual volume of business equal to the average for the last three years. Such revenue shall be deposited in the state fund general revenue as provided in section seventeen [§ 60-3-17] of this article.
(This section also reveals our Legislature’s recognition that alcoholism is a disease.)
[751]*751In addition, monies saved by reducing the number of people processed and incarcerated in local jails could be directed toward alcoholics’ rehabilitation.14 Formula grant money, money derived from alcoholic beverage taxes and, if the Legislature sees fit to adopt the uniform act,15 money from the federal government for decriminalization should be sufficient to create well-staffed detoxification and residential treatment centers across the State.16
We grant Harper’s habeas corpus writ and conclude that jailing of alcoholics for public intoxication is unconstitutional. The State is obliged to develop alternative methods for dealing with public drunkenness and alcoholics.
We will defer further action in regard to incarceration of alcoholics until July 1,1988 to allow for the development of procedures and facilities to comply with this opinion.
Writ granted.