Rethinking Robinson v. California in the wake of Jones v. Los Angeles: avoiding the "demise of the criminal law" by attending to "punishment".

AuthorGardner, Martin R.
  1. 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.

  2. 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)

    1. 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...

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