Editor’s Note: This post is brought to you by Dr. David Herzberg, as associate professor of history at SUNY Buffalo and the author of Happy Pills in America (2010) and his forthcoming project The Other Drug War: A History of Prescription Drug Abuse. Enjoy!
Most American drug policy historians are familiar with the 1962 Supreme Court decision Robinson v. California, which held that addiction was an illness and not a crime. The case involved a California man sentenced to jail not for buying, possessing, or using narcotics, but for the condition of being a narcotic addict. In striking down the law, the Court declared that addiction was an illness, and that—in Justice Potter Stewart’s memorable words—“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” (Stewart would probably be glad to know that at least one group of people, however small, remembers him for this quotation rather than his “I-know- it-when- I-see- it” definition of “hard-core pornography,” which he later feared would adorn his tombstone.) For historians the decision serves as a convenient marker of the broader shift away from the punitive policies of the “classic era” of narcotics control and towards more medicalized approaches to addiction.
Of late, drug policy historians have been placing this shift under increasing scrutiny. Complementing the vast and growing literature on medicine as a form of social control, historians like Eric Schneider and Points’ own Claire Clark have begun to focus more on how medical approaches harmonized with, rather than diverged from, punitive ones. Methadone maintenance, for example, was implemented primarily as a crime control measure and was evaluated on that basis, and thus ultimately complemented rather than upended prison-based approaches. Meanwhile, therapeutic communities’ tough-love philosophies could lead to “scared straight” type tactics that, in many cases, were much harsher and farther-reaching than simple imprisonment. Historians’ increased focus on the disciplinary dimensions of medical treatment may be due, in part, to the increasing visibility and intellectual availability of “harm reduction,” which also draws parallels between medical and criminal control of drug use.
I happened to be re-reading Robinson recently, and I was struck by how different the decision read in light of these recent reconsiderations of the medical turn. Justice Stewart’s humane intentions and his defense of the mentally ill, lepers and sufferers of “venereal disease” are still clear, but so to now is his willingness—even eagerness—to control addicts. While he opposed prison, for example, Stewart was perfectly comfortable with “a program of compulsory treatment for those addicted to narcotics,” and (citing the vaccination case Jacobson v. Massachusetts), he also supported laws imposing “involuntary confinement” or other penal sanctions “for failure to comply with established compulsory treatment procedures.” In fact, he noted, California had such a compulsory treatment program, and he questioned why those “civil procedures… were not utilized in the present case.”
Justice Douglas’s concurrence offered similar reasoning. Like Stewart, he drew parallels to insanity, arguing that addicts, like the insane, should no longer be penalized for their illness: “This age of enlightenment,” he wrote, “cannot tolerate such barbarous action.” Yet he too agreed that addicts “may, of course, be confined for treatment or for the protection of society,” and he questioned whether criminal prosecution was necessary when “civil commitment would do [just as] well.”
In other words, both Stewart and Douglas saw no problem with locking up addicts, as long as it was done for the purposes of treatment rather than punishment. This was no small concession, especially considering that they were writing after a decade of very high-profile exposés of horrifying conditions in the nation’s psychiatric hospitals. Of course, there are very real, and very significant, differences between a criminal conviction and compulsory medical treatment. But there can also be very real, and very significant, similarities, even on those measures the justices found most important: social stigma; loss of freedom; and, at least potentially, cruel and unusual punishment. From a half century’s distance, the justices’ unquestioned faith in the therapeutic enterprise stands out just as much, if not even more, than their humane sympathy for addicts.
Indeed, in my current re-reading, it was Robinson’s dissenters who presented the most compelling and prescient arguments—if only in the spirit of Justice Antonin Scalia’s furious dissent in U.S. v. Windsor (2013), which was later cited in support of legal decisions legalizing gay marriage.
Justice Tom Clark, for example, argued that jail could be considered part of a therapeutic regimen under the definitions of treatment accepted by California and his colleagues. He made this claim un-ironically to support an illiberal position, but his reasoning would be familiar to medicalization’s modern-day critics. As Clark explained, California’s “comprehensive and enlightened program” was not punitive but pursued an “overriding policy of prevention and cure.” It did so by breaking addiction down into what Clark called “realistic stages.” First came an “incipient” or “volitional” stage, wherein the drug user still had freedom of choice but was technically “addicted” according to the law (i.e., “strongly disposed to some taste or practice or habituated,” with using drugs “often or daily” being “to use them habitually”). Only at a second stage of addiction, according to California law, did the drug user “los[e] the power of self-control.” As Clark saw it, California had merely determined that these different stages of addiction called for different forms of “involuntary confinement”: jail to dissuade those who could still make a choice, treatment for those more deeply addicted. “The majority’s error,” he reasoned, “is in instructing [California] 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.” Ultimately, Clark argued, the “overriding purpose” of jail was therapeutic: “to cure the less seriously addicted person by preventing further use”; the goal of “both the ‘criminal’ and ‘civil’ provisions [are] inherently one of treatment.”
Clark was similarly skeptical of the Court’s claim that a criminal conviction was more stigmatizing than a medical hospitalization. “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.” The label of “criminal,” in other words, was not inherently more stigmatizing than the label of “addict.” Evidence for this Clark found in the fact that treatment programs for addicts were no less carceral than jail: even if experts determined that hospital treatment would not help a confirmed addict, that addict would still be “confined” to the hospital for a period of three months “in the same manner as is the volitional addict under the ‘criminal’ provision.”
Clark, of course, deployed all this logic in support of California’s policy of jailing narcotics users. But it would be only a short jump to use the same reasoning to reach an opposite conclusion: that hospitalization was being dragooned into the carceral project of punishing drug users—that medicine was being used as a noble-sounding mechanism to subvert citizenship rights. Notably, this would be a far stronger basis for defending the civil rights of drug users, and of providing them non-punitive medical treatment when necessary, than the majority’s expansive willingness to delegate police powers to medical authorities.
In warning about the implications of Robinson, Clark and fellow (separate) dissenter Byron White also unintentionally provided an even clearer road map for opponents of drug-war laws more generally. Clark noted that California’s basis for jailing “incipient, volitional” addicts was that they posed a “grave threat of future harmful conduct.” This was the same reasoning, he pointed out, by which the state criminalized the purchase, possession, or use of narcotics, even though none of those acts “are harmful to society in themselves.” In other words, if it was unconstitutional to criminalize the state of addiction, then how could it be acceptable to outlaw narcotics themselves? In his separate dissent—his first published Supreme Court opinion—White offered similar logic:
If it is ‘cruel and unusual punishment’ to convict the appellant for addiction, it is difficult to understand why it would be any less offensive to the Fourteenth Amendment to convict him for use [of narcotics]. 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… The Court has not merely tidied up California’s law by removing some irritating vestige of an outmoded approach to the control of narcotics… it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment.
As the dissenters saw it, Stewart and the Court’s liberal majority wanted to have it both ways: they wanted to stand nobly against the punitive regime, while continuing to enable the state to exert tight control over drug users under the aegis of therapy. Clark and White were skeptical of the fine distinctions being drawn between the different types of state control, and warned that disallowing the one would inevitably lead to disallowing the other.
No later court picked up on the dissenters’ reasoning to invalidate the criminalization of narcotics, and, as journalist Maia Szalavitz among others have noted, shockingly harsh treatments for addiction continued, and continue, to flourish. But today’s drug policy reformers might find their surprising honesty an unlikely (if unwilling) resource in the quest to decouple addiction treatment from punishment and lash it instead to the mission of reducing drug harm.