People v. Davis

• Decision Date: 28 December 1973
• Citation: 351 N.Y.S.2d 663,33 N.Y.2d 221,306 N.E.2d 787
• Parties: , 306 N.E.2d 787 The PEOPLE of the State of New York, Respondent, v. Wilbert DAVIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 663

351 N.Y.S.2d 663

33 N.Y.2d 221, 306 N.E.2d 787

The PEOPLE of the State of New York, Respondent, v. Wilbert DAVIS, Appellant.

Court of Appeals of New York.

Dec. 28, 1973.

Certiorari Denied April 29, 1974. See 94 S.Ct. 1999.

Donald H. Zuckerman, William E. Hellerstein, Malvine Nathanson, New York City, and Samuel H. Dawson, Brooklyn, for appellant.

Eugene Gold, Dist. Atty. (Harry Brodbar, Brooklyn, of counsel), for respondent.

JASEN, Judge.

Wilbert Davis, a heroin addict, has been convicted of criminal possession of a dangerous drug in the sixth degree and criminal possession of a hypodermic instrument and sentenced to a conditional discharge. On this appeal from affirmance of his conviction by the Appellate Term the sole question is whether, consistent with Federal and State constitutional proscriptions against cruel and unusual punishment, criminal penalties may be imposed on a narcotic addict who possesses narcotics and associated instruments for his own use.

The facts are undisputed. On February 4, 1971, the landlord of the premises at 34 Fort Green Place, Brooklyn, approached a uniformed patrolman on duty in the area. He led the officer to that address, a three-story 'walk-up', and permitted him to enter. The officer ascended one flight of stairs and observed the defendant standing in a bathroom, about to inject himself with a syringe later determined to contain heroin. When approached by the officer, the defendant pleaded with him to be allowed to take the injection. In effecting the arrest, the officer observed fresh needle marks on defendant's right arm. Defendant admitted that he had been using heroin for about a year and one-half.

At trial, the defendant offered evidence designed to show the nature of narcotic addiction and that he was, in fact, a narcotic addict. The defendant conceded his addiction to heroin and this concession was amply supported by medical testimony not disputed by the People.

The argument for reversal is predicated on Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 and Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254. In Robinson, the petitioner was convicted under a California statute making it a criminal offense for a person to be addicted to narcotics. The Trial Judge instructed the jury that it was a misdemeanor under the statute "either to use narcotics, or to be addicted to the use of narcotics", that the "portion of the statute referring to 'addicted to the use' of narcotics is based upon a condition or status", and that "(i)t is a continuing offense" which "subjects the offender to arrest at any time before he reforms." (370 U.S., at pp. 662--663, 82 S.Ct., at p. 1418.)

The Supreme Court reversed. Implicitly recognizing that narcotic addiction is a disease, the court held that a State law making the 'status' of narcotic addiction a criminal offense inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. By way of rationale, the court emphasized the absence of an Actus reus, that under the statute the criminal sanction was imposed even though a person has 'never touched any narcotic drug within the State or been guilty of any irregular behavior there' (370 U.S., at p. 667, 82 S.Ct., at p. 1420). The court was careful to point out, however, that the States retained broad power to regulate narcotic drugs traffic within their borders. Such regulation, it said, could take a variety of valid forms, citing, by way of example, the power to impose criminal sanctions against the unauthorized sale, manufacture purchase or possession of narcotics. (370 U.S., at p. 664, 82 S.Ct. 1417.)

In dissent, Justice White voted to affirm the conviction, being of the view that the appellant was not being punished on the basis of status, illness or condition, but for the regular and habitual use of narcotics in violation of California law. In dicta, particularly pertinent here, he observed: '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 the Fourteenth Amendment 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.' (370 U.S., at p. 688, 82 S.Ct., at p. 1431.)

In Powell v. Texas, Supra, the Supreme Court faced the task of clarifying the rationale of its Robinson decision. But as the opinions filed therein indicate, the court was divided as to the rationale of Robinson. In Powell, the court was asked to extend Robinson by prohibiting a State from punishing a chronic alcoholic for public drunkenness. Leroy Powell was convicted of violating a Texas statute declaring it unlawful to "get drunk or be found in a state of intoxication in any public place". (392 U.S., at p. 517, 88 S.Ct., at p. 2146.) The Trial Judge, sitting without a jury, made certain "findings of fact": that "chronic alcoholism is a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol"; that "a chronic alcoholic does not appear in public of his own volition but under a compulsion symptomatic" of his disease; and that Powell was afflicted with disease as described. (392 U.S., at p. 521, 88 S.Ct., at p. 2148.)

The Supreme Court affirmed. The plurality opinion per Justice Marshall, rejecting the trial court's findings of fact, observed that one could not 'conclude, 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 irresistable compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both these acts and thus cannot be deterred at all from public intoxication.' (392 U.S., at p. 535, 88 S.Ct., at p. 2155.) Robinson was distinguished on the ground that Powell was not convicted for being a chronic alcoholic, but for being in public while drunk. Unlike Robinson, the sanctions of the Texas statute were not directed at 'mere status', but at socially offensive behavior--appearing in public drunk.

In a dissent joined by three Justices, Justice Fortas adopted the trial court's findings and viewed the Texas statute as imposing punishment for the 'mere Condition of being intoxicated in public' (emphasis in original) and read Robinson as barring the imposition of criminal sanctions 'upon a person for being in a condition he is powerless to change.' (392 U .S., at pp. 559, 567, 88 S.Ct., at pp. 2167, 2171.) As a corollary, Justice Fortas declared that 'a person may not (consistent with the Eighth Amendment) be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease.' (392 U.S., at p. 569, 88 S.Ct., at p. 2172.) Justice White, although concurring for affirmance on the narrow ground that Powell had failed to prove that he was compelled by his disease to be drunk in public, apparently agreed with much of Justice Fortas' analysis of the criminal responsibility issue. He observed: 'If it cannot be a crime to have an irresistible compulsion to use narcotics, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, rehearing denied, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962), 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 urge to consume alcohol should not be punishable for drinking or for being drunk.' (392 U.S., at pp. 548--549, 88 S.Ct., at p. 2162.)

The principle underlying the prohibition of 'cruel and unusual punishment' may be traced to the Magna Carta. The phrase itself, however, first appeared in the Engligh Bill of Rights of 1688. In 1776 it was incorporated into the Virginia Declaration of Rights and James Madison included it in the constitutional amendments that he drafted in 1789. It was approved by Congress with little debate and in 1791 was incorporated into the Constitution as part of the Eighth Amendment. (Note, The Effectiveness of the Eighth Amendment: An Appraisal of Cruel and Unusual Punishment, 36 N.Y.U.L.Rev. 846; Note, The Constitutional Prohibition Against Cruel and Unusual Punishment--Its Present Significance, 4 Vand.L.Rev. 680.) Since adoption of the Federal Constitution, similar proscriptions have been written into virtually every State Constitution, our own in 1846. (N.Y.Const. of 1846, art. I, § 5; see People ex rel. Kemmler v. Durston, 119 N.Y. 569, 576, 24 N.E. 6, 7.)

Doubtless enacted to preclude the barbarities that had marred the administration of the English criminal law--burnings, brandings, quarterings, disembowelings and the like--the amendment has come to mean much more. Prohibited are not only inhuman methods of punishment, but punishment disproportionate to the offense (Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (opn. of the Chief Justice)) and, in light of Robinson, punishment of 'status' or 'a condition' such as narcotics addiction. Although numerous older cases had held that the Eighth Amendment itself did not limit State power (e.g., Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582; In re Kemmler, 136 U.S. 436, 10...