Farris, A.C.J.

Claude Gilbert Utter was. charged by an information filed January 16,1969, with the crime of murder in the second degree. He was convicted by a jury of the crime of manslaughter. He appeals from that conviction.

Appellant and the decedent, his son, were living together at the tune of the latter’s death. The son was seen to enter his father’s apartment and shortly after was heard to say, “Dad, don’t.” Shortly thereafter he was seen stumbling in the hallway of the apartment building where he collapsed, having been stabbed in the chest. He stated, “Dad stabbed me” and died before he could be moved or questioned further.

Mr. Utter entered the armed services in December of 1942 and was honorably discharged in October of 1946. He was a combat infantryman. As a result of his service, he was awarded a 60 per cent disability pension.

Appellant testified that on the date of his son’s death he began drinking during the morning hours. He was at the liquor store at 9 a.m. and purchased a quart of Thunderbird wine and a quart of port wine and drank the bottle of port wine with the exception of two drinks. Mr. Utter went for more liquor around noon. At that time he purchased 2 quarts of whiskey and 4 quarts of wine. Upon his return from the liquor store, he and another resident of the apartment “sat around drinking whiskey out of water glasses.” *139Appellant remembers drinking with his friend and the next thing he remembers was being in jail subsequent to the death of his son. He has no recollection of any intervening events.

Appellant introduced evidence on “conditioned response” during the trial. Conditioned response was defined by Dr. Jarvis, a psychiatrist, as “an act or a pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.” Mr. Utter testified that as a result of his jungle warfare training and experiences in World War II, he had on two occasions in the 1950’s reacted violently towards people approaching him unexpectedly from the rear.

The trial court ruled that conditioned response was not a defense in Washington and instructed the jury to disregard all evidence introduced on this subject. Appellant contends that this evidence was not introduced as a defense. In this assertion, appellant is incorrect since if the evidence was received and believed by the jury, the result would be his exculpation. Therefore, it must be considered to be a defense to the crime.

The major issue presented on appeal is whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response. The trial court held that the defendant was attempting to present a defense of irresistible impulse — a theory of criminal insanity that has consistently been rejected in this state. In so holding, the trial court considered the defense to be one of mental incapacity. This was not so.

There are two components of every crime. One is objective — the actus reus; the other subjective — the mens rea. The actus reus is the culpable act itself, the mens rea is the criminal intent with which one performs the criminal act. However, the mens rea does not encompass the entire mental process of one accused of a crime. There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition. See Sim, The Involuntary Actus Reus, 25 Modern L. Rev. 741 (1962).

*140In the present case, the appellant was charged with second-degree murder and found guilty of manslaughter. The actus reus of both is the same — homicide. Thus, in order to establish either, the fact of homicide must first be established.

Appellant contends that his evidence was presented for the purpose of determining whether in fact a homicide had been committed. He argues that his evidence, if believed, establishes that no “act” was committed within the definition of homicide, RCW 9.48.010 (since amended by Laws of 1970, Ex. Ses., ch. 49, § 1, p. 333):

Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.

What is the meaning of the word “act” as used in this statute?

It is sometimes said that no crime has been committed unless the harmful result was brought about by a “voluntary act.” Analysis of such a statement will disclose, however, that as so used the phrase “voluntary act” means no more than the mere word “act.” An act must be a willed movement or the omission of a possible and legally-required performance. This is essential to the actus reus rather than to the mens rea. “A spasm is not an act.”

(Footnotes omitted.) R. Perkins, Criminal Law 660 (1957).

[A]n ‘act’ involves an exercise of the will. It signifies something done voluntarily. It necessarily implies intention. We find these statements abundantly sustained by the text-writers and decisions of our courts.

Heiman v. Pan American Life Ins. Co., 183 La. 1045, 1061, 165 So. 195 (1935). See also Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132 (1951); Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358 (1937); Duncan v. Landis, 106 F. 839 (3d Cir. 1901).

Thus, to invert the statement of Perkins, the word “act” technically means a “voluntary act.” See State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).

*141It is the appellant’s contention that any of the alleged “acts” he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system. Although the theory sought to be presented by the appellant is similar to one of mental incapacity, it is nevertheless distinct from that concept.

automatistic acts are concomitants of mental disturbance of some kind. The mental disturbance may or may not be sufficient to establish legal insanity. Indeed, it would generally appear to be true that where the defendant’s acts are automatistic in character he cannot be said to have capacity to know their nature, and where he lacks capacity to know the nature of his acts, those acts must be said to be automatistic. Yet the automatistic acts may not be the result of a mental disease [Mr. Utter claims here that they are the result of military training] and hence not sufficient to constitute legal insanity. In any event, it is important to emphasize that whether or not the mental disturbance associated with the acts of automatism is equivalent to legal insanity, it is universally recognized that evidence of this character goes toward the exculpation of the accused, rather than mitigation to a lesser offense. And the exculpation is not of the qualified character attached to a verdict of not guilty on grounds of insanity. It is complete.

M. Paulsen and S. Kadish, Criminal Law and Its Processes. 347 (1962).

Appellant contends that a person in an automatistic or unconscious state is incapable of committing a culpable act —in this case, a homicidal act.

The question is not one of mental incapacity. “Criminal responsibility must be judged at the level of the conscious.” State v. Sikora, 44 N.J. 453, 470, 210 A.2d 193 (1965).

There is authority to support the proposition of the appellant.

Where, at the time of the killing, the slayer was clearly unconscious thereof, such unconsciousness will constitute a defense, as in the case of a homicide committed by one in a state of somnambulism, or while delirious from disease.

*142(Footnotes omitted.) O. Warren and B. Bilas, 1 Warren on Homicide § 61 (perm. ed. 1938).

If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor.

The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.

(Footnotes omitted.) R. Anderson, 1 Wharton’s Criminal Law and Procedure § 50 (1957). A number of cases support these statements. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); People v. Wilson, 66 Cal. 2d 749, 427 P.2d 820, 59 Cal. Rptr. 156 (1967); People v. Anderson, 63 Cal. 2d 351, 406 P.2d 43, 46 Cal. Rptr. 763 (1965); Watkins v. Commonwealth, 378 S.W.2d 614 (Ky. 1964); Carter v. State, 376 P.2d 351 (Okla. Crim. 1962); People v. Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959); Corder v. Commonwealth, 278 S.W.2d 77 (Ky. 1955); People v. Baker, 42 Cal. 2d 550, 268 P.2d 705 (1954); Smith v. Commonwealth, 268 S.W.2d 937 (Ky. 1954); Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879). See also, 22 C.J.S. Criminal Law § 55 (1961); 21 Am. Jur. 2d Criminal Law § 29 (1965).

In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910) the Washington Supreme Court considered the constitutionality of a statute which withdrew the defense of insanity from those defenses that could be raised in this state. In holding the statute unconstitutional, the court made an extensive review of basic tenets of criminal law and noted in part as follows:

“All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable.

*143“Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.”

State v. Strasburg, supra at 113.

An “act” committed while one is unconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be no criminal liability. However, unconsciousness does not, in all cases, provide a defense to a crime. When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the stature of a complete defense. Thus, in a case such as the present one where there is evidence that the accused has consumed alcohol or drugs, the trial court should give a cautionary instruction with respect to voluntarily induced unconsciousness.

The issue of whether or not the appellant was in an unconscious or automatistic state at the time he allegedly committed the criminal acts charged is a question of fact. Appellant’s theory of the case should have been presented to the jury if there was substantial evidence in the record to support it.

It is the function and province of the jury to weigh evidence and determine credibility of witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 453 P.2d 654 (1969). However, a court should not submit to the jury an issue of fact unless there is substantial evidence in the record to support it. State v. Brooks, 73 Wn.2d 653, 440 P.2d 199 (1968); State v. Collins, 66 Wn.2d 71, 400 P.2d 793 (1965).

We find that the evidence presented was insufficient to present the issue of defendant’s unconscious or automatistic state at the time of the act to the jury. There is no evidence, circumstantial or otherwise from which the jury could determine or reasonably infer what happened in the room at the time of the stabbing; the jury could only speculate on the existence of the triggering stimulus.

*144Appellant contends that- it was error for the trial court to instruct the jury on manslaughter. This assignment of error is founded upon the allegation that the record contains no evidence to support such an instruction.

Manslaughter includes all homicides not falling within the definitions of murder in the first or second degree, or excusable or justifiable homicide. State v. Hedges, 8 Wn.2d 652, 113 P.2d 530 (1941). The trial court ruled that the homicide was neither justifiable nor excusable. Evidence was introduced regarding appellant’s drinking habits, the amount he drank that day, and the fact that he was an alcoholic. Evidence of voluntary intoxication can be presented as a defense to a crime where intent is an element. RCW 9.01.114; State v. Byers, 136 Wash. 620, 241 P. 9 (1925). Furthermore, criminal intent is not an element of manslaughter. State v. Brubaker, 62 Wn.2d 964, 385 P.2d 318 (1963); State v. Hopkins, 147 Wash. 198, 265 P. 481, 59 A.L.R. 688 (1928). The evidence regarding appellant’s drinking was sufficient to negative the criminal intent required for a conviction of second-degree murder and necessitated the giving of the manslaughter instruction. It was therefore proper for the trial court to so instruct the jury.

The trial court gave instruction 9:

The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts.

Appellant contends that this was a comment upon the evidence and denied him his right to a trial by jury. We do not agree. “Voluntary” is included in the definition of the word “act.”1 The insertion of the word “voluntary” might improve the instruction but it is not constitutionally required. Under our determination of the issues it was not error to submit the instruction.2

Affirmed.

James and Swanson, JJ., concur.

Mr. Justice Stewart

delivered the opinion of the Court.

A California statute makes it a criminal offense for a person to “be addicted to the use of narcotics.” 1 This *661appeal draws into question the constitutionality of that provision of the state law, as construed by the California courts in the present case.

The appellant was convicted after a jury trial in the Municipal Court of Los Angeles. The evidence against him was given by two Los Angeles police officers. Officer Brown testified that he had had occasion to examine the appellant’s arms one evening on a street in Los Angeles some four months before the trial.2 The officer testified that at that time he had observed “scar tissue and discoloration on the inside” of the appellant’s right arm, and “what appeared to be numerous needle marks and a scab which was approximately three inches below the crook of the elbow” on the appellant’s left arm. The officer also testified that the appellant under questioning had admitted to the occasional use of narcotics.

Officer Lindquist testified that he had examined the appellant the following morning in the Central Jail in Los Angeles. The officer stated that at that time he had observed discolorations and scabs on the appellant’s arms, *662and he identified photographs which had been taken of the appellant’s arms shortly after his arrest the night before. Based upon more than ten years of experience as a member of the Narcotic Division of the Los Angeles Police Department, the witness gave his opinion that “these marks and the discoloration were the result of the injection of hypodermic needles into the tissue into the vein that was not sterile.” He stated that the scabs were several days old at the time of his examination, and that the appellant was neither under the influence of narcotics nor suffering withdrawal symptoms at the time he saw him. This witness also testified that the appellant had admitted using narcotics in the past.

The appellant testified in his own behalf, denying the alleged conversations with the police officers and denying that he had ever used narcotics or been addicted to their use. He explained the marks on his arms as resulting from an allergic condition contracted during his military service. His testimony was corroborated by two witnesses.

The trial judge instructed the jury that the statute made it a misdemeanor for a person “either to use narcotics, or to be addicted to the use of narcotics ... .3 That portion of the statute referring to the ‘use’ of narcotics is based upon the ‘act’ of using. That portion of the statute referring to ‘addicted to the use’ of narcotics is based upon a condition or status. They are not identical. ... To be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that [it] is *663chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. The existence of such a chronic condition may be ascertained from a single examination, if the characteristic reactions of that condition be found present.”

The judge further instructed the jury that the appellant could be convicted under a general verdict if the jury agreed either that he was of the “status” or had committed the “act” denounced by the statute.4 “All that the People must show is either that the defendant did use a narcotic in Los Angeles County, or that while in the City of Los Angeles he was addicted to the use of narcotics . ...”5

Under these instructions the jury returned a verdict finding the appellant “guilty of the offense charged.” *664An appeal was taken to the Appellate Department of the Los Angeles County Superior Court, “the highest court of a State in which a decision could be had” in this case. 28 U. S. C. § 1257. See Smith v. California, 361 U. S. 147, 149; Edwards v. California, 314 U. S. 160, 171. Although expressing some doubt as to the constitutionality of “the crime of being a narcotic addict,” the reviewing court in an unreported opinion affirmed the judgment of conviction, citing two of its own previous unreported decisions which had upheld the constitutionality of the statute.6 We noted probable jurisdiction of this appeal, 368 U. S. 918, because it squarely presents the issue whether the statute as construed by the California courts in this case is repugnant to the Fourteenth Amendment of the Constitution.

The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in Whipple v. Martinson, 256 U. S. 41, this Court explicitly recognized the validity of that power: “There can be no question of the authority of the State in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs .... The right to exercise this power is so manifest in the interest of the public health and welfare, that it is Unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.” 256 U. S., at 45.

Such regulation, it can be assumed, could take a variety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders. In the interest of discouraging the viola*665tion of such laws, or in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics.7 Such a program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to comply with established compulsory treatment procedures. Cf. Jacobson v. Massachusetts, 197 U. S. 11. Or a State might choose to attack the evils of narcotics traffic on broader fronts also — through public health education, for example, or by efforts to ameliorate the economic and social conditions under which those evils might be thought to flourish. In short, the range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any particular choice within the allowable spectrum is not for us to decide. Upon that premise we.turn to the California law in issue here.

It would be possible to construe the statute under which the appellant was convicted as one which is operative only upon proof of the actual use of narcotics within the State’s jurisdiction. But the California courts have not so construed this law. Although there was evidence in the present case that the appellant had used narcotics in Los Angeles, the jury were instructed that they could convict him even if they disbelieved that evidence. The appellant could be convicted, they were told, if they found simply that the appellant’s “status” or “chronic condition” was that of being “addicted to the use of narcotics.” And it is impossible to know from the jury’s verdict that the defendant was not convicted upon precisely such a finding.

*666The instructions of the trial court, implicitly approved on appeal, amounted to “a ruling on a question of state law that is as binding on us as though the precise words had been written” into the statute. Terminiello v. Chicago, 337 U. S. 1, 4. “We can only take the statute as the state courts read it.” Id., at 6. Indeed, in their brief in this Court counsel for the State have emphasized that it is “the proof of addiction by circumstantial evidence ... by the tell-tale track of needle marks and scabs over the veins of his arms, that remains the gist of the section.”

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. It is not a law which even purports to provide or require medical treatment. 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.” California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

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 Francis v. Resweher, 329 U. S. 459.

*667We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness.8 Indeed, it is apparently an illness which may be contracted innocently or involuntarily.9 We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. 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.

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 *668which 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.

Reversed.

Mr. Justice Frankfurter took no part in the consideration or decision of this case.

Mr. Justice Douglas,

concurring.

While I join the Court’s opinion, I wish to make more explicit the reasons why I think it is “cruel and unusual” punishment in the sense of the Eighth Amendment to treat as a criminal a person who is a drug addict.

In Sixteenth Century England one prescription for insanity was to beat the subject “until he had regained his reason.” Deutsch, The Mentally Ill in America (1937), p. 13. In America “the violently insane went to the whipping post and into prison dungeons or, as sometimes happened, were burned at the stake or hanged”; and “the pauper insane often roamed the countryside as wild men and from time to time were pilloried, whipped, and jailed.” Action for Mental Health (1961), p. 26.

As stated by Dr. Isaac Ray many years ago:

“Nothing can more strongly illustrate the popular ignorance respecting insanity than the proposition, equally objectionable in its humanity and its logic, that the insane should be punished for criminal acts, in order to deter other insane persons from doing the same thing.” Treatise on the Medical Jurisprudence of Insanity (6th ed. 1871), p. 66.

Today we have our differences over the legal definition of insanity. But however insanity is defined, it is in end effect treated as a disease. While afflicted people *669may be confined either for treatment or for the protection of society, they are not branded as criminals.

Yet terror and punishment linger on as means of dealing with some diseases. As recently stated:

“. . . the idea of basing treatment for disease on purgatorial acts and ordeals is an ancient one in medicine. It may trace back to the Old Testament belief that disease of any kind, whether mental or physical, represented punishment for sin; and thus relief could take the form of a final heroic act of atonement. This superstition appears to have given support to fallacious medical rationales for such procedures as purging, bleeding, induced vomiting, and blistering, as well as an entire chamber of horrors constituting the early treatment of mental illness. The latter included a wide assortment of shock techniques, such as the ‘water cures’ (dousing, ducking, and near-drowning), spinning in a chair, centrifugal swinging, and an early form of electric shock. All, it would appear, were planned as means of driving from the body some evil spirit or toxic vapor.” Action for Mental Health (1961), pp. 27-28.

That approach continues as respects drug addicts. Drug addiction is more prevalent in this country than in any other nation of the western world.1 S. Rep. No. 1440, 84th Cong., 2d Sess., p. 2. It is sometimes referred to as “a contagious disease.” Id., at p. 3. But those living in a world of black and white put the addict in the cate*670gory of those who could, if they would, forsake their evil ways.

The first step toward addiction may be as innocent as a boy’s puff on a cigarette in an alleyway. It may come from medical prescriptions. Addiction may even be present at birth. Earl Ubell recently wrote:

“In Bellevue Hospital’s nurseries, Dr. Saul Krug-man, head of pediatrics, has been discovering babies minutes old who are heroin addicts.

“More than 100 such infants have turned up in the last two years, and they show all the signs of drug withdrawal: irritability, jitters, loss of appetite, vomiting, diarrhea, sometimes convulsions and death.

“ 'Of course, they get the drug while in the womb from their mothers who are addicts,’ Dr. Krugman said yesterday when the situation came to light. ‘We control the symptoms with Thorazine, a tranquilizing drug.

“ ‘You should see some of these children. They have a high-pitched cry. They appear hungry but they won’t eat when offered food. They move around so much in the crib that their noses and toes become red and excoriated.’

“Dr. Lewis Thomas, professor of medicine at New York University-Bellevue, brought up the problem of the babies Monday night at a symposium on narcotics addiction sponsored by the New York County Medical Society. He saw in the way the babies respond to treatment a clue to the low rate of cure of addiction.

“ ‘Unlike the adult addict who gets over his symptoms of withdrawal in a matter of days, in most cases,’ Dr. Thomas explained later, ‘the infant has to be treated for weeks and months. The baby continues to show physical signs of the action of the drugs.

*671“ ‘Perhaps in adults the drugs continue to have physical effects for a much longer time after withdrawal than we have been accustomed to recognize. That would mean that these people have a physical need for the drug for a long period, and this may be the clue to recidivism much more than the social or psychological pressures we’ve been talking about.’ ” N. Y. Herald Tribune, Apr. 25, 1962, p. 25, cols. 3-4.

The addict is under compulsions not capable of management without outside help. As stated by the Council on Mental Health:

“Physical dependence is defined as the development of an altered physiological state which is brought about by the repeated administration of the drug and which necessitates continued administration of the drug to prevent the appearance of the characteristic illness which is termed an abstinence syndrome. When an addict says that he has a habit, he means that he is physically dependent on a drug. When he says that one drug is habit-forming and another is not, he means that the first drug is one on which physical dependence can be developed and that the second is a drug on which physical dependence cannot be developed. Physical dependence is a real physiological disturbance. It is associated with the development of hyperexcitability in reflexes mediated through multineurone arcs. It can be induced in animals, it has been shown to occur in the paralyzed hind limbs of addicted chronic spinal dogs, and also has been produced in dogs whose cerebral cortex has been removed.” Report on Narcotic Addiction, 165 A. M. A. J. 1707, 1713.

Some say the addict has a disease. See Hesse, Narcotics and Drug Addiction (1946), p. 40 et seq.

*672Others say addiction is not a disease but “a symptom of a mental or psychiatric disorder.” H. R. Rep. No. 2388, 84th Cong., 2d Sess., p. 8. And see Present Status of Narcotic Addiction, 138 A. M. A. J. 1019, 1026; Narcotic Addiction, Report to Attorney General Brown by Citizens Advisory Committee to the Attorney General on Crime Prevention (1954), p. 12; Finestone, Narcotics and Criminality, 22 Law & Con temp. Prob. 69, 83-85 (1957).

The extreme symptoms of addiction have been described as follows:

"To be a confirmed drug addict is to be one of the walking dead .... The teeth have rotted out; the appetite is lost and the stomach and intestines don’t function properly. The gall bladder becomes inflamed; eyes and skin turn a billious yellow. In some cases membranes of the nose turn a flaming red; the partition separating the nostrils is eaten away — breathing is difficult. Oxygen in the blood decreases; bronchitis and tuberculosis develop. Good traits of character disappear and bad ones emerge. Sex organs become affected. Veins collapse and livid purplish scars remain. Boils and abscesses plague the skin; gnawing pain racks the body. Nerves snap; vicious twitching develops. Imaginary and fantastic fears blight the mind and sometimes complete insanity results. Often times, too, death comes — much too early in life .... Such is the torment of being a drug addict; such is the plague of being one of the walking dead.” N. Y. L. J., June 8, 1960, p. 4, col. 2.

Some States punish addiction, though most do not. See S. Doc. No. 120, 84th Cong., 2d Sess., pp. 41, 42. Nor does the Uniform Narcotic Drug Act, first approved in 1932 and now in effect in most of the States. Great Britain, beginning in 1920 placed “addiction and the *673treatment of addicts squarely and exclusively into the hands of the medical profession.” Lindesmith, The British System of Narcotics Control, 22 Law & Contemp. Prob. 138 (1957). In England the doctor “has almost complete professional autonomy in reaching decisions about the treatment of addicts.” Schur, British Narcotics Policies, 51 J. Crim. L. & Criminology 619, 621 (1961). Under British law “addicts are patients, not criminals.” Ibid. Addicts have not disappeared in England but they have decreased in number (id., at 622) and there is now little “addict-crime” there. Id., at 623.

The fact that England treats the addict as a sick person, while a few of our States, including California, treat him as a criminal, does not, of course, establish the unconstitutionality of California’s penal law. But we do know that there is “a hard core” of “chronic and incurable drug addicts who, in reality, have lost their power of self-control.” S. Rep. No. 2033, 84th Cong., 2d Sess., p. 8. There has been a controversy over the type of treatment— whether enforced hospitalization or ambulatory care is better. H. R. Rep. No. 2388, 84th Cong., 2d Sess., pp. 66-68. But there is little disagreement with the statement of Charles Winick: “The hold of drugs on persons addicted to them is so great that it would be almost appropriate to reverse the old adage and say that opium derivatives represent the religion of the people who use them.” Narcotics Addiction and its Treatment, 22 Law & Contemp. Prob. 9 (1957). The abstinence symptoms and their treatment are well known. Id., at 10-11. Cure is difficult because of the complex of forces that make for addiction. Id., at 18-23. “After the withdrawal period, vocational activities, recreation, and some kind of psychotherapy have a major role in the treatment program, which ideally lasts from four to six months.” Id., at 23-24. Dr. Marie Nyswander tells us that normally a drug addict *674must be hospitalized in order to be cured. The Drug Addict as a Patient (1966), p. 138.

The impact that an addict has on a community causes alarm and often leads to punitive measures. Those measures are justified when they relate to acts of transgression. But I do not see how under our system being an addict can be punished as a crime. If addicts can be punished for their addiction, then the insane can also be punished for their insanity. Each has a disease and each must be treated as a sick person.2 As Charles Winick has said:

"There can be no single program for the elimination of an illness as complex as drug addiction, which *675carries so much emotional freight in the community. Cooperative interdisciplinary research and action, more local community participation, training the various healing professions in the techniques of dealing with addicts, regional treatment facilities, demonstration centers, and a thorough and vigorous post-treatment rehabilitation program would certainly appear to be among the minimum requirements for any attempt to come to terms with this problem. The addict should be viewed as a sick person, with a chronic disease which requires almost emergency action.” 22 Law & Contemp. Prob. 9, 33 (1957).

The Council on Mental Health reports that criminal sentences for addicts interferes “with the possible treatment and rehabilitation of addicts and therefore should be abolished.” 165 A. M. A. J. 1968, 1972.

The command of the Eighth Amendment, banning “cruel and unusual punishments,” stems from the Bill of Rights of 1688. See Francis v. Resweber, 329 U. S. 459, 463. And it is applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Ibid.

The historic punishments that were cruel and unusual included “burning at the stake, crucifixion, breaking on the wheel” (In re Kemmler, 136 U. S. 436, 446), quartering, the rack and thumbscrew (see Chambers v. Florida, 309 U. S. 227, 237), and in some circumstances even solitary confinement (see Medley, 134 U. S. 160, 167-168). *676The question presented in the earlier cases concerned the degree of severity with which a particular offense was punished or the element of cruelty present.3 A punishment out of all proportion to the offense may bring it within the ban against “cruel and unusual punishments.” See O’Neil v. Vermont, 144 U. S. 323, 331. So may the cruelty of the method of punishment, as, for example, disemboweling a person alive. See Wilkerson v. Utah, 99 U. S. 130, 135. But 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.

The Eighth Amendment expresses the revulsion of civilized man against barbarous acts — the “cry of horror” against man’s inhumanity to his fellow man. See O’Neil v. Vermont, supra, at 340 (dissenting opinion); Francis v. Resweber, supra, at 473 (dissenting opinion).

By the time of Coke, enlightenment was coming as respects the insane. Coke said that the execution of a madman “should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others.” 6 Coke’s Third Inst. (4th ed. 1797), p. 6. Blackstone endorsed this view of Coke. 4 Commentaries (Lewis ed. 1897), p. 25.

We should show the same discernment respecting drug addiction. The addict is a sick person. He may, of course, be confined for treatment or for the protection of society.4 Cruel and unusual punishment results not from confinement, but from convicting the addict of a crime. The purpose of § 11721 is not to cure, but to penalize. *677Were the purpose to cure, there would be no need for a mandatory jail term of not less than 90 days. Contrary to my Brother Clark, I think the means must stand constitutional scrutiny, as well as the end to be achieved. A prosecution for addiction, with its resulting stigma and irreparable damage to the good name of the accused, cannot be justified as a means of protecting society, where a civil commitment would do as well. Indeed, in § 5350 of the Welfare and Institutions Code, California has expressly provided for civil proceedings for the commitment of habitual addicts. Section 11721 is, in reality, a direct attempt to punish those the State cannot commit civilly.5 This prosecution has no relationship to the curing *678of an illness. Indeed, it cannot, for the prosecution is aimed at penalizing an illness, rather than at providing medical care for it. 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.

Mr. Justice Harlan,

concurring.

I am not prepared to hold that on the present state of medical knowledge it is completely irrational and hence unconstitutional for a State to conclude that narcotics addiction is something other than an illness nor that it amounts to cruel and unusual punishment for the State to subject narcotics addicts to its criminal law. Insofar as addiction may be identified with the use or possession of narcotics within the State (or, I would suppose, without the State), in violation of local statutes prohibiting such acts, it may surely be reached by the State’s criminal law. But in this case the trial court’s instructions permitted the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics.* Since addiction alone cannot *679reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.

If the California statute reaches this type of conduct, and for present purposes we must accept the trial court’s construction as binding, Terminiello v. Chicago, 337 U. S. 1, 4, it is an arbitrary imposition which exceeds the power that a State may exercise in enacting its criminal law. Accordingly, I agree that the application of the California statute was unconstitutional in this case and join the judgment of reversal.

Mr. Justice Clark,

dissenting.

The Court finds § 11721 of California’s Health and Safety Code, making it an offense to “be addicted to the use of narcotics,” violative of due process as “a cruel and unusual punishment.” I cannot agree.

The statute must first be placed in perspective. California has a comprehensive and enlightened program for the control of narcotism based on the overriding policy of prevention and cure. It is the product of an extensive investigation made in the mid-Fifties by a committee of distinguished scientists, doctors, law enforcement officers and laymen appointed by the then Attorney General, now Governor, of California. The committee filed a detailed study entitled “Report on Narcotic Addiction” which was given considerable attention. No recommendation was made therein for the repeal of § 11721, and the State Legislature in its discretion continued the policy of that section.

Apart from prohibiting specific acts such as the purchase, possession and sale of narcotics, California has taken certain legislative steps in regard to the status of being a narcotic addict — a condition commonly recognized as a threat to the State and to the individual. The *680Code deals with this problem in realistic stages. At its incipiency narcotic addiction is handled under § 11721 of the Health and Safety Code which is at issue here. It provides that a person found to be addicted to the use of narcotics shall serve a term in the county jail of not less than 90 days nor more than one year, with the minimum 90-day confinement applying in all cases without exception. Provision is made for parole with periodic tests to detect readdiction.

The trial court defined “addicted to narcotics” as used in § 11721 in the following charge to the jury:

“The word ‘addicted' means, strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. Does he use them habitually. To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually.”

There was no suggestion that the term “narcotic addict” as here used included a person who acted without volition or who had lost the power of self-control. Although the section is penal in appearance — perhaps a carry-over from a less sophisticated approach — its present provisions are quite similar to those for civil commitment and treatment of addicts who have lost the power of self-control, and its present purpose is reflected in a statement which closely follows § 11721: “The rehabilitation of narcotic addicts and the prevention of continued addiction to narcotics is a matter of statewide concern.” California Health and Safety Code § 11728.

Where narcotic addiction has progressed beyond the incipient, volitional stage, California provides for commitment of three months to two years in a state hospital. *681California Welfare and Institutions Code § 5355. For the purposes of this provision, a narcotic addict is defined as

“any person who habitually takes or otherwise uses to the extent of having lost the -power of self-control any opium, morphine, cocaine, or other narcotic drug as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.” California Welfare and Institutions Code § 5350. (Emphasis supplied.)

This proceeding is clearly civil in nature with a purpose of rehabilitation and cure. Significantly, if it is found that a person committed under § 5355 will not receive substantial benefit from further hospital treatment and is not dangerous to society, he may be discharged — but only after a minimum confinement of three months. § 5355.1.

Thus, the “criminal” provision applies to the incipient narcotic addict who retains self-control, requiring confinement of three months to one year and parole with frequent tests to detect renewed use of drugs. Its overriding purpose is to cure the less seriously addicted person by preventing further use. On the other hand, the “civil” commitment provision deals with addicts who have lost the power of self-control, requiring hospitalization up to two years. Each deals with a different type of addict but with a common purpose. This is most apparent when the sections overlap: if after civil commitment of an addict it is found that hospital treatment will not be helpful, the addict is confined for a minimum period of three months in the same manner as is the volitional addict under the “criminal” provision.

In the instant case the proceedings against the petitioner were brought under the volitional-addict section. There was testimony that he had been using drugs only four months with three to four relatively mild doses a *682week. At arrest and trial he appeared normal. His testimony was clear and concise, being simply that he had never used drugs. The scabs and pocks on his arms and body were caused, he said, by “overseas shots” administered during army service preparatory to foreign assignment. He was very articulate in his testimony but the jury did not believe him, apparently because he had told the clinical expert while being examined after arrest that he had been using drugs, as I have stated above. The officer who arrested him also testified to like statements and to scabs — some 10 or 15 days old — showing narcotic injections. There was no evidence in the record of withdrawal symptoms. Obviously he could not have been committed under § 5355 as one who had completely “lost the power of self-control.” The jury was instructed that narcotic “addiction” as used in § 11721 meant strongly disposed to a taste or practice or habit of its use, indicated by the use of narcotics often or daily. A general verdict was returned against petitioner, and he was ordered confined for 90 days to be followed by a two-year parole during which he was required to take periodic Nalline tests.

The majority strikes down the conviction primarily on the grounds that petitioner was denied due process by the imposition of criminal penalties for nothing more than being in a status. This viewpoint is premised upon the theme that § 11721 is a “criminal” provision authorizing a punishment, for the majority admits that “a State might establish a program of compulsory treatment for those addicted to narcotics” which “might require periods of involuntary confinement.” I submit that California has done exactly that. The majority’s error is in instructing the California Legislature 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. *683Even in California’s program for hospital commitment of nonvolitional narcotic addicts — which the majority approves — it is recognized that some addicts will not respond to or do not need hospital treatment. As to these persons its provisions are identical to those of § 11721— confinement for a period of not less than 90 days. Section 11721 provides this confinement as treatment for the volitional addicts to whom its provisions apply, in addition to parole with frequent tests to detect and prevent further use of drugs. The fact that § 11721 might be labeled “criminal” seems irrelevant,* not only to the majority’s own “treatment” test but to thp “concept of ordered liberty” to which the States must attain under the Fourteenth Amendment. The test is the overall purpose and effect of a State’s act, and I submit that California’s program relative to narcotic addicts — including both the “criminal” and “civil” provisions — is inherently one of treatment and lies well within the power of a State.

However, the case in support of the judgment below need not rest solely on this reading of California law. For even if the overall statutory scheme is ignored and a purpose and effect of punishment is attached to § 11721, that provision still does not violate the Fourteenth Amendment. The majority acknowledges, as it must, that a State can punish persons who purchase, possess or use narcotics. Although none of these acts are harmful to society in themselves, the State constitutionally may attempt to deter and prevent them through punishment because of the grave threat of future harmful conduct which they pose. Narcotics addiction — including the incipient, volitional, addiction to which this provision speaks — is no different. California courts have taken judicial notice that “the inordinate use of a narcotic drug tends *684to create an irresistible craving and forms a habit for its continued use until one becomes an addict, and he respects no convention or obligation and will lie, steal, or use any other base means to gratify his passion for the drug, being lost to all considerations of duty or social position.” People v. Jaurequi, 142 Cal. App. 2d 555, 561, 298 P. 2d 896, 900 (1956). Can this Court deny the legislative and judicial judgment of California that incipient, volitional narcotic addiction poses a threat of serious crime similar to the threat inherent in the purchase or possession of narcotics? And if such a threat is inherent in addiction, can this Court say that California is powerless to deter it by punishment?

It is no answer to suggest that we are dealing with an involuntary status and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often or even daily but not to the point of losing self-control. When dealing with involuntary addicts California moves only through § 5355 of its Welfare Institutions Code which clearly is not penal. Even if it could be argued that § 11721 may not be limited to volitional addicts, the petitioner in the instant case undeniably retained the power of self-control and thus to him the statute would be constitutional. Moreover, “status” offenses have long been known and recognized in the criminal law. 4 Blackstone, Commentaries (Jones ed. 1916), 170. A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of drugs.

Nor is the conjecture relevant that petitioner may have acquired his habit under lawful circumstances. There was no suggestion by him to this effect at trial, and surely the State need not rebut all possible lawful sources of addiction as part of its prima facie case.

The argument that the statute constitutes a cruel and unusual punishment is governed by the discussion above. *685Properly construed, the statute provides a treatment rather than a punishment. But even if interpreted as penal, the sanction of incarceration for 3 to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition posing a serious threat to the State. Under either theory, its provisions for 3 to 12 months’ confinement can hardly be deemed unreasonable when compared to the provisions for 3 to 24 months’ confinement under § 5355 which the majority approves.

I would affirm the judgment.

Mr. Justice White,

dissenting.

If appellant’s conviction rested upon sheer status, condition or illness or if he was convicted for being an addict who had lost his power of self-control, I would have other thoughts about' this case. But this record presents neither situation. And I believe the Court has departed from its wise rule of not deciding constitutional questions except where necessary and from its equally sound practice of construing state statutes, where possible, in a manner saving their constitutionality.1

*6861 am not at all ready to place the use of narcotics beyond the reach of the States’ criminal laws. I do not consider appellant’s conviction to be a punishment for having an illness or for simply being in some status or condition, but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest and in violation of the California law. As defined by the trial court,2 addiction is the regular use of narcotics and can be proved only by evidence of such use. To find addiction in this case the jury had to believe that appellant had frequently used narcotics in the recent past.3 California is entitled to have its statute and the record so read, particularly where the State’s only purpose in allowing prosecutions for addiction was to supersede its own venue requirements applicable to prosecutions for the use of narcotics and in effect to allow convictions for use *687where there is no precise evidence of the county where the use took place.4

Nor do I find any indications in this record that California would apply § 11721 to the case of the helpless addict. I agree with my Brother Clark that there was no evidence at all that appellant had lost the power to control his acts. There was no evidence of any use within 3 days prior to appellant’s arrest. The most recent marks might have been 3 days old or they might have been 10 *688days old. The appellant admitted before trial that he had last used narcotics 8 days before his arrest. At the trial he denied having taken narcotics at all. The uncon-troverted evidence was that appellant was not under the influence of narcotics at the time of his arrest nor did he have withdrawal symptoms. He was an incipient addict, a redeemable user, and the State chose to send him to jail for 90 days rather than to attempt to confine him by civil proceedings under another statute which requires a finding that the addict has lost the power of self-control. In my opinion, on this record, it was within the power of the State of California to confine him by criminal proceed- ■ ings for the use of narcotics or for regular use amounting to habitual use.5

The Court clearly does not rest its decision upon the narrow ground that the jury was not expressly instructed not to convict if it believed appellant’s use of narcotics was beyond his control. The Court recognizes no degrees of addiction. The Fourteenth Amendment is today held to bar any prosecution for addiction regardless of the degree or frequency of use, and the Court’s opinion bristles with indications of further consequences. 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.

*689The Court has not merely tidied up California’s law by removing some irritating vestige of an outmoded approach to the control of narcotics. At the very least, it has effectively removed California’s power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond this it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment. I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances. But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another case.

Finally, I deem this application of “cruel and unusual punishment” so novel that I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court’s allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding..

I respectfully dissent.