*1 efficacy, and of half deprives them construction if con- as depreciation right, gradual leads to duty of It is the more in sound than substance. sisted rights for the constitutional to be watchful courts citizen, thereon. stealthy any encroachments against warrant, without valid and seizure were Since the search the motion exception, recognized come within a and do not Ohio, Mapp granted. have been suppress should 1684, S. Ct. 84 A.L.R.2d 643, 6 L. Ed. 2d U.S. States, Ed. v. United (1961); 58 L. Weeks Ct. 341 34 S. new trial should be reversed and a judgment granted. Horowitz, Utter, JJ., J.
Rosellini concur January 7, 1977.] En 43846. Banc. [No.
Bradley Petitioner, Bresolin, Lave v. Charles
Morris, Secretary Department Services, Social Health
Respondent. *2 Allen Ziegler, Ressler and John G. for petitioner. William, Gorton, Slade General, Collins, C. Attorney and Assistant, respondent. for J. An inmate the state's correctional
Rosellini, brought institution Walla Walla this action seeking at compel Secretary Department mandamus to the of the Social establish drug and Health Services to and maintain a In program previous the institution. secretary steps to hearing, we ordered take secure addicts, isolated for which financing drug for facilities were 69.32.090, required RCW under to the court. report Morris, Bresolin v. 241, Wn.2d P.2d 325 reports rendered, After had the legislature three been 1975, Sess., enacted 2d Ex. ch. which repealed Laws 69.32.090, RCW made establishment discretionary and rehаbilitation rather mandatory. than meantime, petitioner that
In the we are advised Western has, been transferred to spite ineligibility, of his institution's he is enrolled that Hospital State where of the alternative Since this was one program. offender action, in the sought original of relief which he forms However, we are asked to be moot. appear case would passed which were questions consider the constitutional of the constitutional opinion. question original rehabilitation, duty respect officials with told, one of concern which will con great public we are to recur similar suits until the court answers tinue raised. contentions by parties pre- assured this case is as well
Being pared any likely to come before the argued future, dispose questions. court the near we will these prisoner contends that a has a right dependence drugs, of his on psychological rehabilitative the denial of this purposes, (forbidden cruel and punishment constitutes unusual eighth amendment to the United States Constitution Washington and article section State Constitu- *3 tion) deprivation liberty as well as a of his without due process equal protection of law and a denial of of the law. cited do authorities not estаblish these contentions. penal None of them holds that a in a institution prisoner rehabilitation, has right and none holds that the failure punishment. amounts cruel and unusual rehabilitate prisoners It is established that do not lose all of their equal due and rights process constitutional and that of Amendment follow protection clauses the Fourteenth v. Washington prison protect them into and them there. Lee, (M.D. 327, 1966), F. Supp. 263 331 Ala. aff'd approved, 390 U.S. L. S. Ct. 994 Ed. 2d (9th (1968); accord, Schneckloth, Smith v. F.2d 1969). Cir. said, in how-
As the federal district court
the latter case
ever,
have
is also settled that correctional
authorities
wide
in matters of internal administration
discretion
scope
reasonable action within the
of this discretion
prisoner's
does not
rights.
violate
constitutional
Martinez,
cites Procunier
396, 404-06,
40 L. Ed. 2d
Traditionally, federal courts have adopted a broad hands-off attitude tration. problems toward adminis- In part policy is the product of various limi- tations on scope of federal review of conditions penal state institutions. More fundamentally, this atti- tude springs from complementary perceptions about problems nature of the and the efficacy of judicial inter- vention. Prison administrators responsible are for main- internal taining order and discipline, for securing institutions against unauthorized access or escape, and rehabilitating, the extent that human nature and inadequate allow, resources placed inmates in their custody. The Herculean obstacles to effective discharge of these duties are apparent too to warrant explication. Sufficе it to say problems prisons in America complex intractable, are and, more to the point, they readily susceptible of resolution decree. Most *4 Morris, 241, 1See v. Bresolin P.2d 325 86 Wn.2d the com- comprehensive planning, and require expertise, resources, within peculiarly all of which are mitment executive branches legislative province ill reasons, courts are For all of those government. problems increasingly urgent to deal with the equipped of of that fact reflects no more than ism. involved, ence to the Judicial recognition administration and reform. a sense of real- healthy Mоreover, institutions penal where state courts a further reason for defer-
federal have appropriate prison authorities. encompass any
But a restraint cannot policy judicial cognizance failure to take whether prison regulation stitutional of valid constitutional claims arising a federal or state institution. When con- practice
or offends a fundamental will guarantee, discharge federal courts duty to constitutional protect rights.
(Footnotes omitted.)
The court in Martinez that rehabilitation is a recognized Martinez, v. governmental supra interest. Procunier 412. It did not as prisoner's right. leg- characterize it adopted islature this state has also rehabilitation as a penal say RCW 72.08.101.2 But goal. govern- ment has an interest is a rehabilitation and that legitimate institutional is one To that a goal thing. say prisoner has an enforceable to such rehabilitation Supreme spoken another. The United States Court has in a case not action subject parties cited to this but which find directly point controlling. we to be in Marshall court, States, v. United
That 417, 38 L. Ed. 2d S. Ct. 700 affirmed a hold- (Marshall Parker, ing the Court of Appeals 470 F.2d (9th 1972)) Cir. that "there is no right' 'fundamental ... at public expense after conviction of a case, crime". In that thе petitioner claimed that the Nar- cotic Addict Rehabilitation Act of 18 U.S.C. 4251- §§ provide programs 2"The director of institutions shall for the establishment of procedures persons penitentiary, designed for convicted at the state which are corrective, prob to be rehabilitative and reformative of the undesirable behavior essentially persons, distinguished programs procedures lems such from penal in nature." RCW 72.08.101. *5 equal process protection 4255, him and denied due persons in his situation from its laws because it excluded Noting suspect involved, classification was benefits. that no applied high tо be court said that the correct standard statutory rele- was whether the classification bore some purpose made. vance to the for which the classification was reasonably Congress, said, the court could find that types likely susceptible to be some of offenders were more justifiably others, to treatment than and could suitable upon make classifications this basis. pro- here that the
There is no contention
gram
discriminates
the state correctional
institution
peti-
among prisoners;
allegation
rather, the factual
Certainly,
legislative
inadequate.
if a
tioner is that
it is
pris-
may
аmong
body
a statute which discriminates
enact
basis)
(upon
nonsuspect
providing drug
treat-
oners
a
deny
prisoners,
may
it
ment, and
such treatment
to some
may constitutionally
rehabilitation
that no
decide
required
shall be
at all.3
upon
petitioner
cases which
relies
federal
prisoner
reason
to essential or
have held that a
is entitled
concept;
quarrel
no
with this
care. We have
able medical
recognize
generally
burden is on
however,
that the
the cases
complainant
or condition
that his disease
to show
example,
in Smith
treatment. For
amenable to medical
supra,
Civil
undеr the federal
Schneckloth,
it was held that
complaint
Rights
1983,
can be maintained
Act, U.S.C.
suffering
that,
prisoner
alleges
if
a state
federal court
urgent
having
need for
condition and
an acute
tangible
and suffered
refused such care
medical care was
injury thereby.
implicit
pointed
out,
court
But as that
proof
requirement
that medical
the formulation is the
officials,
available to state
in fact exists and is
(1975)
Starrish,
P.2d 1
State v.
Wn.2d
3Our recent cases of
problems
problem
(observing
of alcohol
of treatment
in a footnote that
Peterson,
resolution),
Robinson v.
87 Wn.2d
legislative
offenders is one for
(1976)
(holding
jail
havе a constitutional
do not
oficiáis
It be emphasized should needed medication withholds the institution tending that there no showing He makes and medical treatment.4 addiction, treating psychological accepted an method without. At the same or either within the confines of stress the time, affidavits authorities respondent's efficacy to the respect uncertainties which exist with addicts, particularly attempts to rehabilitate concept the entire reha- prison setting. within thе That ques- is under practical goal of confinement bilitation as the current literature appreciated examining can tion be See, e.g., L. Rehabilitation Pierce, subject. upon Reassessment, A Prob. No. Corrections: p. 38 Fed. *6 Is the Treatment (1974); Martinson, Wilks & R. J. of Really Necessary?, Criminal 40 Prob. No. Fed. Offenders Rhet- Rehabilitation Hawkins, & (1976); N. p. Morris G. (1970).5 Reality, oric and 4,No. p. 34 Fed. Prob. Thus, exists and petitioner the has not shown that there prison accepted an of treat- available officials method The ing respon- addiction the environment. drug prison dent, hand, has that the on the other demonstrated of problems drug indifferent to the depаrtment not In programs, to its other rehabilitative addiction. addition upon by petitioner, support 4A law of review article relied the his claim drug required, programs judicially goes no rehabilitation should be further protection than to advocate of for withdrawal the receive methadone symptoms recog dependence, and treatment of while at the same time Rights Comment, nizing The Prison that even this treatment controversial. Drug-Dependent Implications ers to Care For Medical and the Prisoners Detainees, Pre-trial 42 U. Chi. L. Rev. 705 Right Botein, Prison by Dwyer to Rehabilitation 5An P. article & M. Process, the ers—Judicial Correctional cited N.Y.L.F. Reform of petitioner, prison man the takes the view courts should intervene agement programs. and order establishment of maintenance rehabilitation assume, evidence, is an authors without citation rehabilitation prison goal. They specific problem achievable do not of rehabilitation address drug addicts. (which the institution at Walla Walla is the institution here attack) drug counseling under offers to those who are will- ing accept program may it. While this mini- be termed opinion appears mal, that, the consensus of to be as a practical programs matter, rеhabilitative within the nonproductive. Psychological environment are prisoners shortly assistance to motivated who are to be paroled hope success, released or offers some and to this program Hospital, end petitioner at Western State to which the prematurely transferred,
has been has been established. Secretary charged
In the meantime, the and those responsibility administering prison system are constantly reexamining programs policies and the evolving fulfilling alternatives, available and with a view to capacity statutory goal to the best of their of rehabili- showing tation. The makes no that these efforts pursued good any superior with less than faith or that existing programs pres- alternatives to the and methods ently respondent. exist and are available to the We need showing judicial whether, if made, decide such a were appropriate. stands, intervention would be As the record nothing there is here to indicate that the low incidence of by any duty rehabilitation is occasioned breach of on part respondent. pro- We find no constitutional violation in the failure to vide a more extended within the institution.
The writ is denied. *7 Stafford, C.J., Hamilton, Wright, Brachtenbach, and JJ., Dolliver, and concur. (dissenting) majority J. contends this court —The Utter, helplеss
is to act the face of the failure of the State to provide meaningful petitioner, assistance to the a narcotic willingness addict who has demonstrated a and desire to addiction, cure his when State action exacerbates his setting him in a by closed personality placing addictive effec- cannot be drugs apparently the sale use of where and tively controlled. For this not, not, be the law.
This is and cannot should explosive hold the continued court that assures our of the addicts confined to institutions degeneration fur individuals will do creates a likelihood that such great eventuаlly released. society they ther when are injury Gamble, in Estelle v. Supreme The United States Court 97, 102-04, L. Ed. S. 2d 97 Ct. 285 Eighth to the Amendment recognized repugnant has evolving incompatible are 'the "punishments which maturing mark a decency progress standards of that unnecessary suffering infliction of society,"' decency as contemporary standards of "inconsistent with legislation codifying manifested the common- modern just public required law view 'it is but be prisoner, depriva for the who reason of by care cannot (Footnote omitted.) tion of his care for liberty, himself.'" requested require, major- The relief here does not as the insists, ity cоnstitutionally of a recognition this court broad In its present based of rehabilitation. facutal right narrow, presents important, framework this case albeit issue of inmates con- concerning rights constitutional fined to state prisoner psycho- institutions: Does who logically addicted to narcotics have the to demand men- protection some from the demonstrable to an being tal harm which suffers as a confined he result unavoidably exposed he is to unlawful institution which narcotics, trade in and of hard which officials use prevent? unable to I conclude that the State is constitu- compelled from harm of tionally provide protection dissent. nature and therefore that, more to his recent and prior
The record establishes
Hospital,
State
than coincidental
transfer
Western
Peniten-
Walla State
petitioner was incarcerated
Walla
drugs,
extensive unlawful use of hard
tiary where there is
This
heroin,
including
amphetamines,
hallucinogens.
*8
but staff
only prisoners,
involves not
allegedly
culture
have,
existing
under
personnel
Prison
and visitors as well.
cur-
conditions,
anything
significantly
to do
to
been unable
by
a means
which
they provided
nor have
activity,
tail this
its
so,
sanctuary from
may
do
seek
prisoners who wish to
in the cre-
only
not
results
adverse effects. Such a situation
difficult
extremely
in
which it
ation
an environment
them-
to rehabilitate
who have the desire
for most inmates
him,
like
selves,
in
and others
petitioner
but
the case of the
in
prior
our
As we stated
makes debilitation
inevitable.
case,
in
opinion
petitioner
addicted
physiologically
been
and has
psychologically
either
been committed
All his crimes have
drugs.
drugs.
purchase
which to
money
or
drugs
obtain
Due to lack of
provided
have been
funding,
programs
no
drugs
. . .
has
him
Use
help
cure this addiction
in
where his addic-
institutions
resulted
confinement
He is
availability of narcоtics.
by
tion is
encouraged
or the
physical presence
either
their
escape
unable to
use. On his
encourages
subculture
prison drug
release at the end of
accomplished
term,
have been
his
will
nothing
confirm the
except
by confinement
once
guarantee,
needs which
psychological
physical
more,
acts,
more
followed
involvement
criminal
his
confinement.
Morris, Wn.2d
241, 249,
Bresolin v. great has made situation, petitioner with this Faced As program. in a treatment placement to secure efforts recently been out, has petitioner majority points at Western program treatment to the transferred unusual, say the least. placement That Hospital. State first case, sought the petitioner In of this history the long ordered, This court then 69.32.090. treatment under RCW avail- statute, "make respondent words of the institu- correctional portions of authorities able to health treatment, for the isolation his jurisdiction tions under do failed to Respondent petitioner." expense, at public State the Western placement sought so and resisted that Respondent Hospital drug program. 1-2: Respondent pages the Brief of placement, stating to the stone back primarily stepping is used as a [I]t an individual streets and is to treat designed him . . . return to an institution then (about 18 hospital is of limited duration program at the months) (30 people). size and the is of limited is not layout hospital, Because walls, or It no fences facility. considered a "secure" has it can limiting types persons take guards, *9 to clearly immediate provide not indicating was established all who treatment inmates might be found to be narcotics addicts. transferred to Western State
Petitioner has been He is Hospital long presently of his sentence. because mandatory minimum serving five-year the first three v. State upon deadly weapon findings, terms based Bresolin, App. Wn. in fact no ten- has yet of his consec- tative release date established because detainer, also a federal utive sentence structure. He based on prevents has conviction, him lodged against federal which . . . parole, custody, his to federal except by respondent, The court has been informed counsel for case, in the time the most this that hearings at recent changed. these facts have not underlying significantly Bresolin fits estab- Respondent has not contended now lished for the State program. criteria Western
It is difficult to view Bresolin's recent transfer to posi- in view of program, respondent's past Western State tion, respondent than to by as little more an effort by issues case. important render moot raised however, not, placement Bresolin's at State does Western who, to as the moot these issues as other inmate/addicts indicates, undisputed desire and would benefit evidence These program. placement from penitentiary the state inmates still incarcerated resulting harm identical under conditions of the named here. RCW repealed has 69.32.090 legislature expressly
(see 103), Sess., ch. the statute which Laws of 2d Ex.
we
this case. While
controlling
prior opinion
found
our
clearly
allоws the establish-
present statutory scheme
I
in a
ment of
feel
factual
programs,
(RCW 72.08.101),
them
setting
requires
such as this
respondent
any
record is devoid of
indication
intends
an
at
the state
implement
adequate program
time in the near future.6
penitentiary
any
As the
courts have shown reluctance to
majority suggests,
workings
penal
become involved
the inner
of our
institu-
protect
tions.
intervene
power
of the courts
inmates
from
threaten
their health or
conditions which
safety,
or which are violative of a basic constitutional
See,
Gamble,
e.g.,
supra;
Estelle v.
clearly
established.
Martinez,
Procunier v.
40 L. Ed.
94 S.
U.S.
2d
(1974)
Ct. 1800
mail
held vio-
(prison
censorship regulations
lative of inmates' First and
rights);
Fourteenth Amendment
Collier,
Gates v.
(5th
1974) (confinement
Where of needed medical care is added imprisonment punishment as for commission imposed matter, court, expressly hearing found that "[t]here 6The trial its on Penitentiary any therapy which has no form of available to the Petitioner at the probability curing in this case dated his condition." In an affidavit submitted 16, 1976, Bradley, Corrections Division of the June Harold Director of Adult Services, existing drug Department stated the of Social and Health "essentially level as it has would continue at the same Walla Walla past..." been in the
179 thereby consti- crime, imposed suffering of a additional provides justifica- punishment tutes cruel and unusual to additional tion for our intervention alleviate Ciccone, Gamble, v. supra; Ramsey Estelle 310 suffering. (W.D. 1970). Moreover, process due F. Mo. Supp. 600 to failure of the requires proceedings justify additional than protect an from harm any greater state inmate New York Ass'n contemplated by his incarceration. Children, Inc. v. Rockefeller, Retarded F. Supp. Herold, (E.D.N.Y. Baxstrom v. 1973); L. 2d S. Ct. Ed. referral, found, to our pursuant
The trial court order that: to the use of psychologically Petitioner addicted primary addiction is the drugs. Psychological
narcotic cause of Drug programs have usage. primary psychological focus cure . . . addiction. . . . petitiоner's] addiction leads psychological [The
him to drugs obtain and use narcotic when he able to so. do
. . . therapy There is no form of to the Peti- available Penitentiary tioner which has any probability at the curing his condition. presented fact-finding evidence at this fur- hearing aid actively sought
ther establishes that has prison. his while No dealing drug problems inmates, him, programs such or other at the available Yet, and the fail- penitentiary. because his confinement activity ure of control within prison illegal drug officials to institution, present impossible, the walls it is at the time, for inmate avoid continued involve- an addicted might ment with no matter how determined he be drugs, This the case but for the forsake them. would not be inability adequately staff to control of the institution provide environment, the failure coupled with affirmatively help seek an environment addicts who *11 180 under lives. Confinement to rebuild their begin
which to
such an individual's
intensifies
only
conditions
present
he is
that when
addiction,
result
with the
psychological
mainstream,
even
it will be
society's
once
into
again
thrust
with
involvement
him
further
to avoid
more difficult
additional confinement.
drugs and
the uncontro-
majority,
Contrary to the assertion
superior
in
court
expert witnesses
testimony
verted
of
and
petitioner
hearing establishеd
fact-finding
treat-
that such
treatable and
like him are indeed
others
conflict
there is considerable
necessity.7 While
ment
is a
would
techniques
of
a number
as to which of
among experts
seem now
addicts,
authorities
most
most beneficial to
be
See S.
provided.
be
treatment
can
that effective
assume
&
(1973);
Bonnie
R.
Drug
Abuse
Levine, Narcotics
171-
Drug Dependence
Sonnenreich, Legal Aspects
M.
the District
and Treatment
in
(1975); Drug Addiction
on Public
Subcomm.
Columbia, Hearing Before
Comm, on
Education,
Health,
Safety
Welfare,
Senate,
92nd
States
Columbia United
the District
Swanson, Law
(1971); G.
Cong., 1st Sess.
Enforcement
Trust Possible? Con-
Bridge
Is a
Drug Rehabilitation:
(1975).8
temporary Drug Problems
Emery]:
[by
7Lyle Quasim, qualified expert,
Mr.
Can
as follows:
testified
"Q.
Yes,
psychologi
prison?
you
you
psychological
A.
treat
can
treat the
addiction
significant inroads
prison.
some
...
I think that we can make
cal addiction
Chontos,
process
penitentiary."
dealing
psychological
Gene
into
with the
[by
Emery]:
you
expert,
conclude that
Mr.
Do
another
testified as follows: "Q.
necessity
grounding for successful
prison
as a
is an absolute
A. I
prison
released later on?
and who will be
treatment of an addict who is
you
think,
definitely necessary just
yes,
necessary.
build trust that
can
it's
It's
words,
assuming
[by
the law is
In оther
transfer outside.
. . .
the Court]:
Q.
him,
you
treating
you
there
while
interfere with his
sentence
can't
therapy
psychological
which could
State forms of medical or
are available
beneficially
light
penitentiary
in the
be administered to this
enough
present
to do
A. If the funds were free
and mental condition?
his
replete
available,
yes."
money
say
The record
If
I would
that.
there were
similar statements.
the most
fact-finding hearing
effect that
testimony
was to the
8Expert
at the
therapeutic communities
isolated
would involve
effective
clearly
the failure
establishes that
The record in this case
who
avаilable to the
such treatment
make
inmate/addict
*12
affirmatively
to
individ
substantial harm that
seeks
does
society
Morris,
See
v.
ual, as
as
a whole.
Bresolin
well
Supreme
may
supra
Though it
be true that the
at 247-49.
recognized
of a "'fundamental
not
the existence
Court has
right'
."
. .
from narcotics addiction
to
(Marshall
417, 421, L.
2d
States, 414
38 Ed.
v. United
U.S.
(1974)),9
person may not
it is clear that
commands appro- may prove further remedies to consider what time necessary. or priate J., J. Utter,
Horowitz, concurs with except J. dissent with the Hunter, concur (dissenting) —I monthly to make respondent requiring for the mandate the treat- success of regarding to this court reports the dissent. I dissent ments, respect, in which January En 44269. Banc. 1977.] [No. Petitioner, Morris, Lois Flanders, v. Charles Department Secretary Social Services, and Health al, et Respondents.