Separate opinion of
Mr. Justice Santana Becerra, with whom Mr. Chief Justice Negrón Fernández, Mr. Justice Belaval, and Mr. Justice Hernández Matos concur.San Juan, Puerto Rico, June 30, 1965
Act No. 48 of June 18, 1959, called the Narcotics Act of Puerto Rico, contains in its § 60 — 24 L.P.R.A. § 9761— a civil proceeding in the Superior Court filed by the Secretary of Health for the confinement and isolation of the narcotic drugs addicts from society.
*648As far as we know that civil proceeding is not being used and, if it has been used, it has not been within the minimum degree necessary to meet the medico-social problem of drug addiction.
On the contrary, the drug addict who is caught with the charred bottle top containing residues of heroin, the needle, and the dropper, or the one caught euphoric, trying to imbibe rather than smoke, a marihuana cigarette, has been treated as an ordinary criminal under the provisions of § 29 of the Act.
It is true that the conviction isolates the addict from community life and that while he is serving his sentence he receives treatment against addiction within the limitations of a penitentiary, but the person is isolated not as a sick person would be under the civil proceeding of § 60, but with the indignity of a criminal conviction and all its other consequences. If the medical science avers that a drug addict is a sick person, it is not necessary to have either a constitutional provision inflicting a cruel and unusual punishment, or a judgment, Robinson v. California, 370 U.S. 660, for a people to conclude from an innate sense of social culture, that that addict should not be branded as a criminal.
The evidence introduced in the habeas corpus has convinced me that we have here the case of a drug addict. If it is so, as I believe it is, let us see what medicine says. The prominent psychiatrist, Dr. Ramón Fernández Marina, testified, answering a question in relation to the characteristics presented by drug addiction:
“Well, the drug addict may present different types of physical as well as psychological personality, but there is something fundamental in all of them that after they experience the effect of the ... in these general cases it is heroin, they may start with morphine, or Dilaudid, the marihuana, etc., and when théy fall in the clutches of heroin, which is the most horrible of all of them, the characteristic it presents is a compulsive craving *649to use the drug because the anxiety and physical restlessness suffered is of such a degree that they do not, they cannot consider any other thing but obtaining and injecting the drug in them. That is, this compulsion, this need to . . . terribly demanding from all . . . and obnubilating of all moral, social, family, legal consideration of any kind which the drug addict has, is unique in psychiatry. That is, among persons who are not psychotic and in many cases we have seen that drug addiction is just dissimulating a psychosis, a schizophrenia; and as schizophrenia is the sensation of not being, of not belonging, of not feeling human, then, they resort to drugs to escape facing reality.”
Further on, answering the question as to whether the addict can control his acts in relation to the drug:
“. . . But as far as we know in psychiatry when we infer the behavior of an individual from his mental processes, a drug addict cannot have a clear understanding of his perception of reality leading to the proper control of his behavior. I mean' to say by this that the judgment, the act of judging, of being a judge, the judging of an act is the supreme ability of the human being. In the evolution of the psyche the last thing to be developed is the rare ability to judge. That is why the function of the judge in society is the most dignified. And these persons who are affected in their physiology and in their psychology, first by the compulsion in their psychological disposition and second by the toxicity of the drug, evidently cannot exert Control over the psychological functions which determine their behavior and determine the control of their social actions. Therefore, the answer is no.”
“Judge Belaval:
“Could they distinguish between good and evil?
“Yes and no.
“Which are the circumstances conditioning their behavior?
“. . . The drug addict, due to the effect of his psychological illness and his toxic-physiologic condition does not consider his security, he considers his satisfaction because, compulsively, he has, like a child, to look for that satisfaction to feel calm. A baby, a child, does not care whether he is sick with diabetes, for example, he takes sugar because he does not have the knowl*650edge that dieting provides a security for living, and although sugar is harmful to him, that child, as his judgment is so infantile, we should say, he takes the sugar. It is the same with the drug addict, his need to escape from his psychological and physiological condition is so powerful that, although he may know that his security is in danger, his satisfaction prevails over his security; because of this illness he cannot postpone satisfaction to security. Therefore, if that is the psychological and physiological condition of the individual, it makes no difference whether or not he can distinguish between good and evil because compulsively he has to bend to his satisfaction.” “Mr. Cruz:
“Can a person, under the circumstances of drug addiction you have just explained, be considered a sick person, doctor?
“Why, sure, that is what I am trying to say, that it is a case of psychopathology and physiopathology. Pathology means illness.”
Further on, answering the question- as to whether behavior is' consistent with a determined plan:
“Yes, evidently during a specific period the addict graduates the need for the use of the drug, but then the physical condition for the physical need of the drug disappears because at first it is a psychological need, and as intoxication progresses and .the metabolism becomes involved, the chemical reactions in the liver and the nervous system are involved, then it becomes a physiological need. At first it is psychological, and later it is psycho-physiological. That is, that as it gets worse, more and more is needed.”
“. . . So that, if we observe the behavior of a drug addict from that point of view we shall see that he is psychologically and physiologically sick, but that he is a unit called a human being functioning inadequately.”
According to the medical science represented here- by the eminent professional, Dr. Fernández Marina, petitioner is a sick person. His need is so irresistible, at first psychological and as the intoxication progresses, psychophysiological, which ensnares him to the drug, and the bond is so powerful that when the patient is confined as a criminal, as is.usually done, *651the drug, in manifold ways breaks the barriers of confinement and reaches him. •
The opinion of the Court gives much emphasis and importance to the facts in the decision in Robinson, which are obvious and nobody questions, and which would be thus even if the opinion in Robinson had not been rendered; that the United States and, in our case, Puerto Rico, has the power to persecute criminally and declare the possession, use, traffic, etc., of narcotic drugs, a crime. Robinson is more transcendental than that, and although it was a California statute punishing addiction as such which produced that decision, which statute does not exist here, the transcendency of Robinson is not limited either to such situation where there exists a statute like the one annulled in California.
Robinson is of significance wherever it is sought to punish criminally what appears to be a disease. The disease is punished whenever the use and possession, as a manifestation of the illness, are punished. We would be ignoring the opinion of medical science by failing to understand that that use and possession is the very irresistible psychological and psy-chophysiological impulse which, as the physician stated, binds the sick person to the drug.
In view of the seriousness of' the problem, which has become of deep concern to the different spheres of opinion in our society, it seems to me that the Court should reach the very bottom thereof, which is not solved by merely making a legal analysis of the decision in Robinson and its doctrinal procedure.
The problem is not solved by making the sick person a criminal. Although the Court by itself is not authorized to provide the treatment or to offer the cure, it certainly can establish the juridical pattern to serve as a guide in the solution of the problem.
I am not holding that § 29 of the Narcotics Act is unconstitutional. But in the function of the Court in constru*652ing a. law I understand that it should be construed in the sense that the use and possession stated therein does not include, under pain of illegality, the use or possession by an addict for the mere satisfaction of psychological and physiological need which, were it not for his illness, he would hot require.
For the reasons stated by my brother, Mr. Belaval, in his dissenting opinion with which I concur in full, and for the reasons stated above, I dissent. I believe petitioner should remain isolated from the community until after his recovery, but not under a criminal sentence, which should be set aside.