Appellant Salzman raises questions regarding the relationship of chronic alcoholism to criminal responsibility. Specifically, he argues that the jury should have been allowed to consider, and to acquit if it so found, whether the act with which he is charged — robbery— was the product of a disease from which he claims to be suffering — chronic alcoholism. Because the record is inadequate to present this claim, his conviction is affirmed. However, because one of the opinions in this case proceeds to discuss this question, and because the problems are important, I set forth my own views.
I
The question is whether a person claiming to be a chronic alcoholic should be acquitted of any crime if the jury finds that he was suffering from a disease and that his actions were a product of that disease; whether, therefore, the proper disposition of such a person is to a treatment facility rather than to a penal institution. I think the question should be answered in the affirmative.
In the long-standing debate over criminal responsibility there has always been a strong conviction in our jurisprudence that to hold a man criminally responsible his actions must have been voluntary, the product of a “free will.”1 Accordingly, when there has been a consensus that in a certain type of case free will is lacking, the defendant in such a case may raise involuntariness as a defense to criminal prosecution. This has been true where various forms of automatism have been claimed,2 where a person has acted under *365external threat of compulsion,3 and where a person has been involuntarily made intoxicated by the actions of others.4 And, of course, there has been the long tradition in the area of mental illness that:
“ * * * [A] person may commit a criminal act, and yet not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. * * * ”5
In deciding responsibility for crime, therefore, the law postulates a “free will” and then recognizes known deviations. Thus the postulates can be undermined in certain areas where there is a broad consensus that free will does not exist. Once there is such a consensus, as in the mental illness area today, the jury is allowed to inquire whether the particular *366person claiming to be within that class lacked the free will necessary for criminal responsibility. No reason appears why this concept should not be applied to any disease.6 The question is whether society recognizes that the behavior pattern in question is caused by the diseased determinants and not free will.7 If so, there should be no criminal responsibility. In determining societal recognition, four areas should be explored: (1) medical opinion, (2) the existence of treatment methods and facilities, (3) legal opinion, and (4) governmental recognition (legislative, executive and judicial) . On exploration, I find sufficient consensus to hold, as a matter of law, that chronic alcoholism is a disease which in some instances may control behavior and that in those instances where it does, criminal sanctions may not be imposed.8
II
Medical Opinion
There are various definitions of alcoholism used in the medical profession. One group focuses on the physically debilitating and antisocial effects of chronic heavy drinking. For example, Keller states:
“Alcoholism is a chronic disease, or disorder of behavior, characterized by the repeáted drinking of alcoholic beverages to an extent that exceeds customary dietary use or ordinary compliance with the social drinking customs of the community, and which interferes with the drinker’s health, inter-personal relations or economic functioning.”9
Another group focuses on the addictive nature of the alcoholic. Plaut describes it as:
“a condition in which an individual has lost control over his alcohol intake in the sense that he is consistently unable to refrain from drinking or to stop drinking before getting intoxicated.”10
Similarly, a variety of etiological factors has been found, with disagreement as to which specific set of factors is a necessary or sufficient condition for the disease. In general, psychological factors, sometimes characterized in groups *367as “personality disorders,” are said to be a causative factor, along with cultural and physiological determinants.11 Different types of alcoholics are found; Jellinek’s noted division of alcoholics into five types is a major work in the area.12
That there is no clear definition of alcoholism and no complete agreement as to its causes is not a ground for denying it disease status. The same might be said of cancer or epilepsy; certainly the same can be said for mental illness. There is a profusion of definitions of various mental disorders, and strong debate over whether or not they are illnesses and what their causes are. For example, in one instance psychiatrists from St. Elizabeths Hospital testified that a soeiopathic personality disturbance was not to be considered a mental disease or defect; one month later psychiatrists from the same staff testified to the opposite effect.13
The point is not whether the medical profession has come up with an exact label. Rather, the approach is functional — does the medical profession, or a substantial part of it, view alcoholism as a disease, properly the subject of medical treatment? It seems clear that, measured by this test, alcoholism does qualify as a disease.
Plaut, recommending such a broad functional view, states:
“Alcoholism then is considered an ‘illness’ in the light of a comprehensive health view which includes an awareness of: (1) the multiplicity of causal factors; (2) the probable existence of many different courses of development (rather than a single course of development) ; and (8) the need to utilize a variety of treatment and preventive approaches, non-medical as well as medical.”14
In 1968 Dr. J. H. Mendelson, head of the National Center for Prevention and Control of Alcoholism at the National Institute of Mental Health, noted:
“During the past two decades, significant advances have been made in both public and professional acceptance that alcoholism is a disease rather than a form of moral transgression. The health professions have assumed leadership in developing a contemporary approach to the study and treatment of alcoholism which incorporates scientific and humanistic goals. Most recently the courts have adopted legislative precedents which view the alcoholic as an ill individual and the process of litigation and confinement of alcoholic patients hopefully will soon disappear.”15
Finally, in 1956 the Committee on Alcoholism of the Council of Mental Health of the American Medical Association passed a formal resolution that “ * * * the profession in general recognizes this syndrome of alcoholism as illness which justifiably should have the attention of physicians.”16
Treatment Methods and Facilities
Since alcoholism has only recently received the medical attention the medical profession now feels it deserves, it is not surprising that the availability of treatment methods, and especially treatment *368facilities, lags behind the need.17 However, in recent years there has been a burgeoning of methods and a rapid increase in facilities for alcoholics. While recognizing how much farther we have to go, I feel that we have now progressed sufficiently to route alcoholics out of the criminal process and into a treatment process.
Various methods have been, and are being, used with alcoholics. Psychotherapy.18 group therapy,19 drug therapy,20 and a host of special programs such as aversive conditioning, hypnotherapy and group psychodrama21 have received discussion in the literature. And every authority recognizes that a very important aid to any treatment program exists—Alcoholics Anonymous.22
These treatment methods will undoubtedly be altered, new ones added, and old methods revived as the profession seeks surer ways to return the alcoholic to a normally functioning life. This is true in almost all aspects of medicine, and especially true of the treatment of mental illness. What is important is that methods are being used, apparently with some success,23 to treat alcoholics. Also encouraging is the work of Chafetz and others24 showing that “unmotivated” patients can be worked with. As Plaut notes:
“ * * * Evidence is accumulating that changes in the organization, operation, and treatment philosophy of an agency can have a substantial effect on its ability to work with the supposedly unmotivated patient. * * *"25
Although much needs to be done in creating treatment facilities, a great deal has already been accomplished. Alcoholics can receive in-patient care in some state hospitals,26 and emergency care in a variety of emergency services.27 Further, alcoholism clinics are being established at a rapid pace, with more than 130 in existence as of 1966.28 The community mental health centers being developed throughout the country have a great potential for treatment of alcoholics.29
Finally, as discussed below, there is a massive movement in the states and at the federal level toward establishing research and treatment facilities for alcoholics. This movement is resulting in a tremendous increase in the number of facilities and methods employed to treat alcoholism.
*369 Legal Opinion
The legal literature on the problem is just developing. Most of it centers on the two recent Circuit decisions holding that alcoholics cannot be punished for public drunkenness.30 Of 20 law review case notes on these decisions, 13 commented favorably on the courts’ approach to alcoholism along medical-rehabilitative lines (the remaining seven simply noted the cases; none commented unfavorably).31 A typical note states:
“By recognizing that alcoholism is a disease, the courts acknowledged a conclusion almost universally accepted by medical authorities. * * * [I] t is generally accepted by medical and psychiatric authorities that ‘jail is no place for the alcoholic,’ for he needs rehabilitation rather than punishment.” (Footnotes omitted.)32
Further, almost all of the law reviews pointed to the implications of those decisions, and of our medical appreciation of alcoholism, for alcoholics accused of any crime.
Several writers have discussed the problem of alcoholism, concluding that it is essentially a medical, not a criminal, one.33 It is instructive that the President’s Commission on Law Enforcement and Administration of Justice, Task Force on Drunkenness, singled out an article by Hutt to include in its appendix. Hutt concluded:
“Judges and lawyers are trained in the law. We are not competent to decide exactly what type of noncriminal public health procedures are most likely to result in rehabilitation of chronic inebriates. But we are competent, and we do have the duty, to make certain that the present criminal procedures are not continued. The public cannot be expected to respect a system of criminal justice that condemns sick people to jail because they are sick. * * * ”34
Governmental Recognition
In this area, perhaps more clearly than in any of the others, the recognition that alcoholism is a disease is overwhelming.
1. Legislative: Congress
As long ago as 1947 Congress recognized alcoholism as a disease when it enacted a law for the rehabilitation of alcoholics.35 The first section of that law stated;
“The purpose of this chapter is to establish a program for the rehabilitation of alcoholics, promote temperance, and provide for the medical, psychiatric, and other scientific treatment of chronic alcoholics; * * * and to substitute for jail sentences for *370drunkenness medical and other scientific methods of treatment which will benefit the individual involved and more fully protect the public. In order to accomplish this purpose and alleviate the problem of chronic alcoholism, the courts of the District of Columbia are hereby authorized to take judicial notice of the fact that a chronic alcoholic is a sick person and in need of proper medical, institutional, advisory, and rehabilitative treatment * * *"36
In 1968 Congress substituted for this Act another, Public Law 90-452, 90th Congress (August 3, 1968), which embodies the same policy. The new law goes even further. It not only provides for civil commitment of alcoholics, it also provides that any chronic alcoholic arrested for any misdemeanor can be civilly committed if he, “prior to trial for such misdemeanor, voluntarily requests such treatment in lieu of criminal prosecution for such misdemeanor.” Section 7(b) (1) (A). The maximum term of commitment cannot exceed the maximum term of imprisonment for the misdemeanor charged. Responsibility is given the Commissioner of the District of Columbia to create detoxification centers and in- and out-patient treatment facilities.
2. Legislative: States
State recognition of alcoholism as a medical problem has been massive. Forty-two states have passed laws, the large majority within the past ten years, which recognize alcoholism as a medical problem, establish research facilities, and authorize treatment facilities.37 Typical is Maryland’s, the first section of which states:
“Alcoholism is hereby recognized as an illness and a public health problem *371affecting the general welfare and economy of the State. Alcoholism is further recognized as an illness subject to treatment and- recovery * * *."38
Of these states, 24 provide, in addition, for the civil commitment of a chronic alcoholic who is dangerous to himself or to others.39
3. Executive
In March 1966 President Johnson addressed Congress regarding the health and education problems in the United States. He stated:
“The alcoholic suffers from a disease which will yield eventually to scientific research and adequate treatment. Even with the present limited state of our knowledge, much can be done to reduce the untold suffering and uncounted waste caused by this affliction.
I have instructed the Secretary of Health, Education, and Welfare to:
—appoint an Advisory Committee on Alcoholism;
—establish in the Public Health Service a center for research on the cause, prevention, control and treatment of alcoholism;
—develop an education program in order to foster public understanding based on scientific fact;
— work with public and private agencies on the State and local level [to] include this disease in comprehensive health programs.”40
4. Judicial
In two Circuit decisions, Driver v. Hinnant, 4 Cir., 356 F.2d 761 (1966), and Easter v. District of Columbia, 124 U.S. App.D.C. 33, 361 F.2d 50 (1966) (en banc), the courts held that an alcoholic could not be convicted of public drunkenness. Crucial to each holding was a recognition that alcoholism is a disease:
“This addiction — chronic alcoholism —is now almost universally accepted medically as a disease. The symptoms, as already noted, may appear as ‘disorder of behavior’. Obviously, this includes appearances in public, as here, unwilled and ungovernable by the victim. When that is the conduct for which he is criminally accused, there can be no judgment of criminal conviction passed upon him. * * * ”
Driver, 356 F.2d at 764. (Footnote omitted.)
“ * * * [Alcoholism is defined by the Congressional Act of 1947] as a ‘sickness,’ and Congress did not find it necessary to specify whether it is mental, physical or a combination of both. Whatever its etiological intricacies it is deemed a sickness which is accompanied with loss of power to control the use of alcoholic beverages. The congressional judgment is supported not only by the evidence in this case adduced in the Court of General Sessions but by the record of the hearings on the Act of 1947, the entire legislative history of the Act, and by an additional abundance of authorities * * *. As Congressman Miller of Nebraska stated on the floor of the House during the debate on the Act:
Jail is not the answer to their trouble. We think they are sick people and need scientific and technical attention of psychiatrists and medical personnel.”
*372Easter, 124 U.S.App.D.C. at 35, 361 F.2d at 52. (Footnote omitted.)
Conclusion
From the examination of medical opinion, legal opinion, treatment methods and facilities, and governmental recognition, it seems clear that alcoholism is a disease, properly the subject of medical attention instead of criminal sanction. Therefore, this court should fashion a rule regarding alcoholism so that persons claiming to suffer from the disease can take to the jury the issue of whether, in each ease, the criminal responsibility needed for conviction is lacking.
Ill
The question of alcoholism as a defense to crime is being treated here as a question of criminal responsibility. “In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts * *."41 The issue is not one of constitutional mandate (the Eighth Amendment’s proscription of cruel and unusual punishment) nor one of statutory interpretation (the 1947 Act of Congress).
It follows that we are not compelled to rely on the basis for the decision in Driver, supra (Eighth Amendment), or in Easter, supra (1947 Act and, in part, Eighth Amendment).42 And, therefore, the Supreme Court’s opinions in Powell v. State of Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), are not a constraint. There a divided Court affirmed a Texas conviction for public drunkenness, holding that the Eighth Amendment did not prohibit such a conviction. The Court was dealing at a constitutional level; in fact, Mr. Justice Marshall’s opinion explicitly applauded experimentation among the jurisdictions in dealing with criminal responsibility:
“ * * * [F]ormulating a constitutional rule would reduce, if not eliminate, that fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. * * ”
392 U.S. at 536-537, 88 S.Ct. at 2157.
In this spirit, I think that the dialogue over alcoholism among the medical profession, the government and the legal profession has reached a point where the disease should be recognized as a basis for denying criminal responsibility for any actions produced by the disease. The rule I would fashion for alcoholism parallels this court’s rule in the area of insanity. The jury would be instructed that if it finds that the defendant was suffering from a disease, and that his actions were a product of that disease, it should find the defendant not guilty. Using civil commitment procedures, the defendant should then-be committed to an appropriate treatment facility.43 As with insanity, labels should be avoided. *373In each case experts should not only identify the disease, but also the symptoms thereof and how the behavior of the defendant was affected by his illness.44 Thus evidence that his action was or was not a product would be particularized in each case. It would, of course, be hard to make a product showing45; however, in those cases where such a showing is made, there is no rea*374son to hold the defendant criminally responsible.
The test I am proposing is not novel. In our own jurisdiction Judge Tim Murphy of the District of Columbia Court of General Sessions formulated just such a test in the case of an alcoholic charged with disorderly conduct:
“ * * * [l]f the defendant can show that he is a chronic alcoholic and was intoxicated at the time of the offense, he will still have to show that his conduct at the time of the offense was involuntary. The crux here is his degree of self-control, awareness. * * * [I] f he was so drunk that he had lost control * * * of his actions, he should be found not guilty.”46
I think that in future cases chronic alcoholics should be allowed to attempt such a showing.
. See, e. g., 4 W. Blackstone, Comment aries 20-21 (1854). Burdick has summed up this requirement:
“In addition to an act, a mental element, variously called ‘the will,’ ‘the intent,’ ‘the evil intent,’ ‘the guilty mind,’ and ‘the criminal intent,’ is necessary to constitute a crime. This is an inherent requirement of justice, since to punish one for an act for which he was in no way mentally responsible would be a denial of all justice. Consequently, in every crime there must be a mental element, that is, such a state or condition of mind that makes the doer of a criminal act responsible for that act and, therefore, liable to punishment.
“ ‘There must be,’ says Blackstone, ‘both a will and an act’; and Hale has stated that ‘where there is no will to commit an offense, there can be no transgression.’ Bishop has also said that ‘there can be no crime great or small without an evil mind.’
“Mr. Justice Holmes has remarked that ‘an act imports intention in a certain sense. It is a muscular contraction and something more. A spasm is not an act. The contraction of the muscles must be willed.’ * * * ”
1. W. Burdick, The Law of Crime § 110 (1946). (Footnote omitted.)
. G. Williams, Criminal Law 484-485 (2d ed.1961, The General Part) :
“In the type of case just considered, where the defendant has attacked another during sleep, there is generally *365no doubt that he is not responsible in law, and the only question relates to the form of the verdict and the consequent disposition of the defendant. It is otherwise where the defence of automatism is raised in relation to the ordinary affairs of waking life. Persons charged with crime — even such an offence as shoplifting — sometimes say that they do not know why they did it, but had a black-out at the time. This is too easy a line of defence to be acceptable to a court in the absence of convincing medical evidence. Nevertheless, it is a perfectly possible defence if adequately supported. Thus where a sufferer from diabetes took an overdose of insulin and another drug, which induced in him a kind of a dream-state, this evidence was held by the Court of Criminal Appeal to be capable of amounting to a defence to a charge of shopbreaking. * * *”
(Footnotes omitted.)
. See, e.g., 4 W. Blackstone, supra. Note 1, 27-32; Gillars v. United States, 87 U.S.App.D.C. 16, 30, 182 F.2d 962, 976 (1950).
. 1 J. Bishop, Criminal Law § 405 (9th ed.1923). Voluntary intoxication, on the other hand, was considered as “an aggravation of the offense, rather than as an excuse for any criminal misbehavior.” 4 W. Blackstone, supra Note 1, 26. Even the most moralistic courts, however, have recognized that long term drinking may sometimes relieve a person of criminal responsibility if it induces a “fixed frenzy”:
“ * * * A drunkard is a voluntary demon, and his intoxication gives him no privilege. If, however, an habitual or fixed frenzy is produced by this practice, though such madness is contracted by the vice and will of the party, it places the man in the same conditon as if it were contracted, at first, involuntarily. * * * ”
United States v. Forbes, E.D.Pa., 25 Fed.Cas. pp. 1141, 1142-1143 (No. 15,129) (1845). In one case the curious result was reached that, although a chronic drinker could not claim insanity if he committed a crime in an intoxicated state, he could raise the defense if his insane state was the result of severe withdrawal symptoms caused by stopping his drinking. United States v. Drew, D. Mass., 25 Fed.Cas. p. 913 (No. 14,993) (1828).
In the now famous case of State v. Pike, N.H.Sup.Jud.Ct. 49 N.H. 399 (1869), the trial court had instructed the jury:
“ * * * ‘that whether there is such a mental disease as dipsomania, and whether the defendant had that disease, and whether the killing of Brown was the product of such disease, were questions of fact for the jury.’ ”
49 N.H. at 407-408. In a general discussion of criminal responsibility, the court stated:
“ * * * When disease is the propelling, uncontrollable power, the man is as innocent as the weapon, — the mental and moral elements are as guiltless as the material. If his mental, moral, and bodily strength is subjugated and pressed to an involuntary service, it is immaterial whether it is done by his disease, or by another man, or a brute or any physical force of art or nature set in operation without fault on his part. * * * ”
49 N.H. at 441.
. Regina v. Oxford, 173 Eng.Rep. 941, 950 (1840) (Lord Denman). This jurisdiction has dealt extensively with this area. Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967); McDonald v. United States, 114 U.S.App.D.C.120, 312 F.2d 847 (1962) (en banc); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954).
. This opinion discusses the disease of chronic alcoholism. It in no way alters the status of the law on voluntary intoxication. Voluntary intoxication is not a defense to a crime of general intent (as noted supra Note 4, it has been considered as an aggravation of the offense). For crimes of specific intent, voluntary intoxication can be a defense if the defendant can show that he was so drunk at the time of the crime he could not have formulated the necessary intent. See Parker v. United States, 123 U.S.App.D.C. 343, 359 F.2d 1009 (1966).
. This approach is a recognition that notions of criminal responsibility, free will, disease, and moral culpability are community beliefs, subject to evolution and change in light of scientific advances or exposure to particular problems.
. The safety of society is not ignored by such an approach. One of the operative factors which must be present before the defense of disease is applied to a class of behavior is the existence of treatment methods and facilities. Analogously to the mental illness area, no promise of complete cures in every case is needed. Reasonable estimates that the facilities can be effective should suffice.
On the other hand, in order to protect the individual from “over-protective” custodial care for the rest of his life, some limitations on his treatment might be imposed. For example, the maximum length of time for commitment to a treatment facility might be the maximum term for the crime with which he was charged. Further, treatment—not just custodial warehousing—would be required. Cf. Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1967). And, since no element of mental disease is necessarily involved, it would be open to the defendant not to raise the defense of disease, opting instead for the criminal sanction route. The trial judge should, if it appears to him that a defendant might be suffering from alcoholism, inform the defendant of his right to raise the disease as a defense.
. Quoted in U. S. Department op Health, Education and Welfare, Alcohol and Alcoholism 6 (1968).
. T. Plaut, Alcohol Problems 39 (1967).
. See, e.g., American Psychiatric Association, Clinical Research in Alcoholism Ch. II, III, VII, VIII, IX (Cole ed.1968); O. Diethelm, Etiology of Chronic Alcoholism (1955); D. Pittman & C. Snyder (eel.), Society, Culture and Drinking Patterns (1962); T. Plaut, sttpra Note 10, 37-52 ; Alcohol and Alcoholism, supra Note 9, Ch. V, VI, VII; Zwerling & Rosenbaum, Alcoholic Addiction and Personalty, 1 American Handbook of Psychiatry 623 (1959).
. E. Jellinek, The Disease Concept of Alcoholism (1960).
. Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959).
. T. Plaut, supra Note 10, 45.
. Mendelson, The National Center for Prevention and Control of Alcoholism, NIMH, Clinical Research in Alcoholism, supra Note 11,174.
. Quoted in Zwerling & Rosenbaum, supra Note 11, 624.
. See, e.g., Barton, Deficits in the Treatment of Alcoholism and Recommendations for Correction, Alcoholism and Psychiatric Emergency Services 1679-1685 (1968); Blane, Trends in the Prevention of Alcoholism, Clinical Research in Alcoholism, supra Note 11, 1-9; Hill & Blane, Evaluation of Psychotherapy with Alcoholics, 28 Quart. J. of Studies on Alcohol 76-104 (1967); T. Plaut, supra Note 10, 53-54.
. Zwerling & Rosenbaum, supra Note 11, 641; Alcohol and Alcoholism, supra Note 9, 33.
. Curtis, Group Therapy with Alcoholics, Clinical Research in Alcoholism, supra Note 11, Ch. V.
. Alcohol and Alcoholism, supra Note 9, 33.
. T. Plaut, supra Note 10, 69.
. “A most valuable adjunct to therapy.” Zwerling & Rosenbaum, supra Note 11, 642. “The Unique Role of Alcoholics Anonymous.” T. Plaut, supra Note 10, 62. Alcohol and Alcoholism, supra Note 9, 35.
. Alcohol and Alcoholism, supra Note 9, 37-38.
. Chafetz, Research in the Alcohol Clinic and Around-the-Clock Psychiatric Service of the Massachusetts General Hospital, Alcoholism and Psychiatric Emergency Services, supra Note 17, 1674-1678.
. T. Plaut, supra Note 10, 81.
. Id., 02-64.
. Ibid.; Chafetz, supra Note 24.
. T. Plaut, Some Major Issues in Developing Community Services for Persons with Drinking Problems 9 (1966).
. Alcohol and Alcoholism, supra Note 9, 48.
. Driver v. Hinnant, 4 Cir., 356 F.2d 761 (1966); Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966) (en banc).
. The 13 favorable law review notes were: 8 Ariz.L.Rev. 351 (1967); 33 Brooklyn L.Rev. 324 (1967); 52 Cornell L. Q. 470 (1967); 1966 Duke L.J. 545 (1966); 54 Geo.L.J. 1422 (1966); 4 Houston L.Rev. 276 (1966); 55 Ky.L.J. 201 (1966); 27 La.L.Rev. 340 (1967); 12 S.D.L.Rev. 142 (1967); 41 Tul.L. Rev. 140 (1966); 1966 U.Ill.L.F. 767 (1966); 11 Vill.L.Rev. 861 (1966); and 23 Wash. & Lee L.Rev. 402 (1966). The seven other notes were: 20 Ark.L. Rev. 365 (1967); 16 DePaul L.Rev. 493 (1967); 13 How.L.J. 203 (1967); 44 N.C.L.Rev. 818 (1966); 22 Rutgers L. Rev. 103 (1967); 7 W. & M.L.Rev. 394 (1966); and 12 Wayne L.Rev. 879 (1966).
. Note, 27 La.L.Rev. 340, 342-343 (1967).
. Hutt, The Recent Court Decisions on Alcoholism: A Challenge to the North American Judges Association and Its Members, President’s Commission on Law Enforcement and Administration of Justice, Task Force on Drunkenness (hereafter President’s Commission), Appendix H, 109-119 (1967); Hutt & Merrill, Is the Alcoholic Immune from Criminal Prosecution?, 6 Mun.Ct.Rev. 5 (1966); Murtagh, Arrests for Public Intoxication, 35 Fordham L.Rev. 1 (1966); Slovenko, Alcoholism and the Criminal Law, 6 Washburn L.J. 269 (1967); Kirbens, Chronic Alcohol Addiction and Criminal Responsibility, 54 A.B.A.J. 877 (1968).
. Hutt, supra Note 33, 118-119.
. 24 D.C.Code §§ 501-514 (1967) (enacted 61 Stat. 744 (1947)).
. 24 D.C.Code § 501 (1967).
. The state laws are (years cited are the years the laws were enacted) :
Ala.Code Tit. 55 § 373(11) (1959).
Alaska Stat. § 47.30.470 (1966).
Ark.Stat.Ann. §§ 83-701-717 (1955).
Cal.Health & Safety Code § 427-427.13 (1965).
Conn.Gen.Stat.Ann. § 17-155a-j (1961).
Fla.Stat. § 396.011-.121 (1953).
Ga.Code Ann. §§ 88-401-412 (1964).
Idaho Code Ann. §§ 67-3108-3120 (1965).
Ill.Rev.Stat. ch. 34 § 429.16 (1967), ch. 91% § 100-10 (1961).
Ind.Ann.Stat. §§ 22-1501-1513 (1957).
Iowa Code § 123A.1.8 (1961).
Kan.Stat.Ann. §§ 74-4401-4413 (1953).
Ky.Rev.Stat. § 222.020.195 (1960).
La.Rev.Stat. § 40-2008-8.3 (1958).
Me.Rev.Stat.Ann. Tit. 22 §§ 1351-1355 (1954).
Md.Ann.Code art. 20 §§ 1-4 (1960).
Mass.Gen.Laws § 123.80 (1962).
Mich.Stat.Ann. § 330.18 (1949), § 436.-47a (1951).
Minn.Stat. § 144.81-.84 (1957), § 144.-831-.834 (1967), § 253A.03, .07 (1967).
Neb.Rev.Stat. §§ 83-157-169 (1967), § 83-307.01-03 (1951).
Nev.Rev.Stat. § 433.250-.290 (1967).
N.H.Rev.Stat.Ann. § 172.1-.14 (1947, 1967).
N.J.Rev.Stat. §§ 26:2B-1-6 (1948).
N.M.Stat.Ann. §§ 46-12-1-13 (1949), § 46-12.7 (1967).
N.Y.Mental Hygiene Law §§ 301-309 (1965).
N.C.Gen.Stat. § 122.7.1 (1961), §§ 122.35.13-.17 (1967), § 122.65.6-.9 (1967).
N.D.Cent.Code §§ 23-17.1-01-07 (1965), § 54-01-19, subd. 4 (1953), §§ 54-38-01-09 (1965).
Ohio Rev.Code § 3701.141 (1959).
Okla.Stat. Tit. 630 §§ 2101-2108 (1968) .
Ore.Rev.Stat. §§ 430.020, .080-.100 (1961).
Pa.Stat. Tit. 50 §§ 2101-2113 (1953).
R. I.Gen.Laws Ann. § 11-45-1 (1962), §§ 40-12-1-23 (1951).
S.C.Code Ann. §§ 32-895-904 (1967).
S.D.Sess.Laws 1967, ch. 127, 281 (March 14, 1967).
Tenn.Code Ann. §§ 33-801-811 (1963).
Tex.Rev.Civ.Stat. art. 5561c (1953, 1967).
Utah Code Ann. §§ 55-13-1-7 (1957, 1967).
Vt.Stat.Ann. Tit. 18 §§ 8401-8462 (1967).
Va.Code Ann. § 18.1-200.1 (1966), § 32.378.1-.4 (1966).
Wash.Rev.Code §§ 70.96.010-.900 (1957, 1965).
W.Va.Code Ann. § 27-6-1-5 (1965).
Wis.Stat. § 51.09 (1935, 1963), § 51.25 (1963).
. Md.Code Article 2C § 1 (1960).
. These states are: Arkansas, Connecticut, Georgia, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, West Virginia and Wisconsin. For code cites, see Note 37.
In addition, three other states provide for the commitment of alcoholics: Miss. Code Ann. §§ 436-01-12 (1950); Mont. Rev.Code Ann. §§ 38-701-711 (1911); and Wyo.Stat.Ann. § 25-32 (1899).
Hawaii is not included in the compilations of state laws in Notes 37 and 39; the Hawaii code was unavailable at the time this was written.
. Quoted in President's Commission, supra Note 33, 22.
. Durham v. United States, supra Note 5, 94 U.S.App.D.C. at 240, 214 F.2d at 874.
. Those cases do, however, shed light on this area in their discussions of disease as negating criminal responsibility. Driver, 350 F.2d at 764:
“Although his misdoing objectively comprises the jdiysical elements of a crime, nevertheless no crime has been perpetrated because the conduct was neither actuated by an evil intent nor accompanied with a consciousness of wrongdoing, indispensable ingredients of a crime. * * * Nor can his misbehavior be penalized as a transgression of a police regulation — malum prohibitum — necessitating no intent to do what it punishes. The alcoholic’s presence in public is not his act, for he did not will it. It may be likened to tlie movements of an imbecile or a person in a delirium of a fever. * * * ”
Easter, 124 U.S.App.D.C. at 35, 361 F.2d at 52:
“ * * * An essential element of criminal responsibility is the ability to avoid the conduct specified in the definition of the crime. Action within the definition is not enough. To be guilty of the crime a person must engage responsibly in the action. Thus, an insane person who does the act is not guilty of the crime. The law, in such a case based on morals, absolves him of criminal responsibility. So, too, in case of an infant. * * * ”
. Under the civil commitment statute, 21 D.C.Code §§ 501-591 (1967), persons suffering from mental illness can be com*373mitted. Mental illness is defined as “a psychosis or other disease which substantially impairs the mental health of a person.” 21 D.C.Code § 501. Under this definition, for jmrposes of commitment, I think that an alcoholic would come within the statute and could be civilly committed if dangerous to himself or others.
Commitment of alcoholics under this statute is separate from the provisions of 24 D.C.Code § 501 et seq., as amended in August 1968 (Alcoholic Rehabilitation Act of 1967, Public Law 90-452, 90th Congress). Those sections provide for civil commitment of alcoholics for a period of up to 30 days, or in repeated cases up to 90 days. In addition that Act provides for commitment in lieu of prosecution for misdemeanants who prior to trial choose to be committed to a treatment center. This commitment cannot exceed the maximum term of imprisonment for the misdemeanor charged.
This opinion is intended to cover only those situations where the Alcoholic Rehabilitation Act does not apply. Thus the opinion is intended to apply to defendants charged with committing a felony. However, I note that under § 7(b) (2) of that Act, the Act does not apply to misdemeanants unless there are available “adequate and appropriate treatment” facilities. In a case where the Act is held inapplicable for such a reason, this opinion would apply.
I wish to make clear that declaring alcoholism a mental illness within the terms of the commitment statute in no way indicates that it is a mental illness within the terms of the insanity defense. Indeed, this opinion has stressed that alcoholics should be relieved of criminal responsibility where their actions were produced by their disease, not because the disease is a mental illness, but simply because, mental or physical or both, it is a disease.
Commitment would not be automatic; as with mental illness, there would need to be an independent hearing. See Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
. As noted above, there is no medical agreement on an exact definition of alcoholism. Some definitions emphasize the excessive drinking and the socially debilitating aspects of the disease, others the compulsive nature of the drinking. In this area, as with mental illness:
“ * * * [S]ince the question of whether the defendant has a disease or defect is ultimately for the triers of fact, obviously its resolution cannot be controlled by expert opinion. * * * ”
McDonald v. United States, supra Note 5, 114 U.S.App.D.C. at 124, 312 F.2d at 851.
In McDonald the court gave a legal definition of insanity which the jury was to apply. In this area as well, a McDonald approach should be our guide. However, that case was not decided until the courts had had eight years of experience with the Durham rule. At this juncture it seems best to wait until the trial courts and juries have some experience with expert testimony on the nature of alcoholism before fashioning a judicial definition of the disease.
. The test for “product” in the insanity area was stated in Carter v. United States, 102 U.S.App.D.C. 227, 236, 252 F.2d 608, 617 (1957):
“ * * * [T]he facts concerning the disease and the facts concerning the act are such as to justify reasonably the conclusion that ‘But for this disease the act would not have been committed.’ ”
The dissenters in Powell v. State of Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), who would have held it unconstitutional to punish public drunkenness, assumed that such a showing would not arise for other acts:
“It is not foreseeable that findings such as those which are decisive here— namely that the defendant’s being intoxicated in public was a part of the pattern of his disease and due to a compulsion symptomatic of that disease — could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct and do not typically flow from and are not part of the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the *374disease as it afflicts him, nothing herein would prevent his punishment.”
392 U.S. at 559 n. 2, 88 S.Ct. at 2167 (dissenting opinion of Mr. Justice Fortas). These Justices would seem to be open, however, to a showing that some act was a “characteristic and involuntary part of the pattern of the disease as it afflicts” the defendant.
The Powell dissenters’ assumption, however, may not be so clear. For a discussion of the relationship between alcohol and criminal behavior, see Slovenko, supra Note 33; Pittman, Public Intoxication and the Alcoholic Offender in American Society, Pbesident’s Commission, supra Note 33, 13.
. District of Columbia v. Phillips, Criminal Nos. DC 854-55-67 (unreported), reprinted in 113 Cong.Rec. H5584 (May 16, 1968, daily ed.), at H5587.