concurring.
I agree with the result reached by the court, but cannot subscribe to the court’s reasoning regarding the “cruel and unusual punishment” and “right to rehabilitation” claims. As far as Alaska law is eon-cerned, the genesis of both claims is art. I, § 12 of the Alaska Constitution. Both Goodlataw and this court fail to distinguish between the separate commands embodied in art. I, § 12. The result is flawed analysis which cannot provide guidance for future actors, be they agency administrators or private litigants. Rather, it can only lead to confusion.
The problem begins with the court’s discussion of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). That case requires that a prisoner demonstrate his keepers’ “deliberate indifference” to serious medical needs in order to make out a violation of the Eighth Amendment prohibition against cruel and unusual punishment.1 429 U.S. at 104, 97 S.Ct. at 291, 50 L.Ed.2d at 260. The court explains that “Estelle was based on the principle that prison officials should care for those who, because of imprisonment, cannot care for themselves.” Opinion at 1193. The court goes on to say that the prohibition against cruel and unusual punishment, as it relates to brief detainees, requires only “protective” steps rather than rehabilitative measures. Opinion at 1193-1194. At this point the court errs in its analysis because it interweaves two principles that are textually and conceptually distinct in Alaska’s Constitution. Art. I, § 12 provides:
Excessive Punishment. Excessive bail shall not be required, nor excessive fines imposed, nor [1] cruel and unusual punishments inflicted. Penal administration shall be based on the [2] principle of reformation and upon the need for protecting the public.
The mixing of apples and oranges, to use an outworn phrase, is confirmed when the court sums up its remarks on the constitutional right to treatment by stating: “We also find that the Department of Health *1197and Social Services was not deliberately indifferent to Goodlataw’s medical needs when it failed to institute alcoholism rehabilitative treatment during the hours of his imprisonment.” Opinion at 1194 (emphasis added). Why was the Department not deliberately indifferent to Goodlataw’s medical needs? We are instructed, in so many words, that the Department could not have instituted an effective alcohol rehabilitation program in the short time span Goodlataw was in custody. Id. This is, of course, undeniable and Goodlataw nowhere suggests that the Department could have done so. The problem with the conclusion lies in its misapplication of principles: .“deliberate indifference” is not a test to determine whether a right to rehabilitation exists; it is solely a test to determine whether cruel and unusual punishment has been inflicted.
We further learn from the court’s opinion that the state’s duty to provide rehabilitative treatment arises from the fact that a prisoner is not at liberty to obtain treatment himself. Opinion at 1193. This is certainly not the same as a duty arising to “make the constitutional right to reformation a reality....” Abraham v. State, 585 P.2d 526, 533 (Alaska 1978). In Abraham, the court was careful to keep separate the constitutional prohibition against cruel and unusual punishment and requirement that penal administration be based in part on reformation. In that case, the court sustained Abraham’s right to rehabilitation, particularly with respect to alcohol consumption, in order to realize his right to reformation. On the facts, however, his cruel and unusual punishment claim was rejected.2
It is true that Gamble and Abraham were incarcerated. No authority is cited, however, for the proposition that reformation, i.e., rehabilitation, of the offender ends at the prison gates. The court expresses concern over state intrusion into the lives of brief detainees, and costs incurred if the state has to “cure” all of them. Opinion at 1194. I cannot find any estimate of costs in the record. As for intrusion, some “brief detainees,” those who are quickly released on posted bail or their own recognizance, face years of state intrusion into their lives in the form of probation. I suggest that probation and parole, supervised by and large by employees of the Department, are directed at rehabilitating a criminal defendant to the same extent as providing a deféndant with rehabilitation programs within the confines of a “correctional” institution.
The two questions which someday may be properly before this court, supported by an adequate record, are (1) whether the Department may permit someone committed to its custody to go off into the woods to a predictable and certain death, and (2) whether the right to rehabilitation is one of constitutional dimension afforded to all those whose freedom is restricted by probation and parole releases, or simply one of convenience so that we can say we did something for prisoners. In my view, neither of these issues is properly before this court in this case, and by answering them without an adequate record and briefing we err.
Alvin Goodlataw had a brief sojourn in the state’s custody. His custody was committed to the Department on December 13, 1976, but Magistrate Sprecker, on February 5, 1977, deferred further implementation of the sentence and permitted Goodla-taw to go off to the horse camp alone and unattended. From that point until the sentence and judgment were to be reinstated, Goodlataw was quite effectively removed from the Department’s custody and responsibility.3 I conclude that the Department *1198owed Goodlataw no duty during that interlude, or if it did, that there is no showing that any breach of duty proximately caused Alvin Goodlataw's death.4
In other respects I agree with the court’s decision.
. U.S. Const, amend. VIII provides:
Bails, fines and punishments. Excessive bails shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
. Abraham, a Yupik Eskimo, was sentenced to five years in prison, four suspended, for beating his wife to death while drunk. Imposition of the sentence required his removal from the Be-thel community and Abraham claimed he would be deprived of his natural diet and isolated because he spoke only the Eskimo Yupik language. The court found nothing cruel nor unusual in the sentence.
. I can find no evidence in the record that the Department of Health and Social Services was ever notified that Alvin Goodlataw had been committed to' its custody. Craig Anderson was *1198an employee of the Copper River Native Association, publicly funded in part, but privately operated nonetheless.
. Goodlataw does not claim that the Department was remiss in not seeking to have Magistrate Sprecker overrule himself and order Goodla-taw’s immediate return.