Although I concur with much of the discussion in the lead opinion, I write separately to stress the inherent limitations of such a solution. Despite its recognition that criminal processing of public inebriates is dehabilitative, dehumanizing and wholly ineffective, the court fails to order relief to remedy the widespread constitutional violations that permeate the present system.
Every day, individuals are rounded up and crowded into unsanitary facilities, forced to experience the dangerous initial stages of withdrawal with little or no medical attention, and then released. The greater the disease, the more often they are arrested, the more often their constitutional rights are violated, and the more often they are subjected to cruel and inhuman conditions. Treatment of the public inebriate in our criminal justice system *1141evidences the extent to which courts and law enforcement agencies will sacrifice proper legal procedures in the interests of expediency.
Violations of Penal Code section 647, subdivision (f) alone account for over 30 percent of all misdemeanor arrests effected by the Los Angeles Police Department (LAPD) within the City of Los Angeles.1 Although a violation of section 647(f) is the highest volume nontraffic crime for which persons are arrested in Los Angeles City and County, virtually none of these arrests result in trials or convictions.2 In order to fully comprehend how such a unique system developed, we must examine the specialized processing methods utilized by the state to deal with the thousands of arrests made each year.3
The typical arrest for public drunkenness begins in the skid row area of downtown Los Angeles.4 An LAPD footbeat officer circulates in his designated area equipped with a pad of “Short Form Arrest Reports.” When an officer finds a person who is apparently unable to care for himself due to his intoxicated condition, a report is filled out. The report consists of physical data identifying the arrestee and a number of boxes to check indicating the presence of certain indicia of intoxication, such as staggering gait, slurred speech, bloodshot eyes.
In the narrative section of the report, the officer enters a short conclusionary statement which invariably reads; “Defendant observed drunk in public unable to care for himself.” The names of civilian or law enforcement witnesses are not entered and no attempt is made to preserve circumstantial physical evidence of the alleged violation.
Moreover, unlike the standard arrest procedures employed for other high-volume offenses such as driving under the influence of alcohol (Veh. Code, *1142§ 23152), the officer making a section 647(f) arrest does not administer a field sobriety examination or any chemical test for blood/alcohol content. In fact, little investigation, if any, is undertaken by the arresting officer to support his initial impression that the individual is intoxicated. No effort is made to determine if the behavior exhibited by the impaired arrestee is due to illness, fatigue, or medication.5
After the arrest, the officer summons a B-wagon to transport the prisoner to the Parker Center jail. B-wagons are vans with windowless, enclosed prisoner compartments and wooden benches. Arrestees may be confined in the B-wagon as long as an hour6 during transit and there are no toilet facilities. The van is frequently filled beyond reasonable capacity and there is no direct supervision in the prisoner compartment. As a result, prisoners urinate and vomit on the floor (or upon one another if any are unconscious), and fights, thefts, and injuries are commonplace. Even those individuals who were unconscious or semicomatose when arrested are transported in this fashion.
After the arrestee is processed through booking, he is placed in an overcrowded concrete “drunk tank” to await arraignment. No benches, beds, or bedding are provided (although these are available to all other misdemeanor arrestees). Each prisoner must either sit on the floor or stand. There is one toilet for approximately 40 arrestees and no shower. Nutrition is medically insufficient. Two $0.67 meals are served per day, one at 4:30 a.m. and one at 4:30 p.m. A prisoner may, therefore, be in jail for nearly 12 hours before being fed.
Throughout the prearraignment period, section 647(f) arrestees receive no medical screening or monitoring despite the fact that the initial stages of withdrawal occur quite often during that time. Convulsions, seizures, severe nausea and other serious concomitants of withdrawal are not uncommon. Even those prisoners who arrive at the jail unconscious or semicomatose do not receive medical attention. As a result, inebriates have occasionally been found dead during the hourly tank checks made by jail personnel.
At this point in the processing, there are several alternatives available to the arresting authorities. The arrestee may be: (1) released on bail or his own recognizance; (2) referred to a civil detoxification center; (3) released *1143without prosecution pursuant to section 849, subdivision (b)(2) (hereafter section 849(b)(2)); or (4) held for an appearance in municipal court.
The majority of section 647(f) arrestees processed in the Parker Center jail do not qualify for “own recognizance” (OR) release and cannot afford bail.7 Of the small number who do post bail, most do not appear at the next scheduled court hearing. In such cases, the court generally declares a “bail forfeiture” and the matter is closed. Bench warrants for the arrest of defendants who fail to appear are rarely issued.
There are two statutory alternatives to criminal processing for those section 647(f) arrestees who are unable to post bail or obtain OR release. First, as noted above, the police may refer the inebriate to a civil detoxification center pursuant to section 647, subdivision (ff).8 However, since there is only one designated facility in Los Angeles County, space is severely limited. On average, the facility can accept only about 13 referrals per day, leaving approximately 145 city arrestees with little hope of treatment.
These statistics clearly demonstrate that the time and locale of the arrest determine whether any particular individual receives a referral. The facility is generally filled to capacity with referrals from the LAPD. As a result, in 1975 and 1976 there were no section 647(ff) referrals from any other place in Los Angeles County despite the fact that the Los Angeles Sheriff’s Department made over 20,000 section 647(f) arrests in those 2 years.
The second section 647(f) processing alternative is a prearraignment release (commonly referred to as a “kickout”) when “no further proceedings are desirable” pursuant to section 849(b)(2).9 Until the eve of trial, discretionary release under section 849(b)(2) was utilized by the LAPD only when the drunk tanks became so full that “kickouts” were necessary to relieve the overcrowding.10 During weekends and holidays when the courts *1144are closed and arraignments unavailable, the time and order of booking, rather than the particular detainee’s condition or arrest record, are the sole indicia used to determine whether an individual will be freed or held for arraignment.
Those arrestees who cannot stay in the overcrowded tank11 are transported to the metropolitan arraignment court and confined pending their appearance. Holding tanks at the arraignment court have unpadded concrete floors, walls, and unpadded wooden benches. Prior to the filing of this action, the tanks were extremely crowded with little, if any, medical attention provided. Section 647(f) prisoners frequently exhibit withdrawal symptoms during this time, and are often still intoxicated, tremulous, and convulsive when brought before the magistrate.12
At the beginning of the arraignment proceedings, the magistrate admonishes the group of arrestees en masse of their constitutional rights. During the admonitions, municipal court judges and commissioners consistently fail to explain the nature and elements of the offense, to take individual, express waivers of constitutional rights, and to determine whether there is a factual basis for guilty pleas. No notice of the defendants’ right to move for a hearing on probable cause is provided. Since the majority of section 647(f) defendants are arraigned without counsel, these procedures are rarely challenged.
The trial court concluded that there has been a “wholesale, almost universal, denial” of the due process right to a proper arraignment. The following example of the type of arraignments that took place in the municipal court illustrates how ludicrous the proceedings often were:
“[The Court:] Judith Tyronne. How do you plead?
“Ms. Tyronne: Yes.
“The Court: I didn’t hear you. Do you understand?
“Ms. Tyronne: No, May—
“The Court: I can’t hear you. How do you plead to the charge that you [were] intoxicated in public?
*1145“Ms. Tyronne: Yes.
“The Court: What? Are you pleading guilty or not guilty?
“Ms. Tyronne: Yes.
“The Court: What? Are you pleading guilty or not guilty?
“Ms. Tyronne: No.
“The Court: Which?
“Ms. Tyronne: No.
“The Court: I will have to have somebody talk to her closer.
“[Unidentified Person]: She wants to go ahead and plead guilty, your Honor. I have been talking to her.
“The Court: All right. She has been in for several days already. It is $50 or two days suspended. Since you have already done several days it will be suspended.”
As noted, virtually all section 647(f) filings result in final dispositions without trial. This aberration13 is primarily accounted for by the discrepancy between jail sentences imposed upon defendants who plead guilty at arraignment and those who remain in custody awaiting trial. At the time this action was filed, the average time served before arraignment ranged from two to eight days. At arraignment, the municipal court almost invariably accepted a plea of “guilty” for a sentence of “time served.” By contrast, trial dates for in-custody defendants pleading “not guilty” were set between 21 and 25 days after the date of arraignment. With the certainty that this time will be spent in custody, there is little incentive to proceed to trial.14
Another factor contributing to the absence of trials in section 647(f) cases are dismissals ordered by the city attorney pursuant to section 1385 at the
*1146time set for trial.15 Scheduled trials are dismissed primarily because no evidence of the alleged violation has been preserved, and the arresting officer is unable to independently recall any specific details regarding the circumstances of the arrest. Thus, despite the fact that the defendant has served 20 to 30 days waiting to prove his innocence at trial, the case is dismissed because the state is unable to proceed to trial.16
The arrest records of the three named plaintiffs in this action reveal how the right to trial for section 647(f) cases has been abrogated. From 1965 to 1975, plaintiff Robert Sundance was arrested for this offense approximately 176 times and was incarcerated at least 1,470 days, about four years. During the same period, plaintiff Charles Majors was arrested 288 times and was held in custody for over 2,646 days, or about seven years, and plaintiff John Youngblood was arrested 181 times and incarcerated 1,965 days, approximately five years.
These histories vividly demonstrate how the procedures utilized in section 647(f) cases wreak havoc with our notions of due process. “Efficient” police practices routinely lead to the prosecution’s inability to meet any standard of proof at trial. Trials are soon dispensed with, and punishment is routinely inflicted without trials.17 Those arrested never have the opportunity to put the state to its proof, and the entire process from investigation to release is completely shielded from judicial review. In these proceedings the system is turned on its head and those “presumed innocent” serve from three to five times more jail time futilely awaiting trials than those who plead guilty at arraignment.
After an eight-week trial, the trial court issued a memorandum opinion which declared that the “investigative, accusatorial, prosecuting, and judicial policies, practices, and procedures involved in the handling of section 647(f) cases” constituted a “widespread denial of due process of law.” Accordingly, declaratory relief was granted. The court ruled that: (1) trials must be set within five days of arraignment; (2) the elements of the offense *1147must be explained to section 647(f) arrestees; (3) express and individual waivers of constitutional rights must be taken on guilty pleas at arraignment; (4) defendants must be informed of their right to a hearing on probable cause; and (5) arrest procedures must meet current due process standards. Injunctive relief was granted only against the city defendants. They were required to provide beds to section 647(f) arrestees, improve transportation conditions, nutrition, and medical monitoring, and administer blood/alcohol tests when requested by medical personnel or when prosecution was contemplated.
The relief granted by the trial court remedies many of the systemic due process violations that pervade the prosecution and hearing of section 647(f) cases. However, these measures are of little benefit to section 647(f) detainees when the section 849(b)(2) procedure continues unabated. Individuals are still arrested, forced to experience the initial stages of withdrawal without medical supervision, and then released. Since there is no formal arraignment, the entire process is insulated from judicial review.
As the trial court noted in its findings regarding the nature and treatment of the disease of alcoholism (see maj. opn. at pp. 1114-1115), the penal system “has no positive effect on rehabilitating alcoholics” and cannot alleviate the continuing compulsion to drink. In fact, the trial court found that the consensus among medical experts is that criminal prosecution of public inebriates may actually perpetuate and exacerbate the underlying illness and the compulsion to drink.
According to the National Council on Alcoholism, “[Ajlcoholism is a chronic, progressive and potentially fatal disease. It is characterized by tolerance and physical dependency or pathologic organ changes, or both— all the direct or indirect consequences of the alcohol ingested.” As the trial court noted, medical authorities agree that the “loss of control” phenomenon is physiological.
The nature of the illness is such that an alcoholic facing the initial stages of withdrawal will do “anything” to avoid the symptoms that accompany that state. Moreover, once the alcoholic starts drinking, he is physiologically and psychologically unable to control the amount he ingests. The end result for a significant percentage of alcoholics is that they are unable to refrain from drinking to the point where they can no longer care for themselves.
Many of those who are physiologically and psychologically dependent on alcohol are also unable to refrain from appearing in public while intoxicated. Organic brain syndrome, a symptom of advanced alcoholism, may *1148impair judgment to the point where the individual cannot control his behavior. Others, who are indigent and homeless, may be relegated to drinking in public because there is no other place for them to go.
After considering the testimony of law enforcement personnel, the trial court concluded that “everyone involved in the criminal processing of 647(f) defendants, whether police officer, prosecutor, defense attorney, or judge ... act in accordance with their beliefs . . . which are, in general, that they are not dealing with a ‘real’ crime, but are protecting the inebriate from his own illness.” As a result, “police procedures are designed with an eye to the reality that repeated incarceration of defendants cannot lead to a cure and is necessary only to protect the defendant from himself .... Prosecutors have no desire to do anything but get the defendant enough time in jail to become properly fed, clothed, and sober . . . and hav[e] his urgent medical needs attended to.”
This conclusion is bolstered by the fact that the percentage of section 849(b)(2) “kickouts” rose to over 90 percent of the total section 647(f) arrests immediately after the promulgation of LAPD Special Order 23. In fact, the supplemental fact sheet issued with Special Order 23 stated that although “historically, public drunkenness has been treated as a crime . . ., increasing social awareness has resulted in . . . alternatives to criminal prosecution. . . . [However, since] the availability of detoxification center space is very limited . . ., this order expands the use of the [section 849(b)(2)] release procedure so that prosecution . . . will be sought only in exceptional circumstances.”
Despite the realization that the methodology used will not accomplish desired social objectives nor aid those individuals who are desperately in need of medical and psychological care, these egregious practices continue unabated. The remedies proposed by the trial court may provide some symptomatic relief, but they do not address the fundamental problem.
The root of the problem is easy to ascertain. Legislative formulations muddle the two justifications for involuntary confinement of individuals suffering from mental illness or substance addiction. For example, under the current statutory scheme, a chronic alcoholic can be detained if “he is unable to exercise care for his own safety or the safety of others . . . .” (§ 647(f).) However, section 647(ff) requires that an individual, who is detained because of public drunkenness, “be placed in civil protective custody” for evaluation and treatment. An analysis of the statutory directives and current law enforcement practices in the 647(f) context points out the inconsistency between these two most frequently noted rationales for in*1149voluntary confinement: (1) the provision of care and treatment for the individual and (2) the protection of society.
If the purpose of the commitment is not to punish but to aid the individual in his battle against an illness, then different procedures must be adopted. Under the present scheme, it is clear that there has been little consideration of the notion that confinement based on the need for care and treatment might implicate different rights and concerns from confinement predicated on the need for societal protection. The result is a confusion of statutory purpose in which law enforcement personnel and legislators adopt “treatment” language to approve procedural informality and alternately turn to the rationale of preventive detention when treatment is unavailable.
This type of rationalization perverts the system, frustrates those who are working to change it, and stigmatizes those who are forced to endure it. The case before this court provides a stark illustration. Under the benevolent rubric of care for the sick, procedural constraints are slackened or dropped, and the individual is confined in a situation that provides no treatment and many of the characteristics of preventive detention. The use of criminal processes, facilities, and sanctions are harmful, dehumanizing and dehabilitative. Prisoners are pushed through the revolving door of the criminal justice system again and again, only to suffer pointless, recurrent restraints on their personal liberty and the attendant pain of repeated forced withdrawal, without any hope or prospect of recovery.
Faced with a system which, contrary to public opinion, refuses to decriminalize public intoxication, the courts have no alternative but to ensure that the handling of section 647(f) cases meet all applicable due process standards. As the trial court here commented “[t]he law’s answer to the dilemma posed must be that if section 647(f) defendants are to be treated as criminals, all of the constitutional rights of criminal defendants must be respected, regardless of the social desirability of doing something else. If this makes no social sense, such must be brought to the legislators’ door
Isn’t it about time the Legislature addressed this long smoldering scandal? Can a civilized society call itself such if it allows these processes to continue unabated?
In the absence of legislative action, this court must address whether different procedures must be adopted if the purpose of the commitment is to aid the individual in his battle against an illness. Any solution to the problem of inconsistent rationales must begin with an effort on the part of both the courts and the Legislature to distinguish more clearly between the *1150need for individual treatment and the need for societal protection. Different mechanisms must be developed to channel society’s response to each.
“[Ijnvoluntary confinement of an individual for any reason, is a deprivation of liberty which the state cannot accomplish without due process of law.” (O’Connor v. Donaldson (1975) 422 U.S. 563, 580 [45 L.Ed.2d 396, 410, 95 S.Ct. 2486] (conc. opn. of Burger, C. J.); see Vitek v. Jones (1980) 445 U.S. 480, 491-492 [63 L.Ed.2d 552, 563-564, 100 S.Ct. 1254]; Addington v. Texas (1979) 441 U.S. 418, 425 [60 L.Ed.2d 323, 330, 99 S.Ct. 1804].) Whether the state purports to act pursuant to a parens patriae interest in promoting the welfare and providing care for those in need of treatment, or pursuant to its police power interest in protecting society, it may not curtail or deny Fourteenth Amendment substantive or procedural due process protections in exercising such powers. (Project Release v. Prevost (2d Cir. 1983) 722 F.2d 960, 971; see O’Connor, supra, 422 U.S. 563, 580 [45 L.Ed.2d at p. 410]; Specht v. Patterson (1967) 386 U.S. 605, 608 [18 L.Ed.2d 326, 329, 87 S.Ct. 1209].) No degree of illness or diminished capacity alone can serve to undermine the protections afforded an individual’s liberty interest in this area. (See, Project Release, supra, 722 F.2d 960, 971.)
Thus, if the state intends to confine someone solely for the protection of others, it must do so under statutes with clearly delineated standards and procedures which mirror those found in the criminal process.18 When the need for societal protection is not asserted and procedure is slighted nevertheless, only the provision of rehabilitative treatment for the person confined can justify detention. If confinement is undertaken for the purpose of providing care, then the absence of such treatment violates the individual’s due process entitlement.
As the United States Supreme Court commented when it addressed the issue of custodial confinement of the mentally ill: “there is still no consti*1151tutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom. ... [11] In short, a State cannot constitutionally confine without [treatment] a nondangerous individual who is capable of surviving safely in freedom by himself . . . .” (O’Connor, supra, 422 U.S. 563, 575-576 [45 L.Ed.2d 396, 407].)
In the present case, as noted above, not only are the procedures seriously deficient, but the belief is pervasive among law enforcement personnel that public drunkenness does not constitute a “real” crime. In fact, the design for the current procedures was based on the recognition that repeated incarceration could not realistically be considered a cure and, therefore, would serve only as a means of protecting the inebriate from his own illness.
Ironically, although the disease of alcoholism and its attendant manifestations are the justifications proffered for the form of preventive detention currently utilized by the LAPD, the illness and its acute medical complications are uniformly ignored once the inebriates are confined in the drunk tanks. Medical supervision is grossly insufficient and counseling is almost never provided. In addition, since meals are served only at 4:30 a.m. and 4:30 p.m., many detainees may be held for up to 12 hours without receiving any food at all. Perhaps the most inhumane facet of the section 849(b)(2) process is the fact that the detainees are frequently released at the most dangerous stage of the withdrawal process.19
As the record in this case more than adequately demonstrates, there is no meaningful opportunity for these individuals arrested under section 647(f) and released pursuant to section 849(b)(2) to contest the charge or otherwise be heard in any judicial forum. Accordingly, utilization of preventive detention and the section 849(b)(2) release procedure by the LAPD can be deemed to serve no other purpose than protective custody.
Moreover, section 647(ff) specifically mandates that public inebriates be placed in “civil protective custody” whenever possible. In light of this express purpose,20 those individuals who are confined under section 647(f), forced to undergo withdrawal, and then released several hours later, must *1152be provided with the same due process rights afforded individuals in the context of involuntary civil and quasi-criminal commitments.21
The existence of a constitutional right to care and treatment for persons involuntarily confined is no longer a novel proposition. The notion of a due process right to treatment was first advanced by Chief Judge Bazelon in Rouse v. Cameron (D.C.Cir. 1966) 373 F.2d 451. Although the decision was based on a District of Columbia statutory provision, Judge Bazelon suggested that involuntary institutionalization without “adequate treatment” involved a constitutional infringement of liberty. (Id., at p. 455.)
Since that decision, our courts have addressed at length the rights of individuals who have been involuntarily confined. In Wyatt v. Stickney (M.D.Ala. 1971) 325 F.Supp. 781, affirmed in part and remanded in part sub nom. Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305, Judge Bazelon’s dictum was applied and the court found a constitutional right to treatment for involuntarily committed mental patients. The Wyatt v. Stickney court held that confined patients “unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.” (Id., at p. 784.) Chief Judge Johnson then succinctly articulated the doctrinal basis for the newly recognized right: “[t]o deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process. ” (Id., at p. 785, italics added.)
The theory of a federal right to treatment rooted in the due process clause was fully developed in Donaldson v. O’Connor (5th Cir. 1974) 493 F.2d 507. In that case, the plaintiff had been involuntarily incarcerated in a state-owned-and-operated mental institution for nearly 15 years. Uncontradicted testimony indicated that he was not dangerous and could survive responsibly on his own or with the aid of others. During his incarceration, he received virtually no treatment. (Id., at pp. 510-511, 517.)
According to the Donaldson court, any intrusion on an individual’s freedom must be justified on the basis of a permissible governmental goal. Where the state’s purpose in committing an individual is to care for him, *1153treatment must be provided. (Id., at pp. 520-521; Jackson v. Indiana (1972) 406 U.S. 715 [32 L.Ed.2d 435, 92 S.Ct. 1845]; see Note, The Constitutional Right to Treatment Services for the Noncommitted Mentally Disabled (1980) 14 U.S.F. L.Rev. 675.) Absent such treatment, the nature of the commitment bears no relationship to its purpose and, therefore, violates the individual’s due process rights. (Donaldson, supra, 493 F.2d at p. 521.)
On review, the United States Supreme Court declined to rule expressly on the issue of the right to treatment. Instead, the court chose to focus on the liberty interest of the confined individual. It ruled that the state could not properly retain without treatment a nondangerous individual in its custodial care who had shown himself capable of surviving in freedom. (O’Connor v. Donaldson, supra, 422 U.S. at p. 576 [63 L.Ed.2d at p. 407].) In doing so, the court implicitly incorporated into the constitutional right of liberty many of the essential characteristics of the federal right to treatment. Shortly after its ruling in O’Connor, the Supreme Court denied certiorari in the case of Burnham v. Department of Public Health of the State of Georgia (5th Cir. 1974) 503 F.2d 1319, certiorari denied sub. nom. Department of Human Resources of Georgia v. Burnham (1975) 422 U.S. 1057 [45 L.Ed.2d 709, 95 S.Ct. 2680]. In Burnham, the Fifth Circuit relied on its earlier ruling in Donaldson to overrule a district court which had refused to recognize the constitutional right to treatment. (See Burnham v. Department of Pub. Health of State of Ga. (N.D. Ga. 1972) 349 F.Supp. 1335, 1341-1343.)
In the wake of these decisions, the overwhelming majority of federal courts have accepted and enforced the constitutional right to treatment. (Woe v. Cuomo (2d Cir. 1984) 729 F.2d 96, 104; United States ex rel. Schuster v. Herold (2d Cir. 1969) 410 F.2d 1071, 1087-1089, cert. den. 396 U.S. 847 [24 L.Ed.2d 96, 90 S.Ct. 81]; Harper v. Cserr (1st Cir. 1976) 544 F.2d 1121; Bowring v. Godwin (4th Cir. 1977) 551 F.2d 44, 48, fn. 3; Welsch v. Likins (8th Cir. 1977) 550 F.2d 1122, 1126, fn. 6; Doe v. Public Health Trust of Dade County (11th Cir. 1983) 696 F.2d 901, 902-903; Davis v. Watkins (N.D. Ohio 1974) 384 F.Supp. 1196, supplemented sub. nom. Davis v. Hubbard (N.D. Ohio 1980) 506 F.Supp. 915; Evans v. Washington (D.D.C. 1978) 459 F.Supp. 483, Ass’n for Retarded Citizens of North Dakota v. Olson (8th Cir. 1983) 713 F.2d 1384, 1392-1393; Scott v. Plante (3d Cir. 1981) 641 F.2d 117, vacated and remanded (1982) 458 U.S. 1101 [73 L.Ed.2d 1362, 102 S.Ct. 3474], original order affd. (3d Cir. 1982) 691 F.2d 634.)
Although O’Connor, supra, 422 U.S. 563 by its terms applied only to committees who are nondangerous and capable of surviving in freedom, subsequent federal cases have extended the right-to-treatment principle to *1154dependent and dangerous committees as well. (Flakes v. Percy (W.D. Wis. 1981) 511 F.Supp. 1325, 1337-1339 (convicted sexual offenders); Davy v. Sullivan (M.D. Ala. 1973) 354 F.Supp. 1320 (criminally committed sexual psychopath); Nelson v. Heyne (7th Cir. 1974) 491 F.2d 352, 360, fn. 13 (incarcerated juveniles), cert. den. 417 U.S. 976 [41 L.Ed.2d 1146, 94 S.Ct. 3183].) As the Ninth Circuit recently emphasized, even sex offenders who are confined on the basis of findings that they have “‘a mental or emotional disturbance, deficiency or condition, predisposing [them] to the commission of [certain sex offenses involving minors] to a degree rendering [them] a menace to the health and safety of others’” nonetheless have a constitutional right to treatment. (Ohlinger v. Watson (9th Cir. 1981) 652 F.2d 775, 776, fn. 2, 777.)
Similarly, this court has ruled that both individuals who have been deemed nondangerous and those who remain dangerous have a right to treatment. In People v. Feagley (1975) 14 Cal.3d 338, 375-376 [121 Cal.Rptr. 509, 535 P.2d 373], this court held that the involuntary commitment of a mentally disordered sex offender, without the provision of more than custodial care, violated both the federal and state constitutional proscriptions against cruel and unusual punishment.
More significantly, as the Ninth Circuit noted recently in a decision addressing the constitutionality of certain provisions of the Lanterman-Petris-Short Act [hereafter LPS],22 involuntary confinement to a mental facility for even extremely short periods of time constitutes ‘“a massive curtailment of liberty’ ” which requires strict due process protections. (Doe v. Gallinot (9th Cir. 1981) 657 F.2d 1017, 1021.)23
In fact, the substance of the provisions of the LPS act clearly demonstrates that the Legislature recognizes this state’s obligation to provide treatment services for our disabled citizens. In the opening section of the LPS act, the Legislature has declared that it is the state’s responsibility to provide prompt evaluation and individualized treatment for persons with serious disorders or impaired by chronic alcoholism. (Welf. & Inst. Code, § 5001, subds. (b), (c).) Moreover, the state must also “encourage the full use of all existing agencies, professional personnel and public funds to accomplish these objectives . . . .” (Id., subd. (f).)24
*1155Thus, the constitutional right to treatment for persons committed to protective custody has evolved as a consequence of both decisional authority and legislative expression. If justification for involuntary confinement rests, even in part, upon the need for care and treatment of an individual, then the state which confines must also provide treatment. (See Woe v. Cuomo, supra, 729 F.2d 96.) Both precedent and logic dictate that chronic alcoholics detained under section 647(f) must be confined in detoxification facilities where they can receive the minimum requisites of proper treatment and rehabilitation services.
In the present case, the trial court stated that “[t]he evidence showed without contradiction that neither in the city or county jail is an attempt made to treat a public inebriate for his ‘alcoholism,’ as distinguished from treating such defendant for acute medical problems caused by alcoholism . . . [Hjowever in actuality . . . the procedures in the city jail do not [even] provide [the] minimum necessary medical treatment [for] the acute phases of detoxification . . .” or any other problems associated with the illness “unless there is something obviously wrong on a cursory examination by a booking sergeant or where the defendant himself is in sufficient command of his [faculties] to ask for medical help.”
In the last 10 years, the treatment of alcoholism has progressed substantially. As the trial court noted, the recognition among a majority of states that the “jail custodial setting is not appropriate for treatment of . . . alcoholic[s]” has engendered the development of successful alternatives to criminal processing. Alcoholism is now perceived as a treatable disease that can be managed with proper medical care, psychological support, and education. As a result, many states have decriminalized public intoxication and have mandated placement in civil detoxification facilities.
Despite its recognition that criminal processing is not only ineffective but also detrimental to the detainees, the trial court ordered only piecemeal relief to remedy the many egregious due process violations. These measures are of little benefit to any detainee, since the procedural guidelines promulgated by LAPD Special Order 23 continue unabated.
Any attempt to deal with these individuals in a manner which affords them some dignity and does not violate their constitutional rights clearly cannot be restricted to the context of the criminal justice system. The relief ordered by this court cannot possibly affect the daily injustices perpetrated by defendants’ “criminal detoxification system.”
The brand of protective custody fostered by the LAPD’s utilization of the section 849(b)(2) “kickout” provision is constitutionally intolerable. In *1156refusing to enjoin continued enforcement of section 647(f) and to mandate referral of chronic alcoholics to civil detoxification facilities under section 647(ff), this court should not give judicial sanction to such a gross misuse of the penal system.
Plaintiffs have clearly demonstrated that referral to civil detoxification facilities is essential to the effective treatment and care of chronic alcoholics. Therefore, if the state’s goal is, in part, to provide care for those chronically ill as a result of their addiction, then adequate treatment must be provided. (See Woe v. Cuomo, supra, 729 F.2d 96.)
Reynoso, J., concurred.
The petition of defendants and respondents for a rehearing was denied February 5, 1987.
Penal Code section 647, subdivision (f) provides in pertinent part: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [f] (f) Who is found in any public place under the influence of intoxicating liquor ... in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor . . ., interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”
All further statutory references are to the Penal Code unless otherwise noted. For purposes of brevity, section 647, subdivision (f) will be referred to as section 647(f).
The facts incorporated into this opinion are based upon the trial court’s findings of fact issued at the conclusion of the trial.
In 1975, the year this action was brought, violations of section 647(f) (where public drunkenness was the sole alleged offense) accounted for over 80,000 arrests in Los Angeles County alone.
The largest concentration of arrests for this offense throughout all of Los Angeles County occurs within the downtown central city area.
Many of the symptoms of intoxication displayed by advanced alcoholics are also symptoms of other diseases and conditions both related and unrelated to alcoholism. For example, chronic organic brain syndrome can cause lack of controlled speech, and a damaged cerebellum can result in lack of control over bodily movements.
The period of confinement was officially approved by police policy until it was reduced to one-half hour on the eve of trial.
In 1976, approximately 84 percent of those arrested for violation of section 647(f) were still in custody at the time of arraignment.
Section 647, subdivision (ff) (hereafter section 647(ff)) provides in pertinent part: “When a person has violated subdivision (f) of this section, a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. Such person shall be taken to a facility, designated pursuant to section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates.”
Section 849(b)(2) states in pertinent part: “Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: ...[!] The person arrested was arrested for intoxication only, and no further proceedings are desirable.”
In July of 1977, Special Order 23 was adopted by the LAPD. Under this policy, the use of section 849(b)(2) releases was expanded to compensate for the limited amount of space available in detoxification centers. The new policy ordered the LAPD to continue to arrest public inebriates but to seek prosecution only in exceptional circumstances. Currently, more than 90 percent of all section 647(f) arrestees are released pursuant to section 849(b)(2).
Prior to the promulgation of LAPD Special Order 23, the vast majority of section 647(f) arrestees were still in custody at arraignment.
Even those public inebriates experiencing delirium tremens and severe seizure episodes were required to appear in court for arraignment.
In 1974, 99 percent of all section 647(f) defendants entered a plea of guilty. Only 70 percent of defendants charged with other nontraffic misdemeanors pleaded guilty in that year.
Most section 647(f) defendants are homeless or indigent. Therefore, they are unable to post bail or qualify for OR release. A defendant who pleads not guilty will be held in jail awaiting trial and will, of necessity, serve more time than a defendant would serve after a guilty plea. The “option” of pleading guilty is not really a choice at all. The strong compulsion to return to drinking to alleviate the uncomfortable symptoms associated with withdrawal is ever present.
Section 1385 states in pertinent part: “The judge or magistrate may, either of its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. ...”
In 1975 and.1976 combined, 2,141 section 647(f) arrestees entered not guilty pleas at arraignment. Seven hundred and twenty-one of these defendants remained in custody an average of 25 days awaiting trial and were subjected to a total of 23,270 days (approximately 64 years) of pretrial imprisonment. Of these in-custody defendants, only two actually received trials.
From the standpoint of the police department, current enforcement practices are the most cost effective. The extraordinarily high volume of section 647(f) cases makes the collection of evidence, listing of witnesses, and recording of circumstances surrounding the arrest expensive and time-consuming.
Confinements executed with traditional criminal safeguards are not exempt from complying with established standards for the provision of medical and psychological care. The United States Supreme Court in Estelle v. Gamble (1976) 429 U.S. 97, 103-104 [50 L.Ed.2d 251, 259-260, 97 S.Ct. 285], stressed the importance of providing such care: “These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death’ .... [Citation omitted.] In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. [Citation omitted.] The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that ‘it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself. (Fn. omitted.)
The cycle, moreover, does not end at this point. As the record clearly demonstrates, many inebriates may be arrested more than once in a single day and thus be forced to endure this humiliating process time and time again. The trial court held that this process is actually dehabilitative.
The explicit statement of this policy in LAPD Special Order 23 and the extensive testimony of law enforcement personnel provide more than adequate support for this characterization of the process.
This court has repeatedly recognized the dual nature of any proceedings that impose involuntary confinement upon individuals for their own safety and the safety of others. (See, e.g., People v. Thomas (1977) 19 Cal.3d 630 [139 Cal.Rptr. 594, 566 P.2d 228]; People v. Burnick (1975) 14 Cal.3d 306 [121 Cal.Rptr. 488, 535 P.2d 352].) Defendant’s system of enforcing section 647(f) can only be described as quasi-criminal—because arrestees are detained for violating a criminal statute—and quasi-civil—because none of the requisites of criminal procedure are followed and no criminal proceedings are even contemplated.
See Welfare and Institutions Code sections 5000-5466.
Similarly, in the recent case Doe v. Public Health Trust of Dade County, supra, 696 F.2d 901, 902-905, the Eleventh Circuit held that a voluntary, minor mental patient who had been confined for approximately two months had a viable claim for violation of her constitutional right to treatment.
In addition, section 5622 of the Welfare and Institutions Code requires the state to develop after-care programs for mentally disturbed or disabled persons released from a state hospital or a community treatment facility. It is clear that the Legislature intended by this provision “to assure continuity of care as a patient moves from an inpatient facility back into the community.” (Stats. 1974, ch. 566, § 1, p. 1384.)