(dissenting) — The majority contends this court is helpless to act in the face of the failure of the State to provide meaningful assistance to the petitioner, a narcotic addict who has demonstrated a willingness and desire to cure his addiction, when State action exacerbates his *175addictive personality by placing him in a closed setting where the sale and use of drugs apparently cannot be effectively controlled.
This is not, should not, and cannot be the law. For this court to hold that it is assures the continued explosive degeneration of the addicts confined to our institutions and creates a great likelihood that such individuals will do further injury to society when they are eventually released. The United States Supreme Court in Estelle v. Gamble, 429 U.S. 97, 102-04, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), has recognized as repugnant to the Eighth Amendment "punishments which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society,"' and that infliction of 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.'" (Footnote omitted.)
The relief here requested does not require, as the majority insists, the recognition by this court of a constitutionally based broad right of rehabilitation. In its present facutal framework this case presents a narrow, albeit important, issue concerning the constitutional rights of inmates confined to state institutions: Does a prisoner who is psychologically addicted to narcotics have the right to demand some protection from the demonstrable physical and mental harm which he suffers as a result of being confined to an institution in which he is unavoidably exposed to unlawful trade in and use of hard narcotics, which prison officials are unable to prevent? I conclude that the State is constitutionally compelled to provide protection from harm of this nature and therefore dissent.
The record establishes that, prior to his recent and more than coincidental transfer to Western State Hospital, the petitioner was incarcerated at Walla Walla State Penitentiary where there is extensive unlawful use of hard drugs, including heroin, amphetamines, and hallucinogens. This *176drug culture allegedly involves not only prisoners, but staff and visitors as well. Prison personnel have, under existing conditions, been unable to do anything to significantly curtail this activity, nor have they provided a means by which prisoners who wish to do so, may seek sanctuary from its adverse effects. Such a situation not only results in the creation of an environment in which it is extremely difficult for most inmates who have the desire to rehabilitate themselves, but in the case of the petitioner and others like him, makes debilitation inevitable. As we stated in our prior opinion in this case, the petitioner
is psychologically and has been physiologically addicted to drugs. All his crimes have been committed either to obtain drugs or money with which to purchase drugs. Due to lack of funding, no programs have been provided to help him cure this addiction . . . Use of drugs has resulted in confinement in institutions where his addiction is encouraged by the availability of narcotics. He is unable to escape either their physical presence or the prison drug subculture that encourages their use. On his release at the end of his term, nothing will have been accomplished by confinement except to confirm the physical and psychological needs which guarantee, once more, his involvement in criminal acts, followed by more confinement.
Bresolin v. Morris, 86 Wn.2d 241, 249, 543 P.2d 325 (1975).
Faced with this situation, the petitioner has made great efforts to secure placement in a drug treatment program. As the majority points out, the petitioner has recently been transferred to the drug treatment program at Western State Hospital. That placement is unusual, to say the least. In the long history of this case, the petitioner first sought treatment under RCW 69.32.090. This court then ordered, in the words of the statute, that respondent "make available to health authorities portions of correctional institutions under his jurisdiction for the isolation and treatment, at public expense, of petitioner." Respondent failed to do so and petitioner sought placement in the Western State *177Hospital drug treatment program. Respondent resisted that placement, stating in the Brief of Respondent at pages 1-2:
[I]t is used primarily as a stepping stone back to the streets and is not designed to treat an individual and then return him to an institution . . . The treatment program at the hospital is of limited duration (about 18 months) and the program is of limited size (30 people). Because of the physical layout of the hospital, it is not considered a "secure" facility. It has no walls, fences or guards, limiting the types of persons it can take and clearly indicating it was not established to provide immediate drug treatment for all prison inmates who might be found to be narcotics addicts.
Petitioner has not been transferred to Western State Hospital because of his long sentence. He is presently serving the first of three five-year mandatory minimum terms based upon deadly weapon findings, State v. Bresolin, 13 Wn. App. 386 (1975), and in fact has no tentative release date yet established because of his consecutive sentence structure. He also has a federal detainer, based on a federal conviction, lodged against him which prevents his parole, except to federal custody, . . .
The court has been informed by counsel for the respondent, at the time of the most recent hearings in this case, that these underlying facts have not significantly changed. Respondent has not contended Bresolin now fits the established criteria for the Western State program.
It is difficult to view Bresolin's recent transfer to the Western State program, in view of respondent's past position, as little more than an effort by the respondent to render moot the important issues raised by this case. Bresolin's placement at Western State does not, however, moot these issues as to other inmate/addicts who, as the undisputed evidence indicates, desire and would benefit from placement in a drug treatment program. These inmates are still incarcerated in the state penitentiary under conditions and with resulting harm identical to that of the named petitioner here.
The legislature has expressly repealed RCW 69.32.090 (see Laws of 1975, 2d Ex. Sess., ch. 103), the statute which *178we found controlling in our prior opinion in this case. While the present statutory scheme clearly allows the establishment of drug treatment programs, and I feel in a factual setting such as this requires them (RCW 72.08.101), the record is devoid of any indication that the respondent intends to implement an adequate program at the state penitentiary at any time in the near future.6
As the majority suggests, courts have shown reluctance to become involved in the inner workings of our penal institutions. The power of the courts to intervene to protect inmates from conditions which threaten their health or safety, or which are violative of a basic constitutional right is clearly established. See, e.g., Estelle v. Gamble, supra; Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) (prison mail censorship regulations held vio-lative of inmates' First and Fourteenth Amendment rights); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) (confinement under conditions which threáten physical health and safety and deprive inmates of basic hygiene and medical treatment constitutes "cruel and unusual punishment"); Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969) (claim by inmate of Washington State Penitentiary that failure to provide medical care violated his constitutional rights states cause of action under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) (failure to protect inmates from the constant threat of physical harm constitutes cruel and unusual punishment).
Where deprivation of needed medical care is added to the imprisonment imposed as punishment for commission *179of a crime, the additional suffering imposed thereby constitutes cruel and unusual punishment and provides justification for our intervention to alleviate that additional suffering. Estelle v. Gamble, supra; Ramsey v. Ciccone, 310 F. Supp. 600 (W.D. Mo. 1970). Moreover, due process requires additional proceedings to justify failure of the state to protect an inmate from any harm greater than that contemplated by his incarceration. New York Ass'n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973); Baxstrom v. Herold, 383 U.S. 107, 15 L. Ed. 2d 620, 86 S. Ct. 760 (1966).
The trial court found, pursuant to our order of referral, that:
The Petitioner is psychologically addicted to the use of narcotic drugs. Psychological addiction is the primary cause of drug usage. Drug treatment programs have as their primary focus the cure of psychological addiction. . . .
. . . [The petitioner's] psychological addiction leads him to obtain and use narcotic drugs when he is able to do so.
. . . There is no form of therapy available to the Petitioner at the Penitentiary which has any probability of curing his condition.
The evidence presented at this fact-finding hearing further establishes that the petitioner has actively sought aid in dealing with his drug problems while not in prison. No such programs are available to him, or other inmates, at the penitentiary. Yet, because of his confinement and the failure of prison officials to control illegal drug activity within the walls of the institution, it is impossible, at the present time, for an addicted inmate to avoid continued involvement with drugs, no matter how determined he might be to forsake them. This would not be the case but for the inability of the institution staff to adequately control the prison environment, coupled with the failure to provide addicts who affirmatively seek help an environment in *180which to begin to rebuild their lives. Confinement under the present conditions only intensifies such an individual's psychological addiction, with the result that when he is thrust once again into society's mainstream, it will be even more difficult for him to avoid further involvement with drugs and additional confinement.
Contrary to the assertion of the majority, the uncontro-verted testimony of expert witnesses in the superior court fact-finding hearing established that the petitioner and others like him are indeed treatable and that such treatment is a necessity.7 While there is considerable conflict among experts as to which of a number of techniques would be most beneficial to addicts, most authorities seem now to assume that effective treatment can be provided. See S. Levine, Narcotics and Drug Abuse 311 (1973); R. Bonnie & M. Sonnenreich, Legal Aspects of Drug Dependence 171-80 (1975); Drug Addiction and Treatment in the District of Columbia, Hearing Before the Subcomm. on Public Health, Education, Welfare, and Safety of the Comm, on the District of Columbia United States Senate, 92nd Cong., 1st Sess. (1971); G. Swanson, Law Enforcement and Drug Rehabilitation: Is a Bridge of Trust Possible? 4 Contemporary Drug Problems 493 (1975).8
*181The record in this case clearly establishes that the failure to make such treatment available to the inmate/addict who affirmatively seeks it does substantial harm to that individual, as well as society as a whole. See Bresolin v. Morris, supra at 247-49. Though it may be true that the Supreme Court has not recognized the existence of a "'fundamental right' to rehabilitation from narcotics addiction . . ." (Marshall v. United States, 414 U.S. 417, 421, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974)),9 it is clear that a person may not be punished simply for being an addict, Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), and has a constitutional right to protection from direct harm caused by the failure of prison officials to keep order. Gates v. Collier, supra; Pugh v. Locke, supra.
In a situation such as that before us, the right to be free of official indifference to the need for medical treatment and protection from harm, which is constitutionally required, forms the basis for petitioner's claim. An accepted part of medical treatment is often the healing of the mind. See, e.g., Howard R. & Martha E. Lewis, Psychosomatics (1972); L. Reiser, The Traumatic Neurosis (1968). Such healing of the mind is necessary to treat psychological addiction for the purpose of providing the inmate with the defense mechanisms necessary to survive as a nonaddict in the drug culture existing inside the prison. The trial court *182found on the basis of expert testimony that the primary means of treating addiction is to combat the psychological roots of this "disease." Robinson v. California, supra at 667 n.8. It is entirely inappropriate to deny the addict protection from the harm which the prison environment causes him, simply because the appropriate means of implementing those constitutional rights requires treating his mind.
I therefore conclude the established right of the petitioner and others similarly situated to be free of cruel and and unusual punishment (U.S. Const, amend. 8; Const, art. 1, § 14) and the due process right to be free from direct harm not contemplated by the sentencing court, create in these circumstances a concomitant obligation on the part of the State to provide adequate treatment to ameliorate the harm caused those addicts who affirmatively seek help with their drug problems. Such a result is required because it is the failure of the State, (presumably due to inadequate facilities and staffing), to bring under control unlawful activity within the penitentiary which creates the particular harm suffered by this petitioner and others like him.
I would deny respondent's motion to dismiss and order the respondent to take appropriate action to provide meaningful drug treatment programs for individuals whose circumstances are similar to the petitioner's, and further order that the respondent report to this court on a monthly basis as to his progress in this endeavor.10 We must assume that the respondent, like all citizens of this state, will obey the *183commands of this court and therefore see no need at this time to consider what further remedies may prove appropriate or necessary.
Horowitz, J., concurs with Utter, J.The trial court, in its hearing on this matter, expressly found that "[t]here is no form of therapy available to the Petitioner at the Penitentiary which has any probability of curing his condition." In an affidavit submitted in this case dated June 16, 1976, Harold Bradley, Director of Adult Corrections Division of the Department of Social and Health Services, stated the existing drug treatment program at Walla Walla would continue at "essentially the same level as it has been in the past..."
Lyle Quasim, a qualified expert, testified as follows: "Q. [by Mr. Emery]: Can you treat the psychological addiction in prison? A. Yes, you can treat psychological addiction in prison. ... I think that we can make some significant inroads into dealing with the psychological process in the penitentiary." Gene Chontos, another expert, testified as follows: "Q. [by Mr. Emery]: Do you conclude that drug treatment in prison is an absolute necessity as a grounding for successful treatment of an addict who is in prison and who will be released later on? A. I think, yes, it's necessary. It's definitely necessary just to build trust that you can transfer outside. . . . Q. [by the Court]: In other words, and assuming the law is that you can't interfere with his prison sentence while you are treating him, there are available to the State forms of medical or psychological therapy which could be administered to this petitioner at the penitentiary beneficially in the light of his present physical and mental condition? A. If the funds were free enough to do that. If there were money available, I would say yes." The record is replete with similar statements.
Expert testimony at the fact-finding hearing was to the effect that the most effective drug treatment program would involve isolated therapeutic communities *181of approximately 35 to 40 members each. These groups would include those addicts who had affirmatively and sincerely sought help in curing their drug addiction. In addition, some apparently less intensive program was indicated to be desirable to serve the approximately 300 members of the prison population who are primarily or secondarily involved with the drug culture but do not seem to be prime candidates for successful isolated treatment.
I disagree with the majority’s conclusion that the Supreme Court's decision in Marshall controls our disposition of this case. The Supreme Court affirmed the determination of the Court of Appeals that the eligibility classifications contained in the federal statute there at issue, which rendered the particular addict there considered ineligible for discretionary rehabilitative commitment, did not violate the petitioner's right to equal protection. The court was not considering the right of an inmate to be protected from the specific harm caused him by the inability of the state to keep order within its institutions. It is that issue which is before us here.
The power of the courts to enforce such obligations is well established. In recent years the courts of this nation have utilized various remedies in an effort to protect the constitutional rights of persons confined to prisons. Traditionally, the courts have allowed relief in the form of contempt citations, injunctive relief, or, particularly in section 1983 actions, damages. More recently, the courts have found it appropriate to utilize remedies which are quite broad in scope, including: enjoining institutions from accepting new prisoners until populations within the institutions are reduced; ordering specific institutional changes; and, appointing special masters or committees to enforce orders of the court requiring specific reforms. See Comment, Cruel But Not So Unusual Punishment: The Role of the Federal Judiciary in State Prison Reform, 7 Cumberland L. Rev. 31 (1976), and cases cited therein.