“Habitual Drunkards” Face the Full 4th Circuit

In a packed courtroom yesterday, all 15 judges of the 4th U.S. Circuit Court of Appeals sat en banc for arguments on whether Virginia’s “habitual drunkard” law is unconstitutional.

Most of the commonwealth’s estimated 500,000 alcoholics don’t commit a criminal offense simply by indulging in their addiction. But for some individuals, the stand-alone act of consuming, purchasing, or possessing an alcoholic beverage – or trying to – is a crime that can land them in jail for up to a year.

Under Virginia law, prosecutors can ask a circuit court to “interdict” a person in a civil proceeding, based on his or her drinking behavior. If the court finds that the person “has shown himself to be an habitual drunkard,” it can enter an order that effectively makes it a crime for that person to have or even to be around alcohol.

At Wednesday’s argument in the case styled Caldwell v. Manning, the plaintiffs claim there are several problems with this “interdiction” process. The term “habitual drunkard” isn’t clearly defined. Mainly, the plaintiffs say, it “targets” homeless alcoholics like themselves, who aren’t able to succumb to their addiction in private spaces as other alcoholics can. They allege that, in practice, the statute isn’t used to prosecute private possession of alcohol, and it was never designed to do so.

Since interdiction isn’t considered criminal, an alleged “habitual drunkard” challenging that designation doesn’t have constitutional protections like the right to counsel, a standard of proof “beyond a reasonable doubt,” and other heightened procedural safeguards. In some cases, the person being interdicted isn’t even present. But although the initial proceeding itself isn’t criminal, the Caldwell plaintiffs argue that it effectively guarantees subsequent criminal charges for behavior compelled by a homeless alcoholic’s disease. As advocate Jonathan L. Marcus told the 4th Circuit Wednesday morning, “the only people who don’t have a choice to be subject to this status of habitual drunkards are homeless alcoholics.”

The Caldwell plaintiffs have each been arrested and prosecuted between 11 and 30 or more times since being interdicted. In some cases, they say, the arrests have been for behavior  like smelling like alcohol or sleeping near a trash can with beer cans in it.

Asking for their day in court

The four plaintiffs sued in March 2016, naming Richmond and Roanoke prosecutors as defendants. They said that prosecution of homeless alcoholics under the interdiction framework violated their constitutional rights as to cruel and unusual punishment, due process, and equal protection.

But the U.S. District Court for the Western District of Virginia dismissed the suit early on, concluding that the interdiction process punishes conduct, not the status of alcoholism. As interpreted in the 4th Circuit, U.S. Supreme Court precedent has denied Eighth Amendment protection in such circumstances. The district court also found that civil interdiction neither required criminal process nor discriminated against the plaintiffs for being members of a suspect (i.e. historically vulnerable) class.

On appeal, a 4th Circuit panel of three judges agreed. Writing for the majority, Judge J. Harvie Wilkinson III rejected the alleged criminal implications of the civil interdiction process and said the court’s intervention would be tantamount to legislating from the bench:

To say that Virginia’s approach … is unconstitutional thus not only misreads its purpose, but also engages in policy choices reserved largely for legislatures and substantially for the states. The reason for legislative responsibility for defining substantive criminal prohibitions is fundamental; the criminal law exists to protect the safety of citizens, and ensuring the safety of the people is one of those things government exists to do. State legislatures thus have considerable latitude under their police power to address societal ills, and substantive criminal law has historically been reserved to them.

But although she concurred in the judgment, Judge Diana Gribbon Motz wrote separately to explain why she would have preferred to dissent:

A statute that would be unconstitutional if accomplished in one step cannot be rendered constitutional simply by bifurcating it. Thus, although Virginia may nominally penalize “possession” or “consumption,” the Commonwealth’s statutory scheme effectively targets and punishes homeless alcoholics based on their illness. That the Commonwealth brands homeless alcoholics as “habitual drunkards” before prosecuting them for involuntary manifestations of their illness does nothing to cure the unconstitutionality of the statutory scheme….

The statutory scheme challenged here criminalizes the otherwise legal behavior of individuals suffering from a serious illness. The specter of this unconstitutional law looms large over a number of the Commonwealth’s most vulnerable citizens.

So why did Judge Motz concur? The answer relates to a 1968 Supreme Court decision upholding a state law against public drunkenness. In Powell v. Texas, four justices thought the law violated the Eighth Amendment by penalizing the status of alcoholism, and four thought it did not. A single justice, Byron White, broke the tie in favor of upholding the law, saying that this particular alcoholic plaintiff hadn’t shown he was actually unable to stay off of the streets. White’s opinion implied that a plaintiff who did show he was a homeless alcoholic might merit a different result.

The nuance of White’s reasoning has confused attempts to parse Powell‘s “holding” (a position with at least five of nine votes). The Court has said in Marks v. United States that, in a 4-1-4 set of opinions, lower courts should treat the narrowest holding as binding precedent. But in this case, courts in the intervening 50 years have perhaps wrongly applied Powell‘s winning plurality opinion as the majority opinion. In 1981, a 4th Circuit panel hearing an analogous case did the same, saying that Powell rejected the notion of Eighth Amendment protection for conduct “symptomatic of alcoholism.” That case, Fisher v. Coleman, is now binding precedent in the 4th Circuit.

Motz wrote that she would vote to overrule Fisher as wrongly decided, but 4th Circuit rules say that only the full court sitting en banc may cast aside its past decisions. Sitting on a three-judge panel, then, her hands were tied:

Given our precedent, I must concur in the judgment rejecting the challenge to Virginia’s statutory scheme. Because thousands of Virginians remain subject to a law that, in my view, is unconstitutional, I do so with reluctance and regret.

A semi-circular firing squad

The en banc courtroom at the Lewis F. Powell Jr. Federal Courthouse in Richmond was packed early on Wednesday morning, with many law students in attendance. Court staff brought in as many folding chairs for overflow spectators as the space would allow. Shortly after 9 a.m., the court’s 15 judges filed into the room and took the bench, forming a wide arc around the podium.

The en banc format poses logistical challenges for both advocates and the judges themselves, especially in a controversial, multi-faceted case. Newly sworn-in judges Julius N. Richardson and A. Marvin Quattlebaum Jr., barely within counsel’s periphery at the extremes of the bench, sometimes had to preface their queries to counsel with, “I’m over here.” And lawyers for both sides spent considerable time fielding judges’ questions that seemed to be meant more for their colleagues than for counsel.

The argument was especially complicated by the case’s numerous points of contention. They included the state’s proper discretion to protect the public from alcohol-induced violence, the civil or criminal nature of the interdiction process, whether consuming alcohol should be viewed as an act or as a manifestation of one’s alcoholic status, whether the case was dismissed prematurely, the proper application of Powell, and whether the “habitual drunkard” designation is too vague to be enforced.

Judge Wilkinson, defending his panel majority positions, was particularly vocal in questioning why the court should interfere with Virginia’s legislative judgment as to its fundamental responsibility to protect people from violence. “Alcohol fuels some very undesirable behaviors. Among those undesirable behaviors are domestic abuse and assault. Among those undesirable behaviors are sexual assaults on campus,” Wilkinson said. “Now we are finally beginning to have some awareness of the dimensions of this problem. Why would we pick this particular moment to hinder and impair the state’s two-step effort … of trying to deal with the deleterious effects of alcohol and restore, frankly, to women some degree of physical safety and peace of mind?”

But Judge Barbara Milano Keenan was critical of the straightforward characterization of interdiction as a civil process, saying the designation served as a kind of criminal enhancement for acts that would be legal for other members of the public. “If it has that baked-in enhancement for the exact same conduct, how can you simply say ‘it’s civil’?” she asked state counsel Matthew R. McGuire.

The vagueness of the term “habitual drunkard” was a surprising point of emphasis, since the plaintiffs had abandoned it on their panel appeal. But Judge Keenan and others showed interest in reviving the issue. McGuire pointed to Virginia precedent defining a habitual drunkard as “someone who is repeatedly and consistently intoxicated to the point of impairment and causes harm to other persons or to their community.” But he conceded that the “repeatedly and consistently” standard was not further clarified and might be “a little bit vague.”

“Isn’t that like ‘a little bit pregnant’?” Judge Keenan asked. “How can you hold somebody to a penalty of one year incarceration for the exact same conduct based on them being habitually drunk, when the exact same conduct will only net you a $250 fine if you haven’t been called, sort of, an ‘habitual drunkard’?”

McGuire pointed out that the designation wasn’t arbitrary; it was based on findings by a state circuit court judge. But the focus on vagueness concerned Wilkinson, and not only because the initial panel hadn’t had the chance to develop the issue in argument.

“Most of the vagueness doctrine has been applied in the context of criminal prohibitions. The whole point of this two-step process is that the first step is not criminal – it’s civil. And so, to get at a vagueness problem here, you have to adopt a theory of civil vagueness,” Wilkinson said. “There are a whole lot of civil statutes that impose liability, including punitive damages for example, that if we were going to apply civil vagueness doctrine, would be under assault.”

As argument concluded, the scope of questioning demonstrated that clear divisions exist on the bench. At least a few judges – notably Chief Judge Roger L. Gregory, Judge James A. Wynn, and Judge Pamela A. Harris – seemed open to the plaintiffs’ allegations that homeless alcoholics are being targeted for their status, or at least that the acts being criminalized are not volitional. But several judges stayed relatively quiet during argument, making it impossible to predict how the court will rule or on what grounds. It seems entirely possible that the case will produce its own multiplicity of opinions, not unlike the Powell precedent the court will consider.

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