RICHMOND — A closely and harshly divided 4th U.S. Circuit Court of Appeals on Tuesday struck down Virginia’s so-called habitual drunkard law as unconstitutional.
In an 8-7 decision, the judges of the Richmond-based court reversed a lower court judge’s dismissal of a suit that alleged the law targets homeless alcoholics because of their status — as homeless and suffering from a disease that compels them to possess alcohol — rather than a crime.
A U.S. District judge in Roanoke and a three-judge panel of the appeals court have upheld the constitutionality of the statute, concluding that it criminalizes acts, not a status. The law allows a circuit court judge to civilly find someone to be a “habitual drunkard” who could be criminally prosecuted for possessing or consuming alcohol, or attempting to do so.
The Legal Aid Justice Center and a Washington law firm brought the class-action suit, alleging the law violates constitutional rights against cruel and unusual punishment, equal protection under the law and due process. They appealed the three-judge panel’s ruling to the entire court, which heard arguments in January.
The majority opinion on Tuesday, written by judges Diana Gribbon Motz and Barbara Milano Keenan, concludes that “the lack of any guidelines or standards regarding who qualifies as an ‘habitual drunkard’ compels the conclusion that use of the term in the challenged scheme is unconstitutionally vague.”
“Police officers, prosecutors, and even state circuit court judges likely will have differing perceptions regarding what frequency of drunkenness exceeds the necessary threshold for a person to be considered an ‘habitual drunkard,’” wrote that majority.
The majority also found, “What the Eighth Amendment cannot tolerate is the targeted criminalization of otherwise legal behavior that is an involuntary manifestation of an illness.”
In a strongly-worded dissent, Judge J. Harvie Wilkinson III, joined by five other judges, wrote, “It is hard to believe a single decision could inflict more damage, but this one proceeds to do just that.”
“This decision is an affront to our legal traditions. It leaves states less able to enact prophylactic civil laws and sanctions in order to forestall more serious crimes,” he wrote.
Wilkinson found that “if human behavior is viewed as something over which human beings lack control, and for which they are not responsible, the implications are boundless.” Wilkinson added that the same could be said of sex offenders, child abusers, stalkers and domestic abusers, “and others driven by impulses they were allegedly powerless to check.”
In an unusual, concurring majority opinion, Keenan criticized what she called the “alarmist tone” of Wilkinson’s dissent.
“I worry about the message that we convey to the public when we attempt to bolster a legal analysis by making assertions suggesting malfeasance by judges who disagree with our position,” she wrote. Keenan added, “Such attacks are not part of a ‘vigorous exchange of views,’ but instead detract from any substantive analysis.”
Wilkinson responded, “With all respect, the doctrinal march of the majority opinion is indeed ‘an assault upon the constitutional, democratic and common law foundations of American civil and criminal law.’”
He denied accusing the majority of malfeasance. “Being wrong, even woefully wrong, is in no way malfeasance,” he wrote. “We have in this case a deep and honest difference of opinion the importance of which can neither be brushed off nor wished away.”
Carl Tobias, a professor at the University of Richmond School of Law and a long-time observer of the appeals court, said, “Welcome to the new 4th Circuit.”
“I think that’s what you want — lively debate over these really, really difficult questions,” he said.
Tobias said the majority finds that the interdiction law is unconstitutionally vague because it specifies no standard of conduct, and even if the term “habitual drunkard” could be narrowed to apply only to individuals like the plaintiffs, that interpretation would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
“This is an extremely technical case,” said Tobias.
The opinion also is procedurally technical because U.S. District Judge Glen E. Conrad dismissed the suit and apparently did not make factual determinations. Tobias said the ruling sends the case back to Conrad, but it is unclear whether the majority contemplates any further action by the judge.
The plaintiffs argued that the law is focused on a tiny subset of Virginia’s population, which has an estimated 500,000 alcoholics, most of them not homeless, while only 1,220 people were interdicted in the state over a nine-year period ending in October 2015.
Over the same period, Virginia recorded 4,743 convictions of interdicted people, suggesting the same people are repeatedly prosecuted. The four named plaintiffs — from Richmond and Roanoke — have been arrested and prosecuted between 11 and more than 30 times, the plaintiffs said. A violation is punishable by up to 12 months in jail.
It is effectively a status crime because they are being targeted for being homeless, they argue.
The Virginia attorney general’s office defended the law, arguing that the state has a legitimate interest in curbing alcoholism and its associated conduct that jeopardizes the safety and welfare of alcoholics and those who come into contact with them.
A spokesman for the attorney general’s office said Tuesday that “we’ll take the time needed to review the court’s decision before deciding how best to proceed.”
In his dissent, Wilkinson warned that “the majority’s new theory of the Eighth Amendment will foreclose a state’s ability to take responsible steps to protect its citizens from serious and long recognized harms. The consequences will fall on the most vulnerable, especially the victims of domestic abuse and sexual assault.
“One particularly troubling example of violence driven by alcohol is domestic abuse,” he wrote. “How ironic that the majority would stand on the cusp of the centennial of women’s suffrage and deal a setback not only to the physical safety of women, but to their basic right to peace of mind,” wrote Wilkinson.
Wilkinson also wrote that the plaintiffs waived the “vagueness” issue. “By reviving the vagueness claim now, we are inviting litigants to take this court for a ride. We should not, for want of a better word, be such chumps,” he wrote.
“Although states have not criminalized status, they may criminalize actual behavior even when the individual alleges that addiction created a strong urge to engage in a particular act ... the status-act distinction has endured because it works,” wrote Wilkinson.
Judge Albert Diaz wrote his own dissenting opinion, stating that he agreed with much of what Wilkinson wrote, but added that he believed it was well within the court’s discretion to take up the “vagueness” question.
The 4th U.S. Circuit Court serves the states of Virginia, Maryland, West Virginia, North Carolina and South Carolina and is usually the final stop for federal appeals since only a relative handful of cases are accepted by the U.S. Supreme Court each year.