A federal court’s rejection of Virginia’s “habitual drunkard” law is important for its impact on constitutional law here in the commonwealth. But it’s also fascinating to court followers because of the elevated level of dissension it raised among the judges.

The 4th U.S. Circuit Court of Appeals struck down the law as unconstitutional, reversing a U.S. district judge’s decision and a decision by three of its own members.

The district decision upholding the law had been appealed. It then was addressed by a three-judge panel from the 4th U.S. Circuit, which agreed with the district judge. However, opponents of the law — the Legal Aid Justice Center (with offices in Charlottesville) and a Washington law firm — appealed that decision to the full court.

This week the court split 8-7 in its final judgment, with the slim majority holding that the law is unconstitutional. Whether that decision might go all the way to the U.S. Supreme Court is unknown.

The “habitual drunkard” law allows a circuit judge to declare someone to be a “habitual drunkard” via a civil procedure. Once that label was applied, offenders could be taken into custody not only for being drunk, but even attempting to purchase alcohol — or even just being in the proximity of alcohol.

Additionally, the civil portion of the process is not covered by the Sixth Amendment’s guarantee that defendants must have a lawyer if they are charged with a crime. As a result, “defendants” may be undefended during the most critical phase of the process — the point at which they are declared habitual drunkards, the decision that sets them up for later criminal charges.

The 4th U.S. Circuit’s majority found that, among other things, the habitual drunkard law was unconstitutionally vague. There was no way for law enforcement officers, prosecutors, judges — or suspects, either, for that matter — to know just exactly what constituted “habitual.”

But the two factions of the court really tangled over the Eighth Amendment.

The Legal Aid Justice Center and its partner had argued that the law essentially criminalizes the condition of homelessness and poverty. That’s because, they say, homeless people are most at risk of being seen and cited as habitual drunkards; by contrast, non-homeless people might be just as frequently drunk but can successfully hide their condition behind closed doors.

Minority judges disagreed, saying that the law simply addressed a behavior. The defendant’s status — homeless or not homeless — had nothing to do with the matter.

The majority opinion dipped into the fields of sociology, psychology and medicine in stating: “What the Eighth Amendment cannot tolerate is the targeted criminalization of otherwise legal behavior that is an involuntary manifestation of an illness.”

Judge J. Harvie Wilkinson III harshly criticized that portion of the decision: “It is hard to believe a single decision could inflict more damage, but this one proceeds to do just that. … It leaves states less able to enact prophylactic civil laws and sanctions in order to forestall more serious crimes.”

That prompted a retort: “Such attacks are not part of a ‘vigorous exchange of views,’” said Judge Barbara Milano Keenan, co-author of the majority decision “but instead detract from any substantive analysis.”

Judge Wilkinson fired back: “With all respect, the doctrinal march of the majority opinion is … ‘an assault upon the constitutional, democratic and common law foundations of American civil and criminal law.’”

It’s rare that one gets a glimpse of this kind of judicial in-fighting. At this exalted level of the court system, judges usually display far more reserve.

This in-fighting might be delicious theater, but the more important issue is the decision itself and its impact on Virginians. A law that was unfair on many levels has been rightly overturned.


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