Fourth Circuit Overturns 'Habitual Drunkard' Statute

By Christopher Coble, Esq. on July 19, 2019

Yes, having one too many -- or even just one -- can be a crime. Or at least it used to be.

But the Fourth Circuit reversed itself when reviewing a Virginia "habitual drunkard" statute this week, leading to a sharply divided 8-7 decision invalidating the law. "Without question, the many homeless citizens of Virginia who struggle with the effects of alcohol on their mental and physical health are entitled to guidance and fair notice under the law," Judges Diana Motz and Barbara Keenan wrote for the majority. "While necessary changes in the law may not alter the choices that they make or enhance the quality of their life, at least the government will not be compounding their problems by subjecting them to incarceration based on the arbitrary enforcement of ambiguous laws."

The Virginia statute at issue permitted courts to "enter an order of interdiction prohibiting the sale of alcoholic beverages" to anyone who has "has shown himself to be an habitual drunkard." And while many states bar people with DUIs or other alcohol-related crimes on their record from drinking, the Virginia law provided no guidance on the meaning of "habitual" or "drunkard," according to the court, and attorneys in the case argued that it was often used to "sweep up homeless people from parks."

While a three-judge panel of the Fourth Circuit dismissed the challenge to the statute last year, the en banc court found the statute unconstitutionally vague:

What the Eighth Amendment cannot tolerate is the targeted criminalization of otherwise legal behavior that is an involuntary manifestation of an illness. Imprisonment for a short time -- here, for not more than twelve months -- does not, in the abstract, seem to be cruel or unusual punishment. But, as the Supreme Court in Robinson recognized, "[e]ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." ... If, as Plaintiffs allege, Virginia has in the challenged statutory scheme criminalized and punished otherwise legal behavior by them, and that behavior is an involuntary manifestation of their illness, then Virginia has imposed cruel and unusual punishment just as surely as California did in Robinson.

Hail, Caesar!

The split within the circuit court led to a slew of opinions:

  • 6 judges joined Motz and Keenan's majority opinion;
  • 2 (including Motz) joined Judge Keenan's concurring opinion;
  • 7 judges joined a dissent from Judge Harvie Wilkinson's (who also penned a specially dissenting opinion); and
  • Judge Diaz also chimed in alone to a dissent.

Perhaps because he authored the prior dismissal of the suit, Judge Wilkinson took especially barbed exception to the majority's ruling. "This case is an assault upon the constitutional, democratic, and common law foundations of American civil and criminal law, and most importantly, to the judge's place within it," Wilkinson wrote, adding: "Such a malleable constitution; such adjudicative power: Caesar Augustus would be envious."

Wilkinson also expected the decision to be overturned in the Supreme Court, but he, like the rest of us, will have to wait on that.

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