By: Brian M. Latuga
The media and news outlets are stating that “Virginia’s ‘habitual drunkard’ law is dead.” (https://www.virginiamercury.com/blog-va/virginias-habitual-drunkard-law-is-dead/) On August 2, 2019, Virginia Attorney General Mark Herring announced that the Attorney Generals’ Office would not appeal the 4th Circuit Court of Appeal’s decision in Manning v. Caldwell (900 F.3d 264 (2019) (the case opinion). Herring stated in a ‘Tweet’ that “The General Assembly should have taken this strange and regressive law off the books a long time ago, but now that the court has done it for us I don’t’ see any need to continue the fight.”
But apparently the whole law isn’t so “strange and regressive.” Many are still being prosecuted and determined Interdicted Persons. (See Va. Code 4.1-333).
The City of Virginia Beach has far surpassed any other jurisdiction in creating these ‘habitual drunkards’ (https://www.dailypress.com/news/dp-nws-virginia-beach-drunkard-law-0407-story.html). It seems the Tidewater area is trying to take the prize for greatest number of interdicted persons established through the “untouched” portion of this despised law. Hampton Roads cities continue to churn out civilly interdicted individuals when convicted of a DUI – ignoring that the general premise of this law is highly disfavored. Manning v. Caldwell didn’t get rid of the entire statue; it is a nuanced ruling that dismissed with only part of the statue- but leaves open valid argument for challenging the remainder. The Attorney General issued a recent opinion advising Commonwealth Attorneys on how to proceed, here: https://www.oag.state.va.us/files/opinions/2019/19-048-McEachin-issued.pdf
First, the “Habitual Drunkard” Language is Vague
The Court of Appeals found the Virginia Interdicted Statute unconstitutional for two independent reasons. First, the Due Process Clause of the Fifth and Fourteenth Amendments has been interpreted to mean that a “statute must give a person of ordinary intelligence adequate notice of what conduct is prohibited and must include sufficient standards to prevent arbitrary and discriminatory enforcement.” This means that a statute can’t be Vague. Here’s an extreme example: a criminal statue banning “unreasonable haircuts.” We would question what is considered “unreasonable” about a haircut. Litigation would commence on what a “haircut” is (or whether a ‘cut’ is necessary under the statute at all). A statue like this would also promote arbitrary enforcement by police and prosecutors – a group of officers may decide that their definition of an “unreasonable haircut” should result in the arrest of all voluntarily bald men – a shame indeed.
The Court of Appeals said that the term ‘habitual drunkard’ provided no fair notice to a person about what conduct is prohibited. No guidelines are provided for law enforcement. What does “habitual” mean? What does “drunkard” mean? Nobody knows. The law is vague.
Second, the “Habitual Drunkard” Law Results in Cruel and Unusual Punishment
The Eighth Amendment’s prohibition on Cruel and Unusual Punishment says the government can’t make everything punishable as a crime (although most of us believe the government does just that).
In its 1962 decision Robinson v. California, the U.S. Supreme Court struck down a California law that criminalized the “status” of “being addicted to the use of narcotics.” The court said that turning an illness into a criminal offense “inflicts a cruel and unusual punishment.” Virginia’s status of “habitual drunkard” punishes the status of being an alcoholic. This is different than punishing the act of being Intoxicated in Public (Va. Code 18.2-388), which prohibits a volitional action rather than a “status.”
The plaintiffs here alleged that the “Virginia scheme targets them for special punishment for conduct that is both compelled by their illness and is otherwise lawful for all those of legal drinking age.”
The holding is “narrow.” The statute threatened citizens with arrest and incarceration as a result of an involuntary need to drink. It remains the law that courts are entitled to impose and enforce targeted restrictions as conditions of “supervised release, probation, parole, or release from criminal custody, even on persons who suffer from certain illnesses.”
Unfortunately, the portion of the Virginia statute providing for the interdiction of individuals who have been convicted of driving while intoxicated is untouched. The Court stated that the ruling does “not challenge the constitutionality of any restrictions imposed after conviction of a crime,” such as conditions of sobriety imposed for probation.
So, the state has the power to prosecute individuals, even those suffering from illnesses, for breaking laws that apply to the general population as a whole. The court didn’t address interdiction of those convicted of DUI, and it did not opine whether it is valid or constitutional.
The Court striking down the law had no knowledge of the evidence relied upon by the lower (trial) courts in determining any of the plaintiffs as “habitual drunkards.” Two of the plaintiff’s “abstracts of conviction” were considered, but there is nothing telling the Court of Appeals what those convictions were. It seems that one or more of the challenging plaintiffs could have been Interdicted because of a DUI!
It is illegal to invoke targeted criminalization of otherwise legal behavior that is an involuntary manifestation of an illness. The only challenged part of the Interdiction statute was the aspect referring to “habitual drunkards” – the court didn’t address interdictions after a criminal conviction of DUI. What difference does it make if the interdiction is for a DUI? Isn’t the subsequent act of purchasing or possessing alcohol potentially revealing of an illness? Additionally, the Commonwealth and Courts already retain the ability to impose severe and encompassing sanctions upon someone that is convicted of a DUI. The court may impose a Good Behavior period that lasts many years. The court may order no alcohol during that entire period; if violated then the court may order that person to jail to receive their full suspended sentence. But an Interdiction will often last many years longer than the good behavior period for a DUI.
Why does the Commonwealth Attorney continue support imposition of additional sanctions and restrictions on citizens convicted of an alcohol-related crime? Drug users aren’t interdicted and the substances they use aren’t themselves legal. ONE DUI conviction can result in an “Interdiction” and loss of the ability to purchase alcohol for an indefinite period. Are the courts not doing their job correctly? If a court thought somebody should be restricted from alcohol for four years because of a DUI, it can do that. There is no necessity to designate a person as “Interdicted.” In fact, I argue that it still imposes an unconstitutionally Cruel and Unusual punishment imposing a criminal penalty that is not applicable to the general public. Many DUI offenders do have an illness involving alcohol. However, the Commonwealth wants harsher punishment, more jail time, and more convictions.
The law has not changed regarding interdictions when you are convicted of a DUI. There has been no constitutional challenge to the part of the law that permits the court to interdict an individual after a DUI conviction. I foresee another challenge to the remainder of this statute.