Bench Memos

Law & the Courts

Sharply Divided Fourth Circuit Rules Against Virginia’s Regulation of ‘Habitual Drunkards’—Part 1

In an en banc ruling yesterday (in Manning v. Caldwell), the Fourth Circuit ruled by a vote of 8 to 7 that Virginia’s statutory scheme of regulating and prosecuting “habitual drunkards” is unconstitutionally vague and violates the Eighth Amendment rights of alcoholics.

In the lead dissent, Judge Harvie Wilkinson doesn’t hide the extent of his disagreement:

This ought to be a straightforward case. But the majority asks this court to take two unprecedented steps. First, it asks that we find—as no court previously has―that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions. Second, it insists that we expand vagueness doctrine to invalidate a civil statute that clearly delineates the conduct within its ambit….

Instead of simply applying the law as it is, my colleagues strive for something new; thrusting our court into not one, but two, jurisprudential quagmires. First, the majority has found—in the Eighth Amendment’s prohibition on “cruel and unusual” punishments, of all places―constitutional protection for any act that is alleged to be “non-volitional,” i.e. the result of some compulsion. In doing so, it has discarded any pretense of a workable limiting principle, expanded the Eighth Amendment beyond any discernible limits, and overturned sixty years of controlling Supreme Court precedent.

The majority, in an alternative holding, invokes the Due Process Clause to contort vagueness doctrine beyond recognition. It takes what has heretofore been a limited principle and extends it to a civil statute that is not only clear on its face, but exists solely for the purpose of giving fair notice of what the law requires. The majority’s notion of civil vagueness imperils a whole range of previously uncontroversial statutes….

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.

The majority opinion for eight judges was co-authored by Judge Diana Motz and Judge Barbara Keenan. The six judges who joined it were all appointees of Democratic presidents, except that chief judge Roger Gregory, who was initially recess-appointed to the court by President Clinton, was then, in an unrequited act of goodwill, appointed to a lifetime position by President George W. Bush.

Judges Niemeyer, Duncan, Agee, Richardson, and Quattlebaum, all appointees of Republican presidents, joined Wilkinson’s dissent. (The case was argued before Judge Allison Jones Rushing filled Duncan’s seat.) In addition, Judge Albert Diaz, appointed by President Obama, issued his own dissent in which he stated his “agree[ment] with the substance of Judge Wilkinson’s dissent regarding the merits of this case.”

In my Part 2 post, I will discuss how Virginia’s statutory scheme operates and explore the legal views set forth in the competing opinions.

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