Bench Memos

Law & the Courts

Sharply Divided Fourth Circuit Rules Against Virginia’s Regulation of ‘Habitual Drunkards’—Part 2

To follow up on my Part 1 post on the Fourth Circuit’s deeply divided en banc ruling in Manning v. Caldwell, here is a quick sketch of how Virginia’s statutory scheme operates and of the legal views set forth in the competing opinions:

1. Virginia law authorizes the state to seek to obtain from a court a “civil interdiction order” against persons it deems to be “habitual drunkards.” The statute does not define the term “habitual drunkards,” nor does it set forth standards governing a court’s determination whether a person qualifies as a “habitual drunkard.” A person facing a court hearing for the possible imposition of a civil interdiction order must receive due notice of the hearing. But if he doesn’t show up for the hearing, the court may still issue an order against him. (The majority somehow seems to find this last feature remarkable, as though a person could ordinarily escape an adverse action by a court by the simple expedient of failing to show up for a hearing.)

Once a person is declared a “habitual drunkard,” he becomes subject to incarceration for possessing, or attempting to possess, alcohol or for being drunk in public. (Individuals of drinking age who have not been declared “habitual drunkards” are, of course, free to possess alcohol, subject to open-container and other restrictions, and they face only a fine of up to $250 for being drunk in public.)

2. On the question whether the Virginia statutory scheme is void for vagueness, the majority and dissent divide sharply on what the standard for unconstitutional vagueness is as well as on whether “habitual drunkard” has a discernible meaning.

a. To the majority, the statutory scheme has an “integrated structure” that “plainly has criminal consequences” and is thus “quasi-criminal in nature”; therefore, “a ‘relatively strict’ test for vagueness applies.” (Slip op. at 11-13.)

In dissent, Judge Wilkinson argues that the statutory scheme has two discrete parts, “one civil and one criminal.” Because the alleged vagueness is only in the first part—the civil determination that a person is a “habitual drunkard”—the vagueness inquiry is lenient. (Slip op. at 69-70, 73-75.)

b. The majority finds the term habitual drunkard impermissibly vague because of “the lack of any guidelines or standards regarding who qualifies” as such. The word habitual “is itself susceptible to numerous interpretations,” and the term drunkard is likewise vague. The fact that the plaintiffs themselves have “acknowledge[d] that they have difficulty maintaining sobriety due to alcoholism does not establish that they are ‘habitual drunkards.’” (Slip op. at 13-23.)

In his dissent, Judge Wilkinson argues that habitual drunkard “is simply not vague under any conceivable standard.” Other courts have found the term sufficiently clear, and many other constitutionally permissible statutes use imprecise terms (such as “crime involving moral turpitude” and “serious potential risk”). By the ordinary dictionary definitions of its two words, the term “requires both a pattern of behavior and a certain form of conduct.” Further, the Virginia courts have held that the term “‘encompasses one who … is admittedly in the continual habit of being intoxicated from alcohol.’” (Slip op. at 70-73.)

On both parts of the vagueness inquiry, I think that Wilkinson clearly has the better of the argument. Plaintiffs’ own acknowledgment that (in the words of the majority) “they have difficulty maintaining sobriety due to alcoholism”—a key predicate of their Eighth Amendment claim—would put them at the core of any definition of “habitual drunkard.” (The severe tension between the vagueness claim and the Eighth Amendment claim presumably explains why plaintiffs chose not to advance their vagueness argument in the earlier proceedings.)

3. The division between the majority and the dissent is even sharper on the Eighth Amendment claim.

As the majority explains, the plaintiffs “allege that their addiction causes them to ‘pathologically pursue alcohol use,’ without any volitional control over their drinking.” (Again, that sure sounds like they’re admitting that they are “habitual drunkards.”) Applying its reading of two Supreme Court rulings from the 1960s, the majority says that a statutory scheme is shown to “target[] [plaintiffs] for special punishment for conduct that is both compelled by their illness and is otherwise lawful for all those of legal drinking age” (emphasis in original) would violate their Eighth Amendment rights. (See generally slip op. at 23-33.) The majority argues that its holding is “narrow.” (See slip op. at 33-36.)

Judge Wilkinson, in dissent, argues that “settled constitutional law” defeats plaintiffs’ Eighth Amendment claim. In particular, he argues that the Supreme Court precedents from the 1960s that the majority invokes make a “status-act distinction” rather than a distinction between volitional and non-volitional conduct: “although states may not criminalize status, they may criminalize actual behavior even when the individual alleges that addiction created a strong urge to engage in a particular act.” Because Virginia’s statutory scheme criminalizes actions, not status, it does not violate the Eighth Amendment. (See generally slip op. at 42-53.) Wilkinson argues that “the potential breadth of the principle espoused by … the majority is staggering.”

I haven’t yet parsed the dispute between the majority and the dissent over how the two Supreme Court rulings from the 1960s should be read. That said, Wilkinson’s account comports with my understanding of what the governing principles have been, and I agree with him that the majority’s ruling has “staggering” implications.

4. For anyone interested in digging deeper into the case, I would recommend Judge Wilkinson’s discussion of the consequences of alcohol-related violence, which “fall hardest on the most vulnerable” (and not on the likes of the blue-chip lawyers who are congratulating themselves for knocking down Virginia’s law). (See slip op. at 53-60.)

The back and forth between Judge Keenan’s concurring opinion (slip op. at 38-39) and a separate special dissent by Judge Wilkinson (slip op. at 79-80) over the vigorous tone of his main dissent is also noteworthy.

I quoted some passages from the opening of Wilkinson’s main dissent in my Part 1 post; his four-paragraph closing section begins: “It is hard to imagine a decision so infused with ruinous consequences or so insensitive to a judge’s inability to rework society from the bench.”

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