'Habitual Drunkards' and the Line between Status and Action – Part I
Part I of this blog post will address a recent federal appeals court decision that turned on the distinction between “status” and “act”. Part II will discuss the larger significance of this distinction in other areas of the law.
On August 9, 2018, a divided panel of the Fourth Circuit rejected a constitutional challenge, brought by several homeless men, to a Virginia state law that makes it a crime for a “habitual drunkard” to possess alcohol. While the case of Manning v. Caldwell (2018) may seem esoteric, the underlying legal question has broad implications that merit discussion. In particular, the dispute between the Manning majority and the concurrence (in substance a dissent – the judge felt obliged to apply binding circuit precedent, but would have rejected that precedent) focuses on the crucial difference between punishing a person for that person’s status and punishing that person for an act.
The status-versus-act distinction is very important in the law. Specifically, the U.S. Supreme Court held in Robinson v. California, 370 U.S. 660 (1962), that punishing a person merely for status, without any underlying criminal act, violates the Eighth Amendment’s ban on “cruel and unusual punishments.” As the Robinson Court put it, “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id. at 667.
Virginia law provides that a court may issue an “interdict” against a person who has been convicted of driving while intoxicated “or has shown himself to be an habitual drunkard.” The “interdict” is not itself a crime. But it is an offense for someone subject to an interdict to “possess alcohol,” attempt to possess alcohol, or go in public while drunk. The challengers claimed that, as homeless alcoholics, they could not resist seeking alcohol and could not avoid being “in public”. This, they argued, meant that they were being punished for the “status” of being homeless alcoholics.
The federal district court didn’t buy the argument. Neither did the Fourth Circuit. As the appeals court majority explained, no one was punished for the status of being homeless or alcoholic. Some additional act was necessary to trigger arrest, said the Fourth Circuit:
To accept appellants’ claim that there is no difference between alcohol addiction and the act of consuming alcohol would threaten to change the character of criminal law as we know it. Such a position has no plain limiting principle.
We do not state this lightly ... Every criminal act can be alleged to be the result of some compulsion. If human behavior is viewed as something over which human beings lack control, and for which they are not responsible, the implications are boundless. The examples extend beyond the discrete context of substance addiction. For instance, child molesters could challenge their convictions on the basis that their criminal acts were the product of uncontrollable pedophilic urges and therefore beyond the purview of criminal law. See Kansas v. Hendricks, 521 U.S. 346, 362 (1997) (upholding a sex offender statute where the law in question defined sex offenders as “suffering from a ‘mental abnormality’ or a ‘personality disorder’ that prevents them from exercising adequate control over their behavior”). The same could be said not only of sex offenders, but of stalkers, domestic abusers, and others driven by impulses they were allegedly powerless to check.
Thus, while “[s]tates cannot ignore the line between status and acts,” the court reasoned, the Virginia ban on doing certain things observed that line.
This is eminently sensible logic. Someone who practices law without a law license is not punished for the status of being a non-lawyer, but for the act of practicing without a license. A law that makes it a crime for a convicted felon to possess a firearm punishes the act of possession, not the status of being a felon. Ditto for the crime of voting by someone who is not registered, or driving while intoxicated, or buying cigarettes when underage. Each of these offenses only apply to persons with a certain status, but the punishment is not for the status itself.
The Manning concurrence proffered several supposedly distinguishing factors. First, an addict or alcoholic allegedly has “no control” over the act in question (here, seeking to consume alcohol). But as the majority pointed out, many criminal defendants could make the same claim of powerlessness to resist.
Second, the concurrence noted that the conduct in question – consuming alcohol or appearing drunk in public – is “otherwise legal.” But the same can be said of voting, owning a gun, practicing law, and a host of other acts that are only illegal when done by certain persons or under certain conditions.
Third, the concurrence pointed to arguably better ways of dealing with homelessness and drunkenness. But as the majority points out, it is the role of legislatures, not courts, to decide which lawful measures to take to tackle a problem.
In short, the Manning majority both properly emphasized the importance of the status/act distinction, and carefully observed that distinction. All well and good – but does this distinction matter in other, larger contexts? I turn to that question in Part II.
Walter Weber is a contributor at the Committee for Justice (CFJ) and is Senior Counsel for the American Center for Law and Justice (ACLJ) in Washington, D.C. Please note that views expressed here do not necessarily reflect the views of Walter's employer.