Powell v. Texas

PETITIONER:Leroy Powell
RESPONDENT:Texas
LOCATION: Location of Arrest

DOCKET NO.: 405
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State trial court

CITATION: 392 US 514 (1968)
ARGUED: Mar 07, 1968
DECIDED: Jun 17, 1968
GRANTED: Oct 09, 1967

ADVOCATES:
Don L. Davis – for the appellant, pro hac vice
David Robinson, Jr. – for the appellee
Peter Barton Hutt – for the ACLU et al. as amicus curiae, urging reversal

Facts of the case

Police arrested Leroy Powell for public intoxication. He was tried, convicted, and fined $20 in the Corporation Court of Austin Texas. On appeal, Powell argued that criminal punishment for public intoxication is cruel and unusual punishment in violation of the Eighth Amendment, because he had chronic alcoholism. Under this theory, he appeared in public drunk as a compulsive symptom of the disease, not his own choice. The County court of Travis County held that alcoholism is not a defense to the charge and affirmed the conviction.

Question

Is the conviction of a chronic alcoholic for public intoxication cruel and unusual punishment in violation of the Eighth Amendment?

Earl Warren:

Number 405, Leroy Powell, appellant versus Texas.

Peter Barton Hutt:

Mr. Chief Justice, and may it please the Court.

Earl Warren:

Mr. Hutt.

Peter Barton Hutt:

I would like to defer to Mr. Tom Davis, a member of this bar and of the State of Texas bar to move the admission as pro hac vice.

Earl Warren:

Permission is granted.

Tom Davis:

Mr. Chief Justice, and may it please the Court.

I move the admission pro hac vice of Mr. Don Davis of Texas to argue for appellant in this case.

Earl Warren:

Motion is granted.

Tom Davis:

Thank you Your Honor.

Earl Warren:

Mr. Davis.

Tom Davis:

Mr. Chief Justice, and may it please the Court.

The question presented by this appeal is whether the conviction of a chronic alcoholic while being found in a state of intoxication at a public place is prohibited by the Eighth and Fourteenth Amendment of the United States constitution.

The case comes to the Court in this posture.

On December 19, 1966 the appellant was charged in the corporation of court of the city of Austin, Texas with the offense of being intoxicated in a public place.

He was tried and found guilty and he appealed the conviction to the county court at law of Travis County before following a trial de novo, he was again convicted and fined $50.

At the conclusion of the trial, the county judge — the county court under these circumstances and in this particular case being the court of last resort in Texas, entered findings of fact with conclusions of law and the appellant perfected a direct appeal to this Court.

I would like to point out the outset that appellant does not here contend that Article 477 is unconstitutional on its face.

What we do contend is that as applied to appellant, Article 477 is unconstitutional in that application.

Appellant being a chronic alcoholic, afflicted with the disease of chronic alcoholism who can not resist the constant excessive consumption of alcohol and whose appearance in the public is involuntary.

Appellant’s story is typical of the stories of many Americans afflicted with this disease, and I might add many indigent Americans.

At the time of the trial, he was 66 years old, and he had a history of drinking dating back till 1925.

He was injured on the job in the middle of 50’s, injured his back.

He’s been unable to do heavy physical labor since.

He drinks everyday namely wine and beer.

He gets drunk to the point where he passes out only once a week.

In short, his drinking is limited only by his financial resources.

His financial resources are derived wholly from the money he can pick up shining shoes — excuse me — in a local bar.

This averages approximately $12 a week.

In fact, in 1966, the fines imposed on him for punishing him for this disease exceeded 20% of his total income.

The arrest records in Travis County alone reflect 73 arrests since 1949.

Tom Davis:

This is only part of the story.

Jutice Stewart:

All for public drunkenness?

Tom Davis:

All except for one.

Back in 1951 or 1952, there was one for disorderly conduct, but all of the arrest are merely for public drunkenness, excuse me.

He estimates that in Travis County and in Bastrop County together, he’s been arrested approximately a hundred times.

But again let me emphasize that this is only a token expression of evidence of the degree to which this man drinks.The number of times he’s intoxicated as he says “I’ve been very lucky in avoiding police arrest.”

Did he have any sober moments to talk?

Tom Davis:

Yes sir, he does.

There’s no question about that.

What sort of (Inaudible)?

Tom Davis:

The record shows that he becomes intoxicated to the point before he passes out only once a week.

The morning before this trial began, he had had a drink.

He had no more money to buy any more liquor.

But the record shows he drinks each and every day.

I would not represent to the Court that he becomes totally intoxicated everyday.

Plus I don’t think I can justify it unless there’s some very benevolent alcoholic on his team.

He doesn’t have the money to get drunk everyday, but I think I can represent to the Court that his man’s alcoholism and his alcoholic content was kept at a very high level each and every day, it doesn’t take —

Abe Fortas:

The statute does not provide for imprisonment at all does it?

Tom Davis:

Your Honor, under Texas procedure if you do not have the finance to pay your fine, you’re imprisoned and you work it out.

Abe Fortas:

And here that has happened to him?

Tom Davis:

Yes sir that is his normal procedure.

Abe Fortas:

What is the equivalence between the dollar amount and the day of imprisonment in Texas?

Tom Davis:

I believe it’s $5 a day, I thought I was four to five.

It’s $5 a day.

Abe Fortas:

I see.

Tom Davis:

The average fine that the record reflects is been imposed on Mr. Powell is been $20.

Abe Fortas:

So that’d mean four days in jail if he couldn’t pay it?

Tom Davis:

Four days in jail, that’s correct.

Does the record show (Inaudible) has been institutionalized?

Tom Davis:

He has never been institutionalized.

Tom Davis:

The record does reflect it.

Earl Warren:

Are there any institutions in the county where he’s arrested that he could be treated in?

Tom Davis:

Yes Your Honor, the —

Earl Warren:

Do they have a program there for treating him?

Tom Davis:

No, Travis County is the county where the state capital sits without — Travis County is the county where the state capital sits Austin, Texas.

We have the state hospital.

Since 1953, there has been comprehensive civil commitment legislation on the books.

This has never been funded, to my knowledge no one has ever been civilly committed for public drunkenness in our county.

Earl Warren:

Is that throughout the state?

Tom Davis:

I would assume so.

The study that I have appointed with from Houston does not reflect a practice of civil commitment in the State of Texas.

Earl Warren:

So as far as you know there are no medical facilities in the state where a man like this could be treated?

Tom Davis:

Excuse me, I misunderstood you question.

No, there are medical facilities available.

That was my reference to the state hospital in Austin.

Earl Warren:

Well of course I suppose a private institution where a man could, but that’s rather quite expensive, but I mean for an indigent like this who has the illness that you claim.

Is there any place where the authorities are accustomed to treating people that kind or could treat them?

Tom Davis:

Yes sir, in Austin there is a facility which is in the experimentation stage.

Earl Warren:

How long has it been there?

Tom Davis:

About — I was talking to the director of it about a month ago, and they had just got it started.

And they had just developed — gotten the facility for a halfway house.

Now this isn’t a pure medical facility.

William J. Brennan, Jr.:

Are commitments there voluntary or may there be some involuntary

Tom Davis:

This is wholly voluntary.

William J. Brennan, Jr.:

Wholly voluntary.

Tom Davis:

This is wholly voluntary.

William J. Brennan, Jr.:

Yes, so in other words you county authorities then cannot — no course of procedure by which they can commit them to treatment.

Tom Davis:

It’s on the statute.

There is a statute where a county judge on his own motion can do it.

William J. Brennan, Jr.:

But it has not been is that it?

Tom Davis:

To my knowledge it has not, and let me be quick here to add that I would hesitate and be very reluctant to recommend wholesale civil commitment of these indigent alcoholics.

And I say that for a number of reasons.

First of all, the people that have been charged with the duty of studying alcoholism and its facets, the people who are expert in the area and as reflected in the D.C. Crimes Commission and the U.S. Crime Commission report.

These people recommend voluntary treatment.

They say it will work.

Also, before the Court and cited in my reply brief is a study in the late issue of the FBI bullet, reflecting a pilot project in the City of St.Louis where on a voluntary basis, 97% of the chronic alcoholic stayed for the entire period prescribed by the medical profession.

So what — there is evidence that voluntary treatment will work, so I hesitate to suggest to the Court that a wholesale program of civil commitment is desirable.

Abe Fortas:

Mr. Davis, I don’t want to anticipate of course your argument, but I would like to know at some point just what you think should be done, or what you should would happen if the police came on the petitioner here on the public street and he was dead drunk.

Just what do you think should happen in that event?

Tom Davis:

Should be taken to a medical facility.

The man is laying on a street suffering from an epileptic seizure, the police don’t pick him up and take to the jail.

He’s suffering from a disease.

Now maybe under some mistake, the police might, but if a drunk is laying on the street —

Abe Fortas:

Well let’s suppose he’s not, let’s suppose he’s walking around.

He’s navigating but he’s obviously intoxicated, and then you think the police can come up to him and say “Come along with us.”

And what is that?

Is that an arrest or is it a —

Tom Davis:

No sir I don’t believe it is.

Abe Fortas:

— stop or, it’s not a stop in prison but a stop to sniff or what?

Tom Davis:

Police have two duties.

Of course they have a duty to enforce the crimes, but they also have a charge with the duty to protect the health and welfare of the citizen of the community.

Now certainly there’s no false arrest by pick up a — assuming I’m a police officer.

If I pick up a heart attack victim and took him to a medical facility for treatment, neither can every false arrest if I picked up a chronic alcoholic who is in a drunken stupor wondering down the street.

Abe Fortas:

I know but suppose he says “I don’t want to go.”

Tom Davis:

Well I don’t think the person in that condition can make that judgment.

Abe Fortas:

I mean you can’t make them, well suppose he does anyway even though you think he can’t?

Tom Davis:

Again, I believe the power of the police extends to protect the health of the public citizens.

Abe Fortas:

That’s kind of a difficult question though isn’t it?

Tom Davis:

It isn’t once we accept chronic alcoholism is a disease.

Abe Fortas:

Alright, I know of no —

Tom Davis:

I read a —

Abe Fortas:

— is there any rule of law that apart from custom general opinion of mankind that permits a policeman to pick up somebody who is sick and take him up.

Tom Davis:

Well excuse me.

I think was overstating my case to you — a more narrower question that I had anticipated.

No, unless a chronic alcoholic is in such a condition that he’s a danger to somebody, I see no purpose in picking him up, unless it’s just to take him as you would for any one suffering to some place where he could get help.

But here again let me emphasize, it’s the medical facility where he should be taken not the police station.

Jutice Stewart:

How hard —

Earl Warren:

Aren’t there so many communities so that don’t have any medical facilities in this day regardless of what the humanities of this — of such cases are?

Is there any humane way that we can treat these people to for instance to keep them from staggering out into the street and getting hit by automobiles or crossing in front of a red light and getting killed?

There’re so many places in the country that have no medical facilities at all and the only place they could take them would be to jail and call for a doctor I suppose to give them some kind of immediate treatment.

What are we going to do in all these communities where the states have never awakened to the need for doing something in this area other than to just lock them up for 48 hours or 4 days or whatever it is, and then letting them out to do the same thing?

Tom Davis:

There can be no question that there’s going to be some temporary dislocations where this Court to hold down.

You can not criminally punish for a disease or for involuntary exhibiting its symptoms in public.

Byron R. White:

Of course the —

Tom Davis:

There will be temporary dislocations.

Byron R. White:

Doesn’t your argument go far to be saying that they may not criminally punish?

You must also say that they may not arrest, and unless you say — well you just say may not arrest, period.

Tom Davis:

Yes, yes.

Byron R. White:

And if the — if they’re danger to themselves and somebody else, you say they should be taken to a hospital?

Tom Davis:

No, no.

I do not say that if they’re involved in some other anti-social behavior —

Byron R. White:

I didn’t say — I just said it’s a — here’s a gentleman who maybe hopelessly drunk on a street and he maybe in danger to himself, his condition maybe dangerous to himself.

Tom Davis:

Yes sir.

Byron R. White:

I thought awhile ago you suggested he should be taken to the hospital?

Tom Davis:

Yes sir, I do.

Byron R. White:

Against his will?

Tom Davis:

Once again, I don’t think a person in that condition can rationally refuse medical health.

I don’t think he can make a rational —

Byron R. White:

What will be — how soon at the hospital may he decide he wants to leave?

Tom Davis:

Well I think when they sober him up.

Byron R. White:

When?

How long is that?

Tom Davis:

Whatever it takes medically to —

Byron R. White:

You mean like 48 hours or 4 days?

Tom Davis:

No sir, I don’t think it takes that long.

I really don’t.

Byron R. White:

But in any event, your argument is that they may not arrest them and take them to jail?

Tom Davis:

That is correct.

Byron R. White:

So it’s just an imposition of criminal punishment is they may not take them to the — take them — arrest and take to jail or even take them to the jail.

Tom Davis:

Well, we need to differentiate between two classes here of people here.

First of all, the known alcoholic —

Byron R. White:

And your just — I gather your argument is just addressed to chronic alcoholic?

Tom Davis:

That is correct.

Byron R. White:

Not just to people who are drunk.

Tom Davis:

That is correct.

Thurgood Marshall:

Well how — who determines where there’s a chronic alcoholic, the policeman?

Tom Davis:

No sir, that was what I was going to point out.

There’s going to be many, many instances.

The police obviously can not make a diagnosis of chronic alcoholism on the street.

He will take him to the station.

Earl Warren:

Take him where?

Tom Davis:

To the station.

Byron R. White:

— to arrest?

Tom Davis:

Yes, yes.

Thurgood Marshall:

Against his will.

Tom Davis:

Yes.

I don’t think we can charge the police with the duty of being able to make a diagnosis for chronic alcoholism, but when his disease condition comes to light, and in many, many instances this is going to come to light at booking desk.

Byron R. White:

But not in this case there’s not much question about this —

Tom Davis:

There’s no question at all about it.

Byron R. White:

— at this person and they don’t need to take him to the station to find out because they’re well acquainted with him.

Tom Davis:

That’s right.

Byron R. White:

So you woud say they had no power to arrest this man?

Tom Davis:

Unless in the sense to take in for punishment.

Byron R. White:

Well let me see if I get your proposition correctly.

Are you arguing that constitutionally states may not establish a crime of public drunkenness, or are you arguing only that if one is a chronic alcoholic that he may not be prosecuted for the offense of public drunkenness?

Tom Davis:

That’s right.

That is what I —

William J. Brennan, Jr.:

Well then that’s to say then if, as I understand it, if an officer comes upon a person who is drunk, and if there is an ordinance that makes an offense — makes an offense of public drunkenness then the officer may arrest him, correct?

Tom Davis:

Now, do I understand you’re purposing this, he comes across and know him chronic alcoholic?

William J. Brennan, Jr.:

No, no he comes across a person who is drunk.

Tom Davis:

Who is drunk, okay.

William J. Brennan, Jr.:

And he may arrest him —

Tom Davis:

Yes.

William J. Brennan, Jr.:

— for the offense of public drunkenness.

Tom Davis:

Yes sir.

William J. Brennan, Jr.:

But — and take him to the police station.

Tom Davis:

Yes sir.

William J. Brennan, Jr.:

But once he gets him there, he may not prosecute him for the offense — well he may prosecute him for the offense of public drunkenness, but the defendant will have a defense of chronic alcoholism, is that it?

Tom Davis:

That is correct.

William J. Brennan, Jr.:

Well then I don’t quite understand the relevance of many of our — of this discussion of —

Tom Davis:

I think we’re focusing —

William J. Brennan, Jr.:

— take him to a hospital first as well.

Tom Davis:

Well I think we’re focusing on a very narrow part.

What I was trying to emphasize is that our society doesn’t let us or doesn’t permit us to punish for suffering from a disease.

What I was trying to emphasize at here, society is punishable for exhibiting the symptom of that disease.

William J. Brennan, Jr.:

Yes, but I want to get clearly that you’re not disputing the constitutionality of a public drunkenness, ordinance or statute nor on its face nor on of the arrest under that of a person who is drunk on the street and his prosecution for that offense.

And you’re limiting this solely to the defense which maybe in oppose to chronic alcoholism.

Tom Davis:

That is correct.

It is a very narrow issue before the Court.

Byron R. White:

But if he attempts to cross a known alcoholic, a chronic alcoholic, may he do the same thing?

Tom Davis:

Your Honor, certainly we would hold that he would pick him up and take him to a health facility.

Byron R. White:

Well I know but you’re arguing about the constitution, I suppose and the —

Tom Davis:

Constitutionally, I don’t believe it would be a false arrest, because as I stated a moment ago to the answer Justice Fortas’ question, they have a power not only to enforce the rules, but also to protect the health of the citizens.

Now certainly when they pick up a person if he is of a danger to himself and takes him to a health facility, surely that could not be constitutionally attacked.

Abe Fortas:

Is there any other instance in the law that you know of where it makes that kind of a distinction between the right to prosecute or right to arrest?It sounds I — it seems to be something that —

Tom Davis:

Well I’m not saying —

Abe Fortas:

— is a noble and I’m not at all sure that anyway that it would achieve the objective that you desire.

Tom Davis:

I am not saying the police have the power to arrest.

Abe Fortas:

Well then, how do they take — what do you call it when they pick up the fellow and he says “I don’t want to go.”

Tom Davis:

Let’s focus on it this way.

Abe Fortas:

And they take him up anyway and take him to the precinct.

Tom Davis:

Let’s focus on it this way.

Let’s look at an insane person.

What does the police do there?

Byron R. White:

Well that’s good.

Tom Davis:

If a man is insane and he’s out in public, they pick him up and they take him to the health facility.

They don’t put him in jail.

Earl Warren:

No, are you sure of that?

Tom Davis:

Well the defense of insanity is raised.

Earl Warren:

I beg your pardon?

Tom Davis:

The defense of insanity is raised quite a bit.

Earl Warren:

Asserted by the police — before the police officer?

Tom Davis:

No.

Earl Warren:

And he tries him for insanity?

Tom Davis:

No, what I’m saying is defense of insanity is raised is a defense to many crimes.

But we’re talking here about an insane person.

Abe Fortas:

I think I agree with that Mr. Davis, but the policeman takes a risk that he may be prosecuted in that instance.

Where that police authority comes from other than the doctrine of public and private necessity has always interested me and I’m not sure what its origin is.

But if somebody — if some member of the family has a psychotic episode in the house, let’s say.

Tom Davis:

Yes sir.

Abe Fortas:

And the, is — sister or brother or mother or father calls the police, the police come out then and they see that this person is obviously having a psychotic episode.

Then the policeman if he’s being a good public servant will take the person and call an ambulance to take the person, transport him, kicking and screaming if necessary, to a hospital.

Now, let’s say socially — I’ve always thought that that was socially necessary function of the police.

Tom Davis:

I do too.

Abe Fortas:

I’m not sure where the authority comes from.

Tom Davis:

I do too.

Abe Fortas:

Well isn’t that about what you’re talking about here, that is to say.

And I’m a little surprised that you made the concession that the police would be perfectly justified in taking a person over to the precinct, because if they’ve justified the taking an alcoholic to the precinct and necessarily follows a sergeant at the desk is no more confident than the policeman is to make judgment as to his medical condition.

So the next thing to do is to toss him into drunk tank then when he comes up for trial, if he’s lucky enough to have a public spirited lawyer then the defense can be made, medical testimony adduced and would be proved to be a medical case.

That’s not what you’re after him.

That’s not the problem is it?

Tom Davis:

No, it’s not.

It goes too far.

What we’re trying to do here basically is to transfer what is a medical problem to the public health facilities.

Get it out in a way that the criminal courts —

Abe Fortas:

The time to put this on the same basis as in the person who has a psychotic episode and he’s taken off to the hospital.

In that kind of case, I suppose a policeman in theory at any rate takes a risk when he picks up somebody on the street for public drunkenness, he takes a risk.

May be the person is having a, or is just recovering from an epileptic fit or as in attack of amnesia or something else, a patient.

And the policeman takes a risk.

Now what you’re suggesting here if it’s unconstitutional to prosecute a person who is an alcoholic in the medical sense then I would think that it’s unconstitutional to arrest him.

Now do you disagree with that?

Do you think that’s —

Tom Davis:

Yes I —

Abe Fortas:

— an extreme view?

Tom Davis:

— I do.

I don’t think the conclusion is compelled by the analysis.

I do believe that what we’re after and I don’t say to the Court that it’s the police should take all drunks to the police station, I do not say that.

And I didn’t mean to concede that they can and should take chronic alcoholics to the police station.

What I was saying was that if they know a man is chronic alcoholic take him to the medical facility.

If it comes to light placed at the booking desk that he’s got a history of 500 arrests which is common in this country, immediately transfer him to a medical facility.

Abe Fortas:

And you’re not talking laws are you?

You’re talking —

Tom Davis:

No, I’m talking of practical application.

Abe Fortas:

You’re talking of good conduct and this is not a court of conduct.

Jutice Stewart:

I had thought that your point was considerably narrower.

As I understand the question as verbalized on page 3 of your brief that it is that it’s a violation of the United States constitution to convict a chronic alcoholic upon the offense of public intoxication.

Not that it’s unconstitutional to arrest somebody who is publicly drunk nor is it a constitutional violation to prosecute somebody who’s publicly drunk, but simply that it’s not constitutional to convict a chronic alcoholic of that offense.

And that I would presume would be an affirmative defense to be yet opposed in a prosecution of somebody for public drunkenness.

He would have a defense by saying “Well I’m a chronic alcoholic.”

At that I understood with your case but I’m quite confused now with your colloquy.

Tom Davis:

That is correct and I confused the issue by talking practicalities of how we get to that point, is what I did.

William J. Brennan, Jr.:

I must say Mr. Davis, I don’t have any statistics, but I would imagine that there’s more public drunkenness of non-alcoholics than there is of alcoholics in the sense that you’re talking about.

Tom Davis:

I think that’s correct, but here is the point.

There is no justification for criminally punish a chronic alcoholic.

William J. Brennan, Jr.:

Well I’m just wondering though in terms of the ultimate of a — what in effect you’re urging is that society ought to come around to the view that the chronic — the alcoholic who was in that sense has the disease ought be treated medically and — society ought to provide facilities and it has to be a public — a burden because largely the instance of this disease is with people who can’t themselves afford the expense of the treatment, isn’t that right?

Tom Davis:

That is correct, yes sir it is.

William J. Brennan, Jr.:

But the —

Earl Warren:

Do you make any distinction between these situations and narcotic addicts who are obviously under the effect of narcotics publicly?

Tom Davis:

That of course is a difficult question and it’s — I think we can talk about it in general conclusion but we don’t focus on the issues.

Now —

Earl Warren:

Why not —

Tom Davis:

— focusing —

Earl Warren:

— why not focus on the issue.

Tom Davis:

— let’s focus on the issue.

That’s what I wanted to do.

Earl Warren:

Right.

Tom Davis:

Let’s focus on the issues.

If a person were proved to be an addict, he was proved to that he was suffering from the disease if his use of narcotics was involuntary and if he was picked up for using narcotics in a situation where the fact showed he was not peddling it or he was not involved in any other social behavior, then I think the Court could conclude under those circumstances that the law is punishing him for a symptom of his disease.

I don’t think it’s compelled.

I think the Court may very well draw a terrible distinction between conduct where the social consequences are so great as in narcotics use, and in conduct such as this where it’s chronic alcoholism.

Tom Davis:

These people are typically harmless.

They’re non-belligerent and passive —

Earl Warren:

And yes, are they always typically harmless?

Don’t they do many things that aren’t very large number of our thefts in all of communities in the country don’t they come from these people who are braking open cars and doing things of that kind on the street in order to get money to buy alcohol?

Tom Davis:

Your Honor, all I can do is cite the authorities to the Court which I’m familiar with.

The president commission on law enforcement and justice concluded and I cite in my brief, there are as yet no data that demonstrate that alcoholism is a significant factor in the commission of crimes.

Earl Warren:

Well all they have to do is go to any police court and see these — a lot of these people who are often arrested for public drunkenness, also arrested for petty theft and things of that kind.

Tom Davis:

Well I think it’s important here that I distinguish what a person, an alcoholic, even if he is a chronic alcoholic.

If he’s being in — if he’s involved in anti-social behavior, certainly we have the power to civilly commit him, so society will be protected in any event.

Earl Warren:

I understood you as far as that’s concerned but you said these people do anything except just be drunk in public.

Now that isn’t factual for my own observation for many years.

Tom Davis:

I don’t —

Earl Warren:

I’ve had experience of seeing police force in cooperation —

Tom Davis:

Well I think this would be a very good point for me to defer to the amicus counsel who will state in some detail exactly what the Court is positioned on right now.

So with that in mind, I will at this time defer to the —

Hugo L. Black:

May I ask you a question —

Tom Davis:

Yes sir.

Hugo L. Black:

— just to see if I understand.

Then I understand what you have said that a man who is a chronic alcoholic can not be constitutionally convicted of a crime.

That’s basically what you’re presenting isn’t it?

Tom Davis:

No sir, for the crime of public intoxication.

Hugo L. Black:

Well I’m — yes for the crime of public intoxication.

Tom Davis:

Yes sir.

Hugo L. Black:

But he can not constitutionally be convicted, but if the policeman comes along and sees the man, you — it seems to me it gotten awfully considerably, duty of arrest.

If a policeman comes along and sees a man that it’s completely insane, no doubt he’s crazy, and he sees him shooting somebody on the street, he would sudden if you justified an arrest if he would.

Tom Davis:

Yes sir, he would.

Hugo L. Black:

And the defense would be later set up.

Tom Davis:

That’s correct.

Hugo L. Black:

And the policeman would be absolutely justified in making the arrest.

Tom Davis:

That is correct.

Hugo L. Black:

Because I understand it that’s what you’ve been trying to argue?

Tom Davis:

Yes sir and I think it’s wholly applicable to alcoholism too.

My earlier discussion simply got off at my fault on the practicalities of what we want in the future.

Earl Warren:

Well then as I understand it, there is in your argument, there is no question as to the right of a policeman to arrest a man for being drunk in public, that there’s no question about his right to put him in jail for that offense.

There is no objection to his being tried for the offense of public drunkenness, but that when it comes to his trial he has a right to interpose the defense of being a chronic alcoholic.

And if the court finds or the jury finds that he is a chronic alcoholic then he must be treated medically instead of criminally.

Now is that a fair statement of your position?

Tom Davis:

Yes it is.

Earl Warren:

And do you go any farther than that?

Tom Davis:

No sir I do not.

Earl Warren:

Thank you very much.

Peter Barton Hutt:

Mr. Chief Justice, and may it please the Court.

I represent the nine amici curiae who are filed the browns colored brief in this case.

Earl Warren:

May I ask you at the outset if you disagree at all with what counsel had just stated in answer to my question.

Peter Barton Hutt:

I would pose one qualification, Your Honor.

There have been times where a given individual was arrested as the U.S. Crime Commission found on one occasion, some 31 times in four months largely by the same police officer.

I think there may arise on occasion where there is an abuse of the arresting officer’s discretion where he obviously has no probable cause for the arrest.

I’m not saying that this would necessarily be to —

Earl Warren:

You mean because he’s a chronic alcoholic?

Peter Barton Hutt:

Because he is a known chronic alcoholic, for example, a man in the District of Columbia where that incident took place who had been adjudicated by court to be a chronic alcoholic and had been acquitted on 31 prior occasions.

The — I think at that point the arresting officer if he knows that would — well he may have not probable cause for the arrest, but certainly if he did not know that the man was an alcoholic, I would agree 100%.

Earl Warren:

Well does a police officer when he’s charged with the administration of law of that kind, have a right to judge the man’s defense and either convict him of in his own mind and take him to jail, or acquit him on the street even though he is publicly drunk in violation of an ordinance?

Peter Barton Hutt:

As I say Your Honor, I am not an authority under law of probable cause for arrest and I have not researched that in detail.

I merely raised that as one possibility that certainly the U.S. Crime Commission did raise a question about it.

Earl Warren:

Did they raise the question of constitutionality?

Peter Barton Hutt:

They did not discuss it in constitutional terms.

Earl Warren:

Yes, that’s what we’re dealing with here.

Peter Barton Hutt:

That’s what we’re dealing with here.

Earl Warren:

Yes, but other than that, you agree thoroughly with what —

Peter Barton Hutt:

I certainly do, yes.

Abe Fortas:

I suppose if it’s unconstitutional to convict a person who is an alcoholic in the medical sense, then it is unconstitutional to arrest a person who is an alcoholic in the medical sense.

Now when you come to appraising whether the policeman did or did not do something for which he is legally liable then you get into a set of very different considerations.

If he knew that the person whom he arrested was a medically alcoholic then he has done something that maybe capable.

If he did not know that and had no reason to know it then he is not, he has not done something that is medically capable.

But if it’s unconstitutional to convict a person who is medically alcoholic, then I suggest for your comment that it is unconstitutional for the police to arrest such a person.

Peter Barton Hutt:

I’m a little bit —

Abe Fortas:

Then you get all of these questions as to the capability or non-capability of the opposite.

Peter Barton Hutt:

Well, Mr. Justice Fortas I am troubled by your analysis a little bit, and I’d like to use the analogy to the insane.

I would suggest that it would be unconstitutional in this day and age to convict an insane person for a product caused by his insanity.

I would not suggest it would be unconstitutional to arrest him and charge him with a crime.

Therefore, I would be inclined to agree with the Chief Justice in that analysis.

Abe Fortas:

Well, yes I’m not sure.

Peter Barton Hutt:

Because you have questions.

Abe Fortas:

I’m not sure that I agree with you there, but I think too that those are very different considerations.

Earl Warren:

We’ll recess.

Peter Barton Hutt:

–private agencies and trained or professional personnel as well as lay persons.

They’re deeply interested, all of them, in improving both law enforcement and the standard of healthcare in our society.

The Chief Justice raised the question just before we adjourned, about the lack of facilities to handle the public inebriate alcoholic in our population.

I can’t speak specifically for the state of the argue in Texas, but certainly around the country, the amici represent the people who would have to take up the slack and who must provide that treatment.

The American Medical Association, the state programs in alcoholism.

These are the people who will be dealing with the problem.

They’re prepared to undertake the treatment.

One of the things that has been found throughout the country is that in areas where the jails have hidden the problem up to now, the situation is very poor.

There is a lack of treatment, but as soon as the jails are not used to hide the problem, treatment becomes available largely to a better use of existing resources.

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

We think it unnecessary —

William J. Brennan, Jr.:

— the police can’t disturb a person (Inaudible) do anything to him except take him to a hospital.

Peter Barton Hutt:

Well I think —

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

I think there is a tenable position that has been urged to the Court in the brief on that very point.

Peter Barton Hutt:

We think it unnecessary to go that far in this case because we think this presents a very simple case of an illness.

William J. Brennan, Jr.:

(Inaudible) individual known to the police officer already have a record (Inaudible) drunk at the street, take him in the drunk tank, and the only thing that your (Inaudible) is that they must be under the government policy allowed the defense of chronic alcoholism so it —

Peter Barton Hutt:

I think this raises a very important question of what this means to a community with a ruling that is handed down, for example in the District of Columbia, in Philadelphia and Atlanta, Georgia and in the Fourth Circuit.

What has happened here is that as a result of the court in the U.S. Court of Appeals for the District of Columbia circuit holding that alcoholism is a defense to the charge of public intoxication.

The police and the health authorities have devised plans that are beginning to circumvent the arrest process completely.

We now —

Byron R. White:

As to any person?

Peter Barton Hutt:

As to any person.

And the — what will happen is that these people as recommended by the U.S. and D.C. crime commissions will be all be taken directly to a detoxification center.

There is a Bill in Congress now that has passed the House of Representatives that repeals the District of Columbia public intoxication law.

Jutice Stewart:

That might be the practical result of the court’s decision —

Peter Barton Hutt:

That is correct.

Jutice Stewart:

— but you’re not implying that that is constitutionally required are you?

Peter Barton Hutt:

No, we are not arguing that point in this case Your Honor.

Jutice Stewart:

All you’re arguing is that chronic alcoholism is a defense to this charge?

Peter Barton Hutt:

That is the entire issue in this point, in this case, but I did want to answer the question that was posed.

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

That is correct.

William J. Brennan, Jr.:

That have — about.

Peter Barton Hutt:

Tremendous reform, and frankly those are the reforms that the amici —

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

Not completely, no.

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

They — well let me suggest that in 1960 — fiscal year 1966, there were 47,000 arrests for public intoxication, and that had remained steady for about five years.

In fiscal ’67, I have the preliminary figures which show 37,000 that’s a decrease — of 10,000 arrests.

I would suggest, and that was before Your Honor —

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

I do not.

Atlanta was notorious as being worst than the District of Columbia in terms of arrest and I have no information on that area or Philadelphia.

But Philadelphia, the diagnostic and relocation center has submitted both a brief to this Court which I believe is a yellow colored brief, and also a report of a 10-day study entitled Alternatives to Arrest, which points out that what the way they obviously would head under their decision would be to circumvent the entire arrest problem.

Peter Barton Hutt:

I would like —

Byron R. White:

What is the authority of the police to say in the District of Columbia not to arrest but to — against the person’s will take him to someone to facilitate.

What is the authority?

Peter Barton Hutt:

At the present time Your Honor?

Byron R. White:

Yes.

Peter Barton Hutt:

The authority and at this at one time was debated in the District of Columbia as to whether there was a common law authority to pick up an incapacitated drunk on the street and take him to a health — to a hospital.

In the D.C. Crime Commission report, the commissioner’s unanimously concluded that there was common law authority to do this under the — as a civil law matter and that it would not constitute a criminal arrest.

They used the example of taking an insane person or a heart attack victim to a hospital.

Nevertheless, they went on to say that if there was any doubt about this and if the police were concerned, certainly the police should be protected by a statute.

Byron R. White:

What — and what’s the limit of — this is of course if think and —

Peter Barton Hutt:

That’s right.

Byron R. White:

— and as a practical matter, what are the limits of the power to hold?

Do you wait — do just — do sober a person up or do you treat him?

If you just —

Peter Barton Hutt:

I would say —

Byron R. White:

— you just sober him up then turn him loose?

Peter Barton Hutt:

I would think, the way I would analyze it and this is my personal view point, is that the state is justified in intervening in a parens patriae view or rather role anytime that the individual is incapacitated for any reason, whether it’s drunkenness and whether he’s an alcoholic or not.

Byron R. White:

Sure.

Peter Barton Hutt:

But that once he becomes in a position where he is, you might say sufficiently in possession of its faculties to make a rational decision which has to be a medical judgment that he should be allowed either to leave or to stay.

Now I think it’s interesting that in the places where detoxification had been used and in — particularly in the VERA Institute Project that has just been started in New York.

The people who are given the opportunity of treatment as contrasted with the old process of arrest —

William J. Brennan, Jr.:

This being voluntary.

Peter Barton Hutt:

This being completely voluntary, and in fact there’s not — they aren’t even allowed to be brought in by the police in the VERA Institute Project.

Under those circumstances, I don’t think they’ve had anybody or any significant number maybe 2 or 3% that have refused to come in voluntarily and wanted to stay there as long they would be allowed.

And the main reason they’ve never been treated before.

These people are under fringes of society.

They’ve never been allowed to enjoy any of the health benefits that the rest of the population have.

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

That is correct.

It has passed the House.

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

It is, yes, there is a citation to it and to the hearings held on the House side.

The Senate hearings have not yet been held.

Byron R. White:

What would you say is the — be the situation (Inaudible) —

Peter Barton Hutt:

Undertake the responsibility for this treatment.

Byron R. White:

That’s — assuming that you don’t claim to have a personnel in the facilities now?

Peter Barton Hutt:

No, certainly not, and I think the brief for the amici points out in some veil of detail that we don’t have the facilities today.

We don’t have all the treatment personnel today.

We don’t have all the plans.

The reason is that communities have never been awaken to the problem and that we have found that with the Court decisions that have been handed down up to now, the communities have been awaken.

There has been a growing consciousness of the problem.

You might liken it to the situation after this Court decided Brown versus Board of Education.

Byron R. White:

Awaken then persuaded?

Peter Barton Hutt:

Pardon sir?

Byron R. White:

Awaken then persuaded?

Peter Barton Hutt:

That’s correct, yes.

William J. Brennan, Jr.:

You have a, I don’t (Inaudible) is probably the wrong word, but you’d have a powerful argument that you better get doing something state legislatures because you can’t any longer convict —

Peter Barton Hutt:

Yes, and the thing that is I think disturbed the amici is that in most jurisdictions where there has been no court decision, there has been no progress.

There has been a complete unwillingness to deal with the situation because it is being handled in the jails.

It is being handled inadequately and inhumanely, but nevertheless you sweep it under the rock.

What I understand in what you’re doing would be some of the broad statement rather than the (Inaudible) constitution argument apparently —

Peter Barton Hutt:

Your Honor I’d —

Are you saying that the power to (Inaudible) —

Peter Barton Hutt:

Well I would be happy to deal with that right at this point.

The basic argument is that the punishment under the criminal law of an inherent universal and necessary symptom of an illness, in this case the illness being alcoholism and the symptom being public intoxication is unconstitutional through, I might say an extension of the holding of this Court in Robinson versus California.

We believe that a statute which does not purport to offer treatment that will rehabilitate people that will prevent the type of recidivism that is so clearly shown in this case by appellant Powell, has no logic, has no humanity and is manifestly cruel.

Now there is, in a sense, there’s no authority that we can cite beyond the case in this Court of Robinson versus California.

Jutice Stewart:

You’re relying, in other words, entirely on the Eighth Amendment as it might be incorporated in the Fourteenth, that right?

Peter Barton Hutt:

That is entirely correct, yes.

(Inaudible)

Peter Barton Hutt:

No Your Honor.

The punishment being applied on to the (Inaudible).

Peter Barton Hutt:

The punishment is the conviction.

— the conviction?

Peter Barton Hutt:

Yes, in our opinion it would make no difference whether this case, Powell, had been given two years in jail, which happened in Driver or have a suspended sentence which happened in Easter.

It makes no difference from a constitutional standpoint.

What we say is that the criminal law is inappropriate, ineffective and inhumane as a result.

This is the very strong feeling not just of the appellant and his counsel, but of the law enforcement and the medical treatment personnel represented on the brief for the amici curiae.

What’s the stage of the (Inaudible)?

Peter Barton Hutt:

Oh!

In other words, you’re going back to the original cause?

(Inaudible) right to say federal stated to (Inaudible).

Peter Barton Hutt:

I would say that I would be willing to concede that a state could make a legislative determination and that it might be reviewable in court and it might be sufficient and in my view probably would be sufficient evidence medically to overturn.

That issue isn’t in this case because the Texas State Legislature has specifically found as a legislative fact that alcoholism is an illness and that an alcoholic drinks involuntarily.

He has lost self control over the use of alcohol.

That is true in at least 40 states.

And as a matter of fact, one of the amici curiae in this case is the North American Association of Alcoholism programs, which represents all of the state tax supported agencies that have been set up by the state legislatures to deal with this problem under state statutes.

William J. Brennan, Jr.:

What kind of statutes?

Peter Barton Hutt:

They are typical —

William J. Brennan, Jr.:

(Inaudible)

Peter Barton Hutt:

They are I would say somewhat similar to the Texas statute.

They define an alcoholic.

They say that an alcoholic should be given treatment and that alcoholism is an illness.

William J. Brennan, Jr.:

There are 40 states you say?

Peter Barton Hutt:

At least.

There’re maybe closer to — I say at least 40 because it may be 45, maybe even close to the 50.

Byron R. White:

How many of them are like Texas and that they haven’t implemented it or funded it?

Peter Barton Hutt:

That is a very difficult question because each one will have implemented or funded it to a different degree, but certainly I would say that none has done an adequate job.

I think I can say that flatly, and I don’t think that any one of those programs would disagree with me.

They have not been able to generate the interest again, because the problem has been hidden, and if I could say just a few concluding words to save time for rebuttal.

Peter Barton Hutt:

The amici in this case who I say have the responsibility under state laws both for law enforcement and for treatment of ill persons, believe very strongly that the future of alcoholism treatment rest in this case.

And we certainly urge that this case — that in this case that the Court keep the door open for the opportunity for treatment that we wish to have.

Byron R. White:

Could I ask you just one more question?

When you say your argument is limited to chronic alcoholic —

Peter Barton Hutt:

Yes.

Byron R. White:

— could you indicate what you mean by that chronic alcoholic?

Peter Barton Hutt:

A chronic alcoholic is defined under the Texas state statute which we have cited in our brief Your Honor, as a person who has lost self-control over the use of alcoholism.

Byron R. White:

So within — it includes the idea of addiction that alcohol is —

Peter Barton Hutt:

Yes I would also cite, and I think this is important, in appendix B in our —

Byron R. White:

Just a question of a person who drinks a lot and often and gets drunk often.

Peter Barton Hutt:

Certainly not.

A person — the — if I can perhaps define the laws of —

Byron R. White:

— chronic alcoholism which isn’t addictive or isn’t — that doesn’t represent addiction.

Peter Barton Hutt:

No, I think I can give you a one sentence definition from a recent report.

This I think is the best definition in lay terminology.

It is from the 1967 report to the nation of a special study group that had studied the problem for five years under a grant from the National Institute of Mental Health.

William J. Brennan, Jr.:

Is that cited in you brief?

Peter Barton Hutt:

It is cited in the brief, on page 39 is a definition though which is not cited in the brief and I therefore would like to read it.

Alcoholism is defined as a condition in which the individual has lost control over his alcohol intake in the sense that he is consistently unable to refrain from drinking or to stop drinking before getting intoxicated.

He can’t —

Byron R. White:

Or?

Peter Barton Hutt:

Or to stop drinking before getting intoxicated.

Now obviously if he has no money —

Byron R. White:

There’s quite a difference between those two.

Peter Barton Hutt:

Yes there is but it’s both.

He can’t either —

Byron R. White:

Well let’s just assume though that we’re talking about a chronic alcoholic who only qualifies under the last part of that definition.

Peter Barton Hutt:

Then quite clearly, he is not the man we’re talking about.

If, in my view, and I think in the prevailing medical view that man would not be a chronic alcoholic, unless he both is unable to avoid drinking and unable to stop once started then that man is not a chronic alcoholic, he —

Byron R. White:

Can you incite a state that may have the power to apply its criminal laws to the alcoholic who falls in that ladder category?

Peter Barton Hutt:

Well, he isn’t an alcoholic Your Honor, he is — what we would call a voluntary drinker.

Jutice Stewart:

Has to — the man has to be both.

Those are not alternative definitions.

Peter Barton Hutt:

That’s right.

And as Dr.Wade testified in the case below and as was found as a matter of fact, although appellant knew he was drinking in the same way, I guess that a person who involuntarily confesses as the last case before this Court shows.

Jutice Stewart:

He knew he was confessing.

Peter Barton Hutt:

He knew — he knows he’s confessing but he’s powerless to avoid it and the alcoholic is powerless to avoid either drinking or he is powerless — and he is powerless to avoid stopping.

I’m sorry, he is powerless to stop drinking.

Jutice Stewart:

There’s a different definition, somewhat different definition on page 10 of the petitioner’s brief.

The definition apparently formulated by the National Institute of Mental Health of the Department of Health, Education and Welfare of 1963.

Peter Barton Hutt:

There are many —

Jutice Stewart:

Well this seems to be — well is this a different definition?

A person who is powerless to stop drinking and who’s drinking seriously alters his normal living pattern, period.

That is different?

Peter Barton Hutt:

Well, the difficulty is this, that there are many different definitions in a sense for many different purposes.

Some people would say that an alcoholic is a person who drinks to an extent that he — it has harmed his life.

That is perhaps the broadest definition and it is functional in some situations where you want to defraud — I’m sorry, define alcoholism broadly for purposes of getting treatment to his larger population as possible.

This would include the incipient alcoholic, but the true chronic addictive alcoholic is the one we’re talking about.

And the chronic alcoholic as opposed to the incipient alcoholic would have to have, in certainly our case, the appellant’s case and the amici agree, is based upon an inability to abstain and an inability to stop.

It is a —

Jutice Stewart:

Well the Texas statutory definition is different again.

Peter Barton Hutt:

It says loss of self control.

Jutice Stewart:

Or, or while chronically and habitually under the influence of alcoholic beverages endangers public morals, health, safety or welfare.

Peter Barton Hutt:

That is an un-equated —

Jutice Stewart:

And quite a new thought, isn’t it?

Peter Barton Hutt:

Yes, and that stands from a 1947 District of Columbia statute, which frankly was enacted before as much as is now know was known.

Jutice Stewart:

But it is —

Peter Barton Hutt:

It is un-equated.

Jutice Stewart:

— it is the definition of this so called disease in the state from which this case comes, isn’t it?

Peter Barton Hutt:

That is correct.

Peter Barton Hutt:

And in all the court decisions that have come down on the question of alcoholism, Your Honor, the courts have been careful to point out that they were talking about the first part of that definition because that part of that the definition was in the D.C. case.

It was in the Fourth Circuit case and it’s been in all of the cases.Frankly, it’s just been ignored by the courts as un-equated.

Jutice Stewart:

(Inaudible)

Peter Barton Hutt:

Yes that’s —

David Robinson, Jr.:

Mr. Chief Justice, and may it please the Court.

We believe that the issue presented by this appeal is a more narrow one and in view of the last statements of counsel for amici, I’m not sure that this case raises the constitutional question they wish to raise at all.

We believe that the issue is whether an excessive drinker who has the ability to abstain may be convicted of public intoxication consistently with the Eighth and Fourteenth Amendments.

Now if indeed it is conceded that a person who has the power to abstain would not be subject to this constitutional immunity, we feel that this case does not raise the question sought at all.

The record is very short.

The critical witness on the question of the appellant’s ability to abstain was the only psychiatrist called, he was called by the defendant.

The psychiatrist, the Dr.David Wade who was amply qualified as an expert in the field of diagnosis and treatment of alcoholics for a period of over 25 years, did testify on direct examination that the appellant has an uncontrollable compulsion to drink and that his going in public is involuntary.

However, on cross-examination this general assertion was substantially qualified and clarified, and I’m reading form the record on page 26, referring to the appellant.

Question “But at the time that he takes the first drink from a sober condition, would you say that it is a voluntary exercise of his will?”

Answer “Yes.

I would like to answer that question yes, but I would like to say that we must take into account” —

William J. Brennan, Jr.:

What page is that?

David Robinson, Jr.:

I’m reading on page 26 of the —

William J. Brennan, Jr.:

Oh Yes!

Thank you.

David Robinson, Jr.:

And we must take into account that these individuals have a compulsion and this compulsion while not completely overpowering is a very strong influence and exceedingly strong influence.

And this compulsion coupled with the firm belief in their mind that they’re going to be able to handle it from now on causes their judgment to be somewhat clouded.

Jutice Stewart:

You’re asking us, in other words, to ignore or disregard the fact findings of the trial court, are you?

David Robinson, Jr.:

I am, I am Your Honor.

Jutice Stewart:

Rather not request on the part of the respondent of the case, isn’t it?

David Robinson, Jr.:

It is, obviously, we are not completely pleased with the findings of fact of the trial court.

Jutice Stewart:

No.

David Robinson, Jr.:

I gather that Texas has a practice which in my own experience is I would say unusual of allowing counsel who does not prevail to submit proposed findings of fact.

In this case, defense counsel submitted proposed findings of fact on the afternoon this case was tried and the judge signed them.

But our position is that there’s no substantial evidence in this record to support the conclusion that the defendant lack power to abstain from drinking entirely.

Although we do concede that there’s substantial evidence in the record to sustain a conclusion that he could not drink moderately, the ones he started —

Abe Fortas:

Well if we were to go behind that finding of fact on the basis of this man’s track record, I guess we’d have to conclude that either he had a — he wasn’t able to control himself or didn’t try very hard, is that right?

David Robinson, Jr.:

I would think that —

Abe Fortas:

He sure has a formidable track record, doesn’t he?

David Robinson, Jr.:

He has a record of 73 arrests over a period of 16 years which is to say of being arrested between four and —

Abe Fortas:

That’s above average isn’t it?

David Robinson, Jr.:

That’s true.

Abe Fortas:

I don’t know the local conditions, but I would think it’s above average.

David Robinson, Jr.:

There’s no doubt that this person frequently drank to excess.

There’s no doubt about that at all, but the astonishing thing is that some people do want to drink to excess occasionally and sometimes even frequently, that some people do want to adopt a way of life involving excessive use of alcohol.

Now it is quite common to characterize that as loss of control because the person doing the characterizing is ordinarily evaluating them from quite a different set of values.

The expert says “Well if I were that guy, I would not continue to drink in view of the consequences on his total life, but I don’t think that means that the man’s behavior is involuntary.”

As a matter of fact, studies by interview of these people, indicate that many of them say “I like to drink” and many of them say “I’ve never tried to stop” but ought that to immunize them.

Now the record in this case also includes a statement of Dr.Wade in terms of his taking the history of the appellant that the appellant had never been referred to Alcoholics Anonymous.

He didn’t go beyond that, but I assume by that, that he was being polite in saying that the defendant had not sought the help of Alcoholics Anonymous.

Well why not?

I assume that the defendant for whatever reason had a desire to continue his present way of life.

Do you accept that the findings of fact —

David Robinson, Jr.:

Pardon me Your Honor?

If you accept the findings of fact and recognize it —

David Robinson, Jr.:

Well, we’re prepared to make a constitutional argument even accepting the findings of fact.

May I allude to that in just a moment?

I would like to say that the appellant did make —

William O. Douglas:

— accept those findings of fact on the constitutional —

David Robinson, Jr.:

I believe that the court can go behind those findings of fact Your Honor for a variety of reasons.

Hugo L. Black:

Your theory seems —

David Robinson, Jr.:

Well in the first place, they’re not findings of specific historical fact.

They are conclusions which are interfused with standards which are proposed for constitutional adjudication.

The first two findings of fact, the critical ones, are very generalized statements about the nature of chronic alcoholism.

So it seems to me they’re — they contain for purposes of this appeal about as much law as fact, and furthermore, it seems to me that this Court is capable of taking judicial notice of facts of this sort.

I would think it astonishing —

Abe Fortas:

Now the basic, since your experts know it —

David Robinson, Jr.:

Well I believe that the court is the position to become as much experts in alcoholism as the trial court was in Texas.

Thurgood Marshall:

Well how many drunks do you think that judges ran across in Texas?

David Robinson, Jr.:

I have no knowledge of that Your Honor.

Thurgood Marshall:

Well, how many times do you have this particular one?

David Robinson, Jr.:

I have no knowledge of that.

Thurgood Marshall:

Well, it would be few wouldn’t it?

David Robinson, Jr.:

Well I’d like to answer Your Honor, but I have no information on which to make any statement.

Thurgood Marshall:

Well, this is the Court that gets the drunks?

David Robinson, Jr.:

I think this is a case or I believe this is a case on appeal Your Honor, and how many drunks it gets, I do not know.

It was appealed from the lower court to —

Thurgood Marshall:

And he saw —

David Robinson, Jr.:

— to what I assume is a trial court of general jurisdiction.

Thurgood Marshall:

And he saw the man, the petitioner here?

David Robinson, Jr.:

I assume he saw the petitioner, right.

Thurgood Marshall:

Well it would be pretty hard to convict him without seeing him, wouldn’t it?

He did see him.

David Robinson, Jr.:

He did see him.

Thurgood Marshall:

And he watched him.

David Robinson, Jr.:

Yes sir.

Thurgood Marshall:

And he had the benefit of that.

David Robinson, Jr.:

Yes sir.

Thurgood Marshall:

You haven’t seen him.

David Robinson, Jr.:

I have not seen him.

Thurgood Marshall:

I haven’t seen him.

David Robinson, Jr.:

No.

Thurgood Marshall:

None of us have seen him, and you say we should disregard the court’s finding.

David Robinson, Jr.:

Well I believe conclusions with respect to volitional capacity are not or cannot be made on the basis of seeing someone.

Thurgood Marshall:

But your testimony observed the witnesses too, didn’t you?

David Robinson, Jr.:

That is correct, but on the basis of the testimony we assert these findings are not supported by substantial evidence.

Thurgood Marshall:

Because of the one question on the record, one question on broad —

David Robinson, Jr.:

Well, it seems to me that the medical witness was being extremely careful on cross-examination and he explained himself —

Thurgood Marshall:

And extremely careless on direct examination.

David Robinson, Jr.:

The direct examination was primarily conducted by leading questions.

I think he was trying — I assume he was trying to give honest answers to both counsel Your Honor, but I think that I do think that the cross-examination is significant.

I think it’s also significant that during the redirect examination, there was no attempt the physician’s statement on cross-examination.

Now the defendant, at one time, was asked “Can you stop drinking” and he said “No.”

That’s the only other evidence in the record, but I would say that that is an ambiguous question because it doesn’t indicate whether that means stop after you start or stop in the sense of completely abstaining.

Now it’s my understanding that typical members of Alcoholics Anonymous for example characterize loss of control as loss of control after they take their first drink.

And Dr.Wade was making this statement not only with respect to the appellant but with respect — he said the appellant was fairly typical of alcoholics.

And we have other authorities who also indicate that the dominant form of American alcoholism contains this phenomenon, namely an inability to drink moderately but an ability to completely abstain.

As to the finding — well I —

Byron R. White:

Do I understand from your argument that it’s critical to your case to upset the findings of the District Court?

David Robinson, Jr.:

No Your Honor.

We contend that even if the findings are sustained that the conviction ought to be affirmed.

Byron R. White:

On the basis of the — that the trial court said?

David Robinson, Jr.:

Pardon me Your Honor?

Byron R. White:

On the basis that the trial court stated?

David Robinson, Jr.:

No.

Well perhaps yes Your Honor, I think I would have to change my answer and say yes on the basis that the trail court stated.

Byron R. White:

That alcoholism just isn’t a defense to some other act?

David Robinson, Jr.:

Yes sir.

The defendant’s — the appellant’s argument seems to us to be this, that there exists a disease and I get the impression that is looked upon almost a unitary disease called chronic alcoholism.

And that this destroyed his will to abstain, his will to drink moderately, his will to avoid appearing in public in a condition of intoxication and therefore he ought to be treated not as a responsible human being but rather as an ill person who is acting without volition.

At the outset, it ought to be noted that this argument, if accepted by the Court, would have revolutionary implications for the criminal law.

For example, the alcoholic driver who drives to another bar or to a liquor store to get a bottle of liquor would presumably have a defense of chronic alcoholism to a charge of driving while under the influence of intoxicating liquor or even perhaps to negligent homicide.

William J. Brennan, Jr.:

Well I don’t suppose — at least that issue is not here, is it?

David Robinson, Jr.:

I believe it is Your Honor if we —

William J. Brennan, Jr.:

But the conviction here is only for public drunkenness and what you’re now suggesting, as I understand it, is that it logically must follow if it’s unconstitutional to convict for public — convict to chronic alcoholic to public drunkenness.

Then it also must be logically unconstitutional to convict the chronic alcoholic, who while drunk, commits a murder or robbery or steals an automobile or less, is that it?

David Robinson, Jr.:

Not in every situation, but where there’s a close cause or relation between his chronic alcoholism and the crime for which he’s charged, the answer would have to be yes.

William J. Brennan, Jr.:

Well I of it’s an addictive kind of alcoholism that I understand from your adversary is the issue that they presented.

Did I understand you to suggest that necessary that would mean if the addictive alcoholic committed a robbery or a murder or a rape while drunk, you suggesting that he’d have to be —

David Robinson, Jr.:

Well, it would also has to be shown presumably an adequate cause or relationship between his alcoholism and his robbery or rape.

William J. Brennan, Jr.:

You’re just —

David Robinson, Jr.:

But I’m assuming that.

Assuming that, but I agree.

William J. Brennan, Jr.:

But you were assuming it.

Byron R. White:

No, but you suggested that if in order to get some more whiskey which he has a compulsion to get, he got in his car and drove to the liquor store and on that trip had an accident, perhaps this ruling would reach that situation?

David Robinson, Jr.:

That’s correct Your Honor.

William J. Brennan, Jr.:

Well not carrying one step further.

Are you suggesting perhaps it would also rule a situation if he got to the store, he had no money and he killed the proprietor in order to get a bottle of liquor?

David Robinson, Jr.:

Assuming an adequate relationship between the homicide and his drive to get —

William J. Brennan, Jr.:

Well I’ve given you the cause of —

David Robinson, Jr.:

I would think so, yes Your Honor.

William J. Brennan, Jr.:

And you think any ruling as suggested here would have that necessary consequence?

David Robinson, Jr.:

I think a ruling on the basis of the sort of volitional criteria that they suggest as a basis for constitutional adjudication would have that consequence.

William J. Brennan, Jr.:

Volitional?

I understood it was not — it was un-volitional criteria.

David Robinson, Jr.:

Well, volitional criteria, by that I meant requiring volition in some sense independent of his drive to obtain liquor.

I’m not disputing it here Your Honor.

It seems to us also that the principle which they urge would also a fortiori be applicable to crimes by a narcotic cabinet.

Immediately go on presumably would be the possession of narcotic statute to which under the Uniform Narcotics Act is fairly general throughout the nation.

If the person accused were a narcotics addict and presumably sale of narcotics by an addict in order to support his habit would also be exculpated.

And theft and prostitution and robbery by an addict in order to support his habit would presumably also, under the principle urged here, be exculpated.

Now with respect to the relationship between alcoholism and other crimes, we have not — we have presented some information in our brief on page 17 and 18 a long study in Columbus, Ohio indicated 64 persons who were arrested for felonies were intoxicated.

Now that was not necessarily chronic alcoholics.

It would include presumably some chronic alcoholics and undetermined member.

In the study in Sing Sing prison indicated that 22% of their prisoners were habitually tampered.

Well there is a strong relationship between alcohol and other crimes because as is well known it does relax one’s inhibitions.

David Robinson, Jr.:

And I don’t think it can be said that we’re only talking about harmless passive skid row derelicts because the range of chronic alcoholics or people diagnosed chronic alcoholics extends through all types of personalities; sociopaths, passive aggressive personality, schizophrenics, etcetera.

We’re not dealing here with the homogenous group.

Byron R. White:

Excuse me, I gather the part of findings of the lower court is that appearing in public while drunk is a recurring or unavoidable symptom of alcoholism.

David Robinson, Jr.:

I assume that yes Your Honor.

That is —

Byron R. White:

Spoke a lot of alcoholics that don’t go out on the public street.

David Robinson, Jr.:

I assume that must be —

Byron R. White:

Must be in bars, do they stay at home or somewhere else?

But I think — do you understand the key to this — the basis for this statement is that what they really mean is the person has lost his control, not that his alcohol simply drives him to go out on the street rather than to stay at home, because he just losses his control and he’s appearing everywhere.

David Robinson, Jr.:

I assume that’s their position, yes.

Byron R. White:

If that said, this is a sort of argument you’re making then as to the extent of this holding that if it’s just the lack of control that alcoholism causes, then the same argument would apply to other crimes?

David Robinson, Jr.:

I would think so Your Honor.

Abe Fortas:

Mr. Robinson, are you familiar with the police practices in — where is this, Travis County?

David Robinson, Jr.:

I am not Your Honor.

Abe Fortas:

I see, I wondered whether its customary for the policeman who arrested the drunk to appear in court the next morning if that’s when the fellow is brought up about to be tried and sentenced.

David Robinson, Jr.:

I have no information Your Honor with respect to that.

I am not a resident of Texas myself.

Abe Fortas:

I know that.

And you don’t know whether the police have to take their time to come to the — whether it’s customary if the police to take their time to come to the courtroom when the drunk tank is empty and the drunks lined up as I suppose —

David Robinson, Jr.:

I have no information on that Your Honor.

I would like to deal specifically with the allegation that alcoholism is a disease because —

Earl Warren:

I asked you before, before you get to what you think would be the result that if we held that alcoholism was a disease and that man could not be convicted and punished for being drunk in public.

What would be the situation if he was tried at such a time for another offense that required a specific intent to proved, would it follow that because he didn’t have control of himself to prevent his public drunkenness that he would be incapable of mens rea?

David Robinson, Jr.:

I’m not sure that that would follow Your Honor, as I understand existing law being intoxicated is if indeed the evidence suggest a intoxication produced a lack of specific intent.

As I understand existing law, he could not be convicted of a crime requiring specific intent.

In other words his intoxication at present has evidentiary significance.

Earl Warren:

Yes, well let us just take a specific case.

Say that the man was a known alcoholic such as this man.

He’d been arrested a hundred times, so this time he was obviously drunk and the ample testimony to show that he was.

And he was charged also with commission of a robbery at that time, but if we adopted the rule that’s presented for us, would that mean that he couldn’t be convicted of robbery because he would be incapable of performing the specific intent?

David Robinson, Jr.:

Well as I understand the appellant’s position, it would depend upon the facts of the case, whether the robbery was in some sense a product of his chronic alcoholism.

Now what that might mean, I suppose would depend upon further decisions of the court.

But under the Carter case in the District of Columbia where similar matter was litigated, they said that the crime would be a product of a mental disease if it would not have occurred but for the mental disease, which is to say a very little cause or relationship was required.

And indeed the cause or relationship had to be negative by the prosecution beyond the reasonable doubt in order for the man to be convicted.

So I would think it would be quite possible to exculpate a robbery in your hypothetical.

Abe Fortas:

Well that one be because at anything that’s argued here, would it?

That is, as I understand it, and I think you stated the doctrine correctly.

There’s a lot of difficulty, there’s a lot of inconsistencies in the cases in various jurisdictions, but then there are some types of crimes in which being under the influence of alcohol is a defense.

It’s very restricted category.

By an large, as I understand it, in state law and state criminal law and administration it’s not.

But where does this particular argument fit into that?

I don’t gather your adversary’s argument to be that we are to hold this unconstitutional because it results in a mental disease or defect or anything it would fit within category.

What’s your connection between a holding to the effect that convicting a person who, suffering from the disease by alcoholism, that such conviction under a public intoxication statute is unconstitutional?

And the question of whether you can apply state criminal law to a person who’s drunk.

Are you suggesting that one follows from the other?

David Robinson, Jr.:

Well, I’m suggesting that the principle on which the appellant seeks an adjudication in his favor is a principle that goes far beyond the crime of public intoxication.

Abe Fortas:

That’s what I wish you would explain to me, because I don’t see it.

David Robinson, Jr.:

Well, it seems for example in the case of — the easiest case I suppose is of a narcotics addict who was charged for illegal possession of narcotics.

Now I assume that a principle which says that in addiction to alcohol is a disease which destroys a man’s ability to control his behavior and —

Jutice Stewart:

You mean because of Robinson against California, a person, a narcotics addict who commits another crime would have a defense.

The defense that he is a narcotics addict, and if that follows from Robinson against California?

David Robinson, Jr.:

No Your Honor, we do not believe it does follow from Robinson against California, but the critical importance of this case as we see it is that it seeks to extend Robinson versus California to exculpate with respect to crimes of behavior.

Robinson versus California was not a crime of delinquent behavior.

The defendant is seeking to extend Robinson to a crime of delinquent behavior and we say that principle has few stopping places.

Jutice Stewart:

Well what is the behavior here?

This is a condition.

This man wasn’t — didn’t commit an assault and battery or wasn’t guilty of even disorderly conduct.What’s the behavior?

I suppose sitting down or lying down or may be stumbling.

David Robinson, Jr.:

That would be behavior —

Jutice Stewart:

But that’s not criminal behavior if you’re sober, is it?

David Robinson, Jr.:

Well, I suppose when one lies across the sidewalk that would likely be –

Jutice Stewart:

Well he wasn’t arrested for obstructing the sidewalk, was he?

David Robinson, Jr.:

No Your Honor.

Jutice Stewart:

Well what was his behavior?

David Robinson, Jr.:

According to the record —

Jutice Stewart:

It’s a condition wasn’t it?

He didn’t do anything that wouldn’t be perfectly legal to do if he were sober, did he?

David Robinson, Jr.:

Well I assume that’s correct.

I assume that’s correct with respect to the facts of this case, but it seems to me that the behavior —

Jutice Stewart:

I’m talking about his case.

David Robinson, Jr.:

— which is inseparable under the theory proposed would include such things as littering the streets, becoming incontinent, becoming ill sick to one’s stomach, abusing —

Jutice Stewart:

It’s not a crime to become sick to your stomach is it?

David Robinson, Jr.:

Pardon me?

Oh!

I think that in other words I think that this statute has a prophylactic function in the sense that even though this man at present may not be staggering out in front of a car.

Or even though at present may not be cursing pedestrians or walking by, he can be removed from the street before these things occur.

And I think too there are aesthetic aspects to this type of prohibition which are of importance to many Americans.

In other words, I think that being in a sort of bowery type of atmosphere is extremely disturbing to many people.

I think many people would prefer to have their communities not be this way.

But I think there’s a substantial aesthetic element in this specific crime which we’re involved with here.

With respect to the statement that chronic alcoholism is a disease, we’ve made some sort of attempt in our brief to state our position and I won’t say much more except this, that when we use disease in this context, we’re not using it in the context of something which is capable of scientific verification that it is or is not a disease.

The American Psychiatric Association has — my note on that escapes me for the moment, but the American Psychiatric Association calls alcoholism a personality disorder.

A class which includes disorders of psychogenic origin or without clearly defined tangible cause or structural chain.

Academic psychiatrists who are the only people I gather frequently ask themselves seriously what do psychiatrists mean by disease, although occasionally it’s required now in medical – in legal contexts as well, indicate that what we mean by disease is disorderly behavior or deviant behavior I should say.

That the classification of disease within which it maybe asserted that chronic alcoholism is a disease, in other words, is not a category which precludes criminality.

It’s a category which overlaps criminality because the psychiatrists are also concerned with deviant behavior.

Well why then is there so much concern whether it’s a disease or it isn’t a disease?

Well we suggest there’s concern because disease has so much emotional force.

You find various groups interested in achieving with respect to alcoholic saying alcoholism is a disease, alcoholism a disease.

The reason they’re doing this is not because this is a descriptively meaningful statement, but because they realize it has this emotional force.

David Robinson, Jr.:

Now as to chronic alcoholism as itself, as the court — as some members of the Court have noted, there are a whole variety of different types of definitions frequently framed in terms of social deviancy.

For example endangering public moral, safety and welfare, or altering his — interfering with his mental health etcetera.

Now it is quite true that there is commonly in a definition, although not always, an indication that the criterion is whether a man can control, whether he can control his behavior with respect to drinking.

However, how can we determine whether a person can control his behavior?

It is said “Well you can’t ask him because alcoholics are can not frequently to be depended upon to give away –“

Abe Fortas:

Aren’t you back for this business of attacking the findings?

Aren’t you back on that now?

David Robinson, Jr.:

No, I’m trying to understand what the findings mean Your Honor.

In other words, assuming a person is said to lack ability to control what is meant by this.

It’s not something which can be observed and scientifically demonstrated.

As far as I can see what it really means is that the expert from the standpoint of his values or for what — or from the standpoint of what he assumes to be community values is believing that the individual is acting unwisely.

Now I that Judge Bazelon was coming to that point in the Washington case which we just decided at the end of last year.

That when the psychiatrist was talking in terms of behavior controls, he said this was largely merely a façade with respect to the moral judgments of the psychiatrist.

If you say in the ultimate sense on the basis of this person’s whole life history that you can — that it seems likely that he will continue to drink.

It seems to me that that is a sort of thing that can be said with respect to criminality in general if you assume, as psychiatrists tend to assume, that people are controlled by their prior histories and their genetic equivalent.

We attempted to make our position clear with respect to the defendant’s assertion that the criminal law only ought to apply to people who act because of freewill.

We believe that this is a controversy that is not essential to constitutional adjudication of who is to be criminally responsible and who is not to be criminally responsible.

It is clear to us that the criminal law traditionally has not required free will.

For example, typical insanity test have not required freewill and even the Durham Rule does not necessarily require freewill if mental disease is thought to have some significance beyond volitional criteria.

Furthermore, the criminal law hasn’t said to a person who is uncontrollably angry and who’s charged with homicide that you were to be exculpated because you didn’t have freewill.

We believe that the criminal law is rational as applied to even a chronic alcoholic for it includes givig him an opportunity for food, clothing, shelter or period of compulsory continence.

The D.C.crime report indicated that the health of chronic alcoholics in the district had markedly deteriorated following the Easter decision.

Now, it may be as additional facilities are brought to bear that things will get better, but it seems that that is a completely or is a largely unpredictable matter because we don’t have very much experience with alternative facilities in this country.

Now we don’t have very much experience as to how much for example cooperation alcoholics would give if voluntary facilities are made available to them.

Counsel for the appellants cited the experience recently in Saint Louis in which he indicated that 95% of the alcoholics referred to their detoxification center, had stayed there as long as the doctors wanted them to.

Actually the figure was 97%, however the maximum stay there was only seven days.

And we don’t — and these were alcoholics who were threatened with criminal prosecution if they left.

Presumably, that would not be allowed if the court decides as appellant requests here.

Jutice Stewart:

I don’t quite understand, this is the VERA study that was referred to earlier?

David Robinson, Jr.:

It is quite Your Honor.

Jutice Stewart:

The VERA institute?

No, you were talking about —

David Robinson, Jr.:

I was talking about their reference to Saint Louis statistics with respect to —

Jutice Stewart:

That’s the Saint Louis statistics?

David Robinson, Jr.:

— with respect to cooperation of alcoholics.

Jutice Stewart:

And this was rather coerced cooperation, you say, because it —

David Robinson, Jr.:

Well as I —

Jutice Stewart:

— cooperated with the —

David Robinson, Jr.:

I read the article to which they referred and it was an article by a person that has some responsibility for the program and I assume that he would not do it injustice and he indicated that if they didn’t cooperate with the seven-day detoxification that they were subject to criminal prosecution in the Saint Louis.

Well under those circumstances he indicated 97% did stay there as long as the doctors wanted.

Now it may be also that the doctors said “Well if you want to leave I’ll let you leave” so some left earlier anyway.

Our experience with respect to voluntary clinics does not provide a particular basis for optimism.

With respect to people who voluntarily seek help, according to one recent study, 50% of alcoholic patients after one contact with voluntary clinic did not reappear.

I don’t believe that I have the study which I want to refer to.

I think was stated slightly too strongly.

The study I had indicated I think about 33% left after their initial visit and about 75% after a relatively short period of time.

There’re some other statitics indicated in the appellant’s brief that I would like to address myself to.

In both the opening appellant’s brief and the reply appellant’s brief figures in the neighborhood of 50% of cured, or aided, or arrested alcoholics are cited.

However, if you will examine the context of these figures, you will find that these do not refer to populations of skid row alcoholics the sort of person who we are primarily concerned with in this case.

The one congressional record citation which is given was changed in the edited version of the congressional version, I assume, because it made it clear that it was referring to a hospital population and not to a population to persons who are being arrested for public intoxication.

United States Public Health Service came up with quite different figures in a recent study, which is cited in our brief, namely that it was thought unlikely that more than 10-12% could be even aided, even aided and aided may only mean that a person decided to stay sober a little bit more often.

Well it may be that things would be much better than that, it may be, but we do not yet have the data to know.

We have just the beginnings of various programs which do not provide the basis.

It seems to us, for constitutional adjudication which would have the effect of terminating existing program.

With respect to the Robinson’s case itself, we’ve attempted to deal with it in our brief.

We feel it does not reach —

Jutice Stewart:

Those statistics don’t help you do they have to chose that even with the best kind of care 90% of the people still can’t help themselves?

David Robinson, Jr.:

Well it —

Jutice Stewart:

How can that kind of a condition or situation warrant criminal prosecution?

David Robinson, Jr.:

It doesn’t indicate the way —

Jutice Stewart:

If the best kind of maximum care, still 90% of the people can’t help themselves.

David Robinson, Jr.:

Well we think there —

Jutice Stewart:

How can the civilized society —

David Robinson, Jr.:

— we think there are values —

Jutice Stewart:

— criminally prosecute those to those 90%?

David Robinson, Jr.:

Well we feel there are values in the present system.

We’re believers in the criminal law.

In other words, the notion of taking a person off the street for four or five days, as this — as the appellant was taken off the street for four or five days.

And given the opportunity for at least physical rehabilitation and then released and allowed to go as he pleases has some valuable to appellant and to the city of Austin, Texas.

It avoids many of the problems of creating a bowery in the city of Austin, Texas and it offers some advantages to the appellant.

Thurgood Marshall:

How about the $50 fine?

David Robinson, Jr.:

Well the $50 fine I suppose is less arguably of benefit to the appellant.

However, I gather that the $50 was not commonly paid by the appellant from what was said, although I don’t know that the record supports that.

Thurgood Marshall:

Well $50 fine on $12 a week would be rather difficult.

This man made $12 a week didn’t he?

David Robinson, Jr.:

That’s what the evidence suggests, yes.

Thurgood Marshall:

And he needed part of that for his wine, so he had pretty hard job to get to $50.00, wouldn’t he?

David Robinson, Jr.:

I assume he would, yes.

Thurgood Marshall:

So the $50 clearly punishment for being arrested for being drunk.

That no more and no less, is that right?

David Robinson, Jr.:

If he were to have to pay the $50 fine that would be punishment that punishment again presumably includes some other objectives.

For example it might, if he were able to pay it or if a person were able to pay it, it might make them more inclined to drink at home.

Thurgood Marshall:

Had he been fined before?

David Robinson, Jr.:

Is that is what Your Honor?

Thurgood Marshall:

Had he been fined before?

David Robinson, Jr.:

The only penalty permitted by the Texas statute is a fine.

Thurgood Marshall:

And he had been arrested and convicted how many times?

David Robinson, Jr.:

He’s been arrested 73 times.

Thurgood Marshall:

And it had what effect on him insofar as stopping him from drinking?

David Robinson, Jr.:

I don’t follow you Your Honor.

Thurgood Marshall:

Well he got locked up again.

David Robinson, Jr.:

Yes, he had been locked up in jail before.

Thurgood Marshall:

And so he’s fined $50, so that $50 could not be to deter him from drinking could it in the future?

David Robinson, Jr.:

Well if he didn’t have the $50, presumably he would not pay the $50.00 and that would not deter him from drinking.

Thurgood Marshall:

And he would go to jail?

David Robinson, Jr.:

And he would go to jail.

Thurgood Marshall:

And after he got out of jail?

His past record would show he would continue to pay.

So the only $50 only explanation I can personally see for the $50 —

David Robinson, Jr.:

The chances are —

Thurgood Marshall:

— which is punishment for being arrested for being a drunkard.

David Robinson, Jr.:

Well I still — if by in a sense it is punishment, but I don’t think it’s purely retributive punishment.

In other words, to a person that has $50 presumably that’s some incentive to the individual not to appear in public in a state of intoxication.

To the person that does not have the $50 there are advantages in a period of confinement.

Thurgood Marshall:

Well that’s this case?

David Robinson, Jr.:

That’s his case.

Jutice Stewart:

Do you see any equal protection issue in this case?

David Robinson, Jr.:

I think that there’s an equal protection issue.

It is not been raised and I’ve not attempted to research it.

Jutice Stewart:

Apparently, your brothers in the other side are relying entirely in the Eight and Fourteenth Amendments.

David Robinson, Jr.:

Yes Your Honor.

Jutice Stewart:

Out of the Equal Protection Clause of the Fourteenth Amendment.

David Robinson, Jr.:

Yes Your Honor.

Jutice Stewart:

You do see one lurking here, do you?

David Robinson, Jr.:

I see an issue Your Honor.

Jutice Stewart:

So do I.

David Robinson, Jr.:

With respect to the Robinson case and the Driver case and the Easter case, we will rely on what we’ve said in our brief.

There are some cases on the other side which are also referred to in the briefs.

The Hoyt case in intermediate appellate courts in Michigan held that the Eighth and Fourteenth Amendment did not require a result of the sort argued for here.

In the narcotics area, the cases seem to be unanimous and not extending Robinson beyond its limitations to include behavior with respect to narcotics.

David Robinson, Jr.:

It seems to me they’re all against the principle which is urged here.

With respect to the — with — the Presidential Crime Commission did as appellant states recommend that public drunkenness not itself be a crime that the principle that they espouse is far more limited than the one here because for example they recommended the disorderly conduct continue to be a crime.

But on a purely involitional principle which we’re talking about here, it would seem that the disorderly conduct would also fall and indeed Mr. Hutt has made that argument on other occasions.

With respect to the possibilities of achieving youthful social reform by forbidding a continuation of the present system, it seems to us a number of questions ought to be asked.

One question we’ve already addressed ourselves to and that’s the question of what are the chances of improvement.

If indeed we are not likely to get substantial improvement with respect of a lot of alcoholics by referring them either to the streets or to alternative facilities, it seems that that would be a reason not to force this sort of a program across the nation.

One thing that would be helpful to know for example is how many chronic alcoholics change their way of life under present practice.

We don’t really know this.

We know that there are an awful lot that don’t that we don’t have studies that indicate what the incidence is of those who do.

And we don’t have studies indicating what the comparative results are between a detoxification approach of a few days detoxification as in a medical facility compared to a few days detoxification in a jail.

Somehow, detoxification has a much more pleasant sound, but essentially detoxification is an opportunity for a person to sober up I assume.

I would be very interested in studies which are now for example being undertaken with respect to the Saint Louis experiment.

I understand that since studies are being done by Washington University at Saint Louis, however we don’t have the results of those studies yet.

Mr. Hutt says there’s a bowery project that’s been inaugurated, be interesting to find out what the success of that program is, but we don’t have any information yet, and there’s some studies in other cities as well.

Well, ultimately we submit, society is faced with a series of possible choices in terms of what ought to be done with respect to skid row alcoholic.

We feel that there are three essential alternatives which are before society.

Now one is that the present procedures continued to be allowed that criminal or civil processes be allowed with respect to alcoholics and in some communities essentially leaving them alone would continue to be allowed.

And this would include probation programs and various other types of programs which are tied to the criminal process.

However, the appellant urges that well the criminal process itself ought to be forbidden in part because jails are frequently badly ran institutions.

Well we feel that here is a real opportunity for the notion of cruel and unusual punishment in its traditional sense.

If indeed jails in some communities are badly run institutions then it would seem to us appropriate that those jails be thought to be cruel and unusual punishment, and in a historically sanctioned sense.

And that those facilities would not be continued to be used not only by habitual alcoholics but by any other people who are subject to penal confinement.

A second alternative is to permit civil commitment only and I gather this is commonly in approach which is appealing to the medical profession.

It is frequently thought that people who are heavily committed to drugs or to alcohol can not be cured under that patient basis.

They have to be taken to an environment where there’s more control that the environment ought to be continued until the processes of attempted pretreatment can be continued.

The model for this approach to the treatment of alcoholics would be the State Mental Hospital or the juvenile detention facility.

Objectives of treatment and isolation would indeed be served.

However, in spite of the eagerness of some people to funnel people to civil facilities and indeed of course this has been the approaches of the States of New York and California following the decision of the Robinson case with respect to narcotics addict.

It seems to us that there are some real problems with respect to that.

We feel that the criminal process has great advantages in terms of the specificity of the charge which must be levied, the specificity of the statutory proscription that a person can not merely be confined on the basis of some person feeling that he is ill under the Vega’s criteria and that he requires treatment.

David Robinson, Jr.:

And we feel that the specificity of sentence also has an advantage.

There’s an advantage in the fact the defendant after four days in jail would get out of jail.

His disturbance of Austin society was not so great as to justify indefinite incarceration and the criminal process had the advantages compared to the civil process, it seems to us, in not permitting for his own good and under a theory of benevolence, indefinite in incarceration is as frequently the case with respect to civil commitment approaches to treatment.

It seems to us, in other words that the experience in the Galt case where we had probably, I suppose by and large a much more tractable population that we were dealing with in terms of juvenile delinquents than we do with respect to people whose long time drinking habits have caused them to be characterized as chronic alcoholics by and large, should make us very wary of saying to the medical profession “Well you take these people over and treat them if you will.”

Abe Fortas:

What’s the Galt case got to do with that?

Do you mean —

David Robinson, Jr.:

Well the Galt case, it seems to us, to involve an inquiry into what has happened in another area of deviant behavior where there’s been an effort to terminate the criminal process and replace it by a therapeutic approach with long term treatment available without specific criteria as to the amount of social damage which is been caused.

Abe Fortas:

So I suppose people read opinion very differently.

I didn’t — don’t read it quite that way.

David Robinson, Jr.:

Well the third approach is the approach which I gather is essentially urged here by the appellant and by the ACLU, although not by the Philadelphia amicus and that is terminate the possibilities of compulsory criminal control, terminate the possibilities of compulsory civil control and allow chronic alcoholics if they wish to remain on the street.

Now this is largely the approach which has been followed in the City of New York for many, many years and there it led to the bowery.

We believe that this would have unfortunate consequences both as a quality of American urban life and also unfortunate consequences in terms of protecting the health and safety of chronic alcoholics themselves.

In summary, our position is that we ought not now in terms of the information available, and in terms of to be prepared descript.

The devices for social control and the criminal processes with respect to chronic alcoholics, and we ought not now to devote to adopt the principle which would clearly apply not only to alcoholic offenders but also to narcotic offenders, and indeed to many other types of offenders.

Sociopaths, for example, are frequently defined in terms of lack of behavior control and their crimes ran the whole gamut as the court knows of —

Abe Fortas:

But nobody suggested that they be arrested for being sociopaths.

David Robinson, Jr.:

No Your Honor and we do not suggest that he appellant be arrested for being a chronic alcoholic.

Abe Fortas:

What do you suggest?

David Robinson, Jr.:

We suggest that when he appears drunk in a public place that he be subject to arrest.

Abe Fortas:

And how about a sociopath who engages in deviant behavior on the public street without injuring anybody or injuring himself?

David Robinson, Jr.:

Well —

Abe Fortas:

A little cookie.

David Robinson, Jr.:

Just a little cookie?

Abe Fortas:

Yes.

David Robinson, Jr.:

Well I would suppose it would depend upon what is deviant behavior it was.

If it was covered by a criminal proscription, I assume that he would be — I would hope that he would be subject to the criminal process, if it weren’t — if that weren’t the case and I would just hope that he would not be subject to criminal process.

Abe Fortas:

You know we’re not — as I understand it, this statute does not talk about public intoxication involving a public nuisance as a difference between public intoxication.

As I understand it in being a public nuisance, you talk about public intoxication as if there were legal implicit in that phrase, the notion of a public nuisance.

And I think it — that’s not the necessary reading of the statute in any event.

David Robinson, Jr.:

Well I would agree Your Honor.

David Robinson, Jr.:

I would — my point is that the principle urged here and I — that in terms of a principle decision, the principle here would immediately reach the sort of substantial public nuisances that I’ve been talking about.

Now it’s possible to adopt a different principle namely that —

Abe Fortas:

No but you’re talking about public nuisances and the statute talks about public intoxication.I thought you said a minute ago you agreed that they’re not the same thing?

David Robinson, Jr.:

Well I — what I meant to say was that I could — I agreed to the statute would apply to people whose behavior was not markedly disorderly.

Abe Fortas:

Well that’s what we’re talking about in this case.

We’re not talking about disorderly conduct.

We’re talking about public intoxication, period.

That’s what the statute is that’s what the findings of the Court are in this particular case.

David Robinson, Jr.:

Well the —

Abe Fortas:

They very well be that, and I happen to believe that it is very different matter if you’re dealing with disorderly conduct or being a public nuisance for whether it is or is not a different matter, it’s not the issue before this Court at the present time.

David Robinson, Jr.:

We believe that the principle which is urged as a basis for the constitutional adjudication by this Court does indeed reach disorderly conduct.

Now, I can agree that there are possibilities through other principles of limiting the reach of the sort of decision which the appellant seek.

For example, I could imagine that it could be thought that the social objective with respect to removing chronic alcoholics themselves did not justify their incarceration, but the social objectives with respect to chronics alcoholics who for example were uttering obscenities might indeed justify subjecting them to the criminal process.

But the difference between those two cases seems to us not to be in terms of their analysis of the principle they suggest whether one is more volitional than the other.

It seems so us in — that the case goes not only to the alcoholic, to the addict, to the sociopath etcetera but that the case essentially asks this Court to adopt standards for criminal insanity which would be of a constitutional dimension would be applicable throughout the nation.

Because again the principle they urge is one which requires a volitional insanity test, it seems to us, namely they urge that a person whose behavior is the product of something denominated in mental illness that this person be exculpated.

In other words, it seems to me they’re also asking for the abolition of the insanity test currently prevalent in most of the states.

Now, without arguing the pros or cons of that, it seems to us that the very evanescence sort of standards referring to behavior controls which are proposed here, at least we don’t know enough about them and we’re not sufficiently confident of our ability to give them operational significance so that they can be utilized in the courtrooms throughout the land without merely being a façade for the particular views of the particular psychiatrist, that this Court ought not yet to adopt such insanity standards.

In any event, if the constitutional issue which the appellant seeks to raise is indeed reached in this case, we would agree that the cases of the most vital interest not only to the minority of chronic alcoholics but to the entire American society.

And we believe that we plead on their behalf.

Thank you.

Earl Warren:

Mr. Robinson, may I ask you if the State of Texas has a law authorizing the arrest and commitment of an alcoholic to —

David Robinson, Jr.:

I am informed that they do —

Earl Warren:

— they do have for that grounds alone.

David Robinson, Jr.:

Well I am informed they have a commitment statute permitting the commitment of alcoholics.

Earl Warren:

Yes, but is it voluntary commitment or compulsory?

David Robinson, Jr.:

I don’t have personal knowledge of that.

I asked my associate here who is an executive assistant to the attorney general of Texas that question and he was uncertain.

He knew that there was a compulsory commitment provision and he knew that it was possible for an alcoholic to request commitment and receive commitment to a Texas state hospital.

Earl Warren:

Do you know what the rule is in other states?

David Robinson, Jr.:

I’m informed that the states have statutes with relating to civil commitment of alcoholics to quite generally and that they typically limit the term of permissible commitment between 30 — between I think either 30 or I think between 90 days and three years.

Earl Warren:

The reason I was asking, I suppose there’re a lot of these people who are in the condition of this man whose case is here today who would much rather be in and out of jail the way he is than to be committed to a mental hospital for a long period of time.

And I just wondering what would happen if he couldn’t be convicted and a state had no compulsory incarceration in a mental hospital before he comes before the court and say “Well, I’m an alcoholic and I can’t” — no “I’m not an alcoholic.

I can restrain myself alright but I just didn’t do it this time.”

And what could the Court do if would it try him and find out that he was an alcoholic, and if they found he was an alcoholic they say “Well we can’t do anything one way or the other to you.”

David Robinson, Jr.:

I have no idea what the Court would do.

I guess that was the problem in the Lynch case which was before this Court.

Earl Warren:

Yes I — and that is a matter of concern, isn’t it?

David Robinson, Jr.:

I assume it is, yes Your Honor.

Earl Warren:

I would think so.

David Robinson, Jr.:

Thank you Your Honor.

Earl Warren:

Thank you Mr. Robinson.