# Powell v. Texas (392 U.S. 514)/Dissent Fortas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Fortas
United States Supreme Court
392 U.S. 514
Powell v. Texas (392 U.S. 514)
Argued: March 7, 1968. --- Decided: June 17, 1968
Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice STEWART join, dissenting.
Appellant was charged with being found in a state of intoxication in a public place. This is a violation of Article 477 of the Texas Penal Code, which reads as follows:
'Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars.'
Appellant was tried in the Corporation Court of Austin, Texas. He was found guilty and fined $20. He appealed to the County Court at Law No. 1 of Travis County, Texas, where a trial de novo was held. Appellant was defended by counsel who urged that appellant was 'afflicted with the disease of chronic alcoholism which has destroyed the power of his will to resist the constant, excessive consumption of alcohol; his appearance in public in that condition is not of his own volition, but a compulsion symptomatic of the disease of chronic alcoholism.' Counsel contended that to penalize appellant for public intoxication would be to inflict upon him cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
At the trial in the county court, the arresting officer testified that he had observed appellant in the 2000 block of Hamilton Street in Austin; that appellant staggered when he walked; that his speech was slurred; and that he smelled strongly of alcohol. He was not loud or boisterous; he did not resist arrest; he was cooperative with the officer.
The defense established that appellant had been convicted of public intoxication approximately 100 times since 1949, primarily in Travis County, Texas. The circumstances were always the same: the 'subject smelled strongly of alcoholic beverages, staggered when walking, speech incoherent.' At the end of the proceedings, he would be fined: 'down in Bastrop County, it's $25.00 down there, and its $20.00 up here (in Travis County).' Appellant was usually unable to pay the fines imposed for these offenses, and therefore usually has been obliged to work the fines off in jail. The statutory rate for working off such fines in Texas is one day in jail for each $5 of fine unpaid. Texas Code Crim.Proc., Art. 43.09.
Appellant took the stand. He testified that he works at a tavern shining shoes. He makes about $12 a week which he uses to buy wine. He has a family, but he does not contribute to its support. He drinks wine every day. He gets drunk about once a week. When he gets drunk, he usually goes to sleep, 'mostly' in public places such as the sidewalk. He does not disturb the peace or interfere with others.
The defense called as a witness Dr. David Wade, a Fellow of the American Medical Association and a former President of the Texas Medical Association. Dr. Wade is a qualified doctor of medicine, duly certificated in psychiatry. He has been engaged in the practice of psychiatry for more than 20 years. During all of that time he has been especially interested in the problem of alcoholism. He has treated alcoholics; lectured and written on the subject; and has observed the work of various institutions in treating alcoholism. Dr. Wade testified that he had observed and interviewed the appellant. He said that appellant has a history of excessive drinking dating back to his early years; that appellant drinks only wine and beer; that 'he rarely passes a week without going on an alcoholic binge'; that 'his consumption of alcohol is limited only by his finances, and when he is broke, he makes an effort to secure alcohol by getting his friends to buy alcohol for him'; that he buys a 'fifty cent bottle' of wine, always with the thought that this is all he will drink; but that he ends by drinking all he can buy until he 'is * * * passed out in some joint or out on the sidewalk.' According to Dr. Wade, appellant 'has never engaged in any activity that is destructive to society or to anyone except himself.' He has never received medical or psychiatric treatment for his drinking problem. He has never been referred to Alcoholics Anonymous, a voluntary association for helping alcoholics, nor has he ever been sent to the State Hospital.
Dr. Wade's conclusion was that 'Leroy Powell is an alcoholic and that his alcoholism is in a chronic stage.' Although the doctor responded affirmatively to a question as to whether the appellant's taking the first drink on any given occasion is 'a voluntary exercise of will,' his testimony was that 'we must take into account' the fact that chronic alcoholics have a 'compulsion' to drink which 'while not completely overpowering, is a very strong influence, an exceedingly strong influence,' and that this compulsion is coupled with the 'firm belief in their mind that they are going to be able to handle it from now on.' It was also Dr. Wade's opinion that appellant 'has an uncontrollable compulsion to drink' and that he 'does not have the willpower (to resist the constant excessive consumption of alcohol or to avoid appearing in public when intoxicated) nor has he been given medical treatment to enable him to develop this willpower.'
The trial judge in the county court, sitting without a jury, made the following findings of fact:
'(1) That chronic alcoholism is a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol.
'(2) That a chronic alcoholic does not appear in public by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism.
'(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted with the disease cf chronic alcoholism.'
The court then rejected appellant's constitutional defense, entering the following conclusion of law:
'(1) The fact that a person is a chronic alcoholic afflicted with the disease of chronic alcoholism, is not a defense to being charged with the offense of getting drunk or being found in a state of intoxication in any public place under Art. 477 of the Texas Penal Code.'
The court found appellant guilty as charged and increased his fine to $50. Appellant did not have the right to appeal further within the Texas judicial system. Tex.Code Crim.Proc., Art. 4.03. He filed a jurisdictional statement in this Court.
The issue posed in this case is a narrow one. There is no challenge here to the validity of public intoxication statutes in general or to the Texas public intoxication statute in particular. This case does not concern the infliction of punishment upon the 'social' drinker-or upon anyone other than a 'chronic alcoholic' who, as the trier of fact here found, cannot 'resist the constant, excessive consumption of alcohol.' Nor does it relate to any offense other than the crime of public intoxication.
The sole question presented is whether a criminal penalty may be imposed upon a person suffering the disease of 'chronic alcoholism' for a condition-being 'in a state of intoxication' in public-which is a characteristic part of the pattern of his disease and which, the trial court found, was not the consequence of appellant's volition but of 'a compulsion symptomatic of the disease of chronic alcoholism.' We must consider whether the Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the imposition of this penalty in these rather special circumstances as 'cruel and unusual punishment.' This case does not raise any question as to the right of the police to stop and detain those who are intoxicated in public, whether as a result of the disease or otherwise; or as to the State's power to commit chronic alcoholics for treatment. Nor does it concern the responsibility of an alcoholic for criminal acts. We deal here with the mere condition of being intoxicated in public.
As I shall discuss, consideration of the Eighth Amendment issue in this case requires an understanding of 'the disease of chronic alcoholism' with which, as the trial court found, appellant is afflicted, which has destroyed his 'will power to resist the constant, excessive consumption of alcohol,' and which leads him to 'appear in public (not) by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism.' It is true, of course, that there is a great deal that remains to be discovered about chronic alcoholism. Although many aspects of the disease remain obscure, there are some hard facts-medical and, especially, legal facts-that are accessible to us and that provide a context in which the instant case may be analyzed. We are similarly woefully deficient in our medical, diagnostic, and therapeutic knowledge of mental disease and the problem of insanity; but few would urge that, because of this, we should totally reject the legal significance of what we do know about these phenomena.
Alcoholism is a major problem in the United States. In 1956 the American Medical Association for the first time designated alcoholism as a major medical problem and urged that alcoholics be admitted to general hospitals for care. This significant development marked the acceptance among the medical profession of the 'disease concept of alcoholism.' Although there is some problem in defining the concept, its core meaning, as agreed by authorities, is that alcoholism is caused and maintained by something other than the moral fault of the alcoholic, something that, to a greater or lesser extent depending upon the physiological or psychological makeup and history of the individual, cannot be controlled by him. Today most alcohologists and qualified members of the medical profession recognize the validity of this concept. Recent years have seen an intensification of medical interest in the subject. Medical groups have become active in educating the public, medical schools, and physicians in the etiology, diagnosis, and treatment of alcoholism.
Authorities have recognized that a number of factors may contribute to alcoholism. Some studies have pointed to physiological influences, such as vitamin deficiency, hormone imbalance, abnormal metabolism, and hereditary proclivity. Other researchers have found more convincing a psychological approach, emphasizing early environment and underlying conflicts and tensions. Numerous studies have indicated the influence of sociocultural factors. It has been shown for example, that the incidence of alcoholism among certain ethnic groups is far higher than among others.
The manifestations of alcoholism are reasonably well identified. The late E. M. Jellinek, an eminent alcohologist, has described five discrete types commonly found among American alcoholics. It is well established that alcohol may be habituative and 'can be physically addicting.' It has been said that 'the main point for the nonprofessional is that alcoholism is not within the control of the person involved. He is not willfully drinking.'
Although the treatment of alcoholics has been successful in many cases, physicians have been unable to discover any single treatment method that will invariably produce satisfactory results. A recent study of available treatment facilities concludes as follows:
'Although numerous kinds of therapy and intervention appear to have been effective with various kinds of problem drinkers, the process of matching patient and treatment method is not yet highly developed. There is an urgent need for continued experimentation, for modifying and improving existing treatment methods, for developing new ones, and for careful and well-designed evaluative studies. Most of the facilities that provide services for alcoholics have made little, if any, attempt to determine the effectiveness of the total program or of its components.'
Present services for alcoholics include state and general hospitals, separate state alcoholism programs, outpatient clinics, community health centers, general practitioners, and private psychiatric facilities. Self-help organizations, such as Alcoholics Anonymous, also aid in treatment andrehabilitation.
The consequences of treating alcoholics, under the public intoxication laws, as criminals can be identified with more specificity. Public drunkenness is punished as a crime, under a variety of laws and ordinances, in every State of the Union. The Task Force on Drunkenness of the President's Commission on Law Enforcement and Administration of Justice has reported that '(t)wo million arrests in 1965-one of every three arrests in America-were for the offense of public drunkenness.' Drunkenness offenders make up a large percentage of the population in short-term penal institutions. Their arrest and processing place a tremendous burden upon the police, who are called upon to spend a large amount of time in arresting for public intoxication and in appearing at trials for public intoxication, and upon the entire criminal process.
It is not known how many drunkenness offenders are chronic alcoholics, but '(t)here is strong evidence * * * that a large number of those who are arrested have a lengthy history of prior drunkenness arrests.' 'There are instances of the same person being arrested as many as forty times in a single year on charges of drunkenness, and every large urban center can point to cases of individuals appearing before the courts on such charges 125, 150, or even 200 times in the course of a somewhat longer period.'
It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a 'revolving door'-leading from arrest on the street through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest. The jails, overcrowded and put to a use for which they are not suitable, have a destructive effect upon alcoholic inmates.
Finally, most commentators, as well as experienced judges, are in agreement that 'there is probably no drearier example of the futility of using penal sanctions to solve a psychiatric problem than the enforcement of the laws against drunkenness.'
'If all of this effort, all of this investment of time and money, were producing constructive results, then we might find satisfaction in the situation despite its costs. But the fact is that this activity accomplishes little that is fundamental. No one can seriously suggest that the threat of fines and jail sentences actually deters habitual drunkenness or alcoholic addiction. * * * Nor, despite the heroic efforts being made in a few localities, is there much reason to suppose that any very effective measures of cure and therapy can or will be administered in the jails. But the weary process continues, to the detriment of the total performance of the law-enforcement function.'
It bears emphasis that these data provide only a context for consideration of the instant case. They should not dictate our conclusion. The questions for this Court are not settled by reference to medicine or penology. Our task is to determine whether the principles embodied in the Constitution of the United States place any limitations upon the circumstances under which punishment may be inflicted, and, if so, whether, in the case now before us, those principles preclude the imposition of such punishment.
It is settled that the Federal Constitution places some substantive limitation upon the power of state legislatures to define crimes for which the imposition of punishment is ordered. In Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Court considered a conviction under a California statute making it a criminal offense for a person '(t)o be addicted to the use of narcotics.' At Robinson's trial, it was developed that the defendant had been a user of narcotics. The trial court instructed the jury that 'to be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that (it) is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms.' 370 U.S., at 662-663, 82 S.Ct., at 1418.
This Court reversed Robinson's conviction on the ground that punishment under the law in question was cruel and unusual, in violation of the Eighth Amendment of the Constitution as applied to the States through the Fourteenth Amendment. The Court noted that narcotic addiction is considered to be an illness and that California had recognized it as such. It held that the State could not make it a crime for a person to be ill. Although Robinson had been sentenced to only 90 days in prison for his offense, it was beyond the power of the State to prescribe such punishment. As Mr. Justice STEWART, speaking for the Court, said: '(e)ven one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.' 370 U.S., at 667, 82 S.Ct., at 1421.
Robinson stands upon a principle which, despite its sublety, must be simply stated and respectfully applied because it is the foundation of individual liberty and the cornerstone of the relations between a civilized state and its citizens: Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change. In all probability, Robinson at some time before his conviction elected to tak narcotics. But the crime as defined did not punish this conduct. The statute imposed a penalty for the offense of 'addiction'-a condition which Robinson could not control. Once Robinson had become an addict, he was utterly powerless to avoid criminal guilt. He was powerless to choose not to violate the law.
In the present case, appellant is charged with a crime composed of two elements-being intoxicated and being found in a public place while in that condition. The crime, so defined, differs from that in Robinson. The statute covers more than a mere status. But the essential constitutional defect here is the same as in Robinson, for in both cases the particular defendant was accused of being in a condition which he had no capacity to change or avoid. The trial judge sitting as trier of fact found upon the medical and other relevant testimony, that Powell is a 'chronic alcoholic.' He defined appellant's 'chronic alcoholism' as 'a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol.' He also found that 'a chronic alcoholic does not appear in public by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism.' I read these findings to mean that appellant was powerless to avoid drinking; that having taken his first drink, he had 'an uncontrollable compulsion to drink' to the point of intoxication; and that, once intoxicated, he could not prevent himself from appearing in public places.
Article 477 of the Texas Penal Code is specifically directed to the accused's presence while in a state of intoxication, 'in any public place, or at any private house except his own.' This is the essence of the crime. Ordinarily when the State proves such presence in a state of intoxication, this will be sufficient for conviction, and the punishment prescribed by the State may, of course, b validly imposed. But here the findings of the trial judge call into play the principle that a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease. This principle, narrow in scope and applicability, is implemented by the Eighth Amendment's prohibition of 'cruel and unusual punishment,' as we construed that command in Robinson. It is true that the command of the Eighth Amendment and its antecedent provision in the Bill of Rights of 1689 were initially directed to the type and degree of punishment inflicted. But in Robinson we recognized that 'the principle that would deny power to exact capital punishment for a petty crime would also deny power to punish a person by fine or imprisonment for being sick.' 370 U.S., at 676, 82 S.Ct., at 1425 (Mr. Justice DOUGLAS, concurring.)
The findings in this case, read against the background of the medical and sociological data to which I have referred, compel the conclusion that the infliction upon appellant of a criminal penalty for being intoxicated in a public place would be 'cruel and inhuman punishment' within the prohibition of the Eighth Amendment. This conclusion follows because appellant is a 'chronic alcoholic' who, according to the trier of fact, cannot resist the 'constant excessive consumption of alcohol' and does not appear in public by his own volition but under a compulsion' which is part of his condition.
I would reverse the judgment below.

## Notes

* ↑ I do not understand the relevance of our knowing 'very little about the circumstances surrounding the drinking bout which resulted in this conviction, or about Leroy Powell's drinking problem.' (Opinion of MARSHALL, J., ante, at 521-522). We do not 'traditionally' sit as a trial court, much less as a finder of fact. I submit that we must accept the findings of the trial court as they were made and not as the members of this Court would have made them had they sat as triers of fact. I would add, lest I create a misunderstanding, that I do not suggest in this opinion that Leroy Powell had a constitutional right, based upon the evidence adduced at his trial, to the findings of fact that were made by the county court; only that once such findings were in fact made, it became the duty of the trial court to apply the relevant legal principles and to declare that appellant's conviction would be constitutionally invalid. See infra, at 567 570.
* ↑ It is not foreseeable that findings such as those which are decisive here-namely that the appellant's being intoxicated in public was a part of the pattern of his disease and due to a compulsion symptomatic of that disease-could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct and do not typically flow from and are not part of the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the disease as it afflicts him, nothing herein would prevent his punishment.
* ↑ The term has been variously defined. The National Council on Alcoholism has defined 'alcoholic' as 'a person who is powerless to stop drinking and whose drinking seriously alters his normal living pattern.' The American Medical Association has defined alcoholics as 'those excessive drinkers whose dependence on alcohol has attained such a degree that it shows a noticeable disturbance or interference with their bodily or mental health, their interpersonal relations, and their satisfactory social and economic functioning.'
* ↑ It ranks among the top four public health problems of the country. M. Block, Alcoholism-Its Facets and Phases (1962).
* ↑ American Medical Association: Report of Reference Committee on Medical Education and Hospitals, Proceedings of the House of Delegates, Seattle, Wash., Nov. 27-29, 1956, p. 33; 163 J.A.M.A. 52 (1957).
* ↑ See generally E. Jellinek, The Disease Concept of Alcoholism (1960).
* ↑ See, e.g., H. Haggard & E. Jellinek, Alcohol Explored (1942); O. Diethelm, Etiology of Chronic Alcoholism (1955); A. Ullman, To Know the Difference (1960); D. Pittman & C. Snyder, Society, Culture, and Drinking Patterns (1962).
* ↑ See Alcoholism, Public Intoxication and the Law, 2 Col.J. Law & Soc.Prob. 109, 113 (1966).
* ↑ See Alcohol and Alcoholism 24-28 (published by the Public Health Service of the U.S. Department of Health, Education, and Welfare). 'Although many interesting pieces of evidence have been assembled, it is not yet known why a small percentage of those who use alcohol develop a destructive affinity for it.' The Treatment of Alcoholism 9.
* ↑ See E. Jellinek, The Disease Concept of Alcoholism 35-41 (1960).
* ↑ Alcoholism 3 (1963) (published by the Public Health Service of the U.S. Department of Health, Education, and Welfare). See also Bacon, Alcoholics Do Not Drink, in Understanding Alcoholism, 315 Annals 55-64 (1958).
* ↑ A. Ullman, To Know the Difference 22 (1960).
* ↑ In response to the question 'can a chronic alcoholic be medically treated and returned to society as a useful citizen?' Dr. Wade testified as follows:
* ↑ The Treatment of Alcoholism 13.
* ↑ Id., at 13-26. See also Alcohol and Alcoholism 31-40; Plaut 53-85.
* ↑ See A. Ullman, To Know the Difference 173-191 (1960).
* ↑ For the most part these laws and ordinances, like Article 477 of the Texas Penal Code, cover the offense of being drunk in a public place. See Task Force Report: Drunkenness 1 (1967) (published by The President's Commission on Law Enforcement and Administration of Justice) (hereafter cited as Task Force Report).
* ↑ Ibid.
* ↑ See Alcoholism, Public Intoxication and the Law, 2 Col.J.Law. & Soc.Prob. 109, 110 (1966).
* ↑ See Task Force Report 3-4.
* ↑ Id., at 1.
* ↑ F. Allen, The Borderland of Criminal Justice 8 (1964). It does not, of course, necessarily follow from the frequency of his arrests that a person is a chronic alcoholic.
* ↑ See D. Pittman & C. Gordon, Revolving Door: A Study of the Chronic Police Case Inebriate (1958). See also Pittman, Public Intoxication and the Alcoholic Offender in American Society, Appendix A to Task Force Report.
* ↑ See, e.g., MacCormick, Correctional Views on Alcohol, Alcoholism, and Crime, 9 Crime & Delin. 15 (1963).
* ↑ See, e.g., Murtagh, Arrests for Public Intoxication, 35 Fordham L.Rev. 1 (1966).
* ↑ M. Guttmacher & H. Weihofen, Psychiatry and the Law 319 (1952).
* ↑ F. Allen, The Borderland of Criminal Justice 8-9 (1964).
* ↑ 'We would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick. This age of enlightenment cannot tolerate such barbarous action.' 370 U.S., at 678, 82 S.Ct., at 1426 (Douglas, J., concurring).
* ↑ The Court noted in Robinson that narcotic addiction 'is apparently an illness which may be contracted innocently or involuntarily.' 370 U.S., at 667, 82 S.Ct., at 1420. In the case of alcoholism it is even more likely that the disease may be innocently contracted, since the drinking of alcoholic beverages is a common activity, generally accepted in our society, while the purchasing and taking of drugs are crimes. As in Robinson, the State has not argued here that Powell's conviction may be supported by his 'voluntary' action in becoming afflicted.
* ↑ In Robinson, we distinguished between punishment for the 'status' of addiction and punishment of an 'act':
* ↑ I also read these findings to mean that appellant's disease is such that he cannot be deterred by Article 477 of the Texas Penal Code from drinking to excess and from appearing in public while intoxicated. See n. 23, supra.
* ↑ See, e.g., Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). See generally Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635, 636-645 (1966).
* ↑ Convictions of chronic alcoholics for violations of public intoxication statutes have been invalidated on Eighth Amendment grounds in two circuits. See Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966); Driver v. Hinnant, 356 F.2d 761 (C.A.4th Cir. 1966).
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