# Powell v. Texas (392 U.S. 514)

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## Concurring Opinion

    White

## Dissenting Opinion

    Fortas
United States Supreme Court
392 U.S. 514
Powell v. Texas
Appeal from the County Court of Law No. 1 of Travis County, Texas
No. 405. Argued: March 7, 1968. --- Decided: June 17, 1968.
Appellant was arrested and charged with being found in a state of intoxication in a public place, in violation of Art. 477 of the Texas Penal Code. He was tried in the Corporation Court of Austin, and found guilty. He appealed to the County Court of Travis County, and after a trial de novo, he was again found guilty. That court made the following "findings of fact": (1) chronic alcoholism is a disease which destroys the afflicted person's will power to resist the constant, excessive use of alcohol, (2) a chronic alcoholic does not appear in public by his own volition but under a compulsion symptomatic of the disease of chronic alcoholism, and (3) appellant is a chronic alcoholic who is afflicted by the disease of chronic alcoholism; but ruled as a matter of law that chronic alcoholism was not a defense to the charge. The principal testimony was that of a psychiatrist, who testified that appellant, a man with a long history of arrests for drunkenness, was a "chronic alcoholic" and was subject to a "compulsion" which was "not completely overpowering," but which was "an exceedingly strong influence."
Held: The judgment is affirmed. Pp. 517-554.
MR. JUSTICE MARSHALL, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN, concluded that:
    1. The lower court's "findings of fact" were not such in any recognizable, traditional sense, but were merely premises of a syllogism designed to bring this case within the scope of Robinson v. California, 370 U.S. 660 (1962). P. 521.
    2. The record here is utterly inadequate to permit the informed adjudication needed to support an important and wide-ranging new constitutional principle. Pp. 521-522.
    3. There is no agreement among medical experts as to what it means to say that "alcoholism" is a "disease," or upon the "manifestations of alcoholism," or on the nature of a "compulsion." Pp. 522-526.
    4. Faced with the reality that there is no known generally effective method of treatment or adequate facilities or manpower for a full-scale attack on the enormous problem of alcoholics, it cannot be asserted that the use of the criminal process to deal with the public aspects of problem drinking can never be defended as rational. Pp. 526-530.
    5. Appellant's conviction on the record in this case does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Pp. 531-537.
       (a) Appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion, and thus, as distinguished from Robinson v. California, supra, was not being punished for a mere status. P. 532.
       (b) It cannot be concluded, on this record and the current state of medical knowledge, that appellant suffers from such an irresistible compulsion to drink and to get drunk in public that he cannot control his performance of these acts and thus cannot be deterred from public intoxication. In any event, this Court has never articulated a general constitutional doctrine of mens rea, as the development of the doctrine and its adjustment to changing conditions has been thought to be the province of the States. Pp. 535-536.
MR. JUSTICE BLACK, joined by MR. JUSTICE HARLAN, concluded:
    1. Public drunkenness, which has been a crime throughout our history, is an offense in every State, and this Court certainly cannot strike down a State's criminal law because of the heavy burden of enforcing it. P. 538.
    2. Criminal punishment provides some form of treatment, protects alcoholics from causing harm or being harmed by removing them from the streets, and serves some deterrent functions; and States should not be barred from using the criminal process in attempting to cope with the problem. Pp. 538-540.
    3. Medical decisions based on clinical problems of diagnosis and treatment bear no necessary correspondence to the legal decision whether the overall objectives of criminal law can be furthered by imposing punishment; and States should not be constitutionally required to inquire as to what part of a defendant's personality is responsible for his actions and to excuse anyone whose action was the result of a "compulsion." Pp. 540-541.
    4. Crimes which require the State to prove that the defendant actually committed some proscribed act do not come within the scope of Robinson v. California, supra, which is properly limited to pure status crimes. Pp. 541-544.
    5. Appellant's argument that it is cruel and unusual to punish a person who is not morally blameworthy goes beyond the Eighth Amendment's limits on the use of criminal sanctions and would create confusion and uncertainty in areas of criminal law where our understanding is not complete. Pp. 544-546.
    6. Appellant's proposed constitutional role is not only revolutionary but it departs from the premise that experience in making local laws by local people is the safest guide for our Nation to follow. Pp. 547-548.
MR. JUSTICE WHITE concluded:
    While Robinson v. California, supra, would support the view that a chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or being drunk, appellant's conviction was for the different crime of being drunk in a public place; and though appellant showed that he was to some degree compelled to drink and that he was drunk at the time of his arrest, he made no showing that he was unable to stay off the streets at that time. Pp. 548-554.
Don L. Davis argued the cause for appellant, pro hac vice. With him on the briefs was Tom H. Davis.
David Robinson, Jr., argued the cause for appellee. With him on the briefs were Crawford C. Martin, Attorney General of Texas, George M. Cowden, First Assistant Attorney Geheral, R. L. Lattimore and Lonny F. Zwiener, Assistant Attorneys General, and A. J. Carubbi, Jr.
Peter Barton Hutt argued the cause for the American Civil Liberties Union et al., as amici curiae, urging reversal. With him on the brief was Richard A. Merrill.
Briefs of amici curiae, urging reversal, were filed by Paul O'Dwyer for the National Council on Alcoholism, and by the Philadelphia Diagnostic and Relocation Services Corp.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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