"...he had been arrested about a hundred times for being drunk, and a police officer confirmed seventy-three arrests in Austin alone."

An amazing peek into the minds of those who determine the fates of so many of us who have drug and alcohol addictions.... 1999 The University of Texas School of Law American Journal of Criminal Law Summer, 1999 26 Am. J. Crim. L. 401 Powell v. Texas: The Case of the Intoxicated Shoeshine Man Some Reflections a Generation Later by a Participant NAME: David Robinson, Jr. * BIO:

* Professor of Law, George Washington University Law School; B.A. 1950, Reed College; J.D. 1956, Columbia Law School; LL.M. 1965, Harvard Law School. The research assistance of Robb Chase, Eric Conn, Michael Hurst, and the George Washington Law School is gratefully acknowledged, as are the comments on a draft of this article by Don L. Davis and Peter Barton Hutt, both of whom participated in the briefs and argument, urging reversal of the conviction of Leroy Powell. Additional helpful observations were made by many members of the George Washington Law School faculty.

SUMMARY: ... For over 350 years, public intoxication was treated as a criminal offense. ... The Easter federal court interpreted this legislation as impliedly creating an exception to the prohibition of public intoxication where the defendant was a chronic alcoholic. ... Justice Fortas, who had represented Monte Durham and successfully assisted in revolutionizing the insanity defense in the District of Columbia to exculpate those whose criminal act was a product of a mental disease, was presumably not averse to achieving a similarly enlightened result throughout the nation. ... This contention was similar to that which Justice Fortas had made in private practice fourteen years earlier as appointed counsel for Monte Durham, when he urged that the United States Court of Appeals for the District of Columbia adopt an insanity defense couched in similar terms: "A test of criminal responsibility should focus not on intellectual capacity to discern right from wrong but upon the total competence of the accused, both rational and emotional, to regulate his conduct in accordance with the norms of society." ... Thus, Justice Fortas denied intending to create a general doctrine of criminal responsibility in this case. ... TEXT: [*402]

I. Introduction Powell v. Texas ⁿ¹ is an extraordinarily important contributor to criminal law theory and practice. In the course of ruling on whether an alcoholic could be criminally convicted and punished for being intoxicated in a public place, consistent with the prohibition of "cruel and unusual punishments" of the Eighth Amendment, ⁿ² the Supreme Court was required to consider the constitutional status of the actus reus requirement, the insanity defense, the meaning and legal significance of disease and volitional incapacity, limits on the use of criminal sanctions, and what constitutes the constitutional restraints on social policy in the empirically and normatively complex area of substance abuse.

As a young teacher of criminal law and a former federal and state prosecutor, I was intrigued with Powell when the Supreme Court noted probable jurisdiction of the appeal of his conviction for public drunkenness in the fall of 1967. I had been appalled at the simplistic pieties of the opinion of the Court in the prior case of Robinson v. California, ⁿ³ in which [*403] the Court had struck down a statute prohibiting being addicted to the use of narcotics. Furthermore, I was acquainted with lead counsel representing most of the amici who would be likely to appear on the other side, and I much admired the quality of his work in similar litigation. It was clear that the representation of Powell and amici supporting him would be first rate. On the other hand, institutional and resource constraints often precluded effective appellate advocacy by state attorneys general offices, and I believed that it was important that the response prevent Texas from being overwhelmed in the litigation, to the general disadvantage of the rationality of the law of criminal responsibility throughout the nation. ⁿ⁴ There was a real danger that this might occur if the Warren Court seized upon the case for impressionistically-considered law reform purposes. Accordingly, I wrote to the Attorney General of Texas to suggest various approaches that might be taken to sustain the conviction. After correspondence back and forth, I was invited by the Texas Attorney General, Crawford C. Martin, to come to Austin to prepare a draft of the State's brief, and ultimately, to also present its oral argument to the Court. This article is an account of the litigation of that case by counsel representing both of the parties and the amici, as well as a discussion of the issues and policies involved and its significance in later developments of the law.

II. The Facts of the Case Leroy Powell, aged sixty-six, was convicted of being "found in a state of intoxication" in a public place in violation of the Texas Penal Code. ⁿ⁵ He was found guilty and fined twenty dollars. ⁿ⁶ This was not a unique experience for him; he testified that he had been arrested about a hundred times for being drunk, and a police officer confirmed seventy-three arrests in Austin alone. ⁿ⁷ He traced his drinking back over a period of forty years, and, although he had a residence, a wife, a daughter, and a job as a shoeshine man, when drunk he usually slept in public places such as the [*404] sidewalk. ⁿ⁸

In addition to his extreme recidivism, Mr. Powell was unusual in one additional respect: He had a relationship with a law firm, which had handled several workmen's compensation claims for him. ⁿ⁹ According to his former lawyer, Mr. Don L. Davis, the firm had "tired of lending him money to get out of jail." ⁿ¹⁰ Davis regarded Powell as a "nice, docile" individual. ⁿ¹¹ Davis had clerked a year for the Texas Supreme Court and was in his first year of private practice. ⁿ¹² He proceeded to create a formidable record for a legal challenge to the "revolving door" of arrest, detention, and release in which Powell seemed caught. ⁿ¹³ After he was found guilty by the Corporation Court of the City of Austin and fined twenty dollars, Powell appealed to the Travis County Court, a court of record, where he received a trial de novo. ⁿ¹⁴ The state called a single witness, the arresting police officer, who stated that he had observed Powell on Hamilton Street in Austin, a public place, and that Powell staggered when he walked, that he smelled strongly of alcohol, and that his speech was slurred. ⁿ¹⁵ The officer stated that it was his opinion that Powell was "very intoxicated." ⁿ¹⁶ On cross-examination, the officer testified that Powell had been non-violent and cooperative during his arrest. ⁿ¹⁷

The defense called three witnesses. ⁿ¹⁸ One, a police lieutenant in charge of the Austin Identification Section, identified arrest records, which indicated Powell had been arrested seventy-two times for public drunkenness in Austin and only once for disturbing the peace. ⁿ¹⁹ The first arrest was in 1949 and the last was the offense charged. ⁿ²⁰ The defense also presented the testimony of Powell, who stated that he estimated that he had been arrested "about a hundred times" during his many years of drinking, [*405] sometimes in an adjacent county. ⁿ²¹ His testimony as to whether he felt he had the willpower to control his drinking was conflicting, depending on whether he was being led on direct or cross-examination. ⁿ²² He did testify that he had only one drink on the morning of the trial since he knew that he had to appear in court that afternoon, although he had limited funds to pay for further drinking as well. ⁿ²³

Dr. David Wade, a highly-qualified psychiatrist especially interested in alcohol problems, was the other defense witness. ⁿ²⁴ He testified that alcoholism is medically recognized as a disease manifested by the chronic, excessive consumption of alcohol and that Powell was a "chronic alcoholic" whose appearance in public was involuntary. ⁿ²⁵ He also testified that confinement in jail or a fine would not result in rehabilitation, although medical treatment would be helpful. ⁿ²⁶ Making the conventional distinction between an alcoholic's inability to drink moderately after a drinking episode commenced, and ability to totally abstain, ⁿ²⁷ he said with respect to the latter that alcoholics experience "a compulsion, and this compulsion, while not completely overpowering, is a very strong influence, an exceedingly strong influence, and this compulsion coupled with the firm belief in their mind that they are going to be able to handle it from now on causes their judgment to be somewhat clouded." ⁿ²⁸

While convicting the defendant, the trial court entered "findings of fact" submitted not by the prevailing party but by the defense:

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 of chronic alcoholism. ⁿ²⁹ In its conclusion of law, the court held these findings not to be a [*406] defense to the offense charged. ⁿ³⁰ It imposed a fine of fifty dollars. ⁿ³¹ There being no further review provided in the Texas courts, Powell then appealed directly to the United States Supreme Court. ⁿ³²

III. The Road to Powell Alcohol abuse has been a problem on the North American continent since the first colonists brought alcohol with them from Europe. ⁿ³³ They introduced the use of "firewater" to native Americans, who proceeded to join colonists in its abuse. ⁿ³⁴ For over 350 years, public intoxication was treated as a criminal offense. ⁿ³⁵ Various types of statutes have been utilized, such as those prohibiting public intoxication, loitering, drinking in public, drunk and disorderly conduct, and vagrancy. ⁿ³⁶ By 1965, it was estimated that there were two million arrests in the United States for public drunkenness, comprising about one-third of all arrests. ⁿ³⁷ In some jurisdictions, the task would be assigned to police "bum squads," who would place the inebriated person in a "boozer cruiser" to be transported to the "drunk tank" at the jail. ⁿ³⁸ If the arrestee could afford bail, he generally would be released from jail after sobering up, and in some jurisdictions the case would be dropped upon forfeiture of bail. ⁿ³⁹ Otherwise, the arrestee would be taken to court, where a sentence of a few days confinement might be imposed. ⁿ⁴⁰ Upon release, the chronic offender was "more likely than not to return to his former haunts on skid row, with [*407] no money, no job and no plans. Often he is rearrested within a matter of days or hours." ⁿ⁴¹

The legal attack on the status quo initially took place in the courts. ⁿ⁴² The central precedent relied upon was the then recent case of Robinson v. California. ⁿ⁴³ Lawrence Robinson had been arrested in Los Angeles and charged under a statute making it a misdemeanor to "use ... or be addicted to the use of narcotics." ⁿ⁴⁴ The trial judge instructed the jurors that the defendant could be convicted if they found either that he had used narcotics in Los Angeles County or that he had the "status or condition" of being addicted to the use of narcotics. ⁿ⁴⁵ The jury returned a general verdict of guilty, thus creating the possibility that the conviction rested on a finding of addiction alone. ⁿ⁴⁶ Following an unsuccessful appeal to the Appellate Department of the Los Angeles County Superior Court, Robinson appealed to the United States Supreme Court. ⁿ⁴⁷ In a brief and strikingly incoherent opinion, the latter reversed the conviction. ⁿ⁴⁸

The Court purported to recognize "the authority of the State in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs" as "too firmly established to be successfully called in question." ⁿ⁴⁹ Furthermore, it conceded that "[a] State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders." ⁿ⁵⁰ The Court nevertheless held the statutory addiction proscription violative of the Cruel and Unusual Punishment Clause of the Eighth Amendment, which for the first time, it applied to the states under the Fourteenth Amendment. ⁿ⁵¹ There was no discussion or even mention of the incorporation question in the Court's opinion.

In an opinion written by Justice Potter Stewart, the majority presented [*408] several lines of justification. One was that the statute authorizes punishment for a status, not "use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration." ⁿ⁵² The rationale for this proscription of status criminality was not given. ⁿ⁵³ Second, the Court stated that narcotics addiction is a disease, relying on a concession of counsel for California in the Appellee's Brief, ⁿ⁵⁴ and compared it to mental illness, leprosy, and venereal disease. ⁿ⁵⁵ No definitions of addiction or disease for constitutional purposes were attempted, nor was there any explanation of why something that might be labeled a disease might not also permissibly be a crime. ⁿ⁵⁶ Thirdly, the majority observed that addiction was "an illness which may be contracted innocently or involuntarily," as having been the result of medical treatment or prenatal exposure. ⁿ⁵⁷ There was no suggestion that these had been the misfortunes of Robinson, nor was there any exploration of the meaning or purposes of a volitional action requirement being imposed by the Constitution. Indeed, the Court had explicitly reaffirmed [*409] the authority of the states to impose criminal sanctions against "the unauthorized ... purchase or possession of narcotics within its borders." ⁿ⁵⁸ This statement is hard to square with the imposition of a general constitutional requirement of freely volitional conduct in the context of those who are addicted, as the Court may have conceived that categorization, although the opinion does not explicitly mention addicts as being among those who might be legally punished for purchase or possession of drugs.

The majority suggested that a state might appropriately utilize civil measures against addicts "by compulsory treatment, involving quarantine, confinement, or sequestration." ⁿ⁵⁹ It did not consider how such "treatment," with its often indefinite length and unpleasant modalities, was less cruel than treating addiction as a minor crime.

Justice Douglas filed a concurring opinion expressing horror at upholding a statute that "permitted sick people to be punished for being sick." ⁿ⁶⁰ He also upped the emotional ante by quoting extreme, "walking dead" descriptions of drug addicts. ⁿ⁶¹ Justice Douglas also stated that while civil confinement of addicts was permissible, criminal conviction with its resulting stigmatization was not. ⁿ⁶²

Justice Harlan also concurred, but much more subtlety and cautiously. He stated that he was:

not prepared to hold that on the present state of medical knowledge it is completely irrational and hence unconstitutional for a State to conclude that narcotics addiction is something other than an illness nor that it amounts to cruel and unusual punishment for the State to subject narcotics addicts to its criminal law. ⁿ⁶³ Nevertheless, he concluded that it was arbitrary to punish addiction alone, which was a bare desire to commit a criminal act. ⁿ⁶⁴

Justice Clark dissented on the basis that he interpreted the California statute to rationally permit criminal conviction for the addicts who retain self control in order to cure them, while under another provision, it permitted longer civil commitment in a hospital for addicts without self control. ⁿ⁶⁵ Justice White dissented also, viewing the statute not to be directed to Robinson's status, illness, or condition, but rather as a conviction for habitual use of narcotics immediately prior to his arrest, [*410] without any specific proof required that the use occurred in that county. ⁿ⁶⁶ On the other hand, Justice White stated that if Robinson's conviction was based on "sheer status, condition or illness or if he was convicted for being an addict who had lost his power of self-control, I would have other thoughts about this case." ⁿ⁶⁷ Cassandra-like, Justice White went on to suggest the possibility that the ruling of the majority also might be applied to strike down use of narcotics by an addict. ⁿ⁶⁸ He concluded by labeling the application of the Cruel and Unusual Punishment Clause a "novel" excursion into an area in which it lacked expertise, one that would be precluded by its aversion to substantive due process in the area of economic regulation. ⁿ⁶⁹

Two years following the decision in Robinson, a campaign to force change in the conventional criminal law approach to addressing public drunkenness began in the District of Columbia. Mr. Peter Barton Hutt, a young, energetic, and creative associate with the firm of Covington and Burling, served as a consultant on drunkenness to the President's Commission on Laws Enforcement and the Administration of Justice and the contemporaneous President's Commission on Crime in the District of Columbia. ⁿ⁷⁰ He was also Chairman of the Board of Directors of the Washington, D.C. Council on Alcoholism and served on other alcoholism reform organizations. ⁿ⁷¹ In his many litigation efforts on behalf of defendants, Hutt urged that the principles of Robinson should be extended to end criminalization of public drunkenness by chronic alcoholics. His reform efforts began in the District of Columbia lower trial courts.

The prosecutions in the first four test cases were dropped by counsel for the city prior to trial to prevent such a ruling, upon appointment of Hutt for the defense. ⁿ⁷² The trial court prevented a repetition of this procedure with respect to the fifth case. ⁿ⁷³ It involved one DeWitt Easter, who had a long record of arrests for alcohol-related offenses. ⁿ⁷⁴ Easter [*411] was convicted and appealed. ⁿ⁷⁵ Later, a habeas corpus proceeding was filed in the United States District Court for the Eastern District of North Carolina on behalf of a Joe Driver, another alcoholic with a lengthy record of convictions for public intoxication who had been given a two year sentence as a recidivist. ⁿ⁷⁶ Although unsuccessful in the North Carolina Supreme Court, ⁿ⁷⁷ Driver filed a habeas corpus petition in the United States District Court, alleging that his confinement violated the Constitution under Robinson. ⁿ⁷⁸ When relief was denied, ⁿ⁷⁹ he appealed to the Court of Appeals for the Fourth Circuit. ⁿ⁸⁰ Hutt, assisted by Mr. Richard A. Merrill and Mr. Michael S. Horne, all with the firm of Covington and Burling, filed an amicus brief on behalf of the American Civil Liberties Union and the Washington Area Council on Alcoholism. ⁿ⁸¹ While recognizing that public intoxication is not, like Robinson's addiction, a pure status, the court of appeals declared that his public intoxication should be treated the same way. ⁿ⁸² Public intoxication was among the symptoms of a disease - alcoholism - and represented a presence in public that was "not his act, for he did not will it." ⁿ⁸³ The court accordingly ordered Driver's release unless he was civilly committed. ⁿ⁸⁴ The State did not seek Supreme Court review of this decision, depriving reform advocates of the possibility of a test case that was stronger on its facts than Powell.

Two months following the court of appeals decision in Driver, the advocates of reform gained another important victory. The United States Court of Appeals for the District of Columbia Circuit decided an appeal from the District of Columbia Court of Appeals, which had upheld the conviction of DeWitt Easter. ⁿ⁸⁵ Again, the conviction was reversed. ⁿ⁸⁶ The United States Court of Appeals primarily rested its holding on its interpretation of a previously unenforced 1947 act of Congress entitled "Rehabilitation of Alcoholics," which declared a chronic alcoholic "a sick person" and authorized the courts of the District of Columbia to direct appropriate treatment. ⁿ⁸⁷ The Easter federal court interpreted this legislation as impliedly creating an exception to the prohibition of public [*412] intoxication where the defendant was a chronic alcoholic. ⁿ⁸⁸ In important dicta, four of the eight judges of the Easter federal court added that they would reach the same conclusion without the statute for reasons somewhat similar to those given in Driver ⁿ⁸⁹ and Robinson: ⁿ⁹⁰

Our decision would be the same were we without the guidance furnished by the Act of 1947. One who is a chronic alcoholic cannot have the mens rea necessary to be held responsible criminally for being drunk in public... [since] a chronic alcoholic is in fact a sick person who has lost control over his use of alcoholic beverages. ⁿ⁹¹ The four judges also relied upon the constitutional decision of the Fourth Circuit in Driver: "To convict such a person of a crime would also offend the Eighth Amendment." ⁿ⁹²

IV. Leroy Powell's Intoxication Case is Presented to the Supreme Court of the United States

A. The Brief for Powell Mr. Don L. Davis, the young counsel for Leroy Powell, filed a strong brief. Relying on the impressive record that he had created in the trial court, including the findings of fact and conclusions that he had submitted to the trial judge and that the latter had accepted, he stated that the question presented to the Supreme Court was: "Whether the conviction of a chronic alcoholic for being in a state of intoxication in a public place violates the [Eighth] and Fourteenth Amendments to the United States Constitution." ⁿ⁹³

The brief went on to succinctly summarize Powell's contention:

Appellant submits that any statute which criminally punishes an ill person for conduct over which he has no control is unconstitutional in violation of the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment. Appellant's contention is limited to the situation presented by this appeal, where the defendant is afflicted with the disease of chronic alcoholism, which destroys his will power to resist the constant, excessive consumption of alcohol and his appearance in public in a state of intoxication is involuntary. ⁿ⁹⁴

Tracing the long history of hostility to intoxication from Biblical times to [*413] colonial days, the brief urged that the traditional moralistic and criminal law approaches to alcoholism be replaced by the modern medical understanding that alcoholism is a disease that destroys "the alcoholic's will power to resist the constant, excessive consumption of alcohol." ⁿ⁹⁵

Turning to the relevant Eighth Amendment standards, the brief noted the strikingly expansive dicta of the Court in Trop v. Dulles, ⁿ⁹⁶ in which Chief Justice Warren had written:

The Court [has] recognized ... that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. ⁿ⁹⁷ Appellant's brief then discussed the decision of the Supreme Court in Robinson v. California, ⁿ⁹⁸ which it interpreted as striking down "any law which made a criminal offense of suffering from a disease." ⁿ⁹⁹ The brief proceeded to review the public intoxication decisions in Driver ⁿ¹⁰⁰ and Easter, ⁿ¹⁰¹ involving statues "substantially indistinguishable from Art. 477, Texas Penal Code." ⁿ¹⁰² The brief then contended that criminal punishment of alcoholics for public intoxication was dysfunctional: It did not rehabilitate or deter (citing Powell's own history as evidence, as well as reports of various commissions and the medical evidence in the case). ⁿ¹⁰³ Retribution was also inappropriate, as "our morality does not permit us to punish for illness." ⁿ¹⁰⁴ The brief did not mention the isolation function of the criminal sanction, perhaps to leave open the possibility of civil measures to that end.

B. The A.C.L.U., A.M.A., et al. Brief Supporting Powell A more lengthy brief supporting Leroy Powell was filed by Mr. Peter Barton Hutt and Mr. Richard A. Merrill on behalf of the American Civil Liberties Union, the American Medical Association, the Correctional Association of New York, the Methodist Board of Christian Social Concerns, the North American Association of Alcoholism Programs, the North American Judges Association, the North Conway Institute, the [*414] Washington, D.C. Area Council on Alcoholism, and the Texas Commission on Alcoholism. ⁿ¹⁰⁵ The brief reflected the extensive experience of counsel in the two previous cases in the United States courts of appeal, in the lower courts, and in service on the many commissions and committees dealing with drunkenness.

After reviewing the record in the trial court and its findings that seemed to put Powell within the protection of the decision in Robinson, the brief argued that the prohibition of cruel and unusual punishments "proscribe punishment that is found irrational or uncivilized when measured against contemporary national standards." ⁿ¹⁰⁶ It attacked the punishment of Leroy Powell as both irrational and uncivilized. ⁿ¹⁰⁷ Since he had been proven to be powerless to avoid public intoxication, he had not committed an actus reus, defined as a voluntary act. ⁿ¹⁰⁸ Not only did this violate common law understandings of the requisites for criminal responsibility, it made retribution particularly inappropriate and cruel. ⁿ¹⁰⁹ He, like other chronic alcoholics, had not been deterred by his many punishments. ⁿ¹¹⁰ Indeed, these punishments made repetition of his intoxication more likely. ⁿ¹¹¹ Furthermore, he had not been effectively isolated from the community. ⁿ¹¹² What was needed was sympathetic recognition of his disease and the need for treatment, not punishment. ⁿ¹¹³ The brief then contended that the Court's decision in Robinson compelled reversal in Powell. ⁿ¹¹⁴ Both defendants suffered from illnesses. ⁿ¹¹⁵ Both of them acted involuntarily under the compulsion of their illnesses. ⁿ¹¹⁶ While it conceded that the California statute punished only the condition of [*415] addiction, "it did not have to decide whether the Eighth Amendment proscribes criminal punishment of a person who involuntarily exhibits a symptom of that condition, e.g., who repeatedly uses narcotics. The majority opinion makes clear, however, that to punish the symptoms of a disease would likewise be unconstitutional." ⁿ¹¹⁷ If it would be unconstitutional to punish a person for having a common cold, it would be unconstitutional to punish him for sneezing in public. ⁿ¹¹⁸ The brief urged that the recent precedents in the courts of appeal in Driver and Easter be followed. ⁿ¹¹⁹ It concluded that among the many salutary results would be improved health services to alcoholics, relieving law enforcement authorities of substantial burdens, and removing from the courts a major source of congestion. ⁿ¹²⁰

C. Other Amicus Briefs Additional amicus briefs, also urging reversal, were filed for the National Council on Alcoholism and the Philadelphia Diagnostic and Relocation Services Corporation. ⁿ¹²¹

Although the Texas Attorney General invited the attorneys general of the other states to file amicus briefs supporting the prosecution, none did so. ⁿ¹²² The only contentions that the conviction should be affirmed were therefore those of the appellee.

[*416]

D. The Briefs for Texas Following the decision in Easter, I had begun to do research on constitutional problems associated with prosecution of alcoholics for public intoxication. While the effect of that decision in decriminalizing public intoxication in the District of Columbia, where I worked, was immediately reflected on the downtown sidewalks and in the parks, I was personally less concerned about alcoholics than of the more sweeping implications of Easter and Robinson for doctrines and principles of criminal law generally. The danger of such a sweeping decision in Powell seemed real.

Primarily in procedural contexts, the so-called Warren Court had recently demonstrated that it would not be limited by previous constitutional interpretations in its attempt to make American criminal law more generous to defendants in criminal cases, who were disproportionately likely to be the disadvantaged. This primarily required changes in practices in the states, where the great bulk of criminal prosecutions took place. In 1961, the "criminal justice revolution" had been put into high gear with the requirement that the states exclude from criminal trials evidence obtained by unreasonable searches and seizures. ⁿ¹²³ The following year, the vague proscriptions of the Cruel and Unusual Punishment Clause were applied to the states without discussion. ⁿ¹²⁴ The right of indigent defendants to free counsel in felony cases came in 1963. ⁿ¹²⁵ Then, in 1964, the prohibition against compelled self-incrimination was extended to the states, ⁿ¹²⁶ as was the exclusion of a confession obtained while a suspect was denied access to counsel. ⁿ¹²⁷ In 1966, the privilege against self-incrimination had been famously expanded so as to limit the admissibility of confessions obtained during custodial police interrogation. ⁿ¹²⁸

The purpose here is not to question the appropriateness of any of these decisions. It is simply to illustrate the challenging climate faced by Texas in its effort to sustain before that Court the permissibility of utilizing criminal sanctions to maintain the status quo in the context of public intoxication, which at a glance seemed a Pdigmatic case of dysfunctional persecution of the already oppressed. It would not be enough to cite the [*417] antiquity of the acceptance of the existing practice or its extraordinary ubiquity, notwithstanding the constitutional text's limitation to cruel and unusual punishments. Its historical roots in the horrific cruelty of punishments in sixteenth and seventeenth century England ⁿ¹²⁹ had been recently rejected as controlling its scope in Robinson, which also involved jailing for a minor offense. Nor would it be persuasive to argue the moral iniquity of the alcoholics, that their situation was simply their own fault. The case presented many unusual issues which intersected criminal law theory, social and medical science, and philosophy, and I thought that the Texas Attorney General's Office might welcome outside suggestions with respect to their brief.

On October 13, 1967, I wrote the Attorney General. I outlined my previous teaching and research bearing on some of the issues, my familiarity with the litigation in the District of Columbia and the Fourth Circuit, and my working in Washington, D.C., where a decriminalization regime was being experienced on the streets. I volunteered to attempt to assist Texas, should that be desired. Initially, there was no response. On October 26, I wrote again, noting the sophistication and considerable experience of the opposition that they could expect, including Mr. Hutt and the American Civil Liberties Union; the likelihood of substantial national impact of the outcome; the inadequacy of the representation of the public in the District of Columbia litigation; and I furnished as references three members of the University of Texas law faculty, including its dean. ⁿ¹³⁰ While thanking me for my offer of help, the Attorney General's staff independently proceeded to draft an appellee's brief. It argued that alcoholics should be held responsible unless they could establish that they did not know the nature and consequences of their act and its wrongfulness, as was the case in Texas with other mental diseases; ⁿ¹³¹ that Powell was guilty under this standard; that there was

an irreconcilable conflict between the present thesis of the criminal law and the thesis ... implicit in the psychiatric view of man. Our social order accepts a postulate, held in varying degrees by most citizens and buttressed by religious tenet, that every man is endowed with the capacity to choose a correct course of behavior so long as he is able to detect it. In sePting the sick from the bad, we start with the indisputable ability of man to adhere to the right. ⁿ¹³² [*418] The draft brief also urged that Powell's compulsion was not completely overpowering, and that Robinson was distinguishable, since it involved a status crime. ⁿ¹³³ The staff did request my assistance in supplying authorities "bearing on alcoholism as a defense, that have come into existence since Robinson, Driver, and Easter. Also we would appreciate any other and further suggestions in the matter." ⁿ¹³⁴ In response to a telephone conversation with George Cowden, First Assistant to the Attorney General, I wrote at length to set forth what I believed would be most persuasive in supporting the state's position, including extensive references to empirical and analytical, as well as legal material bearing on the case. ⁿ¹³⁵ On the assumption that Texas was facing a skeptical and reform-oriented Court, I may have spent more of my time at the medical library of the National Institutes of Health in Bethesda, Maryland than in a law library. One of the things I learned was that the conventional belief in medical circles was that most chronic alcoholics had an ability to totally abstain from drinking, though not an ability to learn to drink moderately. ⁿ¹³⁶ I noted, "This letter contains considerable reference to material from other disciplines. I think this vital in this case before this Supreme Court." ⁿ¹³⁷

I also visited the District of Columbia misdemeanor court to get a sense of the practical functioning of a decriminalization regime. I spoke to its primary diagnostician - a nurse. She interviewed defendants who had been arrested for public intoxication and reported to the court whether she considered them to be chronic alcoholics. If an affirmative answer was accepted by the judge, the charge would be dismissed and the defendant's name entered in a book of alcoholics. Upon a subsequent arrest, such a person would only have to state that they were "in the book" and charges would be dismissed. I asked the nurse for her reaction to this process. [*419] She replied that personally she disapproved of it, stating that as a resident of an inner city neighborhood, she had to keep her children from playing outside for fear that they might be abused by alcoholics who gathered outside her apartment building.

After my letter was received in Texas, I was invited to go to Austin and draft an alternative brief, making the same points and elaborating upon them. I did so, and the resulting draft was accepted by the Attorney General (with minor alterations and editing) and filed in the case.

The brief first recast the Question Presented:

Whether imposition of a $ 50 fine (or 10 days in jail) for public intoxication by one who habitually drinks alcoholic beverages to excess in spite of capacity to totally abstain from such drinking constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. ⁿ¹³⁸ The brief initially sought to minimize the significance of the "Findings of Fact" of the trial court, pointing out that they were largely "legislative facts," to use Professor Davis' illuminating distinction, ⁿ¹³⁹ and not "adjudicative facts" that would be entitled to deference in higher courts. ⁿ¹⁴⁰ They represented conclusions incorporating standards of conduct, not findings with respect to specific historical events in the case before the court. As the Supreme Court had previously noted,

Such standards are criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court's adjudication. Especially in cases arising under the Due Process Clause is it important to distinguish between issues of fact that are here foreclosed and issues which, though cast in the form of determinations of fact, are the very issues to review which this Court sits. ⁿ¹⁴¹ In Powell's case, of course, the "findings" as to the consequences of alcoholism went significantly beyond even the expert testimony of record, which tracked the then conventional medical understanding that each bout of drinking was, initially, the result of voluntary choice by people subject to "exceedingly strong influence" though "not completely overpowering." ⁿ¹⁴² Thus exculpation on the ground that Powell was an irresponsible automaton was inappropriate.

[*420] While I thought Justice Stewart's opinion in Robinson v. California wretchedly and superficially reasoned, it was, however, a recent opinion of the Court in which six justices had joined. Effective advocacy, as well as policy concerns, suggested that we urge that Robinson be confined to crimes without an actus reus, rather than contending that it should be overruled. Furthermore, there was much to be said for the result in Robinson. The history of the twentieth century provides more than ample warning of the catastrophic consequences that may flow from imposing sanctions for what people are, rather than for what they have done. ⁿ¹⁴³ The brief therefore urged that Robinson not be extended beyond crimes of status to invalidate crimes involving anti-social behavior. ⁿ¹⁴⁴ Unless this boundary was observed, narcotics prosecutions with an addiction defense would be immediately impacted.

More generally, the principle would require radical broadening of the insanity defense for crimes in general, perhaps constitutionalizing the Durham Rule, ⁿ¹⁴⁵ which had resulted in confusion in the District of Columbia and had been generally rejected elsewhere. ⁿ¹⁴⁶ The Durham Court of Appeals had not realized that the crucial terms of its new responsibility standard were undefined, either medically or legally. ⁿ¹⁴⁷ This resulted in trials where labels were applied flexibly and varyingly by expert witnesses. One example is that the administrative staff of St. Elizabeth's Hospital, the District of Columbia's public mental hospital, was given by the courts the power to decide the reach of the criminal law in Washington, D.C. by defining what was or not to be classified as a mental disease. ⁿ¹⁴⁸ In making these decisions, the brief argued, the staff was without guidance of any consensus in the medical profession. ⁿ¹⁴⁹ The Diagnostic and Statistical Manual - Mental Disorders of the American [*421] Psychiatric Association (1952) did not attempt a definition. ⁿ¹⁵⁰ It was equally senseless, according to the appellee's brief, to be concerned about whether alcoholism really is or is not a disease, since the question is one of nomenclature. ⁿ¹⁵¹ Naming it as a disease does not increase one's understanding. ⁿ¹⁵²

Further error in the appellant's argument, the brief contended, was the contention that the disease of alcoholism had caused his public intoxication. ⁿ¹⁵³ If alcoholism is properly seen as a behavior disorder, it cannot be rationally contended that it causes that disordered behavior. ⁿ¹⁵⁴

The appellee's brief then discussed the meaning of calling alcoholism a "disease." ⁿ¹⁵⁵ It pointed out that "disease" is a term that is almost wholly vague and undefined, even by medical professionals, and "mental disease" is obsolescent as well as vague. ⁿ¹⁵⁶ Careful medical writers preferred to speak of patterns of conduct "that are not compatible with the norms and expectations of the patient's social and cultural system." ⁿ¹⁵⁷ Under this more modern understanding, it was urged, criminal law and illness overlapped rather than defined each other's boundary. ⁿ¹⁵⁸ To label someone as ill did not preclude an enlightened view that person might also be bad. ⁿ¹⁵⁹

Also, if alcoholism is to provide a defense to a criminal charge, it is necessary to define it with operational applicability. ⁿ¹⁶⁰ Jellinek recognized five types of alcoholism and summarized fifty-three formulations of "alcoholism" by others. ⁿ¹⁶¹ If the definition centered on loss of control, it would be necessary to distinguish between inability to abstain and the inability to stop once drinking had begun. ⁿ¹⁶² Furthermore, "It would also be necessary to permit it to be defined so as to be operationally, clearly distinct from other excessive drinking. How is the decision to be made between those who do not stop but can, and those who do not stop [*422] and cannot?" ⁿ¹⁶³

The brief then tried to counter the suggestion of amici A.C.L.U. and others that the traditions of Anglo-American criminal law require exculpation whenever the act charged was not a result of free will. ⁿ¹⁶⁴ The brief pointed out that the actus reus element of crimes required will, but not necessarily free will and that the prevailing insanity tests did not exculpate all those who lacked free choice. ⁿ¹⁶⁵ More fundamentally, the brief urged that the Constitution should not be interpreted to require criminal law to take a position on age-old philosophical questions of whether people have freedom of will. ⁿ¹⁶⁶ Justice Holmes, for example, had been comfortable with both the traditions of our criminal law and a personally deterministic position. ⁿ¹⁶⁷ If free choice were a condition of legal liability, the law would be placed in irreconcilable conflict with assumptions dominant in psychiatry, which presuppose a deterministic point of view. ⁿ¹⁶⁸

Whether, from an Olympian point of view, Powell's decisions to continue to drink could be attributed to unconscious impulses attributable to early life experience or to other factors should be irrelevant to the functionality of the criminal law. ⁿ¹⁶⁹ Rational purposes may be found in the removal of the acutely intoxicated from the streets; providing them food, clothing, and shelter; and giving them a period of compulsory continence. ⁿ¹⁷⁰ Although Powell had not been cured by this experience, many others doubtlessly had records of recidivism that were less depressing than his. ⁿ¹⁷¹ Indeed, the criminal law necessarily concerns itself with its failures. ⁿ¹⁷² As for deterrence, the condemnation provided by criminal law appears to be useful, as it reinforces public attitudes that excessive drinking is bad, and not simply ill. ⁿ¹⁷³ This is reflected in statistics indicating that problem drinking is dramatically low in some American subcultural groups. ⁿ¹⁷⁴ General respect for the law would not be encouraged by instituting a regime of punishment of normally law-observant [*423] citizens and exculpating those with extensive histories of prior conviction.

It was important, I thought, to also emphasize a libertarian concern before the Warren Court: The criminal process resulted in only limited periods of loss of liberty for minor transgressions. ⁿ¹⁷⁵ The medical model, if it included compulsory treatment, was potentially confining without end. ⁿ¹⁷⁶ Treatment prognoses with respect to skid row alcoholics were poor, even with utilization of radical and highly intrusive measures. ⁿ¹⁷⁷ Furthermore, facilities and personnel for treatment of the huge number of alcoholics were largely nonexistent. "In California, for instance ... providing all problem drinkers with weekly contact with a psychiatrist and once-a-month contact with a social worker would require the full time work of every psychiatrist and every trained social worker in the United States." ⁿ¹⁷⁸

The Brief for Appellee closed by quoting the experience of the District of Columbia since the decriminalization of public intoxication by chronic alcoholics following the Easter decision. ⁿ¹⁷⁹ Health Department busses would transport alcoholics to the Alcoholic Rehabilitation Clinic. ⁿ¹⁸⁰ Many of the alighting passengers would lurch past it. ⁿ¹⁸¹ Others would peer in and then shuffle away. ⁿ¹⁸² Dr. Sanford L. Billet, the chief of the clinic, reported that "therapeutic contact" had been established with less than ten percent of those who entered the facility, and of those, only a tiny percentage had been helped. ⁿ¹⁸³ Finally, the brief conceded that Texas did [*424] not view the present regime with satisfaction, but urged that changes be made after experimentation by legislators, administrators, courts, and private agencies, rather than "the enormously complex problems associated with this case being controlled by constitutional adjudication." ⁿ¹⁸⁴

Following the filing of the Brief for Appellee but prior to the oral argument, two significant appellate decisions were published. In the first, the Supreme Court of Washington upheld a Seattle ordinance prohibiting public drunkenness, citing medical testimony that alcoholics typically remained sober for six to eight months between drinking bouts and that the minority who were arrested tended to benefit physically from their confinements in jail. ⁿ¹⁸⁵ More importantly, the United States Court of Appeals for the District of Columbia Circuit, in an opinion by Chief Judge David Bazelon, expressed dissatisfaction with the Durham Rule, which made criminal responsibility turn on labels of illness. ⁿ¹⁸⁶ The court now recognized the vagueness of the labels and the inappropriateness of utilizing medical classifications for legal purposes. ⁿ¹⁸⁷ Since the principles of Durham would largely be constitutionalized by the contentions of those supporting Powell, I thought the doubts expressed by its author and by the judges who had wrestled with it for many years should be reported to the Supreme Court, and a Supplemental Brief for Appellee was accordingly filed. ⁿ¹⁸⁸

V. The Oral Argument Before the Court If one were to summarize the two hours and eight minutes during which Leroy Powell's case was argued before the Supreme Court, one would have to state that it was largely a legislative-type hearing on what would be the best public policy with respect to alcoholics. After almost an hour of discussion, Justice Harlan interjected:

Mr. Hutt, in all respect, I wonder whether we could not leave the broad sociological program at home and get on to the narrow constitutional argument that you are presenting in this case. Has the state got power to do this or hasn't it? ⁿ¹⁸⁹ [*425] Secondarily, there was some discussion of whether a ruling in favor of Powell could be limited to public drunkenness not involving otherwise anti-social behavior. ⁿ¹⁹⁰ The concern was whether the ruling would extend to disorderly conduct, robbery, or homicide by alcoholics or drug addicts, where there was a close causal relationship between the addiction and the related offense. ⁿ¹⁹¹ My own argument contended that a principled decision in favor of Powell would extend well beyond public intoxication charges to related felonies, and perhaps would require a great broadening of the insanity defense generally. ⁿ¹⁹² Justice Fortas, who had represented Monte Durham and successfully assisted in revolutionizing the insanity defense in the District of Columbia to exculpate those whose criminal act was a product of a mental disease, ⁿ¹⁹³ was presumably not averse to achieving a similarly enlightened result throughout the nation. But he was careful to insist that this was not the issue in Powell: "We are talking about public intoxication-period," he emphasized. ⁿ¹⁹⁴

Justice Fortas had also authored two opinions of the Court that I thought might be helpful to Texas' case against Powell. In Kent v. United States ⁿ¹⁹⁵ a juvenile court judge had waived jurisdiction in an aggravated delinquency case to the adult court without holding a hearing. ⁿ¹⁹⁶ The Court noted that while by statute the juvenile court had much latitude in arriving at the waiver decision and that its proceedings are considered civil rather than criminal, the statute, read in the context of due process concerns, required a hearing. ⁿ¹⁹⁷ Justice Fortas had observed that a "child receives the worst of both worlds: ... he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children." ⁿ¹⁹⁸ Civil proceedings against alcoholics presented similar dangers.

Justice Fortas had written a second opinion of the Court the following year In re Gault, ⁿ¹⁹⁹ extending a number of procedural due process protections to children in the adjudication of delinquency proceedings, including notice of the specific charges, the right to counsel, and the [*426] privilege against self-incrimination. ⁿ²⁰⁰ The Court wrote disPgingly with respect to the stated rationale of juvenile courts: "The idea of crime and punishment was to be abandoned. The child was to be "treated' and "rehabilitated' and the procedures, from apprehension through institutionalization, were to be "clinical' rather than punitive." ⁿ²⁰¹ I argued that similar concerns should inform the Court's decision as to whether to force abdication of the specificity of charge and short determinate length of sanction of the criminal process in drunkenness cases in favor of an allegedly more rehabilitative model. ⁿ²⁰² Justice Fortas responded, "I suppose people who read the [Gault] opinion very definitely don't read it quite that way." ⁿ²⁰³ With that dismissal, Justice Fortas leaned back in his chair and proceeded to gaze at the ceiling with conspicuous disinterest in my further remarks. ⁿ²⁰⁴

Justices Douglas, Marshall, and Fortas appeared ready to ascribe much force to the findings of the trial judge as to the nature of alcohol abuse. Judge Douglas exclaimed, in response to my contention that the Court should consider the legislative facts presented in the briefs, "I am amazed that we are experts in alcoholism." ⁿ²⁰⁵ Justice Marshall emphasized the advantage of the trial judge in having observed Powell in the courtroom. ⁿ²⁰⁶ Justice Fortas expressed similar impatience with my "attacking the findings." ⁿ²⁰⁷

Justice White seemed to question the accuracy of the finding that alcoholism forced alcoholics to appear in public:

I suppose a lot of alcoholics don't go out on the public streets. ... They stay in bars or stay at home or somewhere else. But ... what [the findings] really mean is that the person has lost his control - not that his alcoholism particularly drives him to go out on the street rather than to stay at home, but he just loses his control and is liable to appear anywhere. ⁿ²⁰⁸ [*427] Counsel on both sides argued against encouraging civil commitment as an alternative to criminal prosecution. Chief Justice Warren observed,

I suppose there are 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. ⁿ²⁰⁹

VI. The Court Waffles and Then Decides Leroy Powell's Case As the conferences of the justices following oral arguments are private, much necessarily remains unknown as to the considerations and discussions leading to a Supreme Court decision. Still, the papers of a number of former members of the Court have been filed with the Library of Congress, including notes of discussions and draft opinions, and some of the former law clerks have consented to be interviewed. Bernard Schwartz, in his lengthy judicial biography of Chief Justice Earl Warren, ⁿ²¹⁰ has reported the following as to the Powell case: The Court initially voted five to four to reverse the conviction, the majority consisting of Justices Douglas, Brennan, Stewart, White, and Fortas. ⁿ²¹¹ Justice Douglas, as the senior member of the Court in the majority, assigned the writing of the opinion to Justice Fortas. ⁿ²¹² Justice White, however, had increasing doubts about the reversal of the conviction, and he finally decided to switch his vote but to write sePtely, rather than join either side. ⁿ²¹³ Chief Justice Warren apparently felt strongly that Robinson should not be extended. ⁿ²¹⁴ He had previously circulated a proposed dissent in Powell. ⁿ²¹⁵ As he was concerned that Justice Marshall might change his vote to favor the Fortas position, he assigned the case to Marshall, along with one of Warren's own law clerks to assist in the prePtion of the plurality opinion, which incorporated the points previously made in his draft. ⁿ²¹⁶ Professor Mark Tushnet, himself a former Marshall law clerk, observed:

[*428] Marshall's opinion reflects his realistic perspective on judicial decision-making... If the problem of public drunkenness was, as Marshall and Warren saw it, a practical problem of government, it certainly mattered that no one had offered any preferable alternative to the criminal process to deal with the problem. ⁿ²¹⁷ As there is no opinion of the Court in Powell v. Texas, its meaning must be inferred from the four opinions that were filed.

In the plurality opinion for four members of the Court, Justice Marshall rejected the findings of the trial judge:

Whatever else may be said of them, those are not "findings of fact" in any recognizable, traditional sense in which that term has been used in a court of law; they are the premises of a syllogism transparently designed to bring this case within the scope of this Court's opinion in Robinson v. California. ⁿ²¹⁸ The plurality opinion then addressed the vagueness of the assertion that alcoholism is a disease:

One of the principal works in this field states that the major difficulty in articulating a "disease concept of alcoholism" is that "alcoholism has too many definitions and disease has practically none." The same author concludes that "a disease is what the medical profession recognizes as such." In other words, there is widespread agreement today that "alcoholism" is a "disease," for the simple reason that the medical profession has concluded that it should attempt to treat those who have drinking problems. There the agreement stops. ⁿ²¹⁹ Justice Marshall's opinion then confronts the distinction between the inability to abstain and the inability to moderate the amount of alcohol consumed on a given occasion, noting that both would have to be established, presumably, to support the constitutional claim. ⁿ²²⁰ He expresses doubt that either are supported by the record of the trial or the findings, which failed to take note of the distinction. ⁿ²²¹ Perhaps most importantly, the opinion notes the absence of evidence that psychiatrists, other doctors, and social workers are prepared or even have the ability to effectively treat alcoholics on a large scale, nor that facilities are available to do so. ⁿ²²² Furthermore, therapeutic civil commitment would threaten [*429] indefinite confinement without greater hope for effective treatment. ⁿ²²³ The criminal process may also usefully reinforce public taboos with respect to excessive drinking. ⁿ²²⁴ In conclusion,

we are unable to assert that the use of the criminal process as a means of dealing with the public aspects of problem drinking can never be defended as rational. The picture of the penniless drunk propelled aimlessly and endlessly through the law's "revolving door" ... is not a pretty one. But before we condemn the present practice across-the-board, perhaps we ought to be able to point to some clear promise of a better world for these unfortunate people. ⁿ²²⁵ Turning to the Eighth Amendment claim more specifically, the plurality observed that unlike the situation in Robinson, Powell was not convicted for being an alcoholic but for his "public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community." ⁿ²²⁶ The opinion of Justice Marshall then voiced a more fundamental concern: If the position of the dissent were adopted that criminal penalties may not be inflicted for being in a condition that the person lacks power to change, then the Court, under the slender authority of the Cruel and Unusual Punishment Clause, would be announcing a constitutional doctrine of criminal responsibility. ⁿ²²⁷ This doctrine could not be limited in a principled way to public intoxication charges, but would extend even to cases of murder. ⁿ²²⁸

In addition, Justice Marshall wrote, considerations of federalism have always allowed doctrines of "actus reus, mens rea, insanity, mistake, justification, and duress" to be left to the states. ⁿ²²⁹ Furthermore, the Court would experience the complexities that had perplexed the United States Court of Appeals for the District of Columbia in applying its Durham test. ⁿ²³⁰ Also, the "fruitful experimentation and developing productive dialog" between law and psychiatry would be reduced or eliminated. ⁿ²³¹ Finally,

nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms... It is simply not yet the time to write the Constitution formulas cast in terms [*430] whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers. ⁿ²³² Although joining in the plurality opinion, Justices Black and Harlan concurred in a sePte opinion as well. ⁿ²³³ In addition to making many of the points of the plurality opinion, Justice Black supplied rationales for not adopting a volitional freedom requirement for criminal responsibility and for proscribing status criminality but not crimes involving an actus reus. ⁿ²³⁴ Justice Black wrote:

I agree with Mr. Justice Marshall that the findings of fact in this case are inadequate to justify the sweeping constitutional rule urged upon us. I could not, however, consider any findings that could be made with respect to "voluntariness" or "compulsion" controlling on the question whether a specific instance of human behavior should be immune from punishment as a constitutional matter. When we say that appellant's appearance in public is caused not by "his own" volition but rather by some other force, we are clearly thinking of a force that is nevertheless "his" except in some special sense. The accused undoubtedly commits the proscribed act and the only question is whether the act can be attributed to a part of "his" personality that should not be regarded as criminally responsible. Almost all of the traditional purposes of the criminal law can be significantly served by punishing the person who in fact committed the proscribed act, without regard to whether his action was "compelled" by some elusive "irresponsible" aspect of his personality... On the other hand, medical decisions concerning the use of a term such as "disease" or "volition," based as they are on the clinical problems of diagnosis and treatment, bear no necessary correspondence to the legal decision whether the overall objectives of the criminal law can be furthered by imposing punishment. For these reasons, much as I think that criminal sanctions should in many situations be applied only to those whose conduct is morally blameworthy, I cannot think the States should be constitutionally required to make the inquiry as to what part of a defendant's personality is responsible for his actions and to excuse anyone whose action was, in some complex psychological sense, the result of a "compulsion." ... ... The question of whether an act is "involuntary" is, as I have already indicated, an inherently elusive question, and one which the state may, for good reasons, wish to regard as irrelevant. ⁿ²³⁵ As for the rationale of requiring an actus reus, Justice Black cited both the difficulties of proof and disproof of charges based on state of mind [*431] alone, as well as the difficulty of

distinguishing, in the absence of any conduct, between desires of the day-dream variety and those that may pose a real threat to society; extending the criminal law to cover both types of desire would be unthinkable since "there can hardly be anyone who has never thought evil." ⁿ²³⁶ The Black and Harlan concurring opinion closed with a fervent invocation of concerns of federalism and the desirability of different approaches to public drunkenness being permitted on the beaches of Hawaii and the frozen soil of Alaska. ⁿ²³⁷ After Justice Black's thoughtful opinion was circulated, Justice Fortas penned a handwritten one word critique on his copy: "Yech!" ⁿ²³⁸

Justice White provided the fifth vote for the affirmance of Leroy Powell's conviction. His concurrence explores none of the subtleties or distinctions of the other three opinions in the case. It seems to accept Robinson in its entirety and to be willing to extend it to crimes of behavior as well. But it is curiously hypothetical:

If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such compulsion... Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Similarly, the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk. ⁿ²³⁹ While conceding that some alcoholics might not be able to control their being drunk in public, such a showing was not made by Powell: "He made no showing that he was unable to stay off the streets on the night in question." ⁿ²⁴⁰

One possible interpretation is that White, who had dissented in Robinson, retained doubts as to its correctness and was simply illustrating some of the absurdities of its analysis. Still, his failure to note the difference between having a fever or an epileptic convulsion and being drunk in public - the lack of any willed bodily movement in the former - suggests a readiness to extend Robinson without serious reflection. ⁿ²⁴¹ [*432] Furthermore, his dissent in Robinson had been a limited one, and his concurrence in Powell, together with his memorandum revealing his indecision as to whether to join the Fortas opinion, point the other way. Further support for the latter view is revealed in the following memorandum, which he wrote to Justice Fortas in the month before the decision in Powell was handed down, announcing his decision to join those voting to affirm:

Re: No. 405-Powell v. Texas Dear Abe: I am with you part way but I am leaving you in other respects and in the result, the upshot being that I do not join your opinion or those on the other side either. I have been back and forth for weeks but it is more than likely that I am at rest, at least for now. Sincerely, B.R.W. Mr. Justice Fortas cc: The Conference ⁿ²⁴² Rather curiously, Justice White rejected only the finding of the trial court that Powell appeared in public due to a compulsion symptomatic of his disease but accepted the other findings, which were far more value-laden and abstract and less supported by the record. ⁿ²⁴³

The dissenting opinion of Justice Fortas for four members of the Court placed heavy reliance on the findings of the trial judge, notwithstanding their legislative character, their limited support in the record, and their perfunctory adoption at the request of the defense. He treated them as simply findings of adjudicative facts, to be left to the substantial discretion of the trier of fact:

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 on 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. ⁿ²⁴⁴ [*433] Justice Fortas eloquently urged that those principles be defined in the following terms:

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. ⁿ²⁴⁵ This contention was similar to that which Justice Fortas had made in private practice fourteen years earlier as appointed counsel for Monte Durham, when he urged that the United States Court of Appeals for the District of Columbia adopt an insanity defense couched in similar terms: "A test of criminal responsibility should focus not on intellectual capacity to discern right from wrong but upon the total competence of the accused, both rational and emotional, to regulate his conduct in accordance with the norms of society." ⁿ²⁴⁶ At the same time, Mr. Fortas had praised the more radical recommendation of The Group for Advancement of Psychiatry, a medical-legal reform organization, that the M'Naghten Rules be abolished and instead, "no person may be convicted of any criminal charge when at the time he committed the act with which he is charged he was suffering from mental illness." ⁿ²⁴⁷ The court of appeals proceeded to announce an insanity defense that excused defendants whose "unlawful act was the product of mental disease or defect." ⁿ²⁴⁸ Both the volitional impairment model and the disease model of excuses reappeared in his Powell dissent, with somewhat different terminology and with his urging that they be given nationwide constitutional force.

Laura Kalman, a biographer of Justice Fortas, has concluded:

In retrospect, it seems more surprising that Fortas briefly had gained majority support in Powell than that he lost it. William O. Douglas had [*434] labeled Fortas's opinion for the majority "great and outstanding." It was, however, revolutionary. Fortas's draft majority opinion would have upset the balance of power between the federal government and the states in the realm of criminal law and proposed a constitutional standard of criminal liability that most states would have been unwilling to accept even when a defendant pleaded insanity. Powell suggested the depth of Fortas's commitment to the disenfranchised. ⁿ²⁴⁹ The dissenting opinion in Powell also describes the basis of the conviction - intoxication in a public place - as a "condition," which it concedes is more than the mere status that was the basis of the charge in Robinson. ⁿ²⁵⁰ Yet it also contended that "condition" was not a criminal "act," ⁿ²⁵¹ notwithstanding Powell's having either drunk to intoxication while in a public place or having moved to a public place after becoming drunk. ⁿ²⁵² At the same time, the opinion sought to confine its reach:

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. ⁿ²⁵³ Thus, Justice Fortas denied intending to create a general doctrine of criminal responsibility in this case. The plurality opinion responded:

That is limitation by fiat. In the first place, nothing in the logic of the dissent would limit its application to chronic alcoholics. If Leroy Powell cannot be convicted of public intoxication, it is difficult to see how a State can convict an individual for murder, if that individual ... suffers from a "compulsion" to kill, which is "an exceedingly strong influence," but "not completely overpowering." Even if we limit our consideration to chronic alcoholics, it would seem impossible to confine [*435] the principle within the arbitrary bounds which the dissent seems to envision. ⁿ²⁵⁴ The plurality seems to have the better of this argument, and it seems reasonable to conclude that Justice Fortas was attempting to lay the foundation for a broad constitutional doctrine of lack of criminal responsibility in Powell, with the possibility of expansion to be considered in later cases.

VII. What Does the Decision in Powell Mean? The decision in Powell v. Texas was announced from the bench on June 17, 1968, the last day of the term. In anticipation of learning the outcome, I went to the courtroom, as did Peter Hutt and Richard Merrill. Afterward, as I walked out, the former told me, "You won on the facts of this case, but we won on the law." While this is plausible in view of the 4-4-1 split and the narrow basis of Justice White's concurrence, the more common interpretation has been to treat the plurality decision as controlling and Robinson as limited to a proscription of status criminality. ⁿ²⁵⁵ A highly respected recent commentator on criminal law has concluded, after discussing the opinions in Powell:

Robinson, though of great theoretical interest, has no practical importance today. Nothing has come of it, and the Court has not gone on to find a "voluntary act" principle in the Constitution. The reason is practical, and is elaborated in the plurality opinion by Justice Marshall and the concurrence by Justice Black. If the Court read the Constitution to require the defendant have the capacity to control behavior before criminal liability could be imposed, either some arbitrary lines would have to be drawn, or, for example, the Court would have constitutionalized the "volitional" or "control" aspect of the insanity defense, would have enmeshed the Court in the rules governing intoxication as a defense, and would soon be choosing as a matter of Constitutional law how far the defense of duress was required to extend. Thus in spite of the moral appeal of the idea that it is unfair to punish someone who lacks capacity to choose not to commit a crime, its implementation is so fraught with difficulty that the Court has wisely refrained from enshrining it in the Constitution. ⁿ²⁵⁶ A similarly distinguished commentator, Professor Emeritus Sanford Kadish, reflecting earlier this year on what he regards to be the most [*436] important events in criminal law over the past half century, expresses less enthusiasm for the result in Powell:

C.The Constitutional Revolution that Failed Another development in the requirement of blame was a non-event-the failure of the Supreme Court to constitutionalize personal culpability as a condition for conviction ... At one time all the stars seemed to favor it. In the early sixties the Warren Court used the Bill of Rights to create a network of constitutional restraints on law enforcement practices to assure justice for the accused. Many thought at the time that the same concern would support a comPble articulation of the minimum conditions of culpability required for conviction and punishment. After all, how could the Court pursue this commitment to procedural justice but not substantive justice? ... Yet it never happened, much to the regret of many in the academia who had long urged it ... The Robinson decision could plausibly have been seen as a vital opening toward establishing lack of self-control as a constitutional bar to punishment. But not for long. Just a half dozen years later the Court closed the door, holding in Powell v. Texas that it was not cruel and unusual punishment to convict an alcoholic for the crime of public drunkenness. Justice Marshall's plurality opinion limited Robinson to the kind of crime there in issue, namely one that made mere status - a propensity to abuse drugs - a crime. It rejected the broader reading of Robinson that one could not be punished for what is beyond one's power of control. For the plurality, the consequences of such a holding were perilous and unwelcome; it would involve the Court as a partner in criminal code writing, inviting it to adjudicate in the speculative and controversial realms of the mainsprings of human action - in effect, to determine whether compliance with the law is impossible for this defendant or just very, very hard ... Powell turned out to be the end of the Court's flirtation with the possibility of a constitutional criminal law doctrine. As a missed opportunity or as a close call? Like many, I'm of two minds. One is naturally uncomfortable with nine appointed lawyers calling moral shots for the rest of us in deciding which criminal law doctrine should pass muster. Yet they've known to do just that in other areas and to do so here might have served to temper the promiscuous legislative passion for punishment. ⁿ²⁵⁷ Despite the attractiveness to Professor Kadish of a constitutional lack of self-control defense, he agrees with Professor Low that in effect, the Powell plurality ended that enterprise for the present half-century. ⁿ²⁵⁸ But [*437] it is unlikely that it did so alone. Later in 1968, Richard M. Nixon, a critic of expansive elaboration of constitutional rights, was elected to the presidency. The following year, Justice Fortas resigned from the Court, as did Chief Justice Warren. Soon, President Nixon had appointed four new justices. ⁿ²⁵⁹ The Court's appetite for forcing social change diminished.

VIII. The Aftermath: Post-Powell Intoxication Cases Following the decision in Powell, Peter Hutt, who had led the effort to achieve judicially-mandated reform of the public intoxication laws as applied to alcoholics, decided to shift strategies in order to attempt to secure legislative reform for alcoholics. This presented the possibility of providing for broader decriminalization and better treatment facilities. ⁿ²⁶⁰ Furthermore, with the election of Richard M. Nixon to the presidency, it was unlikely that new appointments would be more reform-oriented than their predecessors. Indeed, there have been no public intoxication cases accepted by the Court in the thirty-one years since Powell.

The closest the Court has come to revisiting some of the questions was in Traynor v. Turnage. ⁿ²⁶¹ The petitioners were honorably discharged veterans who sought to continue their eligibility for veteran education benefits beyond the ten year statutory limit following their leaving the service. ⁿ²⁶² The time limit was tolled if they were prevented from using their benefits earlier because of "a physical or mental disability which was [*438] not the result of [their] own misconduct." ⁿ²⁶³ Counsel for the veterans argued that their chronic alcoholism had disabled them for much of that period, and they pointed to the Rehabilitation Act of 1973, which requires that federal programs not discriminate against handicapped individuals solely because of their handicap. ⁿ²⁶⁴ The Veterans' Administration had denied extensions of time, classifying the disabilities as having resulted from "willful misconduct," and relying on a regulation providing that drinking a beverage to enjoy its intoxicating effects resulting in disability will be considered willful misconduct. ⁿ²⁶⁵ The United States Court of Appeals for the District of Columbia Circuit, in a divided panel composed of Circuit Judges Ruth Bader Ginsburg, Kenneth W. Starr, and Antonin Scalia, upheld the Veterans' Administration regulation as rational and within its statutory authority. ⁿ²⁶⁶ The per curiam opinion observed:

McKelvey asserts that "the medical world has recognized that alcohol abuse is generally outside the individual's control," but the VA points to a substantial body of medical literature that even contests the proposition that alcoholism is a disease, much less that it is a disease for which the victim bears no responsibility. Even on the basis of medical opinion alone, it seems to us that the agency's position has the necessary minimum support. But it is in any case seriously doubtful whether the statutory test of "willful misconduct" - any more than the test for insanity in criminal prosecutions, see United States v. Brawner, 471 F.2d 969, 981 (D.C. Cir. 1972) (en banc), calls for invocation of a medical judgment as opposed to application of general societal perceptions regarding personal responsibility. ⁿ²⁶⁷ Before the Supreme Court, amicus briefs in support of the veterans were filed by the National Council on Alcoholism, the American Medical Association, and the American Psychiatric Association, emphasizing the wide acceptance of the notion that alcoholism is a disease and not "willful misconduct." ⁿ²⁶⁸ The Solicitor General's brief, on the other hand, while conceding that the medical community has found it useful for diagnosis and treatment purposes to apply the disease label, argued that this does not [*439] negate an "element of volition." ⁿ²⁶⁹ It cited Powell as establishing that such medical opinion does not preclude treating conduct induced by alcoholism as criminal, and, by similar reasoning, as permitting it to be characterized for benefit purposes unlike most other disabilities. ⁿ²⁷⁰

In an opinion authored by Justice White!, the Supreme Court upheld the decision of the D.C. Circuit, quoting with approval the appellate court's language questioning the disease characterization of alcoholism and the victim's alleged lack of responsibility. ⁿ²⁷¹ It added, "Indeed, even among many who consider alcoholism a "disease' to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary." ⁿ²⁷² The majority concluded that the cases before it did not require the Court to decide whether alcoholism is a disease whose course its victims cannot control, a question on which "the authorities remain sharply divided." ⁿ²⁷³ It rested its determination solely on the statute and the regulation of the Veterans' Administration. ⁿ²⁷⁴ A dissenting opinion of Justice Blackmun, joined by Justices Brennan and Marshall, contended that the veterans were entitled to individualized determinations of whether their alcoholism was a result of their wilful misconduct. ⁿ²⁷⁵

In the years following the litigation in Powell, many states decriminalized public intoxication by statute, rather than by judicial decision. ⁿ²⁷⁶ [*440] One model was the Uniform Alcoholism and Intoxication Treatment Act. ⁿ²⁷⁷ This rather loosely-drafted act defines "alcoholic" broadly to include both a person "who habitually lacks self-control as to the use of alcoholic beverages" and those who use alcohol to the extent that "health is substantially impaired or endangered or [their] social or economic function is substantially disrupted." ⁿ²⁷⁸ The latter is designed, according to the Comment, to make as large a group as possible eligible for treatment. ⁿ²⁷⁹ Much of the body of the Act is designed to facilitate treatment of alcoholics, including voluntary or involuntary civil commitment. ⁿ²⁸⁰ The Act also invalidates local laws and ordinances criminalizing drinking and intoxication ⁿ²⁸¹ and encourages repeal of state laws of the same character. ⁿ²⁸² Thirteen states adopted the Act in part; two subsequently repealed it. ⁿ²⁸³

A number of states and local governments have enacted similar statutes. ⁿ²⁸⁴ Among the incentives for these reforms is that they create eligibility for federal grants under the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1974. ⁿ²⁸⁵ Among the declared purposes of this legislation was "the development of methods for diverting problem drinkers from criminal justice systems into prevention and treatment programs." ⁿ²⁸⁶ In Los Angeles following legislative, judicial, and administrative rulings, arrests for public intoxication declined sixty percent, and prosecutions declined ninety-two percent. ⁿ²⁸⁷

[*441] In the District of Columbia, statutory decriminalization of public intoxication has occasioned varying police responses. If police see an intoxicated person who does not seem to be interfering with a business or endangering anyone, they usually leave him alone. ⁿ²⁸⁸ If the person is in front of a business or there has been a complaint, they may ask him to move. ⁿ²⁸⁹ Alternatively, arrests may also be made for violation of the drinking in public or possession of an open container laws. ⁿ²⁹⁰ The police also have authority to transport the individual to the Detoxification Center of D.C. General Hospital, which has only thirty-five beds for both alcoholics and drug users. ⁿ²⁹¹ Most who are admitted are enrolled in a five to seven day program. ⁿ²⁹² However remaining is voluntary and most leave after an overnight sleep. ⁿ²⁹³

Other statutes may of course be utilized to deal with public inebriation, such as those proscribing loitering, ⁿ²⁹⁴ vagrancy, ⁿ²⁹⁵ begging, ⁿ²⁹⁶ public urination, camping, ⁿ²⁹⁷ sleeping, ⁿ²⁹⁸ jaywalking, ⁿ²⁹⁹ and disorderly [*442] conduct. ⁿ³⁰⁰ In view of the opportunities for coercive interventions provided by this galaxy of offenses, the practice of local police departments may be of more practical importance than whether a jurisdiction has adopted a theoretically more focused reform, such as the Uniform Alcoholism and Intoxication Treatment Act.

Among the factors that significantly affect the application of such laws is the procedural context in which they are enforced. Written on the eve of the decision in Powell, the President's Crime Commission observed:

A central problem of many lower courts is the gross disparity between the number of cases and the personnel and facilities available to deal with them. For example, until legislation last year increased the number of judges, the District of Columbia Court of General Sessions had four judges to process the preliminary stages of more than 1,500 felony cases, 7,500 serious misdemeanor cases, and 38,000 petty offenses and an equal number of traffic offenses per year... ... Every day in large cities hundreds of persons, arrested for being drunk or disorderly, for vagrancy or petty gambling, for minor assaults or prostitution, are brought before the petty offense part of the lower courts. In some of these cities these defendants are stood in single file and Pded before the judge. In others, 40 or 50 or more people are [*443] brought before the bench as a group. Almost all plead guilty, and sentence is imposed in such terms as "30 days or $ 30." A large part of the jail population in many cities is made up of persons jailed in default of the payment of a fine. ⁿ³⁰¹ This assembly-line system was procedurally attacked in 1971 and 1972 in the United States Supreme Court cases of Tate v. Short ⁿ³⁰² and Argersinger v. Hamlin. ⁿ³⁰³ In the former, it was held to be a violation of equal protection for Texas to convert fines into jail terms for those unable to pay. ⁿ³⁰⁴ In the latter, the right to counsel for indigents was extended to all offenses resulting in deprivation of liberty on conviction. ⁿ³⁰⁵ Utilization of the criminal justice system for petty offenses, such as public drunkenness, thus became much more costly, discouraging its use. ⁿ³⁰⁶

While the 1967 President's Crime Commission Report stated that in 1965 there were two million public drunkenness arrests in America, ⁿ³⁰⁷ for the year 1996, the number of reported arrests had fallen to less than 465,000 for people over eighteen. ⁿ³⁰⁸

The assessment of noncriminal detoxification programs is a challenging [*444] process. If the group studied is ordered into the program by courts or deposited there by police, the recidivism rates are much higher than programs voluntarily sought-out by more stable individuals, particularly if the evaluation is limited to those who remain in the program for a long period of time. ⁿ³⁰⁹ Many alcoholics have personality problems in addition to their drinking behaviors. There is also the possibility of spontaneous remission. Many inebriates enter detoxification programs at a low point in their functioning and might improve whatever the institutional stimulus. ⁿ³¹⁰ There are also difficulties of reliability in studies relying on reports of clients as to their former alcohol use and their degree of improvement under treatment programs. ⁿ³¹¹ In addition, persons entering and continuing in treatment programs are likely to be more highly motivated to change their behaviors. ⁿ³¹² Skepticism with respect to reports of the effectiveness of various treatment programs is supported by studies indicating similar results notwithstanding wide variation in methods and duration in programs. A recent national review concludes: "While the general consensus is that some treatment is better than none ..., there is little evidence that more intensive and costly care (such as hospital inpatient) is more effective than less intensive care (e.g., outpatient)." ⁿ³¹³

From the standpoint of those formerly arrested for being drunk in public, the change has not been a marked therapeutic success:

How successful has this medicalization of public intoxication been? In terms of the ability to stop the revolving door syndrome, it seems this approach to control has actually transformed the problem into one of a "spinning door." Not only has the relapse rate appeared to increase, in part because of a shorter time spent "in custody," but there also seems to be a general inability to get public inebriates to voluntarily seek out additional treatment. One often cited explanation for this "spinning door" deals with the inapplicability of the medical model and the sick role in particular to serve as a treatment mechanism for the chronic [*445] skidrow public inebriate. Specifically, this failure of the medical model of control deals with the inability of the social structure to provide any incentive, economic or otherwise, for sick role occupancy and conforming sobriety for those on the bottom of the class hierarchy. Indeed ... about the only route up and out for skidrow drinkers is through securing employment in alcohol treatment facilities. ⁿ³¹⁴ Another group of investigators reported:

Standard approaches to treatment for this group are not generally very successful. There was hope in the mid-1970s that decriminalization of public drunkenness would lead to engagement of CPIs [chronic public inebriates] in treatment, with a consequent reduction in their numbers. It soon became apparent that most CPIs had little interest in treatment. Instead of using detoxification services as the entry point into a continuum of care leading to abstinence, CPIs frequently used it as a sort of "wet" shelter, part of a cycle to and from the streets. For the most part, recidivism has not been reduced. ⁿ³¹⁵ The medical model may have other unintended consequences, as well. To the extent that criminal sanctions project a moral message that public intoxication is not simply a symptom of an illness, they may serve to reinforce important social norms. Going to jail for being drunk in public can deliver a message that being ordered or carried to a detoxication facility and released cannot. "The intangible penalties associated with criminal conviction are a valuable social asset." ⁿ³¹⁶ The threat of loss of self-esteem and respect may be a more significant consequence of the criminal sanction than the threat of the formal penalty itself.

An alternative is simply to tolerate the presence of intoxicated persons on our sidewalks and streets. This, too, is problematic in terms of its consequences for the quality of urban life and in the flight of those who can afford it to the suburbs, leaving the central cities largely to the poor. ⁿ³¹⁷ As Yale Professor of Property and Urban Law Robert C. [*446] Ellickson has observed:

Few urbanites seek an antiseptic city - a Singapore or a replica of Disneyland's Main Street. However, if city dwellers cannot enjoy a basic minimum of decorum in downtown public spaces, they will increasingly flee from those locations to cyberspace, suburban malls, and private walled communities. While one must admire the forcefulness with which legal advocates for street people have represented some of the poorest, least powerful, and most ostracized of citizens, one must also weigh the consequences of these advocates' constitutional arguments for the future of American cities. ⁿ³¹⁸ Furthermore, minor crime seems to encourage a more general loss of respect for public order and an increase in more serious crime. Disorder may breed a sense that no one cares, things are out of control, and the public is easily intimidated. In a famous article James Q. Wilson and George L. Kelling argued that police and others had joined too readily in campaigns to decriminalize behaviors thought relatively harmless, such as public drunkenness, prostitution, and vagrancy, and that this led to a more general rise in much more threatening crime. ⁿ³¹⁹ This theory was put into practice in a number of cities, including New York City, ⁿ³²⁰ which thereafter reported dramatic declines in felony rates. ⁿ³²¹ A causal relationship, however, cannot thereby be established.

[*447]

IX. The Aftermath of Powell: Drug Addiction Cases In 1970, Raymond Moore was prosecuted in the District of Columbia for federal heroin possession offenses. ⁿ³²² He raised common law ⁿ³²³ and constitutional defenses, both predicated on a proffer of expert testimony that Moore was an addict, that addiction "had the characteristics of a disease, and that as a consequence appellant was helpless to control his compulsion to obtain and use heroin." ⁿ³²⁴ The common law contentions were first based on the allegation that an addict was not responsible, under a doctrine analogous to the insanity defense but with addiction substituting for the mental disease requirement, for drug possession for personal use, ⁿ³²⁵ and alternatively, the statutes defining the federal narcotics offenses should be interpreted to provide an exception for possession by addicts. ⁿ³²⁶ The constitutional claim, of course, was that punishment of Moore was violative of the Eighth Amendment, as interpreted in Robinson and Powell. ⁿ³²⁷

In a five to four decision, the conviction was affirmed. ⁿ³²⁸ There was no majority opinion of the court. Judge Wilkey, writing for three judges, suggested a simple analytical model: "An addict will continue to use drugs if his "physical craving' outweighs his "strength of character.' In such situations there may be said to be a loss of self-control." ⁿ³²⁹ But Judge Wilkey rejected a general requirement of free will as a condition of criminal responsibility, noting that such a principle could not be limited to charges of drug possession but would extend also to robberies, muggings, and burglaries resulting from drug craving compulsion. ⁿ³³⁰ As for the interpretation of the narcotics statutes to create an addict exception, Judge [*448] Wilkey wrote that any such weakening of their effect should be enacted by Congress. ⁿ³³¹ While recognizing the confusion created by the constitutional discussion in Robinson and Powell, Judge Wilkey noted that there was no holding that it was impermissible to criminalize behavior by one who yields to the compulsions of his disease. ⁿ³³²

Judge Leventhal wrote a long and scholarly concurrence for two members of the court. ⁿ³³³ One of his concerns was the difficulty in verifying claims of incapacity to refrain from drug use, the familiar problem of sePting indisposition from inability that has plagued some forms of the insanity defense, although in the later context, application of the defense is limited by the additional requirement of mental disease. ⁿ³³⁴ He also alluded to a host of practical problems, including the apparent unfairness of exculpating recidivists while punishing first offenders, the need for a threat of punishment in encouraging cooperation with rehabilitative treatment, the loss of the personal dignity of holding people responsible, and the potential loss of deterrence by partial decriminalization. ⁿ³³⁵

Judge J. Skelly Wright wrote a lengthy dissent for four members of the court. ⁿ³³⁶ He voted to hold that addiction should be recognized as a defense to charges of purchase, possession, and use of narcotic drugs. ⁿ³³⁷ While recognizing that Powell "left unsettled the precise relationship between criminal responsibility and the constitution," he concluded that at a minimum the Court intended to encourage further common law development in the area. ⁿ³³⁸ Construing the federal narcotics statutes to avoid constitutional uncertainty, an addiction defense should be recognized. ⁿ³³⁹ Since Congress doubtlessly did not "intend" that traffickers and other more directly socially harmful offenders be exculpated, he would have limited the defense to such persons as purchasers and possessors. ⁿ³⁴⁰ As to them, a broad defense would be available. ⁿ³⁴¹ Physical dependence on drugs would not be required so long as a defendant, through repeated [*449] use of narcotics, lacked substantial capacity to abstain from their use. ⁿ³⁴² Thus, evidence that a defendant did not experience withdrawal symptoms following arrest - common with users of the highly diluted street heroin - would not preclude the defense. ⁿ³⁴³

Rather, the jury should decide, on the basis of all the evidence presented, whether the defendant, as a result of his repeated use of narcotics, lacked substantial capacity to conform his conduct to the requirements of law. These principles demonstrate the humanism as well as the pragmatism of the common law. They address themselves to the solution of a grave social problem with characteristic sensitivity. And they offer hope that the treatment of addicts, rather than criminal stigmatization, will bring peace to our cities. ⁿ³⁴⁴ Chief Judge Bazelon, who generally joined in Judge Wright's dissent, would have extended the defense to offenses such as armed robbery and trafficking in drugs, with the jury charged with determining whether the defendant was under such "compulsion, because of his addiction, that he was unable to conform his conduct to the requirements of law." ⁿ³⁴⁵ In a curious way, Chief Judge Bazelon thus concurred with Justice Marshall in recognizing that the principle accepted by the dissents in both Powell and Moore logically extends to exculpation from responsibility for major crimes motivated by the psychological pressures of addiction. ⁿ³⁴⁶

While the United States Court of Appeals in Moore came within one vote of decriminalizing narcotics purchase, possession, and use by addicts in the District of Columbia, the cases in other jurisdictions, with rare exceptions, have joined the Moore plurality, whether the claim was made under the Constitution, the insanity defense, or other claims under the common law. ⁿ³⁴⁷ Had the views of the dissent in Powell prevailed and a disease or compulsion defense been constitutionally mandated, Moore would almost surely have gone the other way, seriously compromising efforts to enforce the criminal laws proscribing drug possession and sale.

[*450] By 1995, there were almost 1.5 million such arrests, the bulk of them for offenses involving heroin and cocaine. ⁿ³⁴⁸ Instead, there would have been decriminalization for the most recidivistic offenders, those who were themselves addicted. ⁿ³⁴⁹

X. The Aftermath: The Insanity Defense At the time Powell was litigated, almost two thirds of the states followed the 1843 House of Lords' opinion in McNaghten's Case. ⁿ³⁵⁰ To establish a defense on the basis of insanity, the defendant had to show that at the time of the act because of a defect in reasoning due to disease of the mind "he did not know he was doing what was wrong." ⁿ³⁵¹ This is a test of cognitive ability, and as such it is unaffected by volitional incapacity concerns. Beginning in the late 19th century, however, a minority of states and the federal government began adding an additional inquiry, whether the defendant had the power of self-control. ⁿ³⁵² This was commonly (and inaccurately) referred to as the "irresistible impulse" addition to McNaghten's cognition inquiry, as sudden impulse rather than brooding reflection was not usually essential to the defense. ⁿ³⁵³ The control inquiry, of course, is central to the psychological addiction determination, and constitutional exculpation for addicts would take a substantial step toward enshrining ability to control as a requirement of criminal responsibility.

A third approach to an insanity standard that existed in the mid-1960's [*451] was the Durham Rule, famously announced by Judge David Bazelon in Durham v. United States: "An accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect." ⁿ³⁵⁴ These terms were not defined, apparently on the assumption that they were medical in nature and therefore meaningful to the experts who would testify in criminal cases. ⁿ³⁵⁵ Although Durham achieved substantial support from legal academics and progressive psychiatrists, it was not widely adopted. ⁿ³⁵⁶ Yet it had an instinctive appeal in its call for the sePtion of the sick from the bad, an appeal that was strongly reflected in the opinion of the Court in Robinson v. California and in the dissent of Justice Fortas (who had represented Durham) in Powell.

A fourth important standard was beginning to be accepted by a few jurisdictions at the time of Powell, that of the American Law Institute's Model Penal Code.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to either appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. ⁿ³⁵⁷ This was an expanded version of the inquiries of the McNaghten and control tests, and in the latter aspect it arguably overlapped the proposed addiction defense.

The control and addiction tests had much to be said for them. They address individuals who may be regarded as undeterrable. Furthermore, retributive punishment seems unfair if extended to those who could not do otherwise. ⁿ³⁵⁸ Rehabilitative efforts do not require criminal conviction and incarceration in penal facilities. Yet they have been subjected to important criticism, as well. ⁿ³⁵⁹ They invite conflict between the law and [*452] psychiatry, which commonly accepts a deterministic model of human behavior. "As a technology based on the behavioral and biological sciences, psychiatry takes a deterministic point of view." ⁿ³⁶⁰ We all lack capacity to otherwise than we do, on this assumption. ⁿ³⁶¹ At the least, they invite sweeping application, challenging the practical need to limit abnormality excuses to a small percentage of the population engaged in antisocial behavior. Perhaps most fundamentally, they lack operational meaning. There is simply no way to sePte those who do not conform their actions to the requirements of law because they cannot and those who behave similarly because they will not.

These concerns, dramatized in the acquittal by reason of insanity of [*453] John W. Hinckley, Jr. in the shooting of President Ronald Reagan in 1981, led to a reconsideration by many jurisdictions of the breadth of the insanity defense that had resulted from its more contemporary transformations. ⁿ³⁶² In federal prosecutions, for example, where the courts of appeal had previously adopted the American Law Institute standard with its volitional as well as cognitive prong, Congress enacted the Insanity Defense Reform Act of 1984, eliminating the volitional inquiry and confining the triggering condition to a "severe" mental disease or defect:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. ⁿ³⁶³ Three states went even further. Idaho, Montana, and Utah abolished insanity as a sePte defense, while permitting evidence of mental abnormality to be considered for what bearing it might have on whether a defendant met the culpability requirements of an offense. ⁿ³⁶⁴ Thus a future Hinckley could be acquitted in these states only if the trier of fact concluded that he did not intend to kill when he shot the President. It will be noted that these reforms would be constitutionally suspect if the "compulsion" defense of the dissenters in Powell had been enshrined in the Constitution.

[*454]

XI. The Aftermath: Leroy Powell The records of the Municipal Court of Austin, Texas, disclose that Mr. Powell was arrested 20 more times for public intoxication after 1966. ⁿ³⁶⁵ The last case was filed on June 30, 1970. ⁿ³⁶⁶ No further record exists. ⁿ³⁶⁷

Legal Topics: For related research and practice materials, see the following legal topics: Constitutional LawBill of RightsFundamental RightsCriminal ProcessCruel & Unusual PunishmentCriminal Law & ProcedureCriminal OffensesIntoxicating LiquorsGeneral OverviewCriminal Law & ProcedureSentencingCruel & Unusual Punishment FOOTNOTES:

n1. 392 U.S. 514 (1968).

n2. U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). The latter clause was made applicable to the states under the Due Process Clause of the Fourteenth Amendment sub silentio. See Robinson v. California, 370 U.S. 660 (1962).

n3. 370 U.S. 660 (1962).

n4. My personal experience had been focused on felonies, which left me less knowledgeable than I should have been about the consequences of alcohol abuse on the quality of life on our urban streets and parks and on the lives of those who appear drunk in public.

n5. Tex. Pen. Code Ann. art. 477 (Vernon 1952) ("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."); see Powell, 392 U.S. at 517.

n6. See Powell, 392 U.S. at 517.

n7. See Appendix at 29, Powell v. Texas, 392 U.S. 514 (1968) (No. 405) [hereinafter Appendix]. While drunkenness is often associated with violent behavior, Leroy Powell's extensive record was almost exclusively one of drunkenness. See id. at 32. He testified that when drunk he did not become violent. See id. at 36. In this respect, he presented an excellent defendant for reform efforts.

n8. See Appendix, supra note 7, at 34-36.

n9. Telephone conversation with Mr. Don L. Davis, (Mar. 31, 1998) (supplemented by a telephone message from Mr. Davis (July 5, 1999)).

n10. Id.

n11. Id.

n12. See id.

n13. Article 43.09 of the Texas Code of Criminal Procedure provided for compulsory work or confinement in jail for a period of one day for each five dollars of a fine if a misdemeanant was unable to pay the fine. See Tex. Code Crim. Proc. Ann. art. 43.09 (Vernon 1966).

n14. See Powell v. Texas, 392 U.S. 514, 517 (1968).

n15. See Appendix, supra note 7, at 8.

n16. Id.

n17. See id. at 10.

n18. See id. at 10, 24, 34.

n19. See id. at 32.

n20. See id. at 28-33, 50.

n21. Id. at 36.

n22. Compare Appendix, supra note 7, at 37, 44, with Appendix, supra note 7, at 42.

n23. See Appendix, supra note 7, at 42-43.

n24. See id. at 10.

n25. See id. at 18-19, 24.

n26. See id. at 20-21.

n27. See E.M. Jellinek, The Disease Concept of Alcoholism (1960).

n28. Appendix, supra note 7, at 26. This qualification reflects the view that "voluntariness is not a binary concept but a continuum; some choices are more voluntary than others." Alan Schwartz, Views of Addiction and the Duty to Warn, 75 Va. L. Rev. 509, 516 (1989). It is also a necessary concession to the fact that many alcoholics stop drinking.

n29. Appendix, supra note 7, at 53.

n30. See id.

n31. See id. at 46. In the event a misdemeanant could not pay a fine, Article 43.09 of the Texas Code of Criminal Procedure provided for compulsory work or confinement in jail for a period of one day for each five dollars. See Tex. Code Crim. Proc. Ann. art. 43.09 (Vernon 1966).

n32. Texas moved to dismiss the appeal as beyond the appellate jurisdiction of the Court as provided in 28 U.S.C. 1257(2) (1967), in that the state statute was not generally challenged as to its constitutional validity, only its application to a chronic alcoholic. See Motion to Dismiss, Powell v. Texas, 392 U.S. 514 (1968) (No. 405). The motion was denied without opinion, as the Court noted probable jurisdiction. See Powell v. Texas, 389 U.S. 810 (1967).

n33. See Sheila B. Blume, Public Policy Issues: A Summary, in The American Assembly, Alcoholism and Related Problems: Issues For The American Public 176 (1988).

n34. See id.

n35. See U.S. Department of Health, Education, and Welfare, First Special Report to the U.S. Congress on Alcohol and Health, Chapter VII, The Legal Status of Intoxication and Alcoholism 85 (1972).

n36. See id. at 89.

n37. See A Report by the President's Commission on Law Enforcement and the Administration of Justice, the Challenge of Crime in a Free Society 233 (1967).

n38. See id. at 274.

n39. See id. at 234.

n40. See id.

n41. Id. at 235.

n42. Adjudication of selected test cases presents clear advantages to law reform advocates. Particularly with respect to minor offenders, the courts are asked to determine the rights of a person whose iniquity appears inconsequential (without considering social context and consequences) and whose suffering, at least to the outsider, seems great. See George L. Kelling & Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities, at xiv (1996).

n43. 370 U.S. 660 (1962).

n44. Id. at 661 (quoting Cal. Health & Safety Code 11721 (1960)).

n45. Id. at 663.

n46. See id. at 665.

n47. See id. at 664.

n48. See id. at 668.

n49. Id. at 664 (quoting Whipple v. Martinson, 256 U.S. 41, 45 (1921)).

n50. Id. at 665 (quoting Whipple, 256 U.S. at 45).

n51. Id. at 666; see also Francis v. Rescueber, 329 U.S. 459 (1947).

n52. Robinson, 370 U.S. at 666.

n53. This is not to say that a proscription of status criminality is indefensible. See text infra note 143.

n54. See Robinson, 370 U.S. at 667 & n.8.

n55. See Robinson, 370 U.S. at 666. This argument occasioned particular criticism thirteen years later, by Professor Herbert Fingarette. See Herbert Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413, 419-26 (1975). Fingarette urged that in view of the vagueness and lack of definition of disease and its largely rhetorical association with immunity from criminal conviction, the disease label is largely a covert and confusing reiteration that addictive behavior must be regarded as involuntary. See id. at 426. He rejected the latter argument as based on a myth of psychological and pharmacological slavery, as well as reflecting terminological obfuscation. See id. at 431-44. In 1988, Fingarette expressed similar views as to the disease concept of alcoholism, which he criticized as a myth accepted by no leading researcher in the subject. See Herbert Fingarette, Heavy Drinking: The Myth of Alcoholism as a Disease 3 (1988).

n56. Consider the conclusion of a science writer for the Washington Post: "What's clear is that calling a behavior "mental illness,' or tracing the neuroanatomical path of a certain behavior, is, in the end, just another way of describing the behavior. It says nothing about whether a behavior is inevitable, unalterable or uncontrollable." David Brown, Between Madness and Badness; A Reflection on Medicine, Morals and the Mind of the Criminal, Wash. Post, Mar. 1, 1998, at C1.

n57. Robinson, 370 U.S. at 667. Professor Alan Schwartz has summarized three more plausible theories for the causes of addiction of adults. See Schwartz, supra note 28, at 511-13. The first is that some "strong substances" can addict ordinary persons by the initial pleasure of their use and the anticipated discomfort of its discontinuance. Id. at 512. Secondly, there is the view that addicts have a genetic predisposition to becoming "hooked." Id. The third is that addicts simply derive greater pleasure from substance abuse than from abstinence because of their personal characteristics and circumstances. See id. at 509-11. To the extent that utilitarian theory is employed, penal sanctions may affect this calculus (i.e. substance abuse disutilities are increased). See William A. Luksetich & Michael D. White, Crime and Public Policy - An Economic Approach 85 (1982).

n58. Robinson, 370 U.S. at 664.

n59. Id. at 666.

n60. Id. at 678 (Douglas, J., concurring).

n61. Id. at 672 (Douglas, J., concurring) (quoting N.Y.L.J., June 8, 1960, p.4, col. 2).

n62. See id. at 678 (Douglas, J., concurring).

n63. Id. at 678 (Harlan, J., concurring).

n64. See id. at 679 (Harlan, J., concurring).

n65. See id. at 681 (Clark, J., dissenting).

n66. See id. at 686-88 (White, J., dissenting).

n67. Id. at 685 (White, J., dissenting).

n68. See id. at 686 (White, J., dissenting).

n69. Id. at 689 (White, J., dissenting).

n70. See The President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: Drunkenness (1967).

n71. See id. at 109.

n72. See District of Columbia v. Bowles, No. 17814-64 (D.C. Ct. Gen. Sess. Crim. 1964); District of Columbia v. Turner, No. 24734-64 (D.C. Ct. Gen. Sess. Crim 1964); District of Columbia v. Glover, No. 24735-64 (D.C. Ct. Gen. Sess. Crim. 1964); District of Columbia v. Lowe, No. 24736-64 (D.C. Ct. Gen. Sess. Crim. 1964).

n73. See U.S. Department of Health, Education, and Welfare, First Special Report to the U.S. Congress on Alcohol and Health, Chapter VII, The Legal Status of Intoxication and Alcoholism 85 (1972).

n74. See id.

n75. See id.

n76. See id.

n77. See State v. Driver, 136 S.E.2d 208 (N.C. 1964).

n78. See Driver v. Hinant, 356 F.2d 761, 763 (4th Cir. 1966).

n79. See Driver v. Hinant, 243 F. Supp. 95 (E.D.N.C. 1995).

n80. See Driver v. Hinant, 356 F.2d 761 (4th Cir. 1966).

n81. See Brief for Amici, Driver v. Hinant, 356 F.2d 761 (4th Cir. 1966) (No. 10166).

n82. See Driver, 356 F.2d at 763-64.

n83. Id. at 764.

n84. See id. at 765.

n85. See Easter v. District of Columbia, 209 A.2d 625 (D.C. 1965).

n86. See Easter v. District of Columbia, 361 F.2d 50, 52 (D.C. Cir. 1966).

n87. Id. at 51 (citing D.C. Code 24-501 (1947)).

n88. See id. at 52.

n89. 356 F.2d 761 (4th Cir. 1966).

n90. 370 U.S. 660 (1967).

n91. Easter, 361 F.2d at 53 (the non sequitur is striking).

n92. Id. at 55.

n93. Brief for Appellant at 3, Powell v. Texas, 392 U.S. 514 (1968) (No. 405).

n94. Id. at 6.

n95. Id. at 11.

n96. 356 U.S. 86 (1958).

n97. Id. at 100-01.

n98. 370 U.S. 660 (1962).

n99. Brief for Appellant, supra note 93, at 15.

n100. 356 F.2d 761 (4th Cir. 1966).

n101. 361 F.2d 50 (D.C. Cir. 1966).

n102. Id. at 18 (referring to Tex. Penal Code art. 477 (1925)).

n103. See id. at 19-22.

n104. Id. at 19.

n105. See Brief for Amici, Powell v. Texas, 392 U.S. 514 (1968) (No. 405). Amici counsel helped prepare the jurisdictional statement, as well as the amicus brief. See Richard A. Merrill, Drunkenness and Reform of the Criminal Law, 54 Va. L. Rev. 1135, 1147 (1968). The enlistment of the Texas Commission on Alcoholism, part of the Government of Texas, meant that Texas appeared on both sides of the case, a fact that caused consternation in its Attorney General's office.

n106. Brief for Amici, supra note 105, at 17.

n107. See id. at 19.

n108. See id. at 25.

n109. See id. at 27-29.

n110. See id. at 27.

n111. See id. at 27-28.

n112. See id.

n113. Id. at 19-35. Professor Herbert Fingarette has criticized this contention: "The claim that alcoholism is a treatable disease turns out to be fraught with ambiguity and vagueness, and there is no scientific evidence to support it." Fingarette, Heavy Drinking, supra note 55, at 91. Instead, it encourages a sense of helplessness and an evasion of responsibility on the part of the alcoholic. See id.

n114. See Brief for Amici, supra note 105, at 35.

n115. See id. at 36.

n116. See id. at 37.

n117. See id.

n118. See id. at 41.

n119. See id.

n120. See id. at 50-58.

n121. See Amicus Brief of the Philadelphia Diagnostic and Relocation Services Corporation, Powell v. Texas, 392 U.S. 514 (1968) (No. 405); Amicus Brief of the American Civil Liberties Union, American Medical Association, Correctional Association of New York, Methodist Board of Christian Concerns, North American Association of Alcoholism Programs, North American Judges Association, North Conway Institute, Texas Commission on Alcoholism and Washington D.C. Area Council on Alcoholism, Powell v. Texas, 392 U.S. 514 (1968) (No. 405).

n122. Letter from Crawford Martin, Texas Attorney General (Nov. 22, 1967) (on file with the present author). This strategy did not boomerang as did the similar effort by the state in Gideon v. Wainwright, 372 U.S. 335 (1963). The Florida Attorney General, seeking to avoid having to appoint defense counsel in all felony cases involving indigent defendants, wrote the other forty-nine attorneys general seeking amicus briefs in support of the warden, Wainwright. See Anthony Lewis, Gideon's Trumpet 141-50 (1964). The attorney general of Minnesota, Walter F. Mondale and twenty-two other attorney generals cooperated in prePtion of an amicus brief supporting Gideon while only two supported Wainwright. See id. Gideon was represented by Abe Fortas, who was later to play a central role in Powell.

n123. See Mapp v. Ohio, 367 U.S. 643 (1961) (overruling Wolf v. Colorado, 338 U.S. 25 (1949)).

n124. See Robinson v. California, 370 U.S. 660 (1962).

n125. See Gideon v. Wainwright, 372 U.S. 335 (1963) (overruling Betts v. Brady, 316 U.S. 455 (1942)).

n126. See Malloy v. Hogan, 378 U.S. 1 (1964) (overruling the contrary dicta in Palko v. Connecticut, 302 U.S. 319 (1937)).

n127. See Escobedo v. Illinois, 378 U.S. 478 (1964).

n128. See Miranda v. Arizona, 384 U.S. 436 (1966).

n129. See Leon Radzinowicz, A History of English Criminal Law, 1 The Movement for Reform 1750-1838, at 206-27 (1948).

n130. See Letter to Crawford Martin, Texas Attorney General (Oct. 26, 1967).

n131. Texas followed Daniel M'Naghten's Case, 8 Eng. Rep. 718 (H.L. 1843), establishing this cognitive test of criminal responsibility, without recognizing inability to control behavior as exculpatory. See Bush v. State, 353 S.W.2d 855, 857 (Tex. Crim. App. 1962).

n132. Quoting the concurring opinion of Chief Justice Weintraub in State v. Lucas, 152 A.2d 50, 75 (N.J. 1959).

n133. See Brief for Appellee at 1, Powell v. Texas, 392 U.S. 514 (1968) (No. 405).

n134. Letter from R.L. Lattimore, Assistant Texas Attorney General (Dec. 8, 1967).

n135. See Letter to George Cowden (Dec. 4, 1967).

n136. The most widely respected work was E.M. Jellinek's The Disease Concept of Alcoholism. Jellinek, supra note 27, at 42. Jellinek based his conclusions on the "disease" of alcoholism on answers to a questionnaire of ninety-eight male members of Alcoholics Anonymous, a thin sample skewed by self-selection bias and a decision to disregard women who also responded to the questionnaire. See Fingarette, supra note 55, at 21. Subsequent research cast considerable doubt on the classic "disease" and "loss of control" descriptions of heavy drinking. Id. at 31-47; see also Schwartz, supra note 28, at 531. Schwartz reviewed empirical literature and concluded that the most persuasive explanation for the persistence of addictive behavior is that "given their characters and circumstances, substance abuse is an aspect of the best adaptation they can make to life. That addictive behavior is optimal given one's character implies that it is best viewed as voluntary." Id. But see, Warren Lehman, Alcoholism, Freedom, and Moral Responsibility, 13 Int. J. L. & Psychiatry 103 (1990) (recovering alcoholic views the theory of loss of control more sympathetically).

n137. Letter to George Cowden, supra note 135.

n138. Brief for Appellee, supra note 133, at 1.

n139. Kenneth Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942) (developing this important distinction).

n140. See Brief for Appellee, supra note 133, at 6-7.

n141. Id. at 7 (quoting Frankfurter, J. in Watts v. Indiana, 338 U.S. 49, 51 (1949)) (citations omitted).

n142. Appendix, supra note 7, at 26.

n143. The statement of Lenin's Cheka (security police) leading official, M.Y. Latsis provides an example of this:

We are not carrying out war against individuals. We are exterminating the bourgeoisie as a class. We are not looking for evidence or witnesses to reveal deeds or words against Soviet power. The first question we ask is - to what class does he belong, what are his origins, upbringing, education or profession? These questions define the fate of the accused. Harrison Sallisbury, Black Night, White Snow, Russia's Revolution, 1905-1917, at 565 (1978).

n144. See Brief for Appellee, supra note 133, at 5, 23.

n145. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (exculpating an accused if his conduct was "the product of mental disease or defect").

n146. See Brief for Appellee, supra note 133, at 19-22.

n147. See id. at 19-20.

n148. See Blocker v. United States, 274 F.2d. 572, 573 (1959) (stating that the decision by staff at St. Elizabeth's Hospital to reclassify psychopathy as a mental disease required reversal and remand for a new trial because of this "new medical evidence").

n149. See Brief for Appellee, supra note 133, at 11.

n150. See id. at 11-12.

n151. See id. at 12.

n152. See id.

n153. See id.

n154. See id.

n155. See id.

n156. See id. at 12-13.

n157. Id. at 10 (citing Frederick C. Redlich & Daniel X. Freedman, The Theory and Practice of Psychiatry (1966)).

n158. See id. at 10-11.

n159. See id. at 11.

n160. See id. at 13.

n161. Jellinek, supra note 27, at 35-58; see also Brief for Appellee, supra note 133, at 12.

n162. Brief for Appellee, supra note 133, at 13.

n163. Id. at 13.

n164. See id. at 13-14.

n165. See id. at 14-15.

n166. See id. at 15-16.

n167. See id. at 15 (citing Holmes-Laski Letters 806 (Mark D. Howe, ed. 1953), quoted in Paulsen & Kadish, Criminal Law and its Processes 75 (1962)).

n168. See id. (citing Sigmund Freud, Introductory Lectures on Psychoanalysis (1923)).

n169. See id.

n170. See id.

n171. See id. at 17.

n172. See id. at 18.

n173. See id. at 18-19.

n174. See id. at 18 & n.53.

n175. See id. at 16. Compare Jones v. United States, 463 U.S. 354 (1983), in which a closely divided Court upheld the involuntary, indefinite mental hospital confinement of a would-be shoplifter on the basis of his acquittal by reason of insanity on a charge of attempted petty larceny. See id. at 370. Jones had already served longer than the term for which he could have been confined had he been convicted. See id. at 354. The Court held that the requisite showing of dangerousness had been met, observing, "this Court has never held that "violence,' however that term might be defined, is a prerequisite for a constitutional commitment." Id. at 365.

n176. The Brief for Amici also opposed civil commitment as an alternative for those alcoholics who did not endanger the safety of others. See Brief for Amici, supra note 105, at 55.

n177. See U.S. Department of H.E.W., Public Health Service, Alcohol and Alcoholism 37 (1967). Less than ten or twelve percent of this group "can obtain aid from ordinary therapy." Id. (emphasis added). Less common therapy included "electric shock, spinal drainage to reduce intracranial pressure, insulin coma." Morris E. Chafetz & Harold W. Demone, Jr., Alcoholism and Society 213 (1962).

n178. Cooperative Commission on Study of Alcoholism, Alcohol Problems 120 (1967).

n179. See Brief for Appellee, supra note 133, at 31-32.

n180. See id. at 31.

n181. See id.

n182. See id. at 32.

n183. Id. (citing an article in The Washington, D.C. Evening Star, Oct. 26, 1966, at 1).

n184. Id. at 33.

n185. See City of Seattle v. Hill, 435 P.2d 692 (Wash. 1967).

n186. See Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967).

n187. See id. at 456-57.

n188. See Supplemental Brief for Appellee, Powell v. Texas, 392 U.S. 514 (1968) (No. 405).

n189. Proceedings in the Supreme Court of the United States at 36, Powell v. Texas 392 U.S. 514 (1968) [hereinafter Proceedings]. At the time, the arguments before the Court were recorded on tape, but not transcribed unless arrangements were otherwise made. Texas hired a court reporter in Powell, and the references are to the typed transcript thus prepared, a copy of which is on file with the author.

n190. See id. at 12-13.

n191. See id. at 51-55.

n192. See id. at 75-78.

n193. See Durham v. United States, 214 F.2d 862 (D.C. Cir. 1962).

n194. Proceedings, supra note 189, at 77.

n195. 383 U.S. 541 (1966).

n196. See id. at 545-46.

n197. See id. at 552-53.

n198. Id. at 556.

n199. 387 U.S. 1 (1967).

n200. See id.

n201. Id. at 15-16.

n202. See Proceedings, supra note 189, at 74.

n203. Id.

n204. H. David Rosenbloom, a clerk for Fortas at the time, later observed, "Powell v. Texas is the one thing I can remember that he really cared about. [His sympathy for the underprivileged] sprang from the gut ... In terms of the downtrodden and the poor, Fortas had a real feeling." Interview with Laura Kalman (May 1985), quoted in Laura Kalman, Abe Fortas: A Biography 257 (1990).

n205. Proceedings, supra note 189, at 48.

n206. See id. at 48-50.

n207. Id. at 62.

n208. Id. at 55. These observations reflected a hesitation that was to assume significance later, as Justice White decided to concur with the plurality rather than join the dissent to form a majority reversing Powell's conviction.

n209. Id. at 79-80.

n210. Bernard Schwartz, Super Chief, Earl Warren and his Supreme Court: A Judicial Biography (1983).

n211. See id. at 693.

n212. See id.

n213. See id. at 694.

n214. See id.

n215. See Mark Tushnet, Thurgood Marshall and the Brethren, 80 Geo. L.J. 2109, 2117 (1992).

n216. See id.; Schwartz, supra note 210, at 694.

n217. See Tushnet, supra note 215, at 2118.

n218. Powell v. Texas, 392 U.S. 514, 521 (1968) (citation omitted).

n219. Id. at 522 (citations omitted) (quoting E.M. Jellinek, The Disease Concept of Alcoholism 11-12 (1960) (emphasis in original)).

n220. See Powell, 392 U.S. at 525.

n221. See id.

n222. See id. at 527-31.

n223. See id. at 529.

n224. See id. at 531.

n225. Id. at 530.

n226. Id. at 532.

n227. See id. at 532-33.

n228. See id. at 534.

n229. Id. at 536.

n230. See id.

n231. Id.

n232. Id. at 536-37.

n233. See id. at 537 (Black, J., concurring).

n234. See id. at 540-41 (Black, J., concurring).

n235. Id. at 540-41, 544 (Black, J., concurring) (citation omitted).

n236. Id. at 543 (Black, J., concurring) (quoting Glanville Williams, Criminal Law - the General Part 1, at 2 (1961)).

n237. See id. at 547 (Black, J., concurring).

n238. Laura Kalman, Abe Fortas: A Biography 259 (1990).

n239. Powell, 392 U.S. at 548-49 (emphasis added) (citations omitted).

n240. Id. at 554 (White, J. concurring).

n241. Compare Justice White's more careful opinion for the Court in Traynor v. Turnage, 485 U.S. 535 (1988) discussed infra note 261.

n242. Memorandum from Justice Byron White to Justice Abe Fortas (May 8, 1968) (Hugo Black Papers, Library of Congress, Box 555, file: Powell v. Texas).

n243. See Powell, 392 U.S. at 549-54.

n244. Powell, 392 U.S. at 557 & n.1 (Fortas, J., dissenting) (emphasis added). The controlling significance accorded by the dissent to the findings of the trial court is striking, given their legislative and evaluative character. Professor Kent Greenawalt has concluded,

The absence of any serious analysis of the Court's role in reviewing the trial court's determinations leaves one with the distinct impression that the variant positions are related more to the results the Justices wished to reach than to the divergences over the proper scope of the Court's power to review.

Whether the essential findings be considered "general facts," factual inferences based on evidence about Powell himself, or mixed determinations of law and fact, their reexamination by Justices Marshall and White seems justified. Kent Greenawalt, "Uncontrollable" Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 Colum. L. Rev. 927, 933 & n.34 (1969) (citations omitted).

n245. Powell, 392 U.S. at 567 (Fortas, J., dissenting).

n246. Supplemental Brief for Appellant on Reargument at 4, Durham v. United States, 214 F.2d 862 (D.C. Cir. 1944) (No. 11,859); see also Durham, 214 F.2d at 869-72.

n247. Supplemental Brief for Appellant on Reargument, supra note 246, at 29.

n248. Durham, 214 F.2d at 875.

n249. Laura Kalman, Abe Fortas: A Biography 259 (1990).

n250. Powell, 392 U.S. at 567-68.

n251. " Nor does it [this case] concern the responsibility of an alcoholic for criminal acts. We deal here with the mere condition of being intoxicated in public." Id. at 559 (emphasis added).

n252. There was no contention that Powell was forced into a public place after he drank to intoxication in a private one. Compare Powell's case with Martin v. State, 17 So. 2d 427 (Ala. Ct. App. 1944) (conviction of a person for being drunk on a public highway reversed, as police had arrested the defendant in his home and taken him onto the highway).

n253. Powell, 392 U.S. at 559 & n.2 (Fortas, J., dissenting).

n254. Id. at 534.

n255. See George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities 54 (1996).

n256. Peter W. Low, Criminal Law 361 (1990) (citation omitted).

n257. Sanford H. Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev. 943, 964-65 (1999).

n258. See id. at 965-66.

n259. Warren E Burger, Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist.

n260. Conversation with Peter Hutt (June 3, 1998). He did, however, serve as co-chairman of the Ford Foundation's Drug Abuse Survey Project and was appointed counsel for the appellant, Raymond Moore, in United States v. Moore, 486 F. 2d 1139 (D.C. Cir. 1973). Mr. Hutt briefed the case, but due to his being appointed Chief Counsel to the Food and Drug Administration, oral argument was presented on behalf of Moore by Patricia M. Wald, presently a member of the court. The appellant argued that as a narcotic addict he suffered from a disorder and that his addiction deprived him of the power of self-control, rendering his possession of heroin involuntary. See id. at 1141. He urged the court of appeals to recognize a common law defense to a possession charge, or alternatively, to hold that his conviction was barred by the Eighth Amendment under Robinson v. California and Powell v. Texas. See id. at 1163. Following the court of appeals' rejection of this effort, Mr. Hutt concluded that legislative change with decriminalization and adequate resources for treatment was needed for drug possession as well. See Peter B. Hutt, The Role of the Washington Lawyers' Committee for Civil Rights Under Law in the Handling of Drug Abuse, 27 How. L.J. 1243, 1250 (1984).

n261. 485 U.S. 535 (1988).

n262. See id. at 538 (referring to the ten year statutory limit found at 38 U.S.C 1662(1)(1) (1966)).

n263. Id.

n264. See id. at 539 (referring to the Rehabilitation Act of 1973, 29 U.S.C. 794 (1973)).

n265. See id. at 538 (referring to 38 CFR 3.301(c)(2) (1987)).

n266. See McKelvey v. Turnage, 792 F.2d 194 (D.C. Cir. 1986).

n267. Id. at 200-01 (citations omitted). The court in McKelvey referred to Brawner, which overruled the Durham Rule's product of disease insanity defense in the federal courts of the District of Columbia. See United States v. Brawner, 471 F.2d 969, 981 (D.C. Cir. 1972) (en banc).

n268. See Amicus Brief of the National Council on Alcoholism at 9-12, Traynor v. Turnage, 485 U.S. 535 (1988) (Nos. 86-622 & 86-737); Amicus Brief of the American Medical Association and the American Psychiatric Association at 20-24, Traynor v. Turnage, 485 U.S. 535 (1988) (Nos. 86-622 & 86-737).

n269. See Brief for Respondent at 11, Traynor v. Turnage, 485 U.S. 535 (1988) (Nos. 86-622 & 86-737).

n270. See id.

n271. See Traynor, 485 U.S. at 550.

n272. Id. The Court referred to Professor Fingarette's article. See Herbert Fingarette, The Perils of Powell: In Search of a Factual Foundation for the "Disease Concept of Alcoholism," 83 Harv. L. Rev. 793, 802-08 (1970). After reviewing the medical literature in this article, Professor Fingarette summarized a large number of influential hypotheses relating to the nature of alcoholism as follows:

Possibly partly due to some abnormal physical condition, the chronic alcoholic is one who for any of a variety of other reasons has increasingly preferred drinking as a way of adapting to his life-problems; he has reached the point where the personal and social consequences of his drinking are such that abandoning heavy drinking and the life that goes with it would require him to make a choice which, though usually genuinely practicable, is so very distressing and so very difficult, both physically and mentally, that he is unlikely to make that choice and carry it out, although he may make it with the aid of special encouragement, professional guidance, or coercive influences. Id. at 808.

n273. Traynor, 485 U.S. at 552. Professor Fingarette has attributed the pressing of the disease model of alcohol abuse to a desire to extend help to alcoholics; a hope that better scientific understanding will be available in the future; a useful strategy in obtaining funding for research and treatment; and a rejection of moralistic, religious, and penal approaches. See Fingarette, supra note 272, at 793.

n274. See Traynor, 485 U.S. at 552.

n275. See id. at 552-67.

n276. Only two states appear to have done so by case law. See State v. Fearon, 166 N.W.2d 724 (Minn. 1969) (interpreting the statute as inapplicable to "involuntary" intoxication); State ex rel. Harper v. Zegeer, 296 S.E.2d 873 (W. Va. 1983) (holding that conviction is precluded by the state constitution). This suggests the precedential influence of the plurality and concurring opinions in Powell in judicial contexts.

n277. Uniform Alcoholism and Intoxication Treatment Act, U.L.A. (1971).

n278. Id. 2(1).

n279. See id. 2(1) cmt.

n280. See id. 8-18.

n281. See id. 19.

n282. See id. 36.

n283. See Uniform Alcoholism and Intoxication Treatment Act, Table of Jurisdictions Wherein Act Has Been Adopted, U.L.A. (1997) and General Statutory Notes. Another writer has put the number of adopting states at "in one form or another...[at] at least 20." Phillip E. Hassman, Annotation, Validity, Construction, and Effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701, 2 (1978).

n284. See District of Columbia Alcoholic Rehabilitation Act of 1968, Pub. L. No. 90-542, 1968 U.S.C.C.A.N. (82 Stat.) 618 (discussed in Peter B. Hutt and Richard Merrill, Criminal Responsibility and the Right to Treatment, 57 Geo. L. J. 835, 843 (1969)); Cal. Penal Code 647 (1971).

n285. See 42 U.S.C. 4541, 4577 (1998).

n286. Id. 4541(b)(2).

n287. See Greta B. Stevens, Decriminalization and Beyond: Public Inebriety in Los Angeles County, 3 Whittier L. Rev. 55, 102 (1981). The writer's conclusion about the efficacy of transferring responsibility from the criminal justice to the public health system is quite guarded, however. Id. at 121-22, 126.

n288. Interviews by David M. Hurst with Theresa Rawls, B.A. Carrington, Vin Loi, and James Burgess, officers with the Metropolitan Police Department (Mar. 4-17, 1999).

n289. See id.

n290. See D.C. Code 25-128 (1998).

n291. See id. 24-524.

n292. Interviews by David M. Hurst with Theresa Rawls, B.A. Carrington, Vin Loi, and James Burgess, officers with the Metropolitan Police Department (Mar. 4-17, 1999).

n293. Interview by David M. Hurst with David Hailes, Program Director (Mar. 18, 1999). There may be no significant differences in outcomes as a result of which of a variety of treatment programs is utilized. See Gerald J. Stahler et al., Evaluating Alternative Treatment for Homeless Substance-Abusing Men: Outcomes and Predictors of Success, 14 J. of Addictive Diseases 151 (1995); Mark L. Willenbring et al., Community Treatment of the Chronic Public Inebriate I: Implementation, 7 Alcoholism Treatment Quarterly 79, 91 (1990). The length of treatment, beyond an initial seven days, is also only marginally significant in predicting outcomes and is largely irrelevant, given the unwillingness of most homeless persons to remain long in treatment programs. See James D. Wright & Joel A. Devine, Factors that Interact with Treatment to Predict Outcomes in Substance Abuse Programs for the Homeless, 14 J. of Addictive Diseases 169 (1995).

n294. But see Kolender v. Lawson, 461 U.S. 352 (1983) (holding California loitering statute void for vagueness).

n295. In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), an antique Jacksonville ordinance that proscribed, inter alia, "common drunkards," vagabonds" and "habitual loafers" was declared void for vagueness as failing to give fair warning and as creating dangers of arbitrary arrests and convictions. See id. at 162. The Eighth Amendment proscription of status criminality was not invoked. See id. at 168-69.

n296. See Ala. Code 13A-11-9(a)(1) (stating that a person commits the crime of loitering if he is "in a public place for the purpose of begging").

n297. In Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal. 1995), the Supreme Court of California upheld the validity of a city ordinance that banned camping and storage of personal property in public areas and rejected allegations that it violated the right to travel, constituted status criminality, and was void for vagueness. See id. at 1160-66. In Joyce v. City of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994), a federal court ruled similarly in denying an injunction against enforcing ordinances directed against "life sustaining activities" (such as lodging, camping, public urination and defecation) by homeless persons. See id. at 864. While the plaintiffs relied on Justice White's concurring opinion in Powell v. Texas, the district court followed the plurality opinion of Justice Marshall, stating: As an analytical matter, more fundamentally, homelessness is not readily classified as a "status." Rather, as expressed for the plurality in Powell by Justice Marshall, there is a "substantial definitional distinction between a "status' ... and a "condition.' While the concept of status might elude perfect definition, certain factors assist in its determination, such as the involuntariness of the acquisition of that quality ... and the degree to which an individual has control over that characteristic."

Id. at 857 (citation omitted).

n298. But see Pottinger v. City of Miami, 810 F. Supp. 1551, 1584 (S.D. Fla. 1992) (enjoining Miami from harassing homeless people for sleeping, eating, and performing harmless life sustaining activities in two "safe zones" to be established in public places); Juliette Smith, Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine, 29 Colum. J.L. & Soc. Probs. 293 (1996) (criticizing the tendency of the courts to confine Robinson to crimes of pure status.)

n299. See S.D. Codified Laws 32-27-4 (Michie 1999) (punishing jaywalking as a petty offense).

n300. See Cal. Penal Code 647(f) (West 1998) (including in defining the misdemeanor of disorderly conduct one "who is found in any public place under the influence of intoxicating liquor ...." For a collection of statutes, ordinances, and cases, see Maia Foscarinis, Downward Spiral: Homelessness and Its Criminalization, 14 Yale L. & Pol'y Rev. 1 (l996).

n301. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128-29 (1967).

n302. 401 U.S. 395 (1971).

n303. 407 U.S. 25 (1972)

n304. See Tate, 401 U.S. at 399-400.

n305. See Hamlin, 407 U.S. at 40.

n306. Fines are ordinarily collectible only out of current assets; enforcing delayed payments likely involves more collection costs than the amount collected.

The most effective way to extract more money in fines, however, is to impose a heavy nonpecuniary sanction as an alternative. The "discriminatory' equation of fines to days in prison that may have led the Supreme Court to condemn the common practice of imposing prison sentences on criminals "unable' to pay the fine for the offense may have been an efficient practice - one that Pdoxically generated more revenue in fines, and therefore permitted less use of imprisonment as a sanction, than a system that decouples fines and imprisonment. Richard a. Posner, Economic Analysis of Law 247 (5th ed. 1998).

Powell, himself, was given such an alternative sentence, of course. During the oral argument, Justice Stewart noted the equal protection concern, but he seemed content that it had not been raised or briefed by the parties. See Proceedings, supra note 189, at 69-70.

n307. See The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 233 (1967).

n308. See Federal Bureau of Investigation, Uniform Crime Reports - 1996, at 218 (1997). However, an almost equal number of arrests were reported in 1996 for disorderly conduct. Still the latter was somewhat lower than the disorderly conduct arrests reported to the FBI in 1968. See Federal Bureau of Investigation, Uniform Crime Reports - 1968, at 114 (1969). As Crime Reports are dependent on accurate reporting by an extraordinarily large number of police organizations, varyingly influenced by time constraints, inefficiencies, different laws and policies, and political pressures, they tend to understate crime and arrest rates and to be of limited reliability. Yet the dramatic decrease in reported public intoxication arrests doubtlessly reflects real change.

n309. See Brenda Forster & Jeffrey C. Salloway, The Socio-Cultural Matrix of Alcohol and Drug Use, 4 Interdisciplinary Studies in Alcohol Use and Abuse 202 (1990), citing studies indicating both substantial improvements in rates of sobriety among more stable populations and a quadrupling of recidivism rates in Seattle, Washington following decriminalization. The authors concluded, "In terms of detoxification programs realizing their treatment and referral goals, the results are somewhat mixed but tend to be rather pessimistic." Id.

n310. See G. Nicholas Braucht et al., Effective Services For Homeless Substance Abusers, 14 J. of Addictive Diseases 87, 100 (1995).

n311. See Sandra C. Lapham et al., Homelessness and Substance Use Among Alcohol Abusers Following Participation in Project H&RT, 14 J. of Addictive Diseases 41, 53 (1995).

n312. See id.

n313. Debra A. Dayhoff et al., State Variations in Public and Private Alcoholism Treatment at Specialty Substance Abuse Treatment Facilities, 55 J. of Studies on Alcohol 549 (1994).

n314. Michael R. Nusbaumer, Hitting the Skids: Social Policy and the Control of Public Intoxication, 21 Sociological Focus 165, 168-69 (1988); Greta B. Stevens, Decriminalization and Beyond: Public Inebriety in Los Angeles County, 3 Whittier L. Rev. 55, 98-114 (1981) (detailing partial decriminalization and the lack of alternative facilities).

n315. Gary B. Cox et al., Outcome of a Controlled Trial of the Effectiveness of Intensive Case Management for Chronic Public Inebriates, 59 J. of Studies on Alcohol 523 (1998) (concluding however that intensive and expensive case management approaches had statistically significant more favorable likely outcomes). David J. Pittman, a long time reform advocate, has concluded, "American society has never been willing to invest the kinds of resources needed for [adequate treatment]." Paul M. Roman, Alcohol, The Development of Sociological Perspectives on Use and Abuse 219, 232 (1991).

n316. William J. Stuntz, Race, Class, and Drugs, 98 Colum. L. Rev. 1795, 1825 (1998) (concluding however that this effect may be greatly attenuated when the penalty is seen as unfair).

n317. Even some unusually tolerant cities, such as San Francisco, under the leadership of Mayor Willie Brown have recently mounted coercive campaigns against public drunkenness, apparently emulating similar measures in New York City. See Rene Sanchez, City of Tolerance Tires of Homeless, Wash. Post, Nov. 30, 1998, at A1, available in 1998 WL 20746099.

n318. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1172 (1996).

n319. See Broken Windows, 249 Atlantic Monthly 29 (1982). The title is a reference to the phenomenon that broken windows in a building invite not only the breaking of more windows, but more general and serious offenses, as well.

n320. See Geoffrey A. Campbell, Putting a Crimp in Crime, A.B.A. J., May 1997, at 24; James Traub, New York Story, New Republic, Jan. 27, 1997, at 12, 14 [quoting a policeman]:

Every time he walked past a knot of men drinking beer in front of a bodega, Irias would issue a summons that could lead to a court appearance and a fine. "Pretty soon," he says, "there's nobody urinating in the streets, because nobody's drinking beer. You don't get so much loud noise and disruption. You take care of the little things, and the big things take care of themselves. Say you have four guys drinking in the street. All of a sudden, here comes a fight, here comes a knife, here comes a gun, here comes a body. But if they know you're going to be around, they'll watch themselves." The New York City crackdown on quality of urban life threatening minor behavior is discussed more generally in George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (1996).

n321. See generally George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (1996)

n322. See United States v. Moore, 486 F.2d 1139, 1143 (D.C. Cir. 1973) (en banc).

n323. In Gorham v. United States, 339 A.2d 401 (1973), the District of Columbia Court of Appeals held that Congress had removed the courts' authority to establish a common law rule providing a defense for addicts to possession charges. See id. at 408.

n324. Moore, 486 F.2d at 1143. The expert also was of the view that drug addiction was not a mental disease but a "disorder." See id. at 1162.

n325. See id. at 1144-45.

n326. See id. at 1145.

n327. Peter Barton Hutt withdrew as counsel representing Moore prior to oral argument before the court of appeals in order to accept an appointment as Chief Counsel to the Food and Drug Administration. Patricia M. Wald, later a judge of the court of appeals, argued the case for Moore by appointment. See id. at 1140.

n328. See id. at 1148.

n329. Id. at 1145. Alan Schwartz has termed this the "characterological view" of addiction: that "addicts consume to excess because, given their characters and circumstances, excessive consumption reflects the best adaptation they can make to life; excessive consumption, that is, provides addicts with more utility than any other mode of use or abstinence." Alan Schwartz, Views of Addiction and the Duty to Warn, 75 Va. L. Rev. 509 (1989).

n330. Moore, 486 F.2d at 1146-47 (citing Powell, 392 U.S. at 534).

n331. See id. at 1148.

n332. See id. at 1150.

n333. See id. at 1159. Circuit Judge McGowan joined the opinion.

n334. See id. at 1183 (Leventhal, J., concurring). On the inability to scientifically sePte lack of capacity from indisposition, see Stephen J. Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1657 (1994); Richard J. Bonnie, The Moral Basis of the Insanity Defense, 69 A.B.A. J. 194, 196 (1983).

n335. See Moore, 486 F.2d at 1183-95 (Leventhal, J., concurring).

n336. See id. at 1208 (Wright, J., dissenting).

n337. See id. at 1206 (Wright, J., dissenting).

n338. Id. at 1240 (Wright, J., dissenting).

n339. See id. at 1239-40 (Wright, J., dissenting).

n340. See id. at 1257 (Wright, J., dissenting).

n341. See id. (Wright, J., dissenting).

n342. See id. at 1260, n.286 (Wright, J., dissenting).

n343. See id. at 1260 (Wright, J., dissenting).

n344. Id. at 1260 (Wright, J., dissenting).

n345. Id. (Bazelon, J., dissenting).

n346. See Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. Pa. L. Rev. 2245 (1992) (discussing Moore extensively, with a conclusion that the clash between the plurality and dissent represents different perspectives - volitional and determinist - in legal and medical models of behavior).

n347. See People v. Davis, 306 N.E.2d 787 (N.Y. 1973). The cases are collected in Phillip E. Hassman, Annotation, Drug Addiction or Related Mental State as Defense to Criminal Charge, 73 A.L.R.3d 16 (1976). See also Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. Pa. L. Rev. 2245, 2309 (1992).

n348. See Federal Bureau of Investigation, Uniform Crime Reports - 1996, at 280 (1997).

n349. There would be significant definitional and application problems in an addiction defense for drugs. Sharp lines cannot be drawn in terms of who is "addicted," even if that is defined as physical dependence, the experience of withdrawal symptoms on discontinuance of use. Psychological dependence is an even more amorphous concept. Furthermore,

despite our image of the heroin slave, addicts commonly go through withdrawal and undergo considerable periods of voluntary - or semi-voluntary - abstinence... So far as we can tell, less than half of the addicts who have been on the street for a year will have used an opiate daily during the entire period. John Kaplan, The Hardest Drug - Heroin and Public Policy 34 (1983).

n350. 8 Eng. Rep. 718 (H.L. 1843). The American cases were collected in Abraham S. Goldstein, The Insanity Defense 211-26 (1967).

n351. M'Naghten's Case, 8 Eng. Rep. at 722.

n352. A leading state case was Parsons v. State, 2 So. 854, 866-67 (Ala. 1887). A trial court charge including this additional inquiry was approved in Davis v. United States, 165 U.S. 373, 378 (1897).

n353. Neither Parsons nor Davis, required impulse, nor did most of the other cases in jurisdictions adopting the defense. See Goldstein, supra note 297, ch. 5.

n354. 214 F.2d 862, 874-75 (D.C. Cir. 1954).

n355. See id. at 875-76.

n356. Wayne R.LaFave & Austin W. Scott, Jr., Criminal Law 4.3(b) (2d ed. 1986).

n357. Id. 4.01 (Proposed Official Draft, 1962).

n358. " Even if the traditional retributive theory is wrong in believing moral blameworthiness a sufficient condition for punishment, moral blameworthiness can be argued to be a necessary condition." Kent Greenawalt, "Uncontrollable" Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 Colum. L. Rev. 927, 940 (1969).

n359. See David Robinson, Jr., Consultant's Report on Criminal Responsibility - Mental Illness: Section 503, in I Working Papers of the National Commission on Reform of Federal Criminal Laws 229, 239-42 (1970).

n360. Frederick C. Redlich & Daniel X. Freedman, The Theory and Practice of Psychiatry 79 (1966). In the years since the decision in Powell, there has been a great increase in the availability of information about organic processes in the brain that have behavioral significance. With the assistance of such modern investigative methods as CAT (computerized axial tomography), PET (positron emission tomography), MRI (magnetic resonance imaging), neurochemical, enzyme, endocrine, and genetic investigations, and electron microscopy, alternative hypotheses for the processes of human choice have gained explanatory power. See F. Holsboer et al., Endocrine Methods in Affective Disorders 53 & John I. Nurnberger, Jr. et al., Genetic Methods in Neuropsychiatric Disorders 221, in Joseph N. Hingtgen et al., Advanced Methods in Psychobiology (1987); Richard M. Restak, Brainscapes 47, 83 (1995). Alan A. Stone, a Harvard psychiatrist, has concluded:

In the discourse about persons, the self is the agent who chooses, who intends, and who assumes a firing position and pulls the trigger. Morality does not enter the discourse of organisms [with brains, enzymes, and physical chemical reactions] because free will and choice are not part of that language. Psychiatry has not yet found a unified discourse about organisms and persons. That is the giant iceberg against which the insanity defense inevitably is wrecked. Neither psychiatry nor law nor moral philosophy has found a sure way past this barrier. Alan A. Stone, Law, Psychiatry, and Morality 95-96 (1984).

n361. See Sigmund Freud, A General Introduction to Psychoanalysis 95 (1935); Frederick C. Redlich and Daniel X. Freedman, The Theory and Practice of Psychiatry 79 (1966). Professor Michael S. Moore, a determinist, has summarized this argument as follows:

1. All human actions and choices are caused by factors beyond the actor's control (the determinist premise). 2. If an action or choice is caused by factors beyond the actor's control, then that action or choice is morally excused (the moral version of the causal theory of excuse). 3. If an action or choice is morally excused, then that action or choice should not be legally punishable (the theory of punishment making moral culpability at least a necessary condition of legal liability). Therefore: 4. No actions and choices should be legally punishable (the conclusion of universal legal excuse). Michael S. Moore, Causation and the Excuses, 73 Cal. L. Rev. 1091, 1113 (1985). Moore, however, concludes that moral and legal excuses are not predicated on the absence of causation. See id. at 1146-48.

n362. See Peter W. Low, John Calvin Jeffries, Jr. and Richard J. Bonnie, The Trial of John W. Hinckley 117-37 (1986). A recent compilation counts twenty-seven states as having "some derivation" of the A.L.I. insanity defense and an additional five as having a form of the irresistible impulse test. See Andrew M. Levine, Note, Denying the Settled Insanity Defense: Another Necessary Step in Dealing with Drug and Alcohol Abuse, 78 B.U. L. Rev. 75, 81 (1998).

n363. 18 U.S.C. 17(a) (1998). Claims of volitional incapacity may still be considered as a basis for downward departure from the normal sentencing range under the federal guidelines. See United States Sentencing Commission Guidelines Manual 5K2.13 (1994); United States v. McBroom, 124 F.3d 533 (3d Cir. 1997); Carlos M. Pelayo, Comment, "Give Me a Break! I Couldn't Help Myself!" Rejecting Volitional Impairment as a Basis for Departure under Federal Sentencing Guidelines Section 5K2.13, 147 U. Pa. L. Rev. 729 (1999).

n364. See Idaho Code 18-207 (1982); Mont. Code Ann. 46-14-102 (1981); Utah Code Ann. 76-305(1) (1983). In State of Idaho v. Searcy, 798 P.2d 914 (Idaho 1990), the Idaho statute was upheld against constitutional challenge, the court relying heavily on the plurality opinion in Powell. See id. at 936-37. The Montana Supreme Court rejected constitutional attack on its insanity statute, also citing Powell. See State v. Korello, 690 P.2d 992, 699 (Mont. 1984).

n365. See C.Lester Gaylord, Whatever Happenened to LeRoy Powell?, Case & Com., Jan.-Feb. 1981, at 29 & n.1.

n366. See id.

n367. See id.