The “Habitual Drunkard:” Virginia’s Downright Prehistoric Anti-Homeless Law.

Some of the first liquor laws on this continent were designed to punish known problem drinkers and limit their access to alcohol. In the Plymouth Colony drunkenness became illegal in 1635, with the local court soon punishing anyone who sold alcohol to known drunks.[i] I’d like to think that our understanding of substance dependency has evolved considerably since then, but the law doesn’t always reflect that.

Virginia, sticking to its colonial roots, is one of two states that has a law on the books allowing local courts to deem someone a “habitual drunkard.”[ii] The designation, determined by a judge in a civil court (so no right to a public defender like in a criminal court), gives police the right to arrest the person for possessing or buying any alcohol—or acting drunk, smelling like booze, being near an empty can, etc. In practice, this is a form of homeless control. Virginia towns—especially in touristy areas like Virginia Beach—can use the law to round up and jail vagrants, keeping the streets free and clear for the vacationing, socially acceptable drunkards.

If you can’t tell, I don’t think much of this law. It’s brutal, and does no long-term good. Some of these homeless alcoholics—who have life stories straight out of a John Lee Hooker song—have been jailed 20 to 30 times since their designation, which tells me that their time behind bars has not turned them into productive members of society. The Legal Aid Justice Center feels similarly, and recently assisted a group of homeless men in filing a class action suit against the state. The suit, which began in 2016, claims that the law violates due process, equal protection, and cruel & unusual punishment. The case has not gone their way so far. They lost in the lower court, appealed, and lost again in front of a three-judge panel at the fourth circuit court of appeals late last year. In January all fifteen judges of that court reheard the arguments, and a decision is expected soon.

In the case, the plaintiffs/appellants made three arguments. First, they said that the law is cruel and unusual because it “criminalizes the status of being a homeless alcoholic,” something they claim is illegal as per a Supreme Court case called Robinson v. California. The state countered that the law prohibits an act—drinking or possessing alcohol—not a status. Second, they made the due process argument that while the “habitual drunkard” designation is now a civil procedure, it inevitably leads to criminal charges since it makes illegal the symptoms of a disease, so it should be considered a criminal procedure, with all the defendants’ rights that come with that distinction. The defense countered that the difference is clear and proper—individuals are not criminally punished because they are deemed habitual drunkards, they are punished because they broke the law later on, and at that point they have the right to counsel. Finally, they argued that this law singles out homeless people, in violation of equal protection. After all, a non-homeless alcoholic has a nice private place to get their fix. The state replied that since alcohol access is not a fundamental right, and alcoholics not a protected class of people, all the government needs to do is show that there is a rational basis for the law, which they say there is. As I have noted in other articles, when you fight the government under the “rational basis” standard, you usually lose.

This is a dirty, low law that does more harm than good, but my guess would be that the full court finds it legal. It will probably take some public backlash to end it, rather than a court case. In the past, efforts to overturn the law haven’t gone anywhere in the legislature, but this case has shined a light on it. A Public Defender-turned legislator intends to introduce a repeal bill this year; perhaps it will have better luck.

What an upbeat article this turned out to be!

[i] Cheever, “Drinking In America”, p. 26

[ii] The second being the always-reliable Utah

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