Public Drunkenness Is a Crime

Doctors, lawyers and enlightened laymen have long agreed that alcoholism is a disease, not a crime. And they have taken for granted that when the right case came along, a liberal and enlightened Supreme Court would strike down the practice of punishing drunks merely for being intoxicated in a public place. So the court surprised just about everyone last week when it upheld by a 5-to-4 vote the conviction of Leroy Powell, an Austin, Texas, bootblack who has been found guilty more than 100 times of public drunkenness.

To justify its ruling, the court turned to the medical profession. Expert defense testimony by a psychiatrist, explained Justice Thurgood Marshall, included the statement that Powell's first drink on each binge was a "voluntary exercise of his will." Powell, said the psychiatrist, was strongly--but not overwhelmingly--compelled to continue drinking once he started. Marshall also worried about what would happen if the court forbade the jailing of drunks. "The picture of the law's 'revolving door' of arrest, incarceration, release and rearrest is not a pretty one," he admitted, but he could see no satisfactory alternative. Even doctors critical of arresting drunks cannot agree on any treatment that would provide more of a cure than simple drying out in jail.

Exempting drunks from punishment, added Justice Hugo Black in a concurring opinion, "would be to require recognition of 'irresistible impulse' as a complete defense to any crime." And that, said Black, would be more than the court should countenance.

Cautious Hairsplitting. Speaking for the four dissenters, Justice Abe Fortas insisted that the court should not countenance a revolving jailhouse door for drunks, either. It was cruel and inhuman punishment, he said, to impose a criminal penalty on an alcoholic "who cannot resist the constant excessive consumption of alcohol and does not appear in public by his own volition."

Justice Byron White, who cast the fifth and crucial vote against Powell, was obviously moved by much of the Fortas argument. A chronic alcoholic, said White in a concurring opinion, cannot properly be punished merely for being intoxicated. Then why jail Powell? Because, said White, he had not proved that it was his alcoholism that compelled him to be intoxicated in public. By that cautious hairsplitting, White seemed to suggest that the next defendant who dries out long enough to convince the court that he could not stop himself from getting drunk in a public instead of a private place will have done his fellow topers a signal service. For he may well find five Justices willing to agree that alcoholism is no crime.

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