Virginia Court Decides Homeless “Habitual Drunkards” Don’t Deserve Due Process

September 25, 2018

Not even Skadden, Arps, Slate, Meagher & Flom LLP, once referred to as “Wall Street’s most powerful law firm,” could keep Virginia prosecutors from their penchant for criminalizing poor people, particularly those who are homeless.

The defendant has no right to a court-appointed lawyer.

Last month, the United States Court of Appeals for the Fourth Circuit upheld Virginia’s archaic “habitual drunkard” statute, which allows a prosecutor to request that a judge designate certain people “habitual drunkards,” based on their perceived threat to public safety. Once someone is labeled as such, the mere possession or consumption of alcohol– or even an attempt to possess or consume alcohol — becomes a Class 1 misdemeanor punishable by up to a year in jail and fines up to $2500. These “interdiction” proceedings are nominally civil (instead of criminal) in nature, meaning that the standard of proof is a “preponderance of the evidence” — “more likely than not” — instead of “beyond a reasonable doubt,” and that the defendant has no right to a court-appointed lawyer or other protections constitutionally guaranteed to criminal defendants.

According to The Legal Aid Justice Center (LAJC), which represented the plaintiffs along with Skadden, Virginia Commonwealth’s Attorneys “selectively enforc[e]” the interdiction law against homeless individuals to “clean up the streets.” As a result, they say, their clients are “repeatedly arrested and jailed.” While incarcerated, their jobs, relationships, and any treatment they are undergoing for mental and/or physical illness get interrupted, and while in jail they are not guaranteed treatment for their alleged alcoholism. Plus, being labeled “habitual drunkards” makes it harder for them to find stable housing. LAJC argued that Virginia’s habitual drunkard law is “unconstitutional because it punishes homeless alcoholics for their alcoholism, a disease.” It also, they say, “violates their right to due process by criminalizing an otherwise lawful activity, possessing or consuming alcohol, without required constitutional protections.” Finally, the law is “unconstitutionally vague because it fails to define ‘habitual drunkard’ and encourages arbitrary police enforcement.” Only one other state, Utah, has a similar law that criminalizes possession of alcohol by a “habitual drunkard.”

After Bryan Manning, the named plaintiff in the suit, was interdicted, he was prosecuted over 30 times for possessing or drinking alcohol. His lawyers contended that police targeted him because he is homeless. He has been arrested at Walmart for simply being there, as alcohol is sold at the store, and has been booked for “smelling like” alcohol. Each time he is arrested, he has to leave behind his belongings, including his psychiatric medications.

The lawsuit was filed against two Virginia Commonwealth’s Attorneys (Virginia’s equivalent to District Attorneys) — Roanoke Commonwealth’s Attorney Don Caldwell and Richmond Commonwealth’s Attorney Michael Herring. Although the Commonwealth’s Attorney for the City of Virginia Beach was not named as a defendant in the suit, that county has by far the most people labelled “habitual drunkards” in the state. According to LAJC, Virginia Beach courts slapped the label on 616 people between 2010 and 2015. The City of Chesapeake, with a population equal to about half of Virginia Beach’s, interdicted fifteen individuals in the same time period. The neighboring city of Norfolk interdicted two.

Colin Stolle, Virginia Beach’s top prosecutor, is an ardent supporter of interdiction. As the Commonwealth’s Attorney, Stolle has the ultimate authority to criminally prosecute the city’s nearly five-hundred thousand residents, from newborns to the dying elderly. Stolle believes the interdiction law is “common sense,” as in his non-medical opinion the people affected are “clearly alcoholic.”

Delegate Stolle makes the laws, Commonwealth Attorney Stolle prosecutes people under those laws, and Sheriff Stolle locks them up in his jail.

Stolle was first elected to office in 2013, four years after his brother, Ken Stolle, won the Virginia Beach Sheriff’s seat. Virginia law does not consider the county’s two top law enforcement officials being brothers and working on cases together a conflict of interest. On top of that, a third brother, Chris Stolle, is a member of the Virginia House of Delegates. As one local reporter foreshadowed in 2013, Delegate Stolle makes the laws, Commonwealth Attorney Stolle prosecutes people under those laws, and Sheriff Stolle locks them up in his jail.

At least one prosecutor is openly relieved she can continue to threaten homeless people who drink alcohol with jail time. After the Fourth Circuit ruling, Colette Wallace McEachin, who is in charge of interdiction motions in Roanoke Commonwealth Attorney Caldwell’s office, said that “There are at least three or four cases I know of where once a person’s been interdicted, we were able to convince them to go to treatment.”  

But the ruling may not be set in stone. The plaintiffs are petitioning to have it reconsidered by the full Fourth Circuit, in hopes of overturning the law for good. And even one of the judges behind the ruling thinks the law is a problem. In a separately written opinion, Circuit Judge Diana Gribbon Motz concurred with the majority opinion, but said that she did so “with reluctance and regret,” only because legal precedent compelled her to do so. “[T]housands of Virginians remain subject to a law that, in my view, is unconstitutional” she wrote.

Photo by Steve Knutson on Unsplash

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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