Driver v. Hinnant

• Decision Date: 24 June 1965
• Docket Number: Civ. No. 1639.
• Citation: 243 F. Supp. 95
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Joe B. DRIVER, Petitioner, v. Arthur HINNANT, Superintendent, Halifax County Prison Unit of the North Carolina State Prison Department, Respondent.

243 F. Supp. 95

Joe B. DRIVER, Petitioner, v. Arthur HINNANT, Superintendent, Halifax County Prison Unit of the North Carolina State Prison Department, Respondent.

Civ. No. 1639.

United States District Court E. D. North Carolina, Raleigh Division.

June 24, 1965.

Anthony M. Brannon and J. Milton Read, Jr., Durham, N. C., for petitioner.

Covington & Burling, Peter Barton Hutt and Michael S. Horne, Washington, D. C., amici curiae.

T. Wade Bruton, Atty. Gen. of North Carolina, by Theodore S. Brown, Jr., Staff Atty., Raleigh, N. C., for respondent.

BUTLER, Chief Judge.

This application for writ of habeas corpus on behalf of a state prisoner presents the question whether the imprisonment of a chronic alcoholic for public drunkenness constitutes cruel and unusual punishment.

Joe B. Driver is confined pursuant to concurrent sentences of two years imprisonment imposed by the Superior Court of Durham County, North Carolina, upon his plea of guilty to two charges of a fifth offense of public drunkenness within a twelve-month period.¹ At the trial, petitioner testified:

"I am fifty-eight years old and was first arrested for drunkenness at age twenty-four. Since then I have spent two-thirds of my life on the roads for drinking. Yes, sir, I consider myself an alcoholic. I want to do something about it, but it don't look like I can."

Further testimony by petitioner included this colloquy with the trial court:

"THE COURT: If I counted correctly would it be right that you have been up for being publicly drunk two hundred and three times?

"PETITIONER: I wouldn't doubt it, Your Honor. I have lost record of it.

"THE COURT: Have you been up for larceny nine times?

"PETITIONER: That was while I was drinking. I have never been in jail in my life but what it won't the cause of it.

"THE COURT: You have been up for indecent exposure two times?

"PETITIONER: I was drunk both of them times.

"THE COURT: You have been up for being a common nuisance four times?

"PETITIONER: Yes, sir, I was drunk and that's what they charged me with, a common nuisance.

"THE COURT: I agree with you thoroughly that you are an alcoholic if I ever saw one."

Counsel appointed to represent petitioner at his trial appealed to the Supreme Court of North Carolina, contending that the sentence of imprisonment subjected petitioner to cruel and unusual punishment. The judgment was affirmed,² and petitioner now seeks federal habeas corpus relief.

After the filing of the application and the answer of respondent, it appeared to the court that only questions of law were raised and that there was no genuine issue as to any material fact. However, in the absence of a positive judicial finding that petitioner is an alcoholic, the court suggested an appropriate stipulation. The failure of respondent to do so compelled a plenary hearing to determine the question.

At the hearing, petitioner testified in his own behalf and offered in evidence the affidavit of Thomas T. Jones, M.D., the pertinent parts of which are set out in the margin.³ Petitioner filed with the court a certified copy of his criminal record as compiled by the Federal Bureau of Investigation.⁴ Petitioner's evidence is uncontradicted by respondent,⁵ and the court finds as a fact that petitioner is a chronic alcoholic.⁶

Relying on Robinson v. State of California,⁷ petitioner contends that "criminal punishment of a chronic alcoholic, who is a sick person suffering from a disease, merely for publicly exhibiting the symptoms of that sickness and disease" is unconstitutional. The appellant in Robinson was convicted under a California statute which made it a misdemeanor, punishable by imprisonment, for any person to "be addicted to the use of narcotics." The trial court had instructed the jury that the offense was "a status or condition and not an act." The Supreme Court reversed, holding that narcotic addiction is a sickness and that to make a sickness a crime is to inflict cruel and unusual punishment in violation of the eighth and fourteenth amendments.⁸

It appears that this new approach⁹ to the eighth amendment restricts the power of the states to define crime. The Court was not confronted with an inherently cruel method of punishment,¹⁰ nor with a cruelly excessive punishment disproportionate to the offense;¹¹ rather, the punishment was deemed cruel because the conduct for which it was imposed should not be subjected to criminal sanction. By analogy the Court reasoned: "Even one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold."¹²

As interpreted by the California courts, the statute allowed imprisonment of a person although he was not guilty of any public manifestation of his addiction to narcotics, or any disorderly or irregular behavior. The North Carolina statute making a criminal offense of public drunkenness is clearly distinguishable. North Carolina does not make the "status" or "condition" of alcoholism a crime; rather, it punishes public drunkenness as an antisocial act. To the extent that Robinson involves considerations of substantive due process, it appears inapposite to this case.

Petitioner concedes that the North Carolina statute is constitutional on its face, but contends that under Robinson it is unconstitutional when applied to him. In substance, he argues that it is as cruel and unusual to punish the symptoms of a sickness as it is to punish the sickness itself, and he emphasizes the dissenting remark in Robinson that the decision may preclude punishment of a narcotic addict for the use of narcotics.¹³

Petitioner's argument of what the decision portends ignores the obvious attempt of the majority to limit its holding to the factual situation at hand. At the very outset, the Court stated:

"It would be possible to construe the statute under which the appellant was convicted as one which is operative only upon proof of the actual use of narcotics * * * but the California courts have not so construed this law. Although there was evidence in the present case that the appellant had used narcotics * * * the jury were instructed that they could convict him even if they disbelieved that evidence. The appellant could be convicted, they were told, if they found simply that the appellant's `status' or `chronic condition' was that of being `addicted to the use of narcotics.'"¹⁴

The constitutional question was presented only because it was impossible to determine from the jury's verdict whether the appellant had been convicted upon precisely such a finding, or only upon proof of actual use.¹⁵

The ratio decidendi of Robinson is not clear, and it appears that the decision may raise more questions than it answers.¹⁶ The closing language of the majority, however, is plain:

"We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of government. There are, as we have said, countless fronts on which those evils may be legitimately attacked. We deal in this case only with an individual provision of a particularized local law as it has so far been interpreted by the California courts." (Emphasis supplied.)¹⁷

The immediate result of the decision is equally plain: one phrase in the narcotics statute was invalidated; the substance of the statutory scheme punishing the use of narcotics was left intact.

Although "a principle, to be vital, must be capable of wider application than the mischief which gave it birth,"¹⁸ it would do far greater mischief for the court to extend Robinson as urged by petitioner. The court holds that the application of North Carolina's public drunkenness statute to petitioner does not subject him to cruel and unusual punishment by virtue of Robinson v. State of California.

Petitioner also contends that his punishment is disproportionately severe in relation to the offenses charged. Petitioner states that "it is incomprehensible that in 1965 it is necessary to have to argue that the legislature must tailor the punishment to fit the crime" and that "this concept has been so thoroughly imbued in our jurisdiction that the need for its citation has been slight." The sole authority cited by petitioner is Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

In Weems, the defendant, an American national, was a disbursing officer for the Coast Guard in Manila. He was convicted in a Philippine court of falsifying a public document recording wage payments by having entered as paid out 616 pesos. In an eloquent opinion by Mr. Justice McKenna, the Court graphically described the mandatory punishment provided by statute for the offense:

"Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment. From other parts there is no intermission. His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the `authority immediately in charge of his surveillance,' and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him, and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty. No circumstance of degradation is omitted. It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor may mean we have no exact measure. It

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