Easter v. District of Columbia, 19365.

• Decision Date: 31 March 1966
• Docket Number: No. 19365.,19365.
• Citation: 361 F.2d 50
• Parties: DeWitt EASTER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

361 F.2d 50 (1966)

DeWitt EASTER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 19365.

United States Court of Appeals District of Columbia Circuit.

Argued January 19, 1966.

Decided March 31, 1966.

Messrs. Peter Barton Hutt and Michael S. Horne, Washington, D. C., with whom Messrs. Monroe H. Freedman, James V. Siena and Frank S. Ketcham, Washington, D. C., were on the brief, for appellant.

Mr. Ted D. Kuemmerling, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Milton D. Korman, Acting Corporation Counsel, and Hubert B. Pair, Asst. Corporation Counsel, were on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.

FAHY, Circuit Judge, with whom BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges, join and with whom McGOWAN, Circuit Judge, joins in the result and in Parts I and III of the opinion:

In the Court of General Sessions of the District of Columbia, at a trial by a judge without a jury, appellant DeWitt Easter was found guilty of having been "drunk and intoxicated" on a stated date in a street in Washington, in violation of our Code provision reading:

No person shall * * * be drunk or intoxicated in any street, alley, park, or parking; * * *

D.C. Code § 25-128(a).¹ He was given a suspended sentence of ninety days imprisonment. That he was drunk or intoxicated at the time and place stated was proved and was uncontested. His defense was that he was a chronic alcoholic.

The judge did not rule that the evidence fell short of establishing that appellant was a chronic alcoholic. The judge ruled that the evidence to that effect was not pertinent; that is, that chronic alcoholism was not a defense to a charge of intoxication in a public place.

The District of Columbia Court of Appeals affirmed the conviction. Easter v. District of Columbia, D.C.App., 209 A.2d 625. We allowed an appeal to this court. Sitting en banc we heard and now decide the case.

I

Our decision is that chronic alcoholism is a defense to a charge of public intoxication and, therefore, is not a crime in violation of Section 25-128(a) of our Code, supra n. 1. We think this follows, in the first place, from the Act of Congress of August 4, 1947, entitled "Rehabilitation of Alcoholics," 61 Stat. 744, c. 472, now embodied in our Code as Sections 24-501 et seq.²

In aid of its purposes, one of which is "to establish a program for the rehabilitation of alcoholics, promote temperance, and provide for the medical, psychiatric, and other scientific treatment of chronic alcoholics" the Act provides,

the courts of the District of Columbia are hereby authorized to take judicial notice of the fact that a chronic alcoholic is a sick person and in need of proper medical, institutional, advisory, and rehabilitative treatment, and the court is authorized to direct that he receive appropriate medical, psychiatric, or other treatment as provided under the terms of this chapter.³

D. C. Code § 24-501 (1961 ed.).

A "chronic alcoholic" is defined in the Act:

The term "chronic alcoholic" means any person who chronically and habitually uses alcoholic beverages to the extent that he has lost the power of self-control with respect to the use of such beverages, or while under the influence of alcohol endangers the public morals, health, safety, or welfare.

D.C. Code § 24-502 (1961 ed.).

We are concerned in this case only with that part of the above definition which refers to loss of the power of self-control with respect to the use of alcoholic beverages.

The above statutory provisions, considered in the full context of the Act of which they are a part,⁴ preclude attaching criminality in this jurisdiction to intoxication in public of a chronic alcoholic. An essential element of criminal responsibility is the ability to avoid the conduct specified in the definition of the crime. Action within the definition is not enough. To be guilty of the crime a person must engage responsibly in the action. Thus, an insane person who does the act is not guilty of the crime. The law, in such a case based on morals, absolves him of criminal responsibility. So, too, in case of an infant. In case of a chronic alcoholic Congress has dealt with his condition so that in this jurisdiction he too cannot be held to be guilty of the crime of being intoxicated because, as the Act recognizes, he has lost the power of self-control in the use of intoxicating beverages. In his case an essential element of criminality, where personal conduct is involved, is lacking. This element is referred to in the law as the criminal mind. See Carter v. United States, 102 U.S.App. D.C. 227, 235, 252 F.2d 608, 616, where the subject is well discussed. It is there stated in terms of the common-law axiom, "Actus non facit reum, nisi mens sit rea." Coke, Third Institute *6, *107.

The Act of 1947 does not state that a chronic alcoholic is suffering from a mental disease which causes the loss of control; the defense is not in terms of insanity. The condition is defined as a "sickness," and Congress did not find it necessary to specify whether it is mental, physical or a combination of both. Whatever its etiological intricacies it is deemed a sickness which is accompanied with loss of power to control the use of alcoholic beverages. The congressional judgment is supported not only by the evidence in this case adduced in the Court of General Sessions but by the record of the hearings on the Act of 1947,⁵ the entire legislative history of the Act, and by an additional abundance of authorities, some of which are enumerated in Appendix B to this opinion. As Congressman Miller of Nebraska stated on the floor of the House during the debate on the Act:

Jail is not the answer to their trouble. We think they are sick people and need scientific and technical attention of psychiatrists and medical personnel.

93 Cong.Rec. 3357 (1947).⁶

It is suggested that the public nature of the intoxication adds a factor which precludes the defense — that if suffering from the sickness is not a crime manifesting it in a public place is. But nothing whatever indicates that Congress intended to limit the scope of the Act to persons sick in privacy. It is clear the Act was primarily concerned with persons found in public places. The provisions which contemplated their institutional care, instead of the jail, show indubitably that the non-criminal approach of Congress applied to the chronic alcoholic floundering in a public place. The lack of power of self-control referred to cannot be limited to absolution of criminality for drinking or being drunk in a non-public place. No statute in the District of Columbia makes such an act or circumstance criminal. The very nature of the sickness goes where its victim goes.

It should be clear from the above that chronic alcoholism resulting in public intoxication cannot be held to be criminal on the theory that before the sickness became chronic there was at some earlier period a voluntary act or series of acts which led to the chronic condition. A sick person is a sick person though he exposed himself to contagion and a person who at one time may have been voluntarily intoxicated but has become a chronic alcoholic and therefore is unable to control his use of alcoholic beverages is not to be considered voluntarily intoxicated. We desire to make clear, however, that we are not absolving the voluntarily intoxicated person of criminal responsibility for crime in general under applicable law. See Harris v. United States, 8 App.D.C. 20, 36 L.R.A. 465.

We find no basis for judicial repudiation of the Act of 1947. The fact that in the intervening years the facilities contemplated by the Act have not been made available does not detract from the legal effect of those provisions of the Act which define the nature of the sickness. One who has committed no crime cannot be validly sentenced as a criminal because of a lack of rehabilitative and caretaking facilities.

In event of a determination of chronic alcoholism under the procedures of D.C.Code § 24-504 commitment for treatment is not mandatory. In the judge's discretion the accused may be released. But he may not be punished.

II

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. This is so for the same reason which led Congress to that enactment, namely, that a chronic alcoholic is in fact a sick person who has lost control over his use of alcoholic beverages. This is demonstrated by the hearings on the Act of 1947, by the evidence taken in the present case, and by the wealth of material available and appropriate to be considered by the court. See Appendices A and B.

The same basic problem now before us was recently before the Court of Appeals for the Fourth Circuit in Driver v. Hinnant, 356 F.2d 761.⁷ This was a habeas corpus proceeding attacking in the federal courts a conviction of Driver of public intoxication by the courts of North Carolina. Under a State statute it was a misdemeanor to be found "drunk or intoxicated on the public highway, or at any public place or meeting." Even without benefit of such a statute as our Act of 1947, the court sustained the defense of chronic alcoholism. The court said in part:

As defined by the National Council on Alcoholism, he a chronic alcoholic is a "person who is powerless to stop drinking and whose drinking seriously alters his normal living pattern."1

1. Public Health Service Publication, No. 730, "Alcoholism", prepared by the National Institute of Mental Health, National Institute of Health, U. S. Department of Health, Education and Welfare (1965).

The American Medical Association defines "alcoholics" as "those excessive drinkers whose dependence on alcohol has attained such a degree that it shows

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