State ex rel. Harper v. Zegeer

Decision Date18 May 1982
Docket NumberNo. 14950,14950
Citation296 S.E.2d 873,170 W.Va. 743
PartiesSTATE ex rel. Mark Anthony HARPER v. Jack ZEGEER, Judge, etc., et al., City of South Charleston.
CourtWest Virginia Supreme Court

1. Criminal punishment of chronic alcoholics for public intoxication violates our State constitutional prohibition against cruel and unusual punishment. W.Va. Const. art. III, § 5.

2. The State has a legitimate right to remove chronic alcoholics from public places, but not to incarcerate them as criminals.

3. A jail is evaluated by a "totality of circumstances" test to determine if incarceration in that jail is cruel and unusual punishment.

ADDENDUM
ON REHEARING

1. Presentment before a judicial officer before incarceration on a criminal charge is basic to due process.

2. It is the law of West Virginia that no person may be imprisoned or incarcerated prior to presentment before a judicial officer and the issuance of a proper commitment order.

3. The Legislature has clearly demonstrated by enactment of the mental health laws that it does not contemplate that inebriated persons, as defined by law, should be detained in jails or lockups.

4. The Legislature has specified detailed procedures for dealing with alcohol related problems and has directed the Department of Health and its Division of Mental Health to execute those procedures.

5. Chronic alcoholism is a defense to a charge of public intoxication. Upon a showing that an accused is a chronic alcoholic, he is to be accorded all of the procedural safeguards that surround those with mental disabilities who are accused of crime.

6. A finding of chronic alcoholism is to be treated as proof of addiction as required by W.Va.Code § 27-6A-5.

Charles R. Garten, Charleston, for relator.

Jack Zegeer, pro se and Harley E. Tingler, South Charleston, for respondents.

Mental Health Association, Inc. by Paul Raymond Stone, Charleston, W.Va. Civil Liberties Union by James F. Humphreys, Charleston, for amicus curiae.

HARSHBARGER, Justice:

After Mark Harper, of South Charleston, was arrested and incarcerated for public intoxication more than a dozen times in 1980, he petitioned by habeas corpus to test the constitutionality of jailing chronic alcoholics who are intoxicated in public. 1

I.

Medical experts and professional groups have concluded that alcoholism is a disease. 2 The World Health Organization named it "alcohol dependency syndrome", described to be:

"A state, psychic and usually physical, resulting from taking alcohol, characterized by behavorial and other responses that always include a compulsion to take alcohol on a continuous or periodic basis in order to experience its psychic effects, and sometimes to avoid the discomfort of its absence; tolerance may or may not be present." World Health Organization, International Classification of Diseases, 1977.

The National Council on Alcoholism, American Medical Society on Alcoholism, Committee of Definitions concluded:

ALCOHOLISM is a chronic, progressive, and potentially fatal disease. It is characterized by tolerance and physical dependency or pathologic organ changes, or both--all the direct or indirect consequences of the alcohol ingested.

1. "Chronic and progressive" means that the physical, emotional, and social changes that develop are cumulative and progress as drinking continues.

2. "Tolerance" means brain adaptation to the presence of high concentrations of alcohol.

3. "Physical dependency" means that withdrawal symptoms occur from decreasing or ceasing consumption of alcohol.

4. The person with alcoholism cannot consistently predict on any drinking occasion the duration of the episode or the quantity that will be consumed.

5. Pathologic organ changes can be found in almost any organ, but most often involve the liver, brain, peripheral nervous system, and the gastrointestinal tract.

6. The drinking pattern is generally continuous but may be intermittent, with periods of abstinence between drinking episodes.

7. The social, emotional, and behavioral symptoms and consequences of alcoholism result from the effect of alcohol on

the function of the brain. The degree to which these symptoms and signs are considered deviant will depend upon the cultural norms of the society or group in which the person lives. Approved by the Executive Committee of the National Council on Alcoholism Board of Directors, June, 1976, 85 Annals of Internal Medicine, No. 6, December, 1976.

An American Medical Association publication, Manual on Alcoholism, defined it:

Alcoholism is an illness characterized by preoccupation with alcohol and loss of control over its consumption such as to lead usually to intoxication if drinking is begun; by chronicity; by progression; and by tendency toward relapse. It is typically associated with physical disability and impaired emotional, occupational, and/or social adjustments as a direct consequence of persistent and excessive use of alcohol. American Medical Association, Manual on Alcoholism 6 (1968).

See Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, 42 U.S.C.A. § 4541 (1977) (Congress declared that "alcoholism is an illness requiring treatment and rehabilitation"). See generally E.M. Jellinek, The Disease Concept of Alcoholism (1960); Keller and McCormick, A Dictionary of Words About Alcohol (1968); President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 1 (1967). Cf., Davies, Is Alcoholism Really A Disease?, 3 Contemp. Drug Problems 197 (1974) (alcoholism is a medical and social problem that is best dealt with by physicians and other disciplines); S. Shaw, A Critique of the Concept of the Alcohol Dependence Syndrome, 74 Brit.J. of Addiction 339 (1979) (recognizing that a purely medical model is too narrow). See also, Easter v. District of Columbia, 361 F.2d 50 (D.C.Cir.1966) (alcoholism as a sickness); Driver v. Hinnant, 356 F.2d 761 (4th Cir.1966) (alcoholism as a chronic illness); Sweeney v. United States, 353 F.2d 10 (7th Cir.1965) (abstention cannot be part of a probation agreement if a probationer is a chronic alcoholic); State v. Fearon, 283 Minn. 90, 166 N.W.2d 720 (1969) (widespread acceptance that alcoholism is a disease); State v. Street, 498 S.W.2d 523 (Mo.1973) ("alcoholism is a chronic disease"); Dayton v. Sutherland, 42 Ohio Misc. 35, 328 N.E.2d 416 (1974) (alcoholism as a disease); Wheeler v. Glenn Falls Insurance Co., 513 S.W.2d 179 (Tex.1974) ("a substantial school of thought supports the proposition that alcoholism is a disease").

We agree that alcoholism is a disease. We also believe that criminally punishing alcoholics for being publicly intoxicated violates the prohibition against cruel and unusual punishment. W.Va. Const. art. III, § 5. 3

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), found that the United States Constitution prohibited criminal punishment of any person for being addicted to narcotics.

It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 91 L.Ed. 422, 67 S.Ct. 374. Robinson v. California, supra 370 U.S., at 666, 82 S.Ct., at 1420, 8 L.Ed.2d, at 763.

In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), five Justices agreed that alcoholism was a disease, but because of a confusing trial court record the majority was unwilling to extend Robinson's rationale to public intoxication.

Powell decided that public intoxication may be criminally punished, but distinguished Robinson because the Robinson statute sought to punish people who were addicted to a narcotic in Los Angeles County, or who had used a narcotic in Los Angeles County, Robinson, 370 U.S. at 663, 82 S.Ct. at 1418; and Texas did not punish Powell for being an alcoholic, or even for being drunk, but rather for being drunk in public. Powell, 392 U.S., at 532, 88 S.Ct., at 2154.

Justice White, apparently the deciding vote in Powell, wrote that when a record indicated that a defendant is an alcoholic and has no place to be but in public, a prosecution for public intoxication violates the Constitution. 392 U.S., at 551-552, 88 S.Ct. at 2163-2164, (White, J., concurring). 4

Two landmark decisions recognized that alcoholism is a disease and that alcoholics cannot be criminally prosecuted. In Driver v. Hinnant, supra, Driver, an alcoholic, brought a habeas corpus proceeding protesting his criminal conviction and sentence under the North Carolina public drunkenness statute. The Fourth Circuit held that the Eighth Amendment prohibited punishment of alcoholics:

Although his misdoing objectively comprises the physical elements of a crime, nevertheless no crime has been perpetrated because the conduct was neither actuated by an evil intent nor accompanied with a consciousness of wrongdoing, indispensable ingredients of a crime.... The alcoholic's presence in public is not his act, for he did not will it. It may be likened to the movements of an imbecile or a person in a delirium of a fever. None of them by attendance in the forbidden place defy the forbiddance.

This conclusion does not contravene the familiar thesis that voluntary drunkenness is no excuse for crime. The chronic alcoholic has not drunk voluntarily, although...

To continue reading

Request your trial
13 cases
  • People v. Kellogg, D042696.
    • United States
    • California Court of Appeals
    • 17 Junio 2004
    ...272, 70 P.3d 277; People v. Lucero, supra, 23 Cal.4th at p. 740, 97 Cal.Rptr.2d 871, 3 P.3d 248; cf. State ex rel. Harper v. Zegeer (1982) 170 W.Va. 743, 296 S.E.2d 873, 875, 878 [holding conviction of chronic alcoholic for public intoxication constitutes cruel and unusual punishment in vio......
  • Morrisey v. Afl-Cio
    • United States
    • Supreme Court of West Virginia
    • 21 Abril 2020
    ...of criminal sentences beyond that contained in the eighth amendment to the federal constitution); State ex rel. Harper v. Zegeer , 170 W. Va. 743, 296 S.E.2d 873 (1982) (under West Virginia Constitution, which provides protections beyond those contained in the eighth amendment to the United......
  • McGraw v. Hansbarger, 15676
    • United States
    • Supreme Court of West Virginia
    • 31 Marzo 1983
    ...was filed on December 30, 1982. The issues raised in this proceeding are an outgrowth of this Court's decision in Harper v. Zegeer, 170 W.Va. 743, 296 S.E.2d 873 (1982). In Harper we held that the criminal punishment of chronic alcoholics for public intoxication violates our state constitut......
  • Rogers v. Albert, 27680.
    • United States
    • Supreme Court of West Virginia
    • 13 Diciembre 2000
    ...availability of up to fifteen hours in duration.5 More specifically, he asserts that this Court's decision in State ex rel. Harper v. Zegeer, 170 W.Va. 743, 296 S.E.2d 873 (1982), compels that we employ our rule-making6 and supervisory7 authority so as to impose a system of magistrate avail......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT