Powell v. Texas


No. 405 Argued: March 7, 1968 --- Decided: June 17, 1968
MR. JUSTICE MARSHALL announced the judgment of the Court and delivered an opinion in which THE CHIEF [p517] JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN join.

In late December, 1966, appellant was arrested and charged with being found in a state of intoxication in a public place, in violation of Texas Penal Code, Art. 477 (1952), which reads as follows:

Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars.

Appellant was tried in the Corporation Court of Austin, Texas, found guilty, and fined $20. He appealed to the County Court at Law No. 1 of Travis County, Texas, where a trial de novo was held. His counsel urged that appellant was "afflicted with the disease of chronic alcoholism," that "his appearance in public [while drunk was] . . . not of his own volition," and, therefore, that to punish him criminally for that conduct would be cruel and unusual, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

The trial judge in the county court, sitting without a jury, made certain findings of fact, infra at 521, but ruled as a matter of law that chronic alcoholism was not a defense to the charge. He found appellant guilty, and fined him $50. There being no further right to appeal within the Texas judicial system, [n1] appellant appealed to this Court; we noted probable jurisdiction. 389 U.S. 810 (1967).


The principal testimony was that of Dr. David Wade, a Fellow of the American Medical Association, duly certificated in psychiatry. His testimony consumed a total of 17 pages in the trial transcript. Five of those pages were taken up with a recitation of Dr. Wade's qualifications. [p518] In the next 12 pages, Dr. Wade was examined by appellant's counsel, cross-examined by the State, and reexamined by the defense, and those 12 pages contain virtually all the material developed at trial which is relevant to the constitutional issue we face here. Dr. Wade sketched the outlines of the "disease" concept of alcoholism; noted that there is no generally accepted definition of "alcoholism"; alluded to the ongoing debate within the medical profession over whether alcohol is actually physically "addicting" or merely psychologically "habituating", and concluded that, in either case a "chronic alcoholic" is an "involuntary drinker," who is "powerless not to drink," and who "loses his self control over his drinking." He testified that he had examined appellant, and that appellant is a "chronic alcoholic," who

by the time he has reached [the state of intoxication] . . . , is not able to control his behavior, and [who] . . . has reached this point because he has an uncontrollable compulsion to drink.

Dr. Wade also responded in the negative to the question whether appellant has "the willpower to resist the constant excessive consumption of alcohol." He added that, in his opinion, jailing appellant without medical attention would operate neither to rehabilitate him nor to lessen his desire for alcohol.

On cross-examination, Dr. Wade admitted that, when appellant was sober, he knew the difference between right and wrong, and he responded affirmatively to the question whether appellant's act of taking the first drink in any given instance when he was sober was a "voluntary exercise of his will." Qualifying his answer, Dr. Wade stated that

these individuals have a compulsion, and this compulsion, while not completely overpowering, is a very strong influence, an exceedingly strong influence, and this compulsion, coupled with the firm belief in their mind that they are going to be able to handle it from now on, causes their judgment to be somewhat clouded. [p519]

Appellant testified concerning the history of his drinking problem. He reviewed his many arrests for drunkenness; testified that he was unable to stop drinking; stated that, when he was intoxicated, he had no control over his actions and could not remember them later, but that he did not become violent, and admitted that he did not remember his arrest on the occasion for which he was being tried. On cross-examination, appellant admitted that he had had one drink on the morning of the trial, and had been able to discontinue drinking. In relevant part, the cross-examination went as follows:

Q. You took that one at eight o'clock because you wanted to drink?

A. Yes, sir.

Q. And you knew that, if you drank it, you could keep on drinking and get drunk?

A. Well, I was supposed to be here on trial, and I didn't take but that one drink.

Q. You knew you had to be here this afternoon, but, this morning, you took one drink and then you knew that you couldn't afford to drink any more and come to court; is that right?

A. Yes, sir, that's right.

Q. So you exercised your willpower and kept from drinking anything today except that one drink?

A. Yes, sir, that's right.

Q. Because you knew what you would do if you kept drinking, that you would finally pass out or be picked up?

A. Yes, sir.

Q. And you didn't want that to happen to you today?

A. No, sir.

Q. Not today?

A. No, sir. [p520]

Q. So you only had one drink today?

A. Yes, sir.

On redirect examination, appellant's lawyer elicited the following:

Q. Leroy, isn't the real reason why you just had one drink today because you just had enough money to buy one drink?

A. Well, that was just give to me.

Q. In other words, you didn't have any money with which you could buy any drinks yourself?

A. No, sir, that was give to me.

Q. And that's really what controlled the amount you drank this morning, isn't it?

A. Yes, sir.

Q. Leroy, when you start drinking, do you have any control over how many drinks you can take?

A. No, sir.

Evidence in the case then closed. The State made no effort to obtain expert psychiatric testimony of its own, or even to explore with appellant's witness the question of appellant's power to control the frequency, timing, and location of his drinking bouts, or the substantial disagreement within the medical profession concerning the nature of the disease, the efficacy of treatment and the prerequisites for effective treatment. It did nothing to examine or illuminate what Dr. Wade might have meant by his reference to a "compulsion" which was "not completely overpowering," but which was "an exceedingly strong influence," or to inquire into the question of the proper role of such a "compulsion" in constitutional adjudication. Instead, the State contented itself with a brief argument that appellant had no defense to the charge because he "is legally sane and knows the difference between right and wrong." [p521]

Following this abbreviated exposition of the problem before it, the trial court indicated its intention to disallow appellant's claimed defense of "chronic alcoholism." Thereupon, defense counsel submitted, and the trial court entered, the following "findings of fact":

(1) That chronic alcoholism is a disease which destroys the afflicted person's willpower to resist the constant, excessive consumption of alcohol.

(2) That a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism.

(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted with the disease of chronic alcoholism.

Whatever else may be said of them, those are not "findings of fact" in any recognizable, traditional sense in which that term has been used in a court of law; they are the premises of a syllogism transparently designed to bring this case within the scope of this Court's opinion in Robinson v. California, 370 U.S. 660 (1962). Nonetheless, the dissent would have us adopt these "findings" without critical examination; it would use them as the basis for a constitutional holding that

a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease.

Post at 569.

The difficulty with that position, as we shall show, is that it goes much too far on the basis of too little knowledge. In the first place, the record in this case is utterly inadequate to permit the sort of informed and responsible adjudication which alone can support the announcement of an important and wide-ranging new constitutional principle. We know very little about the circumstances surrounding the drinking bout which resulted [p522] in this conviction, or about Leroy Powell's drinking problem, or indeed about alcoholism itself. The trial hardly reflects the sharp legal and evidentiary clash between fully prepared adversary litigants which is traditionally expected in major constitutional cases. The State put on only one witness, the arresting officer. The defense put on three -- a policeman who testified to appellant's long history of arrests for public drunkenness, the psychiatrist, and appellant himself.

Furthermore, the inescapable fact is that there is no agreement among members of the medical profession about what it means to say that "alcoholism" is a "disease." One of the principal works in this field states that the major difficulty in articulating a "disease concept of alcoholism" is that "alcoholism has too many definitions, and disease has practically none." [n2] This same author concludes that "a disease is what the medical profession recognizes as such." [n3] In other words, there is widespread agreement today that "alcoholism" is a "disease," for the simple reason that the medical profession has concluded that it should attempt to treat those who have drinking problems. There, the agreement stops. Debate rages within the medical profession as to whether "alcoholism" is a separate "disease" in any meaningful biochemical, physiological or psychological sense, or whether it represents one peculiar manifestation in some individuals of underlying psychiatric disorders. [n4]

Nor is there any substantial consensus as to the "manifestations of alcoholism." E. M. Jellinek, one of the outstanding authorities on the subject, identifies five [p523] different types of alcoholics which predominate in the United States, and these types display a broad range of different and occasionally inconsistent symptoms. [n5] Moreover, wholly distinct types, relatively rare in this country, predominate in nations with different cultural attitudes regarding the consumption of alcohol. [n6] Even if we limit our consideration to the range of alcoholic symptoms more typically found in this country, there is substantial disagreement as to the manifestations of the "disease" called "alcoholism." Jellinek, for example, considers that only two of his five alcoholic types can truly be said to be suffering from "alcoholism" as a "disease," because only these two types attain what he believes to be the requisite degree of physiological dependence on alcohol. [n7] He applies the label "gamma alcoholism" to

that species of alcoholism in which (1) acquired increased tissue tolerance to alcohol, (2) adaptive cell metabolism . . . (3) withdrawal symptoms and "craving," i.e., physical dependence, and (4) loss of control are involved. [n8]

A "delta" alcoholic, on the other hand,

shows the first three characteristics of gamma alcoholism as well as a less marked form of the fourth characteristic -- that is, instead of loss of control, [p524] there is inability to abstain. [n9]

Other authorities approach the problems of classification in an entirely different manner, and, taking account of the large role which psycho-social factors seem to play in "problem drinking," define the "disease" in terms of the earliest identifiable manifestations of any sort of abnormality in drinking patterns. [n10]

Dr. Wade appears to have testified about appellant's "chronic alcoholism" in terms similar to Jellinek's "gamma" and "delta" types, for these types are largely defined, in their later stages, in terms of a strong compulsion to drink, physiological dependence, and an inability to abstain from drinking. No attempt was made in the court below, of course, to determine whether Leroy Powell could, in fact, properly be diagnosed as a "gamma" or "delta" alcoholic in Jellinek's terms. The focus at the trial, and in the dissent here, has been exclusively upon the factors of loss of control and inability to abstain. Assuming that it makes sense to compartmentalize in this manner the diagnosis of such a formless "disease," tremendous gaps in our knowledge remain, which the record in this case does nothing to fill.

The trial court's "finding" that Powell "is afflicted with the disease of chronic alcoholism," which "destroys the afflicted person's willpower to resist the constant, excessive consumption of alcohol" covers a multitude of sins. Dr. Wade's testimony that appellant suffered from a compulsion which was an "exceedingly strong influence," but which was "not completely overpowering," is at least more carefully stated, if no less mystifying. Jellinek insists that conceptual clarity can only be achieved by distinguishing carefully between "loss of control" once an individual has commenced to drink and "inability to abstain" [p525] from drinking in the first place. [n11] Presumably, a person would have to display both characteristics in order to make out a constitutional defense, should on be recognized. Yet the "findings" of the trial court utterly fail to make this crucial distinction, and there is serious question whether the record can be read to support a finding of either loss of control or inability to abstain.

Dr. Wade did testify that, once appellant began drinking, he appeared to have no control over the amount of alcohol he finally ingested. Appellant's own testimony concerning his drinking on the day of the trial would certainly appear, however, to cast doubt upon the conclusion that he was without control over his consumption of alcohol when he had sufficiently important reasons to exercise such control. However that may be, there are more serious factual and conceptual difficulties with reading this record to show that appellant was unable to abstain from drinking. Dr. Wade testified that, when appellant was sober, the act of taking the first drink was a "voluntary exercise of his will," but that this exercise of will was undertaken under the "exceedingly strong influence" of a "compulsion" which was "not completely overpowering." Such concepts, when juxtaposed in this fashion, have little meaning.

Moreover, Jellinek asserts that it cannot accurately be said that a person is truly unable to abstain from drinking unless he is suffering the physical symptoms of withdrawal. [n12] There is no testimony in this record that Leroy Powell underwent withdrawal symptoms, either before he began the drinking spree which resulted in the conviction under review here or at any other time. In attempting to deal with the alcoholic's desire for drink in the absence of withdrawal symptoms, Jellinek is reduced [p526] to unintelligible distinctions between a "compulsion" (a "psychopathological phenomenon" which can apparently serve in some instances as the functional equivalent of a "craving" or symptom of withdrawal) and an "impulse" (something which differs from a loss of control, a craving or a compulsion, and to which Jellinek attributes the start of a new drinking bout for a "gamma" alcoholic). [n13] Other scholars are equally unhelpful in articulating the nature of a "compulsion." [n14] It is one thing to say that, if a man is deprived of alcohol, his hands will begin to shake, he will suffer agonizing pains, and ultimately he will have hallucinations; it is quite another to say that a man has a "compulsion" to take a drink, but that he also retains a certain amount of "free will" with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art, but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions. [n15]


Despite the comparatively primitive state of our knowledge on the subject, it cannot be denied that the destructive use of alcoholic beverages is one of our principal [p527] social and public health problems. [n16] The lowest current informed estimate places the number of "alcoholics" in America (definitional problems aside) at 4,000,000, [n17] and most authorities are inclined to put the figure considerably higher. [n18] The problem is compounded by the fact that a very large percentage of the alcoholics in this country are "invisible" -- they possess the means to keep their drinking problems secret, and the traditionally uncharitable attitude of our society toward alcoholics causes many of them to refrain from seeking treatment from any source. [n19] Nor can it be gainsaid that the legislative response to this enormous problem has in general been inadequate.

There is as yet no known generally effective method for treating the vast number of alcoholics in our society. Some individual alcoholics have responded to particular forms of therapy with remissions of their symptomatic dependence upon the drug. But just as there is no agreement among doctors and social workers with respect to the causes of alcoholism, there is no consensus as to why particular treatments have been effective in particular cases, and there is no generally agreed-upon approach to the problem of treatment on a large scale. [n20] Most psychiatrists are apparently of the opinion that alcoholism is far more difficult to treat than other forms of behavioral disorders, and some believe it is impossible [p528] to cure by means of psychotherapy; indeed, the medical profession as a whole, and psychiatrists in particular, have been severely criticised for the prevailing reluctance to undertake the treatment of drinking problems. [n21] Thus, it is entirely possible that, even were the manpower and facilities available for a full-scale attack upon chronic alcoholism, we would find ourselves unable to help the vast bulk of our "visible" -- let alone our "invisible" -- alcoholic population.

However, facilities for the attempted treatment of indigent alcoholics are woefully lacking throughout the country. [n22] It would be tragic to return large numbers of helpless, sometimes dangerous and frequently unsanitary inebriates to the streets of our cities without even the opportunity to sober up adequately which a brief jail term provides. Presumably no State or city will tolerate [p529] such a state of affairs. Yet the medical profession cannot, and does not, tell us with any assurance that, even if the buildings, equipment and trained personnel were made available, it could provide anything more than slightly higher-class jails for our indigent habitual inebriates. Thus, we run the grave risk that nothing will be accomplished beyond the hanging of a new sign -- reading "hospital" -- over one wing of the jailhouse. [n23]

One virtue of the criminal process is, at least, that the duration of penal incarceration typically has some outside statutory limit; this is universally true in the case of petty offenses, such as public drunkenness, where jail terms are quite short on the whole. "Therapeutic civil commitment" lacks this feature; one is typically committed until one is "cured." Thus, to do otherwise than affirm might subject indigent alcoholics to the risk that they may be locked up for an indefinite period of time under the same conditions as before, with no more hope than before of receiving effective treatment and no prospect of periodic "freedom." [n24] [p530]

Faced with this unpleasant reality, we are unable to assert that the use of the criminal process as a means of dealing with the public aspects of problem drinking can never be defended as rational. The picture of the penniless drunk propelled aimlessly and endlessly through the law's "revolving door" of arrest, incarceration, release and re-arrest is not a pretty one. But before we condemn the present practice across the board, perhaps we ought to be able to point to some clear promise of a better world for these unfortunate people. Unfortunately, no such promise has yet been forthcoming. If, in addition to the absence of a coherent approach to the problem of treatment, we consider the almost complete absence of facilities and manpower for the implementation of a rehabilitation program, it is difficult to say in the present context that the criminal process is utterly lacking in social value. This Court has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects, and it can hardly be said with assurance that incarceration serves such purposes any better for the general run of criminals than it does for public drunks.

Ignorance likewise impedes our assessment of the deterrent effect of criminal sanctions for public drunkenness. The fact that a high percentage of American alcoholics conceal their drinking problems not merely by avoiding public displays of intoxication, but also by shunning all forms of treatment, is indicative that some powerful deterrent operates to inhibit the public revelation [p531] of the existence of alcoholism. Quite probably, this deterrent effect can be largely attributed to the harsh moral attitude which our society has traditionally taken toward intoxication and the shame which we have associated with alcoholism. Criminal conviction represents the degrading public revelation of what Anglo-American society has long condemned as a moral defect, and the existence of criminal sanctions may serve to reinforce this cultural taboo, just as we presume it serves to reinforce other stronger feelings against murder, rape, theft, and other forms of antisocial conduct.

Obviously, chronic alcoholics have not been deterred from drinking to excess by the existence of criminal sanctions against public drunkenness. But all those who violate penal laws of any kind are, by definition, undeterred. The longstanding and still-raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear conclusions to permit it to be said that such sanctions are ineffective in any particular context or for any particular group of people who are able to appreciate the consequences of their acts. Certainly no effort was made at the trial of this case, beyond a monosyllabic answer to a perfunctory one-line question, to determine the effectiveness of penal sanctions in deterring Leroy Powell in particular or chronic alcoholics in general from drinking at all or from getting drunk in particular places or at particular times.


Appellant claims that his conviction on the facts of this case would violate the Cruel and Unusual Punishment Clause of the Eighth Amendment as applied to the States through the Fourteenth Amendment. The primary purpose of that clause has always been considered, and properly so, to be directed at the method or kind of [p532] punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed. See, e.g., Trop v. Dulles, 356 U.S. 86 (1958); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Weems v. United States, 217 U.S. 349 (1910). [n25]

Appellant, however, seeks to come within the application of the Cruel and Unusual Punishment Clause announced in Robinson v. California, 370 U.S. 660 (1962), which involved a state statute making it a crime to "be addicted to the use of narcotics." This Court held there that

a state law which imprisons a person thus afflicted [with narcotic addiction] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment. . . .

Id. at 667.

On its face, the present case does not fall within that holding, since appellant was convicted not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being "mentally ill, or a leper. . . ." Id. at 666. [p533]

Robinson, so viewed, brings this Court but a very small way into the substantive criminal law. And unless Robinson is so viewed, it is difficult to see any limiting principle that would serve to prevent this Court from becoming, under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility in diverse areas of the criminal law throughout the country.

It is suggested in dissent that Robinson stands for the "simple" but "subtle" principle that "[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change." Post at 567. In that view, appellant's "condition" of public intoxication was "occasioned by a compulsion symptomatic of the disease" of chronic alcoholism, and thus, apparently, his behavior lacked the critical element of mens rea. Whatever may be the merits of such a doctrine of criminal responsibility, it surely cannot be said to follow from Robinson. The entire thrust of Robinson's interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps, in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, "involuntary" or "occasioned by a compulsion."

Likewise, as the dissent acknowledges, there is a substantial definitional distinction between a "status," as in Robinson, and a "condition," which is said to be involved in this case. Whatever may be the merits of an attempt to distinguish between behavior and a condition, it is perfectly clear that the crucial element in this case, so far as the dissent is concerned, is whether or not appellant can legally be held responsible for his [p534] appearance in public in a state of intoxication. The only relevance of Robinson to this issue is that, because the Court interpreted the statute there involved as making a "status" criminal, it was able to suggest that the statute would cover even a situation in which addiction had been acquired involuntarily. 370 U.S. at 667, n. 9. That this factor was not determinative in the case is shown by the fact that there was no indication of how Robinson himself had become an addict.

Ultimately, then, the most troubling aspects of this case, were Robinson to be extended to meet it, would be the scope and content of what could only be a constitutional doctrine of criminal responsibility. In dissent, it is urged that the decision could be limited to conduct which is "a characteristic and involuntary part of the pattern of the disease as it afflicts" the particular individual, and that "[i]t is not foreseeable" that it would be applied "in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery." Post at 559, n. 2. That is limitation by fiat. In the first place, nothing in the logic of the dissent would limit its application to chronic alcoholics. If Leroy Powell cannot be convicted of public intoxication, it is difficult to see how a State can convict an individual for murder if that individual, while exhibiting normal behavior in all other respects, suffers from a "compulsion" to kill which is an "exceedingly strong influence," but "not completely overpowering." [n26] Even if we limit our consideration to chronic alcoholics, it would seem impossible to confine the principle within the arbitrary bounds which the dissent seems to envision.

It is not difficult to imagine a case involving psychiatric testimony to the effect that an individual suffers [p535] from some aggressive neurosis which he is able to control when sober; that very little alcohol suffices to remove the inhibitions which normally contain these aggressions, with the result that the individual engages in assaultive behavior without becoming actually intoxicated, and that the individual suffers from a very strong desire to drink, which is an "exceedingly strong influence," but "not completely overpowering." Without being untrue to the rationale of this case, should the principles advanced in dissent be accepted here, the Court could not avoid holding such an individual constitutionally unaccountable for his assaultive behavior.

Traditional common law concepts of personal accountability and essential considerations of federalism lead us to disagree with appellant. We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts, and thus cannot be deterred at all from public intoxication. And, in any event, this Court has never articulated a general constitutional doctrine of mens rea. [n27]

We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral [p536] accountability of an individual for his antisocial deeds. [n28] The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.

Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms. Yet that task would seem to follow inexorably from an extension of Robinson to this case. If a person in the "condition" of being a chronic alcoholic cannot be criminally punished as a constitutional matter for being drunk in public, it would seem to follow that a person who contends that, in terms of one test, "his unlawful act was the product of mental disease or mental defect," Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875 (1954), would state an issue of constitutional dimension with regard to his criminal responsibility had he been tried under some different, and perhaps lesser, standard, e.g., the right-wrong test of M'Naghten's Case. [n29] The experimentation of one jurisdiction in that field alone indicates the magnitude of the problem. See, e.g., Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608 (1957); Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959); Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853 (1961) (en banc); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Washington v. United States, ___ U.S.App.D.C. ___, 390 F.2d 444 (1967). But formulating a constitutional rule would reduce, if not eliminate, that fruitful [p537] experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers.


1. Tex.Code Crim.Proc., Art. 4.03 (1966).

2. E. Jellinek, The Disease Concept of Alcoholism 11 (1960).

3. Id. at 12 (emphasis in original).

4. See, e.g., Joint Information Serv. of the Am. Psychiatric Assn. & the Nat. Assn. for Mental Health, The Treatment of Alcoholism -- A Study of Programs and Problems 6 (1967) (hereafter cited as Treatment of Alcoholism).

5. Jellinek, supra, n. 2, at 35-41.

6. For example, in nations where large quantities of wine are customarily consumed with meals, apparently there are many people who are completely unaware that they have a "drinking problem" -- they rarely if ever show signs of intoxication, they display no marked symptoms of behavioral disorder, and are entirely capable of limiting their alcoholic intake to a reasonable amount -- and yet who display severe withdrawal symptoms, sometimes including delirium tremens, when deprived of their daily portion of wine. M. Block, Alcoholism -- Its Facets and Phases 27 (1965); Jellinek, supra, >GO>n. 2, at 17. See generally id. at 13-32.

7. Jellinek, supra, n. 2, at 40.

8. Jellinek, supra, n. 2, at 37.

9. Id. at 38.

10. See Block, supra, n. 6, at 199.

11. Jellinek, supra, n. 2, at 41-42.

12. Id. at 43.

13. Id. at 41-44.

Dr. Wade did not clarify matters when he testified at trial that a chronic alcoholic suffers from "the same type of compulsion" as a "compulsive eater."

14. See, e.g., Block, supra, n. 6, at 40, 55, 308; Treatment of Alcoholism 6-8; Note, Alcoholism, Public Intoxication and the Law, 2 Col.J.Law & Soc.Prob. 109, 112-114 (1966).

15. See Washington v. United States, ___ U.S.App.D.C. ___, 390 F.2d 444, 446-456 (1967).

16. See generally Block, supra, n. 6, at 19-30, 43-49.

17. See Treatment of Alcoholism 11.

18. Block, supra, n. 6, at 43-44; Blum & Braunstein, Mind-altering Drugs and Dangerous Behavior: Alcohol, in President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 29, 30 (1967); Note, 2 Col.J.Law & Soc.Prob. 109 (1966).

19. See Block, supra, n. 6, at 74-81; Note, 2 Col.J.Law & Soc.Prob. 109 (1966).

20. See Treatment of Alcoholism 13-17.

21. Id. at 18-26

22. Encouraging pilot projects do exist. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 50-64, 82-108 (1967). But the President's Commission concluded that the "strongest barrier" to the abandonment of the current use of the criminal process to deal with public intoxication "is that there presently are no clear alternatives for taking into custody and treating those who are now arrested as drunks." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 235 (1967). Moreover, even if massive expenditures for physical plants were forthcoming, there is a woeful shortage of trained personnel to man them. One study has concluded that:

[T]here is little likelihood that the number of workers in these fields could be sufficiently increased to treat even a large minority of problem drinkers. In California, for instance, according to the best estimate available, providing all problem drinkers with weekly contact with a psychiatrist and once-a-month contact with a social worker would require the full time work of every psychiatrist and every trained social worker in the United States.

Cooperative Commission on Study of Alcoholism, Alcohol Problems 120 (1967) (emphasis in original).

23. For the inadequate response in the District of Columbia following Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966), which held, on constitutional and statutory grounds, that a chronic alcoholic could not be punished for public drunkenness, see President's Commission on Crime in the District of Columbia, Report 486-490 (1966).

24. Counsel for amici curiae ACLU et al., who has been extremely active in the recent spate of litigation dealing with public intoxication statutes and the chronic inebriate, recently told an annual meeting of the National Council on Alcoholism:

We have not fought for two years to extract DeWitt Easter, Joe Driver, and their colleagues from jail only to have them involuntarily committed for an even longer period of time, with no assurance of appropriate rehabilitative help and treatment. . . . The euphemistic name "civil commitment" can easily hide nothing more than permanent incarceration. . . . I would caution those who might rush headlong to adopt civil commitment procedures and remind them that just as difficult legal problems exist there as with the ordinary jail sentence.

Quoted in Robitscher, Psychiatry and Changing Concepts of Criminal Responsibility, 31 Fed.Prob. 44, 49 (No. 3, Sept.1967). Cf. Note, The Nascent Right to Treatment, 53 Va.L.Rev. 1134 (1967).

25. See generally Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635 (1966).

26. Cf. Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), cert. denied, 391 U.S. 920 (1968).

27. The Court did hold in Lambert v. California, 355 U.S. 225 (1957), that a person could not be punished for a "crime" of omission if that person did not know, and the State had taken no reasonable steps to inform him, of his duty to act and of the criminal penalty for failure to do so. It is not suggested either that Lambert established a constitutional doctrine of mens rea, see generally Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, or that appellant in this case was not fully aware of the prohibited nature of his conduct and of the consequences of taking his first drink.

28. See generally Sayre, Mens Rea, 45 Harv.L.Rev. 974 (1932).

29. 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843).