*1
En Banc.
December
1967.]
38978.
[No.
Wayne
City
Hill,
J.
Seattle,
Respondent,
v.
Appellant.*
*Reported in
Luvern V. appellant. Barer, Rosen, Arnold J. and Michael H. Roger respondent. Nowell, A. L. Newbould and J. Covington Hutt, Bur- Merrill, Peter Barton Richard A. & *2 ling, Carney, Holman, Elliott, Lee, A. Thomas & James Smart, amici curiae. J. Is chronic Is addictive alcoholism disease?
Hale, liability a disease that relieves criminal one under the prohibiting disorderly laws in drunkenness conduct public? city public Are ordinances forbid which drunken- disorderly by ness, and drunkenness, conduct induced un- applied constitutional when to chronic addictive alcoholics? began This case one of the with million arrests for two public annually country. intoxication made See President’s Commission on Enforcement and Adminis- Law Challenge (1967), tration of Justice, The Crime at 233. Arrested and convicted unlawful Municipal days Seattle Court and sentenced to 180 jail, appealed the defendant to and was tried de novo superior sitting jury. Urging court without a that he helpless violating was to avoid the ordinance because of his appeals superior alcohol, he addiction to now his con- court viction. May midnight,
It was close to 4, 1966, a citizen, when accosting Wegner Patrolman Robert F. as he walked his Hurrying beat, told him that a man was down. to the 500 Virginia Street, block men two saw the defendant lying sprawled body on his side with the half lower of his across sidewalk and his head and shoulders on a porch adjacent Wegner wooden it. to Officer tried to arouse describing testimony defendant, event his follows: spoke A. He I couldn’t aroused. to him first and told get
him to had to shake times he unusual odor about him? on his feet he couldn’t be roused so we shaking him and after him three or four finally opened eyes. you Q. any Did smell very strong A. There awas liquor Q. odor on him. heWas able to stand and walk up. normally? He tried and stand and I assisted A. I asked the man to my partner up. him and couldn’t stand So your opinion up. Q. Mr. Hill then under him In was held Q. And he was Yes, A. he alcohol? was. the influence of he could not an extent that under the to such influence you right. Q. Did have unassisted? A. That’s walk conversation anything? you Mr. Did ask him Hill? drinking. He said wine A. I him had been asked what he you anything? Q. I him A. asked and beer. Did he ask eight figured blocks said he seven or where he lived. He you away. Q. said, He him home? A. Did he to take ask you say yes, Q. A. I did to that? me home.” What “Take by 'himself, it home if he couldn’t make said have walk, he couldn’t that would couldn’t do because to you put jail. Q. Yes, did? A. we him in And so then rang for the corner, call on the took him to took him to the box wagon, jail. wagon and the crew first seen Hill, Mr. was semiconscious when defendant being policeman Aside from and his citizen assistant. *3 lying public drunk, sidewalk at and across a semicomatose disorderly; hour, a was not late and unusual the defendant belligerent profane; noisy, boisterous, nor neither he was promoting or commotion. he was not assaultive a § Charged 16046, 1, ordinance No. Seattle under Seattle City 12.11.020, reads: Code which any guilty person It to be shall be unlawful disorderly fighting, or of conduct, or drunkenness or of riotous any tending public peace, or the conduct to disturb language, engage any profane or or to abusive use city whereby any peace quiet practice or of the act or the any language disturbed, obscene or be or to use practice guilty duct act, indecent or immoral or con-
tending public the morals. to debauch ground appeals his on conviction he the defendant suffering alcoholic; is that he thus a chronic addictive says, “powerless he 'him which, renders a disease violating ordinance”; that he convicted not of avoid was suffering being rather of from a condition or an offense but status; conviction of drunkenness of a Const, that his violates forbidding punishments, § 14, cruel and 1,
art. eighth Constitution, the United States amendment to made through applicable amendment; the fourteenth to the states Const, § 3, and the fifth amendment to that, and under art. ordinance under Constitution, the United States is an unreasonable defendant convicted and sentenced was police power deprived defendant of exercise liberty challenged process ordi- his due of law. The without has been the books since and under it hun- nance been of arrests made convic- dreds of thousands have tions entered. asserting predicament, hopelessness
In his and the inevitability consequences, of its defendant that he showed had been 98 times; convicted drunkenness that his total years although only sentences ran to he had served 17% being jail repeatedly fraction of this, let out of on sus- pended He sentences. refers to himself as a “chronic drunk” drinking problems and dates his serious from 1946 when age wife divorced him. At in addition to his 98 convictions for he has drunkenness, been con- twice escaping jail trusty. victed of while The accumulated unserved time from these convictions amounts to about 5 years, appears proceedings pending but there to be no any part threatened to him make serve of this. fairly typi-
There little doubt that defendant shows history cal case of an alcoholic. But he too he shows possesses substantial volitional control over his actions public. he whether will be found drunk in He testified that in 1963he entered Firland Sanatorium for the treatment during stay tuberculosis and an 18 months’ there no drank Despite intoxicants. 20 arrests after leaving expressed opinion the sanatorium, on cross- *4 go years that, examination if he drink, could a without he give could be cured—but would no estimate as to mini- mal time needed. eminently qualified specialist
Dr. Pattison, Edward M. psychiatry empha- and the treatment of alcoholism, while inability sizing stop drinking of an alcoholic to once he persons typically started, had said that re- so afflicted periods voluntarily mained sober for of 6 to 8 months but why eventually drinking. the defend- to their return Asked drank, said: ant the doctor and com- finds solace chronic addictive alcoholic One, the degree escape drinking. certain of There a fort feelings guilt feelings feelings and and of shame of drinking he he finds in does not which which
loneliness find from you might say that normal social relations average person find. would figured largely guilt said, element too,
He that the guilt inducement, that alcoholics, chronic addictive common hallmark all a only feelings guilt shame can and severe by taking alcohol so that one does not more overcome feelings. experience these drinking, feeling guilty cycle, and a creates This drinking, again drinking, returning to shameful about those feelings guilt up shame, and so sets excessive cycle. perpetual a Lindberg, specialist medicine, in internal H. Dr. John gave physical examination Mr. Hill testified that readily diag- physical alcoholism, but found no evidence of from his medical a chronic addictive alcoholic nosed him as considering frequent history. Hill, Mr. said that He very long time, little deteri- over so showed surprising expected lack of an brain cells—a oration of the Lindberg consequence. alcoholism, unre- Dr. testified produces liver, i.e., untreated, cirrhosis of lieved and replacement scar cells and their destruction liver inevitably tissue, causes death. uninterrupted death, If drunkenness is a direct cause periods undeniably frequent of confinement a clean then during years city nourishing jail chronic food therapeutic alcoholism, beneficial effect. were of addictive history contributes to the idea that medical Defendant’s designed protect against public drunkenness are not laws Although only society too. offender we would not but the jail confinement a suitable substitute for recommend therapy psychiatric in the social treatment of medical, in the that, absence other alcoholism, we observe
791 person con- derives alternatives, the afflicted available protection Mr. Hill. from it. did So siderable benefit Undoubtedly therapy have intervened must a beneficial good physical keep that, in condition the defendant so years alcoholism, his doctor of chronic addictive after physical symptoms could no sickness had to find diagnosis exclusively history rely to confirm on a case thus of chronic alcoholism. It seems reasonable to addictive frequent periods of conclude that Mr. Hill’s confinement in jail, following large drunkenness, his bouts of were to a continuing physical degree responsible for his health. “whereby Lindberg potentials Dr. Hill said that Mr. had drinking has be able to refrain from there been but up no said, demonstration of this He until this time.” how- any ever, that, whatever, even without outside assistance per there was a 5 cent chance of successful self-treatment developing and that the will to was an self-rehabilitation important aspect phy- in As a treatment alcoholism. specializing sician in medicine, internal with extensive practice treating emphasized in alcoholism, he will very important achieving to recover was in success. Finally, testimony Judge Smith, from the Z. Charles Municipal then of supe- the Seattle of the Court and now very high percentage persons court, rior we note that a King County afflicted chronic addictive alcoholism public. Judge are never Smith, arrested applying what is known the Jellinek formula for ascer- taining degree particular person, of alcoholism in a King County, statistical data for that, Seattle and estimated approximately King County, 37,000 alcoholics 27,000 during that, in Seattle; them live 3,600 about indi- 11,534 viduals accounted for convictions of drunken- Municipal Judge expressed ness in the Court. Seattle Smith opinion manage 23,400 that some alcoholics in Seattle escape appearances posting forfeiting court bail, or they drinking subject police. where are not to view the per cross-examination, On he estimated that 90 cent man- escape aged appearances charges court on in- actually per persons cent He felt that toxication. charges Municipal of drunkenness appearing Court among city’s and came from slums were residents city. group of the income the lowest by police although Testifying that, initial contact *6 confinement, to arrest and alcoholics leads with Seattle Judge personnel facilities and said there medical Smith city jail. an orientation court maintains attached to the physicians representa- and where and rehabilitation school give Anonymous hold lectures and tives from Alcoholics dangers pointing of alcohol to alcoholics out the discussions at them. make Attendance and an effort rehabilitate averages persons week, about 70 a with these sessions during period greatest persons present of attendance. developed for the institutions He described number attempted in- rehabilitation alcoholics. These institutions private purely nature a course clude those of a where nearly patient may and $1,000, a number treatment cost the charging no nominal or at all. institutions fees charitable Fellowship Among Pioneer latter are the House Men, Home and the Yesler the Louie Martin Rehabilitation organizations charging only per Center. These about $20 beyond nevertheless, the financial reach of thou- are, week organizations some financial sands alcoholics. Such draw can, support Department of Health, from the State but Judge only one handle 159 alcoholics at time. about opera- that rehabilitative institutions Smith recommended public expense city jail, at for the and ted be substituted include called “detoxification centers.” facilities thing.
Alcoholism is a classi- terrible However it legally, psycholog- sickness, fied whether as condition dependency, entity, ical or a disease victims should be its compassion. Nearly every person treated knows with adult through ravages of who, of some alcoholic afflic- family, job, tion, career, his his his has lost and ruined and disability physical who has suffered a marked and even Among consequences from alcoholism. its too are the death suffering, deprivation pain the humiliation and inflicted upon family; fact that his overlooked and not to be commit serious crimes. alcoholics have been known to agree counsel and witnesses defendant, We with run under that the centers” establishment of “detoxification giving psy- along supervision, medical, medical with clinics practical provide therapies, humane chiatric and social chronic for the alcoholism alternatives treatment problem place city jail, not solve the but that does problem of such us. the absence before Our whether against public city facilities makes the laws alcoholics. unconstitutional as to chronic addictive recognize jail Courts sen- the existence alternatives dealing tences in alcoholism. the alternatives Whether practical practical, are more more or less less effective so rehabilitating alcoholics, however, chronic addictive does present not, think, we determinative criteria whether the Seattle ordinance under which the defendant was arrested convicted is unconstitutional. *7 brought
Defendant, as one of an endless line alcoholics city jail before the court and thence to there possibly to one of facilities, the rehabilitative not es- does tablish his that treatment at the hands of the law falls eighth the within amendment to the United States Consti- punishment. acknowledged tution as cruel and He inhuman drinking pastime that “is of a a habit”; kind that he did compelled not feel drink; that for 18 in months while the drop liquor sanatorium he a tuberculosis had not had appear and that he knew it was unlawful drunk in public. perhaps evidence His that he was but one of showed King County, per 37,000 alcoholics in 90 cent whom manage appearances to avoid court or even arrests. being punished largely
If he all, at it seems to be self-punishment. says Defendant, however, that the law punished him conduct that he could not control or being avoiding incapable violating avoid; or that the says, legal equivalent laws, affliction, his he is the of insan- forbidding ity so that laws drunkenness cannot con- stitutionally prohibit conduct which he cannot avoid.
794 incompatible proof, however, as- with his
Defendant’s
per
helplessness.
prima
that 90
He established
facie
serted
chronically
man-
addictive alcoholics
Seattle
cent
the
age
public eye
and thus avoid
avoid
when drunk
per
so,
of a class can do
the courts
conviction. If 90
cent
culpability
remaining
categorically
exonerate
cannot
per
his
10
class. His evidence contradicts
cent of the same
requiring
reus,
volition,
rea,
and mens
that actus
contention
lacking
requiring
R.
intent,
an
his case. See
evil
(1957).
Perkins, Criminal Law 652-55
arguendo,
Assuming,
defendant
not
drinking
point
possessed
avoid
have
the will to
involuntary as to com
intoxication, his
not so
conduct was
public.
pel
Moreover,
his drunken
him to become drunk
prohibitum, requiring no mens
an
malum
ness was
offense
design
possessed
capa
rea
evil
for conviction. If
or
compo
avoiding public
bility
drunkenness, the other basic
conduct,
volitional
was thus
nent,
reus,
actus
Lindberg,
present.
nia, 370 U. Ed. S. again urges being that, a chronic addictive alco defendant having being being punished of a he is disease holic, *8 committing think of for an offense. We instead status clear. In contention short and the answer by statute, narcotics California, had made case, the State being pun addict, an alone, that the status addiction striking public In offense. down a conviction as a ishable only constituting proof of as cruel and addiction based on Eighth punishment Amendment—made under the unusual applicable Amendment—the the Fourteenth the state Supreme sharply between delineated the distinction Court expected being simply actions a narcotic addict and the although may punish Holding a an a state not that, addict. is consid mere offense of what status or make a criminal long medically disease, affirmed the ered the court may punish standing principle forbid and that a state ordinarily pos such as the conduct related to an addiction being purchase, session, sale, or condition under the Whipple influence of Minnesota ex rel. v. Martin narcotics. (1921). Sup. son, 256 U. 65 L. Ed. Ct. It is S. or actions, disease, or not the status that be conduct punishable. comes
In instant Mr. case, conduct, it was Hill’s public actions in drunk, while which caused his arrest and being confinement, not his or status condition of an alcoh Wegner sprawled olic. Thus, when Patrolman observed Hill stupor night, across the sidewalk a drunken late at re gardless any compassion may he have felt for the de fendant an as identifiable alcoholic and skid derelict, row properly doing arrested Hill for what he was and not for what he was.
The officer made the arrest under Seattle ordinance No. § purport 16046, 1, which does not to make an offense of being preserve public an peace alcoholic, but rather to by prohibiting public Although welfare drunkenness. lying stupor may in on a sidewalk be an well indication alcoholism, it is evidence of drunkenness in place, profane bellig- much the same loud, boisterous, prohibited may erent conduct, likewise ordinance, public. also indicate drunkenness in Behavior is what regulates counts; only. the ordinance behavior We see no reason under the constitutions of the state and the United why States adopt the communities of this state not legislation protect and enforce themselves from the nui- dangers sance, offensive misconduct, and serious at times associated drunkenness.
796 claim from different at defendant’s
Looking angle now a and, involuntary that his conduct was and unintentional think it to be well- therefore, culpable, not criminally we established law . . . regarded involuntary
Drunkenness is not to be as it and result an merely because is the inordinate and drink, overcoming irresistable the will appetite Marshall, Clark Crimes 6.10 § to disease. and amounting M. (6th ed., 1958). Wingersky
Drunkenness falls that category within public health, wel offenses defined to preserve public peace, affront, and the citizenry fare and morals protect nuisance Like other dis danger. and forms many public therefore, not order, and, is not an element need intent offense have been proved. constituting Once acts has been beyond doubt, a reasonable the offense proved and a enter. established judgment guilty thereupon all prohibitum.1 This rule is true crimes malum nearly intox public to offenses” such Referring “public welfare States, v. in Morissette United ication, Court Supreme 240 246, 256, (1952), 342 U. S. 72 Ct. said: L. Ed. Sup. as matter of [Legislation offenses, to applicable such does not intent as a element. policy, necessary specify accused, violation, usually if he not does will care society in a it no more than position prevent with and than it might reasonably no more exertion expect exact from one who assumed . his re- might reasonably con- sponsibilities. . . have turned to [CJourts make and no mention regulations statutes struing it and that the dispensing holding guilty of intent as crime. act makes out the alone since intent is not an of the of- element Consequently, fense, not be to establish drunkenness need proved public. 1There volition intent. In case of is a distinction between public drunkenness, while it would be no defense show purpose sprawl no defendant had formed mental the sidewalk nevertheless, stupor, possibly would, drunken he have a defense had quiet that he became intoxicated within the confines of his shown upon home and him therefrom force left him abductors carried helplessly the sidewalk drunk. forbidding a man bear
Laws
peace,
reasonably
relationship
to the
ifest
connected
safety,
fall
and thus
within
health,
morals
welfare
city’s police power
Lenci v.
enforce them.
enact and
(1964); Ragan v. Seat
Seattle,
664,
This state is committed sane to the rule that person responsible voluntary Mays, for his acts. v. State (1964). capable 65 58, Wn.2d 395 If P.2d 758 one is distinguishing right wrong between and knows the quality nature and moral actions, his he is sane deemed M’Naughten by under the rule, a doctrine adhered to great majority and the White, courts. State v. 60 Wn.2d (1962), 551, 374 denied, 942 883, P.2d cert. 375 U. 11 S. L. Sup. (1963); Oregon, 113, Ed. 2d 84 154 Ct. Leland v. 343 Sup. (1952), U.S. 96 L. Ed. Ct. 1002 by If A.L.R.2d 1447. we were condition this rule reliev ing responsibility chronic alcoholics of for their mis inevitably, drunk, conduct while we would under the same reasoning, legal be forced to relieve them of the conse quences of other crimes committed while under the influ voluntarily ence of consumed intoxicants.
Although says compulsion the defendant he was under a proof, drink, there is no nor inferred, is it to be n anyone liquor upon Despite forced the him. his claimed power addiction, he had the to make a choice. When one volun- drink, chooses to he must in be deemed to have law tarily drinking. consequences 8 A.L.R. of that invited the 3d 1236.
Only may voluntary way limited intoxication in a degree culpability. In a be deemed of criminal to affect declaring voluntary expressly statute intoxication does criminality conduct, not reduce one’s the fact may intent or are ele intoxication be considered if motive charged. 9.01.114 forth the ments the crime RCW sets policy concerning of this state intoxication as a defense to crime: person act in a vol-
No committed while state of untary less criminal rea- shall be deemed intoxication condition, existence son of any particular purpose, but whenever actual necessary intent is a motive or degree particular species element constitute a crime, into of his be taken the fact intoxication determining purpose, or in- consideration in tent. such motive *11 applied foregoing 71 Shelton, We in State v. the statute (1967), exonerate 838, 2d 201 refused to Wn. 431 P.2d but being liability for where, on tried the defendant of criminal seriously shooting degree assault in first for the sought wounding prove person, that the defendant he had not for his conduct because could be held liable heavily days. drinking for been several Accordingly, view, our addiction to alcohol in chronic insanity. legal equivalent When the alcoholic not the of except code, for RCW 9.01.114allow- violates the criminal only ing consid- as a factor to be him to intoxication show weighing questions jury of intent in ered of re- same motive, is held to the standards alcoholic everyone voluntary sponsibility- intoxica- Just as else. as assault, murder, of one to exonerate tion does not serve larceny, burglary re- crimes, not or other serious it does being consequences offense of the of drunk lieve one entity regarded Although public. it a disease in purposes, is not addictive alcoholism medical chronic for
799 prose- immune such a disease renders its victims public cution for drunkenness.
Finally, that, if, as a consider defendant’s contention we prevent policy, the arrest matter of this court will suffering imprisonment public persons society compel alcoholism, from chronic addictive will enlightened form treat- substitute a more humane and place of con- ment and induce measures rehabilitative city jail. Citing Hinnant, Driver v. 356 F.2d finement (4th 1966), Cir. a chronic alcoholic which held that public since his cannot be convicted intoxication involuntary public display” “drunken of his was because urges disease, defendant a similar That that we take view. treating case, the defendant’s drunken behavior as not the likening act of the defendant but it to the “movements person an fever,” imbecile or a of a over- a delirium turned a conviction for drunkenness in as a cruel punishment Eighth and unusual violative of the Amend- ment. Columbia, Defendant also cites District Easter v. (D. 1966),
F.2d 50 C. Cir. idea chronic alcohol- ipso complete charge ism was facto a defense to the ruling appears drunkenness. But that based “Rehabilitation of statute, Alcoholics” ch. Stat. § provide D. C. Code 24-501, enacted to for commitment to treatment alcoholic clinics in the District Colum- bia. There a statute defined alcoholism within the District a disease, Columbia as and authorized the courts of the district to commit alcoholics to clinics established holding supports prop- statute. Thus, the basic in Easter legislatures may legisla- osition that the state enact similar *12 procedures tion and establish similar and clinics under the police power, very light but sheds little on the constitu- problem integral part tional at hand. An of the rationale supporting providing that, the decision is in for a medical jail confinement, commitment as substitute for state, by precludes “attaching criminality statute, the courts from public in of a jurisdiction [D. C.] to intoxication
in this chronic alcoholic.” refutes
Although proof instant cause in the defendant’s transgressing the not avoid his that he could contention helpless prevent from himself and he was law, falling stupor sidewalk, believe we on the into a drunken equally unpersuasive. arguments First, we policy to be blocking arrests for drunk- in have no information whether supra, Hinnant, Driver v. in the courts enness compelled supra, Columbia, have v. District and Easter of improved procedure markedly for of a the establishment curtailing of alcoholism. treatment changes any incidence effected Have those decisions throughout Columbia and District of of alcoholism in the may decisions, instead of Circuit? It be the the Fourth simply by ordering reducing treatment, medical alcoholism therapy society deprive limited and the alcoholic what leaving jail confinement, more available means now handling persons. of intoxicated in the or less of a vacuum supra, Columbia, describes the District Indeed, v. Easter observing futility where, after situation authorizing defining for al- medical treatment statute nearly years, says, coholics, has the books been at 53: repudiation judicial of the Act find no basis for We intervening years that in the 1947. The facilities fact contemplated not been made available the Act have provisions legal those not detract
does effect of [al- the sickness the nature the Act which define ours.) (Italics coholism]. care and treatment cannot determine whether the We capitol communities of nation’s alcoholics in the Seattle, or whether than in is now better the Fourth Circuit either in marked decrease shown a communities have those arising criminality from alcoholism alcoholism judicial reasonably way deci- attributed sion. question. argument poses policy Is it another adoption try compel the
proper the courts to
801 legislation at- expenditure for the funds and the refusing uphold by seemingly ends tainment of desirable judicial legitimate existing legislation? of the use Is this a power? the demonstrates instant case We think not. The with are not concerned soundness of the rule that courts meaning only and its of a statute but wisdom way validity. judges can think of better That the by adopted society’s the execu- methods attack ills than the gives government legislative no them tive and branches forcing employ judicial power in their views license to upon society. Seattle, 196, Bolen v. 61 Wn.2d State ex rel. (1963). P.2d legislation
Obviously, ought the courts not invalidate legislation. Suppose simply hope compelling better public policy, court, as a were to strike down matter prohibiting public What, Seattle’s ordinance drunkenness. levy ap- then, taxes, are alternatives? courts no propriate moneys, employ doctors, nurses, social no no operate hospitals, clinics, workers detox- attendants, and no personnel centers, ification no or facilities under and have their direction for care and treatment of chronic addic- society protection tive from their alcoholics or for the Having vacuum, misbehavior. created the the courts are without means to refill it.
And himself? Is the ordi- what the alcoholic Seattle against public completely nance insensitive to frequent periods him? in the Defendant’s of internment city jail, away liquor nourishing food, from and with un- doubtedly good keep done much to him alive and in have physical jail rainy, health. Better a clean on a warm winter night gutter. arguments than a miserable His wet ways than there are better to handle alcoholics methods city undoubtedly employed sound, now but legislative should be addressed and executive government money appro- raised, branches of where priated personnel engaged allocated, and facilities es- carry policies. tablished to out the rehabilitative consequences alcoholism, dis- Grave as are the great tressing may there be, is in some the affliction an alcoholic Where area for self-cure self-treatment. will, arrest drink, or, refuse to exercise persons suffering tuberculosis, ar- cancer, sickness, insanity, multiple sclerosis, mental retardation and thritis, op- incapacities no such diseases and have a host other Ed. 2d California, Robinson v. 370 U. S. 8 L. tion. *14 through (1962). people, Sup. their Ct. 1417 To the representatives, left as to then, elected must be the decision the of the the amount of taxes to be raised and share purse spent alcoholics, of and what to be the care money to other of and talent shall be devoted amounts affecting safety, governmental enterprises the ought health, Courts determine welfare and morals. not exclusively the the decree what is left constitution gov- legislative of executive decision the and branches ernment. legislative
It is thus for the and executive branches government money, physi- how much and to decide talent cal facilities be allocated to the treatment alcoholism will pain misery and how much to the alleviation and suffering placing pow- The constitution these elsewhere. any duty wisely kept ers of decision there the courts city power questions. to determine such The Seattle against public opinion, drunkenness, in our ordinance power police therefore, exercise of the is a constitutional applicable to chronic addictive alcoholics.
Affirmed. JJ., concur. Hunter, Donworth Weaver, J., concurs in the result. result)—I (concurring disagree J. in the with much
Hill, majority agree opinion; however, that is said in with the the are result reached—that the laws with which we con- are until cerned constitutional should enforced and. legislative city a more humane bodies of and state devise particular way dealing and effective with the offense. As enforce the to refuse to no more entitled court, we are uphold legislation to refuse to here involved than we might personally penalty it to believe the death because we ineffective. be barbarous and agree is said hand, I much that
On the other points portion particularly out that dissent, with that approach alcoholism, chronic addictive the criminal-law costly by public drunkenness, is a total and as manifested polemics However, our should be directed to failure. legislative majority opinion. The rather than at the bodies majority, doing police case, like the Seattle best it can it has. with what 27,000-37,000 concession addictive alco- dissent’s Seattle-King County prompts
holics area me to two or points three additional observations. the dissent While out pitiable unfortunates, condition these we should not sight generally lose fact, overlooked, of the that the cause deeply alcohol; alcoholism is should also be con- we men, cerned about the number women and children injured annually highways by killed and on our drinking *15 drunken the and drivers. Most these are not they just alcoholics; included in the addictive had a few many particular drinks too at that time. ordinary
Under circumstances, ban the sale of we would any product produce type which could an illness of the people city described the in 27,000-37,000 dissent in one county ordinary or in our These, course, state. are no fully circumstances, and I understand that we are not regardless many about sales, to ban or limit of how lives may or Indeed, wrecked traffic accidents caused. as a endeavoring state, we are However, to increase such sales. adequate it would seem that we should at least take care of increasing preaddic- the alcoholics, number of addictive tive—rehabilitating possible ameliorating where and where impossible. staggering rehabilitation is cost1of such care necessary. should be borne the business which makes it pun 1No intended. pour “profits” our
Were to boasted the state’s we meeting participation in into the business the social consequences2 thereof, find and the costs we would the entirely “profits” illusory. join with the dissent its prob- for a better and more humane solution of desire the jettison only procedures lem; I would not but that we have. (dissenting)—Some ago, J.
Finley, C. while in The Path (1897), Law, L. Harv. Rev. Mr. Justice Holmes commented: revolting It is have no reason for rule law better Henry than laid in the IV. It that so time was down revolting grounds upon if
is still more laid persists which it was simply long and the since, vanished rule down have past. from blind-imitation of the enough, curiously quite rea- but, These caustic somewhat logical Holmes, J., sonable even observations of seem system legal of our me to be to the orthodox rules relevant designed regulate upon the activities or con- and relied ostensibly for com- alcoholics, duct chronic addictive evaluating disposing problem mon In weal. opinion, my majority alcoholic, chronic addictive judgment, legal perpetuates the same sort of ritualism legalistic superficialities prompted Justice Holmes’ above, comment. oft-cited assumptions underlying seem to be that of the
Some really only people sick but who alcoholics are not muster of will- weakwilled; that if alcoholics would bit they personal pride power could shed their and a little ways socially deplorable decent, and become decadent and assump- society. law-abiding But such in our functionaries opposition uncon- diametric tions are in direct and testimony unequivocal medical the instant troverted and *16 alcoholism involves too Moreover, chronic addictive case. implications many people, are too overall social and its nothing important, than tired cliches accorded better to be policing and court costs made 2This include the additional would necessary. If ever moralisms. yesterday’s convenient Victorian criminally punishing purpose there social were public appearing simply chronic addictive alcoholics long vanished; so should since it has in a drunken condition punish- facilitating way thinking such the rules drunken- habitual Lincoln once said that ment. Abraham crime, as a misfortune, and not as a ness should be “treated Temperance Charity disgrace.” Lincoln, A. even as a 73, 78 Lincoln 2 Life of Abraham Reform, in and Works (1907). firmly great American’s advice I believe today. practice put pertinent timely, into and should be ordinance court is whether an The one issue before this penalizing unconstitutional when drunkenness in applied alco- afflicted chronic addictive to individuals with constitutional issue involves consideration holism. This Constitution, amendments 8 and to the United States Washington Constitu- 14 of the State and article section question, con- does not raise or affect the tion. issue majority suggest, trary ad- whether a chronic to what the engages responsible for acts in which he dictive alcoholic is does not raise or Furthermore, while intoxicated. the issue contrary majority sug- question, also affect the what gest, whether a chronic addictive alcoholic’s illness should charged committing him as if available to a defense Although being public. some crime other than drunk judge opinion, questions trial mentioned these in his oral they they properly were not him and are not raised before appeal. presently The sole issue this court is before suffering from chronic al- whether an individual addictive appearing in a coholism can be convicted for drunken condition.
I. The Nature of Defendant’s Disease Numerous text materials exist deal with the na- unequivocally ture of alcoholism. Each one examined concludes that alcoholism is a disease which should be medically punished criminally. See, rather treated than e.g., Report the President’s Commission on En-- Law
806 Challenge Justice, of forcement and Administration of (1967); Society 233 M. Crime in Free S. Guttmacher (1952); Psychiatry D. J. Weihofen, H. and the Law Study Revolving of the A Door: Gordon, Pittman C. (1958); Williams, D.A.R. Chronic Police Case Inebriate Zealand, 2 New in New the Criminal Law Drunkenness and society (1967). has been Yet, L. Rev. 297 Zealand Univ. by enjoyed drinking, pastime comprehend that slow to may symptom by many many be a others, but condemned suffer. At of individuals an illness from thousands may “One believe one has concluded: well least author hostility render toward drunkenness traditional attitudes in- just more than difficult rational and determinations Responsi- sanity Intoxication and Criminal Hall, cases.” J. being (1944). bility, attitudes Public 57 Harv. L. Rev. involving they they inertia and do intellectual are, what problems, I in social think and interest a lack of awareness important characteristics to discuss some it is major- fully is done more than believe alcoholism ity.
According testimony Pattison, a M. of Dr. Edward to the University highly qualified psychiatrist on of the the staff spent Washington has much of Medicine who School prob- working professional and their life with alcoholics chronologically three divided into lems, alcoholism phases: prodromal, basic, and chronic. These cat- crucial egories Jellinek, and Professor E. M. first coined were widely accepted for ana- ones most have since become lytic purposes. during referred his testi- Dr. Pattison
A chart which illustrating mony, of alcohol- Jellinek’s divisions Professor phase, prodromal alcoholic an in the ism, indicates that preoccupied sneaking begins becomes drinks and usually gulp drinking. avoid his drinks and will He tends usually drinking. His first blackout will reference to during phase. occur this
By crucial or basic reaches the an alcoholic the time Symptoms addiction. phase, of alcoholic has the disease he drinking patterns, changes in include addiction of alcoholic drinking. morning jobs, and supply, protection loss phase, an chronic phase between Somewhere he be- is, once control,” experiences “loss alcoholic longer stop he is intoxicated. until drinking, gins no he can completely addicted. phase, alcoholic an chronic In the drinking, begins he but stop only once cannot He not begins to taking He first drink. stop himself cannot *18 decreases. tolerance physically alcohol and his deteriorate tremors, and experiences psycho-motor and inhibitions He goes untreated, begins. If disease liver his cirrhosis of the he die. will prodro- in the defendant was
Dr. Pattison testified that phase was 1946.Defendant mal of alcoholism from 1928 to family apart soon afterwards. divorced in 1946 and his fell drinking Immediately subsequent hab- this, defendant’s to changed passed radically, shortly he into its and thereafter phase phase the crucial or chronic basic and then into the of alcoholism. unique.
Alcoholism in is, sense, one somewhat While virtually impossible can be to cases, arrested most it is According per cure. of all Pattison, to Dr. less than cent i.e.} cured, alcoholics could ever to return be said to be able drinking. remainder, to normal For is the rehabilitation helps alcoholics best that treatment can offer. Treatment urges They may cravings control their to still have drink. may possible for alcohol for to stifle their but it them cravings perhaps lead normal lives. principal
The reason for lies there is no cure alcoholism beings. in the addictive effect alcohol human Accord- ing array complex physi- Pattison, to Dr. addiction is a compel cal, emotional, and social needs which an addict to attempt satisfy cravings. to Alcohol addiction manifests ways (1) important itself in are An two to this case: (2) prevent drinking, addict is to himself from unable begins stop once he to drink he is unable to until intoxi- cated. say prevent from to himself
To defendant is unable continuously. drinking say he is not to must drink Certainly being he restrained involun- will not drink when voluntarily tarily, may a short he abstain even alcoholic is But, this not mean that a chronic does while. drinking. addictive alcoh- not While chronic addicted drinking may intervals, refrain from will olic short virtually always upon commented to it. Dr. Pattison return point as follows: attempt to remain
[T]he chronic addictive alcoholic will eight up six or months voluntar- sober and do so ily this time he is unable but at end refrain (Ital- drinking. eventually returning finally and mine.) ics drinking voluntary majority seem is a The to believe places thing chronic alcoholic. Numerous to a addictive majority opinion if alcoholics stress the notion that strong enough drinking they people could their were shake evidently simply majority feel The alcoholics habits. unwilling alcohol characters who are to control their weak though quite problems, even able to do so. only majority support presented evidence Lindberg, highly *19 testimony by a Dr. John H.
of this view is University qualified of of internist on the staff Wash- ington per- is Medicine, of to the effect that there School successfully haps per cent that could a chance defendant likely illness. Dr. However, is Lind- treat himself his only berg made this statement to show that self-rehabilita- possible, suggest is tion is and not to that there sub- occurring. probability In stantial of self-rehabilitation other Lindberg’s point to that while words, Dr. seems have been proposition it is conceivable for as an abstract medical prevent themselves from chronic addictive alcoholics practical impossible drinking, it is to view their as a matter involuntary drinking anything in all but the rarest but colloquy following cross-examination, the took of cases. On place Lindberg: prosecution and Dr. between you Q. Doctor, Hill said, that Mr. revealed to believe potentiality ability you of refrain from im- some say his case bibing? also I would In other words Yes. A. mine.) (Italics hopeless. not e.g., contrary, E. M. light myriad to the In of authorities (1960); Concept D. J. Alcoholism of Jellinek, The Disease Study Revolving A Door: Gordon, Pittman and C. unlikely (1958), I find the Case Chronic Police Inebriate Lindberg’s suggestion support statement in contained Dr. hang dangerously upon the notion slim thread which voluntary are drinkers that chronic addictive alcoholics they exercising capable if so are self-rehabilitation who desire.
A of the social alcoholic, chronic addictive because disease, from his economic disorientation which results public. spends in Public much of time drunk while sympto- displays in could fact be said they alcoholism, in the sense that matic chronic addictive Pattison, Dr. normal concomitants the disease. question response cross-examination, made the fol- to a lowing remark: you say appearing Q. [W] . . . ould while under the alcohol an alcoholic is influence of symptom say yes in of alcoholism? ... A. I will typical You this is the chronic addictive alcoholic. do early prodromal appearing excessive drinker
not find the only public. This intoxicated would be unusual. It person when the has entered into vocational and social disintegration longer and no can con- deterioration drinking appears behavior in- trol the that he say (Italics large, yes. I would toxicated so mine.) only consequence, conclude, can on the Dr.
As a we basis statement, uncontested that the ordinance with Pattison’s punishes in the instant matter are concerned we solely exhibiting symp- particular class individuals they they from which suffer which char- toms of a disease acteristically prevent exhibiting. cannot *20 evidently majority, however, do not share this view. emphasized points inebriate, an an is that even One of the public. support appear In intoxicated alcoholic, need not cited majority statistics certain refer to position, the of this (a Judge Z. Smith Charles County Superior by King Court Judge According case). to instant in the defense witness County King in the alcoholics 37,000 are about Smith, there for per tried cent are approximately 10 of area, which majority opinion con- year. The each public intoxication County’s King can alcoholics per cent if 90 cludes that is not unreason- drunkenness, it public exhibitions avoid remaining per cent to do likewise. require able agree why with this I cannot reasons There are three people for figure arrested 3,600 First, conclusion. ap- only individuals who those includes intoxication municipal Judge According Smith, the pear for trial. post allowing policy able to those has a court in Seattle appearing in and avoid their bail forfeit bail to $20 only raise Consequently, who cannot arrested those court. processed. reason It is cases ever have their $20 per cent” of Judge least 99 “at estimates that Smith alcoholics, processed are “skid road” 3,600 individuals likely remain off the the means to to have individuals least streets. police departments policies are of most
Second, arrest only broke, and seem to be such individuals who help go them, one are arrested no and no have where to public drunkenness, their drunkenness is accom- unless Report panied by of the President’s misconduct. See some Columbia on Crime in the District Commission policies, (1966). no these arrest I am convinced that justifiable circumstances, further under the doubt emphasizing discrepancy arguments be- dull the force of alcoholics and the number tween the total number processed municipal courts. inebriates figure by Judge Third, 37,000 cited Smith alcohol- (27,000 King County ics in area alcoholics in the Seattle alone) phase area not reflect the does alcoholism each is point cross-examination, in. On Dr. Pattison was careful to figures distinguish out that the cited fail to chronic addic- characteristically alcoholics, those who tive found
811 public, prodromal phase drunk in from crucial or basic and alcoholics. “What we define as the chronic addictive alco- “probably only represents holic,” Pattison, stated Dr. -asmall percentage 27,000 37,000 alcoholics in this area.” light reasons, In of these I cannot see how the fact that King only per County’s population 10 cent of entire processed through municipal year alcoholics are court each any way detracts Dr. Pattison’s statement that public symptom is a of chronic addictive alco- holism. contrary majority,
Thus, to the views it seems convincing sound and to me to conclude that chronic addic- symptoms is disease, tive alcoholism a that its include the inability drinking, inability refrain from to stop drinking once frequent started until intoxicated, and a dis- play drunkenness, and that unlikely while it is having an individual this illness can be cured, it is quite likely proper medical aid can do much to rehabili- pertinent question, tate him. The more however, prosecute whether unconstitutional chronic addic- majority tive alcoholics say drunkenness. The no; disagree. I
II. Defendant’s Conviction as Cruel
and Unusual Punishment Initially, it should be said that there are no serious suggestions by responsible, thinking people that chronic ought punished addictive criminally. alcoholics seems approach consensus to be that the criminal law chronic problems addictive alcoholism and its related social abject is a miserable and failure. The continued existence problem of and our lack of answers should be an ever-present only reminder of what can be termed a na- disgrace. Report by tional See Commission the President’s on Law Enforcement and Administration of Justice, The Challenge Society (1967); Crime in Free 233, 235 Re- port of President’s Commission on Crime in the District (1966); Murtagh, 474, 490, Columbia J. The Derelicts pp. Monthly, 77, 1962, March 81. On Row, Atlantic Skid “Cycle documentary Shame,” entitled radio
a KING January Frank Police Chief Seattle broadcast typical among expressed individu- views which Ramon of current criminal of the senselessness are aware als who regard policies to alcoholism: law people Certainly that these like to see a determination I’d living lives, futile and cer- who are useless [alcoholics] they they tainly to, that are not not because want it’s years ago, that, like criminals. believe some treated mentally persons *22 fashion, treated the same ill were society grows up recognizes time our and I think it is beyond problems an are individual’s control that there though anti-social, his behavior that not be he should as common criminal. treated expense by, and time consumed The enormous imposed upon, our lower burden overcrowded courts prosecuting public for drunkenness are addi- alcoholics tional factors should cause disenchantment with our present approach. Approximately criminal law one-third of reported public in the all arrests United States are for intoxication. President’s Commission on Law Enforcement Report: Task Justice, Administration Force The (1967). 1963, Courts 99 In 1,514,680 this amounted to ar- Barrett, E. Criminal The rests. Justice: Problem Mass Assembly, Production, in The American Columbia Univer- sity, Explosion The Courts, Public, and the Law (1965). exception Recidivism is the rule rather than the among public those for arrested drunkenness. In the instant Judge case, testified that Smith individuals arrested for appear average year; an of 10 times a many appear many year. as 20 times a Defendant Hill has been convicted the crime of intoxication 98 city, county, The annual times. total cost to the and state handling King County’s approximately alcoholics is apparent society $3,500,000.It is that if derives benefit present policies regarding from our alcoholics, it is not price paying worth the we for it. alco- however, criminally punishing
Even granting, remains: undesirable, holics question is extremely alcoholics unconstitutional chronic addictive to prosecute I think public? of their disease exhibiting symptoms is yes.3 answer Constitution amendment to the United States eighth states: nor fines
Excessive bail shall not be excessive required, inflicted. nor cruel and imposed, punishments unusual The cruel and unusual punishment principles amendment been made to the have states applicable fourteenth to the amendment United States through v. Robinson 370 U. California, Constitution. S. 660 (1962); Resweber, ex Francis 329 U. Louisiana rel. v. 459 (1947). S. Moreover, Washington Constitution has a State similar Const, art. § 14: provision, bail shall not be required,
Excessive excessive fines nor cruel inflicted. imposed, punishment both of these constitutional provisions believe prevent of defendant facts under in the prosecution instant case4 *23 Murtagh 3Judge criticized the few John M. has courts which have drawing narrowly. Murtagh, J. for too considered this issue Arrest Intoxication, 1, (1966). 35 Fordham L. Rev. 9 Public As cor
for
rectly points
restricting
by
out,
alcoholics,
to
the issue
chronic addictive
deserving
many
excluded
are
who
the same
individuals
consider
Judge
agree
Murtagh,
practicali
however,
to
tend
ations. While
holding
prevent
a
this
to
broader
at
time.
In the
seem
first
ties would
alcoholic,
holding
place,
is
chronic
no
a
addictive
so
broader
defendant
pointed
place,
In
Dr. Pattison
out
the second
while
is indicated.
readily
subject
diagnosis,
degrees
to
chronic
alcoholism
lesser
diagnose.
reasons,
to
For these
more difficult
the
alcoholism are
dissent
presented.
to the issue as
is restricted
Const,
Const,
considering
8, 14
U.S.
amends.
4In
whether
art.
and/or
abridged,
kept
1,
or
it should be
14
violated
mind that
have been
§
considering
apply,
when
our own constitu
ourselves
we have bound
Supreme
interpretations
tion,
the United States
Court
federal
Washington
questions when the
State Constitution
con
constitutional
provision.
Heater,
Tacoma v.
67
Wn.2d
The United States meaning punishment to the of cruel unusual attention (1958), Trop Dulles, U. involv- v. S. the case Nationality ing Act of under the 1940. denationalization id. 99: stated, The court at phrase scope constitutional “cruel and exact of the The detailed this Court. But the has not been unusual” firmly policy established reflected in these words
basic justice. Anglo-American criminal tradition of in the concept underlying Eighth Amend- The . . . basic dignity nothing man. less than While ment is punish, power Amendment stands to has State assure power be exercised within limits that this standards. civilized very important sentence, id. add a
The court went at 101: meaning from the draw its
The Amendment must evolving decency progress that mark the standards of society. maturing (1962), the 370 U. Su- California, Robinson v. S. In apply principles opportunity preme these had an Court analogous closely problem to the one now before more to a supra, concerned a California statute which Robinson, us. being using, penalized to the use addicted individuals penalized indi- words, In statute other of, narcotics. as narcotics of their status addicts. viduals because California Supreme held that statute inflicted Court punishment and thus was unconstitu- unusual cruel and alcohol addiction and addiction differ narcotics While tional. respects,5 cases, facts of the two much of as do the in some appropriate language in Robinson the court seems here, id. at 666: history unlikely moment in at this State It is person attempt it a criminal to make
would offense leper, mentally or to ill, or a be afflicted with a to be drug the court in Robinson that addic before evidence 5There was innocently, e.g., medically from the use contracted tion e.g., *24 involuntarily, born drugs, children of narcotics ad prescribed or concerning court before our alcohol addic evidence is No similar dicts. tion.
815 gen- the might determine A disease. State venereal eral health of these require the victims and welfare compulsory by with be dealt and other human afflictions seques- involving quarantine, confinement, treatment, contemporary light knowl- human But, in the tration. of a edge, such a criminal which made a law offense universally thought to be an be disease would doubtless punishment in violation unusual cruel and infliction of mine.) (Italics Eighth Amendments. and Fourteenth the standards important, the think, to note that It punish- judge cruel and unusual constitutes what which we court has vary This offense committed. the ment 845, 686, 171 P.2d 25 Fairbanks, Wn.2d stated, State v. (1946): juration imprisonment penalty [D so fixed as be gravity the the incommensurate with commit- offense punishment] [the . ted as provision provision of . . to be violative cruel constitution and of the kindred state eighth in the contained amendment to Fed- (Italics mine.) eral constitution. phrased by principle Supreme This same was Court in supra, way: at in this Robinson, imprisonment ninety days for sure, not, To be in the punishment is either abstract, a cruel or unusual. question But the Even one cannot considered in the abstract. day prison be a would cruel and unusual having punishment the “crime” a common cold. (Italics mine.) appeal recently Two federal courts concluded that the principles espoused apply in Robinson drunken- prosecutions They ness of alcoholics. held that it is cruel criminally punishment penalize unusual chronic involuntary public displays alcoholic for his of drunken- (D. Columbia, District ness. Easter v. F.2d 50 C. Cir. 1966) (4th 1966). Hinnant, v. F.2d 761 ;6 Driver Cir. principally Easter, upon 6In determination was based court’s program congressional rehabilitating act which establishes a alco on, District Columbia. Four members of the holics court went upon relying reasoning however, and, somewhat in Driver v. Hin nant, infra, “Our decision would be the same were we stated: without guidance Act of 1947.” 361 furnished F.2d at 53. *25 Although majority summarily the choose to dismiss these persuasive. my pun- I cases, mind, find them most To the on chronic ishment inflicted addictive alcoholics under the ordinance in case no the instant is less cruel than that on Robinson, inflicted narcotics addicts under the statute in supra. factually distinguishable, the cases While the principles Robinson, stated which we bound have our- supra, directly apply see selves to note 4 follow, to the testimony unequiv- instant matter. Medical and authorities ocally disease, state that alcoholism is a a “human afflic- medically pun- tion,” treated which should be rather than criminally. undisputed testimony There ished is in- public drunkenness, stant case that the crime with which charged, is, for chronic addictive alcoholics defendant involuntary—it defendant, like is a natural concomitant my judgment, question In the ordinance in their disease. system which, in case, fosters a the instant results in the punishment contrary unusual of cruel and our infliction and federal constitutions. state majority distinguish from would the instant case
The supra, ground Robinson v. that the ordi- California, punish case not chronic instant does addictive in the nance they are afflicted but rather alcoholics because because However, distinction, me, seems conduct. such their consequential support transparent simply to lend too § 1, ordinance conviction. Seattle No. defendant’s City question, § 12.11.020, ordinance in Code Seattle “ any person for [i] shall be unlawful to be t states that guilty drunkenness,” . and drunkenness is a . . symptom of chronic addictive of the disease alcoholism. apply majority this have construed ordinance to While only fact remains chronic drunkenness, that characteristically principal exhibit the addictive alcoholics public through symptom of disease—drunkenness—in their no rational can see basis disal- no fault of their own. they lowing punishment of individuals because are ill but involuntarily exhibiting punishment approving their symptom of illness. their majority point state out that we follow responsible for
rule an individual is his criminal acts comprehend quality moral unless he is unable to distinguish right wrong. acts or v. between State (1962). White, 60 Wn.2d 374 P.2d Since defendant does contend he falls rule, i.e., not within this that he majority is insane, the conclude defendant’s volitional ina- However, bilities will not save him. the conclusion does not premise. follow general, responsible
In
to hold an individual
for a crimi-
nal act there must be both actus reus and mens rea. In
*26
other
voluntary
words, there must be both a
criminal act
Psychiatrists
and intent to commit a
Foster,
crime. H.
What
Should Know About the Limitations
Law, 1965 Wis. L.
Rev.
legislature
189, 226.
this
While
court has held that the
power
has
requirements
to remove mens rea
from
longer
crimes, so that criminal intent is no
a factor, State v.
Lindberg,
(1923),
Wash.
Insanity legally is a defense one because insane cannot comprehend distinguish particular between moral values. In words, other there can be no mens rea. This rule says nothing requirement about the reus, actus however, voluntarily, for it assumes insane individuals act if not with understanding. insanity apposite. Thus the limitation is not liquor
If a chronic addictive alcoholic from steals store, probability voluntary stealing in all this act is since is not compelled by alcoholic addiction.7 On the other hand, if a majority point imply that, 7The at one because “alcoholics have been likely crime,” they prospects known to commit serious for criminal ought activity away. Unfortunately, and therefore to be locked this is equally every society, and, fact, true of class of individuals characteristically pose chronic addictive alcoholics society. little if threat Revolving Gordon, study J. Pittman and D. C. Door: A See 41-52, (1958). the Chronic Police Case Inebriate 130-38 appears intoxi- while alcoholic chronic addictive voluntary since probability act is not cated, in all compelled short, In drinking addiction. alcoholic charge a defense to a alcoholism would chronic addictive no reus, there is no actus because of voluntary anything a defense to act, not be would but else.8 majority’s I believe confusion of what to be
Much from their initial failure to instant matter results about not alcoholism as disease. do chronic addictive view majority an ordi- would hesitate to strike down think the making epileptic suffer a seizure it a crime an nance though possible, public, it would be with extreme even constantly difficulty, epileptics remain indoors. all being This a result so, I am unable to rationalize such epilep- Alcoholics are ill as in the instant case. the result constitutionally deserve the same considerations. tics, and Summary
III. Conclusion is chronic addictive alcoholic. Chronic addic- Defendant ought to alcoholism is a disease be treated medi- tive cally. Symptoms of alcoholism chronic addictive include an drinking inability inability stop and an to refrain drinking once until intoxicated. Because their started *27 disorientation, chrome social and economic addictive alco- prevent characteristically are unable to holics themselves being public. reasons, in For these I am drunk con- penalizes ordinance which individuals vinced Seattle applied appear public in drunk is unconstitutional as who subjects alcoholics, in to chronic addictive that them to punishment. cruel unusual and majority suggest any changing that decision the cur-
The
legal
respecting
philosophy
approach
and
chronic ad-
rent
in
event be
left to the
alcoholism would
better
dictive
argument
legislature.
not
is
without merit. There is
This
(which
too,
reason,
this
that RCW 9.01.114
disallows
8It is for
acts)
voluntary
criminal
as a defense to
is irrelevant.
legislation
pro-
support
that,
for the view
without
caring
alcoholics,
vides a means of
for chronic addictive
any significant
sup-
they
not
aided to
extent
would
be
charge
public
plying
with a defense to
intoxica-
them
Report
tion. In
President’s Commission on Crime in
(1966),
the District of Columbia 486-90
the Commission
developments
subsequent
in
discusses
the District
Easter
to
(D.C.
1966).
Columbia,
v. District
The Commission’s indicate, does however that areas, other such as St. have Louis, done more to aid alco- Report supra, holics. of the D. C. Commission, at 477. More importantly, purposes King County case, of the instant already program through King County has initiated cooperation King County Sheriff, in with the Commission- represents enlightened step ers, which a most toward aid- ing legislative help alcoholics.9 While additional no would great Rung County doubt be benefit and the remainder state,10 of the the fact remains that we are not faced with a existing situation like the District of Columbia. King County Department recently 9The Sheriff’s has established facility Cedar Hills Alcoholism Treatment Center. This can house 112 patients. program under which individuals are committed to Cedar embryonic stages, encouraging. Hills, still in while its most Alcoholics King County carefully arrested in intoxication are screened they prior alcoholics, If are in trial. fact found the Seattle Municipal period days, Court will for a sentence them of 90 with a that the sentence be carried recommendation out at Cedar While Hills. may not be forced rehabilitation as conducive to favorable results as procedure voluntary rehabilitation, certainly more commendable incarcerating jail. than alcoholics legislative 10It be noted there is some additional chapter should aid supplied by program 70.96. This RCW establishes a statewide development operation private for assistance *28 care, referral, custody, treatment, recovery, facilities and rehabilita- many just however, mentioned, are in The considerations respects decision. Whether or not to the instant irrelevant legislature responsibilities meet its if the ordi- the would applied as to chronic unconstitutional nance were found ultimately hardly compelling an con- is addictive alcoholics judiciary. too, such fact, a decision cern for the society’s problems panacea for all with not be would particularly pertinent If, either. does not seem alcoholism balancing competing interests, an valid ordinance after rectify unconstitutional, courts must the situa- found be subjected being of individuals to cruel tion. When class legislative punishment particular of a because unusual neutralizing act, the effects of this act, courts, in should not luxury indulge contemplating the whether themselves judicial obligations easily discharge- more would be their painful to if there additional or less execute were able by legislation fill left their actions. the void opinion, foregoing the I For reasons stated in would judgment below and dismiss the case. reverse the J., C. J. concurs with Finley, Rosellini, dissent)—I (concurring J. concur Hamilton, Finley expressed by Chief Justice insofar as the views legal chronic addictive alcoholism as erect those views passive public particular crime excuse or defense to perceive holding projects not that such a intoxication. do criminal so far into the area of chronic addictive alcoholism would, circumstances, an under all render it defense law complete all defense to other crimes or a excuse by suffering might from the mani- committed one Although malady. of the character festations legislature appropriated $1,000,000 1967 the for use In tion of alcoholics. Health, Department to the in addition transferred per Department cent the funds derived from beer and of Health carry solely purposes out of RCW 70.96.085. Laws licenses wine expenditures may legislative Ses., These reflect ch. 75. Ex. problems responsibility recognition caused sales state’s beverages—sales engages in which the state at enormous alcoholic profits. *29 surrounding equate dialogue malady, it, tends and the recognized, yet criminal defense existent, seldom the my malady involuntary still the view, in intoxication, of subject possesses the of sufficient facets voluntariness liability punishment for activities criminal and addict to symptom going beyond of springing from the basic disorderly passive intoxication—e.g., behavior, drunken larceny, burglary, cetera—upon driving, the et assault, crimes while voluntar- same as one commits such basis who ily of under influence intoxicants.
By certainly way analogy, epileptic le- of an be would gally disorderly charge growing a excused from conduct upon out of a convulsion a the bare fact that suffered yet, stage of street; in some or in some form a if he committed or a crim- convulsion an assault homicide his responsibility by inal therefor would be measured the rules pertinent mentally deranged. to the argument legislature upon
The must act may my matter is, before the courts mind, intercede by legislature steps softened somewhat which the has already taken in of See, the field alcoholism. RCW 70.9611 (dealing alcoholics) with the of rehabilitation and RCW (dealing drunkenness). Certainly, 71.08 with habitual these legislative statutes are evidence aware- problem by ness of and for concern created chronic problem incidentally, hardly addiction—a which, alle- gathering or viated diminished state’s revenue sale (providing intoxicants. Furthermore, RCW 71.08.010 punishment public intoxication) (re- and RCW 9.01.114 lating prosecutions) as in intoxication a defense criminal definitely speak voluntary terms intoxication. These precise latter no statutes make mention and offer no cir- cumscriptions passive upon a or state condition of intoxica- involuntary tion induced an submission to the demands malady. of a We, then, chronic addictive as court, a no implemented by 1967, Ses., devoting 11As Laws of Ex. ch. § liquor portion of to the revenues establishment of rehabilitation facili ties for alcoholics. legislative recognizing, prerogatives as more invade procedural process and in a limited form criminal matter legal psychiatric excuse, link the established medical and passive public intoxication and chronic addictive between judicially compose alcoholism, do we than we when and/or M’Naughton modify respect to or Durham rules with insanity. slightly same, criminal defense judicial formulation, context, said of the different or elimination such defenses the area modification governmental immunity, litigation or charitable civil comparative negligence, assumption contributory injuria, non fit albeit we seek sustenance volenti risk or *30 upon respects of the the basis march our actions these upon the rather than advancement common law medical science. social and punishment criminal of a
Moreover, if we conceive that though passive alcoholic for the chronic addictive malady is at odds with constitutional of his manifestation punishment, process concepts or cruel and unusual of due duty appellate declare, court as an under is our then it proscriptions appropriate of the circumstances, the consti- legislative arm, of the rather than for the benefit tution legislative mayhaps interpreta- invalid extensive await implementation. tion and foregoing disagree upon that I basis of the views
It is majority’s disposition. with the