Eighth Amendment Status Crimes

The constitution’s Eighth Amendment provides that:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Setting aside bail and fines for another time, the Eighth Amendment generally protects those who have been convicted of a crime from punishments that are either excessive in comparison to the seriousness of the offense or that are outlandishly cruel; essentially torture.

But in Robinson v. California, the case that incorporated this amendment against the states, the US Supreme Court determined in 1962 that the prohibition on cruel and unusual punishments also contains a substantive component¹ that limits the kinds of things that states may criminalize and not just the punishments for those crimes. In striking down a California law that made it a crime to be addicted to illegal narcotics, the court held that the Eighth Amendment does not permit states to criminalize a mere status or condition.

Generally, every crime is composed of two essential elements, the actus reus and the mens rea. The actus reus is the “bad act” or the conduct that is criminalized, while the mens rea is the “bad mind” or mental intent to engage in the criminal act.

Normally, a prosecutor needs both to successfully convict.² If the defendant intends to commit the crime but fails to do so, they may be guilty of attempt, depending on the circumstances, but not the crime itself because there’s no actus reus. If you shoot at someone and miss, you are not guilty of murder, no matter how much you wanted to kill them

On the other hand the defendant is also not guilty even if they commit the criminal act, if they did not intend to do it because in that case there is no mens rea. If your gun goes off accidentally and kills someone, your also not guilty of murder because you didn’t intend to kill them.³

So in Robinson, the court was presented with a crime that had no actus reus, because it was a illegal to be addicted to drugs even if the person never took or possessed any while in the State of California. The court compared the California law to one criminalizing an illness, reasoning that “[e]ven one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.”

Six years later, the court declined to extend Robinson to the crime of public intoxication in a fractured 4-1-4 ruling. In Powell v. Texas, the defendant argued that he was a chronic alcoholic who could not prevent himself from being drunk in public due to the nature of his affliction. He argued that he was being punished for his status as an alcoholic and his case therefore fell within the ambit of Robinson.

Four justices distinguished Robinson easily, because public intoxication involves the conduct of choosing to be in a public place while intoxicated, and therefore the statute did not criminalize the mere status of being a drunk. Powell was free to get shitfaced to his heart’s content in the privacy of his own home.

Four other justices, on the other hand, agreed with the defendant that the

essential constitutional defect here is the same as in Robinson, for in both cases the particular defendant was accused of being in a condition he had no capacity to change or avoid.

They reasoned that Powell could not resist the compulsion to drink and once drunk, could not stop himself appearing in public. In their opinion, the Eighth Amendment’s substantive component prohibits criminal penalties being inflicted on a “person for being in a condition he is powerless to change.” For them, it would be equally cruel to punish someone for conduct compelled by a condition as for having the condition in the first place.

Justice White split the baby, arguing that Robinson did not apply because Powell had the option to drink at home but that it would apply if he were homeless, because then he would indeed be compelled by his chronic alcoholism to get drunk in public, having nowhere else to go.

The result was that Powell lost his case, because Justice White agreed with the first four justices as to the result: Robinson did not apply to the particular facts of that case. But he did not totally agree with their reasoning. In fact, he agreed with the “dissenters” that it is cruel and unusual to punish someone for conduct they are compelled to engage in by an illness or condition. He just didn’t buy that Powell was compelled to be in public.

So where are we? It is clear that the Eighth Amendment’s substantive component prohibits criminalizing a passive status or condition without an accompanying act. But its not clear whether the government may criminalize conduct that is compelled by such a status or condition, because 5 justices in Powell agreed in the result but not in the reason for that result. The reasoning of the dissenters is compelling, on the other hand, but taken to its logical conclusion would totally upend the entire concept of criminal responsibility.

And there the law has stood for decades. But all of that may be about to change. Next month, the court will hear oral arguments in City of Grants Pass v. Johnson, a case that asks whether a city’s enforcement of its criminal prohibition on public camping against involuntarily homeless people violates the Eighth Amendment’s protection against cruel and unusual punishment.

1. Readers will know how much I love that particular maneuver.

2. One wrinkle is strict liability crimes, which do not require that the defendant intend to commit a crime. An example is statutory rape, because the defendant is guilty whether they knew they were sleeping with someone under-age or not. But, importantly, they do need to have intended to have sex, even if they did not intend to do so with a minor.

3. You might be guilty of a lesser offense like involuntary manslaughter, depending on the facts. The mens rea for that crime is lower than murder, typically requiring only that the defendant be reckless or negligent and not intentional.