The Eighth Amendment and Compulsion
Last time, I discussed how the Supreme Court found in Robinson v. California a substantive component to the Eighth Amendment’s prohibition on cruel and unusual punishments which prevents the government from criminalizing a passive status or condition, such as drug addiction, without an accompanying criminal act.
Then, the court tied itself in knots over whether the Eighth Amendment would also prohibit punishment of an act compelled by the condition in Powell v. Texas. Four justices concluded that Texas’ public intoxication law did not punish the condition of alcoholism, because it included the act of appearing in public while drunk. Another four justices felt it would be cruel and unusual to punish an alcoholic for the manifestation of alcoholism, uncontrollable drunkenness.
The ninth justice, Justice White, agreed that punishing someone for conduct compelled by an illness was cruel and unusual, but also concluded that the particular defendant, Powell, had not proven he could not avoid being in public while drunk. Justice White argued that, had the defendant been homeless, he would indeed have been compelled to be drunk in public, having no home in which to get drunk.
Fast forward to 2018, when the Ninth Circuit applied the fractured ruling of Powell to rule in Martin v. City of Boise that the Eighth Amendment prohibits a municipality from criminalizing the homeless sleeping in public, if there are not enough shelter beds available for the homeless to avoid doing so.
This is arguably an odd rule to draw from Powell, which after all upheld the prohibition on public drunkenness. A straightforward application of Powell would seem to conclude that Boise’s ordinance did not punish homelessness as a status, but rather the act of sleeping in public.
But the Ninth Circuit added together the dissent and Justice White’s concurrence to to find a 5 Justice shadow holding in Powell that
the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.
According to a majority of the Ninth Circuit,1 that principle compelled the conclusion that municipalities may not impose criminal penalties for sitting, sleeping, or lying outside on homeless people who cannot obtain shelter.
The court reasoned that humans are physically compelled to rest, requiring them to sit, lay down, and sleep. A homeless person no less than anybody else must do so, and inherently can only do so in public places. Thus, Boise’s ordinance punished conduct (public sleeping) compelled by an underlying condition (homelessness), in violation of the principle that the court had excavated from Powell.
The court was careful to limit its ruling, however, to those situations where the number of homeless persons in a jurisdiction exceeded the number of homeless shelter beds available. If there are shelter beds available, homeless persons are not compelled to sleep in public; they have the option to go indoors. But if there are not enough beds, the government may not punish homeless persons for sleeping outdoors “on the false premise that they had a choice in the matter.”
Meanwhile, on the other side of the country, in Manning v. Caldwell, the Fourth Circuit derived a similar reading of Powell to strike down Virginia’s law prohibiting “habitual drunkards” from buying, possessing, or consuming booze. The Virginia law created a procedure for certain individuals to be designated by courts as habitual drunkards. Once so labeled, a person could be jailed merely for possessing alcohol, or indeed, apparently for being drunk in public, the very type of law upheld by Powell itself.
The Fourth Circuit reasoned that, while the law nominally punished the conduct of possessing and consuming alcohol, in effect it targeted alcoholics based on their illness. The court relied on Justice White’s concurrence:
the thin distinction between "hav[ing] an irresistible compulsion" and "yield[ing] to such a compulsion" is not one of constitutional magnitude under Robinson.
Like the Ninth Circuit, the Fourth Circuit argued that its holding was narrow, applicable only to conduct that is an involuntary manifestation of illness and otherwise legal for the general population.
And yet both Martin and Manning bend Powell back against Robinson to undercut the fundamental distinction that justified Robinson’s reasoning: the line between acts and statuses. Robinson specifically explained that the Eighth Amendment did not prohibit criminalizing the possession or consumption of narcotics, rather it applied to laws that criminalized to mere condition of drug addiction without any accompanying illegal conduct.
The Ninth and Fourth Circuits have thus flipped Robinson on its head, deriving a rule that individuals may not be punished for conduct compelled by an underlying status or condition. But what are the limits of such a rule?
I am pulling here from a denial of rehearing en banc that essentially adopted the panel decision.