Illustration · A cell block in a city jail in the 1960s, with a new sign reading “Hospital” hung at the gate into the next wing, under the old lettering. Not drawn from a photograph.

Durham, Washington and Austin · 1962–1971

A new sign

Courts began to ask whether a chronic alcoholic could be jailed for being drunk in public, and the Supreme Court split five to four.

“…the hanging of a new sign—reading ‘hospital’—over one wing of the jailhouse.”

Justice Thurgood Marshall, for four justices, on what a ruling for Powell might change while treatment was so scarce · Powell v. Texas, 1968

The drunk tank

In 1962 the Supreme Court struck down a California law that made it a crime to be addicted to narcotics. To punish a man for a sickness was cruel and unusual, Justice Potter Stewart wrote for the Court: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

In 1966 two federal appeals courts ruled that a chronic alcoholic couldn’t be convicted for being drunk in public. Joe Driver, 59, of Durham County, North Carolina, had been convicted of public drunkenness “more than 200 times” and had spent nearly two-thirds of his life locked up for it. “This addiction—chronic alcoholism—is now almost universally accepted medically as a disease,” the court in Richmond wrote that January, and it ordered him freed unless the state took him in for treatment. In March the court in Washington ruled for DeWitt Easter, arrested “70 times” since 1937, that “chronic alcoholism is a defense to a charge of public intoxication.”

A presidential commission counted the cost. “Two million arrests in 1965—one of every three arrests in America—were for the offense of public drunkenness,” its report on drunkenness began in 1967, and it recommended that drunkenness “should not in itself be a criminal offense.”

Then came Leroy Powell, arrested in Austin, Texas, in December 1966. He had been convicted of public drunkenness about a hundred times since 1949. He shined shoes in a tavern and, by the dissent’s account, made “about $12 a week which he uses to buy wine.” A psychiatrist testified that a chronic alcoholic was “powerless not to drink.” The trial judge found that chronic alcoholism “is a disease which destroys the afflicted person’s will power,” and fined him $50 anyway. On June 17, 1968, the Supreme Court upheld the fine, five to four.

One of Marshall’s reasons, for four of the five, was that facilities to treat poor alcoholics “are woefully lacking throughout the country,” and that without them nothing would change but the sign over the door. In 1970 Congress passed the Hughes Act, which set up a national institute on alcoholism and gave the states money for treatment (Built-in forgetters, in People Like You, tells it), and in 1971 the commissioners who draft model state laws offered the Uniform Alcoholism and Intoxication Treatment Act. Under it, alcoholics and intoxicated persons “may not be subjected to criminal prosecution solely because of their consumption of alcoholic beverages.”

Listen A new sign About 1 minute

In the opinions

Five to four

Nine justices, three positions, and how each answered the two questions in Leroy Powell’s case: is it a disease, and can he be punished for being drunk in public?

Quoted from Powell v. Texas, 392 U.S. 514 (1968). Justice Black, joined by Justice Harlan, also wrote a concurrence; both signed Marshall’s opinion too. A filled dot is a vote to uphold the fine; an open one, a vote to overturn it.

The plurality

Marshall, writing, with Warren, Black and Harlan · upheld the fine

Is it a disease?: “Debate rages within the medical profession as to whether ‘alcoholism’ is a separate ‘disease’…”
Can he be punished?: Yes: “…appellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.”

Justice White

Concurring in the result · the fifth vote to uphold

Is it a disease?: He would not punish compulsion: “…the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk.”
Can he be punished?: This time, yes: “He made no showing that he was unable to stay off the streets on the night in question.”

The dissent

Fortas, writing, with Douglas, Brennan and Stewart · would have overturned it

Is it a disease?: The AMA’s 1956 statement “marked the acceptance among the medical profession of the ‘disease concept of alcoholism.’”
Can he be punished?: No: “Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.”

One vote

Five justices upheld the fine, but only four signed Marshall’s reasons. The fifth, Justice White, agreed that a man who couldn’t help drinking shouldn’t be punished for it, and found that Powell hadn’t shown he couldn’t stay off the street.

For a closer look

Go deeper

What was said at Leroy Powell’s trial, the two appeals courts that went the other way, and what came after.

Powell’s trial

Leroy Powell was tried first in Austin’s Corporation Court and fined $20. He appealed to the County Court at Law, where he was tried again and fined $50, the fine the Supreme Court upheld. A psychiatrist called by the defense, Dr. David Wade, called a chronic alcoholic an “involuntary drinker.” On cross-examination Powell admitted he had had one drink on the morning of the trial, and had been able to stop.

Marshall granted that there was “widespread agreement” that alcoholism is a disease, because doctors had decided to treat drinking problems. “There the agreement stops,” he wrote. “Debate rages within the medical profession” over whether alcoholism is a separate disease at all.

Driver and Easter

A federal courtroom with a raised judges’ bench, in a modern photograph. — A courtroom in the E. Barrett Prettyman courthouse in Washington, where the appeals court that decided DeWitt Easter’s case sits, photographed in 2016.Carol M. Highsmith, Library of Congress

Joe Driver had first been convicted of public drunkenness at 24. The Fourth Circuit’s Judge Albert Bryan wrote that the state “cannot stamp an unpretending chronic alcoholic as a criminal if his drunken public display is involuntary as the result of disease,” though it could hold him for treatment.

In Washington all eight judges agreed that DeWitt Easter couldn’t be convicted, but only four joined the opinion’s constitutional reasoning; others, among them Judge Warren Burger, the future Chief Justice, agreed only with the result. The court leaned on a 1947 District of Columbia law that called a chronic alcoholic “a sick person.”

After Powell

A brief in the name of Marty M.’s National Council on Alcoholism urged the Court to overturn the fine. Even so, her biographers write, the council’s Washington affiliate and others believed the decision would have gone the other way “if the national NCA office had joined the case,” and the three decisions together “generated momentum for decriminalizing chronic alcoholism.”

The Uniform Act spread through the states. By 1985, a study in the Journal of Studies on Alcohol counted thirty-four jurisdictions that had fully put its main provisions in place, and found that two of its principal goals, moving public drunks from the jails to the health system and treating them there, had been “only imperfectly achieved.”

Sources

Robinson v. California, 370 U.S. 660 (1962) (justia.com).
Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966) (openjurist.org).
Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966) (openjurist.org).
President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness. Government Printing Office, 1967 (ojp.gov).
Powell v. Texas, 392 U.S. 514 (1968), with its list of counsel and briefs (U.S. Reports, govinfo.gov; justia.com; law.cornell.edu).
National Conference of Commissioners on Uniform State Laws, Uniform Alcoholism and Intoxication Treatment Act (1971), as introduced in Maine, Legislative Document 76, 1973 (mainelegislature.org).
Peter Finn, “Decriminalization of Public Drunkenness: Response of the Health Care System,” Journal of Studies on Alcohol 46, no. 1 (1985), pp. 7–23 (abstract at nij.ojp.gov).
Sally Brown and David R. Brown, A Biography of Mrs. Marty Mann. Hazelden, 2001. Chapter 25, note 10.
City of Grants Pass v. Johnson (2024) (law.cornell.edu); Congressional Research Service, “The Eighth Amendment and Homelessness: Supreme Court Upholds Camping Ordinances in City of Grants Pass v. Johnson,” July 19, 2024 (everycrsreport.com).