When punishing innocent conduct violates the Eighth Amendment: applying the Robinson doctrine to homelessness and other contextual "crimes".

• Author: Weisberg, Benno

1. INTRODUCTION

   This Comment will discuss the state of the forty-year-old constitutional principle (the so-called "Robinson doctrine") that criminally sanctioning a person's membership in a status violates the Eighth Amendment to the United States Constitution. (1) A corollary to the doctrine is that the state is free, at least under the Eighth Amendment, to punish conduct, so long as it is not punishing mere status. (2)

   Today, the Robinson doctrine is in some ways a dead letter (3) because legislatures are seemingly flee--barring non-Eighth Amendment constitutional restrictions--to criminalize any conduct they want. (4) However, the doctrine continues to be invoked by homeless litigants challenging laws that criminalize otherwise innocent conduct--such as sleeping, eating, and urinating--that becomes unlawful when performed in public, (5) and by defendants who are addicted to alcohol and who claim they are being punished for their status as alcoholics. (6) Although the laws these litigants challenge do not, as a technical matter, punish the status of homelessness or alcoholism, they do create situations in which it becomes impossible for homeless people or alcoholics not to break the law. (7) Thus, while such laws technically punish acts in accordance with Robinson, the acts they punish--particularly those targeted by laws challenged by the homeless--are often innocent, life-sustaining, and/or reflexive. (8)

   The semantic distinction between status and act is somewhat tenuous to begin with, and in the context of homelessness and chronic alcoholism, it arguably loses all meaning, since being a member of a given status may make it impossible to avoid performing certain actions. (9) However, an alternative reading of Robinson that would protect the homeless from "camping ordinances" that punish public conduct--under which reading the state would have the power to punish only volitional behavior (10)--seems to lead to a slippery slope: if we cannot punish acts that derive from status, then punishing even exceptionally culpable conduct may be considered cruel and unusual if the behavior is compulsive. (11)

   In the past decade, courts and scholars have struggled to define a principle that would prevent the state from imposing liability on the homeless for conduct like sleeping and eating in public without creating a rule that would de-criminalize conduct that is truly culpable. (12) This Comment will argue that such a principle exists. Under the Eighth Amendment, innocent conduct may be de-criminalized without decriminalizing culpable conduct if courts ignore the semantic categories of "status" and "conduct," and make objective determinations about whether targeted conduct is innocent or culpable.

   Whether conduct is innocent or culpable may seem overly vulnerable to arbitrary determination. However, this determination may be made objectively by referring to the criminal code where the challenged statute is codified. If the code criminalizes conduct in all circumstances--for instance, premeditated homicide--then that conduct is culpable. If the code criminalizes conduct only in a certain context--e.g., sleeping in public--then the conduct is innocent. (13) Of course, some innocent conduct becomes culpable in certain contexts--driving is culpable behavior when the driver is drunk-but if a person cannot avoid the context in which his innocent conduct becomes criminal conduct, he should be exempt from criminal prosecution. (14) This approach will not only yield fairer outcomes to litigants who are prosecuted for victimless conduct. It will also yield public policy benefits by compelling states and cities to address their homeless problems.

   Before proposing a new way of interpreting and applying the Robinson doctrine, this Comment will examine the history of the doctrine and its applications in a variety of legal contexts. The section immediately following will discuss the doctrinal framework--beginning with Robinson v. California--against which laws banning innocent conduct derivative of a litigant's status are challenged, and will dissect the reasoning behind the Supreme Court precedents that produced the doctrine. (15) Part III is a discussion of two recent cases involving alcoholic defendants--a homeless defendant who is a chronic alcoholic, (16) and an alcoholic who was "interdicted" by the state of Virginia and then charged with violating an interdiction order by purchasing alcohol (17)--and will examine how modern courts have applied the Robinson doctrine. (18) In both cases, the defendants' Robinson arguments were rejected. (19) The statutes at issue in these cases reveal how judicial application of the Robinson doctrine allows legislatures to rely on the criminal law to target social problems as a substitute for complex, non-punitive solutions. (20)

   Part IV will discuss two leading cases (21) involving classes of homeless litigants challenging camping ordinances. (22) These cases reveal how alternative readings of the Robinson doctrine lead to divergent outcomes, and enable courts to manipulate definitions of status and conduct. (23) Part V will discuss the policy arguments in favor of, and against, camping ordinances, and will argue that declaring these laws unconstitutional will yield public policy benefits. (24) Finally, Part VI will propose an alternative interpretation of the Robinson doctrine that will permit the State to target culpable conduct, but prevent legislatures from persecuting the homeless and other litigants who have no choice but to break the law. (25)

2. BACKGROUND

   The Eighth Amendment to the U.S. Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (26) In 1962, the Supreme Court decided in Robinson v. California that a statute making it a crime to be addicted to narcotics was cruel and unusual punishment in violation of the Eighth Amendment. (27)

   The few facts of Robinson described by the Court are unremarkable. Robinson was arrested in Los Angeles after a police officer "had occasion to examine [his] arms one evening." (28) This officer testified at Robinson's jury trial that he had "observed 'scar tissue and discoloration on the inside'" of Robinson's right arm. (29) He also testified that Robinson "admitted to the occasional use of narcotics." (30) Another police officer testified, apparently as an expert, that the marks on Robinson's arms were the result of the use of hypodermic needles to inject narcotics. (31) Robinson testified that the marks on his arm actually resulted "from an allergic condition contracted during his military service," and denied having admitted to his arresting officer that he used drugs. (32) Two witnesses corroborated his testimony. (33)

   The trial judge instructed the jury that Robinson could be convicted under the statute either for using, or being addicted to, narcotics. (34) He explained that

    [t]o be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that [it] is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. (35) 

   The jury convicted Robinson "of the offense charged." (36) Apparently, it did not return a special verdict, so whether Robinson was convicted for using or being addicted to drugs is unclear. (37) In any event, Robinson's conviction was upheld by the Los Angeles County Superior Court, which, by statute, was the ultimate state appellate avenue available to Robinson. (38)

   The United States Supreme Court reversed. (39) The Court declared that criminally sanctioning Robinson solely for his addiction was, in and of itself, cruel and unusual and analogized punishing drug addiction to punishing an illness:

    It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.... [I]n light of contemporary human knowledge, a law which made a criminal offense of such [diseases] would doubtless

   be universally thought to be an infliction of cruel and unusual

   punishment ... We cannot but consider the [California statute] as of the same category. (40)

   Robinson's holding that a person cannot be held criminally liable simply for being addicted to drugs seems straightforward. As one contemporary scholar put it, however, "Robinson raise[d] many more questions than it answer[ed]." (41) Broadly speaking, the case announced a novel constitutional principle, namely that the Eighth Amendment could be used "to limit the concept of a 'crime,'" to the point where the state, "despite its legitimate interest in suppressing and correcting a socially harmful condition, may not without violating standards of decency impose criminal sanctions." (42) That principle seemed to offer "the promise of making fault a constitutional requirement." (43) Some, however, viewed Robinson not as a "promise" but as a "portent" of judicial encroachment into the substantive (as opposed to procedural) criminal law, which was traditionally the domain of the States, and of the establishment of a "lack of self-control as a constitutional bar to punishment." (44)

   Even when the Court itself seemingly limited Robinson's holding six years after it was decided, (45) there remained--and remains--controversy over whether the case should be read broadly (i.e., requiring volition for criminal liability) or narrowly (i.e., proscribing only the direct criminalization of status). (46)

   1. EXPANDING ROBINSON BEYOND DRUG ADDICTION

      Justice Stewart wrote for the majority in Robinson, and his opinion offers some initial clues as to how the case should be read. Most significantly, Stewart's comparison of drug addiction to illness (47) remains important for three reasons. First, it clarifies the Court's...