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Homeless jailed frequently under 'habitual drunkard' law

Last Updated May 17, 2018 at 12:20 pm EDT

In this Tuesday, May 1, 2018 photo, attorney Mary Frances Charlton, left, talks with inmate Richard Walls during an interview at the Richmond City Jail in Richmond, Va. A federal appeals court is weighing a challenge to a Virginia law that allows police to arrest "habitual drunkards" such as Walls and send them to jail for up to a year for possessing alcohol. (AP Photo/Steve Helber)

RICHMOND, Va. – For the past six years, Richard Walls has been in jail more often than not. The longest stretch of time he’s spent outside a cell is 30 days.

Walls is not a hardened criminal, but he is what Virginia calls a “habitual drunkard,” a designation that allows police to arrest him and jail him for up to a year if he’s caught with alcohol.

The law, which dates back to the 1930s, is being challenged by the Legal Aid Justice Center, a non-profit advocacy group that provides legal services to low-income people. The group accuses state prosecutors of using it to punish homeless alcoholics. A judge dismissed the lawsuit last year, but the group appealed. The 4th U.S. Circuit Court of Appeals is weighing the case.

Virginia and Utah are the only two states with so-called interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid centre.

Under the law, prosecutors can go to court to ask a judge to declare someone a habitual drunkard. Once that happens, police can arrest that person for being publicly intoxicated, possessing alcohol, being near open containers of alcohol or even smelling of alcohol. In addition to jail time, they face fines of up to $2,500.

Walls, 48, has been locked up at least 30 times for alcohol possession since being given the “habitual drunkard” designation in 2012. He says his father was an alcoholic who was prosecuted under the same law and set him on the same path at a young age, when he would often put moonshine in his baby bottle.

“They put me in this jail to harass me,” he said in a recent interview at the Richmond City Justice Center, where he’s been jailed for the past three months.

“I never hurt anyone in my life or committed a felony,” he said.

Opponents say the law targets homeless alcoholics who have nowhere else to drink but in public. People without the habitual-drunkard designation can also be arrested for public intoxication, but they don’t face any jail time.

From 2007 to 2015, more than 1,220 people were designated as “habitual drunkards” in Virginia, according to data reported to the Virginia Department of Alcoholic Beverage Control.

The lawsuit alleges that the law criminalizes addiction and violates the 8th Amendment prohibition against cruel and unusual punishment. It also says the law violates due-process rights because the cases are brought in civil court and the defendants are not guaranteed a lawyer as they are in criminal cases.

“This criminalizes the status of being a homeless alcoholic,” said Mary Frances Charlton, the lead attorney challenging the law.

The law gives prosecutors discretion on when they can go to court and seek the “habitual drunkard” designation. It doesn’t require a specific number of alcohol-related offences.

Municipalities vary on how they enforce the law. In Virginia Beach, a coastal city that relies heavily on an economic boost from millions of tourists, the law is aggressively enforced. Between 2007 and 2015, 616 people were designated as “habitual drunkards” there, well above any other municipality in Virginia.

“They’ve essentially been ordered by the court to stay away from alcohol. It’s trying to dry them out and get them back to some sort of normalcy in their life,” Virginia Beach police Lt. Johnny Gandy said.

“Our officers would much rather do other things than this,” he said. “We hate seeing people destroy their own lives.”

In Roanoke, 140 people were dubbed “habitual drunkards” during the same time period.

“Generally, there has to be something they do that brings them to the attention of law enforcement. It’s often citizens complaining that the person has passed out or is doing something else,” said Assistant Commonwealth’s Attorney John McNeil.

Utah is the only other state that criminalizes possession of alcohol by a “habitual drunkard,” according to the Legal Aid Justice Center. But some municipalities have local ordinances that make it a crime for liquor stores, bars and taverns to sell alcohol to them.

In Aurora, Illinois, police keep a list of “habitual drunkards.” Their names and photographs are distributed to local businesses that sell alcohol. Businesses that sell alcohol to people on the list can be fined anywhere from $25 to $2,000.

“One of the big draws to Aurora is our downtown,” said Aurora police Lt. Matthew Thomas. “Having public intoxication is a deterrent to get people to come down there.

“At the end of the day, if it’s a chemical dependency, we’re offering them assistance — the medics are taking them to the hospital — but if you can make it harder for them to supply their habit, sometimes that is effective.”

The Virginia Attorney General’s Office says the state has a legitimate interest in discouraging alcohol and drug abuse.

“If Virginia could not constitutionally restrict habitual offenders from accessing alcohol, it would undermine the Commonwealth’s well-established authority to control the sale, use, and possession of alcohol,” the office argued in a legal brief.

But Charlton says the law is used to keep homeless alcoholics out of sight.

“It’s a law that is designed to warehouse people that, frankly, society would rather not have to know exist,” she said.