A 'Habitual Drunkard' Law Is Keeping Homeless Alcoholics on the Streets in Virginia

This story is part of a partnership between MedPage Today and VICE News.

Bryan Manning was once arrested for being inside a Walmart where liquor happened to be sold.

Manning is one of the 16.6 million alcoholics over 18 in the United States, but because he is homeless, a legal aid center says he's been targeted by Virginia officials, who have formally labeled him a "habitual drunkard" as part of an old law that health and legal experts say is punishing him for his disease.

"Since I don't have a home, every time I go to jail, I lose what little possessions I have," the 49-year-old Manning said. These included his clothes, his state identification card and medications to treat his depression, panic attacks and social anxiety disorder. "My psychiatric medications and treatment stop when I get locked up."

For people who've been added to the list or "interdicted" under the statute — often without a lawyer present because it's a civil process, not a criminal one — possessing, buying, or consuming an alcoholic beverage becomes a misdemeanor crime punishable with a $2,500 fine and up to a year in jail. And people who've been branded habitual drunkards often don't know it until they're arrested.

Manning has been arrested more than 30 times since 2010 under this law, and has spent the majority of the last five years behind bars as a result. He used to be a construction worker until a car accident and a stroke left him disabled, with a useless arm in a sling. Alcoholism, mental illness, and suicide run in his family, too.

He is one of 4,743 people arrested as a result of the habitual drunkard law over the 10-year period ending in August 2015, according to the Legal Aid Justice Center, which this month filed a class action complaint to get rid of the law.

"Once you're interdicted… and especially if you're a homeless person addicted to alcohol, the jailhouse door is going to be completely a revolving door for you," Mary Frances Charlton, a lawyer with Legal Aid Justice Center, said. "They go to jail and sit there, waiting for a hearing a month at least. Then, they get the hearing and can be sentenced to a year in jail merely for the possession of alcohol. If you let that sink in, that's insane. This is an act that is completely legal for anyone else."

Charlton and her colleagues say their clients, who are men and women of all ages, have been arrested for non-disruptive behavior, such as sitting on a park bench next to a beer can or smelling like alcohol.

The complaint argues that the law is unconstitutional because it punishes homeless alcoholic people for having a disease: Alcoholism. It also violates their right to due process and allows arbitrary police enforcement because "habitual drunkard" is not defined.

Legal Aid Justice Center isn't trying to change the law through the legislature because it would be an "uphill battle" that would be too slow.

"Our clients are getting locked up every night," Charlton said. "They can't wait for that."

The law is attempting to use the criminal justice system to deal with a public health problem, and that once these people are jailed, they often don't have access to any kind of alcohol abuse treatment, she said.

Although alcoholism has been described as a disease as early as the 1800s, things like the Temperance Movement and the war on drugs have spurred the notion that addicts — whether to drugs or alcohol — have a choice in the matter.

"It shouldn't be controversial. It's a disease like any other disease," said Dr. Stephen Ross, who heads substance abuse and addiction programs at NYU Langone Medical Center and Bellevue Hospital in New York City, explaining that alcoholism is genetic and has distinct neurological imaging test results. "People who develop alcoholism are not drinking out of free will. They're not deciding to drink and kill themselves. They're compelled to drink even if they don't want to drink."

The American Medical Association formally designated alcoholism a disease in 1956. And it's considered a progressive neurological disease because alcohol is a neurotoxin that destroys the brain over time and leads to dementia and psychosis, Ross said.

For severe alcoholics, withdrawal seizures can set in after six hours, and delirium and tremors can begin within 48 hours, Ross said.

"Effectively locking them up without treatment is killing them," he said.

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VICE News reached out to the office of Virginia attorney general as well as the city attorneys general named as defendants in the complaint. They have not yet filed their responses in court, which is expected in the coming weeks.

Michael Herring, the city attorney general for Richmond who is named as a defendant in the complaint, told VICE News that Richmond is not a city that aggressively enforces the statute. Indeed, it interdicted nine individuals compared to Virginia Beach's 616, according to Legal Aid Justice Center.

But Herring said he was aware of one interdiction case that was enforced against a woman because they thought it would save her life. He said it was more of a behavioral health plan than a treatment plan to get her off the street when she was drunk in a dangerous part of town.

"The sector lieutenant was worried she was going to be killed," he said, explaining that the woman was given a cell phone and was able to have increased housing stability as a result of the plan. "She wasn't causing a problem for us so much as her chronic intoxication put her at risk."

"So she is held up, at least locally, as an example of how the interdiction statute can be enforced constructively," he said. "We would not be using the interdiction statute punitively. Our use of it… might be the only way that we could leverage the law to get homeless alcoholics off the street."

In November, Jerome Fordham, 44, had a different experience in Richmond. Fordham said he had been interdicted under the habitual drunkard statute and suffers from a seizure disorder. When he went to his community hospital because he injured his ankle falling down during a seizure, he was cuffed to the hospital bed and eventually jailed for smelling like alcohol. But he said he hadn't been drinking.

"How you going to lock somebody up like that without a breathalyzer to prove, to really prove it?" he said. "We ain't acting violently."

He admits he has an alcohol problem but said it's "not right" to punish people who are struggling with alcoholism by jailing them. When he goes to jail and there's no treatment offered, he starts to suffer from withdrawal symptoms and begins to sweat. Then, he craves water and doesn't want to eat.

"You can have my tray if you give me your water," he remembers saying to another inmate regarding his food.

Though he's been homeless, he also had an apartment and lost it as a result of being arrested so many times. Now, he's living in a boarding house and says he has been able to stay on his seizure medications and avoid alcohol, but there's no clear way to get the habitual drunkard label removed, Charlton said.

Wendy Mariner, a Boston University School of Law and School of Public Health professor, said there's a long history of criminalizing addiction and vagrancy in the United States, though a 1962 Supreme Court ruling determined that governments couldn't criminalize addiction, but they could criminalize acts that addicted people engaged in, such as public drunkenness.

"It was a way to get people off street that the public didn't want to see," she said.

It can take the law a long time to catch up to science and medicine, but oftentimes, antiquated laws are simply not enforced, Mariner said. For instance, in Massachusetts, where it's still a crime to possess heroin, police officers aren't hauling addicts off to jail. Instead, they're taking them to treatment centers.

She said the existing habitual drunkard law doesn't seem like a solution to getting homeless alcoholics off the streets.

"It in many ways, it makes it a crime for the person to exist," Mariner said. "There's no place to go."

Follow Sydney Lupkin on Twitter: @slupkin