                                          PUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                          No. 17-1320


BRYAN MANNING; RYAN WILLIAMS; RICHARD DECKERHOFF;
RICHARD EUGENE WALLS,

               Plaintiffs - Appellants,

v.

DONALD CALDWELL, Commonwealth’s Attorney for the City of Roanoke;
MICHAEL NEHEMIAH HERRING, Commonwealth’s Attorney for the City of
Richmond,

               Defendants - Appellees,

------------------------------

NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY,

               Amicus Supporting Appellant.



Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Glen E. Conrad, District Judge. (7:16-cv-00095-GEC)


Argued: January 24, 2018                                    Decided: August 9, 2018


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Niemeyer joined. Judge Motz wrote an opinion concurring in the judgment.
ARGUED: Jonathan Lee Marcus, SKADDEN, ARPS, SLATE, MEAGHER & FLOM,
LLP, Washington, D.C., for Appellants. Trevor Stephen Cox, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON
BRIEF: Mark D. Young, Maureen A. Donley, Donald P. Salzman, Theodore M. Kneller,
Shekida A. Smith, Daniel B. O’Connell, SKADDEN, ARPS, SLATE, MEAGHER, &
FLOM, LLP, Washington, D.C.; Mary Frances Charlton, Angela Ciolfi, Elaine Poon,
LEGAL AID JUSTICE CENTER, Charlottesville, Virginia, for Appellants. Mark R.
Herring, Attorney General, Matthew R. McGuire, Assistant Solictor General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Eric S. Tars, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY,
Washington, D.C.; Richard P. Bress, Andrew D. Prins, George C. Chipev, Ryan C.
Grover, LATHAM & WATKINS LLP, Washington, D.C., for Amicus Curiae.




                                       2
WILKINSON, Circuit Judge:

       Virginia law criminalizes the possession, purchase, or consumption of alcohol by

someone who has been interdicted by a Virginia court. Interdiction is a civil order

designating that a person is a “habitual drunkard” or has been convicted of driving while

intoxicated. In this case, a group of homeless people suffering from alcoholism

challenged the constitutionality of Virginia’s interdiction statute under the Eighth

Amendment’s prohibition on criminalizing status, and the Fourteenth Amendment’s

guarantee of Due Process and Equal Protection. The district court dismissed the suit,

concluding that the statutory scheme criminalizes acts rather than status, affords adequate

process, and implicates no suspect class. We agree with appellants that states must tread

carefully to avoid criminalizing status. But for the reasons that follow, we affirm.

                                             I.

       Virginia regulates the consumption, purchase, manufacture, and sale of alcohol

through a series of interconnecting provisions found in Title 4.1 of the Virginia Code.

       Under § 4.1-333, a Virginia court may, “after a hearing upon due notice,” issue a

civil interdiction order to any person who “has been convicted of driving any automobile,

truck, motorcycle, engine or train while intoxicated or has shown himself to be an

habitual drunkard.”

       An interdicted person is subject to several restrictions on his conduct. Section 4.1-

322 makes it a Class 1 misdemeanor for an interdicted person to “possess any alcoholic

beverages” or to “be drunk in public” in violation of another statutory provision. Section

4.1-305 similarly makes it a Class 1 misdemeanor for an interdicted person (or someone


                                             3
under 21 years of age) to “consume, purchase or possess, or attempt to consume,

purchase or possess, any alcoholic beverage,” except in certain statutorily exempt

circumstances such as the use of medicines containing alcohol.

       In Virginia, a Class 1 misdemeanor is punishable by “confinement in jail for not

more than twelve months and a fine of not more than $2,500, either or both.” Va. Code

Ann. § 18.2-11 (2014). Any defendant charged with a Class 1 misdemeanor must be

informed of his right to counsel, and “shall be allowed a reasonable opportunity to

employ counsel,” or, if indigent, to obtain court-appointed counsel. Va. Code Ann. §§

19.2-157, 19.2-159 (2015).

       Appellants are four homeless men who were interdicted and later prosecuted for

using or possessing alcohol. Bryan Manning was interdicted on October 5, 2010, in the

Circuit Court for the City of Roanoke. Ryan Williams was interdicted on February 7,

2012, in the Circuit Court for the City of Roanoke. Richard Deckerhoff was interdicted

on August 21, 2009, in the Circuit Court for the City of Petersburg. And Richard Eugene

Walls was interdicted on June 12, 2012, in the Circuit Court for the City of Richmond.

Each has been prosecuted at least eleven times for violating the alcohol restrictions

resulting from his interdiction order.

       Appellants filed suit in the United States District Court for the Western District of

Virginia. The complaint, brought on behalf of a putative class of “all persons in Virginia

who are homeless and who suffer from alcoholism,” sought declaratory and injunctive

relief against Roanoke Commonwealth’s Attorney Donald Caldwell, Richmond

Commonwealth’s Attorney Michael Herring, and “all Virginia Commonwealth’s


                                             4
Attorneys with the authority to enforce the Interdiction Statute against homeless

individuals suffering from alcoholism.” J.A. 28, 30. It alleged that Virginia Code §§ 4.1-

333, 4.1-305, and 4.1-322 imposed cruel and unusual punishment by criminalizing the

status of alcohol addiction; deprived plaintiffs of Due Process by converting the first step

of a criminal proceeding into a civil proceeding; and violated Equal Protection by treating

homeless alcoholics differently from non-homeless alcoholics.

         The district court dismissed the suit for failure to state a claim. With regard to the

Eighth Amendment challenge, the court concluded that possession or consumption of

alcohol “is an act, regardless of whether that possession or consumption is in public or in

the confines of [one’s] own home,” and therefore the statute’s application to plaintiffs did

not criminalize their status. J.A. 83. As to the Due Process claim, the court was “not

convinced that plaintiffs have pled facts demonstrating that the civil interdiction hearings

deprive them of their physical liberty,” and therefore found no constitutional defect in the

process afforded by the statute. Id. at 85. Finally, with regard to the Equal Protection

claim, the court found no discriminatory intent, no fundamental right, and no protected

class to outweigh the Commonwealth’s legitimate interest in discouraging alcohol abuse.

         This appeal followed. We review de novo a district court’s grant of a motion to

dismiss. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.

2011).

                                               II.




                                               5
       We first consider whether Virginia’s interdiction statute, § 4.1-333, qualifies as

cruel and unusual punishment because it criminalizes appellants’ status as homeless

alcoholics in violation of Robinson v. California, 370 U.S. 660 (1962).

       The Eighth Amendment states that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

Amend. VIII. In addition to “limit[ing] the kinds of punishment that can be imposed on

those convicted of crimes,” and “proscrib[ing] punishment grossly disproportionate to the

severity of the crime,” the Eighth Amendment also “imposes substantive limits on what

can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667

(1977).

       In Robinson v. California, the Supreme Court recognized one such substantive

limit by holding that states could not declare someone a criminal simply on account of his

status. 370 U.S. at 666-67 (1962). The Court was considering a California law that made

it a misdemeanor “to be addicted to the use of narcotics.” Id. at 660 (citing Cal. Health

and Safety Code § 11721). The statute did not require proof that an alleged drug addict

had actually used or possessed drugs, but only that he was in fact a drug addict. Because

a “person may be continuously guilty of this offense, whether or not he has ever used or

possessed any narcotics within the State, and whether or not he has been guilty of any

antisocial behavior there,” the Court invalidated the California law as cruel and unusual

punishment. Id. at 666.

       The Robinson court was careful to note that the “broad power of the State to

regulate the narcotic drugs traffic within its borders” was not at issue. Id. at 664. Indeed,


                                             6
a “State might impose criminal sanctions, for example, against the unauthorized

manufacture, prescription, sale, purchase, or possession of narcotics” because those

things constitute punishable conduct, not status. Id. The Court in Robinson thus

considered and rejected the possibility that its holding could be read to prevent states

from criminalizing the “purchase, sale, or possession” of contraband. Because the holding

of Robinson is so emphatic on this point, it is worth quoting the relevant paragraph in

full:

        The broad power of the state to regulate the narcotic drug traffic within its
        borders is not here in issue. More than forty years ago, this Court explicitly
        recognized the validity of that power: There can be no question of the
        authority of the state in the exercise of its police power to regulate the
        administration, sale, prescription and use of dangerous and habitforming
        drugs. The right to exercise this power is so manifest in the interest of the
        public health and welfare, that it is unnecessary to enter upon a discussion
        of it beyond saying that it is too firmly established to be successfully called
        in question.

Id. at 664 (quotations and alterations omitted).

        The Supreme Court revisited the distinction between conduct and status in Powell

v. Texas, 392 U.S. 514, 514 (1968). In that case, an alcoholic challenged the

constitutionality of a Texas law prohibiting public drunkenness on the ground that his

status as an addict compelled him to violate the statute. In a divided opinion, the Supreme

Court upheld the Texas law. Id. A four-justice plurality found that it was not the lack of

volition on the part of the offender, but the lack of any conduct whatsoever, that had

created a constitutional infirmity in Robinson, and that no such defect existed in the

Texas law. Id. at 533 (“[C]riminal penalties may be inflicted only if the accused has

committed some act, has engaged in some behavior, which society has an interest in


                                              7
preventing, or perhaps in historical common law terms, has committed some actus

reus.”).

       Justice White, who cast the decisive fifth vote, wanted to leave open the question

of whether conduct compelled by addiction might be protected under Robinson. But

because Powell “made no showing that he was unable to stay off the streets on the night

in question,” Justice White voted to uphold the conviction on the ground that Powell’s

behavior involved a volitional act. Id. at 553-54. Justice White wrote that it was

“unnecessary to pursue at this point the further definition of the circumstances or the state

of intoxication which might bar conviction of a chronic alcoholic for being drunk in a

public place.” Id. at 553.

       Appellants argue that Justice White’s opinion in Powell requires this court to hold

that Virginia’s statutory scheme imposes cruel and unusual punishment because it

criminalizes their status as homeless alcoholics. Specifically, appellants contend that

because they face an irresistible compulsion to drink, they had no choice but to yield to

their compulsion and consume alcohol in violation of the law. But that is not Powell’s

holding. As Judge Wilkey wrote more than forty-five years ago, “the interpretation that

Robinson held that it was not criminal to give in to the irresistible compulsion of a

‘disease[]’ weaves in and out of the Powell opinions, but there [was] definitely no

Supreme Court holding to this effect.” Moore v. United States, 486 F.2d 1139, 1150

(D.C. Cir. 1973) (en banc) (plurality opinion). Indeed, Justice White himself nowhere

suggested that Powell provided the occasion for a broad holding of any nature, much less

a platform for a declaration that Robinson was no longer good law or had been


                                             8
overturned. Powell, 392 U.S. at 553 (White, J. concurring in the result) (“For the

purposes of this case, it is necessary to say only that Powell . . . made no showing that he

was unable to stay off the streets on the night in question.”). The dissenters in Powell in

fact sought an extension of Robinson along the lines of what our colleague advocates

today, id. at 567 (Fortas, J. dissenting, joined by Douglas, Brennan, Stewart, JJ.), but

Justice White did not join them.

       In fact, in the fifty years since the Supreme Court decided Powell, there has been a

large chorus of circuit opinions—including in this court, Fisher v. Coleman, 639 F.2d

191 (4th Cir. 1981)—upholding state laws criminalizing acts that were allegedly

compelled. For instance, the Seventh Circuit held that an alcoholic who violated the

terms of his parole by consuming alcohol “was not punished for his status as an alcoholic

but for his conduct. Therefore, his claim for cruel and unusual punishment fails.” United

States v. Stenson, 475 Fed.Appx 630, 631 (7th Cir. 2012) (“Under Powell, punishment

for unlawful conduct resulting from alcoholism is permissible.”); see also Joshua v.

Adams, 231 Fed.Appx. 592, 594 (9th Cir. 2007) (“Joshua also contends that the state

court ignored his mental illness [schizophrenia], which rendered him unable to control his

behavior, and his sentence was actually a penalty for his illness. . . . This contention is

without merit because, in contrast to Robinson, where a statute specifically criminalized

addiction, Joshua was convicted of a criminal offense separate and distinct from his

“status” as a schizophrenic.”); Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir.

2000) (“A distinction exists between applying criminal laws to punish conduct, which is

constitutionally permissible, and applying them to punish status, which is not.”); United


                                             9
States v. Benefield, 889 F.2d 1061, 1064 (11th. Cir. 1989) (“The considerations that make

any incarceration unconstitutional when a statute punishes a defendant for his status are

not applicable when the government seeks to punish a person’s actions.”). Our concurring

colleague chides these decisions upholding the criminalization of various acts for their

brevity. See Concurring Op. at 30 n.1. But brevity can serve as an indication that courts

have simply found the resolution of this issue to be plain and straightforward.

       The Powell decision, as we earlier noted, was a 4-1-4 decision. In United States v.

Hughes, decided earlier this year, the Supreme Court found that it was “unnecessary to

consider” its holding in Marks that the lower federal courts should follow the narrowest

rationale for the holding that received five votes. No. 17–155, slip op. at 3, 584 U.S. ____

(2018) (discussing Marks v. United States, 430 U.S. 188, 193 (1977)). To the extent that

post-Powell decisions have relied upon the plurality opinion in Powell, they have

overextended themselves in doing so. There was no majority holding that nonvolitional

conduct could invariably be criminalized. But again, as Judge Wilkey noted, neither was

there any holding that Robinson or the status-act distinction was overturned. In the

absence of such a ruling and any sort of clear signal from the Supreme Court that

Robinson no longer remains good law, we think ourselves bound to respect that decision

until some clearer and more definitive guidance emerges. Those who see in the Powell

decision a fulsome embrace or a wholesale repudiation of Robinson are simply pushing

the matter too far.

       What we are left with, then, is simply a matter of fact. And as a matter of fact, for

the past fifty years courts have consistently affirmed Robinson’s basic holding: although


                                            10
states may not criminalize status, they may criminalize actual behavior even when the

individual alleges that addiction created a strong urge to engage in a particular act. In

doing so, courts have respected the Supreme Court’s admonition that Robinson not be

interpreted to undercut longstanding drug and alcohol laws. See Robinson, 370 U.S. at

664 (affirming that states could continue to criminalize the “sale, purchase, or possession

of narcotics.”). To the extent that these courts have relied upon Powell to reach this

decision, they have erred in doing so. To the extent, however, that they discerned that

Robinson had not been overturned, they were not wrong.

       In concurrence, our colleague would go beyond both Robinson and those portions

of Justice White’s opinion in Powell that were necessary to the result, instead developing

a new constitutional rule from those issues that Justice White explicitly deemed

“unnecessary to pursue” in the case. Powell, 392 U.S. at 553. Under our colleague’s new

rule, the Eighth Amendment would prevent the criminalization of conduct that is

“proximate[ly]” caused by “[non]volitional acts.” Concurring Op. at 28. It has been

almost 60 years since Robinson and 50 years since Powell were handed down. If the view

of our concurring colleague had been adopted, there would presumably be some evidence

during the long stretch of time since Robinson that some court had done so. Our

colleague, however, is met with a dearth of authority, and she references no other circuit

court that agrees with so far-reaching an Eighth Amendment view. The one circuit

opinion she does reference was later vacated. Jones v. City of Los Angeles, 444. F3d 1118

(9th Cir. 2006), vacated as moot following settlement, 505 F.3d 1006 (9th Cir. 2007). See

J.A. 78 (citing Lehr v. City of Sacramento, 624 F. Supp. 2d 1218, 1225 (2009) (“This


                                            11
Court finds that, though the Jones opinion is informative, it is not binding, and the Court

will limit the weight given the decision accordingly.”); Anderson v. City of Portland, No.

08–1447–AA, 2009 WL 2386056, at *7 (D. Or. July 31, 2009) (“Ultimately, I part

company with the reasoning employed by Jones.”)).

       The small smattering of other authority that the concurrence references are not

only in a distinct minority, but also deal with a different question from the one presented

here, namely the impossibility of controlling a bodily function. See Concurring Op. at 30

(citing Pottinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992) (“For

plaintiffs, resisting the need to eat, sleep or engage in other life-sustaining activities is

impossible.”)). This is simply different from the concept of compelled behavior that our

colleague espouses. So yet again, the question for us is whether we should permit a 4-1-4

opinion that is at most ambiguous to overturn or greatly extend a longstanding and widely

recognized Supreme Court opinion that the Court itself has never seen fit to repudiate or

otherwise disavow. It is in the end a matter of respecting both the Supreme Court’s

authority to overturn its own decisions, see Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989) (“[T]he Court of Appeals should . . . leav[e] to

this Court the prerogative of overruling its own decisions.”), and the limits of a circuit

court’s authority to find circuitous routes around higher controlling precedent.



                                            III.

                                             A.




                                             12
          Consistent with the above discussion, it is the act of possessing alcohol—not the

status of being an alcoholic—that gives rise to criminal sanctions. Virginia has been

careful to draft a statutory scheme that falls on the constitutional side of the line drawn in

Robinson. The interdiction provision set forth in § 4.1-333 is a civil enactment. An

interdiction order is not accompanied by imprisonment or a punitive fine. The Eighth

Amendment’s prohibition on “cruel and unusual punishment” has obvious criminal

purposes. A provision that puts a person on notice that future acts may result in criminal

sanctions does not criminalize status for the simple reason that it does not criminalize

anything. It is the other Virginia provisions, not § 4.1-333, that impose criminal

sanctions.

          While criminal prohibitions do come into play in §§ 4.1-322 and 4.1-305, those

prohibitions apply only to affirmative acts: to “possess any alcoholic beverages” or to “be

drunk in public,” and to “consume, purchase or possess, or attempt to consume, purchase

or possess, any alcoholic beverage.” Appellants were arrested on the basis of committing

these acts. That stands in stark contrast to the statute at issue in Robinson, under which a

defendant could be charged even if he had never “used or possessed narcotics.” 370 U.S.

at 666.

          We emphasize what we hope would be obvious: it would be unlawful for the state

to simply round up “undesirable” persons based on their perceived status as addicts or

drunkards. Cf. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). It is inimical to

personal liberty to bring criminal charges on the basis of who someone is. For that

reason, there must be some behavioral link set forth in the law. But Virginia has been


                                             13
careful to observe that line. It has prohibited individuals deemed at a higher risk of

alcohol abuse from possessing or consuming alcohol. This includes not only habitual

drunkards, but also people who have been convicted of drunk driving and those under

twenty-one. See § 4.1-305.

                                             B.

       To accept appellants’ claim that there is no difference between alcohol addiction

and the act of consuming alcohol would threaten to change the character of criminal law

as we know it. Such a position has no plain limiting principle.

       We do not state this lightly. It is wise not to accept casually every “slippery slope”

or “open-the-floodgates” argument that comes along. But in this case the potential

breadth of the principle espoused by appellants is apparent. Every criminal act can be

alleged to be the result of some compulsion. If human behavior is viewed as something

over which human beings lack control, and for which they are not responsible, the

implications are boundless. The examples extend beyond the discrete context of

substance addiction. For instance, child molesters could challenge their convictions on

the basis that their criminal acts were the product of uncontrollable pedophilic urges and

therefore beyond the purview of criminal law. See Kansas v. Hendricks, 521 U.S. 346,

362 (1997) (upholding a sex offender statute where the law in question defined sex

offenders as “suffering from a ‘mental abnormality’ or a ‘personality disorder’ that

prevents them from exercising adequate control over their behavior”). The same could be

said not only of sex offenders, but of stalkers, domestic abusers, and others driven by

impulses they were allegedly powerless to check.


                                             14
       That is not to say that the criminal justice system is or should be unaware of the

mitigating character of allegedly nonvolitional conduct. The criminal justice system

already has in place numerous features designed to mitigate nonvolitional conduct,

among them mens rea requirements (willfully, knowingly); affirmative defenses such as

provocation, self-defense, and in extreme cases insanity; and of course sentencing

proceedings where any nonvolitional characteristic or circumstance can be appraised by a

sentencing judge. Those approaches to nonvolitional conduct often rely upon various

combinations of legislative and judicial input, and they are more sensitive and balanced

than the constitutional theory appellants propound in the instant case.

                                             C.

       Other features of the Virginia law likewise suffer no constitutional infirmity.

Targeting alcohol abuse as Virginia has done is a prophylactic measure. It was

permissible for the Commonwealth to regard the acts of purchasing or consuming alcohol

as something that could lead persons with a history of heavy drinking to dangerous

driving, domestic abuse, and sexual assault, among other criminal acts. The Virginia

statutes affect rich and poor alike. They apply to a wide swath of society.

       The use of prophylactic measures to sanction relatively minor acts in order to

forestall more serious criminal misconduct is hardly uncommon. Many statutory schemes

adopt a two-step approach: first, a civil or criminal determination identifies certain people

more likely to commit serial or grave offenses. Second, that determination imposes

criminal sanctions on what might seem to be relatively minor infractions in order to head

off more harmful behavior. For example, the Sex Offender Registration and Notification


                                             15
Act (SORNA) requires federal sex offenders to notify the states where they live and work

of their prior conviction. See 34 U.S.C. § 20913. Once the prior conviction has

established that a person poses a social risk, his mere failure to register can give rise to

criminal liability. Id. In that way, SORNA uses criminal law to ensure that sexual

offenders cannot fly under the radar. Similarly, federal criminal law prohibits otherwise

routine firearms purchases by individuals who have been found by a court in a civil

proceeding to be mentally incompetent. Such restrictions reduce the risk those people

pose to themselves and to others. See 18 U.S.C. §§ 922(g)(4) and 924(a)(2). By the same

token, a domestic abuser who violates a civil Temporary Restraining Order can be subject

to criminal contempt proceedings. See, e.g., Va. Code 19.2-152.10, et seq. Once someone

is found to pose a risk to his spouse or child, the simple act of coming within a certain

distance of the protected persons or their home can give rise to criminal liability. Again,

in this way, sanctioning a small act serves as a prophylactic measure designed to prevent

the commission of a more serious crime.

       Virginia’s alcohol laws adopt precisely this approach. In fact, the very mechanism

by which the state deters alcohol abuse by minors involves the criminalization of acts that

are generally legal for the adult population. The same statute that prohibits interdicted

people from possessing or consuming alcohol also applies to people who are under

twenty-one. See Va. Code § 4.1-305. All of these laws have one thing in common: they

apply milder sanctions to less serious infractions such as possession or failure to register

in order to reduce the risk of grave misconduct involving sexual predation, gun violence,

or fatal accidents on the road.


                                            16
       Appellants, however, criticize Virginia’s approach for its alleged selectivity. They

argue first that Title 4.1 singles out homeless people. While this contention sounds more

in the nature of a disparate impact equal protection claim than an Eighth Amendment

one, see infra section V, it is also incorrect. The statutory scheme addresses the problem

of drunkenness in its totality. The criminal prohibitions against possessing, purchasing, or

consuming alcohol apply both outside and inside a person’s home. They apply whenever

a non-homeless person leaves home to drive somewhere or attend a party or go to a sports

bar.

       Our concurring colleague takes a different position, arguing that a statute is fatally

selective if it criminalizes “otherwise legal behavior” for a subset of the population. On

this view, the legislature can only prohibit acts when the law would “lead to criminal

liability for everyone who commits them.” Concurring Op. at 34-35. Such a limitation is

both wholly lacking in authority and ignores the valid reasons why prohibitions apply to

some population cohorts and not to others. The reason is simply this: past actions have

given rise to present and future risks. To say that a state acts impermissibly on this basis

would be an astonishing proposition, and prohibit legislative bodies from making the

altogether practical assessment of risky behaviors that is entirely within the legislative

prerogative. Such risk assessment has commonly led to limits on the uses of automobiles,

firearms, alcohol and the like in order to lessen recognized social harms. The fact that

these legislative judgments result in additional burdens for some groups, such as sex

offenders, felons, or minors, does not change the Eighth Amendment analysis. To find

otherwise would be to do with the Eighth Amendment what the Equal Protection Clause


                                             17
wisely does not, and that is to make suspect classes out of all groups who pose special

and heightened risks to the community. See infra Part V.

       Appellants also allege police misconduct in the execution of this particular

statutory scheme. However, this challenge seems more appropriately addressed through

the Fourth Amendment. If there were arrests based on undesirable status and divorced

from any behavioral link, such police behavior would run afoul of that amendment. In

this sense, the Fourth and Eighth Amendments occupy distinct but supplementary

domains. The Fourth Amendment requires probable cause to undertake an arrest or

search, which means probable cause to believe a forbidden act, as required by the Eighth

Amendment, has been committed. The concurrence maintains that homeless alcoholics

have been arrested “simply because of their presence in a Walmart or near a discarded

beer can.” Concurring Op. at 37. If that truly is all there is, there would be no probable

cause for an arrest, but appellants decline to press their case under any Fourth

Amendment theory. The appropriate tonic for police overreach is exclusion of evidence

or a civil suit under 42 U.S.C. § 1983 and not, as appellants urge, driving a stake through

an entire statutory scheme.

                                            D.

       To say that Virginia’s approach, as described above, is unconstitutional thus not

only misreads its purpose, but also engages in policy choices reserved largely for

legislatures and substantially for the states. The reason for legislative responsibility for

defining substantive criminal prohibitions is fundamental; the criminal law exists to

protect the safety of citizens, and ensuring the safety of the people is one of those things


                                            18
government exists to do. State legislatures thus have considerable latitude under their

police power to address societal ills, and substantive criminal law has historically been

reserved to them. What behavior to criminalize is not an exclusive state responsibility,

but it is a core one. See Rachel E. Barkow, Our Federal System of Sentencing, 58 STAN.

L. REV. 119, 119 (2005) (“The federal system of the United States is based on the

bedrock premise that the states bear primary responsibility for criminal justice policy.”).

States have a variety of tools with which to approach persistent social ills. The most

thoughtful approaches are often the product of democratic input, expert opinion,

cumulative experience, and simple trial and error. That is why the Eighth Amendment

typically focuses on conditions of confinement, and inhumane forms and disproportionate

lengths of punishment, rather than acting as a vehicle to reshape policy choices embedded

within substantive criminal laws. See Sanford H. Kadish, Fifty Years of Criminal Law:

An Opinionated Review, 87 CAL. L. REV. 943, 964-66 (1999).

       There is, when all is said and done, a balance to be struck. States cannot ignore the

line between status and acts. The criminal law and the constitutional limitations within

which it operates are founded on the premise that human dignity is universal, and arrests

and punishments alike are indefensible when based on who people are rather than what

they do. It is a basic transgression on American liberty to brand someone a criminal and

then prosecute that person without any underlying criminal conduct. And it is the practice

of totalitarian regimes, not our free society, to substitute a personal characteristic for a

prohibited act.




                                            19
       But it is also important not to hamstring a state’s use of criminal prohibitions to

protect its citizenry. Here, as noted, Virginia has opted to approach the problem of

alcohol abuse prophylactically and prescriptively. The prophylactic prong is reflected in

§ 4.1-333. The interdiction order is a preventive tool. The state can use this sort of

prophylactic device to identify those at the highest risk of alcohol problems and put them

on notice that subsequent behavior may be subject to punishment. It is not

constitutionally impermissible for the state to proceed in this manner so long as the line

between status and act is scrupulously observed.

                                           IV.

       We next consider whether the interdiction provision, Virginia Code § 4.1-333,

violates appellants’ Fourteenth Amendment right to Due Process. Appellants argue that

despite their nominally civil character, interdiction proceedings must afford criminal

protections such as appointed counsel and be governed by the reasonable doubt standard

because criminal sanctions against an interdicted homeless alcoholic are “inevitable.”

Opening Br. of Appellant at 38.

       Due Process guarantees an indigent defendant the right to appointed counsel when

the nature of a civil or criminal proceeding is such that “if he loses, he may be deprived

of his physical liberty.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S.

18, 27 (1981). Due Process also requires that every element of a crime be proved beyond

a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970).

       Neither of these requirements applies to Virginia’s interdiction provision.

Interdiction alone carries no threat of imprisonment. The fact that it may “provide a basis


                                            20
for . . . subsequent prosecution” does not “bring[] an immediate and automatic loss of

liberty.” Ferguson v. Gathright, 485 F.2d 504, 506 (4th Cir. 1973). An interdicted person

loses only the legal right to purchase, possess, or consume alcohol. There is no

constitutionally protected liberty or property interest in such a right. See Collins v. Hall,

991 F. Supp. 1065, 1071-72 (N.D. Ind. 1997) (rejecting a Due Process challenge to a

habitual drunkard statute because the plaintiff did not “suffer[] a deprivation of a liberty

interest protected by the federal constitution”). Appellants possess an understandable

interest in not being labeled “habitual drunkards.” But the Supreme Court has been

careful to leave redress of reputational injuries to state law. See Paul v. Davis, 424 U.S.

693, 701 (1976) (The Fourteenth Amendment is not “a font of tort law to be

superimposed upon whatever systems may already be administered by the States.”). With

no constitutionally protected interest at stake, the right to counsel cannot attach to an

interdiction proceeding.

       As for proof beyond a reasonable doubt, it suffices to reiterate that interdiction is

not a criminal proceeding. Appellants’ argument elides interdiction with subsequent

prosecutions. But these are legally distinct proceedings rooted in separate statutory

provisions. The notice and hearing provided in § 4.1-333 satisfies the process that is due

in the civil context. See Plumer v. Maryland, 915 F.2d 927, 931 (4th Cir. 1990). And

appellants do not point to any evidence that Virginia afforded them anything less than the

full panoply of procedural protections in their subsequent criminal prosecutions.

                                             V.




                                             21
       Finally, we consider whether the interdiction provision violates appellants’

Fourteenth Amendment right to Equal Protection under the law. Appellants argue that the

statute violates this principle by “intentionally treating . . . homeless alcoholics

differently from non-homeless alcoholics,” and that this discriminatory treatment

mandates strict scrutiny. Opening Br. of Appellants at 45.

       When faced with an Equal Protection challenge, the great majority of legislative

enactments are subject to rational basis review. That is, we ask whether the law is

rationally related to some legitimate government interest. See, e.g., Star Sci. Inc. v.

Beales, 278 F.3d 339, 351 (4th Cir. 2002). Only those laws that implicate a fundamental

constitutional right or employ a suspect classification—typically some immutable

characteristic such as race or sex—receive heightened scrutiny. See City of New Orleans

v. Dukes, 427 U.S. 297, 303 (1976). (“Unless a classification trammels fundamental

personal rights or is drawn upon inherently suspect distinctions such as race, religion, or

alienage, our decisions presume the constitutionality of the statutory discriminations and

require only that the classification challenged be rationally related to a legitimate state

interest.”).

       There is no fundamental right or suspect class at issue here. The freedom to drink

alcohol is not “implicit in the concept of ordered liberty such that neither liberty nor

justice would exist if [it] were sacrificed.” See Washington v. Glucksberg, 521 U.S. 702,

720-21 (1997) (internal quotation marks omitted). And while their plight is worthy of

both understanding and compassion, those afflicted with alcohol addiction and who lack

permanent housing are not a suspect class for Equal Protection purposes. See Mitchell v.


                                            22
Comm’r of the SSA, 182 F.3d 272, 274 (4th Cir. 1999) (“Alcoholics are neither a suspect

nor a quasi-suspect class for purposes of equal protection analysis.”); Joel v. City of

Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000) (“Homeless persons are not a suspect

class.”). Even more fundamentally, Virginia’s interdiction statute does not single out

homeless alcoholics for different treatment. That it may disproportionately affect one

group over another, as innumerable statutes do, does not make for unconstitutional

discrimination.

       Having established that the interdiction statute need only satisfy rational basis

review, we can promptly conclude the inquiry. Virginia has a legitimate interest in

discouraging alcohol abuse and its attendant risks to public safety and wellbeing. We pass

no judgment on the general wisdom of interdiction. But it cannot be said that identifying

those at the greatest risk for alcohol abuse and restricting their ability to possess the

object of that abuse lacks rationality.

                                            VI.

       It is clear that the Virginia interdiction statute meets with disfavor in the eyes of

our fine concurring colleague. In her view, the legislature’s enactment of criminal

sanctions is the wrong “policy decision[],” and the General Assembly would do well to

consult studies “show[ing] that methods focused on treatment, rather than deterrence, are

more effective. . . .” Concurring Op. at 36. The concurrence goes to great lengths to

inform the legislature of the “many methods available to Virginia” in this endeavor. It

suggests that the state pursue “civil” statutes,    “prioritize treatment and establish a

program of compulsory treatment” for addicts, offer “public health education,” or simply


                                            23
enact “laws to ameliorate the economic and social conditions” surrounding alcohol abuse.

Id. Taken together, these suggestions do no less than tell the state how to calibrate

deterrence and rehabilitation, manage budgetary resources, and structure their local

economies. As such, it is appropriate that they are directed to the policymakers of the

state rather than the litigants in this case. We need not dispute our colleague’s ideas, nor

pass on their merits. What they represent in their totality is a commandeering and

assumption of the legislative role. This conclusion is justified only by the statement that

addictions are illnesses. See id. at 33. The Commonwealth does not, however, punish the

illness. It instead targets what takes place when the illness manifests itself in conduct

harming or potentially harming other persons.

       A parting recapitulation is in order. As the foregoing indicates, appellants’

position suffers from multiple infirmities. As an initial matter, the desire to remove

unspecified acts from the purview of criminal law flies in the face of the distinct and

emphatic language of the Robinson opinion, which indicates that individual actions, as

opposed to personal status, remain fair subjects for the legislative contemplation of

criminal sanctions. Not only are the words of the Supreme Court disregarded, but the

settled legal landscape that for more than half a century has reinforced their relevance.

       As noted, appellants’ position undermines the basic premise of the criminal law

that individuals may indeed bear responsibility for their own actions, even as appellants

overlook the considerable measures that our justice system has taken to soften the

sanctions and mitigate the hardships of allegedly nonvolitional conduct.




                                             24
       Thirdly, appellants’ position is a simple affront to our federal system, as it seeks to

displace with a single constitutional edict the latitude that the 50 states have long been

given to address persistent social ills associated with drug and alcohol abuse.

       It is not often that a position operates to visit structural and institutional harms

through the preemption of state and legislative authority, the disregard of higher

precedent and the erosion of the most basic precepts of the criminal law. Any one of

these flaws would be serious. Altogether, they are more than severe. The judgment of the

district court is hereby affirmed.

                                                                                  AFFIRMED




                                             25
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:

       More than fifty years ago, the Supreme Court held that the Eighth Amendment

prohibits punishing a person for being addicted to narcotics. Robinson v. California, 370

U.S. 660 (1962). This was so because “narcotics addiction is an illness,” and a state

cannot punish a person for an illness. Id. at 667. The Robinson Court also explained, as

the government there recognized, that just as a “narcotics addict” is “in a state of mental

and physical illness,” “[s]o is an alcoholic.” See id. at 667 & n.8. In the case at hand,

homeless alcoholics challenge a statutory scheme that criminalizes their illness — being

addicted to alcohol. Absent binding circuit precedent, I would hold that they, like the

defendant in Robinson, have alleged an Eighth Amendment violation.



                                            I.

       Although a state has the power to punish, the Eighth Amendment mandates that it

exercise this power “within the limits of civilized standards.” Kennedy v. Louisiana, 554

U.S. 407, 436 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)

(internal quotation marks omitted)). Thus, the Eighth Amendment restricts the kinds of

punishment that can be executed and “imposes substantive limits on what can be made

criminal.” Ingraham v. Wright, 430 U.S. 651, 667 (1977) (emphasis added).

       In Robinson, the Court considered a statute making it a misdemeanor “to be

addicted to the use of narcotics.” 370 U.S. at 662. Under that statute, the state could

convict and imprison an addicted person for ninety days even if he had never “used or

possessed any narcotics within the State.” Id. at 666–67. Speaking for the Court, Justice


                                            26
Stewart reasoned that “narcotic addiction is an illness,” which, like other illnesses, may

be contracted “involuntarily,” and so held that “a state law which imprisons a person thus

afflicted as a criminal” violates the Eighth Amendment. Id. at 667.

       Six years later, the Court considered a challenge to a Texas statute that

criminalized public intoxication. Powell v. Texas, 392 U.S. 514 (1968). The defendant

argued that this statute, like the statute in Robinson, punished an illness over which he

had no control and so violated the Eighth Amendment. In a fractured opinion (4 – 1 – 4),

the Supreme Court rejected that argument.

       In Powell, four Justices interpreted Robinson to prohibit only the criminalization

of status. In their view, the Texas statute withstood constitutional challenge because it

criminalized the act of being intoxicated in public rather than the status of alcohol

addiction. These Justices did not suggest that alcoholism is not an illness. Nor did they

contend that the Eighth Amendment allowed a state to prosecute an individual merely for

being an alcoholic. Rather, they concluded that the Texas statute, unlike the law at issue

in Robinson, did not criminalize “being an addict” or “being a chronic alcoholic.” Id. at

532 (Marshall, J.) (plurality opinion).

       Four other Justices in Powell concluded that the Texas statute did violate the

Eighth Amendment. Justice Fortas explained that Robinson compelled this result because

it stood for a principle at “the foundation of individual liberty and a cornerstone of the

relations between a civilized state and its citizens.” Id. at 567. (Fortas, J., dissenting,

joined by Justices Douglas, Brennan, and Stewart). Namely, “[c]riminal penalties may

not be inflicted upon a person for being in a condition he is powerless to change.” Id.


                                            27
Because Powell — an alcoholic — “was powerless to avoid drinking” and “once

intoxicated, he could not prevent himself from appearing in public places,” these Justices

would have found the challenged statute did violate the Eighth Amendment. Id. at 568.

       Justice White provided the decisive fifth vote to uphold Powell’s conviction. In

doing so, however, he expressly rejected the act-status distinction on which the other four

Justices who voted to uphold the conviction had relied. See id. at 548. As Justice White

explained, “Unless Robinson is to be abandoned, the use of narcotics by an addict must

be beyond the reach of the criminal law.         Similarly, the chronic alcoholic with an

irresistible urge to consume alcohol should not be punishable for drinking or for being

drunk.” Id. at 548–49 (White, J., concurring in the judgment). Justice White agreed with

the four dissenters that the critical question was not whether the Texas statute punished

an “act” or a “status,” but rather “whether volitional acts brought about the ‘condition’”

of public intoxication and “whether those [volitional] acts are sufficiently proximate to

the ‘condition.’” Id. at 550 n.2; see also id. (“If it were necessary to distinguish between

‘acts’ and ‘conditions’ for purposes of the Eighth Amendment, I would adhere to the

concept of ‘condition’ implicit in the opinion in Robinson.”).

       Crucially, in reaching this conclusion Justice White specifically contemplated a

case, like the one at hand, in which an individual is an alcoholic and lacks a home. He

explained that “chronic alcoholics must drink and hence must drink somewhere,” and

while many chronic alcoholics “have homes, many others do not.” Id. at 551. Thus, if

individuals could show both that “resisting drunkenness is impossible and that avoiding

public places when intoxicated is also impossible,” a statute banning public drunkenness


                                            28
would be unconstitutional as applied to them.           Id. (emphasis added).      In those

circumstances, the statute would, in effect, “ban[] a single act for which [homeless

alcoholics] may not be convicted under the Eighth Amendment — the act of getting

drunk.” Id. (emphases added).

       Despite this, my colleagues elide the fact that Powell’s ability to “stay off or leave

the streets” was a decisive factor in Justice White’s concurrence. Id. at 553. But the

closing words of his opinion make clear that these facts mattered:

       For the purposes of this case, it is necessary to say only that Powell showed
       nothing more than that he was to some degree compelled to drink and that
       he was drunk at the time of his arrest. He made no showing that he was
       unable to stay off the streets on the night in question. Because Powell did
       not show that his conviction offended the Constitution, I concur in the
       judgment affirming the Travis County court.

Id. at 553–54 (footnote omitted). In other words, it was because Powell did not show

“that he was unable to stay off the streets” that Justice White concurred in the judgment,

rather than siding with the dissent. Id. at 552–54.

       My colleagues’ assertion that I am creating a “new rule” disregards the Supreme

Court’s instruction that “[w]hen a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, the holding of the Court

may be viewed as that position taken by those Members who concurred in the judgments

on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (citation

and internal quotation marks omitted); see also Hughes v. United States, __ S. Ct. __

(2018) (concluding it “unnecessary” to reconsider the reasoning of the Marks rule).

Justice White’s concurrence clearly rested on “the narrowest grounds” for upholding the



                                             29
defendant’s conviction in Powell. Accordingly, it should control our analysis in the case

at hand.

       The Department of Justice has adopted this interpretation.         See Statement of

Interest of the United States at 7–12, Bell v. City of Boise, 993 F. Supp. 2d 1237

(D. Idaho 2014) (No. 1:09-cv-00540-REB). And so have some courts. See, e.g., Jones v.

City of Los Angeles, 444 F.3d 1118, 1135–36 (9th Cir. 2006), vacated as moot due to a

settlement, 505 F.3d 1006 (9th Cir. 2007); Pottinger v. City of Miami, 810 F. Supp. 1551,

1561–1565 (S.D. Fla. 1992).

       But some courts have erroneously relied instead on the plurality opinion in Powell

and, on this basis, upheld laws like the one challenged here. Unfortunately, our court is

one of those to do so. See Fisher v. Coleman, 639 F.2d 191 (4th Cir. 1981) (per curiam);

see also Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000); United States v.

Benefield, 889 F.2d 1061 (11th. Cir. 1989). 1 As my colleagues themselves recognize,

courts that “have relied upon the plurality opinion in Powell . . . have overextended

themselves in doing so.”

       Justice White’s opinion should have controlled our holding in Fisher, just as it

should control our analysis here. In Fisher, the district court had upheld Virginia’s


       1
         My colleagues’ suggestion that two other courts of appeals have joined in “a
large chorus of circuit opinions” supporting their contrary approach rests on two short
unpublished (and therefore non-precedential) opinions. Neither case involves a challenge
to the constitutionality of a statute, nor provides any persuasive rationale in support of my
colleagues’ position. See United States v. Stenson, 475 F. App’x 630 (7th Cir. 2012) (per
curiam); Joshua v. Adams, 231 F. App’x 592 (9th Cir. 2007).



                                             30
statutory scheme, reasoning that Powell “specifically rejected” the contention that

“conduct symptomatic of alcoholism” was constitutionally protected and that “the case at

bar falls squarely within the holding of Powell.” Fisher v. Coleman, 486 F. Supp. 311,

316 (W.D. Va. 1979). In a short per curiam opinion, we simply affirmed the district

court “for reasons sufficiently stated by that court.”     639 F.2d at 192.       Thus, our

affirmance relied entirely on the district court’s treatment of the plurality opinion in

Powell as controlling — totally ignoring Justice White’s narrower approach, which

Marks teaches is to be regarded as “the holding of the Court.” 430 U.S. at 193.



                                            II.

       Applying the narrower approach set forth by Justice White compels the conclusion

that Plaintiffs have alleged an Eighth Amendment violation. Plaintiffs allege that they

are homeless and suffer from an illness: alcoholism. They assert that, after Virginia

labeled them “habitual drunkards” and interdicted them, the state criminally charged and

then repeatedly prosecuted them for actions compelled by their status as homeless

alcoholics.

       Plaintiffs allege that Virginia interdicted them — often in absentia — upon

deeming them “habitual drunkards,” a vague statutory term that has historically served as

a euphemism for the homeless. See Jayesh M. Rathod, Distilling Americans: The Legacy

of Prohibition on U.S. Immigration Law, 51 Hous. L. Rev. 781, 792 (2014); see e.g.,

Colin L. Anderson, Median Bans, Anti-Homeless Laws, and the Urban Growth Machine,

8 DePaul J. for Soc. Just. 405, 412–18 (2015). Plaintiffs claim that, once interdicted, the


                                            31
Commonwealth arrested and criminally prosecuted them — not once or twice, but dozens

of times — for otherwise legal behavior.

       For example, they allege that police officers arrested Plaintiff Bryan Manning on

one occasion “for smelling like alcohol” and on another for being “in a Walmart store

where alcohol was sold.” They assert that officers arrested Plaintiff Ryan Williams for

“sleeping in a park bathroom” where “a beer can was found in the trash,” and arrested

Plaintiffs Richard Deckerhoff and Richard Eugene Walls for being “near” beer cans.

       Finally, Plaintiffs allege that the Commonwealth provides no clear procedure for

removing the “habitual drunkard” label post-interdiction, such that interdicted persons are

essentially branded for life. On the basis of these facts, Plaintiffs maintain that, as

applied to them, Virginia’s statutory scheme violates the Eighth Amendment by

subjecting them to incarceration because of their status as “homeless alcoholics.”

       In arguing to the contrary, the Commonwealth heavily relies on the fact that the

Virginia statute operates in two steps. Va. Code § 4.1-333(A) permits a court to enter a

civil interdiction order “prohibiting the sale of alcoholic beverages . . . until further

ordered” to a person who “has shown himself to be an habitual drunkard.” Then Va.

Code §§ 4.1-322 and 4.1-305 make it a Class 1 misdemeanor for an interdicted person to

“possess any alcoholic beverages” or to “consume, purchase or possess, or attempt to

consume, purchase or possess, any alcoholic beverage.” The punishment for this crime is

“confinement in jail for not more than twelve months and a fine of not more than $2,500,

either or both.” Va. Code § 18.2-11(a).




                                            32
       Virginia’s two-pronged statutory scheme may be more indirect than the statute at

issue in Robinson, but it yields the same result. If the statute at issue in Robinson had

allowed the state to “interdict” prescription drug addicts and then arrest interdicted

addicts for filling those prescriptions, the statute effectively would also have criminalized

“being addicted to narcotics” even if it nominally punished only filling prescriptions.

Such a statute would surely be unconstitutional as well.

       A statute that would be unconstitutional if accomplished in one step cannot be

rendered constitutional simply by bifurcating it. Thus, although Virginia may nominally

penalize “possession” or “consumption,” the Commonwealth’s statutory scheme

effectively targets and punishes homeless alcoholics based on their illness. That the

Commonwealth brands homeless alcoholics as “habitual drunkards” before prosecuting

them for involuntary manifestations of their illness does nothing to cure the

unconstitutionality of the statutory scheme.



                                               III.

       Moreover, contrary to my colleagues’ suggestions, adopting Plaintiffs’ position

would not shield individuals from prosecution for violating generally applicable laws,

curtail a state’s ability to impose post-conviction restrictions, or infringe on a state’s

ability to regulate alcohol. My colleagues warn against “accept[ing] casually every

‘slippery slope’ or ‘open-the-floodgates’ argument that comes along.” But in the same

breath, they fall into this very trap. Plaintiffs challenge only the targeted criminalization

of otherwise legal behavior that is an involuntary manifestation of their illness. Plaintiffs


                                               33
do not assert that they are immune from prosecution for generally applicable criminal

offenses.   They do not question the constitutionality of restrictions imposed after a

criminal conviction. And they raise no objection to the Commonwealth’s general ability

to regulate alcohol or other substances within its borders.

       The contention that Plaintiffs’ position leads to holding that any “uncontrollable”

act absolves an individual of responsibility for generally applicable crimes is clearly

incorrect. 2 A state undoubtedly has the power to prosecute individuals — even those

suffering from an illness — for breaking laws that apply to the general population. Under

the Eighth Amendment, an alcoholic may not, as a result of his addiction, escape

prosecution for criminal behavior that is unlawful if committed by a non-alcoholic. But

Plaintiffs do not seek a special exemption from generally applicable criminal laws. The

constitutional challenge we confront today deals only with a law that targets a group of

vulnerable, sick people for special punishment based on otherwise legal behavior

(drinking alcohol) that is an involuntary manifestation of their illness.

       Accordingly, Plaintiffs’ position does not jeopardize laws generally criminalizing

certain behavior. Those laws apply to all and reflect a state’s legitimate concern that


       2
         Any suggestion to the contrary is a straw man. Five Supreme Court Justices
have rejected this very argument. See Powell, 392 U.S. at 552 n.4 (White, J., concurring
in the judgment) (“A holding that a person establishing the requisite facts could not,
because of the Eighth Amendment, be criminally punished for appearing in public while
drunk would . . . hardly have radical consequences.”); id. at 59 n.2 (Fortas, J., dissenting,
joined by Justices Douglas, Brennan, and Stewart) (“It is not foreseeable that findings
such as those which are decisive here . . . would be made in the case of offenses such as
driving a car while intoxicated, assault, theft, or robbery.”).



                                             34
some actions are so dangerous or contrary to the public welfare that they should lead to

criminal liability for everyone who commits them. That is not the case here. Generally,

Virginians over the age of 21 can possess and consume alcohol, but if the state brands a

person a “habitual drunkard” and interdicts him, behavior that is legal for all others over

21 becomes criminal for the interdicted person. See Benno Weisberg, When Punishing

Innocent Conduct Violates the Eighth Amendment: Applying the Robinson Doctrine to

Homelessness and Other Contextual “Crimes,” 96 J. Crim. L. & Criminology 362 (2005)

(arguing that there is an important distinction for Eighth Amendment purposes between

“laws that criminalize specific conduct” in all spatial and temporal contexts — such as

theft, homicide, rape, assault, and buying or possessing drugs — and “laws that

criminalize conduct only when performed in certain contexts”).

       Nor, contrary to my colleagues’ suggestion, does Plaintiffs’ position undermine a

state’s use of prophylactic measures to thwart “serious criminal misconduct.” States

certainly have a legitimate interest in using such measures to prevent and deter criminal

offenders. But Plaintiffs’ challenge simply does not impact enhanced punishments or

post-conviction restrictions imposed because of a prior criminal conviction. Those laws

do empower courts, in some instances, to impose such punishments and restrictions on

those who suffer from certain illnesses, but only where a defendant has already been

convicted of a crime — a conviction imposed subject to due process and other

constitutional safeguards.   See, e.g., 34 U.S.C. § 20913 (establishing sex offender

registry); id. § 20911(1) (defining “sex offender” as “an individual who was convicted of

a sex offense”).


                                            35
       Finally, holding Virginia’s statutory scheme unconstitutional would not affect

“[t]he broad power of a State to regulate” alcohol or narcotics within its borders. See

Robinson, 370 U.S. at 664. There are many methods available to Virginia to pursue these

goals. The Commonwealth can enact civil, and generally applicable criminal statutes

addressing alcohol and narcotics abuse. See id. at 664. It can elect to prioritize treatment

and “establish a program of compulsory treatment for those addicted to” alcohol. See id.

at 664–65. And it can “choose to attack” the combined “evils” of alcoholism and

homelessness “through public health education,” or by enacting laws designed to

“ameliorate the economic and social conditions under which those evils might be thought

to flourish.” See id. at 665.

       Policy decisions such as these are, of course, not ours to make; they rest within the

sound province of the Virginia General Assembly. I note, however, that just as society’s

understanding of alcoholism and addiction have evolved in the 56 years since Robinson,

so too have methods of targeting these problems. Indeed, studies have repeatedly — and

convincingly — shown that methods focused on treatment, rather than deterrence, are

more effective at targeting the combined problems of alcoholism and homelessness. See,

e.g., U.S. Interagency Council on Homelessness, Searching out Solutions: Constructive

Alternatives to the Criminalization of Homelessness (June 2012). 3


       3
         Only Virginia and Utah continue to use criminal sanctions such as this. See Utah
Code §§ 32B-4-413, 32B-4-304. That only two states still impose criminal penalties on
alcoholics using interdiction schemes — schemes originating in the late 19th century, see,
e.g., Va. Code. Ch. 83 § 5 (1873) — suggests yet another reason why such a scheme is
unconstitutional. See Trop, 356 U.S. at 100–01 (plurality opinion) (explaining that
(Continued)

                                            36
       In   response   to   this   concurrence,   my   colleagues    offer   rhetoric   and

misapprehensions. I will not attempt to match the rhetoric, but must correct a few of the

misapprehensions. Faithfully following Justice White’s controlling opinion in Powell, as

I would, does not “overturn or greatly extend” Supreme Court precedent. Rather, only

this course properly follows the Court’s longstanding Marks rule. And the accusation

that I have gone “to great lengths to inform the legislature” that it has made “the wrong

‘policy decision[]’” ignores the preceding paragraphs. In fact, I expressly recognize that

policy decisions are the legislature’s province — provided those decisions do not violate

the Constitution. Finally, of course a state may target conduct “harming or potentially

harming other persons,” but the statute at issue here contains no such limitations. Indeed,

the complaint alleges that the Commonwealth routinely uses this statute to arrest

homeless alcoholics simply because of their presence in a Walmart or near a discarded

beer can. (Given these allegations, Plaintiffs may also have a claim under the Fourth

Amendment, as my colleagues suggest; of course, a plaintiff need not pursue every

available claim.)

       Thus, although my colleagues’ opinion makes for dramatic reading, their analysis

remains divorced from the law and the facts of this case. Plaintiffs’ challenge is a narrow

one that will neither hinder nor even implicate a state’s ability to make legislative

judgments concerning the safety and welfare of its citizens.


because “the words of the [Eighth] Amendment are not precise” and “their scope is not
static,” the Supreme Court has recognized that “[t]he Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a maturing society”).


                                            37
                                             IV.

       The statutory scheme challenged here criminalizes the otherwise legal behavior of

individuals suffering from a serious illness. The specter of this unconstitutional law

looms large over a number of the Commonwealth’s most vulnerable citizens. Plaintiffs

allege that from 2007 to 2015, Virginia interdicted 1,220 individuals and recorded 4,743

criminal convictions of interdicted persons for alcohol possession or consumption.

       Imprisonment for a short time — here, for not more than twelve months — does

not, in the abstract, seem to be cruel or unusual punishment. But, as the Robinson Court

recognized, “[e]ven one day in prison would be cruel and unusual punishment for the

‘crime’ of having a common cold.” 370 U.S. at 667. The targeted criminalization of

otherwise legal behavior that is an involuntary manifestation of an illness is just as clearly

cruel and unusual punishment here as it was in Robinson.

       Given our precedent, 4 I must concur in the judgment rejecting the challenge to

Virginia’s statutory scheme. Because thousands of Virginians remain subject to a law

that, in my view, is unconstitutional, I do so with reluctance and regret.




       4
         Plaintiffs recognize that Fisher constitutes circuit precedent, but suggest that we
“take the opportunity to reconsider” Fisher. Appellants’ Br. at 37. This panel cannot do
so. In the absence of an intervening change in the law, “[o]nly the full court, sitting en
banc,” can do so. Demetres v. E. W. Const., Inc., 776 F.3d 271, 275 (4th Cir. 2015).



                                             38
