San Jose's "Public Intoxication" Problem Stems From Poorly Drafted Legislation

A recent investigation by the San Jose Mercury News discovered that the San Jose Police Department makes more arrests for public intoxication than any other law enforcement agency in California.

This probably comes as no surprise to the local criminal defense bar and to nearly anyone who has walked down Santa Clara Street after midnight, but it does raise some very real civil rights concerns. Perhaps most concerning is the fact that 57% of those arrested for public intoxication by San Jose Police are Latino (and the population of San Jose and surrounding areas is nowhere near 57% Latino).

To spell it out, the "concerns" are the following: (1) police officers are using the law prohibiting public intoxication as a vehicle to arrest whomever they please - - even if that person is not doing anything illegal; and, (2) police officers are discriminating against Latinos by arresting them more often than non-Latinos.

The SJPD's fondness for public intoxication arrests has led to significant fallout in the local community. Even before the Mercury News brought the issue to the attention of the general public, there were the effects on the correctional and judicial systems: the jail has to house the thousands of arrestees, the District Attorney's office files criminal complaints against those arrested, the courts have to process these cases, and in some instances the Public Defender's office is appointed to represent those charged. Now, the Mayor has launched a task force to investigate the problem and propose solutions, and, most recently, 7 out of the 10 members of that committee have resigned over claims that the City is preventing them from fully investigating. The controversy and and its various related costs continue.

The point is that, regardless of where one stands on this issue, there are significant social and economic costs when a local law enforcement agency is accused of this sort of misconduct. The real unfortunate thing is that this could have all been prevented; and the solution has nothing to do with back end remedies like task forces and looking over the shoulder of police. The real solution is to attack the source of the problem, at the front end: the law that police are using as justification for arresting all these people. If this statute were drafted more clearly and without using such vague language, there would not be so much potential for law enforcement abuse and thus there would not be so many accusations of the same.

The statute in question, the actual law that prohibits "public intoxication" is California Penal Code section 647(f). (The "f" is important . . . a number of the various other subdivisions of section 647 deal with prostitution and related offenses). Penal Code section 647(f) states that a person is guilty of a misdemeanor if he or she:

"is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or anycombination of any intoxicating liquor, drug, controlled substance,or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason ofhis or her being under the influence of intoxicating liquor, anydrug, controlled substance, toluene, or any combination of anyintoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other publicway."

The key part of the statute is the part that reads "in a condition that he or she is unable to exercise care for his or her own safety or the safety of others." Now, what does that mean? Clearly someone who is found passed out unconscious would fall under that definition, but beyond that, your guess is as good as mine. Typically, and in order to comply with the Constitution of this great nation, a statute that imposes criminal liability needs to be a little more clear about the conduct it is prohibiting. Otherwise it is subject to being void as "unconstutionally vague."

There is a very good reason for the principle that a statute must be clear and unambiguous about the conduct it is prohibiting. The reason is that if it is too vague (e.g., "in 'a condition' . . . "), there is a danger that the statute will be abused - - that is, law enforcement will arrest people in accordance with their own personal beliefs or standards and not in accordance with what the law says. Police are then subject to allegations of abuse of power and discriminatory enforcement. Sound familiar?

The statute could easily be fixed. What it is really designed to prohibit is a person being so intoxicated in public that they are absolutely incapacitated. So it should say that: "When a person is found to be under the influence of intoxicating liquor and/or drugs and in an unconscious state, that person is guilty of public intoxication." That would solve the problem. There would be no more disputes about whether a person was really guilty of being "unable to care for their own safety," as opposed to being guilty of having a bad attitude toward a cop or of being Latino.

There are a couple ways to fix the statute. The Legislature could amend the text so it is more clear about the conduct it is prohibiting. A defendant could challenge the statute in court as being unconstitutionally vague, and a court that was serious about its obligations under the Constitution would strike it down. But none of that will happen.

None of that will happen because it wouldn't be popular or a good political move to change a criminal law in such a manner that it might punish less people or make things more difficult for police. Additionally, it isn't the most serious of crimes - - no one is going to prison for years at a time for a 647(f) - - so even if it is contrary to the Constitution, who cares?

As the City of San Jose becomes more and more bogged down in the controversy over discriminatory enforcement of the public intoxication law, as task forces are appointed, members resign in protest, and accusations of racism against law enforcement fly, maybe the option of making sure all our laws (even the little ones) fully comply with the Constitution will become more attractive to the powers that be.

A law being "slightly unconstitutional" is no different from someone being "a little bit pregnant." As San Jose is finding out, even a relatively insignificant law that means well can cause some big problems if it isn't drafted in strict compliance with Constitutional principles.