Police discretion in law creates controversy

By Amber Williams

Curtis Clark knows everything there is about alcoholism… except how to quit drinking. At age 60, he has been arrested 58 times, 10 of which landed him in prison, all for something many are guilty of every weekend — being drunk in public.

But Clark is a habitual offender. Admittedly, he is a drunk — "a sot," as he puts it — but alcoholism itself is not a crime, according the U.S. Supreme Court. Yet Clark and approximately 40 others are currently serving one- to two-year sentences in Iowa prisons for excessive public intox convictions, as reported by the Iowa Department of Corrections (IDOC).

Meanwhile, Iowa prisons are packed, and staff is slim. Iowa prisons currently house almost 9,000 inmates total, and about 25 percent of them are there for "public order" crimes, which includes public intox, the IDOC reports.

The controversy

The legality and necessity of the public intoxication laws have been debated among legislators, lawyers, policy-makers and offenders throughout the years and across the country, and for good reason. After all, Iowa laws allow for intoxication. It's legal to serve booze, drink booze and become drunk. But what about when it's time to go home?

According to the language of the law, once you are officially intoxicated it is not legal to go into public — whether to walk, hail a cab or get towed in a Radio Flyer.

"Public intoxication is a violation of both city ordinances and state law," Clark wrote in a recent letter to Cityview sent from the Newton Correctional Facility. "Typically the city citation involved a night in jail and a sober visit in front of the court. It seemed appropriate, and should the visitor recognize the problem, he was offered help. However, it is becoming more prevalent to charge the individual under state statutes rather than the city citation. At this point, the sot's problem becomes the taxpayers'. The concerned citizen needs to look at where his responsibility/liability begins and ends."

This issue arose in August in Naperville, Ill., when the city council there voted to delete public intoxication from the municipal code altogether, because the law was "too broad and unnecessary." The city attorney, Margo Ely, even went as far to call the code "unconstitutional" because it violates the U.S. Supreme Court's ruling that prohibits criminalizing a person for being an alcoholic or a drug addict.

"There was a case that came along that basically said some public intox ordinances that punish just the status of being under the influence are not constitutional," Ely explained. "So we suggested an amendment to our ordinance to add some affirmative act in addition to the status of being under the influence. The city council decided it wasn't a necessary cause of action, though, because we felt our police had sufficient tools to handle those circumstances."

The Naperville City Council chose to fall back on the state law, just as Des Moines does. That way, whether or not a defendant was drunk only mattered in terms of adding to or taking away from that person's credibility in court, Ely said.

Naperville's decision to strike public intox from the city code was based on a 1962 U.S. Supreme Court ruling, Robinson vs. California. The ruling cited the Eighth and Fourteenth Amendments, basically stating that legally sanctioning a person for an addiction is "Cruel and Unusual Punishment." It was the first case in which the Supreme Court applied the Eighth Amendment against the state governments through the Fourteenth Amendment. Before Robinson, the Amendment had only been applied against the federal government.

Des Moines has no official public intox code on the books, other than a rule stating, "No loud or boisterous language shall be permitted in any place where beer, wine or liquor is sold, and such place shell be conducted in a quiet and orderly manner." Still, the Polk County Jail books almost 50 citizens a day, on average, citing the Iowa Code (123.46), which says, "A person shall not be intoxicated or simulate intoxication in a public place."

That means, according to the law, if you look and act drunk enough that the cops think you're intoxicated, you can be arrested, regardless of whether or not you actually are intoxicated.

The power of discretion

Iowa law gives police the power of discretion, which means, "If an officer can find signs of impairment, that's public intoxication," according to Sgt. Chris Scott of the Des Moines Police Department. The .08 blood-alcohol level required for an operating while intoxicated charge does not apply to public intoxication, he said.

"There's no magic number. If the officer comes up and sees a person being loud and obnoxious, calling attention to himself, smells of alcohol, has slurred speech and glossy eyes, that's the standard we go by," Scott said. "We always offer a breathalyzer to document how much they've been drinking. Sometimes they show signs of impairment, and it's because they're on marijuana. They agree to take a breathalyzer, and it comes up zeros."

So people who are stoned in public are charged with "simulated intoxication" instead, according to the law, which is sanctioned the same as a public intox charge. Although some defendants dispute the charges and take it to trial, defense attorney Robert Rehkemper said few succeed in front of the judge.

"For all intents and purposes, you lose. It comes down to credibility. Who's the judge going to believe, a cop or a person charged as a drunk?" Rehkemper said. "We've fought those battles before. They have the uniform and the badge. It comes with the territory that officers have a presumed credibility."

And why shouldn't they, asks Ely. After all, as a society we accept that the police, as our public servants, are better trained and qualified to judge such case by case incidents than anyone else. And "a high majority of police calls deal with somebody who is intoxicated," according to Scott.

"That's why we employ them," Ely said. "I think they absolutely have to have discretion in what they do because we trust them with the use of force and to maintain peace. They have to have discretion in assessing a situation and finding the best course of maintaining public order."

As Ely points out, the law already puts a lot of constraints on police in how they exercise the law, making their jobs "very challenging and difficult and subject to significant levels of scrutiny," she said.

"Police officers function in a fish bowl. Everything they do is scrutinized not only by the public but by courts," Ely said. "They're very accountable. Everything is subject to constitutional scrutiny and the judicial system. They're subject to more liability than any other occupation."

Still, with regard to simulated intoxication, does Iowa leave "too much discretion up to the officers," as Rehkemper warns? He believes, along with more specific definitions of what is considered a "public place," an abolishment of the simulation aspect of the code should be considered by Iowa lawmakers.

"It's a convenient charge to add because it doesn't take much to prove it. Simulation is kind of the creation of Iowa legislature. I'd be surprised if other states had that in their codes. It's a clever addition," he said. "I doubt they'll ever abolish the law, but it's not a bad idea. There are other ways — other laws that better address the person's actual behavior, such as trespass, harassment and interference with official acts. I don't know that public intox is necessary. But they don't want to do that because it takes away from officer discretion. The only thing they seem to want to do is create more ways to regulate our behavior."

Behavior. That's the key word as far as the police are concerned. We don't know what kind of behavior Clark was exhibiting all 47 times he was arrested for public intox, because he was arrested again on Sept. 6 for… you guessed it, public intox, and last we knew he was back in the Polk County Jail. But his long rapsheet shows no signs of violent behavior. Other than public intox convictions, Clark has a couple of fifth-degree thefts on his record, "for stealing alcohol," he admits, and a trespass, which was also alcohol-related.

Sgt. Chris Scott with the Des Moines Police Department said public intox charges are usually accompanied by other charges such as disorderly conduct, urinating in public or assault. Others, like Clark, are picked up simply for being, or appearing to be, drunk in a public place with no other crime committed.

"Generally with public intox, people are getting pretty belligerent and safety issues arise, and they need dealt with," explained Polk County Attorney John Sarcone. "They usually get credit for time served, and that's the end of it. We can cite people, and they can have somebody come get them. It all depends on the state of the person. Some people are belligerent drunks, and some people are happy drunks. If there's a victim, that's a little different."

While others might have been sent home, what about those who have nowhere to go? Often they are taken to jail by default, Scott said.

Profiting from weakness

"I don't blame anybody for my situation," Clark said two days after being released from prison on Sept. 2. "What I did hurt the people I love, and it hurt me, but the government keeps trying to make a buck off of it, and that's not right."

In a letter to Cityview, Clark referenced the character, Otis, from "The Andy Griffith Show," identifying with "the town drunk" to make a point comparing the harshness of today's public intox laws compared to the old days, when sots were tossed into the drunk tank to sleep it off and then sent home without sanctions and court appearances.

"Whether Otis was riding a cow into town or Barney Fife was attempting to rehabilitate him, you knew the episode would be entertaining," Clark wrote. "He was portrayed as a misguided, gentle man who had some redeeming qualities. He was never pictured as a bad guy. This was TV, and everyone knew that drinking too much was unacceptable no matter how often it happened."

The "real bad guys," as Clark puts it, were always trying to swindle the good citizens of Mayberry or rob their bank. By the end of the episode, the "unscrupulous felons" were hauled off to the state pen, rather than sent to bunk with Otis in the city jail, Clark noted.

"I'm not aware of any Mayberry jails out there anymore. However, there are still a lot of ‘Otis'-es out there, and the humor has been lost," he wrote. "No one wants to see some shabby person stumbling down the street or passed out in the alley. Granted, it's not on a par with robbery, assault, selling drugs or other felonious acts.

"My experience tells me that I am an Otis without the humor. It also tells me that it does affect you (society/tax payers). Are you willing to pay for the guilt trip? It doesn't matter, because someone made that decision for you, unfortunately, and it was in the interest of those who make a living off of our community's weaknesses.

"Who allowed you to pay for my defense, incarceration, fines and treatment? My drunken behavior is now your expense, and, due to that, I have seen a glimpse of the felon's world."

Although public intoxication is a simple misdemeanor offense, Clark has had so many that every time he gets picked up for being drunk in public, it's considered an aggravated misdemeanor due to his habitual offender status. And he entered the "felon's world" last April when he violated his parole.

In all, Clark has racked up almost $30,000 in fines since 2002. Most of his arrests earned him $50 to $100 penalties each and a night or two in jail. But by 2006, the District Attorney had enough. Clark was convicted of his first of eight aggravated misdemeanors for public drunkenness.

But Clark is not the average public intox arrestee. He's undoubtedly an example of excess. Few people require so many warnings and sanctions in order to develop more compliant behavior. Still, in this society, where alcohol is a social norm, public intoxication is a fairly easy charge to earn. And for the alcoholic, multiple charges could lead to some hard time.

How to be drunk in public (without getting arrested)

"A lot of people we find are quiet, peaceful and responsible when they drink. They find ways to get home without any police contact. Others require police to intervene," Scott said. "A lot of times what happens is, downtown people become a problem — they're not dispersing or their actions call attention. We know at 1:45 a.m. they've probably been consuming alcohol, and then they create these problems for other people."

So the best advice offered by both Scott and Rehkemper is to not draw attention to yourself.

"Your best bet is to keep your mouth shut and keep on walking home, or wherever you're going," Rehkemper advised.

However, if you do get charged with public intox, here's a bit of free legal advice he has to offer:

"The part of the public intox law that I find the most beneficial — its one saving grace — is the fact that it can be expunged. It's almost a benefit to the person to get charged with public intox instead of other crimes because if you don't pick up another charge for two years, it's off your record."

The moral of the story? If you choose to drink in public, watch your step... and your mouth. CV

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$85.72 Daily cost to house an inmate in an Iowa prison.

$31,287.80 Annual cost to house one inmate in an Iowa prison.

8,969 Total head count for Iowa inmates as of July 2011.

$280.6 million Average annual cost to house Iowa's prisoners.

Source: Iowa Department of Corrections