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Show I v POOR COPY I TUESDAY, OCTOBER 26, 1971 mm II . ' THE DAILY RECORD I Office of the Attorney General QUEST I017S Under 1 . See opinion. 1. Court justices and legal writers have recognized the traditional that approach of criminal. conviction and jail terms for public intoxication has failed to either deter or rehabilitate Many studies and articles have been the chronic inebriate.written showing the futility and waste of the "revolving door" cycle. Both governmental and private studies have indicated that vast amounts of police time and court resources have been ineffectively used to arrest and convict the public alcoholic. In view - 1 See Powell v. Texas, 392 U.S. 514 (1968), rehearing denied, 393 U.S. 890, where? the opinions of Mr. Justice Marshall at pane J u. l j.CC .'.t pa1!-7v:'. i .' : ; jl ar in.i:.j . hat b.:,L' .rrOi However, the Court was divided on whether a jail term might offer any therapeutic or rehabilitative help to an alcoholic. In Easter v. District of Columbia, 361 F.2d 50 (1966). the Court in appendix i presents evidence and cites authorities Luc conclusion that criminal conviction affords to or rehabilitation. for deterrence little hope on Law Enforcement .and Administration of 2 Commission President':; Justice, Task Force Report: Drunkenness (1967); Nimmer, "Arrests , " .54 for Public Drunkenness, A Seldom Discussed Reform Judicature 335, 338 (1971) . of this waste of manpower and the failure to stop the "revolving and appendix bub-stwiiLiut- at page B Sl-ato- door" nearly unanimous agreement better approach is needed. gy is found in legal fields that a The Legislature of Utah has not yet enacted a comprehensive scheme of civil commitment andor treatment for the elaboration chronic alcoholic as has been done for 'the mentally ill but the legislature has authorized cities to enact ordinances to provide treatment for alcoholics: 0 "... cities ordinance provide may by for treatment of alcoholics . . . who are addicted to the use of . . . intoxicants such that they substantially lack the capacity to control their use of such . . . intoxicants, and judicial supervision may be imposed as a means of effecting their rehabilitation." Code Ann. Utah Code Ann. (Repl. Vol. 1971). 47 session also enacted providing: legislature in the (1971) 78-4-14- (11) "The tion: 1967 Utah city court shall have civil jurisdic- (11) To enter such decrees and orders as are necessary for the civil rehabilitation and treatment of alcoholics . . . whose use of . . . intoxicants is such that they substantially lack the capacity to control use of such . . . intoxicants and are in need of treatment to effect their their rehabilitation." Thus, cities may by ordinance establish a detoxificatioa are addicted to intoxicenter for the treatment of persons cants such that they substantially lack the capacity to control thoir use of such intoxicants." No Utah cases have yet been tried which have interpreted these statutes, but it seems clear, particularly when read together, that the legislature has authorized cities to deal with chronic users of intoxicants in a civil treatment manner. Thus, where a valid ordinance is enacted a city may provide treatment for qhronic alcoholics and may impose judicial supervision "as a means of effecting their rehabilitation." "who cit desire to include involuntary commitment rh'.bili.tf.tion the legistrncecdings In effectuate treatment v.d lature has giver, the city courts c v 3 .juri flic; i :: ovor such matters4 and the courts are also empowered to supervise the treatment of voluntary "patients" if an ordinance so authorizes.' Should a ? generally Title 64J Chapter 7, Utah Code Annotated (Repl. Vol. 1971) for civil commitment procedures for the mentally ill. For a discussion of .these statutory procedures see "Hospitalization of Mentally 111 in Utah: A Practical and Legal Analysis." 3 See Law Review 223. 14 Utah Code Ann. (J 47 Utah Code Ann. I960 Utah 4 5 I'.l a, and is no be necessary, it is requestbd Hint the cjaejl ion.'. least likely to circumvent constitutional voluntary treatment program. In the mental The program protections is a health area, Utah statutes provide that the superintendent of the state hospital may admit any individual who has symptoms of mental illness who is over sixteen years of age who applies for admission.8 It would be admissible to include a comparative procedure for admissions to detoxification centers since to be a voluntary consent to treatment could not be deemed a of voluntary "deprivation of liberty." Another advantage in inherent would the obviate antagonisms system is that it the involuntary commitment proceedings, thus increasing chances for rehabilitation of alcoholics. When a treatment program is legal problems since voluntary, it appears there would be no are not applicable. It criminal arrest and jailing procedures to consent undergo treatment should be stressed that voluntary from intoxicants. must be made when the person is free 70-4-- 10-H-- (1971). (Repl. Vol. I960). (11) Constitution of the United States, Constitution of Utah, Art. I, 7. 6 7 XIV. Amendment (Repl. Vol. 1971) for an example of a statute authorizing voluntary admission to detoxification. (Supp. IV 3971) center see District of Columbia Code 9 This opinion is shared by many public health authorities and is advanced by Peter Barton Hutt, the attorney who represented th.. "a Circuit or and D.r.v.'er in their upponls both Utah Code Ann. 8 64-7-- 29 24-5- 25 io-- , I). C. Circuit Court- o;. .pw-dialcoholism was a defense to public and the - Mr. M i .. .i. ei.i'-iii- c intoxication. These cases v. Robison, 370 U.S. 660 (1962) prior to California Hutt puts forth his argument for purely voluntary treatment 7fiS were decided . The . 56 c 10-8-- v Voluntary treatment. The primary concern of a detoxification center serving in lieu of criminal arrest and guarantees of procedures is that the constitutionalneatment jailing fer the "due process" are not violated in providing and States United the of alcoholic. Both the Constitution Utah7 State the that provide the Constitution of the State of or property, "shall not deprive any person of life, liberty law." of without due process OPINION A 1 (a) Yes. 2. I : specific ordinance in which to test the "legal aspects", as a detoxification eeulor, this opinion is written with a view of covering the gcntnal problem areas apparent to this office. Shmilu further Since there jailing procedures? CONCL USIONS : v.v pri'C.-edm- present law, may a city establish a detoxification center to treat chronic alcoholics? 2. What are the legal aspects of a detoxification center serving in lieu of criminal arrest and 1. : will at tempi t "it volant .ay this question, In answering to discuss the legal aspects of (a) a procedure, (b) an involuntary commitment cl. (c) voluntary consent following police pi up. Vernon B. Romney, Attorney General David S. Young, Chief Assistant Attorney General PREPARED BY: SEVEN State of Utah 2. Mr. Robert R. Andersen, Director, Law Enforce ment Planning Agency, State of Utah REQUESTED BY: PAGE I Pouinu Cn4U For more on the procedure to in insure vulunlcixy consent, seethe discussion at page 6 of this opinion. (b) Involuntary Commitment. There generally are two justifications for involuntary commitment proceedings for alcoholics. One is that the state acting as "parens patriae" will bo able to care for a person who does not have the mental capacity or ability to make a sound decision relative to his own ailment. The second justification is found in the police power of the state to regulate the health and welfare of its citizens. Since involuntary commitment of alcoholics is a rather recent innovation in the law, we are unable to find any cases specifically calling into question the power of the state to commit alcoholics. But there are cases which do justify involuntary commitment in narcotic addiction and in mental health areas. Drawing analogies from these cases it JLU appears that a state can involuntarily commit a person substantially lacks the capacity tot control his use of intoxicants," if such a determination and to the safeguards of due process. H The elements "who commitment conform the Utah State Legislature felt neces- sary to afford due process in civil proceedings have been specified in the involuntary commitment proceedings of. the 12 mentally ill. Essentially these requirements are notice of and findings, and the right to counsel hearing, judicial hearing for the alcoholic. 3 A recent case from the Tenth Circuit has held that when a person is denied counsel at his commitment hearing it is a denial of due process. 4 The ordinance drafted by a city should make clear that before a person may be committed In ro Hinckle. 33 Idaho 605, 196 Pac. 1035 (1921) is generally as read authorizing involuntary treatment on the ground of parens patriae. Robinson v. California. 370 U.S. 660, 665 (1962) mentions the type of sanctions a state might impose to regulate narcotics in the general health or welfare of its inhabitants, a state might establish a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary confinement. Penal sanctions might be imposed for failure to comply with established compulsory treatment procedures." Thus, it appears involuntary commitment can be justified on the grounds of either the police power or parens patriae. 12 Utah Code Ann. to (Repl. Vol. 1969). 13 For a more extensive treatment of these procedure one should read the applicable code sections. For another statute authorizing involuntary commitment of alcoholics see District of Columbia 11 "... 64-7- Code 14 -1 64-7-- 55 (Supp. IV 1971) . Hereford v. Park nr , 396 F. 2d 393, 396 (10th Cir. 3968). a Utah case, )VUfrrd v. f.vlt haV- Cnyrtr. 32 Utah 2d 32, 44 l.2d 193, 195 (1968) held that unless the legislature provides the means to pay an attorney, a statute which requires appointment of an attorney as does Utah Code Ann; (g) (Repl. Vol. 1969) cannot be sustained. In view of the holding by the Tenth 24-5- 27 - 64-7-- 36 Continuod on Pago 8 |
