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The intoxicated offender—Refuting the legal and medical myths
Abstract
The paper consists of three parts. Part I lists the assumptions about alcohol made by judges and legal academics and traces those assumptions back to their medical and ideological roots in the 19th century. Part II then contrasts those assumptions with the scientific evidence on the relationship between psychoactive drug use and violent behavior, recklessness, intention, cognitive ability, memory, automatism, and insanity. The evidence presented in Part II indicates that important discrepancies exist between the empirical evidence and the legal assumptions about intoxication. Relevant cases are canvassed to demonstrate that the facts in such cases are consistent with the scientific findings but often inconsistent with the legal decisions. Finally, Part III analyses the function in criminal court served by medical testimony on intoxication. It is suggested that medical testimony on this issue is frequently biased and inappropriate and that such testimony should be minimized or eliminated entirely.
... For discussion of what conclusions can and cannot be drawn from this correlation, see Dimock (2009Dimock ( , 2011a. See also Mitchell (1988). For statistics on the role of intoxication in criminal cases, see Juristat, the justice-related branch of Statistics Canada at http://www.statcan.gc.ca. ...
Doug Husak has argued, persuasively I think, that there is no literal ‘act requirement’ in Anglo-American law. I begin by reviewing Husak’s reasons for rejecting the act requirement, and provide additional reasons to think he is right to do so. But Husak’s alternative, the ‘control condition,’ I argue, is inadequate. The control requirement is falsified by the widespread practice of holding extremely intoxicated offenders liable for criminal conduct they engage in even if they lack control over their conduct at the time of the offense, and even if they are acting involuntarily. I provide examples from Canadian, US and German law to flesh out our legal practices with respect to intoxicated offenders. I then argue that, at least with respect to one class of intoxicated offenders – those known as ‘grand schemers,’ who plan their criminal offending prior to rendering themselves incapable of voluntary control over their conduct – we are morally justified in imposing liability. I then propose an alternative to both the act and control requirements: what I call the ‘agency requirement.’ I argue that our law does and should impose liability for conduct that is expressive of or constitutive of the defendant’s practically rational agency. Adopting an agency view allows us to expand our focus from just the moment of the offense to temporally extended instances of agency, such as is involved in planned offending by grand schemers.
... The lack of scholarly interest is all the more surprising when one considers the voluminous literature on the effect that intoxication should have on substantive criminal liability. Although different jurisdictions have different mechanisms for attributing substantive criminal liability to those who were intoxicated at the time of the offence, these differences are of little practical importance because very few individuals are sufficiently intoxicated to meet the extremely high threshold required to evade criminal liability in those jurisdictions where this is theoretically possible (Mitchell, 1988;Shiner, 1990). Intoxication is far more relevant and pervasive an issue at the sentencing stage. ...
Research has consistently found a significant correlation between alcohol consumption and offending. Although this finding does not prove any direct causal link, many offenders subsequently claim that the fact that they had been drinking should mitigate their sentence. As the argument advanced by offenders is framed in retributive terms—culpability is reduced because of intoxication—this article aims to analyse the impact, if any, that intoxication should have under a desert model.
... Chester Mitchell argues that the treatment of voluntary intoxication as criminally reckless cannot be sustained on the scientific evidence (Mitchell 1988). It is simply not true that the majority of people who ingest drugs or drink, even to the point of intoxication, are thereby reckless in doing so. ...
I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification
and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate
a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under
principles of prior fault. I end with a modest proposal for law reform.
KeywordsAutomatism–Criminal defenses–Intoxication–
Mens rea
–Moral fault–Prior fault–Responsibility–Substitution–Voluntariness
Modern mental health law was conceived when courts and commentators recognized that psychiatrists and other mental health professionals often promised society—and the legal system—far more than they were able to deliver (Kittrie, 1971; Szasz, 1963; cf. In re Gault, 1966). That era was typified by the legal profession’s deferring to psychiatry with respect to the content of the law and its administration (e.g., civil commitment , effectuated by a “two-physician certificate” rather than by a hearing). Today, by contrast, mental health law emphasizes matters such as procedural protections (due process hearings, assigned lawyers) for persons facing civil commitment.
This article considers the intoxication doctrine, including whether it is evidential or substantive in nature, and what work is done by the basic-versus specific intent distinction. Most importantly, the article analyses the structure of the doctrine itself. Sometimes thought of as a defence, the article argues that it is an entirely different kind of doctrine, one that imposes constructive liability uponoffenders. Once this is seen, we can better assess its rightful place in the law.
The legal concept of automatism is examined in the light of current psychological knowledge. It is suggested that the valid application of the concept to explain criminal behaviour, and thereby exculpate the offender, is extremely limited; and that expert testimony has played a major role in encouraging its application beyond those limits.
Normally, reduced mental capacities are thought to reduce responsibility. This is how, for example, the criminal defences
of insanity/mental defect and automatism work. Persons who lack the capacity, due to a disease of the mind, to understand
the nature of their actions or that they are wrong, and persons who lack the capacity for voluntary control of their bodily
movements, are thought to lack essential capacities for criminal responsibility. These criminal law practices exemplify the
intuition that responsibility tracks capacity, a view sometimes called “capacitarianism”. An equally widely held view, however,
operates to restrict the commitment to capacitarianism: the intuition that when a person is responsible for his own reduced
mental capacities, the exculpatory value of those reduced capacities is discounted or even extinguished. The paradigmatic
case of such reduced capacities involves persons who have reduced their capacities (of understanding, foresight, knowledge,
advertence or self-control) through voluntary intoxication. This intuition is also reflected in the criminal law practices
of most jurisdictions. Whether such practices can be justified is the topic of this paper. My conclusion will be that, even
if we accept the capacitarian intuition and its limited application to those who are responsible for their own reduced capacities,
the legal instantiation of them in criminal practice is unjustified. My argument is that our treatment of intoxicated offenders
is not, in fact, supported by these commitments, contrary to what many theorists and jurists think.
Many rules governing the treatment of persons who are accused of committing crimes while intoxicated have developed in the common law. The intoxication rules have three broad components, depending upon the causes or degree of intoxication: involuntary intoxication, voluntary intoxication which may be advanced but is not extreme, and extreme intoxication. Our treatment of intoxicated offenders is inconsistent across these categories and offends important principle of criminal justice and legality. Voluntarily intoxicated persons may be held responsible and criminally liable for offences committed without fault, either the fault of the crime itself or even fault for becoming intoxicated.
As forensic psychiatry develops as a clinical subspecialty, clinical skill in understanding, treating, and predicting violent behavior will become more important. This article addresses the importance of understanding the relationship between substance abuse and violent behavior. This article also discusses morbidity and mortality in substance abuse, the demographics of substance abuse and criminality, and the clinical aspects of the forensic psychiatric evaluation.
The legal criteria for the insanity defense as it applies to cocaine-related crimes remains elusive because of cocaine's unique spectrum of effects on human thought and action. This paper discusses the literature relevant to cocaine and forensic psychiatry/psychology, and summarizes the results of a survey of forensic psychiatrists on the topic of drug-induced psychosis. A conceptual framework is posited for the expert witness to distinguish the separable effects of cocaine on human behavior and to clarify their relationship to criminal responsibility.
The combination of intoxication and criminal responsibility has been a problem field for legal theory and practice for quite some time. While it has been argued in certain contexts that intoxication reduces or denies criminal responsibility, elsewhere it has been reasoned that intoxicated offenders should be held as (or even more so) legally responsible as sober ones. But even in legal systems where the criminal responsibility of intoxicated offenders is emphasized, legal theory and practice are confronted with the challenge of converting such values into workable jurisprudence, since many intoxicated offenders naturally lack one of the key premises for responsibility for a criminal act, namely mens rea. This article compares the very different legal philosophies and practices that have evolved around the issue of intoxication and criminal responsibility in Canada and Germany. While the Canadian system has long and in a variety of ways tried to reconcile the inherent tensions between the principles of legal culpability and the intent to punish intoxicated offenders in material law, the German system has produced a set of legal tools that allow for a pragmatic and ends-oriented approach. This article concludes that the evolution and profile of these legal schemes is likely linked to the cultural status of alcohol and drinking in the respective system context.
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