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Intoxication and Culpability

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Abstract

I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my view, I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently.

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Notes

  1. I speak of intoxicants generally rather than of alcohol in particular. Any substance that is psychoactive—that is, any substance that affects thought, perception, mood or behavior through its impact on the central nervous system—should be included in a discussion of the impact of intoxicants on culpability. Although the law has struggled most with alcohol, any principled resolution of this issue must be capable of being extended to other kinds of intoxicants—both licit and illicit.

  2. See the proposals surveyed in Meghan Paulk Ingle: “Law on the Rocks: The Intoxication Defenses are Being Eighty-Sixed,” 55 Vanderbilt Law Review 607 (2012). The most promising such alternative, I think, is to enact a new offense of “committing the actus reus of offense X while intoxicated.” See Rebecca Williams: “Voluntary Intoxication—A Lost Cause?” Law Quarterly Review (forthcoming, 2012a).

  3. In the United Kingdom, the topic has been addressed by at least three reports of the Law Commission, the most recent of which was written primarily by Jeremy Horder, one of the country’s most distinguished legal philosophers.

  4. Alcohol is a factor that contributes to approximately 40 % of the violent crimes committed in the United States. More than 5 million of the persons under correctional supervision were under the influence of alcohol at the time of their offense. See National Institute on Alcohol Misuse and Crime (2009), http://www.alcoholandcrime.org/npamc/issues/alcohol-and-crime/.

    In addition, illicit drugs also contribute to criminal behavior. See Douglas Husak: “Drugs, Crime, and Public Health: An Insight from Criminology,” in A. M. Viens, John Coggon, and Anthony Kessel, eds.: Criminal Law, Philosophy, and Public Health Practice (Cambridge: Cambridge University Press, forthcoming, 2012a).

  5. One commentator wryly expresses this point by saying “we are left with the simple policy decision that we will not allow defendants to adduce evidence that would lead to their acquittal, because then we would have to acquit them.” Williams: Op.Cit. Note 2.

  6. Admittedly, this apparent agreement conceals many important differences. Some commentators advocate punishment on policy grounds, while others seek to provide reasons of principle in favor of punishment. In this paper I am solely concerned with the latter sort of reasons.

  7. The phenomenon I call substitution has been described in various ways. Moral philosophers have come to refer to it as tracing: when a defendant does not know something at t2 she would have known but for her culpable act or omission at t1, her blame at t2 can be traced to her culpable conduct at t1. For a nice discussion of tracing and non-tracing cases, see Holly M. Smith: “Non-Tracing Cases of Culpable Ignorance,” 5 Criminal Law and Philosophy 97 (2011).

  8. See Douglas Husak and Craig Callendar: “Wilful Ignorance, Knowledge, and the ‘Equal Culpability’ Thesis: A Study of the Deeper Significance of the Principle of Legality,” in Douglas Husak, ed.: Philosophy of Criminal Law: Selected Essays (Oxford: Oxford University Press, 2010a, b), p. 200.

  9. See Douglas Husak: “Transferred Intent,” in Husak: Id., p. 91 (2010).

  10. Model Penal Code, §2.02(5).

  11. Susan Dimock: “What are Intoxicated Offenders Responsible for? The ‘Intoxication Defense’ Re-examined,” 5 Criminal Law and Philosophy 1, 9 (2011).

  12. See Douglas Husak: “The Sequential Principle of Relative Culpability,” in Husak: Op.Cit. Note 8, p. 177.

  13. The caveat refers to intoxication that is non-voluntary. See Part V infra.

  14. Other jurisdictions strike a compromise by employing very different terms. The notoriously cryptic provision allowing intoxication to negate mens rea for crimes of specific intent but not for crimes of general intent is a similarly puzzling compromise.

  15. Knowledge is treated as a “limiting case of recklessness” in Larry Alexander and Kimberly Kessler Ferzan: Crime and Culpability (Cambridge: Cambridge University Press, 2009), p. 32.

  16. For example, the relevant statutes in most jurisdictions do not allow liability to be imposed on defendants who possess a controlled substance unless they know the substance they possess is controlled. Thus (if the Model Penal Code’s provisions on intoxication are followed), a defendant who is too drunk to know that what he possesses is a drug would not be liable. But a few states (e.g., Florida) allow liability when defendants are merely reckless about the nature of the substance they possess. Thus a defendant who is too intoxicated to be aware of the risk that the substance he possesses is a drug would be liable if he would have been conscious of that risk when sober.

  17. A version of a character theory is defended in G. R. Sullivan: “Making Excuses,” in A. P. Simester and A. T. H. Smith, eds.: Harm and Culpability (Oxford: Oxford University Press, 1996), p. 131.

  18. For critical thoughts about character theories of excuse, see Jeremy Horder: Excusing Crime (Oxford: Oxford University Press, 2004), especially pp. 118–125.

  19. For a discussion of the possible implications of a character theory on intoxication and liability, see Victor Tadros: Criminal Responsibility (Oxford: Oxford University Press, 2005), especially pp. 297–299.

  20. A few commentators have questioned whether rules about intoxication must be construed as substitution rules. According to one theorist, “rather than substituting the intent to become intoxicated for the intent to commit the crime, the act of becoming intoxicated, when coupled with a violent offense, has become the crime.” Heather MacMillan-Brown: “No Longer ‘Leary’ about intoxication: In the Aftermath of R. v. Daviault, 59 Saskatchewan Law Review 311, 332 (1995). This view mirrors that taken by Justice Ginsburg in her concurrence in Montana v. Egelhoff, 518 U.S. 37 (1996).

  21. Among these commentators is Susan Dimock: “The Responsibility of Intoxicated Offenders,” 43 Journal of Value Inquiry 339 (2009).

  22. Gideon Yaffe profitably contrasts justified, non-justified, and unjustified acts of becoming intoxicated. See his “Intoxication, Recklessness and Negligence,” 9 Ohio State Journal of Criminal Law 545 (2012).

  23. If persons who commit the actus reus of a crime while grossly intoxicated have no prior convictions it is hard to understand how they could have been expected to anticipate that their intoxication would lead to any crime, let alone a homicide.

  24. I do not mention additional difficulties, such as the problem of deciding (beyond a reasonable doubt!) what a person would have believed under counterfactual conditions.

  25. See Douglas Husak: “Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting,” 5 Criminal Law and Philosophy 199 (2011).

  26. Douglas Husak (2012b): “Distraction and Negligence,” in Lucia Zedner, ed.: Principled Approaches to Criminal Law and Criminal Justice: Essays in Honour of Professor Andrew Ashworth (Oxford: Oxford University Press, forthcoming).

  27. The adequacy of dispositional accounts is called into question by the phenomenon of alief. See Tamar Szabo Gendler: “Alief and Belief,” CV The Journal of Philosophy 597 (2008).

  28. See Kim Ferzan: “Opaque Recklessness,” 91 Journal of Criminal Law & Criminology 597 (2001).

  29. Of course, if the culpable state at t1 need only be worse than or as bad as that required under the statute at t2, it is arguable that there is less need for an exact correspondence between the particular risk of which the defendant is aware at t1 and the risk required by the statute he is charged with violating. If a defendant believes he runs the risk of rape (a very serious crime) at t1, but he subsequently commits the actus reus of robbery (a less serious crime) at t2, might we be justified in holding him liable under a substitution rule? As I have indicated, the entire culpability hierarchy of the Code seemingly adopts substitution rules with this rationale.

  30. Peter Westen: “An Attitudinal Theory of Excuse,” 25 Law and Philosophy 289 (2006). The centrality of insufficient concern to culpability has also been emphasized by Alexander and Ferzan: Op.Cit. Note 15.

  31. For an earlier argument that the criminal law should care more about conative than cognitive states, see Kenneth Simmons: “Rethinking Mental States,” 72 Boston University Law Review 463 (1992).

  32. I owe this example to R. A. Duff: Intention, Agency, and Criminal Liability (Oxford: Blackwell, 1990), p. 163.

  33. Moreover, acts in character may not tell us enough about the person who performs them to justify punishment. See Westen: Op.Cit. Note 30, pp. 333–334.

  34. I am unsure whether Westen himself would accept the use I make of his work. Among other difficulties, he explicitly advances his view as a theory of excuse whereas I employ it as a theory of recklessness. I do not think that this account can be extended to all forms of culpability, including purpose (or intention). As R. A. Duff indicates, persons who cause harms intentionally are guided by the wrong reasons; persons who cause harms recklessly are not guided by the rights reasons. See R. A. Duff: Answering for Crime (Oxford: Hart Pub. Co., 2007), p. 151.

  35. Gideon Yaffe also draws heavily from Westen in defending his views about the effect of intoxication on culpability. See Op.Cit. Note 22.

  36. Stephen J. Morse: “Uncontrollable Urges and Irrational People,” 88 Virginia Law Review 1025, 1040 (2002).

  37. Mark A. R. Kleiman, Jonathan P. Caulkins and Angela Hawken: Drugs and Public Policy (Oxford: Oxford University Press, 2011), especially p. 120.

  38. See G. Agostineli and G. Miller: “Drinking and Thinking: How Does Personal Drinking Affect Judgments of Prevalence and Risk?” 55 Journal of Studies on Alcohol 327 (1994).

  39. See Thomas Vander Ven: Getting Wasted: Why College Students Drink Too Much and Party So Hard (New York: New York University Press, 2011).

  40. For example, see M. Zack and M. Vogel-Sprott: “Drunk or Sober? Learned Conformity to a Behavioral Standard,” 58 Journal of Studies on Alcohol 495 (1997).

  41. See Muriel Vogel-Sprott and Mark T. Fillmore: “Learning, Expectancy, and Behavioral Control Implications for Drug Abuse,” in Todd R. Schachtman and Steve Reilly, eds.: Associative Learning and Conditioning Theory (Oxford: Oxford University Press, 2011), p. 213.

  42. The classic source is Norman E. Zinberg: Drug, Set, and Setting: The Basis for Controlled Intoxicant Use (New Haven: Yale University Press, 1984).

  43. According to one commentator, this approach is taken in Australia, New Zealand, and South Africa. See Dimock: “Intoxicated Offenders,” Op.Cit. Note 11, p. 17.

  44. If we retain the hierarchy of culpable states recognized by the Code, it may even be true that §2.08 is as good as any competitive rule that might be proposed.

  45. “The conditions on involuntary intoxication are stringent.” Dimock: Op.Cit. Note 10, p. 17.

  46. Id., p. 4. Dimock cites two Canadian cases as authority for this proposition.

  47. Some jurisdictions have more lenient standards for what constitutes non-voluntary intoxication when persons are charged with impaired driving. At the very least, they apply different tests to different offenses. In Massachusetts, for example, a defendant may attempt to establish that his impairment was involuntary by “introducing evidence that he did not know of the possible effects of the medication on his driving ability, that he did not receive warnings as to [the medication’s] use, and that he had no reason to anticipate the effects which the drugs induced.” See Commonwealth v. Wallace, 439N.E.2d 848. 852–853 (Mass. App. Ct. 1982).

  48. It is interesting that involuntary intoxication is not regarded as especially unusual when defendants have sexual relations with victims whose condition was brought about without their knowledge or consent. For a nice discussion of the possible inconsistency in this disparate treatment, see Alan Wertheimer: Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003), especially p. 235.

  49. Thanks to Larry Alexander for expressing the point in this way.

  50. R v Kingston (HL) [1995] 2 AC 355.

  51. Ibid at 364. Lords Keith, Goff, Browne-Wilkinson and Slynn all agreed with the judgment given by Lord Mustill.

  52. R v Kingston (CA) [1994] QB 81, at 82–83.

  53. Admittedly, authority for this proposition is sparse. See State v. Baxter, 571 P. 2d (1977).

  54. See also Horder: Op.Cit. Note 18.

  55. See Duff: Op.Cit. Note 34.

  56. See Rebecca Williams: “The Current Law of Intoxication: Rules and Problems,” in Jonathan Herring, ed.: Criminal Law (forthcoming, 2012b).

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  1. Department of Philosophy, Rutgers University, New Brunswick, NJ, USA

    Douglas Husak

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Correspondence to Douglas Husak.

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Thanks to Rebecca Williams, Holly Smith and to all of the participants at the Actio Libera in Causa conference at the University of Pennsylvania in December, 2011.

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Husak, D. Intoxication and Culpability. Criminal Law, Philosophy 6, 363–379 (2012). https://doi.org/10.1007/s11572-012-9176-7

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