IntemationelJoumalof Law and Psychistry, Vol. 13.1-7,1990 Printed in the U.S.A. All rights resenntd.
copyright
01602527f90 53.00 + .OO 0 1990 Pergamon Press PIG
Intoxication, Criminality, and Responsibility Chet Mitchell*
Introduction Drug induced impairment can be legally relevant in numerous ways. At low levels of impairment, associated for example with social drinking, drug use can adversely affect memory, can render a person more vulnerable to victimization, and can cause drivers to be criminally impaired. At higher levels of impairment, generally subsumed under terms such as “intoxication”, drug use can be a factor or even the chief causal agent behind claims concerning automatism, insanity, and diminished capacity. Provocation and mistake of fact may also involve drug impairment. Most important, however, are issues of intoxication in regard to criminal intent or mens rea. Due to the fact that surveys indicate that approximately half of all persons convicted of both property and personal offences were intoxicated during the commission of their crime, legal policy on intoxication is of singular importance. Unfortunately, legal doctrine on intoxication is rather a jumbled mess in many jurisdictions. In Canada, the Supreme Court’s most recent cut at the issue, reported in Bernard v. The Queen (1989) 45 C.C.C. (3d), continued this unfortunate tradition. Despite a very thorough dissent from Chief Justice Dickson, in support of the High Court of Australia’s decision in O’Connor (1980), 4 Aust. Crim. R. 348, the Supreme Court followed the leading English case of Majewski (1976), which for the most part deserves the abundance of criticism it has received (and continues to receive in this edition). Roger Shiner’s article, “Intoxication and Responsibility”, reviews common law doctrine on point and then offers a comprehensive philosophical critique of that doctrine. Shiner argues that the confusing and illogical rules governing intoxication arose from the court’s assumption that protecting society from the harm done by intoxicated offenders could not be accomplished because of the prosecution’s difficulty in proving criminal intent. Shiner suggests that judicial thinking on this issue has been infected with a purely Cartesian picture of the human mind, a picture Shiner regards as mistaken. Once a more realistic understanding of intentionality is substituted, Shiner concludes that the whole issue of intoxication should be left to the fact finder (the jury) without applying any special rules or devices. In a recent issue of this Journal (Mitchell, 1988), I came to the same conclusion from a different perspective. On the basis of a survey of the scientific evidence concerning the effects of drug impairment on intention and on a careful review of the facts in many criminal cases, I concluded that no *Associate
Professor,
Department
of Law, Carleton University, Ottawa, Ontario, Canada, KlS 5B6.
2
CHET MITCHELL
special rules were required for reasons of “public protection”, because intoxication rarely, if ever, negated criminal intent. Despite the availability of such evidence, it remains a fact that mental health professionals continue to testify in criminal court that intoxication can and does negate intent. Perhaps Shiner’s arguments will prompt some reconsideration. R. D. Mackay’s article, “The Taint of Intoxication”, chronicles some of the confusion attending application of intoxication doctrine and charts its spread into other criminal defences. According to Mackay, the courts’ critical attitude toward the self-intoxicated accused has recently been extended over-zealously to “taint” other defences. While the relationship between intoxication and insanity has not been fully addressed, that pairing is less problematic than the relationship between intoxication and automatism or mistake of fact, because in the latter case complete acquittal may follow, whereas the case of an insanity plea almost always results in some form of incarceration. Apparently judges are reluctant to allow a drug-related mistake of fact to result in acquittal because they believe such mistakes are too numerous and because they regard intoxication itself as wrongful and deserving of punishment. The concept is that one wrong should not be allowed to excuse another! The evidence on the relationship between violence and drug use does not generally support this punitive attitude or justify judges accepting self-induced intoxication as criminal recklessness - But accept it they do, as Mackay illustrates. Moreover, English courts recently added another layer of complexity to intoxication cases by deciding that only certain drugs are “dangerous”; a label that seems to depend on what most people are supposed to believe about a drug rather than on any objective pharmacological properties. The relationship between intoxication and insanity is explored at length in the article by Lawrence and Mary Tiffany, “Nosologic Objections to the Criminal Defense of Pathological Intoxication: What Do the Doubters Doubt?“. The papers by Mackay and Shiner, as well as my own work on intoxication, limit their coverage to the broad range of behaviours described as ordinary intoxication. The Tiffanys’ paper is therefore a welcome addition because they deal with what is perhaps the only genuine exculpating condition linked to acute drug use. First identified medically in 1869, pathological intoxication, in the Tiffany’s words, has been “an enigma to the criminal law for over a century.” Much of the difficulty here has stemmed from dissent within the psychiatric profession. The authors present the leading arguments against acceptance of “pathological intoxication”, and then offer a detailed critique of those positions. In criminal law, drug addiction is a derivative issue the relevance of which depends on intoxication doctrine and other primary law. If intoxication doctrine rules that involuntary intoxication can completely excuse a criminal act, and if addiction is regarded as a disease and thus a source of compelled drug taking, then addiction may be a crucial legal issue. Following this logic, controversy about claims of nonresponsibility on the part of alcoholics has usually focused on the issue of whether alcoholism is a disease that causes-lack of control over drinking. Opposition to the alleged compulsion experienced by drug addicts treds two different paths. One suggests that addiction is a nonissue because the resulting drug impairment, even if it is involuntary, is rarely of legal import. Here an analogy could be drawn to eating disorders; even if such
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
3
disorders are fully compulsive - a controversial matter in itself - such compulsion is of little legal significance. Only if intoxication itself is illegal will the addiction-disease argument have force. Prohibiting drug possession, which in most ways is more severe than prohibiting intoxication, has thus inspired medical efforts to excuse heroin or cocaine users as compelled victims. Laws against impaired driving or of being drunk in public do not work the same way, because even if the intoxication is compelled, the driving and the appearing in public are not. The second argument is that drug addiction in general, and alcoholism in particular, are not diseases; therefore, the alcoholic’s intoxication is not involuntary. Herbert Fingarette and Stanton Peele are two of the leading proponents of this position. Fingarette’s article, “Answering an Unasked Question: Can Alcoholics Be Honestly and Reasonably Mistaken in Believing They Can’t Control Their Drinking?” starts with the proposition, defended in Heavy Drinking- The Myth of Alcoholism as a Disease (1988), that the disease-lack-ofcontrol thesis is false. According to Fingarette, what may appear superficially to be lack of control on the part of heavy drinkers is actually unpredictability. That is, under certain conditions alcoholics will drink excessively while under different circumstances they will abstain or drink moderately. It is therefore vital to consider the incentives and disincentives affecting drug users. One such disincentive, though perhaps a weak one, is the law. Criminal law could, for instance, escalate penalties for intoxicated offenders on the grounds that intoxication increases the risk of harm to victims. This logic parallels the extra penalties applied to the carrying of firearms by offenders. However, if the criminal law courts accept that intoxication renders offenders non-responsible or that alcoholics cannot help themselves, then the law will provide incentives to drink. In any case, through an elegant and entertaining series of analogies, Fingarette demonstrates that an honest belief about one’s inability to control one’s drug intake cannot serve as a legitimate excuse. Stanton Peele’s article, “Does Drug Addiction Excuse Thieves and Killers from Criminal Responsibility?“, concludes that addiction should not operate as an excuse or criminal defence. Peele is concerned that “addictionology’‘-the identification and explication of new addictions -is a powerful, rapidly expanding pseudo-science that is perverting and obfuscating traditional understanding of self-control, personal responsibility and will-power. Peele argues that one of the best antidotes to addiction is to teach children respect for others and to enforce ethical standards. In contrast, once an experience is characterized as being out of control, then increasing numbers of people experience such loss of control and use it to justify their antisocial behaviour. In this and other ways, the modern, pseudo-scientific view of addiction causes addictive behaviour to grow. This controversial thesis is defended at much greater length in Peele’s recent book, Diseasing of America: Addiction Treatment Out of Control (1989). Both the book and this article should give mental health experts reason to be more cautious and critical about the validity of their courtroom testimony on issues of responsibility and drug impairment. Warren Lehman’s article, “Alcoholism, Freedom, and Moral Responsibility”, is an insider’s spirited defence of Alcoholics Anonymous (AA), and of the theory that alcoholism is a disease, or at least an illness. Lehman focuses much
4
CHET MITCHELL
of his criticism on Fingarette’s arguments set out in Heavy Drinking. A short response by Professor Fingarette to that criticism follows Lehman’s article. According to Professor Lehman, chronic alcohol use is frequently a response to the psychic pain caused by attempting to live in accordance with mistaken Western concepts about the nature of man. To explain the healing power of AA, he turns to Aristotle and Calvin as well as to theories of split-consciousness. In a seeming contradiction, AA emphasizes elements of both responsibility and non-responsibility. Lehman reconciles this split by reference to the roles played by the conscious and unconscious. It is only the conscious, rational part of the self that is “powerless” in the face of alcohol; once the “errant directives of the imperial consciousness” are subverted, healing begins and responsibility is taken. I find this line of thought appealing because of its wider application to mental illness, where I believe the causative role of the unconscious has been generally misunderstood. Viewing the symptoms of mental illness as an unconscious effort at repairing damage caused indirectly by conscious choices (Mitchell, 1986) is still a maverick opinion, but one that seems to accord with the tenents of AA and with traditional religious practice, according to Lehman. Legal doctrine on intoxication cannot be understood without reference to the political, social and ideological context in which judges render their decisions, despite the fact that the decisions themselves are almost totally devoid of background information. To some extent, the lack of contextualization is also true of medical testimony and opinion. Two centuries ago drug use was primarily a personal affair subject to communal and ecclesiastical strictures. Now drug use is a highly politicized matter subject to numerous and expanding criminal law controls. In seeking reasons for this dramatic change a number of parallel developments should be examined. One important change was the rise of modern psychiatry and the hegemonic expansion of the medical guild. Imbued with the modern scientific spirit of determinism pioneered in physics and chemistry, many medical and social theorists in the 19th century argued that mental illness, drug addiction and criminality resulted from inadvertent forces in biology, society or the unconscious. This challenge to traditional theories of responsibility shifted focus from retribution to rehabilitation, and from personal to extra-personal conditions. In the case of psychoactive drugs, in particular alcohol, the medical model helped generate a portrait of intoxicated offenders who were both highly dangerous and nonresponsible. The alleged dangerousness of various drugs, with marijuana, heroin, PCP, LSD, hashish, and cocaine periodically featured as “most dangerous”, logically justified legislators in passing laws ostensibly aimed at the drugs themselves. Certain noted medical authorities asserted that various drugs could turn ordinary, responsible citizens into crazed killers, maniacs and rapists. The State, therefore, had to prevent people from being “exposed” to these substances in the same way that public authorities prevented exposure to cholera or malaria, in order to -prevent the occurrence of an “epidemic” of drug abuse and criminality. Yet at the same time, medical experts asserted that the drug impaired offender, while highly dangerous, was not legally responsible. Thus medical theorizing justified both an escalation and a relaxation of legal controls. The article by Mimi Ajzenstadt and Brian Burtch, “Medicalization and Regu-
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
5
lation of Alcohol and Alcoholism: The Professions and Disciplinary Measures”, explores the manner in which the rise of modern professions and the medical-penal discourse transformed heavy drinking from an issue of individual choice to a question of social responsibility and surveillance. While the focus of control remained the individual subject-the inebriates, vagrants and feebleminded-and while techniques of control became more intensive and intrusive, legal rationality was undermined with respect to criminal responsibility. This process paved the way for vast overcriminalization and the concurrent dismissal of low scale, broad based efforts at controlling alcohol and drug availability through taxation, rationing, and the like. Central to this process was the development of scapegoats or “folk devils”, such as impaired drivers, pushers and drug addicts, against which medical, moral and police forces could join in a “holy alliance”. “Governing Images of Alcoholism in Germany, 1870- 1920”, the article in this issue by Irmgard Vogt, also considers the intellectual, medical and social roots of alcohol control that came to fruition in the 19th and early 20th century. The notion that alcoholism was a “disease” did not produce an easy consensus, as Vogt demonstrates. Huss, who recommended total, life long abstinence for alcoholics, attributed alcoholism to social, familial and hereditary factors. His thoughts however, were superceded by more purely hereditary views promoted by social-Darwinists. According to the leading theorists of the time, the working class suffered greater suceptibility to the “disease” of alcoholism, because of inherited defects such as weak will power. In turn, the concept of inherited degeneracy was translated by German psychiatrists into a theory of the psychopathic personality marked by abnormalities like chronic alcohol use. In fact, whatever features differentiated the drinking habits of the poor from the bourgeoise were characterized as signs of moral and psychological inferiority. A second development after 1800 involved the rise of anti-drug political organizations which sometimes began as temperance advocates but which usually evolved into sponsors of prohibition. Explaining this development is no easy task. Attitudes toward “foreign” or exotic drugs like the opiates, cocaine and marijuana were forged in the context of unprecedented Western colonialism in the Orient, of missionary idealism, of Chinese emigration to Canada and the United States, and of international competition for dominance in Pacific trade. Likewise, attitudes toward alcohol use grew in a complex amalgam of women’s rights, socialist uprisings, and a huge population shift from eastern and southern Europe to the New World. Whatever the precise reasons for its growth, antidrug sentiment served as a device whereby powerful segments of society could attack the “dangerous classes” and attribute blame for social failings to specified drugs, their users and purveyors. For example, in the early 1900s in the American South, the law enforcement net gathered in a disproportionate number of blacks, not, it was claimed, because of racist laws, bigoted police, or chronic neglect of black communities (indeed, such reasons were scarcely mentioned), but reportedly because of cocaine. Likewise, New York City’s deplorable state today is supposedly the result of heroin and crack, not municipal corruption, rent controls, inhuman architecture, block busting or perverse tax incentives. The war on drugs provides an ideal smokescreen behind which can hide all manner of political chicanery and abuse. Naturally, judges are affected
6
CHET MITCHELL
by the drug war propaganda. Indeed, those cases instrumental in expanding police powers and in excusing massive police intervention into private affairs are mostly drug cases. Most judges are not sympathetic to drug offenders or to abnormal drug use. A third development since 1800, although primarily from 1900, is the explosion of legislation and the resultant expansion of public policing and criminal offences. Vice offences unknown at common law have proliferated. The key to overcriminalization is the lack of legal standards and safeguards applied to legislative bodies. In prohibiting alcohol, for example, law makers generally did not face judicial scrutiny imposing demands that they offer plausible evidence justifying the proposed criminal statute. Instead, courts praised the merits of judicial restraint and reasoned that their function was not to inquire into the facts about whether prohibitory laws were or were not merited. It was enough that legislators “deemed” the existence of a drug threat. As a result, U.S. courts in the 1920s upheld laws requiring life imprisonment for alcohol bootleggers, just as they now uphold extreme penalties against narcotic merchants without the slightest organized effort to demonstrate that such penalties are deserved. Criminal trials thus exhibit an evidentiary paradox. To convict an individual drug offender, the prosecution must lead convincing evidence to prove all elements of the offence beyond a reasonable doubt. The standards of proof are high and the rules of evidence strict and complex. Criminal trials grow in length and expense partly because of increased expert testimony on broadly defined medical issues. Conversely, the law itself, which makes the prosecution possible, need not meet any standard of proof. Legislators are not obliged to consider expert evidence or to hear from affected parties in an adversarial or inquisitorial manner. As a result, evidentiary efforts are misallocated to the trial level where, at best, they insure that the accused are convicted fairly under unjust laws. Evidentiary rigour at trial, however, tends to end at the point of conviction. This allows the sentencing judge great latitude in compelling convicts to undergo whatever process the judge may think beneficial to the offender or to society. With impaired drivers, for example, Canadian and American judges regularly demand attendance at AA as one condition of parole. They do this despite AA’s own rules about voluntary attendance and despite any scientific consensus about the efficacy of AA. There are few constitutional limits on sentencing. Legally compelled attendance at a Church is forbidden because of formal, elucidated rights about freedom of religion; but to date I know of no jurisdiction that possesses similar rights about freedom of treatment. Also missing, are legal protections concerning freedom to possess and use one’s drug of choice. This makes it possible for lawmakers to prohibit any drug use and for judges to sentence drug offenders to rehabilitation units. This final mixture of state coercion and medical treatment raises numerous issues about medical ethics, confidentiality, and medical autonomy. Such issues are addressed in the article by Naftali Fish, Emi Shufman and Yair Barel, “Ethical and Legal Dilemmas of the Jerusalem Treatment Model for Drug Addiction”. Dilemmas naturally arise where treatment and police power mix because of the often conflicting nature of medicine and criminal law. Consent and cooperation are necessary, vital ingredients of the therapeutic relationship, but how
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
7
can these be developed and maintained when the illicit drug user being treated is under at least the implicit threat of exposure, prosecution and imprisonment? What if the drug clinic is controlled and funded by government, as the Jerusalem Drug Clinic is, and one department demands data that will identify illicit drug users under voluntary treatment? Should the therapist comply merely on the promise that further disclosure to law enforcement agencies would not occur, or is it necessary that clinics offer a sanctuary from police just as the medieval church provided sanctuary from secular law? Families and employers armed with maternalistic rationales may also request information about a client’s drug use. Should therapeutic sanctuary be complete, or if public safety exceptions are to be allowed, upon what standard of proof are clinicians to rely in accepting police demands? With the war-on-drugs mentality driving logically toward a “total war” concept, at least in the United States, clinicians involved in drug treatment may find themselves laboring under increasingly restrictive conditions. References Mitchell, C. N. (1988) “The Intoxicated Offender: Refuting the Legal and Medical Myths” 11 Internotional Journal of Law & Psychiatry, 77-103.
Mitchell, C. N. (1986) “Culpable Mental Disorder and Criminal Liability” 8 International Journal of Law &Psychiatry,
273-299.
copyright
01602527f90 53.00 + .OO 0 1990 Pergamon Press PIG
Intoxication, Criminality, and Responsibility Chet Mitchell*
Introduction Drug induced impairment can be legally relevant in numerous ways. At low levels of impairment, associated for example with social drinking, drug use can adversely affect memory, can render a person more vulnerable to victimization, and can cause drivers to be criminally impaired. At higher levels of impairment, generally subsumed under terms such as “intoxication”, drug use can be a factor or even the chief causal agent behind claims concerning automatism, insanity, and diminished capacity. Provocation and mistake of fact may also involve drug impairment. Most important, however, are issues of intoxication in regard to criminal intent or mens rea. Due to the fact that surveys indicate that approximately half of all persons convicted of both property and personal offences were intoxicated during the commission of their crime, legal policy on intoxication is of singular importance. Unfortunately, legal doctrine on intoxication is rather a jumbled mess in many jurisdictions. In Canada, the Supreme Court’s most recent cut at the issue, reported in Bernard v. The Queen (1989) 45 C.C.C. (3d), continued this unfortunate tradition. Despite a very thorough dissent from Chief Justice Dickson, in support of the High Court of Australia’s decision in O’Connor (1980), 4 Aust. Crim. R. 348, the Supreme Court followed the leading English case of Majewski (1976), which for the most part deserves the abundance of criticism it has received (and continues to receive in this edition). Roger Shiner’s article, “Intoxication and Responsibility”, reviews common law doctrine on point and then offers a comprehensive philosophical critique of that doctrine. Shiner argues that the confusing and illogical rules governing intoxication arose from the court’s assumption that protecting society from the harm done by intoxicated offenders could not be accomplished because of the prosecution’s difficulty in proving criminal intent. Shiner suggests that judicial thinking on this issue has been infected with a purely Cartesian picture of the human mind, a picture Shiner regards as mistaken. Once a more realistic understanding of intentionality is substituted, Shiner concludes that the whole issue of intoxication should be left to the fact finder (the jury) without applying any special rules or devices. In a recent issue of this Journal (Mitchell, 1988), I came to the same conclusion from a different perspective. On the basis of a survey of the scientific evidence concerning the effects of drug impairment on intention and on a careful review of the facts in many criminal cases, I concluded that no *Associate
Professor,
Department
of Law, Carleton University, Ottawa, Ontario, Canada, KlS 5B6.
2
CHET MITCHELL
special rules were required for reasons of “public protection”, because intoxication rarely, if ever, negated criminal intent. Despite the availability of such evidence, it remains a fact that mental health professionals continue to testify in criminal court that intoxication can and does negate intent. Perhaps Shiner’s arguments will prompt some reconsideration. R. D. Mackay’s article, “The Taint of Intoxication”, chronicles some of the confusion attending application of intoxication doctrine and charts its spread into other criminal defences. According to Mackay, the courts’ critical attitude toward the self-intoxicated accused has recently been extended over-zealously to “taint” other defences. While the relationship between intoxication and insanity has not been fully addressed, that pairing is less problematic than the relationship between intoxication and automatism or mistake of fact, because in the latter case complete acquittal may follow, whereas the case of an insanity plea almost always results in some form of incarceration. Apparently judges are reluctant to allow a drug-related mistake of fact to result in acquittal because they believe such mistakes are too numerous and because they regard intoxication itself as wrongful and deserving of punishment. The concept is that one wrong should not be allowed to excuse another! The evidence on the relationship between violence and drug use does not generally support this punitive attitude or justify judges accepting self-induced intoxication as criminal recklessness - But accept it they do, as Mackay illustrates. Moreover, English courts recently added another layer of complexity to intoxication cases by deciding that only certain drugs are “dangerous”; a label that seems to depend on what most people are supposed to believe about a drug rather than on any objective pharmacological properties. The relationship between intoxication and insanity is explored at length in the article by Lawrence and Mary Tiffany, “Nosologic Objections to the Criminal Defense of Pathological Intoxication: What Do the Doubters Doubt?“. The papers by Mackay and Shiner, as well as my own work on intoxication, limit their coverage to the broad range of behaviours described as ordinary intoxication. The Tiffanys’ paper is therefore a welcome addition because they deal with what is perhaps the only genuine exculpating condition linked to acute drug use. First identified medically in 1869, pathological intoxication, in the Tiffany’s words, has been “an enigma to the criminal law for over a century.” Much of the difficulty here has stemmed from dissent within the psychiatric profession. The authors present the leading arguments against acceptance of “pathological intoxication”, and then offer a detailed critique of those positions. In criminal law, drug addiction is a derivative issue the relevance of which depends on intoxication doctrine and other primary law. If intoxication doctrine rules that involuntary intoxication can completely excuse a criminal act, and if addiction is regarded as a disease and thus a source of compelled drug taking, then addiction may be a crucial legal issue. Following this logic, controversy about claims of nonresponsibility on the part of alcoholics has usually focused on the issue of whether alcoholism is a disease that causes-lack of control over drinking. Opposition to the alleged compulsion experienced by drug addicts treds two different paths. One suggests that addiction is a nonissue because the resulting drug impairment, even if it is involuntary, is rarely of legal import. Here an analogy could be drawn to eating disorders; even if such
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
3
disorders are fully compulsive - a controversial matter in itself - such compulsion is of little legal significance. Only if intoxication itself is illegal will the addiction-disease argument have force. Prohibiting drug possession, which in most ways is more severe than prohibiting intoxication, has thus inspired medical efforts to excuse heroin or cocaine users as compelled victims. Laws against impaired driving or of being drunk in public do not work the same way, because even if the intoxication is compelled, the driving and the appearing in public are not. The second argument is that drug addiction in general, and alcoholism in particular, are not diseases; therefore, the alcoholic’s intoxication is not involuntary. Herbert Fingarette and Stanton Peele are two of the leading proponents of this position. Fingarette’s article, “Answering an Unasked Question: Can Alcoholics Be Honestly and Reasonably Mistaken in Believing They Can’t Control Their Drinking?” starts with the proposition, defended in Heavy Drinking- The Myth of Alcoholism as a Disease (1988), that the disease-lack-ofcontrol thesis is false. According to Fingarette, what may appear superficially to be lack of control on the part of heavy drinkers is actually unpredictability. That is, under certain conditions alcoholics will drink excessively while under different circumstances they will abstain or drink moderately. It is therefore vital to consider the incentives and disincentives affecting drug users. One such disincentive, though perhaps a weak one, is the law. Criminal law could, for instance, escalate penalties for intoxicated offenders on the grounds that intoxication increases the risk of harm to victims. This logic parallels the extra penalties applied to the carrying of firearms by offenders. However, if the criminal law courts accept that intoxication renders offenders non-responsible or that alcoholics cannot help themselves, then the law will provide incentives to drink. In any case, through an elegant and entertaining series of analogies, Fingarette demonstrates that an honest belief about one’s inability to control one’s drug intake cannot serve as a legitimate excuse. Stanton Peele’s article, “Does Drug Addiction Excuse Thieves and Killers from Criminal Responsibility?“, concludes that addiction should not operate as an excuse or criminal defence. Peele is concerned that “addictionology’‘-the identification and explication of new addictions -is a powerful, rapidly expanding pseudo-science that is perverting and obfuscating traditional understanding of self-control, personal responsibility and will-power. Peele argues that one of the best antidotes to addiction is to teach children respect for others and to enforce ethical standards. In contrast, once an experience is characterized as being out of control, then increasing numbers of people experience such loss of control and use it to justify their antisocial behaviour. In this and other ways, the modern, pseudo-scientific view of addiction causes addictive behaviour to grow. This controversial thesis is defended at much greater length in Peele’s recent book, Diseasing of America: Addiction Treatment Out of Control (1989). Both the book and this article should give mental health experts reason to be more cautious and critical about the validity of their courtroom testimony on issues of responsibility and drug impairment. Warren Lehman’s article, “Alcoholism, Freedom, and Moral Responsibility”, is an insider’s spirited defence of Alcoholics Anonymous (AA), and of the theory that alcoholism is a disease, or at least an illness. Lehman focuses much
4
CHET MITCHELL
of his criticism on Fingarette’s arguments set out in Heavy Drinking. A short response by Professor Fingarette to that criticism follows Lehman’s article. According to Professor Lehman, chronic alcohol use is frequently a response to the psychic pain caused by attempting to live in accordance with mistaken Western concepts about the nature of man. To explain the healing power of AA, he turns to Aristotle and Calvin as well as to theories of split-consciousness. In a seeming contradiction, AA emphasizes elements of both responsibility and non-responsibility. Lehman reconciles this split by reference to the roles played by the conscious and unconscious. It is only the conscious, rational part of the self that is “powerless” in the face of alcohol; once the “errant directives of the imperial consciousness” are subverted, healing begins and responsibility is taken. I find this line of thought appealing because of its wider application to mental illness, where I believe the causative role of the unconscious has been generally misunderstood. Viewing the symptoms of mental illness as an unconscious effort at repairing damage caused indirectly by conscious choices (Mitchell, 1986) is still a maverick opinion, but one that seems to accord with the tenents of AA and with traditional religious practice, according to Lehman. Legal doctrine on intoxication cannot be understood without reference to the political, social and ideological context in which judges render their decisions, despite the fact that the decisions themselves are almost totally devoid of background information. To some extent, the lack of contextualization is also true of medical testimony and opinion. Two centuries ago drug use was primarily a personal affair subject to communal and ecclesiastical strictures. Now drug use is a highly politicized matter subject to numerous and expanding criminal law controls. In seeking reasons for this dramatic change a number of parallel developments should be examined. One important change was the rise of modern psychiatry and the hegemonic expansion of the medical guild. Imbued with the modern scientific spirit of determinism pioneered in physics and chemistry, many medical and social theorists in the 19th century argued that mental illness, drug addiction and criminality resulted from inadvertent forces in biology, society or the unconscious. This challenge to traditional theories of responsibility shifted focus from retribution to rehabilitation, and from personal to extra-personal conditions. In the case of psychoactive drugs, in particular alcohol, the medical model helped generate a portrait of intoxicated offenders who were both highly dangerous and nonresponsible. The alleged dangerousness of various drugs, with marijuana, heroin, PCP, LSD, hashish, and cocaine periodically featured as “most dangerous”, logically justified legislators in passing laws ostensibly aimed at the drugs themselves. Certain noted medical authorities asserted that various drugs could turn ordinary, responsible citizens into crazed killers, maniacs and rapists. The State, therefore, had to prevent people from being “exposed” to these substances in the same way that public authorities prevented exposure to cholera or malaria, in order to -prevent the occurrence of an “epidemic” of drug abuse and criminality. Yet at the same time, medical experts asserted that the drug impaired offender, while highly dangerous, was not legally responsible. Thus medical theorizing justified both an escalation and a relaxation of legal controls. The article by Mimi Ajzenstadt and Brian Burtch, “Medicalization and Regu-
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
5
lation of Alcohol and Alcoholism: The Professions and Disciplinary Measures”, explores the manner in which the rise of modern professions and the medical-penal discourse transformed heavy drinking from an issue of individual choice to a question of social responsibility and surveillance. While the focus of control remained the individual subject-the inebriates, vagrants and feebleminded-and while techniques of control became more intensive and intrusive, legal rationality was undermined with respect to criminal responsibility. This process paved the way for vast overcriminalization and the concurrent dismissal of low scale, broad based efforts at controlling alcohol and drug availability through taxation, rationing, and the like. Central to this process was the development of scapegoats or “folk devils”, such as impaired drivers, pushers and drug addicts, against which medical, moral and police forces could join in a “holy alliance”. “Governing Images of Alcoholism in Germany, 1870- 1920”, the article in this issue by Irmgard Vogt, also considers the intellectual, medical and social roots of alcohol control that came to fruition in the 19th and early 20th century. The notion that alcoholism was a “disease” did not produce an easy consensus, as Vogt demonstrates. Huss, who recommended total, life long abstinence for alcoholics, attributed alcoholism to social, familial and hereditary factors. His thoughts however, were superceded by more purely hereditary views promoted by social-Darwinists. According to the leading theorists of the time, the working class suffered greater suceptibility to the “disease” of alcoholism, because of inherited defects such as weak will power. In turn, the concept of inherited degeneracy was translated by German psychiatrists into a theory of the psychopathic personality marked by abnormalities like chronic alcohol use. In fact, whatever features differentiated the drinking habits of the poor from the bourgeoise were characterized as signs of moral and psychological inferiority. A second development after 1800 involved the rise of anti-drug political organizations which sometimes began as temperance advocates but which usually evolved into sponsors of prohibition. Explaining this development is no easy task. Attitudes toward “foreign” or exotic drugs like the opiates, cocaine and marijuana were forged in the context of unprecedented Western colonialism in the Orient, of missionary idealism, of Chinese emigration to Canada and the United States, and of international competition for dominance in Pacific trade. Likewise, attitudes toward alcohol use grew in a complex amalgam of women’s rights, socialist uprisings, and a huge population shift from eastern and southern Europe to the New World. Whatever the precise reasons for its growth, antidrug sentiment served as a device whereby powerful segments of society could attack the “dangerous classes” and attribute blame for social failings to specified drugs, their users and purveyors. For example, in the early 1900s in the American South, the law enforcement net gathered in a disproportionate number of blacks, not, it was claimed, because of racist laws, bigoted police, or chronic neglect of black communities (indeed, such reasons were scarcely mentioned), but reportedly because of cocaine. Likewise, New York City’s deplorable state today is supposedly the result of heroin and crack, not municipal corruption, rent controls, inhuman architecture, block busting or perverse tax incentives. The war on drugs provides an ideal smokescreen behind which can hide all manner of political chicanery and abuse. Naturally, judges are affected
6
CHET MITCHELL
by the drug war propaganda. Indeed, those cases instrumental in expanding police powers and in excusing massive police intervention into private affairs are mostly drug cases. Most judges are not sympathetic to drug offenders or to abnormal drug use. A third development since 1800, although primarily from 1900, is the explosion of legislation and the resultant expansion of public policing and criminal offences. Vice offences unknown at common law have proliferated. The key to overcriminalization is the lack of legal standards and safeguards applied to legislative bodies. In prohibiting alcohol, for example, law makers generally did not face judicial scrutiny imposing demands that they offer plausible evidence justifying the proposed criminal statute. Instead, courts praised the merits of judicial restraint and reasoned that their function was not to inquire into the facts about whether prohibitory laws were or were not merited. It was enough that legislators “deemed” the existence of a drug threat. As a result, U.S. courts in the 1920s upheld laws requiring life imprisonment for alcohol bootleggers, just as they now uphold extreme penalties against narcotic merchants without the slightest organized effort to demonstrate that such penalties are deserved. Criminal trials thus exhibit an evidentiary paradox. To convict an individual drug offender, the prosecution must lead convincing evidence to prove all elements of the offence beyond a reasonable doubt. The standards of proof are high and the rules of evidence strict and complex. Criminal trials grow in length and expense partly because of increased expert testimony on broadly defined medical issues. Conversely, the law itself, which makes the prosecution possible, need not meet any standard of proof. Legislators are not obliged to consider expert evidence or to hear from affected parties in an adversarial or inquisitorial manner. As a result, evidentiary efforts are misallocated to the trial level where, at best, they insure that the accused are convicted fairly under unjust laws. Evidentiary rigour at trial, however, tends to end at the point of conviction. This allows the sentencing judge great latitude in compelling convicts to undergo whatever process the judge may think beneficial to the offender or to society. With impaired drivers, for example, Canadian and American judges regularly demand attendance at AA as one condition of parole. They do this despite AA’s own rules about voluntary attendance and despite any scientific consensus about the efficacy of AA. There are few constitutional limits on sentencing. Legally compelled attendance at a Church is forbidden because of formal, elucidated rights about freedom of religion; but to date I know of no jurisdiction that possesses similar rights about freedom of treatment. Also missing, are legal protections concerning freedom to possess and use one’s drug of choice. This makes it possible for lawmakers to prohibit any drug use and for judges to sentence drug offenders to rehabilitation units. This final mixture of state coercion and medical treatment raises numerous issues about medical ethics, confidentiality, and medical autonomy. Such issues are addressed in the article by Naftali Fish, Emi Shufman and Yair Barel, “Ethical and Legal Dilemmas of the Jerusalem Treatment Model for Drug Addiction”. Dilemmas naturally arise where treatment and police power mix because of the often conflicting nature of medicine and criminal law. Consent and cooperation are necessary, vital ingredients of the therapeutic relationship, but how
INTOXICATION,
CRIMINALITY,
AND RESPONSIBILITY
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can these be developed and maintained when the illicit drug user being treated is under at least the implicit threat of exposure, prosecution and imprisonment? What if the drug clinic is controlled and funded by government, as the Jerusalem Drug Clinic is, and one department demands data that will identify illicit drug users under voluntary treatment? Should the therapist comply merely on the promise that further disclosure to law enforcement agencies would not occur, or is it necessary that clinics offer a sanctuary from police just as the medieval church provided sanctuary from secular law? Families and employers armed with maternalistic rationales may also request information about a client’s drug use. Should therapeutic sanctuary be complete, or if public safety exceptions are to be allowed, upon what standard of proof are clinicians to rely in accepting police demands? With the war-on-drugs mentality driving logically toward a “total war” concept, at least in the United States, clinicians involved in drug treatment may find themselves laboring under increasingly restrictive conditions. References Mitchell, C. N. (1988) “The Intoxicated Offender: Refuting the Legal and Medical Myths” 11 Internotional Journal of Law & Psychiatry, 77-103.
Mitchell, C. N. (1986) “Culpable Mental Disorder and Criminal Liability” 8 International Journal of Law &Psychiatry,
273-299.
