Please Drink Responsibly: Can the Responsibility of Intoxicated Offenders Be Justified by the Tracing Principle?

Abstract

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.

Keywords: Intoxication, Responsibility, Capacitarianism, John Martin Fischer, Semi-Compatibilism, Tracing