Resisting tracing's siren song.

Author:Agule, Craig K.

IT IS AN UNFORTUNATELY FAMILIAR FACT that intoxication can lead people to act improperly, even criminally. Consider Elie Joseph Arsenault. (1) In June 1954, Arsenault shot and killed Harriet Hinckley, his drinking partner and intimate. The murder occurred at the end of a days-long drinking binge, after Arsenault and Hinckley had shared 11 pints of liquor accompanied by barbiturates. Arsenault remembered little--not shooting Hinckley, not telephoning the police, not confessing to the crime.

Incapacitated wrongdoers like Arsenault pose a problem for reasons-responsiveness accounts of moral responsibility. Those accounts are powerful and popular--it seems right that moral responsibility depends upon an agent's having the capacities to perceive and act upon moral reasons. But, while Arsenault's intoxication likely incapacitated him at the time of his crime, surely he should not be excused from blame. In order to address such cases, many reasons-responsiveness advocates include a tracing condition to supplement the ordinary conditions of responsibility. The intoxicated wrongdoer is blameworthy despite his incapacitation precisely because he is responsible for becoming incapacitated. We hold him responsible for his intoxicated wrongdoing by tracing back to his responsibility for becoming intoxicated. Arsenault was responsible for becoming intoxicated, and his responsibility for the later murder of Hinckley can be traced back to that earlier responsibility.

But not everyone has accepted tracing. One challenge notes that we do not need tracing to blame culpably incapacitated agents. We can hold these agents accountable for their behavior in becoming incapacitated and for the foreseeable consequences of that behavior, and we can do so without taking on the apparent costs of tracing. I go further--I claim that tracing gets things wrong. To show this, I consider a different sort of case: the Odysseus case. Odysseus incapacitated himself in order to sail safely past the Sirens. Arsenault's incapacity was improper; Odysseus' was not. And had things worked out poorly for Odysseus, had his incapacity led to some later wrongdoing, he would have been unlucky but not blameworthy. The core reasons-responsiveness account agrees, but tracing accounts expose unlucky Odysseus agents to blame. Since reasons-responsiveness responsibility appears to get us what we want (as urged by the first challenge) and tracing gets us verdicts that we do not want (as shown by my new challenge), we should reject tracing.

  1. Ordinary Responsibility and the Motivation for Tracing


    Tracing is often offered as a supplement to reasons-responsiveness accounts of moral responsibility. Following Gary Watson (1996), we can distinguish between two sorts of responsibility: attributability and accountability. When we hold someone responsible for some action in the attributability sense of responsibility, we make an aretaic judgment about them on the basis of their behavior. But here we are interested in responsibility as accountability. When we hold someone responsible for some action in the accountability sense, we are disposed to react to them in certain ways, in particular with blame or punishment for improper behavior. (2) Reasons-responsiveness accounts of responsibility are offered to explain the conditions of this accountability sort of responsibility.

    Reasons-responsiveness accounts associate accountability with the ability to respond in the right way to moral reasons. Many reasons-responsiveness theorists then identify the ability to respond in the right way to moral reasons with two normative capacities: the cognitive capacity to discern moral reasons and the volitional capacity to act upon moral reasons. (3) While there is significant disagreement regarding exactly how to pick out the two capacities, the reasons-responsiveness theorists ground responsibility largely (or wholly) on the possession of these two normative capacities.

    The reasons-responsiveness account fits well with thinking of responsibility as grounded in concerns about fairness. R. Jay Wallace (1994) picks out the conditions of blameworthiness by looking at when it would be fair to expect others to heed moral reasons, and David Brink and Dana Kay Nelkin (2013) pick out responsibility by considering the importance of the fair opportunity to avoid wrongdoing. Thinking of fairness can explain why we think that insanity excuses, why we think that duress sometimes excuses and sometimes mitigates, and the like. An agent who lacked the capacities to respond to the moral reasons at hand could not fairly be expected to respond to those moral reasons. But, for agents who are sensitive in the right way to moral reasons, it seems fair to demand that they take account of those moral reasons, and it seems fair to hold them responsible when they fail to do so.

    A basic reasons-responsiveness account of responsibility claims that reasons-responsiveness is at least necessary (and maybe also sufficient) for moral responsibility. I will call such an account the ordinary-responsibility account. On an ordinary-responsibility account, an agent is responsible for a wrongdoing only if, when the agent committed the wrongdoing, the agent was able to discern and act upon the reasons that counted against committing the wrong. That is, responsibility requires that the ordinary conditions of reasons-responsiveness be met at the time of the wrongdoing. And, at least in the typical cases, reasons-responsiveness is also sufficient for responsibility. (4) If the agent could have understood that the action was wrong, and if the agent could have acted upon that understanding, then the agent is responsible for failing to do so.

    On the ordinary-responsibility account, an agent's responsibility for some bit of wrongdoing depends upon facts about the agent at the time of the wrongdoing. If the agent was reasons-responsive at the time of the wrongdoing, then the agent is responsible for the wrongdoing, and if the agent was not reasons-responsive at the time of the wrongdoing, then the agent is not responsible for the wrongdoing. Of course, that the agent's history does not matter for questions of responsibility for wrongdoing does not entail that the agent's history does not bear on any aspect of the agent's responsibility. John Martin Fischer and Mark Ravizza's (1998) account of responsibility for consequences, for instance, is historicist. To determine whether an agent is responsible for some consequence, we must consider whether the agent had the requisite sort of control at some relevant point prior to the consequence. To be fully developed, the ordinary-responsibility account should have something to say about the conditions of responsibility for the consequences of one's actions, including cases in which one of the consequences of an action is some further wrongdoing. I will return to questions about responsibility for consequences later. But, while the broader account of responsibility might be mixed, the ordinary-responsibility account's treatment of responsibility for wrongdoing is ahistorical. (5)


    But many reasons-responsiveness theorists deny that responsibility for wrongdoing is an ahistorical evaluation. Fischer and Ravizza, for instance, consider Max, a drunk driver. Max drinks so much that he is "almost oblivious to his surroundings" (1998: 49). Intoxicated, he attempts to drive home and, unfortunately, strikes and kills a child in a crosswalk. By assumption, Max's intoxication left him non-reasons-responsive, both when he decided to drive and when he struck and killed the child. This suggests that Max might be excused under the ordinary-responsibility account's ahistorical analysis of responsibility. Nonetheless, intuitively, he is to blame. Cases like Max's suggest that ordinary responsibility is explanatorily inadequate.

    Fischer and Ravizza explain that drunk drivers like Max are responsible for their intoxicated behavior because they are responsible for becoming intoxicated. Fischer and Ravizza hold culpably incapacitated agents responsible for their culpably incapacitated wrongdoing by tracing responsibility for the wrongdoing back to responsibility for the prior behavior that led to the incapacity. As they explain:

    When one acts from a reasons-responsive mechanism at time T1, and one can reasonably be expected to know that so acting will (or may) lead to acting from an unresponsive mechanism at some later time T2, one can be held responsible for so acting at T2 (50). Tracing allows us to hold an incapacitated agent responsible for her wrongdoing so long as there was some prior moment when the agent could act to avoid her incapacitation and could reasonably foresee her subsequent incapacity and wrongdoing.

    Tracing offers to address the explanatory inadequacy that appeared to threaten ordinary responsibility. Return to Max, Fischer and Ravizza's drunk driver. By hypothesis, Max was not incapacitated at the time he was drinking, and he could reasonably have been expected to know that drinking to excess could lead him to act wrongly while incapacitated. (6) When he did later drive while intoxicated to the point of incapacity, we ground responsibility for the intoxicated driving by tracing back to his responsibility for drinking to the point of intoxication.

    In addition to appearing to explain our intuitions about culpable-incapacity cases, tracing tracks the way courts have regarded intoxication as a defense. The Model Penal Code, prepared as an advisory guide for legislatures and courts, provides an affirmative defense to defendants whose intoxication interferes with their cognitive or volitional normative capacities, but it allows this defense only when the intoxication was not self-induced. (7) Applying similar reasoning, the Supreme Court of Minnesota addressed the responsibility of a hit-and-run driver who claimed to have been unwittingly incapacitated by his prescribed medicine. (8) The court ruled that...

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