The construction of responsibility in the criminal law.

• Author: Boldt, Richard C.

TABLE OF CONTENTS INTRODUCTION 2246 I. INTENTIONALISM AND DETERMINISM 2254 A. Individual Responsibility and the Process of Reflection 2256 B. Praising and Blaming as Social Practice 2262 1. Theory Versus Practice 2264 2. Dualism 2269 C. The Ideological Function of Criminal Law Blaming Practice 2278 II. THE PROBLEM OF CHEMICALLY-DEPENDENT OFFENDERS 2285 A. The Judicial Debate 2288 B. The Debate Over Chemical Dependency as a Disease 2295 1. The "Disease Model" of Addiction and Alcoholism 2296 2. Criticisms of the "Disease Model" 2300 3. The Fundamental Incompatibility of Medical and Legal Models of Behavior 2304 III. CRIMINALIZATION VERSUS MEDICALIZATION 2308 A. The Link Between Substance Abuse and Crime 2310 B. The Case for Partial Decriminalization 2313 1. Decriminalization 2314 2. System Overload and Racial Disparity 2316 3. The "War on Drugs" and Distorted Discourse 2320 CONCLUSION 2331 INTRODUCTION

All human behavior can be understood from two perspectives. The first, which can be thought of as objective in nature, holds that conduct is always the product of some matrix of causal factors that necessarily determines choice.(1) The second, which one writer has labeled the "participant" perspective,(2) regards the great bulk of human activity as having been produced through the agency of an individual's free will.(3) It is this second perspective that is generally given voice in the criminal law.

Considerable scholarly attention has been paid to these competing perspectives and to the ways in which criminal law doctrine reflects an ongoing tension between them.(4) Some of this scholarship has addressed directly the special problems posed by chemically-dependent(5) offenders, since both perspectives can so plausibly explain alcoholic or addictive behavior.(6) In fact, a careful study of the criminal law's treatment of chemical dependency forces to the surface this essential tension and creates an unusual opportunity to consider fundamental questions of human personality and action.

The thesis of this article is that the criminal law--indeed, the legal system generally--does more than simply express an intentionalist perspective. Rather, it is a vital societal mechanism by which that perspective is created and maintained, and the causal or objective perspective obscured.

A key element in this construction(7) of individual responsibility, and a key feature of excuse theory generally, is the criminal law's rather stylized treatment of the human capacity for practical reasoning.(8) As a theoretical matter, it is fair to assert that the process of practical reasoning, through which alternative courses of conduct are weighed and decisions reached, is itself, in every instance, fully determined by factors beyond the autonomous control of the actor.(9) At the same time, conduct which results from this sort of cognitive work does seem to belong to the human actor. It is in this respect that conduct can be simultaneously described as determined and free.

For purposes of figuring criminal responsibility, however, a dualist conception of conduct will not suffice. If the actor can be said to have engaged in a process of practical reasoning, responsibility ordinarily will be assigned and the matrix of causal factors that shaped that reasoning process will, along the way, be obscured. If, on the other hand, the actor was unable in a meaningful fashion to engage in the cognitive enterprise essential to decision making, it is likely that responsibility will not be assigned and the deterministic roots of his or her conduct will remain visible.

Because both an intentionalist and a determinist account can readily be applied to the behavior of chemically-dependent actors, the treatment that courts have accorded the occasional requests for recognition of a loss-of-control excuse(10) offers an unusual opportunity to study the criminal law's ideological(11) functioning. At one level, it is probably accurate to say that chemically-dependent offenders regularly have been held criminally responsible for conduct such as possession of narcotics, despite their claims that such conduct is the result of a compulsion beyond their control, because they have failed to convince courts that they are disabled from engaging in a process of practical reasoning. At a deeper level, the failure of these exculpatory claims represents a recognition that acceptance of a loss-of-control defense for addicts and alcoholics could fundamentally undermine the system's capacity to articulate an ideology of individual responsibility.

Perhaps the most elaborate working out of the tension between intentionalism and determinism as a substantive criminal law matter occurred in 1973, when the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, decided United States v. Moore.(12) The defendant in this case had appealed his conviction for possession of heroin on the grounds that, because he was an addict "with an overpowering need to use heroin," he should not have been held criminally responsible.(13) Essentially, Moore's claim of nonresponsibility was founded upon a deep strain within Western jurisprudence that holds that conduct is blameworthy only when it is the product of the actor's free will.(14) At the same time, Moore's account of his heroin addiction and its effect on his capacity to exercise free choice was a specific example of a general determinist view of human behavior that carries the potential to undermine the ascription of responsibility whenever a person has acted.(15) While Moore's appeal was unsuccessful, it provoked a judicial conversation of uncommon erudition, by a court of national stature, regarding this fundamental tension within the criminal law.

The Moore opinions are deserving of careful analysis despite the fact that the case is nearly twenty years old. The insight that such an analysis yields has a direct bearing on current controversies involving the use of the criminal law to fight a "war on drugs."(16) Despite strong claims on the part of those who have pressed for a loss-of-control defense that addiction is a disease, the court in the Moore case, like other courts facing similar claims, refused to create a new excuse, because to do so would have undermined the criminal law's capacity to articulate a compelling intentionalist account of human behavior. That account, in turn, is a central feature of our normative landscape.

Ironically, although the threat to the ideological functioning of the criminal law posed by cases like Moore was met squarely and resolved when posed as a question of substantive doctrine, it has resurfaced more recently as the operational consequence of efforts to employ a criminal law enforcement strategy to combat drug and alcohol abuse. This strategy has resulted in a massive increase in the volume of cases within the system.(17) Moreover, the vast majority of these additional drug-and alcohol-related cases involve defendants drawn from distinct, subordinated populations.(18) The combination of these two developments has led increasingly to a new style of adjudication. Currently, in many criminal courts around the country, the individualized accounts central to an intentionalist ideology are being replaced by a group-based orientation that has introduced a new, potentially destructive form of determinism into the system.

Individualized adjudications make possible the attribution of responsibility on the basis of a defendant's freely chosen conduct. Group-based adjudications hold defendants responsible for who they are rather than for what they have done. Accounts of the first type are significant moments in the normative life of the community, because they assist us in managing the intentionalist/determinist tension that inheres in all human behavior. Narratives of the latter variety also carry important moral weight. Unfortunately, however, because they tend to convey the message that defendants are blameworthy due to their racial and class characteristics, these accounts form the normative basis for the systematic exclusion of whole groups from the social and economic functioning of the community.

Part I of this article examines formal blaming within the criminal law as ideological practice. This form of analysis is undertaken at length because it provides a vocabulary and a conceptual framework for the subsequent consideration, in Part II, of how criminal responsibility is assigned and excuses granted or denied, and in Part III, of how the criminal justice system ought to be deployed as a mechanism for social control. The problem of chemically-dependent offenders is raised throughout the article in order to create a window through which to view the larger institutional role of the criminal law.

The analysis begins with a description of the lurking tension between intentionalism and determinism that has long interested criminal law scholars. To appreciate fully this theoretical conundrum, the article offers one account of the longstanding philosophical debate over the compatibility or incompatibility of free will and universal causation.

Next, the article sets out the work of one scholar who has sought to reduce the opposed pull of intentionalism and determinism by arguing for the moral significance of practical reasoning.(19) Despite the intellectual force of this theory of responsibility, the article argues that there is an uneasy fit between theoretical views that urge the predominant moral significance of cognitive activity on the one hand, and our everyday practice of assigning blame and granting excuses on the other. The first part concludes by suggesting that it is important to distinguish between theories of responsibility and our everyday experience in making moral attributions because doing so makes it possible to unmask an essential coexistence of intentionalism and determinism which is otherwise obscured through the ideological functioning of the...