#17090 - Constitutional Excuse - Criminal Law

CONSTITUTIONAL EXCUSE

• Robinson - excuse ok because the law criminalizes status, disease and involuntariness

  • Crime - addicted to use of narcotics, violates 8th amendment cruel and unusual punishment

  • LIMITED by Powell

• Powell:

  • RULE: cannot criminalize status (bc violates 8th amendment cruel and unusual punishment)

    • Status: addicted to drugs, alcoholic, illness

  • BUT can criminalize actions flowing from status (involves a culpable choice)

    • Actions: Possession, dealing, public intoxication

    • Because more control and choice

    • If we give them excuse, they post the greater risk of reoffending - want to protect public safety

    • Other theories (for why Marshall, a liberal icon, decided this)

      • Separation of powers

      • Federalism

      • Worry that if give such a defense, minorities would not be able to use defense and majority would actually use the defense against minorities

      • Want to encourage people to control their status

      • Medical knowledge evolving and uncertain, don't want to codify in Constitution

      • Prefer shorter punishment over longer civil commitment periods

  • White's alternative approach

    • RULE: if the person who committed an act flowing from a status could not have taken precautions , cannot punish them

    • Ask if person could have taken precautions (yes, punish // no, unconst. To punish)

      • Opening for defense for homelessness - no choice but to be in public

• Moore

  • Reiterates the approach of Powell

  • Here the crime is not status but (heroin) possession, 8th amendment does not apply

  • Concurrence: criminal law is a means to exercise social control and encourage people to comply

• Criticism: should extend excuse to acts flowing from addiction

  • Not blameworthy

  • Lack capacity to conform conduct, no true free will/volition

• Related topics

  • Legislature giving defense of addiction - pros and cons

    • Yes because culpability (but limit the defense because slippery slope problem?)

    • No because want people to exercise control

  • Rotten social background defense (environment deprivation- social and economic) (RSB)

    • Only extreme poverty?

      • Or also extreme wealth

    • GOOD:

      • Poor environmental conditions do effect changes within individual's cognitive and volitional control

      • Benefit society because people will try to improve social conditions

    • BAD:

      • All environments affects choices but never completely eliminates power of choice

      • Voiding prosecution of people who give into temptation and make bad choices is paternalistic

      • If give this defense, people do not make an effort to refrain from crime

      • Difficulty of proof that one was affected by RSB

      • Use other methods: give better defense for indigent defendants, pay greater attention to street level policing abuses

  • Civil commitments

    • Involuntary, supported because not a punishment model, but a treatment/rehabilitation model

  • Problem solving courts/Diversion measures

    • Drug courts, mental health courts, veteran courts, domestic courts

    • Can be effective and cheaper than incarceration

    • But concerns about net widening, not effective, paternalistic, only get low risk people

  • Defense of intoxication

    • Generally very limited: either no such defense or defense only if negates MR (and still charge with recklessness - intoxication equated to a reckless action)

  • Distinction between excusing legal insanity but not actions flowing from status

    • Legal insanity: less volitional control and less choice

Summary