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Criminal responsibility is founded on the volitional control of action, yet many offences are committed whilst intoxicated. Alcohol is a widely-used intoxicant known to impair behavioural control and memory, opening the door to claims of partial or absent responsibility. Criminal law rules have developed to resist such claims. In particular, findings of criminal responsibility in intoxicated offenders frequently call on ‘prior fault’ logic: the intoxicated offender may claim to have been irrational, but culpability can be imported from their earlier, rational choice to consume intoxicants (Robinson, 1985). That drunkenness does not excuse derives from an unforced choice to become drunk. Yet this raises questions over the extent to which an alcoholic’s choice to drink is unforced. Current neurobiological models of addiction stress compulsion as a primary component, bringing into question the volitional nature of continued consumption (Volkow & Fowler, 2000; Dalley, Everitt, & Robbins, 2011). At the same time, some legal scholars have noted that the potentially fatal nature of alcoholic withdrawal could likewise undermine suggestion that consumption is voluntary, drawing analogy to a defence of duress where actions have been forced under the threat of death (Husak, 1999; Yaffe, 2013). We asked 290 UK Magistrates to consider a criminal sentencing scenario in which evidence of a defendant’s state of intoxication at the time of the offence was presented in tandem with information that they were either teetotal, a casual drinker or an alcoholic. We found that intoxication reduced blameworthiness for criminal acts if the offender had no previous experience with alcohol whilst, in direct contrast, intoxication served to aggravate offending if the defendant was an alcoholic. The likelihood of our defendant receiving a reduced sentence was over ten times greater in the event that, though intoxicated, they were not also an alcoholic. Leniency was blocked by alcoholism despite Magistrates’ qualitative responses suggesting its understanding as a generally mitigating factor, revealing a disconnect between expressed opinion and sentencing behaviour in practice. Our results indicate that, far from excusing drunkenness, the state of being an alcoholic is more frequently deemed to aggravate offending, being associated with harsher sentencing even where the offence in question was committed whilst sober.

Debates continue over whether the prevailing neuroscientific model of addiction as a brain disease informs questions around moral and criminal responsibility, but little empirical work has been conducted with those tasked to address this question in practical terms on a daily basis. We have explored this point over two studies, respectively sampling 110 and 276 Magistrates active in the UK. In the first study we asked them to consider a criminal sentencing scenario in which evidence of a defendant’s brain damage and impaired impulse control was presented. This neurological damage was attributed to either a (fictional) disease or to addiction. When the same neuropsychiatric profile resulted from disease, rather than heroin use and addiction, custodial sentences were significantly reduced. The pivotal factor denying addiction the mitigating power of disease was perceived choice in the initial acquisition; removing choice from addiction dramatically increased the odds of sentence reduction, while attaching choice to disease tended to aggravate or reverse earlier leniency. The second study presented another criminal sentencing scenario in which the defendant exhibited similar neurological impairment, but additionally included ‘mixed’ aetiologies in which either disease led to addiction or addiction led to disease. Our results confirm the dramatic effect which the aetiology of impairment can have on judgements of criminal responsibility, whilst moreover give suggestion that drug-use tips the balance in favour of the punitive element when weighing criminal sentencing decisions.