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No questions of criminal justice are more fundamental than the bases for imposing criminal punishment, yet the Federal Constitution says nothing explicit about them. It is, therefore, understandable that the increasing limitations imposed by constitutional interpretation upon procedures for ascertaining criminal guilt have not been accompanied by similar limits upon principles of criminal responsibility. That the difference in treatment is understandable does not, of course, necessarily mean it has been justified.

When the Court struck down a law punishing addiction in Robinson v. California in 1962, it was still unclear whether it was willing to become significantly implicated in developing parts of the criminal law of excuses as aspects of constitutional law. The Court hedged potentially broad principles with careful, if confusing, narrowing language. The inconclusive disposition of Powell v. Texas in 1968 leaves that question open, but the opinions suggest possible paths of development and some serious pitfalls. The case directly concerns the punishment of a chronic alcoholic for public drunkenness, but it has obvious relevance for a variety of claims that an otherwise criminal act was not freely performed. My focus in discussing Powell is not on its likely effect upon society's treatment of alchoholics, a subject of great importance, but rather on the relationship between the constitutional claim raised by Powell and traditional principles of criminal responsibility. I also consider the extent to which these principles should be decided by the Supreme Court as matters of constitutional law instead of by legislative determination or common law development. This piece explores a good deal more than it resolves, even to the author's satisfaction.


Criminal Law | Criminal Procedure | Law | Science and Technology Law


This article originally appeared in 69 Colum. L. Rev. 927 (1969). Reprinted by permission.