In the current trial of Michael K. Deaver, the former White House aide who is accused of lying to Congress and a grand jury about his lobbying activities, his lawyers are trying to convince a jury that his lying was unintentional. They contend that he gave investigators inaccurate answers only because his memory was impaired by his long problem with alcoholism.
There is no reason to doubt that Deaver has an alcohol problem. The central issue is whether alcohol intoxication or alcoholism can, or should, be used as an excuse for committing a crime.
Since the 1950s, the idea that alcoholism is a disease, characterized by loss of control, has gained prominence. By adopting this definition, we have gone from defining alcoholism as a sin or a crime calling for self-control or punishment, to defining it as a medical problem calling for therapy and treatment.
While defining alcoholism as a disease remains open to medical debate, it has significant ramifications for legal culpability. In all criminal cases where alcoholism is used as a defense, the key issue is the charge of involuntariness. Uncontrollable excess drinking is seen as a symptom of the disease of alcoholism. It is not the drinking per se that is the criminal offense. There is nothing in the disease concept of alcoholism that says alcoholics are compelled to commit any specific crime. The compulsion is only the compulsion to drink. Typically such cases involve the mental state when the person committed the act and how it was affected by the intoxication.
Deaver's defense has focused not on the role of alcohol intoxication in his lobbying activities, but on the role of intoxication in his ability to recall those activities. Because this is a jury trial, the defense has only to create a permissible inference, a doubt, in the minds of the jury, especially in a complex case such as this one.
The evidence about Deaver's alcoholism and mental state has been contradictory. The questioning during the trial shows a misunderstanding about the effects of alcohol use on behavior such as memory. Alcohol intoxication does not typically affect memories that were formed before the drinking incident. It has its most significant effect on encoding new information that involves organizing and integrating information with pre-existing knowledge.
To establish this defense for Deaver, there needs to be a detailed examination of the events surrounding an alleged lobbying activity, including whether alcohol was consumed in sufficient quantities before, during or after the alleged activity. It would be incorrect to conclude, as it appears the defense is trying to do, that if it could be established that Deaver was a clinically defined alcoholic and he has experienced some memory lapses, it is by definition due to the disease of alcoholism and he is therefore not liable. It should also be remembered that alcoholics develop tolerance for handling their drinking and they are frequently able to maintain high levels of functioning while intoxicated.
Society is faced with a dilemma. While acknowledging that drinking is socially acceptable, and that alcoholics need treatment, society has a responsibility to maintain order and foster responsibility. If society were to excuse the alcoholic from the consequences of his behavior, even if he cannot remember it, it would be tantamount to giving people carte blanche to get intoxicated and commit any action, free of legal responsibility.
The law must focus on the voluntariness of the first drink. If a person freely chooses to take the first drink and is free from mental defect, then he must be criminally responsible for his behavior, whether it be murder or lying.
Michael Deaver needs our compassion. He needs continued treatment for his alcohol problem. But his drinking should not absolve him from his responsibility to uphold the law.