ABSTRACT

In the eyes of many, substance abuse is a matter of personal poor judgment in decision making. In spite of significant popular and scientific literature suggesting that addiction is a condition that has at least some organic and genetic inputs, having a drug or alcohol problem still equates with having a character deficiency. The law reflects this not uncommon perspective in that “being under the influence” of mindaltering substances is not exculpatory unless involuntary ingestion is involved. Furthermore, as is seen below, substance abuse may lead to enhancement of sentence severity. However, substance abuse has also been mitigating for sentencing purposes, ranging from an explicit affirmative defense in California of “diminished actuality” to nebulous so-called “waste-basket” mitigation clauses that permit the defendant to raise any factors of possible consequence. Forensic evaluation focused on the sentencing phase thus takes place in a complex and often uncertain legal context.