Contextual culpability: How drinking and social context impact sentencing of violence
| Author | Emma D Watkins,Jose Pina-Sánchez,Carly Lightowlers |
| Date | 01 July 2022 |
| Published date | 01 July 2022 |
| DOI | 10.1177/1748895820972160 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895820972160
Criminology & Criminal Justice
2022, Vol. 22(3) 442 –461
© The Author(s) 2020
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DOI: 10.1177/1748895820972160
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Contextual culpability:
How drinking and social
context impact sentencing
of violence
Carly Lightowlers
University of Liverpool, UK
Jose Pina-Sánchez
University of Leeds, UK
Emma D Watkins
University of Roehampton, UK
Abstract
The controversial effect of intoxication on sentencing outcomes has received renewed attention
with a series of new empirical studies. However, these studies have relied on survey data that
conflate alcohol and drug intoxication and miss pertinent contextual features of the offence.
This article explores how alcohol intoxication, and its social context, impact sentence outcomes
for violent offences. To do so, the probability of custodial sentence severity is modelled using
multilevel Cox regression using data from online sentence transcripts. Findings contribute insights
into how punishment is shaped by not only the presence of alcohol intoxication in offending but
also in which contexts by highlighting the significant punitive effects of reference to concomitant
drug use, the defendant drinking together with the victim and if the offence occurred in a
private setting. This helps clarify complex considerations taken into account by sentencers when
processing cases and the need for clearer guidance.
Keywords
Alcohol, courts, intoxication, judges, sentencing, violence
Corresponding author:
Carly Lightowlers, Department of Sociology, Social Policy and Criminology, University of Liverpool,
Chatham Street, Liverpool, L69 7ZR, UK.
Email: c.lightowlers@liverpool.ac.uk
972160CRJ0010.1177/1748895820972160Criminology & Criminal JusticeLightowlers et al.
research-article2020
Article
Lightowlers et al. 443
Background
Intoxication is a contentious sentencing factor (Dingwall and Koffman, 2008; Padfield,
2011), with recent studies exploring its application in determining punishment (Irwin-
Rogers and Perry, 2015; Lightowlers, 2019; Lightowlers and Pina-Sánchez, 2017). These
studies have relied upon the most comprehensive national data source for scrutinising
sentencing practice, the Crown Court Sentencing Survey (CCSS). The level of detail
afforded by the CCSS has been praised widely (Pina-Sánchez and Grech, 2018; Roberts
and Hough, 2015). However, for the specific factor of intoxication, the detail offered by
the survey is limited. The CCSS questionnaire conflates alcohol and illicit drug intoxica-
tion and does not distinguish the context of the intoxication and related offending.
While recent studies find intoxicated aggressors are blamed more so than sober
aggressors, earlier observational court studies offered divergent findings; suggesting
intoxication can serve both as a mitigating and aggravating factor (Dingwall, 2006;
Padfield, 2011; Rumgay, 1998; Shapland, 1981). Having studied appellate decisions in
the Australian context, Quilter and McNamara (2018) remarked that the ‘ubiquity of the
term [intoxication], the complexity of the relationship between intoxication evidence and
determinations of criminal responsibility is often underappreciated’ (p. 187). They found
that ‘depending on a range of site-specific and case-specific considerations, intoxication
evidence may expand/contract the parameters of criminal responsibility’, yielding higher
or lower criminal penalties (McNamara et al., 2017: 148).
In England and Wales, the Crown Court is responsible for dealing with more serious
crimes, such as murder, rape and robbery, that cannot be heard at a magistrates court1 as
well as those ‘passed up’ by magistrates’ court for trial or sentencing and appeals associ-
ated with magistrates’ court outcomes. The Sentencing Council issued offence-specific
guidelines to reduce judicial discretion and standardise sentencing.2 The first of the
revised guidelines related to assault offences (Sentencing Council, 2011), ranging from
common assault to intentional grievous bodily harm and permitting sentencing ranges
from a discharge, fine or community order to life imprisonment (see Sentencing Council,
2011). In the 2011 Assault Definitive Guideline, the Sentencing Council (2011) upheld
the decision of the earlier sentencing guidelines on Overarching Principles: seriousness
(Sentencing Guidelines Council (SGC) 2004) that alcohol (and illicit drug) intoxication
ought to aggravate assault offences on the basis of their seriousness; thus, making intoxi-
cated offenders more culpable.
The rationale for intoxication serving to aggravate sentence outcomes is not clarified
by the Sentencing Council (Dingwall, 2006; Dingwall and Koffman, 2008), and this fac-
tor applies only to voluntary intoxication and in circumstances where intoxication has
contributed to the offending (both of which are challenging to determine), they offer little
practical guidance as to when and how to apply this aggravation (Lightowlers, 2019;
Lightowlers and Pina-Sánchez, 2017). The guidance is thus subject to varied interpreta-
tion in the case of addicted and intoxicated offenders (Sinclair-House, 2018). The under-
lying assumption is ‘that offenders who voluntarily become intoxicated are more
culpable, presumably because they realise (or ought to realise) that this may lead to
uninhibited conduct with unpredictable results’ (Ashworth, 2015: 172).
Quilter and McNamara (2018) argue that determining whether a person was rele-
vantly intoxicated is commonly based upon ‘lay knowledge’ (‘a mixture of “facts,”
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