Effectively Legalizing Murder

The recent decision of a French court would, if taken as precedent, in effect legalize murder—provided that the act was committed in a state of temporary madness caused by intoxication with cannabis.

In 2017, Kabili Traoré, a Muslim of Malian origin, who had no previous psychiatric history but a long criminal record, with 22 convictions—including for robbery, attempted robbery, drug-dealing, and possession of illegal arms—climbed over the balcony of the flat of Sarah Halimi, a Jewish woman age 66, tortured her, and then threw her over the balcony to her death. Traoré appeared to be in a state of religious excitation, for he was heard to shout “Allahu Akbar” and “I have killed Shaitan” (Satan). There is no doubt that he was psychotic at the time, or that his psychotic state was precipitated by his use of cannabis.

The court acquitted Traoré of any crime because he was psychotic when he committed the act, sending him instead to a psychiatric hospital for 20 years. Its decision caused widespread public alarm, repugnance, and derision. But from the strictly juridical point of view, the court might have been right. According to the French criminal code, a man is not to be held criminally responsible if his “discernment”—his judgment—is abolished by a psychiatric or neuropsychiatric state. The code does not make voluntary intoxication an exception to this rule.

Of course, what constitutes the abolition of discernment or judgment is itself a question of judgment. Traoré knew, for example, that his victim was Jewish (she was the only Jew on the block, and he knew this in advance); he also knew that he was killing her. He must have had at least intermittent awareness of his illegal act, for at one point he shouted that there had been a suicide and that the police should be called.

{snip}

The defense argued, moreover, that Traoré could not have known that using the drug would have the effect on him that it had on this occasion, and thus that he was not guilty of the crime for which he was charged. After all, he had been smoking cannabis since he was 15 without any psychotic episodes. Therefore, while his consumption of the drug was voluntary, the resultant psychosis was involuntary.

{snip}

Traoré may be free in a few years, despite the court having sent him to a psychiatric hospital and sentenced him to surveillance for 20 years. If two independent psychiatrists conclude that he is no longer psychiatrically ill and poses no danger to the public, he could be released much sooner—and two psychiatrists will almost certainly make this determination well before the sentence expires.

{snip}