Journal articles on the topic 'Inchoate offenses'

The article begins by briefly identifying what the overcriminalization problem means and how this problem is presented differently in continental European and Anglo-American law. Next is an attempt to summarize the causes of overcriminalization, distinguishing those causes that can be attributed to our own activity as specialists in criminal law from other unrelated causes. Some general proposals follow about what is within our grasp to do about overcriminalization and what goes beyond our competence. The first part thus provides the outlines of a general theory of overcriminalization. The second part offers a provisional three-step test to determine when it is justified to anticipate the intervention of the criminal law by making use of risk-creation offenses, such as, but not limited to, inchoate offenses, possession offenses, and offenses of belonging to criminal organizations.

<em>This research particularly separates equity ownership from corporate decision makers and management in regard PtCV, considering the last two liable for their CHRV and/or ICrC’ mens rea (purpose, knowledge, recklessness, and negligence, however in “public welfare offenses, or vicarious Liability, or a defendant may be liable for international corporate crime absent any showing of mens rea), inchoate crime, and actus reus thus falling under the common, civil, criminal laws and torts. However the dividing corporate structures and seeking personal liability should depend from the corporate structure of directors, officers or managers’ involvement in the CHRV and/or ICrC mens rea, inchoate crime and actus reus that will impute the PtCV’ effect on their liability. Under modern corporate practice, it is the corporate executives who hold management functions, not the board members. Because the term managing model is now an inaccurate description (especially over the last 25 years).</em>

Abstract Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offence to punish terror suspects at the African Court of Justice and Human Rights. It traces the Kenya government’s twenty-first-century responses to distorted jihad fundamentalism culminating in the current escalating pogroms. Coercive executive counterterrorism responses make exceptions to universal human rights enshrined under liberal democratic constitutions and international instruments. Yet the legality principle constrains the use of pre-inchoate offences. Hence civil society’s resistance delayed the enactment of Kenya’s Prevention of Terrorism Act. Moreover, the Constitutional Court subsequently struck out as ‘vague and ambiguous’ the Security Law (Amendment) Act’s substantive provision which ‘presumed criminal intent for encouraging terror’. Procedurally, another dilemma arises. This concerns whether it is possible for an international terror suspect to have a fair domestic trial. Although ‘limited executive measures’ require some individuals to trade off their own liberties to safeguard the security of others, due diligence can prevent torture or targeted killings. Instead, following Kenyan ‘Operation Linda Nchi’s’ pre-emptive strikes since 2011, Al-Shabaab’s retaliation arguably spiralled into increased violations of the core human right to life. Enacting pre-inchoate offences instead deems Islamist terrorists, particularly secondary offenders, as rational actors. Using a ‘reverse harm thesis’ to justify the education of pre-inchoate offenders, I argue that regional criminal trials of terror suspects constitute better ‘effective oversight’ on human rights violations than executive, legislative or domestic judicial responses. Invoking ‘concurrent responsibility’ to prosecute Al-Shabaab suspects before the ACJHR can therefore facilitate AMISOM’s dignified ‘exit’ strategy from Somalia.

The Indian Penal Code punishes a person for criminal intimidation that “The thought of a man is not triable for the devil himself not the thought of a man.” But when this intent is expressed in words and can be inferred from his conduct, the person can be held criminally liable. It means the law only takes notice of an intention followed by some overt act.3, which is a mere expression of one’s intention to inflict punishment, loss or pain to another. Sometimes it amount to completed offence.4The third stage is the ‘stage of attempt.’ An attempt is an overt act towards the commission of an offence after the preparation is made. For example, if a man after having procured a loaded gun pursues his enemy, but fails to overtake him or is arrested before he is able to complete the offence or fires without effect; in all these cases the man is liable for an attempt to murder. But in another situation, if a person purchases and loads a gun with the evident intention of shooting his enemy, but makes no movement to use the weapon After the stage of contemplation the next stage is known as ‘the stage of preparation.’ It consists devising or arranging the means or measures necessary for the commission of the crime. Generally the preparation to commit an offence is not punishable. The one reason behind it is the difficulty in proving it and the other is to protect the suspected person from unnecessary harassment. But there are some exceptions to this general rule. In these exceptional cases the mere preparation to commit the offences are punished because they preclude the possibility of an innocent intention.

CRIMINAL CONSEQUENCES OF FORMAL OFFENCESSummaryThe author discusses the concept of criminal consequence in Polish law. Debate is still going on in the theory and jurisdiction of Polish criminal law on whether a particular crime or offence should be classified as formal (przestępstwa formalne) or as consequential (przestępstwa skutkowe – viz. crimes/offences incurring criminal consequences; cf. inchoate crimes or offences). A point which turns out to be particularly problematic in this respect is the definition of criminal consequence, to enable a distinction to be drawn between formal and consequential (inchoate) offences/crimes. The author concludes that in practice all offences and crimes have a consequence. If a state in which a specific danger has emerged may be treated as a criminal consequence, it should also be admissible to treat a state in which an abstract danger has been created as a criminal consequence. Viewed from this aspect, all crimes are formal; for instance incitement is committed the moment when its perpetrator addresses words encouraging the commission of a crime to another person.

In this article, I shall try to outline some grounds for resisting enacting new treason-type offences. It shall be argued that an offence of treason based on the wrongness of ‘betrayal’ would add nothing extra to the protection that is already provided for in a plethora of terrorism offences that cover preparation, inchoate acts concerning terrorism as well as consummated terrorism attacks. I shall try to demonstrate that what supplies the normative case for criminalisation in these sorts of cases is culpability plus harm, not betrayal in itself. Betrayal is a minor aggravating feature that can be dealt with by sentencing judges. I also argue that there is no evidence that the sentences available in our terrorism legislation are not ample to deal with those who go abroad to fight in armed conflicts involving British forces. Finally, it is argued that while the common law offence of outraging public decency might plug gaps where returning Islamic State of Iraq and Syria brides make outrageous comments, it should be used only as a last resort when the speech involves hate speech of a serous kind.

This paper explores the role of ulterior intention (and ulterior mens rea more generally) within the criminal law. Divided into three sections, we first question the role and location of ulterior mens rea within the offence elements of acts, circumstances and results. Concluding that such accommodation is conceptually unsound, we highlight the problems this has caused in the context of inchoate liability, where the separation of elements is now essential to the application of the law. Central to this discussion is the problematic attempts case of AG Ref (No. 3 of 1992) [1994] 1 WLR 409. We contend that best way forward is to recognise a new ulterior mens rea element. Such an element has the potential to maintain conceptual coherence between offence elements and resolve substantive problems arising in the context of inchoate liability, as well as creating a new method for limiting inchoate liability (and infinite inchoate liability) from the potential for over-criminalisation.

This article analyses the notion of stages of commiting a crime, its criminal-legal characteristics and the retrospective development of norms that criminalise offences. In this regard, it illustrates the development of a theory and legislation. After a careful examination it is argued that there isn’t a specific definition of stages of crime. Furthermore, it problematises the need for a precise notion of the stages of crime and its distinct character from inchoated crimes. Because there is no united approach on the stages of crime, as well as, its internal division it is hard to implement a single state policy in that respect. Although there isn’t a specific definition, article argues, it is appropriate to identify a precise definition, make a distinction of stages of crime from inchoated crime. This is important to the extent of gravity of crime and the fact that some of them might be inchoated offences

AbstractThe principle of territoriality is the cornerstone of the law of criminal jurisdication. The question arises, however, how the principle ought to be applied to cross-frontier offences which have connections to more than one territory. It is demonstrated that, from a study of six Western States, it transpires that the constituent elements approach (pursuant to which jurisdiction is found as soon as a constituent element of the crime has occurred on the territory) is the dominant approach, with the exception of England. As far as cross-frontier participation and inchoate offences are concerned, however, solutions diverge considerably among States.

This paper analyzes the institution of mitigation of punishment in the criminal legislation of the Arab Republic of Egypt, including retroactive effect of criminal law, sentencing for inchoated offences committed at the stage of attempt, sentencing taking into account mitigating and aggravating factors, the features of criminal liability of minors, the procedure for more lenient sentencing, offences with mitigated composition provided for by the Special Part of the Criminal Code of the Arab Republic of Egypt, issues of pardon and amnesty, mitigation of punishment and releasing from punishment for offences committed in complicity, probation, parole, provocation, some issues of criminal liability of legal persons, sentencing for offences committed in a state of insanity and diminished responsibility, sentencing in a plea agreement, the role of special laws and the Code of Criminal Procedure Law of the country in mitigating of criminal punishment, and as a final conclusion, provides proposals on the implementation of some of criminal law norms of the Arab Republic of Egypt to the Criminal Code of the Republic of Uzbekistan as well.

This paper analyzes the institution of mitigation of punishment in the criminal legislation of the Republic of South Africa, including the features of criminal liability of minors, sentencing for inchoated offences committed at the stage of attempt and offences committed in complicity, as well as accessory after the fact, some issues of criminal liability of legal persons, sentencing for offences committed in a state of insanity and diminished responsibility, probation, parole, judicial practice of sentencing, taking into account mitigating and aggravating factors, issues of pardon and amnesty, determining the minimum term or amount of punishment imposed at the discretion of the court for certain grave crimes, the procedure for more lenient sentencing, sentencing in a plea agreement, the role of the Rome Statute of the International Criminal Court and the Criminal Procedure Law of the country in mitigating of criminal punishment, as well as the participation of the prosecutor in this criminal process, and as a final conclusion, provides proposals on the implementation of some of criminal law norms of the Republic of South Africa to the Criminal Code of the Republic of Uzbekistan.

This article looks at the development of preventative civil measures with criminal sanctions and the ways in which they are influencing criminal law. It argues that serious crime prevention orders in Part 1 of the Serious Crime Act 2007 are a part of this trend and further, that they undermine traditional notions of due process. The provisions of Part 1 of the Serious Crime Act 2007 are contrasted with Part 2 of the Act. The article also argues that the new inchoate offence of encouraging and assisting crime and the Law Commission proposals for conspiracy will provide sufficient measures against future harm therefore obviating the need for civil preventative orders.

All over the world crime is becoming more and more organized. Globalization has considerably extended the area of criminal activities, it can no longer be contained within the national boundaries of one state. Crime bosses freely travel between countries and may solve the problems of their gangs’ cooperation far from the place where the criminal activity takes place. The gangs today have moved away from typical criminal practices. Business is becoming their key activity as it facilitates the organization of criminal groups not only in the shadow, but also in the legal economy. Thus, the main focus of crime counteraction should be the bosses of organized crime. Based on this position, the authors provide a theoretical basis for the introduction of Art. 210.1 in the Criminal Law of Russia — taking the highest position in the criminal hierarchy. They analyze the legal construction of this offence which, in essence, is inchoate. The authors also assess the grounds for criminalizing the very fact of occupying the highest position in a criminal hierarchy. It is proven that this status of a crime boss emerges at an advanced stage of development of the organized group, so the form of crime organization could act as a criterion for the establishment of such a status. The authors also examine some problems of enforcing Art. 210.1 of the Criminal Code and offer different ways of solving them, namely, the aggregate of Part 4, Art. 210 and Art. 210.1 of the CC, and the and specific features of penalizing offenders persecuted under Art. 210.1 and Part 4, Art. 210 of the CC of the Russian Federation.

AbstractContemporary British counter-terrorist legislation is dominated by ‘counter-law’ in Richard Ericson's terms: by using law against law, it systematically undermines the rule of law. This paper supports this proposition by developing a detailed ‘archetypal’ account of the rule of law considered as a critical ideal, drawing on Fuller's ‘morality of law’. The rule of law is identified with four tendencies in law – towards greater universality, knowability, followability and justifiability – and ‘counter-law’ with tendencies to block or reverse all of these. Counter-law tendencies in contemporary counter-terrorist legislation are discussed in detail, with particular reference to the proliferation of inchoate, preparatory and situational offences. This critique is also related to contemporary debates on law and counter-law; it is argued that critiques which relativise or historicise the liberal model of the rule of law fall short by failing to engage with it on its own terms, thereby undervaluing its utility as a normative resource. The paper concludes by discussing the range, significance and gravity of the departures from the rule of law that have been identified, considering some counter-arguments and drawing conclusions for policy-makers and legal scholars.

In this paper I try to outline the implications of the decision in R v Jogee for practice. I try to explain what the substantive law now requires and how that should be implemented in practice. I argue that particular care needs to be taken so that the profession properly understand and implement the substantive law as recognised in R v. Jogee. I shall try to explain the conceptual distinction between a fundamentally different act and a supervening act. A supervening act cancels out an earlier act, but a fundamentally different act does not necessarily involve a cancelling out. Intentional g.b.h. is a supervening act when the accessory only intended the perpetrator to perpetrate an act resulting in a.b.h. The g.b.h. should cancel out the a.b.h. since the perpetrator has departed from the plan and perpetrated a different act to what was originally intended by the parties. Thus, it is not possible to reconcile the Supreme Court’s obsequiousness towards the supervening act rule with its finding that manslaughter can be an alternative to murder for accessories when the perpetrator has inflicted g.b.h. resulting in V’s death, if the accessory intended a.b.h. be inflicted upon V. Additionally, manslaughter is not a lesser included offence to murder and thus such a conviction should not be available where P perpetrates a murder not intended by the accessory; instead, the accessory should be charged with the inchoate offence for attempting to encourage the lesser crime. It shall also be argued that conditional intention is only an issue in certain factual scenarios such as where it is not certain which crime will be perpetrated or where a crime is intended upon some contingency arising. Intention is intention whether it depends on a condition or not. Finally, it will be argued the spontaneous outbreak of multi-handed violence cases will pose great challenges as far as proof of intentional encouragement is concerned, but that can be overcome simply by charging such cases under sections 44 or 45 of the Serious Crime Act 2007.

The paper discusses the scientific and law enforcement aspects of understanding the types of intent in criminal law. The law enforcement and doctrinal features of alternative and indefinite types of intent and the problems associated with their establishment in the law of Russia and Belarus are considered. The paper analyzes the law enforcement practice and pressing issues of interpretation of the intentional form of guilt in accordance with the provisions of the current legislation of Russia and Belarus. The purpose of the paper is a rational and critical consideration of the provisions of the science of criminal law in relation to the question of the classification of criminal acts with an indefinite (unspecified) intent. The author concludes that when establishing the elements of an indefinite (unspecified) intent, the criminal act should be evaluated by the actual consequences. However, it is an inchoate offense that possesses the specifics of classification in this matter. Therefore, in such cases, it is necessary to establish the actual direction of the actions of the perpetrator, based on the objective situation of the act committed, the tools used, the means of committing the crime, the physical data of the victim and the accused, etc. The author proposes to pay attention to the following things in cases of crimes against life and health: the nature and method of utilizing the instrument of crime, its danger, the commission of actions that objectively pose a danger to human life; the intensity of damage, their localization, the possession of special skills and abilities to cause physical harm; the striking force of the impact, the physical data of the victim and the accused, the conscious nature of the guilty person’s behavior; the reasons for termination of criminal actions by the accused, his relationship with the victim on the eve of the crime, the subsequent behavior of the guilty and the victim. Research methods used in the paper are formal-dogmatic, comparative-legal, instrumental analysis. Scope of application: jurisprudence, law enforcement practice, lawmaking, lawmaking.

The Anglo-American crime of burglary is generally acknowledged as being the basis for the development of the South African crime of housebreaking with the intent to commit a crime. It has been widely accepted that the crime of burglary functions as “a rather unique type of attempt law”. The context for the development of the crime was the traditional limitations on the law of attempt. The South African version of the crime functions in a similar fashion as a sort of inchoate offence, in that it allows for the intervention of criminalliability upon the merest intrusion of a part of the body (or instrument) into premises (following a “breaking” which may be of a technical nature – see discussion in Hoctor “The ‘Breaking’ Requirement in the Crime of Housebreaking with Intent” 1998 Obiter 201ff), provided that such intentional intrusion is accompanied by a further intent to commit an offence within.Moreover, just as Common Law jurisdictions have typically sought to enable criminal intervention at an even earlier stage, through the use of the offence of possession of housebreaking implements, so too South African law has made use of such an offence in the earliest criminal legislation passed at the Cape and by the other South African colonies and states , and still does so today (in terms of the new statutory offence of “failure to give a satisfactory account of the possession of an implement or object”, containedin s 82 of the General Law Third Amendment Act 129 of 1993, discussed in Hoctor “Statutory Housebreaking and Vehicle-breaking” 1999 Obiter 225ff).As Snyman notes, this offence fulfils a valuable function in that it in effect functions to create a form of attempt to break into premises.

The article is devoted to comparative legal analysis of legislative regulation of criminal liability for banditry in various legal families. On the basis of modern foreign criminal legislation the author analyzes the features of the institutions of inchoate offences and complicity, as well as the norms establishing liability for the creation and participation in the armed criminal associations. The analysis of the sanctions of articles which provide liability for creation and participation in criminal associations. The author concludes that the existence of the preliminary crime involving liability for creating a variety of organized criminal associations, in some countries is stipulated by acts of preparation. The greatest similarity of criminal policy in the sphere of liability of the regulation for the establishment of organized criminal associations is noticeable between the USA and Russia. Based on the analysis the author proposes to exclude the corpus delicti banditry from the Criminal Code, which allows to solve the problem of differentiation of criminal liability just as the established liability for acts preparation will not allow criminals to evade liability.

AbstractIn this article, I argue that Michael Moore’s (1997), and other similar formulations of desert retributivism – viz., the theory that holds punishment to be justified because of the deserved suffering it imposes on guilty offenders – are epistemically problematic. The argument draws on John Dewey’s inchoate critique of retribution, and on Dewey’s more general contention that the justification of ethical judgments and principles proceeds ex post – viz., that it depends on the experiences elicited by acting on those judgments and principles. Based on Dewey’s ex post take on justification, I more specifically argue that, given its commitment to moral naturalism and to coherentism, Moore’s version of desert retributivism is epistemically unwarranted. This is because we have evidentially grounded reasons to think that many of the retributive judgments that underlie the principle of retributive justice are not clearly supported ex post in the relevant, desert retributivist sense.

AbstractThis article introduces definitions for direct, means-end, oblique (or indirect) and ulterior intent which can be used to test for intent in an algorithmic actor. These definitions of intent are informed by legal theory from common law jurisdictions. Certain crimes exist where the harm caused is dependent on the reason it was done so. Here the actus reus or performative element of the crime is dependent on the mental state or mens rea of the actor. The ability to prosecute these crimes is dependent on the ability to identify and diagnose intentional states in the accused. A certain class of auto didactic algorithmic actor can be given broad objectives without being told how to meet them. Without a definition of intent, they cannot be told not to engage in certain law breaking behaviour nor can they ever be identified as having done it. This ambiguity is neither positive for the owner of the algorithm or for society. The problem exists over and above more familiar debates concerning the eligibility of algorithms for culpability judgements that mens rea is usually associated with. Aside from inchoate offences, many economic crimes with elements of fraud or deceit fall into this category of crime. Algorithms operate in areas where these crimes could be plausibly undertaken depending on whether the intent existed in the algorithm or not.

The incidence of banditry in Nigeria has assumed an unprecedented mien which constitutes a major bane to the hitherto troubled security in the country. The phenomenon has created a multi-pronged security challenge that has amplified the spate of destruction of life and property and displacement. Meanwhile, inchoate and nascent erudition is still associated with the incidence of banditry in Nigeria. Thus, this study attempts to satiate this lacuna by annotating the incidence from the Routine Activity Theory standpoint. The study adopts a descriptive and analytical armchair analysis which relies on a secondary source of data. The study found out that the menace of banditry is prevalent in Nigeria, particularly in the Northwest. Some of the methods favoured by bandits include armed robbery, cattle rustling, arson, sexual violence, kidnapping, raiding villages and schools, looting, stealing livestock and gruesome killing. The incidence is attributable to the conflicts between farmers and herders for scarce resources, the influx of Small Arms and Light Weapons (SALW) into Nigeria, an overwhelmed, weak and understaffed security apparatus, illegal mining, slow response and poor engagement of the Nigerian government, and a vast ungoverned forest territory. To adequately address the incidence of banditry in Nigeria, the study recommends a prevention strategy that focuses on the three major areas identified by the Routine Activity Theory: the motivated offender, the suitable target, and the absence of guardianship

We take as our subject what many would deem a waste of good celluloid: the degraded cultural form of the stoner film. Stoner films plot the experiences of the wasted (those intoxicated on marijuana) as they exhibit wastefulness—excessiveness, improvidence, decay—on a number of fronts. Stoners waste time in constantly hunting for pot and in failing to pursue more productive activity whilst wasted. Stoners waste their minds, both literally, if we believe contested studies that indicate marijuana smoking kills brains cells, and figuratively, in rendering themselves cognitively impaired. Stoners waste their bodies through the dangerous practice of smoking and through the tendency toward physical inertia. Stoners waste money on marijuana firstly, but also on such sophomoric accoutrements as the stoner film itself. Stoners lay waste to convention in excessively seeking pleasure and in dressing and acting outrageously. And stoners, if the scatological humour of so many stoner films is any index, are preoccupied with bodily waste. Stoners, we argue here, waste whiteness as well. As the likes of Jesse and Chester (Dude, Where’s My Car?), Wayne and Garth (Wayne’s World), Bill and Ted (Bill and Ted’s Excellent Adventure) and Jay and Silent Bob (Jay and Silent Bob Strike Back) make clear, whiteness looms large in stoner films. Yet the genre, we argue, disavows its own whiteness, in favour of a post-white hybridity that lavishly squanders white privilege. For all its focus on whiteness, filmic wastedness has always been an ethnically diverse and ambiguous category. The genre’s origins in the work of Cheech Marin, a Chicano, and Tommy Chong, a Chinese-European Canadian, have been buttressed in this regard by many African American contributions to the stoner oeuvre, including How High, Half Baked and Friday, as well as by Harold and Kumar Go to White Castle, and its Korean-American and Indian-American protagonists. Cheech and Chong initiated the genre with the release of Up in Smoke in 1978. A host of films have followed featuring protagonists who spend much of their time smoking and seeking marijuana (or—in the case of stoner films such as Dude, Where’s My Car? released during the height of the War on Drugs—acting stoned without ever being seen to get stoned). Inspired in part by the 1938 anti-marijuana film Reefer Madness, and the unintended humour such propaganda films begat amongst marijuana smokers, stoner films are comedies that satirise both marijuana culture and its prohibition. Self-consciously slapstick, the stoner genre excludes more serious films about drugs, from Easy Rider to Shaft, as well as films such as The Wizard of Oz, Yellow Submarine, the Muppet movies, and others popular amongst marijuana smokers because of surreal content. Likewise, a host of films that include secondary stoner characters, such as Jeff Spicoli in Fast Times at Ridgemont High and Wooderson in Dazed and Confused, are commonly excluded from the genre on the grounds that the stoner film, first and foremost, celebrates stonerism, that is “serious commitment to smoking and acquiring marijuana as a lifestyle choice.” (Meltzer). Often taking the form of the “buddy film,” stoner flicks generally feature male leads and frequently exhibit a decidedly masculinist orientation, with women, for the most part reduced to little more than the object of the white male gaze.The plot, such as it is, of the typical stoner film concerns the search for marijuana (or an accessory, such as junk food) and the improbable misadventures that ensue. While frequently represented as resourceful and energetic in their quest for marijuana, filmic stoners otherwise exhibit ambivalent attitudes toward enterprise that involves significant effort. Typically represented as happy and peaceable, filmic stoners rarely engage in conflict beyond regular clashes with authority figures determined to enforce anti-drug laws, and other measures that stoners take to be infringements upon happiness. While Hollywood’s stoners thus share a sense of entitlement to pleasure, they do not otherwise exhibit a coherent ideological orthodoxy beyond a certain libertarian and relativistic open-mindedness. More likely to take inspiration from comic book heroes than Aldous Huxley or Timothy Leary, stoners are most often portrayed as ‘dazed and confused,’ and could be said to waste the intellectual tradition of mind expansion that Leary represents. That stoner films are, at times, misunderstood to be quintessentially white is hardly suprising. As a social construct that creates, maintains and legitimates white domination, whiteness manifests, as one of its most defining features, an ability to swallow up difference and to insist upon, at critical junctures, a universal subjectivity that disallows for difference (hooks 167). Such universalising not only sanctions co-optation of ethnic cultural expression, it also functions to mask whiteness’s existence, thus reinforcing its very power. Whiteness, as Richard Dyer argues, is simultaneously everywhere and nowhere. It obfuscates itself and its relationship to the particular traits it is said to embody—disinterest, prudence, temperance, rationality, bodily restraint, industriousness (3). Whiteness is thus constructed as neither an ethnic nor racial particularity, but rather the transcendence of such positionality (Wiegman 139). While non-whites are raced, to be white is to be “just human” and thus to possess the power to “claim to speak for the commonality of humanity” whilst denying the accrual of any particular racial privilege (Dyer 2). In refuting its own advantages—which are so wide ranging (from preferential treatment in housing loans, to the freedom to fail without fear of reflecting badly on other whites) that they are, like whiteness itself, both assumed and unproblematic—whiteness instantiates individualism, allowing whites to believe that their successes are in no way the outcome of systematic racial advantage, but rather the product of individual toil (McIntosh; Lipsitz). An examination of the 1978 stoner film Up in Smoke suggests that whatever the ethnic ambiguity of the figure of the stoner, the genre of the stoner film is all about the wasting of whiteness. Up in Smoke opens with two alternating domestic scenes. We first encounter Pedro De Pacas (Cheech Marin) in a cluttered and shadowy room as his siblings romp affectionately upon his back, waking him from his slumber on the couch. Pedro rises, stepping into a bowl of cereal on the floor. He stumbles to the bathroom, where, sleepy and disoriented, he urinates into the laundry hamper. The chaos of Pedro’s disrupted sleep is followed in the film by a more metaphoric awakening as Anthony Stoner (Tommy Chong) determines to leave home. The scene takes place in a far more orderly, light and lavish room. The space’s overpowering whiteness is breached only by the figure of Anthony and his unruly black hair, bushy black beard, and loud Hawaiian shirt, which vibrates with colour against the white walls, white furnishings and white curtains. We watch as Anthony, behind an elaborate bar, prepares a banana protein shake, impassively ignoring his parents, both clothed in all-white, as they clutch martini glasses and berate their son for his lack of ambition. Arnold Stoner [father]: Son, your mother and me would like for you to cozy up to the Finkelstein boy. He's a bright kid, and, uh... he's going to military school, and remember, he was an Eagle Scout. Tempest Stoner [mother]: Arnold…Arnold Stoner: [shouts over/to his wife] Will you shut up? We’re not going to have a family brawl!Tempest Stoner: [continues talking as her husband shouts]…. Retard.Arnold Stoner: [to Anthony] We've put up with a hell of a lot.[Anthony starts blender] Can this wait? ... Build your goddamn muscles, huh? You know, you could build your muscles picking strawberries.You know, bend and scoop... like the Mexicans. Shit, maybe I could get you a job with United Fruit. I got a buddy with United Fruit. ... Get you started. Start with strawberries, you might work your way up to these goddamn bananas! When, boy? When...are you going to get your act together?Anthony: [Burps]Tempest Stoner: Gross.Arnold Stoner: Oh, good God Almighty me. I think he's the Antichrist. Anthony, I want to talk to you. [Anthony gathers his smoothie supplements and begins to walk out of the room.] Now, listen! Don't walk away from me when I'm talking to you! You get a goddamn job before sundown, or we're shipping you off to military school with that goddamn Finkelstein shit kid! Son of a bitch!The whiteness of Anthony’s parents is signified so pervasively and so strikingly in this scene—in their improbable white outfits and in the room’s insufferably white décor—that we come to understand it as causative. The rage and racism of Mr. Stoner’s tirade, the scene suggests, is a product of whiteness itself. Given that whiteness achieves and maintains its domination via both ubiquity and invisibility, what Up in Smoke accomplishes in this scene is notable. Arnold Stoner’s tortured syntax (“that goddamn Finkelstein shit kid”) works to “mak[e] whiteness strange” (Dyer 4), while the scene’s exaggerated staging delineates whiteness as “a particular – even peculiar – identity, rather than a presumed norm” (Roediger, Colored White 21). The belligerence of the senior Stoners toward not only their son and each other, but the world at large, in turn, functions to render whiteness intrinsically ruthless and destructive. Anthony’s parents, in all their whiteness, enact David Roediger’s assertion that “it is not merely that ‘Whiteness’s is oppressive and false; it is that ‘Whiteness’s is nothing but oppressive and false” (Toward the Abolition 13).Anthony speaks not a word during the scene. He communicates only by belching and giving his parents the finger as he leaves the room and the home. This departure is significant in that it marks the moment when Anthony, hereafter known only as “Man,” flees the world of whiteness. He winds up taking refuge in the multi-hued world of stonerism, as embodied in the scene that follows, which features Pedro emerging from his home to interact with his Chicano neighbours and to lovingly inspect his car. As a lowrider, a customised vehicle that “begin[s] with the abandoned materials of one tradition (that of mainstream America), … [and is] … then transformed and recycled . . . into new and fresh objects of art which are distinctly Chicano,” Pedro’s car serves as a symbol of the cultural hybridisation that Man is about to undergo (quoted in Ondine 141).As Man’s muteness in the presence of his parents suggests, his racial status seems tentative from the start. Within the world of whiteness, Man is the subaltern, silenced and denigrated, finding voice only after he befriends Pedro. Even as the film identifies Man as white through his parental lineage, it renders indeterminate its own assertion, destabilising any such fixed or naturalised schema of identity. When Man is first introduced to Pedro’s band as their newest member, James, the band’s African American bass player, looks at Man, dressed in the uniform of the band, and asks: “Hey Pedro, where’s the white dude you said was playing the drums?” Clearly, from James’s point of view, the room contains no white dudes, just stoners. Man’s presumed whiteness becomes one of the film’s countless gags, the provocative ambiguity of the casting of a Chinese-European to play a white part underscored in the film by the equally implausible matter of age. Man, according to the film’s narrative, is a high school student; Chong was forty when the film was released. Like his age, Man’s whiteness is never a good fit. That Man ultimately winds up sleeping on the very couch upon which we first encounter Pedro suggests how radical and final the break with his dubious white past is. The “Mexicans” whom his father would mock as fit only for abject labour are amongst those whom Man comes to consider his closest companions. In departing his parents’ white world, and embracing Pedro’s dilapidated, barrio-based world of wastedness, Man traces the geographies narrated by George Lipsitz in The Possessive Investment in Whiteness. Historically, Lipsitz argues, the development of affluent white space (the suburbs) was made possible by the disintegration of African American, Chicano and other minority neighbourhoods disadvantaged by federal, state, and corporate housing, employment, health care, urban renewal, and education policies that favoured whites over non-whites. In this sense, Man’s flight from his parents’ home is a retreat from whiteness itself, and from the advantages that whiteness conveys. In choosing the ramshackle, non-white world of stonerism, Man performs an act of racial treachery. Whiteness, Lipsitz contends, has “cash value,” and “is invested in, like property, but it is also a means of accumulating property and keeping it from others,” which allows for “intergenerational transfers of inherited wealth that pass on the spoils of discrimination to succeeding generations” (vii-viii). Man’s disavowal of the privileges of whiteness is a reckless refusal to accept this racial birthright. Whiteness is thus wasted upon Man because Man wastes his whiteness. Given the centrality of prudence and restraint to hegemonic constructions of whiteness, Man’s willingness to squander the “valuable asset” that is his white inheritance is especially treasonous (Harris 1713). Man is the prodigal son of whiteness, a profligate who pours down the drain “the wages of whiteness” that his forbearers have spent generations accruing and protecting (Roediger, The Wages of Whiteness). His waste not only offends the core values which whiteness is said to comprise, it also denigrates whiteness itself by illuminating the excess of white privilege, as well as the unarticulated excess of meanings that hover around whiteness to create the illusion of transcendence and infinite variety. Man’s performance, like all bad performances of whiteness, “disrupt[s] implicit understandings of what it means to be white” (Hartigan 46). The spectre of seeing white domination go ‘up in smoke’—via wasting, as opposed to hoarding, white privilege—amounts to racial treason, and helps not only to explicate why whites in the film find stonerism so menacing, but also to explain the paradox of “pot [making] the people who don’t smoke it even more paranoid than the people who do” (Patterson). While Tommy Chong’s droll assertion that "what makes us so dangerous is that we're harmless" ridicules such paranoia, it ultimately fails to account for the politics of subversive squandering of white privilege that characterise the stoner film (“Biographies”). Stoners in Up in Smoke, as in most other stoner films, are marked as non-white, through association with ethnic Others, through their rejection of mainstream ideas about work and achievement, and/or through their lack of bodily restraint in relentlessly seeking pleasure, in dressing outrageously, and in refusing to abide conventional grooming habits. Significantly, the non-white status of the stoner is both voluntary and deliberate. While stonerism embraces its own non-whiteness, its Otherness is not signified, primarily, through racial cross-dressing of the sort Eric Lott detects in Elvis, but rather through race-mixing. Stoner collectivity practices an inclusivity that defies America’s historic practice of racial and ethnic segregation (Lott 248). Stonerism further reveals its unwillingness to abide constrictive American whiteness in a scene in which Pedro and Man, both US-born Americans, are deported. The pair are rounded up along with Pedro’s extended family in a raid initiated when Pedro’s cousin “narcs” on himself to la migra (the Immigration and Naturalization Service) in order to get free transport for his extended family to his wedding in Tijuana. Pedro and Man return to the US as unwitting tricksters, bringing back to the US more marijuana than has ever crossed the Mexican-US border at one time, fusing the relationship between transnationalism and wastedness. The disrespect that stoners exhibit for pregnable US borders contests presumed Chicano powerlessness in the face of white force and further affronts whiteness, which historically has mobilised itself most virulently at the threat of alien incursion. Transgression here is wilful and playful; stoners intend to offend normative values and taste through their actions, their dress, and non-white associations as part of the project of forging a new hybridised, transnational subjectivity that threatens to lay waste to whiteness’s purity and privilege. Stoners invite the scrutiny of white authority with their outrageous attire and ethnically diverse composition, turning the “inevitability of surveillance” (Borrie 87) into an opportunity to enact their own wastedness—their wasted privilege, their wasted youth, their wasted potential—before a gaze that is ultimately confounded and threatened by the chaotic hybridity with which it is faced (Hebdige 26). By perpetually displaying his/her wasted Otherness, the stoner makes of him/herself a “freak,” a label cops use derisively throughout Up in Smoke to denote the wasted without realising that stoners define themselves in precisely such terms, and, by doing so, obstruct whiteness’s assertion of universal subjectivity. Pedro’s cousin Strawberry (Tom Skerritt), a pot dealer, enacts freakishness by exhibiting a large facial birthmark and by suffering from Vietnam-induced Post Traumatic Stress disorder. A freak in every sense of the word, Strawberry is denied white status by virtue of physical and mental defect. But Strawberry, as a stoner, ultimately wants whiteness even less than it wants him. The defects that deny him membership in the exclusive “club” that is whiteness prove less significant than the choice he makes to defect from the ranks of whiteness and join with Man in the decision to waste his whiteness wantonly (“Editorial”). Stoner masculinity is represented as similarly freakish and defective. While white authority forcefully frustrates the attempts of Pedro and Man to “score” marijuana, the duo’s efforts to “score” sexually are thwarted by their own in/action. More often than not, wastedness produces impotence in Up in Smoke, either literally or figuratively, wherein the confusion and misadventures that attend pot-smoking interrupt foreplay. The film’s only ostensible sex scene is unconsummated, a wasted opportunity for whiteness to reproduce itself when Man sleeps through his girlfriend’s frenzied discussion of sex. During the course of Up in Smoke, Man dresses as a woman while hitchhiking, Pedro mistakes Man for a woman, Man sits on Pedro’s lap when they scramble to change seats whilst being pulled over by the police, Man suggests that Pedro has a “small dick,” Pedro reports liking “manly breasts,” and Pedro—unable to urinate in the presence of Sgt. Stedenko—tells his penis that if it does not perform, he will “put [it] back in the closet.” Such attenuations of the lead characters’ masculinity climax in the penultimate scene, in which Pedro, backed by his band, performs “Earache My Eye,” a song he has just composed backstage, whilst adorned in pink tutu, garter belt, tassle pasties, sequined opera mask and Mickey Mouse ears: My momma talkin’ to me tryin’ to tell me how to liveBut I don't listen to her cause my head is like a sieveMy daddy he disowned me cause I wear my sister's clothesHe caught me in the bathroom with a pair of pantyhoseMy basketball coach he done kicked me off the teamFor wearing high heeled sneakers and acting like a queen“Earache My Eye” corroborates the Othered natured of stonerism by marking stoners, already designated as non-white, as non-straight. In a classic iteration of a bad gender performance, the scene rejects both whiteness and its hegemonic partners-in-crime, heterosexuality and normative masculinity (Butler 26). Here stoners waste not only their whiteness, but also their white masculinity. Whiteness, and its dependence upon “intersection … [with] interlocking axes [of power such as] gender … [and] sexuality,” is “outed” in this scene (Shome 368). So, too, is it enfeebled. In rendering masculinity freakish and defective, the film threatens whiteness at its core. For if whiteness can not depend upon normative masculinity for its reproduction, then, like Man’s racial birthright, it is wasted. The stoner’s embodiment of freakishness further works to emphasise wasted whiteness by exposing just how hysterical whiteness’s defense of its own normativity can be. Up in Smoke frequently inflates not only the effects of marijuana, but also the eccentricities of those who smoke it, a strategy which means that much of the film’s humour turns on satirising hegemonic stereotypes of marijuana smokers. Equally, Cheech Marin’s exaggerated “slapstick, one-dimensional [portrayal] of [a] Chicano character” works to render ridiculous the very stereotypes his character incarnates (List 183). While the film deconstructs processes of social construction, it also makes extensive use of counter-stereotyping in its depictions of characters marked as white. The result is that whiteness’s “illusion of [its] own infinite variety” is contested and the lie of whiteness as non-raced is exposed, helping to explain the stoner’s decision to waste his/her whiteness (Dyer 12; 2). In Up in Smoke whiteness is the colour of straightness. Straights, who are willing neither to smoke pot nor to tolerate the smoking of pot by others/Others, are so comprehensively marked as white in the film that whiteness and straightness become isomorphic. As a result, the same stereotypes are mobilised in representing whiteness and straightness: incompetence, belligerence, hypocrisy, meanspiritedness, and paranoia, qualities that are all the more oppressive because virtually all whites/straights in the film occupy positions of authority. Anthony’s spectacularly white parents, as we have seen, are bigoted and dominating. Their whiteness is further impugned by alcohol, which fuels Mr. Stoner’s fury and Mrs. Stoner’s unintelligibility. That the senior Stoners are drunk before noon works, of course, to expose the hypocrisy of those who would indict marijuana use while ignoring the social damage alcohol can produce. Their inebriation (revealed as chronic in the DVD’s outtake scenes) takes on further significance when it is configured as a decidedly white attribute. Throughout the film, only characters marked as white consume alcohol—most notably, the judge who is discovered to be drinking vodka whist adjudicating drug charges against Pedro and Man—therefore dislodging whiteness’s self-construction as temperate, and suggesting just how wasted whiteness is. While stonerism is represented as pacific, drunkenness is of a piece with white/straight bellicosity. In Up in Smoke, whites/straights crave confrontation and discord, especially the angry, uptight, and vainglorious narcotics cop Sgt. Stedenko (Stacey Keech) who inhabits so many of the film’s counter-stereotypes. While a trio of white cops roughly apprehend and search a carload of innocent nuns in a manner that Man describes as “cold blooded,” Stedenko, unawares in the foreground, gives an interview about his plans for what he hopes will be the biggest border drug bust in US history: “[Reporter:] Do you expect to see any violence here today? [Sgt. Stedenko:] I certainly hope so.” Stedenko’s desire to act violently against stoners echoes mythologies of white regeneration in the Old West, wherein whiteness refurbished itself through violent attacks on Native Americans, whose wasteful cultures failed to make “civilised” use of western lands (Slotkin 565).White aggression is relentlessly depicted in the film, with one important exception: the instance of the stoned straight. Perhaps no other trope is as defining of the genre, as is the scene wherein a straight person accidentally becomes stoned. Up in Smoke offers several examples, most notably the scene in which a motorcycle cop pulls over Pedro and Man as they drive a van belonging to Pedro’s Uncle Chuey. In a plot twist requiring a degree of willing suspension of disbelief that even wasted audiences might find a stretch, the exterior shell of the van, unbeknownst to Pedro and Man, is made entirely of marijuana which has started to smoulder around the exhaust pipe. The cop, who becomes intoxicated whilst walking through the fumes, does not hassle Pedro and Man, as expected, but instead asks for a bite of their hot dog and then departs happily, instructing the duo to “have a nice day.” In declining, or perhaps simply forgetting, to exercise his authority, the cop demonstrates the regenerative potential not of violent whiteness but rather of hybrid wastedness. Marijuana here is transformative, morphing straight consciousness into stoner consciousness and, in the process, discharging all the uptight, mean-spirited, unnecessary, and hence wasteful baggage of whiteness along the way. While such a utopian potential for pot is both upheld and satirised in the film, the scene amounts to far more than an inconsequential generic gag, in that it argues for the disavowal of whiteness via the assumption of the voluntary Otherness that is stonerism. Whiteness, the scene suggests, can be cast off, discarded, wasted and thus surmounted. Whites, for want of a better phrase, simply need to ‘just say no’ to whiteness in order to excrete the brutality that is its necessary affliction and inevitable result. While Up in Smoke laudably offers a powerful refusal to horde the assets of whiteness, the film fails to acknowledge that ‘just saying no’ is, indeed, one of whiteness’s exclusive privileges, since whites and only whites possess the liberty to refuse the advantages whiteness bestows. Non-whites possess no analogical ability to jettison the social constructions to which they are subjected, to refuse the power of dominant classes to define their subjectivity. Neither does the film confront the fact that Man nor any other of Up in Smoke’s white freaks are disallowed from re-embracing their whiteness, and its attendant value, at any time. However inchoate the film’s challenge to racial privilege, Up in Smoke’s celebration of the subversive pleasures of wasting whiteness offers a tentative, if bleary, first step toward ‘the abolition of whiteness.’ Its utopian vision of a post-white hybridised subjectivity, however dazed and confused, is worthy of far more serious contemplation than the film, taken at face value, might seem to suggest. Perhaps Up in Smoke is a stoner film that should also be viewed while sober. ReferencesBill and Ted’s Excellent Adventure. Dir. Stephen Herek. Orion Pictures Corporation, 1989.“Biographies”. 10 June 2010 ‹http://www.cheechandchongfans.com/biography.html›. Borrie, Lee. "Wild Ones: Containment Culture and 1950s Youth Rebellion”. Diss. University of Canterbury, 2007.Butler, Judith. "Critically Queer”. GLQ: A Journal of Lesbian and Gay Studies 1.1 (1993): 17-32.Chavoya, C. Ondine. “Customized Hybrids: The Art of Ruben Ortiz Torres and Lowriding in Southern California”. 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