Egelhoff again.

Author:Westen, Peter
Position:Criminal intent

"I was pretty out of it ... I was there, but I really wasn't there."

Louis Ceparano of Elk Creek, West Virginia, about his role in dousing a black companion with gasoline, setting him afire, and beheading him, after a night of drinking bourbon, beer, and moonshine in combination with the drugs Valium and Xanax.(1) Every now and then the U.S. Supreme Court renders a decision that dispirits defenders of judicial review, whatever their constitutional views. The Court's splintered decision three years ago in Egelhoff v. Montana(2) discourages students of constitutional criminal law and evidence because it leaves us without our usual excuses for the Court. Egelhoff should not have been a hard case for the Court; it did not involve a factual record that was incomplete, or a social issue with which the Court was unfamiliar, or a controversy that was doctrinally elusive. Egelhoff involved a perennial problem with which common-law courts have dealt for ages--that of defining and addressing the criminal responsibility of persons who commit criminal acts while voluntarily intoxicated.

The case arose under a Montana statute which provided that voluntary intoxication is "not a defense to any offense" and "may not be taken into consideration in determining the existence of a mental state which is an element of [an] offense."(3) The U.S. Supreme Court took the case to decide whether the statute violated a murder defendant's constitutional right to present relevant evidence in his defense, or his constitutional right to be acquitted unless proven guilty beyond a reasonable doubt, or both. The Justices thereupon failed to produce an opinion of the Court on either issue, revealing in the course of their five separate opinions that they did not fully understand the normative issue at the core of the case.

The Justices' failure was due in part to a lack of mastery of the principles of substantive criminal law. In contrast to English lawyers, who typically study criminal law for an entire year,(4) American law students tend to study it for a single semester, spending, at most, perhaps, a day or two studying the relationship between intoxication and criminal responsibility. The Justices in Egelhoff, like the divided Justices of the Montana Supreme Court below,(5) seemed confused about the various ways in which voluntary intoxication may affect criminal responsibility and, hence, confused about the various ways in which evidence of voluntary intoxication may be relevant. The Court's failure was also due, in part, to the legislative process that produced the statute in the first place. Again, in contrast to the English Parliament, which typically initiates criminal law reforms by commissioning professional studies and proposals,(6) American legislatures typically proceed without them. The Montana legislature adopted the underlying statute without commissioning a study, without conducting hearings, and without engaging in substantial debate; in doing so, it produced a statute that very likely fails to express what its drafters had in mind.

The principal, and most dismaying, breakdown in Egelhoff, however, was an analytical failure on the Court's part--a curious inability to grasp and penetrate the conceptual apparatus that the Court itself has created for organizing constitutional norms in the area of criminal law and evidence. A sizeable group of seven Justices(7) (with two remaining Justices reserving judgment on the issue)(8) took the constitutional position that the Montana statute was valid if it was "substantive" in nature, that is, if it excluded the defendant's evidence of voluntary intoxication by virtue of excising from the state's definition of "murder" every element to which the evidence was otherwise relevant. At the same time, however, the Justices reached a stalemate as to whether the statute was valid in the event it was "evidentiary" in nature, that is, in the event that it excluded defense evidence which was logically relevant to the state's definition of murder by virtue of declaring the evidence to be legally irrelevant: a plurality of four Justices took the view that, if the statute was evidentiary in nature, it was constitutionally valid;(9) four dissenters took the view that, if the statute was evidentiary in nature, it was invalid;(10) and the ninth Justice, Justice Ginsburg, balked at expressing a view on the issue.(11) The outcome of the case--and Justice Ginsburg's ability to refrain from expressing a view--thus depended upon an answer to a separate, conceptual question: was the Montana statute, indeed, substantive as opposed to evidentiary in nature?

The Montana court below appeared to have resolved the conceptual question by interpreting the state statute to be evidentiary in nature.(12) But the Justices complicated matters by differing 5-4 on two analytical issues. First, although the Justices all agreed that they were bound by state court interpretations of state law, they disagreed about the extent to which they were bound by the Montana court's judgment that the exclusion was evidentiary in nature. Justice Ginsburg and the plurality took the view that they were free to form their own characterization of the exclusion, while the dissenters argued that the Court was bound by the state court interpretation. Second, although the Justices all believed that they possessed enough information about Montana law to decide whether its effects were substantive or evidentiary, they disagreed about which it was. Justice Ginsburg and the plurality took the view that the exclusion was substantive in nature, while the dissenters argued that it was evidentiary. Without producing an opinion of the Court, the plurality and Justice Ginsburg thus combined to cast 5 votes for the view that the Montana statute was substantive in nature and, therefore, valid.

The nine Justices thus disagreed, not merely about a normative issue of a sort about which reasonable persons may differ, but about analytical propositions that are either true or false. Judges can reasonably differ--as, indeed, the plurality and dissenters differed in Egelhoff--about whether it matters, constitutionally, whether an exclusion is evidentiary rather than substantive. But federal judges who possess sufficient information about state law to ascertain its effects (and who agree--as all federal judges must--that they are bound by state-court interpretations of state law) cannot reasonably disagree about whether they may characterize a state law's effects differently than courts of the state itself do. Nor can they reasonably disagree about whether the effects are substantive as opposed to evidentiary. If Justice Ginsburg and the plurality were right that they were free to characterize the exclusion of evidence in Egelhoff differently than the state court below, the dissenters were wrong to maintain otherwise. Similarly, if Justice Ginsburg and the plurality were right that the exclusion was substantive, the dissenters were wrong to maintain that it was not substantive but evidentiary.

I shall examine the analytical issues that divided the Court, as well as the normative consequences that resulted from them. Some of the normative consequences were direct and obvious. Others were not. What clearly divided the Court, normatively, was the extent to which the Constitution prevents states in criminal cases from excluding defense evidence that is logically relevant to elements of charged offenses under state law. In the course of discussing the constitutional safeguard, however, the plurality not only misstated the controlling precedents, but shifted the traditional locus of protection from the specific clauses of the Sixth Amendment to the more amorphous Due Process Clause. While the dissenters challenged the plurality on the normative issue, the dissenters failed to challenge the plurality's misstatement of precedent and shift of the locus of protection. One must wonder how much the dissenters' silence was due to the Court's disarray in negotiating the conceptual apparatus which the Court had erected to manage constitutional issues of criminal law and evidence.

I shall also examine an issue upon which the Justices were unanimous, albeit mistaken, namely, whether the Justices possessed enough information about Montana law to know whether its effects were substantive or evidentiary across the range of cases they discussed. The Justices mistakenly assumed that offers of evidence of voluntary intoxication to rebut criminal intent are all functionally equivalent, and that the state of Montana meant to treat them all identically. The Justices made the mistake because they failed to ask a question about Montana law which would have resolved the analytical differences among them, and, in resolving them, perhaps have resolved their normative differences as well. The Justices failed to ask the question because, apparently, they lacked a sufficient grasp of the relationship between intoxication and criminal responsibility to realize that the answer mattered.


    To understand how the Montana statute operates, one must understand the various ways in which intoxication can affect a person's criminal responsibility. And to do that, one must, in turn, understand what it is for a person to be criminally responsible with respect to conduct for which he is being officially condemned.

    1. Normative Responsibility

      The criminal justice system in the United States (and very likely everywhere else) is a condemnatory, or "blaming," institution. That is, it does more than adjudge whether persons engage in undesired conduct, and more than inflict purposeful suffering on them for such conduct. It also officially blames them for their conduct by expressing society's collective resentment of them.(13) Resentment, in turn, is a "reactive" emotion, an emotion people experience in reaction to conduct by an actor that they perceive to...

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