Just say no excuse: the rise and fall of the intoxication defense.

• Author: Keiter, Mitchell
• Position: Including appendix comparing state laws

1. Introduction

   On perhaps no other legal issue have courts so widely differed, or so often changed their views, as that of the legal responsibility of intoxicated offenders.(1) The question contrasts the individual's right to avoid punishment for the unintended consequences of his acts with what then-new Hampshire Supreme Court justice David Souter described as the individual's "responsibility ... to stay sober if his intoxication will jeopardize the lives and safety of others.(2) The issue presents the choice of whether the magnitude of an offense should be measured from the objective perspective of the community or the subjective perspective of the offender.(3)

   Prompted by myriad changes in social, political, medical and legal philosophies, nineteenth and early twentieth century courts greatly expanded the exculpatory effect of intoxication. Beginning in the 1980s and 1990s, however, the pendulum began to swing back toward a policy of accountability for acts committed while intoxicated. Throughout this process, the issue has been highlighted by the competing positions of courts and legislatures. For example, in 1994 both the California and Canada Supreme Courts issued decisions which protected or expanded a defendant's right to introduce evidence of his intoxication.(4) Both decisions sparked public outrage,(5) and were in effect reversed by new statutes in 1995.(6)

   The United States Supreme Court's decision in Montana v. Egelhoff will likely have a profound effect on the debate surrounding the intoxication defense. The Court upheld a Montana statute which holds intoxicated(8) offenders fully responsible for the consequences of acts they commit while intoxicated. While the plurality, concurring, and various dissenting opinions reflected differing perspectives, none found it would be unconstitutional for a state to equate a severe state of intoxication with the requisite mens rea for any crime. The Court's approval will likely influence other states to adopt a full responsibility policy.(9)

   Many serious crimes are committed by an individual under the influence of alcohol or illegal drugs;(10) in 1989, more homicides were committed by an intoxicated assailant than with a firearm.(11) Abolition of the intoxication defense may further efforts to stop not only drug abuse but all serious crimes.

   Part II of this article reviews the history of the intoxication defense in America, describing the social, cultural and scientific trends which shaped the course of the doctrine. Part III surveys the laws of the partial responsibility states, and Part IV distinguishes the intoxication defense from other criminal defenses. Part V examines the Montana statute reviewed in Montana v. Egelhoff. Part VI offers a policy rationale for a full responsibility doctrine. Part VII concludes by contending the ultimate policy decision to determine the proper extent of responsibility for intoxicated offenders is one which properly rests not with courts but with the people and their elected representatives.

2. The History of the Intoxication Defense

   A student could learn much about modem history from studying the history of the criminal law's position toward intoxicated offenders. The contraction and expansion of intoxicated offenders' criminal responsibility has not occurred in a vacuum; it has reflected the major cultural trends and values of the past two centuries. "The doctrines of actus reus, mm rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical and medical views of the nature of man."(12) The history of this issue illuminates all of these themes as well as the changing relationship between the individual and society.

   The common law punished sober and intoxicated offenders equally. According to Reniger v. Fogossa,(13) an English case from the year 1551:

   [I]f a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.(14) Because the offender created his disability, it could not serve to exculpate.

   This analysis flowed from the law's former "harm-oriented' framework, which considered harm a prima facie case of guilt.(15) A valid defense (which intoxication was not) could negate the prima facie case.(16) In contrast, the modern "act-oriented" framework first considers the mental state of the defendant.(17) Where there is no mens rea, there is no need to consider the extent of the harm caused. The absence of mens rea is thus not an affirmative defense but the absence of an essential element of the crime charged.(18)

   This analytical shift has affected the law's posture toward crimes committed under severe intoxication.(19) One who cannot form a criminal intent due to intoxication has not violated the mental clement of the offense. In Terry v. State,(20) the Indiana Supreme Court stated, "The murder statute clearly requires an intentional act on the part of the perpetrator .... In order to form intent ... the perpetrator must be acting consciously and competently. Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts."(21) Thus, in the modern framework, where there is no mental element, there also is no punishable wrong, the harm notwithstanding.(22)

   The evolution of the law from Reniger v. Fogossa to Terry V. State(23) resulted not only from a new procedural framework but also from changing substantive ideals of justice. In most of the nineteenth century, the classical school of criminology prevailed. The classical model was based on the premise of a social contract through which people surrendered liberties to the state in exchange for protection from criminals and wrongdoers.(24) Influenced by the Enlightenment, the classical school assumed that people were rational agents motivated by self-interest. "The cardinal principal of criminal jurisprudence is that a crime is the act of a voluntary and responsible agent who chooses between the lawful and unlawful. From this standpoint, guilt, like sin, is personal, because each man is the captain of his own conduct.(25) Punishing criminals served the communal purpose of sanctioning deviant behavior and thereby deterring future recurrences.

   By the late nineteenth century, the scientific school had begun to displace its classical forerunner.(26) The scientific school attributed criminal behavior to biological and environmental determinism, believing criminals to be neither selfish nor sinful, merely sick. The scientific school promoted the notion that the questions of clime in general and intoxication in particular were not moral in nature but medical.(27)

   In 1956, the American Medical Association first recognized alcoholism as a "disease." This declaration advanced the theory that even self-induced intoxication could be classified as "involuntary," comparable to mental illness.(28) "If alcoholism, however, is recognized as a `sickness,' a concomitant recognition must be that, similar to an insane person, the alcoholic does not `sin' when he takes a drink. . ."(29) Two federal circuit courts agreed, comparing punishing an alcoholic's involuntary drinking and subsequent public appearance with punishing an insane person, an infant or a leper.(30)

   The United States Supreme Court arrested this trend in Powell v. Texas,(31) finding that the Eighth Amendment did not prevent states from criminalizing public intoxication.(32) The Powell dissent recognized the "uncontrollable compulsion to drink,"(33) but stressed that such a compulsion was a proper defense only to charges of public intoxication, and not to more serious charges such as driving while intoxicated, assault, theft or robbery.(34) Justice Marshall found this distinction artificial and illogical.(35) One advocate of the defense was more candid about its scope:

   Since it is now judicially as well as medically and legislatively recognized that alcoholism is a "disease" which compels its victims to drink involuntarily, there is no logical reason why an alcoholic should be held responsible for any conduct performed while involuntarily intoxicated ... the traditional punishment of an alcoholic for conduct performed while involuntarily intoxicated as a result of alcoholism "is as archaic as the medieval outlook that the community once had with respect to insanity, tuberculosis and leprosy."(36) Commentators who believed "criminal" behavior was not freely chosen but biologically determined naturally had a different perspective on punishment than that advanced by the classical school.

   The scientific school favored rehabilitation over deterrence as the function of criminal law. Since the goal was not for the law to deter rational actors but for medicine to heal dysfunctional ones, punishment was directed not to the crime but to the criminal.(37)

   In accordance with this sentencing trend, the law began to focus more on subjective intents rather than objective harms. The law had always recognized the potential injustice to intoxicated offenders who received full punishment, but had formerly determined criminality from the community's perspective.

   In the forum of conscience there is no doubt consider-able difference between a murder deliberately planned and executed by a person of unclouded intellect, and the reckless taking of fife by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct.(38)

   The law thus promoted the public interest by imposing a duty to...