Excuse: Intoxication

Whether a voluntarily intoxicated person may assert a so-called intoxication defense in a criminal case will depend on: (1) whether the jurisdiction permits intoxication evidence to be used to negate the criminal intent, or mens rea, required for the offense; and (2) if so, whether it appears likely that the accused actually did lack the required mens rea because of intoxication.

Courts have long emphasized that evidence of voluntary intoxication goes only to the narrow issue of mens rea, such as intent to steal or intent to kill. Defendants may not claim excuse based on intoxication-induced personality change or associated loss of self-control, even though these effects may be central to the intoxicant's criminogenic effect. The usual rationale for this position is that the person who chooses to become intoxicated must take the consequences of that choice, especially if those consequences prove dangerous to others. The criminal law's policy also accords with its presumption of unitary personal identity. The law presumes that every individual human is a single responsible entity, regardless of the often dramatic personality chances caused by mood, intoxication, or circumstance.

Beginning in the nineteenth century, English and American courts began to allow defendants to use voluntary intoxication in arguments about mens rea. In a compromise between general principles of culpability, which argue for unrestricted use of intoxication evidence, and public safety worries about the dangers of the intoxicated, which point the law in the opposite direction, courts developed the specific intent doctrine. Defendants may use evidence of voluntary intoxication to negate a form of mens rea known specific intent, but not those—more common—forms of mens rea known as general intent (People v. Hood, 463 P.2d 370 (Cal. 1969); D.P.P. v. Majewski, (1976) All.E.R. 142). Thus the critical distinction is whether the particular crime is one of specific or general intent.

To illustrate, consider a case in the United States where a defendant is charged with first-degree premeditated murder, a crime of specific intent. The defendant may argue that because of inebriation he lacked the specific intent—the premeditation—necessary for the offense. He may argue that intoxication meant he acted without the cool and calculated resolve to kill that is premeditation. If the decision-maker agrees, but finds that all other elements of the offense are established, the defendant will be convicted of some lesser, general intent form of homicide.

The specific intent approach to intoxication has proven highly durable for a number or reasons. The specific versus general intent distinction suggests a hierarchy of mental states that seems to accord with the effects of intoxication. We know that intoxication commonly interferes with higher levels of mental functioning. The approach also has a built-in public safety limit in its restriction to specific intent crimes. The widespread availability of general intent offenses means that few intoxicated harm-doers will go entirely unpunished. Nevertheless, the doctrine has some major flaws.

Courts and commentators have long noted that the line between general and specific intent is often obscure, dependent more on the form of words and accidents of historical interpretation than on principled distinctions. In different jurisdictions, or at different times, the same offenses can be oppositely characterized. For example, depraved-heart murder is sometimes labeled a crime of general intent and sometimes one of specific intent (People v. Whitfield, 868 P.2d 272 (Cal. 1994) (specific intent); People v. Langworthy, 331 N.W.2d 171 (Mich. 1982) (general intent)). The doctrine's public safety limitation in reality proves unreliable; especially in areas of more modern criminal legislation, there may be no general intent crime, with the result that voluntary intoxication can support a complete excuse. Nor does the specific versus general distinction necessarily track the seriousness of offense. One of the most serious criminal offenses, rape, is a general intent crime, while less serious offenses such as burglary and larceny are categorized specific intent crimes. Finally, the specific versus general intent distinction does not in fact involve a hierarchy of higher and lower mental functioning. In most instances voluntary intoxication does not negate specific intent, though it might—if allowed—negate general intent.

In an effort to avoid the manifold difficulties of specific intent analysis, the drafters of the influential Model Penal Code eliminated the specific intent distinction in favor of four basic mens rea forms: purposely, knowingly, recklessly, and negligently (section 2.02). With regard to voluntary intoxication the Code states that such evidence may be used to negate purposely or knowingly mens reas. Intoxication is explicitly barred from consideration of recklessness mens rea; it is definitionally barred from negligence analysis because a judgment of negligence depends on the defendant having grossly deviated from the conduct of a the reasonable person in the situation—and the reasonable person is a sober one (sections 2.08, 2.02(d)).

The Model Penal Code's approach to voluntary intoxication has been praised for its clarity, but has drawn its own criticisms, particularly with regard to the recklessness exclusion. How is a fact finder to know what a particular person would have realized if sober? Even more troubling, the exclusion appears inconsistent with the Code's general presumption that actual awareness of criminally significant facts is critical to culpability.

We now move to the second set of voluntary intoxication issues: assuming the law allows defendants to argue no mens rea based on intoxication, will the argument work? Will the judge or jury agree that proof of mens rea fails due to intoxication? Here we confront a deliberate irony of voluntary intoxication doctrine: as a general rule it is most available where it is least likely to work, and least available where it would be most likely to work.

Although generally allowed as a matter of law under both the specific intent doctrine and the Model Penal Code, most arguments that an accused lacks an intentional mens rea will prove implausible on the facts of the case. For example, two men after an afternoon's drinking fall into an argument and then engage in a fight. One pulls out a deadly weapon and uses it to fatal effect. How likely is it that the man who killed the other lacked the purpose to kill because of intoxication? Here the prosecution might use intoxication to bolster its proof of mens rea by arguing that intoxication inspires more powerful emotions, especially anger, and less self-control, making it more likely that an intoxicated—and enraged—person will retaliate by trying (i.e., intending) to kill or do grave bodily injury. Thus the intoxicated defendant probably did act with the required mens rea.

Now consider crimes that involve careless wrongdoing, those bearing the mens rea of recklessness. In these cases under both the Model Penal Code (with its recklessness exclusion) and the specific intent doctrine (where reckless offenses are usually labeled general intent), attacks on mens rea via intoxication are generally barred. Note that if allowed, the accused in such cases might often have a plausible factual argument that he or she did not realize the risks of her conduct because of intoxication. While the prosecution may counter here that intoxication—especially alcohol intoxication—does not so much make the person unaware of risk as unconcerned about it, most lawmakers have feared that jurors will not recognize this distinction.