Excuse: Intoxication

In the last three decades of the twentieth century, a number of Anglo-American jurisdictions have considered important reforms in voluntary intoxication doctrine. These reform movements have gone in opposite directions, one urging more liberal use of intoxication evidence and the other urging more restrictions on its employment.

Proponents of liberalization have argued that intoxication evidence should be used without restriction to ensure that only persons proven to have acted in conscious disregard of risk should receive serious punishment. To the extent that dangerous conduct might be excused by this approach, proponents have urged the creation of a new offense of dangerous drinking, where culpability would rest on drinking under circumstances likely to lead to wrongful conduct. A proposal of this kind was recently rejected in England, but the no-restriction approach to intoxication evidence has been judicially adopted in some parts of Australia and New Zealand (R. v. O'Connor (1980) 54 A.J.L.R. 349 (Australia); Kamipeli (1975) 2 N.Z.L.R. 610 (New Zealand)).

In the United States, reform generally has moved toward further restriction of intoxication evidence, with a significant minority of American states recently deciding to either further restrict or prohibit mens rea arguments based on voluntary intoxication (e.g., Ariz. Rev. Stat. Ann. sec. 13–503; Mont. Code Ann. sec. 45–2–203). These changes have raised issues both of constitutionality and justice.

The constitutionality of barring voluntary intoxication evidence under federal law was largely resolved by the U.S. Supreme Court in Montana v. Egelhoff (518 U.S. 37 (1996)). In that decision a majority of the justices agreed that Montana's statute barring consideration of intoxication as to mens rea was consistent with the U.S. Constitution's due process requirement that the prosecution prove every essential element of a criminal offense beyond a reasonable doubt. The court's majority was split on why the statute passed constitutional muster, however.

The majority justices disagreed on both the reach of the U.S. Constitution's due process clause and the proper categorization at Montana's statute. Justice Anthony Scalia, writing for a plurality, held that the statute represents a bar on certain mens rea evidence, but that it was permissible because due process allows states wide latitude in establishing rules of evidence. Thus a state may bar certain evidence relevant to an element of the offense as to which the prosecution has the burden of proof, without effecting an unconstitutional shift in the overall burden of proof. In her concurrence, Justice Ginsburg read the Montana statute as a rule of substantive criminal law and voted to uphold on the ground that states have broad latitude to define crimes as they wish, including creating, modifying, or eliminating defenses to those crimes. Meanwhile the four dissenters argued that the statute impermissibly shifted the burden of proof on an essential element of the offense—mens rea—and so violated due process.

Restrictions on intoxication evidence as to mens rea also raise significant justice issues. If, as the criminal law generally presumes, serious blame and punishment require proof of mens rea, then barring important evidence about mens rea is unjust. Only a few counterarguments are available. First, proponents of restriction might argue that the evidentiary bar simply eliminates confusion about mens rea because, as we have seen, intoxication evidence rarely negates criminal intent. Yet there remain some cases where it does. Proponents most commonly argue that a person's fault in becoming drunk makes the person responsible for all subsequent wrongs. This conflates two quite different forms of misconduct, however. Choosing to drink to excess is hardly the moral equivalent of choosing to violently attack or kill another, for example.

A third approach to reform would concentrate on mens rea rather than on intoxication doctrine. If instead of requiring proof of awareness of harm-doing for serious criminality, the law required proof of a demonstrated attitude of indifference to harm-doing, then intoxication evidence could be freely allowed, consistent with both justice and public safety concerns. Under this approach intoxication evidence might in some cases bolster the prosecution's case by demonstrating lack of concern for harm-doing while in other cases might assist the defense by suggesting less culpable reasons for disregard of risk.