Behavioral Sciences and the Law
Behav. Sci. Law 17: 195±217 (1999)
Voluntary Intoxication1
and Criminal Responsibility
Douglas B. Marlowe, J.D., Ph.D.,*
Jennifer B. Lambert, J.D., Psy.D.{
and Robert G. Thompson, Psy.D.{
This paper reviews the law related to voluntary intoxication and criminal responsibility in the 50 United
States, the District of Columbia, the US Virgin islands,
and Puerto Rico. Statutory and case law citations are
provided which govern the use of intoxication evidence in
each jurisdiction to negate mens rea (i.e., to establish
diminished capacity), to support an insanity defense, and
to mitigate criminal sentencing. Factors that courts
typically focus on when deciding whether to admit this
evidence in a particular case are discussed, and these
factors are related to clinically relevant criteria. Copyright # 1999 John Wiley & Sons, Ltd.
In the early morning hours of July 13, 1992, Montana state police ocers
discovered James Allen Egelho€ shouting obscenities incoherently in the rear
cargo area of a station wagon that was disabled in a ditch on the side of a highway.
Two acquaintances of Mr. Egelho€'s, including the owner of the car, were dead in
the front seat from gun shot wounds to the head. Mr. Egelho€'s gun, which was
later identi®ed as the murder weapon, was found lying by the brake pedal along
with two empty shell casings. Over a period of ®ve to six hours at the hospital, and
again later at the police station, Mr. Egelho€ was reportedly belligerent and
combative and was described by one ocer as acting ``wildly.'' He was determined
to have a blood alcohol content (BAC) of 0.36 percent, which is more than three
times the legal limit for operating a vehicle in any jurisdiction. Mr. Egelho€
reportedly had no recollection of the events leading up to and including the
slayings, nor did he have an apparent motive for the crimes. Several eyewitnesses
veri®ed that he and the two victims had been drinking beer and whiskey steadily
over many hours on the preceding day, ®rst at a party and later at several bars.
Witnesses also reported seeing the station wagon in question weaving erratically on
* Correspondence to: Douglas B. Marlowe, J.D., Ph.D., Treatment Research Institute at the University
of Pennsylvania, One Commerce Square, 2005 Market Street, Suite 1120, Philadelphia, Pennsylvania
19103-7220, USA. E-mail address: [email protected]
{ Institute for Addictive Disorders, MCP Hahnemann University.
1
This paper focuses on the voluntary ingestion of both illicit drugs and alcohol. The topics of
involuntary intoxication, pathological intoxication, and automatism are dealt with brie¯y in the section
on the insanity defense.
CCC 0735±3936/99/020195±23$17.50
Copyright # 1999 John Wiley & Sons, Ltd.
196
D. B. Marlowe et al.
the highway earlier that evening, and police later identi®ed ®ve sites on the
highway where a vehicle had apparently left the road.
At trial, Mr. Egelho€ sought to introduce evidence of his intoxication to negate
the mens rea (requisite mental state) element of deliberative murder. However, the
trial court excluded the evidence pursuant to a recently enacted Montana statute
(Mont. Code Ann. } 45-2-203) which bars voluntary intoxication from serving as
the basis of a criminal responsibility defense. On appeal, the Montana Supreme
Court unanimously held that the statute in question was unconstitutional because
it violated the defendant's due process right to have a fair opportunity to defend
against the State's accusations (State v. Egelho€, 1995). The court reasoned that
the statute and its related jury instruction e€ectively relieved the State of proving
every element of the o€ense beyond a reasonable doubt.
The State of Montana appealed the case to the United States Supreme Court. The
Supreme Court held, in a plurality opinionÐJustices Scalia, Rehnquist, Thomas,
and Kennedy joined in the majority opinion, with Justice Ginsburg concurring in
the judgment but not the reasoningÐthat an accused does not have a fundamental
right to present evidence of voluntary intoxication in his or her criminal defense
(Montana v. Egelho€, 1996). If a purported right is not expressly enumerated in the
Constitution, a substantive due process analysis inquires as to whether the ``right''
was historically available at the time of the framing of the Constitution or during the
formative years of the Republic. If not, the ``right'' may still be recognized, but only
if it is ``implicit in the concept of an ordered liberty'' (see, e.g., Roe v. Wade, 1973
(right to privacy)), which is a highly stringent standard. In Egelho€, Justice Scalia
determined that, at common law, voluntary intoxication was traditionally rejected as
a basis for a criminal defense and, in fact, was often viewed as an aggravating factor
for purposes of sentencing. That is, substance abuse was commonly introduced as
evidence of a defendant's bad moral character or antisocial propensities. Justice
Scalia further rejected the defendant's argument that the intoxication defense had
gained general acceptance since the late 19th century, stating that ``fully one-®fth of
the States either never adopted the new common-law rule . . . or have recently
abandoned it'' ( pp. 2019±2020). Lacking historical support, the Court discerned no
fundamental interest on the part of criminal defendants to present such evidence.
In a concurring opinion, Justice Ginsburg agreed with the result, but disagreed
with the majority's due process analysis. Instead, Justice Ginsburg interpreted the
statute as changing the de®nition of ®rst degree murder, which is the state
legislature's prerogative. Rather than relieving the prosecution of its burden of
proving each element of the o€ense, the Montana statute, in Justice Ginsburg's
estimation, simply changed the elements themselves.
The Egelho€ opinion has been the subject of heated controversy since its
issuance approximately three years ago. Several commentators have attacked the
decision and the statute it upheld on constitutional grounds for failing to preserve a
defendant's right to present a full defense (e.g., McManus, 1997; Schuh, 1997). In
fact, prior to the Egelho€ case, most criminal law scholars had weighed in on the
side of at least partially admitting intoxication evidence (e.g., LaFave & Scott,
1986; Robinson, 1984). Some commentators have focused on the potential social
policy rami®cations of the decision. McManus (1997), for example, argues that the
opinion codi®es a ``clear moral reprobation of intoxicated defendants'' ( p. 1283) on
the part of the general public. This could have the unintended consequence of
Copyright # 1999 John Wiley & Sons, Ltd.
Behav. Sci. Law 17: 195±217 (1999)
Voluntary intoxication
197
deterring substance abusers from seeking treatment because of the risk of being
discriminated against or otherwise subjected to increased legal liability.
Other commentators take the contrary position that Egelho€ reinforces notions of
personal responsibility and social justice, and serves to vindicate victims' interests
(Gibeaut, 1997; Layton, 1997). Contrary to the position taken by many legal
theorists, this argument is substantially more in line with the current political
climate. It would arguably be ``political suicide'' for a legislator to be perceived
(accurately or inaccurately) as advocating reduced criminal responsibility on the
part of substance-abusing o€enders. In fact, in the immediate wake of Egelho€, it
has been reported that bills were introduced in the assemblies of at least ten states
to enact legislation similar to the Montana statute (Gibeaut, 1997). To our
knowledge, however, none of these bills has been enacted to date.
Regardless of one's views about the propriety of the Egelho€ opinion, its import
has been substantially overestimated by commentators on all sides of the debate.
The decision merely examined the constitutionality, under federal law, of excluding intoxication evidence. It is possible for state courts to interpret the exclusion of
such evidence as violating a state constitution, statute, rule of evidence, or common
law doctrine. Further, it is not at all clear that the exclusion re¯ects prevailing legal
views about the use of intoxication evidence to negate mens rea. Justice Scalia
correctly observed that ``fully one-®fth'' of US jurisdictions bar the introduction of
such evidence for this purpose. Simple arithmetic reveals, therefore, that approximately four-®fths (approximately 80%) of jurisdictions admit such evidence in
certain circumstances, which Justice O'Connor underscored in her dissenting
opinion in Egelho€.
Because jurors often have very negative impressions about substance abuse and
substance abusers, it may not be a good trial strategy to introduce such evidence in
many cases. Attorneys and forensic experts should, however, be aware of the various
ways in which evidence of voluntary intoxication can potentially be utilized. Rather
than presuming that such evidence is nearly always inadmissible or in¯ammatory,
lawyers and experts should be prepared to evaluate the pros and cons of introducing
this evidence within the framework of an overall criminal defense2 strategy. In fact,
although courts are unlikely to second-guess a speci®c strategic decision not to admit
such evidence (see, e.g., Commonwealth v. Davenport, 1981), a failure to consider its
potential utility might, under some circumstances, constitute ine€ective assistance
of counsel (see, e.g., Commonwealth v. Bailey, 1978).
This is particularly important because substance abuse is among the most
prevalent psychiatric disorders in forensic and correctional populations, and is the
most common comorbid behavioral syndrome in all cases involving violence, abuse,
neglect, or other criminal activity. The National Institute on Drug Abuse (NIDA,
1993) estimates that roughly one-half of all violent episodes in this country are
mediated by acute intoxication on the part of the perpetrator and/or victim. Substance abuse is estimated to be a contributing factor in between one-half and
2
This paper focuses mainly on the use of intoxication evidence by the defense. In practice, there are few
grounds upon which the prosecution may independently introduce such evidence because of its obvious
prejudicial e€ect (unless, of course, the defendant is charged with a drug-related o€ense). The
prosecution is often limited to using evidence of intoxication to rebut prior testimony, to impeach the
credibility of a witness or, in rare instances, to show signature conduct (i.e., modus operandi) on the part
of the defendant.
Copyright # 1999 John Wiley & Sons, Ltd.
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198
D. B. Marlowe et al.
two-thirds of violent crimes (62% assault, 68% manslaughter, 54% murder or
attempted murder, 52% rape or sexual assault; NIAAA, 1990). Between
approximately one-half and four-®fths (51% to 83% of males, 41% to 84% of
females) of arrestees test positive for one or more illicit drugs at the time of arrest
(National Institute of Justice, 1996). Over one-quarter of state and federal prison
inmates, and over one-third (36%) of all o€enders under supervision of corrections
authorities, report having been under the in¯uence of drugs or alcohol at the time of
the index o€ense (Bureau of Justice Statistics, 1996). Similarly, more than half of
incarcerated juvenile o€enders report having regularly abused alcohol or drugs
immediately prior to imprisonment, and over one-third of these imprisoned
juveniles report having been under the in¯uence at the time of the o€ense (OJJDP,
1997).
The drug±crime link is also demonstrated in non-correctional populations. Data
from the National Household Survey on Drug Abuse reveal that non-identi®ed
substance abusers in the community are signi®cantly more likely to commit crimes
than non-substance abusing community controls (Harrison & Gfroerer, 1992).
Among psychiatric samples, the strongest predictor of future violence appears to be
a comorbid substance use disorder (Monahan, 1996; Steadman et al., 1998;
Swanson, Holzer, Ganju, & Jono, 1990). When the nature and severity of substance abuse is statistically controlled for, the link between violence and other
mental illness is substantially attenuated, if not eliminated.
These data clearly indicate that the odds are in favor of identifying a substance
abuse issue that might form the basis of a criminal trial strategy. In the following
sections of this paper, we review laws related to criminal responsibility and voluntary
intoxication in the 50 United States, the District of Columbia, the US Virgin
Islands, and Puerto Rico.3 Statutory and case law citations are provided which
govern the use of intoxication evidence in each jurisdiction to negate mens rea, to
support an insanity defense, and to mitigate criminal sentencing (see the appendix).
Subsequently, we review factors that courts typically focus on when deciding
whether to admit this evidence in a particular case, and relate these factors to
clinically relevant criteria.
VOLUNTARY INTOXICATION TO NEGATE MENS REA
As Justice Scalia observed in the Egelho€ opinion, voluntary intoxication was
uniformly rejected as a defense in early common law. However, in 1882, the United
States Supreme Court in Hopt v. People noted that, where the o€ense charged
requires a speci®c state of mind, evidence of an accused's intoxication ``necessarily
becomes a material subject of consideration by the jury'' ( p. 634). By the early
1900s, numerous American courts began receiving such evidence to determine the
defendant's mental state at the time of the crime (Layton, 1997).
Presently, US jurisdictions take one of four approaches to the use of evidence of
voluntary intoxication to negate mens rea. These approaches are outlined in the ®rst
column of the appendix. One approach, currently followed by twelve jurisdictions
3
Federal and military law related to voluntary intoxication and criminal responsibility are not included
in the survey.
Copyright # 1999 John Wiley & Sons, Ltd.
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199
(23% of jurisdictions), is to bar the use of such evidence in all criminal cases to
negate any element of the o€ense.
A substantial number of jurisdictions (n ˆ 20, 38%), however, have statutory
language which permits evidence of voluntary intoxication, where relevant, to
negate ``an element of the o€ense.'' This language is interpreted as applying to the
mens rea component of ``general intent'' crimes; that is, all crimes predicated on
intentional misconduct. The majority of these jurisdictions speci®cally exclude
recklessness on the face of the statute. For example, Alabama's Criminal Code
provides that ``[w]hen recklessness establishes an element of an o€ense and the
actor is unaware of a risk because of voluntary intoxication, his unawareness is
immaterial in a prosecution for that o€ense'' (Ala. Crim. Code } 13A-3-2[b]). The
remaining general intent jurisdictions, while not speci®cally excluding recklessness
or gross negligence in the statute, preclude such a defense through case law (see,
e.g., LaFave & Scott, 1986; State v. Glidden, 1982). The reasoning behind these
cases is that recklessness is inferred from the act of abusing drugs or alcohol. In
essense, it is reckless per se to become voluntarily intoxicated.
A plurality of jurisdictions (n ˆ 21, 40%) only permit evidence of voluntary
intoxication to negate ``speci®c intent.'' The statutory language in most (n ˆ 18) of
these jurisdictions expressly limits application of the defense to speci®c intent
o€enses. An additional three jurisdictions permit the defense to negate ``a required
purpose, motive or intent.'' In practice, both statutory schemes achieve the same
e€ect (see, e.g., Robinson, 1984; State v. Plenty Horse, 1971).
The conceptual distinction between ``general intent'' and ``speci®c intent'' is not
clearly delineated. General intent refers to any intention to perform a proscribed
act or closely related act, while speci®c intent requires a purpose plus deliberation
(see, e.g., Kaplan & Weisberg, 1991). For example, an intention to cause grievous
bodily harm, resulting in death, is sucient for second or third degree murder
(depending on the state), which are general intent crimes. First degree murder, on
the other hand, requires deliberation or premeditation to cause death. Similarly, in
virtually all states, robbery is a general intent crime, predicated upon an intention
to steal. Burglary, on the other hand, requires a speci®c intent to break and enter
into a residence, with a further intent to commit an enumerated felony within.
Assault with intent to kill is a speci®c intent crime, requiring the defendant to
undertake the assault with the purpose of killing, whereas simple assault or assault
with a deadly weapon are general intent crimes, requiring only that the defendant
possess a general intent to cause harm.
Conceptually, this distinction has proven troublesome for courts (see, e.g.,
Layton, 1997) and has been labelled as an arti®cial device which achieves a certain
result rather than re¯ecting a coherent theory (see, e.g., Robinson, 1984). The
actual e€ect is to categorize intentional crimes along two ``tiers'' of seriousness,
re¯ecting greater or lesser degrees of moral culpability and, very often, greater or
lesser sentences. Those states that have limited evidence of voluntary intoxication
to negate speci®c intent have, in e€ect, limited the availability of the defense to a
relatively smaller class of more serious felonies. Further, in most instances, a
general intent crime is available as a ``lesser included o€ense'' of a speci®c intent
crime. For example, assault with a deadly weapon is a lesser included o€ense of
assault with intent to kill. Thus, in speci®c intent states, a serious level of liability
is virtually assured for the intoxicated defendant.
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Finally, a small number of jurisdictions (n ˆ 3, 6%) admit evidence of voluntary
intoxication only in ®rst degree murder cases. These states only permit voluntary
intoxication to negate the requisite element of premeditation or deliberation, thus
typically reducing criminal culpability to second or third degree murder (depending on the state), which are lesser included o€enses.
In some instances, voluntary intoxication may reduce homicide liability to
voluntary manslaughter. Generally, there are two alternative ``prongs'' of voluntary manslaughter. The ®rst prong is predicated upon ``provocation'' or ``heat of
passion,'' requiring the defendant to have committed the act in response to extreme
emotional arousal caused by the provocation of the victim or an involved bystander.
Provocation is typically judged by an ``objective'' standard, requiring that the
average, ordinary, prudent person would have been instigated to violence under
those same circumstances. Because it is not judged by the standard of the average
intoxicated person, it is not sucient to show that the defendant became extremely
aroused due, in part, to a low frustration threshold from drugs or alcohol (see, e.g.,
Commonwealth v. Knight, 1994).
The second prong of voluntary manslaughter is predicated upon an unreasonable belief in self-defense; what is referred to as an ``imperfect self-defense claim.''
A reasonable, but mistaken, belief in self-defense is a complete defense to any
liability for homicide. For example, if the victim was pointing a toy gun at the
defendant in jest, then the defendant may not be liable at all, even if the danger was
misinterpreted. The test is whether an ordinary, reasonable, and prudent person
would have believed that he or she was in imminent danger of death or serious
injury. If, however, the defendant unreasonably believed that he or she was in
danger due, for example, to a cocaine-induced paranoid delusion, the charges may
be reduced to voluntary manslaughter (see, e.g., Commonwealth v. Galloway, 1984;
18 Pa. Stat. Ann. } 2503).
Voluntary intoxication rarely, if ever, reduces homicide liability below the
level of involuntary manslaughter, which is predicated upon recklessness, or
below criminally negligent homicide, which is predicated upon gross negligence
(see, e.g., People v. Ricardi, 1992). As noted, voluntary intoxication is
essentially viewed as being reckless per se. Further, in many states, the o€ense
of ``criminally negligent homicide'' or ``vehicular homicide'' is speci®cally
intended to encompass drunk driving and related behavior (e.g., Cal. Penal
Code } 191.5).
A ®nal issue in homicide cases relates to the ``felony murder doctrine.'' In most
states, a defendant may be charged with murder for an unintended killing that
occurs during the course of an enumerated felony. For example, if a customer is
accidentally killed during a store robbery, the defendant may be charged with
murder even if the killing was unintended and non-contemplated. In e€ect, the
intent to kill is ``transferred'' from the intent to commit the robbery. Notably, if
the underlying felony (e.g., robbery) is a general intent crime, and the defendant
®nds himself or herself in a speci®c intent jurisdiction, voluntary intoxication may
be unavailable as a defense to felony murder (see, e.g., Daniels v. State, 1998). If,
however, the underlying felony is a speci®c intent crime (e.g., burglary), then
evidence of voluntary intoxication might be admissible to negate felony murder
(see, e.g., Commonwealth v. Halbert, 1991). Many jurisdictions, however, have not
had occasion to examine this issue directly.
Copyright # 1999 John Wiley & Sons, Ltd.
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201
VOLUNTARY INTOXICATION AS A BASIS FOR AN
INSANITY DEFENSE
Traditionally, voluntary intoxication could not form the basis of an insanity
defense. Regardless of which insanity test a jurisdiction followsÐe.g., M'Naghten's Rule, Irresistible Impulse, American Law Institute (ALI) TestÐthe cognitive
or volitional impairment must be the product of a ``mental disease or defect.'' Mere
intoxication, without more, ordinarily does not satisfy the de®nition of a mental
disease or defect (see, e.g., LaFave & Scott, 1986).
A substantial minority of jurisdictions (n ˆ 17, 32%) allow an insanity defense
to be predicated upon substance abuse, but only if the defendant can demonstrate
that chronic abuse of drugs or alcohol has resulted in a ``settled insanity'' (see, e.g.,
People v. Free, 1983). In these jurisdictions, acute intoxication, by itself, cannot
support an insanity defense. Rather, the defendant must su€er from an independent syndrome (e.g., substance-induced hallucinosis, substance-induced
delusional disorder, dementia) which pre-dates and continues beyond the incident
of intoxication that was linked to the crime. Thus, expert testimony is required in
all such cases to prove that an independent, diagnosable mental disease or defect is
present. Mere evidence of chronic substance abuse, without an accompanying
diagnostic component, is not sucient (see, e.g., Anderson v. State, 1978; State v.
Hart®eld, 1989). Furthermore, if the accompanying syndrome lasts only as long as
the defendant remains acutely intoxicated, it will ordinarily not suce. For
example, a paranoid psychosis that is linked to acute phencyclidine (PCP) toxicity,
without more, would be insucient.
The traditional rule further required that substance-induced insanity be
``permanent''; however, some recent cases have held that a mental defect is
suciently ``®xed'' to satisfy the permanence requirement if it was present before
and after the current instance of intoxication, even if it eventually resolves. For
instance, in Porreca v. State (1981), a Maryland appeals court held that a defendant
was entitled to an insanity instruction where chronic use of PCP resulted in a
paranoid psychosis, even though the psychosis was not permanent. The fact that
the psychosis was induced by the PCP and outlasted the e€ects of the drug was
sucient to establish it as ``®xed'' for purposes of the defense.
Despite some liberalization of the rule in certain instances, there is a growing
hostility toward the insanity defense in general, particularly as it relates to the
voluntary ingestion of drugs or alcohol. Currently, approximately one-half of US
jurisdictions (n ˆ 24, 45%) explicitly bar evidence of voluntary intoxication to
support an insanity defense (nine jurisdictions (17%) have not resolved this issue).
Given that the insanity defense is successfully raised in only a very small
proportion of cases overall (see, e.g., Melton, Petrila, Poythress, & Slobogin, 1997),
it is generally not a good trial strategy to rely on this defense, even in those
jurisdictions that technically allow it.
It should be noted, however, that an insanity defense is substantially easier to
establish in cases involving involuntary intoxication or ``pathological intoxication.''
Involuntary intoxication refers to intoxicated or drugged conditions that are
induced without the individual's consent (i.e., through fraud, duress, force, or the
contrivance of another), or when the individual does not have reason to know that
the substance would cause intoxication. Pathological intoxication is de®ned as
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D. B. Marlowe et al.
intoxication that is grossly excessive in degree given the amount of intoxicant that
was ingested, where the individual did not know that he or she was unusually
susceptible to the substance. Importantly, the defendant must lack actual knowledge about the potential e€ect(s) of the substance on his or her behavior, and must
not have reason to know about such e€ects. If, for instance, the defendant has
experienced unusual reactions to a drug in the past, a defense of involuntary
intoxication or pathological intoxication would be unavailable.
Insanity standards for involuntary intoxication vary signi®cantly by jurisdiction.
For instance, in Louisiana (La. Rev. Stat. Ann. Tit. 14, } 15), involuntary intoxication is a complete defense to criminal liability if the intoxication was the ``direct
cause'' of the commission of the crime. Kentucky utilizes the ALI Test for insanity
based upon involuntary intoxication, in which the defendant must demonstrate
that, due to the intoxication, he or she was substantially incapable of appreciating
the wrongfulness of the conduct or of conforming it to the requirements of the
law (Ky. Rev. Stat. Ann. } 501.080). This standard incorporates an ``irresistible
impulse'' prong, permitting the defense where intoxication impairs the defendant's
volition, but does not necessarily interfere with his or her capacity to appreciate the
wrongfulness of the conduct. Kansas, in contrast, requires the defendant to prove
both prongs of the ALI Test for involuntary intoxication; speci®cally, that the
defendant was substantially incapable of appreciating the wrongfulness of the
conduct and of conforming it to the requirements of the law (Kan. Stat. Ann. } 213208).
Courts are hesitant to recognize a defense of pathological intoxication if it is
induced by an idiosyncratic reaction to the voluntary ingestion of illicit drugs or
alcohol, which are known to have intoxicating qualities (see, e.g., Commonwealth v.
Henry, 1990; People v. Matthews, 1985). In contrast, this defense is more likely to
be available in cases involving idiosyncratic or ``paradoxical'' reactions to
prescription medication. Such reactions may not involve intoxication per se, but
rather may be characterized by heightened aggression or other altered mood states.
For example, in Brancaccio v. State (1997), a Florida appellate court ruled that a
defense of involuntary intoxication was available to a defendant who allegedly
committed a murder and kidnapping while experiencing rare hypomanic and
psychotic reactions to sertraline. As noted, however, such a defense would be
unavailable if the defendant knew, or had reason to know, about his or her
heightened sensitivity to the substance.
A related issue to the insanity defense is the defense of ``automatism.'' In cases
involving extreme intoxication or extreme idiosyncratic reactions to a substance, an
individual may become so delirious or dissociated as to be, in essence, unconscious
of his or her actions. In these rare instances, the law may view the individual as not
having engaged in the actus reus (requisite act) of the o€ense (see, e.g., Fulcher v.
State, 1981). Rather than negating the defendant's mental state, this defense
negates the conduct itself. Similar to the insanity defense, the automatism defense
is unavailable if the defendant knew, or had reason to know, about his or her
hypersensitivity to the substance (see, e.g., Tift v. State, 1916).
The automatism defense is rarely, if ever, successfully raised in cases involving
the voluntary ingestion of drugs or alcohol. It is, for all intents and purposes,
reserved for instances of involuntary intoxication, pathological intoxication, or
idiosyncratic reactions to a substance. Yet, even in such cases, the automatism
Copyright # 1999 John Wiley & Sons, Ltd.
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Voluntary intoxication
203
defense is rarely raised in this country, and when it is raised, it is often treated
(erroneously) by courts as a variant of the insanity defense (Melton et al., 1997). It
may, therefore, have little practical utility in typical forensic work.
As a general matter, absent fairly compelling facts, it is very dicult to establish
an insanity defense predicated on intoxication, and it is even more dicult to
successfully invoke an automatism defense. Therefore, if a successful mens rea
defense is unlikely or unavailable, it is often preferable to focus one's e€orts on
sentencing mitigation or other dispositional issues.
VOLUNTARY INTOXICATION AS A MITIGATING
FACTOR IN SENTENCING
Evidence of voluntary intoxication is always admissible in capital sentencing
hearings to mitigate against the death penalty. The United States Supreme Court
held in Lockett v. Ohio (1978) that a sentencer must be able to consider any aspect
of a defendant's character or record that the defendant pro€ers as a basis for a
sentence less than death. This rule was later reiterated in Eddings v. Oklahoma
(1982), in which the Court held that ``any relevant mitigating factor'' must be
considered when contemplating the death penalty.
Most state capital sentencing statutes contain a ``catch-all'' provision for
mitigating evidence. Following a non-exclusive list of sample mitigating factors,
there is typically a provision which permits ``any other relevant evidence of
mitigation'' (e.g., 42 Pa. Stat. Ann. } 9711[e][8]). Under this provision, the
defendant is not required to satisfy a particular substantive standard for admissibility. There is no explicit requirement, for example, that the defendant must
connect his or her intoxication to the murder, nor is it necessary to demonstrate an
e€ect of the intoxication on the defendant's volition, cognitive capacity, or moral
judgment. Indeed, evidence of voluntary intoxication may, under some circumstances, be admitted in capital sentencing hearings without any additional
explanation (unless it is entirely irrelevant), leaving it to the fact-®nder to derive
some sympathetic lesson from the testimony.
As a practical matter, however, it is preferable to speci®cally link the intoxication
to the murder in question. Capital sentencing statutes often list speci®c mitigating
factors that are potentially relevant to substance abuse. For example, the list of
mitigating factors may contain an ``insanity-like'' or ``provocation-like'' provision,
in which mitigation is recommended if the defendant acted under extreme mental
or emotional disturbance; was signi®cantly impaired in his or her ability to
appreciate the wrongfulness of the conduct or to con®rm the conduct to the
requirements of the law; or acted under the heat of passion or extreme duress (e.g.,
42 Pa. Stat. Ann. } 9711[e][2]-[5]). These sentencing standards are similar to, but
less rigorous than, their substantive counterparts (e.g., the insanity standard
proper). By connecting the defendant's intoxication and criminal conduct to these
enumerated standards, the fact-®nder is more apt to be convinced not to impose a
capital sentence.
For non-capital o€enses, when voluntary intoxication is speci®cally mentioned
in a sentencing guideline, it is almost always to exclude or limit its consideration. In
many instances, however, this issue is addressed in case law rather than statute.
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D. B. Marlowe et al.
Courts are often called upon to interpret the admissibility of intoxication evidence
in relation to sentencing provisions containing insanity-like, catch-all, or other
language (see, e.g., Commonwealth v. Doyle, 1979; State v. Marquez, 1980).
We were unable to uncover published precedent on this point in the majority
(n ˆ 30, 57%) of jurisdictions. Presumably, trial courts make these determinations
on a fairly routine basis; however, in many jurisdictions, the issue has apparently
not been explicitly addressed or resolved on appeal. Currently, nine jurisdictions
(17%) explicitly bar the use of evidence of voluntary intoxication in sentencing
mitigation (see the Appendix). Courts in a few jurisdictions (n ˆ 8, 15%) admit
such evidence pursuant to a catch-all sentencing provision which, for example,
permits evidence of ``any other factors'' that may be relevant to mitigation of
punishment (e.g., Ill. Ann. Stat. ch. 730 } 515-5-3.1). Under such a catch-all
provision, a defendant may not be explicitly required to connect the intoxication to
the crime, to meet a threshold standard, or to establish a particular level of
incapacitation from drugs or alcohol. As a practical matter, however, making this
connection is more convincing to the fact-®nder. Further, as the link between
substance use and the crime becomes more attenuated, the defendant risks having
the evidence excluded as being irrelevant or misleading.
Five jurisdictions (9%) admit evidence of voluntary intoxication pursuant to a
speci®c substantive standard in the sentencing statute or in case law that includes
insanity-like or capacity-like language. The wording and stringency of such
provisions vary considerably by jurisdiction. For instance, for purposes of
sentencing, Arizona requires a defendant to demonstrate that intoxication
signi®cantly reduced his or her capacity to appreciate the wrongfulness of the
conduct or to conform it to the requirements of the law (Ariz. Rev. Stat. } 13-702).
In contrast, California and North Carolina require a showing that the defendant
su€ered from a mental condition that would reduce his or her culpability (Cal.
Rules of Court, Rule 423; N.C. Gen. Stat. } 15a-1340.16).
It should also be noted that some jurisdictions regard post-o€ense or postconviction rehabilitation e€orts as relevant to sentencing. North Carolina is a rare
example of a state that expressly includes a defendant's involvement in substance
abuse treatment as a statutory mitigating factor (N.C. Gen. Stat. } 15a1340.16[E]). Other state statutes simply list a defendant's ``rehabilitative needs''
as a relevant consideration for sentencing, without speci®cally mentioning
substance abuse or the likelihood of success in rehabilitation. Some courts have
also speci®cally viewed successful substance abuse rehabilitation as favoring a
lighter sentence (see, e.g., People v. Chen, 1991; People v. Smith, 1995), while
others have, conversely, been negatively predisposed toward failed e€orts at
rehabilitation (see, e.g., State v. Wielkiewicz, 1993).4
4
Although this paper focuses on state and territorial law, federal sentencing guidelines may also be
instructive on this point. In federal court, voluntary intoxication ordinarily cannot serve as a basis for a
``downward departure'' from the U.S. Sentencing Guidelines (} 5K2.13). There is some indication in case
law, however, that post-o€ense rehabilitation might serve as a basis for a downward departure, but only
where the extent of the rehabilitation is ``exceptional'' or ``extraordinary,'' and the defendant
``demonstrates a degree of acceptance of responsibility that is substantially in excess of that ordinarily
present'' (U.S. v. Sally, 1997, p. 80; see also States v. Harrington, 1992).
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205
EVALUATING A VOLUNTARY INTOXICATION ISSUE
The previous discussions focused on the substantive criteria governing the
admissibility of intoxication evidence. These standards, however, merely determine the threshold conditions under which such evidence may be received at trial.
Judges and juries play the decisive role in determining whether the evidence will be
admitted and credited in a particular case.
The proponent of intoxication evidence must establish an initial foundation
(``burden of production'') for the evidence and must further demonstrate that the
pro€ered testimony is relevant and non-misleading. Following the presentation of
the evidence in court, the judge may still determine that there was an insucient
showing of intoxication to support a jury instruction on the issue. Although, as a
practical matter, the jury will have already heard the evidence, the jury will not be
reminded, and may not be permitted, to consider the implications of the evidence
during deliberations, nor will it be asked to make a speci®c ®nding about the
defendant's degree of intoxication.
The burden of proof varies according to the jurisdiction and legal theory. For
instance, depending on the state, an insanity defense may need to be proven by a
preponderance of the evidence, while sentencing hearings might only require the
defendant to produce evidence ``sucient to support a ®nding'' of a mitigating
factor. Regardless, it is essential to establish a convincing foundation for the
evidence, because there is little likelihood that a trial court's evidentiary
determination will be disturbed on review. State appellate courts will generally
overturn a refusal to hear intoxication evidence only on a very limited standard of
review, such as ``abuse of discretion'' (see, e.g., Commonwealth v. Gribble, 1997;
State v. Austin, 1993; State v. Jones, 1997; State v. Lewisohn, 1977; State v. Lowe,
1993; State v. Mitts, 1998) ``plain error,'' or ``clearly erroneous'' (see, e.g., State v.
Barnes, 1996; State v. Johnson, 1995). Courts are similarly disinclined to disturb jury
verdicts. The majority of states will not disturb a jury ®nding unless, viewing the
evidence in the light most favorable to the non-moving party, a reasonable jury could
not have reached that determination beyond a reasonable doubt (see, e.g., State v.
Cole, 1996; State v. Jones, 1997; State v. Walker, 1995). Therefore, as a practical
matter, there is little recourse against ``jury nulli®cation'' of intoxication evidence.
Courts are notoriously disinclined to accept a defendant's bald assertion that he
or she was seriously intoxicated at the time of the o€ense, and they are particularly
hesitant to accept the self-serving assertion that, due to the intoxication, the
defendant was unable to appreciate the wrongfulness of the conduct or to conform
it to the requirements of the law. Rather, courts look to more ``objective'' factors to
determine whether the defendant is entitled to a jury instruction.
Characteristics of the O€ense
Courts are particularly apt to focus on the circumstances of the o€ense itself. The
most commonly mentioned factors in court decisions include whether the
defendant had an apparent motive for the o€ense; whether the o€ense required a
coordinated sequence of conduct over time; whether adverse witnesses, if any,
perceived the defendant as being intoxicated; and whether the defendant engaged
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in subsequent e€orts to conceal the o€ense (see, e.g., Boettcher, 1987; LaFave &
Scott, 1986). For example, the Supreme Court of Ohio held that a defendant was
not entitled to a jury instruction on intoxication where witnesses reported that the
defendant ``held [his] gun perfectly steady,'' ``was not staggering,'' and ``had no
trouble ejecting the clip from his weapon, reloading, and ®ring several times''
(State v. Mitts, 1998, p. 528). Similarly, the Pennsylvania Supreme Court rejected
a defendant's request for an intoxication instruction where the defendant ``was
suciently in control of his faculties to remove [the victim's] valuables, dismember
his body, bag the remains, and clean the crime scene'' (Commonwealth v. Gribble,
1997, p. 433). In contrast, the Supreme Court of Kentucky held that a defendant
was entitled to an intoxication instruction where all of the witnesses described him
as drunk, where he had no memory for the crime, and where his BAC was 0.11%
®ve hours after the crime (Jewell v. Commonwealth, 1977).
A motive for the crime may be inferred if the criminal behavior was contemplated
prior to the intoxication, particularly if the defendant obtained commercial gain or
revenge against an adversary. For example, inner-city youths may ingest drugs or
alcohol immediately prior to confronting rivals or committing a burglary. In such
cases, substance abuse may be part of a pre-o€ense ``ritual'' designed to reduce
anxiety or to gather courage. If the o€ense (robbery or assault) was contemplated
prior to imbibing the drugs, and if the youths obtained commercial gain or revenge,
it would be likely to be an up-hill climb to establish an intoxication defense.
If, on the other hand, one of the youths unexpectedly ran into a rival after a
party, and assaulted him during a spontaneous exchange, a defense based upon
voluntary intoxication would stand a better chance. The motive of revenge might
still be present, but there would be no indication that the assault was contemplated
prior to the intoxication. In this situation, intoxication might be viewed as a
``match'' that spontaneously ignited an already explosive situation. Although
the youth might still have intended to commit the assault, in a speci®c
intent jurisdiction, this could serve to negate an element of deliberation or
premeditation.
Courts are particularly interested in whether the crime was spontaneous as
opposed to planned, whether it was carried out over a long or short period of time,
and whether it involved an ordered sequence of steps. For example, if a defendant
stole a car, drove it across town to pick up an accomplice, and then used the car
during a robbery, this would indicate planning and sequencing over an extended
time. If, however, the defendant picked up a brick from the road, threw it through
a store window, and grabbed an odd assortment of items, this would indicate
minimal planning and a rapid progression of events. If both defendants had BACs
of 0.10, the scenarios might suggest that the ®rst defendant had developed a
relatively greater tolerance to alcohol.
Courts and juries are also heavily in¯uenced by the reports of witnesses with
adverse interests to the defendant. For instance, if the victim or an innocent
bystander testi®es that the defendant appeared inebriated, smelled of alcohol, or
behaved strangely, this will likely carry much weight. Similarly, if uninvolved
neighbors report that they observed the defendant smoking ``crack'' all afternoon,
this testimony is likely to be credited. In contrast, however, statements of drugusing accomplices (who may, in fact, be in the best position to know what
intoxicants were ingested) are least likely to be credited by the fact-®nder. Further,
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207
as a practical matter, fellow substance abusers are unlikely to be persuaded to
testify, because such testimony may expose them to legal liability.
A defendant might spontaneously commit a crime while intoxicated, and then
subsequently sober up and engage in coordinated e€orts to escape or to conceal the
o€ense. Presumably, the longer the period of time between the o€ense and the
subsequent e€orts at obfuscation, the more likely it is that the defendant's mental
status may have changed. Although courts are in¯uenced by this logic, there is
often a bias against defendants who attempt to cover up their tracks. If, for
example, a defendant asserts that he was so intoxicated as to be unable to appreciate
the wrongfulness of the conduct, this leaves the defendant open to the challenge
that he evidently understood its criminality or else he would not have attempted to
conceal it. Similarly, if a defendant argues that intoxication prevented him from
conforming his conduct to the requirements of the law, he is open to the retort that
he was evidently capable of conforming his conduct to the ``law'' of selfpreservation. Although covering one's tracks is not necessarily inconsistent with
having sobered up after the event, the apparent e€ort to ``have one's cake and eat it
too'' generally does not sit well with fact-®nders.
Characteristics of the Substance
Studies have shown a signi®cant correlation between abuse of various psychoactive
substances and crime or violence. This correlation does not, however, necessarily
imply causation. It is quite possible that the relationship between substance abuse
and crime is moderated by another, independent variable such as socioeconomic
status or antisociality. Certain classes of substances, however, are known to have
disinhibiting and agitating e€ects on the central nervous system (CNS), and have
been shown to induce aggression in controlled settings. Alcohol, in particular, has
been demonstrated to trigger aggressive responses in the laboratory and, indeed,
alcohol is the drug most closely linked to violent crime (see, e.g., De La Rosa,
Lambert, & Gropper, 1990; Fagan, 1990, 1993; Whit®eld, 1990).
Other substances that initially have activating and disinhibiting e€ects on the
CNS (e.g., stimulants, PCP, cocaine) often cause agitation and aggression as
well, and these drugs are most apt to trigger spontaneous criminal behavior when,
in high doses, they precipitate delusions or paranoid ideation. Notably, however,
although initial reports linked PCP to delirium, extreme psychosis, and
unprovoked bouts of violence, current data suggest a more ``sobering'' analysis
of its e€ects (see, e.g., Brecher, Wang, Wong, & Morgan, 1988; Davis, 1982;
Khajawall, Erickson, & Simpson, 1982; Kinlock, 1991). Extreme reactions to acute
PCP ingestion do occur, but they are apparently rare (Fauman & Fauman, 1979,
1982). Due to the relatively low purity and poor quality of street-level PCP, and the
fact that many PCP abusers titrate their doses over months or years (leading to
substantial tolerance), acute psychotic reactions are much rarer today than they
apparently were when pharmaceutical-grade PCP ®rst hit the streets in the 1970s.
Substances that have strong sedating and inhibiting qualities are less likely to
produce violent reactions. For instance, when controlling for subjects' prior
criminal history, no link has been shown between violent behavior and marijuana
or heroin usage (see, e.g., Goldstein, 1985; Inciardi & Chambers, 1972). Sedatives
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such as barbiturates or benzodiazepines may produce acute dysphoria, agitation,
and paranoia in high doses, particularly when taken over an extended binge (in
which the subject is sleep- or food-deprived). Ordinarily, however, these drugs
cause fatigue, lethargy, euphoria, and psychomotor slowing, which tend to be
incompatible with violence or coordinated criminal activity.
Importantly, even severe clinical e€ects from substance use would not
necessarily interfere with a subject's capacity to form intent. Acute intoxication
generally has its most profound e€ects on impulse control, executive functions
( planning and sequencing), and motor coordination. In many cases, therefore, it
may precipitate spontaneous behavior that is intended, but not deliberated. For
example, an intoxicated person may be predisposed to lash out aggressively against
an actual or perceived insult. Typically, this reaction will be intended, but will be
sudden and ill conceived. Therefore, in many instances, intoxication evidence may
be useful to negate speci®c intent, but will not make a particularly compelling case
for negating general intent.
In the absence of a severe psychotic reaction, dissociation, or delirium, it is hard
to imagine a scenario in which an intoxicated defendant could not appreciate the
wrongfulness or criminality of his or her conduct. If, for example, the defendant
was acting under a paranoid psychotic delusion, then an imperfect self-defense
claim or an insanity defense (if the delusion is ``®xed'') might be promising.
Similarly, psychosis or dissociation might be useful for mitigating sentencing in
those jurisdictions that admit such evidence pursuant to either an insanity-like or
catch-all sentencing provision. In the absence of psychosis or dissociation,
however, a ®nding of mitigation would be less promising in jurisdictions that
require a showing that the defendant lacked the capacity to distinguish right from
wrong.
A ®nal issue related to the psychopharmacological e€ects of drugs concerns
``black-outs.'' Many criminal defendants purport not to recall the circumstances of
the o€ense, blandly attributing this to substance-induced amnesia. It is, indeed,
possible for an individual to engage in coordinated, goal-directed activity, and to
appear normal to bystanders, but still have no memory for the events. However,
barring any unusual susceptibility to the drug, black-outs have only been
de®nitively connected to relatively high blood-alcohol levels (see, e.g., Goodwin,
1995; Ryan & Butters, 1983), intravenous administration of benzodiazepines
(Kumar, Mac, Gabrielli, & Goodwin, 1987), or a combination of sedatives and
alcohol (Morris & Estes, 1987). A particular benzodiazepine, Triazolam (Halcion),
has also been reported to cause black-outs at therapeutic dosages (Rothschild, 1992).
There are very few data to support the occurrence of true black-outs from opiates,
marijuana, cocaine, PCP, or stimulants. Although memory may be sketchy after
abusing these drugs, cued recall should assist the defendant to remember salient
events, particularly those that were paired with violence or autonomic arousal.
Characteristics of the Defendant
Criminal responsibility assessments involving voluntary intoxication generally
raise the same types of concern as other forensic evaluations; e.g., the relation
of psychological constructs to substantive legal criteria (see, e.g., Marlowe, 1995);
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209
use of instruments and procedures that satisfy evidentiary standards (see, e.g.,
Heilbrun, 1992); assessment of malingering, response set, and psychopathy; and
assessment of prognosis and amenability to treatment.
As in other forensic contexts, traditional clinical constructs often have limited
relevance to legal standards for intoxication evidence. With the exception of cases
involving the insanity defense, or those involving sentencing mitigation predicated
upon rehabilitation, in most instances, the defendant does not have to satisfy
diagnostic criteria for a substance use disorder. A single incidence of intoxication is
generally all that must be alleged. Of course, a complicated history of substance
abuse might persuade the fact-®nder that the defendant has a propensity for severe
intoxication, and thus was more likely to have been inebriated at the time of the
o€ense. Paradoxically, however, this might suggest a greater tolerance for the
substance on the part of the defendant, and thus a greater ability to engage in
deliberate behavior despite a relatively high serum blood level of the drug.
Few, if any, personality or clinical factors have been empirically demonstrated to
predict or relate to substance-induced crime. Senay and Wettstein (1983) reported
anecdotally on 24 homicide cases in which voluntary intoxication appeared to
mediate the criminal conduct. In those cases, the subjects took unusually high
doses of the drug, had no previous arrest history, showed no evidence of
premeditation, had no apparent motivation for the crime, and reported no plan to
avoid capture. Thus, ``naõÈ ve'' subjects, those with limited substance use histories
and lacking a recidivist criminal orientation, appeared to be the best candidates for
an intoxication defense.
Broad-ban clinical assessments of substance abusing defendants are likely to
uncover additional diagnostic issues that might help or hinder an intoxication
defense. For instance, major depression, anxiety disorders, and antisocial
personality disorder (APD) are highly prevalent comorbid syndromes among
substance abusers in treatment settings (see, e.g., Khanzian & Treece, 1985;
Marlowe, Husband, Bonieskie, Kirby, & Platt, 1997; Marlowe, Husband, Lamb,
Kirby, Iguchi, & Platt, 1995; Mirin, Weiss, & Michael, 1988; Ross, Glaser, &
Germanson, 1988; Rounsaville, Weissman, & Kleber, 1982). These syndromes
have substantial prognostic utility for predicting treatment response and the
likelihood of future criminal recidivism. Major depression, for example, has been
associated with a more favorable substance abuse treatment outcome (see, e.g.,
Rounsaville, Dolinsky, Babor, & Meyer, 1987; Woody, McLellan, Luborsky, &
O'Brien, 1985), whereas APD is associated with a more complicated substance use
history and poorer treatment response (Longabaugh, Rubin, Malloy, Beattie,
Cli€ord, & Noel, 1994; Marlowe, Kirby, Festinger, Husband and Platt, 1997;
Woody et al., 1985). The detection of these comorbid syndromes might, therefore,
weigh heavily in the prediction of a defendant's likely response to rehabilitation
and, thus, may have particular relevance for sentencing and related dispositions.
Perhaps the most telling characteristic of a defendant is his or her speci®c
reaction(s) to the crime in question. Meloy's (1988) distinction between ``a€ective''
and ``predatory'' criminal behavior may be instructive in this regard. ``A€ective''
violence is characterized by intense autonomic arousal, subjective experience of
fear, di€use sensory awareness, and spontaneous e€orts to avoid or reduce a
perceived threat. Perhaps most discriminating, persons who engage in a€ective
violence commonly ®nd the acting out to be ``ego-dystonic'' or threatening to their
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D. B. Marlowe et al.
self-esteem. ``Predatory'' violence, on the other hand, is characterized by minimal
arousal, heightened sensory awareness, and enhanced self-esteem. Thus, apparent
feelings of pride or satisfaction about the act, or the absence of a ``catastrophic''
reaction (e.g., shame, anxiety) to a violent outburst, may be indicators of
premeditated conduct.
As noted, however, there are presently insucient data available to construct a
reliable behavioral pro®le of individuals who commit criminal acts due, solely or
predominantly, to acute intoxication. Courts and experts may be advised, therefore, to focus on the circumstances of the o€ense itself, as well as on the psychopharmacological e€ects of the substance(s) in question, when evaluating a
voluntary intoxication defense.
CONCLUSION
In Montana v. Egelho€ (1996), the United States Supreme Court held that a
criminal defendant does not have a fundamental right to introduce evidence of
voluntary intoxication in his or her defense. Although this decision undoubtedly
signals an increasing judicial antagonism toward intoxication claims, evidence of
voluntary intoxication continues to be received in the majority of jurisdictions,
particularly on issues related to mens rea and sentencing mitigation. In addition,
although it is beyond the scope of this paper, a substantial number of jurisdictions
are developing ``drug courts'' and other alternative correctional programs to divert
non-violent, non-recidivist substance abusing o€enders from the jurisdiction of the
criminal court (see, e.g., Marlowe & Kirby, 1999; National Association of Drug
Court Professionals, 1997).
Unfortunately, despite the potential utility of intoxication evidence, relatively
few forensic evaluators possess the knowledge, experience, or inclination to develop
this evidence in their criminal responsibility evaluations (cf. Watterson, 1991). In
practice, many forensic examiners include only a few substance abuse questions in
their screening inventory, and they may fail to follow up on negative responses to
these questions despite the fact that many substance abusers blandly deny usage at
the ®rst inquiry. Further, many evaluators render overly broad or potentially
misleading diagnoses such as ``poly-substance dependence,'' ``poly-substance
abuse,'' or ``mixed substance abuse.'' The ®rst term is meant to capture
compulsive, but indiscriminate, use of at least three classes of psychoactive
substances (excluding nicotine), while the latter two terms have no ocial
diagnostic status (American Psychiatric Association, 1994). Yet, evaluators often
employ these terms to convey vague information, such as the fact that the subject
has used di€erent drugs at di€erent times.
Substance abuse is the most common behavioral syndrome in forensic and
correctional settings. Indeed, the shared variance between substance abuse and
crime is so high that, from a purely statistical standpoint, there may even be little
justi®cation for treating them as wholly distinct phenomena. Forensic experts must
therefore be more sensitized to substance abuse issues. At a minimum, it should be
clear that one cannot perform a competent clinical forensic examination without
closely attending to these matters.
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211
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Voluntary intoxication
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Copyright # 1999 John Wiley & Sons, Ltd.
Behav. Sci. Law 17: 195±217 (1999)
214
As a mens rea defense
As a basis for insanity
In non-capital
sentencing
Alabama
To negate general intent
No
Yes1
Ala. Code } 13A-3-2 (1996); Smith v. State, 646 So.2d 704 (Ala. 1994);
Kuenzel v. State, 577 So.2d 474 (Ala. Crim. App. 1990), a€'d sub nom
Ex parte Kuenzel, 577 So.2d 531 (Ala. 1991); Ala. Rules Crim. Proc.
Rule 26.6 (1998).
Alaska
To negate general intent
No
No
Alaska Stat. }} 11.81.630, 12.22.155(g) (1997); Evans v. State, 645
P.2d 155 (Alaska 1982); Wright v. State, 656 P.2d 1226 (Alaska Ct.
App. 1983).
Arizona
No
No
Yes2
Ariz. Rev. Stat. }} 13-502, 13-503, 13-702 (1997); State v. Jones, 937
P.2d 310 (Ariz. 1997); State v. Marquez, 617 P.2d 787 (Ariz. Ct. App.
1980).
Jurisdiction
Citations
Behav. Sci. Law 17: 195±217 (1999)
Arkansas
No
No
No
Ark. Code. Ann. } 5-2-207 (Repl. 1993).
California
To negate speci®c intent
Chronic abuse; settled insanity
Yes2
Cal, Penal Code } 22 (West 1997); People v. Skinner, 228 Cal.Rptr.
652 (Cal. Ct. App. 1986); People v. Visciotti, 825 P.2d 388 (Cal. 1992);
Cal. Rules of Court Rule 423 (1998).
Colorado
To negate speci®c intent
No
*
Colo. Rev. Stat. Ann. } 18-1-804 (West 1997).
Connecticut
To negate general intent
No
*
Conn. Gen. Stat. Ann. }} 53a-7, 53a-13 (West 1996).
No
No
*
Del. Code Ann. tit. 11 }} 421, 422 (1997); Flamer v. State, 490 A.2d
104 (Del. 1984).
District of Columbia
To negate speci®c intent
Chronic abuse; settled insanity
*
Washington v. U.S., 689 A.2d 568 (D.C. 1997); Salzman v. U.S., 405
F.2d 358 (D.C. Cir. 1968); Jones v. U.S., 327 F.2d 867 (D.C. Cir.
1963).
Florida
To negate general intent
Chronic abuse; settled insanity
No
Florida Standard Jury Instructions in Criminal Cases } 3.04(g) (1998);
Fla. Stat. Ann. }} 921.141, 921.0026 (West 1997); Brunner v. State,
683 So.2d 1129 (Fla. 1996); Parker v. State, 643 So.2d 1032 (Fla.
1994).
Georgia
No
No
*
Ga. code Ann. } 16-3-4 (1997); Wells v. Georgia, 279 SE.2d 213
(Ga. 1981); Romine v. State, 350 S.E.2d 446 (Ga. 1986).
Hawaii
No
No
*
Haw. Rev. Stat. } 702-230 (1997); State v. Souza, 813 P.2d 1384
(Haw. 1991).
Delaware
D. B. Marlowe et al.
Copyright # 1999 John Wiley & Sons, Ltd.
APPENDIX
Copyright # 1999 John Wiley & Sons, Ltd.
Idaho
No
Chronic abuse; settled insanity
Yes1
Idaho Code } 18-116 (1997); State v. Clokey, 364 P.2d 159 (Idaho
1961); State v. Osborn, 631 P.2d 187 (Idaho 1981); State v.
Wielkiewicz, 848 P.2d 451 (Idaho Ct. App. 1993).
Illinois
To negate speci®c intent
Chronic abuse; settled insanity
Yes1
Ill. Ann. Stat. Ch. 720 } 5/6-3, Ch. 730 }5/5-5-3.1 (Smith-Hurd 1997);
People v. Wheeler, 550 N.E.2d 1170 (Ill. 1990); People v. Hat®eld, 630
N.E.2d 463 (Ill. App. Ct. 1994).
Indiana
No
No
May consider1
Ind. Code Ann. } 35-41-3-5 (Burns 1997); Rowe v. State, 539 N.E.2d
474 (Ind. 1989); Wagner v. State, 474 N.E.2d 476 (Ind. 1985);
Logsdon v. State, 413 N.E.2d 249 (Ind. 1980).
Iowa
To negate speci®c intent
Chronic abuse; settled insanity
*
Iowa Code Ann. } 701.5 (West 1996); State v. Collins, 305 N.W.2d 434
(Iowa 1981).
Kansas
To negate general intent
No
*
Kan. Stat. Ann. } 21-3208 (1996); State v. Osbey, 517 P.2d 141 (Kan.
1988); State v. Phillips, 850 P.2d 877 (Kan. 1993); State v. Harmon,
865 P.2d 1011 (Kan. 1993).
Kentucky
To negate general intent
Chronic abuse; settled insanity
Con¯icting
authority2
Ky. Rev. Stat. Ann. } 501.080 (Baldwin 1997); Jones v.
Commonwealth, 893 S.W.2d 368 (Ky. 1995); Moore v.
Commonwealth, 771 S.W.2d 34 (Ky. 1988) (no mitigation);
Pennington v. Commonwealth, 479 S.W.2d 618 (Ky. Ct. App. 1972)
(no mitigation); Johnson v. Commonwealth, 446 S.W.2d 561 (Ky. Ct.
App. 1969) (yes mitigation); Teer v. Commonwealth, 212 S.W.2d 106
(Ky. Ct. App. 1948) (yes mitigation).
Louisiana
To negate speci®c intent
No
Yes1
La. Rev. Stat. Ann. } 15 (West 1997); State v. Foster, 647 So.2d 1224
(La. 1994); State v. Planco, 692 So.2d 666 (La. App. 1997); La. Code
Crim. Proc. Ann. art. 894.1 (West 1998).
To negate general intent
No
*
Me. Rev. Stat. Ann. tit. 17-A }} 37, 39 (1997)
To negate speci®c intent
Chronic abuse; settled insanity
*
Hook v. State, 553 S.2d 233 (Md. 1989); Parker v. State, 254 A.2d 381
(Md. 1969); Booth v. State, 608 A.2d 162 (Md. 1992).
Massachusetts
To negate speci®c intent
Chronic abuse; settled insanity
Yes2
Michigan
To negate speci®c intent
Chronic abuse; settled insanity
*
Minnesota
To negate general intent
No
No
Commonwealth v. Henson, 476 N.E.2d 947 (Mass. 1985);
Commonwealth v. Herd, 604 N.E.2d 1294 (Mass. 1992);
Commonwealth v. Doyle, 385 N.E.2d 499 (Mass. 1979)
People v. Watts, 348 N.W.2d 39 (Mich. Ct. App. 1984); Mich. Comp.
Laws Ann. } 768.21a (1997); People v. Caulley, 494 N.W.2d 853
(Mich. 1992).
Minn. Stat. Ann. } 609.075 (West 1997); State v. Bouwman, 354
N.E.2d 291 (Minn. 1984); Minnesota Sentencing Guidelines
} II.D.2.A(3); State v. Cizl, 304 N.W.2d 632 (Minn. 1981).
215
(Appendix continues on next page)
Voluntary intoxication
Behav. Sci. Law 17: 195±217 (1999)
Maine
Maryland
216
Behav. Sci. Law 17: 195±217 (1999)
Jurisdiction
As a mens rea defense
As a basis for insanity
In non-capital
sentencing
Mississippi
No
No
*
McDaniel v. State, 356 So.2d 1151 (Miss. 1978); Smith v. State, 445
So.2d 227 (Miss. 1984).
Missouri
No
*
{
Mo. Ann. Stat. } 562.076 (Vernon 1997); State v. Gary, 913 S.W.2d 822
(Mo. 1995); State v. Nave, 694 S.W.2d 729 (Mo. 1985).
Montana
No
*
No
Mont. code Ann. }} 45-2-203, 46-18-222 (1996); State v. Smith, 863
P.2d 1000 (Mont. 1993).
Nebraska
To negate general intent
*
No
State v. Saltzman, 458 N.W.2d 239 (Neb. 1990); State v. Ellen, 500
N.W.2d 818 (Neb. 1993).
Nevada
To negate speci®c intent
*
*
Nev. Rev. Stat. } 193.220 (1995); Chambers v. State, 944 P.2d 805
(Nev. 1997).
New Hampshire
To negate general intent
Chronic abuse; settled insanity
*
N.H. Rev. Stat. Ann. } 626:4 (1996); State v. Plummer, 374 A.2d 431
(N.H. 1977).
New Jersey
To negate general intent
No
Yes1
N.J. Stat. Ann. }} 2C:2-8, 2C:11-3(c)(5)(d), 2C44-1(b)(4) (West 1997);
State v. Reyes, 658 A.2d 1218 (N.J. 1995).
New Mexico
To negate general intent
No
*
State v. Brown, 931 P.2d 69 (N.M. 1996); State v. Campos, 921 P.2d
1266 (N.M. 1996).
New York
To negate general intent
Chronic abuse; settled insanity
No
N.Y. Penal Law } 15.25 (McKinney 1997); State v. Borrero, 227
N.E.2d 18 (N.Y. 1967); People v. Honsinger, 558 N.Y.S.2d 225 (NY
App. Div. 1990).
North Carolina
To negate speci®c intent
Chronic abuse; settled insanity
Yes2
State v. Baldwin, 412 S.E.2d 31 (N.C. 1992); State v. Strickland, 361
S.E.2d 882 (N.C. 1987); State v. Myers, 472 S.E.2d 598 (N.C.App.
1996); State v. Johnson, 346 S.E.2d 596 (N.C. 1986); N.C. GEN.
STAT. } 15a-1340.16 (1997).
Citations
North Dakota
To negate general intent
No
*
N.D. Cent. Code } 12.1-04-02 (1997).
Ohio
To negate speci®c intent
Chronic abuse; settled insanity
*
State v. Otte, 660 N.E.2d 711 (Ohio 1996), cert. denied, 117 S.Ct 109
(1996); State v. Solomon, 570 N.E.2d 1118 (Ohio 1991); State v.
Haight, 649 N.E.2d 294 (Ohio Ct. App. 1994); State v. Sowell, 530
N.E.2d 1294 (Ohio 1988).
Oklahoma
To negate general intent
Chronic abuse; settled insanity
Yes1
Okla. Stat. Ann. tit. 21 } 153, tit. 22 } 973 (1997); Crawford v. State,
840 P.2d 627 (Okla. Crim. App. 1992); White v. State, 498 P.2d 421
(Okla. Crim. App. 1972).
Oregon
To negate general intent
Chronic abuse; settled insanity
*
Or. Rev. Stat. } 161.125 (1996); State v. Herrera, 594 P.2d 823
(Or. 1979).
D. B. Marlowe et al.
Copyright # 1999 John Wiley & Sons, Ltd.
APPENDIX CONTINUED
Copyright # 1999 John Wiley & Sons, Ltd.
Pennsylvania
To reduce ®rst degree murder
to third degree murder
Rhode Island
No
Yes1
18 Pa. Cons. Stat. Ann. } 308 (1997); 42 Pa. Cons. Stat. Ann. } 9721;
Commonwealth v. Catapano, 500 A.2d 882 (Pa. Super. 1985);
Commonwealth v. Rumsey, 454 A.2d 1121 (Pa. 1983); Commonwealth
v. Scott, 578 A.2d 933 (Pa. Super. 1990); Commonwealth v. Torres,
579 A.2d 398 (Pa. Super. 1990).
To negate speci®c intent
*
*
State v. Sanden, 626 A.2d 194 (R.I. 1993).
South Carolina
No
No
*
State v. Vaughn, 232 S.E.2d 328 (S.C. 1977); State v. South, 427
S.E.2d 666 (S.C. 1993); State v. Pierce, 346 S.E.2d 707 (S.C. 1986).
South Dakota
To negate speci®c intent
No
*
S.D. Codi®ed Laws Ann. } 22-5-5 (1997); State v. Bush, 260 N.W.2d
226 (S.D. 1977).
Tennessee
To negate general intent
No
No
Texas
No
No
Yes, if it produces
``temp. insanity''2
Utah
To negate general intent
No
*
Tenn. Code Ann. }} 39-11-503, 39-13-204; 40-35-113 (1997).
Tex. Penal Code Ann. } 8.04 (1997); Coward v. State, 931 S.W.2d 386
(Tex. Ct. App. 1996).
Utah Code Ann. }} 76-2-305, 76-2-306, 76-3-207 (1997); State v.
Archuleta, 850 P.2d 1232 (Ariz. 1993).
Vermont
To negate general intent
*
*
State v. D'Amico, 385 A.2d 1082 (Vt. 1978).
Virginia
To reduce ®rst degree murder
to second degree murder
Chronic abuse; settled insanity
*
Essex v. Commonwealth, 322 S.E.2d 216 (Va. 1984); Chittum v.
Commonwealth, 174 S.E.2d 779 (Va. 1970); Downing v.
Commonwealth, 496 S.E.2d 164 (Va. 1998); LeVasseur v.
Commonwealth, 304 S.E.2d 644 (Va. 1983)
To negate general intent
No
No
To reduce ®rst degree murder
to second degree murder
*
*
State v. Hickman, 338 S.E.2d 188 (W.V. 1985).
To negate general intent
No
*
Wis. Stat. Ann. } 939.42 (West 1997); State v. Kolisnitschenko, 267
N.W.2d 321 (Wis. 1978).
Wyoming
To negate speci®c intent
No
*
Wyo. Stat. }} 6-1-202, 7-11-304 (1997)
Puerto Rico
To negate speci®c intent
*
*
P.R. Laws Ann. tit. 33 } 3155 (1990).
US Virgin Islands
To negate speci®c intent
*
*
V.I. Code Ann. tit. 14 } 16 (1997).
Washington
West Virginia
1
217
A court case(s) has interpreted a ``catch-all'' provision in the sentencing statute as permitting the introduction of evidence of voluntary intoxication.
A statute or case law permits consideration of this evidence for sentencing pursuant to an ``insanity-like'' or ``capacity-like'' standard.
* The authors were unable to ®nd dispositive authority on the issue in this jurisdiction.
{ Missouri precludes the introduction of evidence of voluntary intoxication to negate a required mental state; however, the statute further provides that such evidence
may be admissible when ``otherwise relevant'' to a defendant's conduct. This language has not been interpreted by a Missouri court, but presumably permits such
evidence for purposes of sentencing.
2
Voluntary intoxication
Behav. Sci. Law 17: 195±217 (1999)
Wisconsin
Wash. Rev. Code Ann. }} 9A.16.090, 9.94A.390 (West 1997); State v.
Wicks 657 P.2d 781 (Wash. 1983).