Common-Law Origins

Common-Law Origins

The modern rule that intoxication matters only when it negatives an element took shape in two stages, and the order matters because the second stage built on the first without erasing it. In the early stage the common law gave a drinker's impairment no weight in answering a charge, and the next section traces that harsh position. In the nineteenth century courts began to admit evidence of intoxication for a different purpose, as proof on the question whether the defendant actually formed the mental state a particular offense demands. Courts kept the rule that drunkenness excuses nothing. The change was in what the evidence was offered to prove: an excuse asks the law to forgive an act whose elements are all established, while evidence of a missing mental state attacks the prosecution's own proof of those elements. That distinction explains why the law could begin to listen to evidence of drinking without ever treating the drinking as a justification, and the second section below shows how courts drew the line.

Both stages come here from the Supreme Court's survey in Montana v. Egelhoff, which sets out the common-law baseline: voluntary intoxication was never a defense to a general-intent crime, and only in the late nineteenth century did courts begin to extend relief to some specific-intent crimes.¹ The case reached the Court because Montana had gone further than the common law. Its statute forbids the factfinder to consider voluntary intoxication in deciding whether a required mental state existed, and it was applied to a defendant charged with deliberate homicide whose blood-alcohol content measured .36 percent.² The majority held that the statute does not violate due process, while the dissenting Justices would have held that excluding the evidence denies the defendant a fair chance to challenge proof of mens rea.³ That constitutional dispute returns in the section on statutory bars on intoxication evidence. For now the opinion matters only as a record of how the common law moved from the early rule to the nineteenth-century shift.

The Early Rule

From the middle of the sixteenth century until the nineteenth, the common law gave a drunken offender no relief, and the authorities of the period sometimes spoke as though drunkenness made matters worse. Hale wrote that the intoxicated defendant "shall have no privilege by this voluntarily contracted madness, but shall have the same judgment as if he were in his right senses," and Blackstone, following Coke, treated intoxication "as an aggravation of the offence, rather than an excuse for any criminal misbehaviour."⁴ An American federal court said much the same in 1820 in United States v. Cornell, calling drunkenness "a gross vice" that, far from excusing murder, is "rather an aggravation of its malignity."⁵ Courts did not adopt the suggestion that drunkenness should raise the punishment, but they applied the firm principle that intoxication, to whatever degree, was no defense in a criminal case.⁶

The sharpest statement of the rule comes from an argument made in Reniger v. Fogossa in 1550, which both Hale and Blackstone cited as the model of the common-law position. Serjeant Pollard told the King's Bench that a drunk who kills commits a felony and will be hanged for it, even though the killing was done through ignorance, because the drunk had no understanding or memory at the time. The reason he gave was that "inasmuch as that Ignorance was occasioned by his own Act and Folly, and he might have avoided it, he shall not be privileged thereby."⁷ That is the rule at full strength. The defendant's incapacity is conceded, and it still buys him nothing.

Two reasons stand behind that stance, and they work differently. The first is a principle of fault: the incapacity traced back to a choice the offender made and could have avoided, so the law refused to let him rely on a condition he created himself. That reasoning carries an incentive point as well. If self-induced incapacity relieved liability, anyone who drank before doing harm would obtain protection that the sober offender never receives, and drinking would become a way of buying immunity. The second reason is practical and concerns consequences. In State v. Cross a Missouri court reasoned in 1858 that if a man's loss of his deliberating faculties were to relieve him of responsibility or diminish it, "the great majority of crimes committed will go unpunished."⁸ Offenses committed under the influence of drink were evidently common enough that a rule of relief would have swallowed much of the criminal law, which is what that court feared.

A further explanation concerns how little the early law had to say about mental states. The plurality in Montana v. Egelhoff read the old authorities as barring a defendant from arguing that intoxication prevented the mens rea, the mental state the offense requires, because Hale, Coke, and Blackstone knew well that drink deprives men of the use of reason and still held the drunkard to the judgment of a sober person.⁹ The dissent gave a gentler account of the same record: early criminal law was indifferent to the problem because its theory of liability was too crude and undeveloped to admit exceptions, and a loosening of the rule was to be expected once that theory became more refined.¹⁰ The two accounts disagree about what the old judges understood, yet both agree on the result: before the nineteenth century, intoxication was not weighed even on the question of what the defendant had in mind. The reason is structural. A law that asks chiefly whether the defendant did the deed has no separate place for the argument that the defendant could not have meant it, so a drunken defendant's claim of incapacity could be heard only as a plea for forgiveness, and forgiveness is exactly what the fault principle denied.

The blanket rule began to bend in 1819. In King v. Grindley, a murder trial in which the question was premeditation as against sudden heat and impulse, Justice Holroyd is reported to have held that voluntary drunkenness cannot excuse a crime but that the defendant's intoxication was a circumstance the jury could consider on that question.¹¹ The drunkenness there was offered as evidence of the defendant's state of mind, where in Reniger it had been offered as a reason to spare the defendant, and that difference in purpose is what the next section develops. The change came slowly. By 1835 Justice Park claimed that Holroyd had retracted the opinion and that the case was not law, and the Missouri court in 1858 was still speaking categorically.¹²

The early position is not the modern rule, and the sections that follow show how courts left it behind. Its fault reasoning survives, though, in the way the Model Penal Code treats self-induced impairment: intoxication has no standing as a free-standing defense and matters only if it negatives an element of the offense.¹³ On an exam, the early rule is not the modern rule, so a stem that describes voluntary drunkenness as an aggravation or as wholly irrelevant to mental state is describing the sixteenth-to-eighteenth-century position and should be answered as history.

The Nineteenth-Century Shift

The early rule could not survive contact with offenses defined by a mental state, and the courts that noticed the collision resolved it without abandoning the rule itself. In Montana v. Egelhoff the dissent read the history this way: the common law had barred a defendant from using intoxication as an excuse or justification and, it must be assumed, from using it to rebut a required mental state as well.¹⁵ Nineteenth-century courts came to see that a mental-state requirement is fundamentally incompatible with refusing to consider evidence that might defeat that mental state.¹⁶ The reason is structural. A required mental state is an element, the State must prove every element beyond a reasonable doubt, and a defendant forbidden to show that the mental state was missing has lost the most direct way of testing the State's proof. A homicide statute demanding deliberation would shrink to a statute punishing killing if the jury could never hear that the defendant was too drunk to deliberate. So the old prohibition had to bend wherever the offense turned on what the defendant had in mind.

The accommodation kept the old maxim and changed what the evidence was offered to prove. In Pigman v. State, an Ohio court in 1846 began from the proposition that "Drunkenness is no excuse for crime," yet held that where an offense depends on guilty knowledge or on the coolness and deliberation of its commission, the intoxication should go to the jury, because "it is proper to show any state or condition of the person that is adverse to the proper exercise of the mind."¹⁷ A New York court said in People v. Robinson in 1855 that where the nature and essence of a crime depend on the state of the defendant's mind at the time of the act, drunkenness may be considered by the jury "not to excuse or mitigate the offence but to show that it was not committed."¹⁸ Ohio's Cline v. State repeated the idea in 1885, observing that when a mental state is of the essence of the offense, "in proving intoxication you go far to prove that no offense was committed."¹⁹

Two different questions can be asked about a drunken defendant's evidence, and the whole shift turns on telling them apart. An excuse concedes that the State has proved every element and asks the law to forgive the result. Evidence on an element concedes nothing; it asks the jury to find that the State's own proof has a gap because the required mental state never formed. That is why the maxim survived intact: the law still refuses to forgive anyone for choosing to drink, and the jury is simply allowed to ask whether the offense was committed at all.²⁰ The principle, which this chapter calls intoxication evidence on an element, shows up clearly in a burglary illustration. Burglary at common law requires breaking and entering a dwelling at night with intent to commit a felony inside, so a defendant found in a drunken stupor just inside a house, with nothing taken, who is shown to have been too befogged with drink to entertain any intent, cannot be convicted of burglary.²¹ The result rests on a missing element, and the wrongfulness of the entry does not supply the intent the offense requires. Students lose this issue when they treat the admissibility of the evidence as an excuse, so the point to hold is that intoxication comes in as proof, never as forgiveness.

The same logic marks the rule's limit. Someone who drinks to steel himself for a crime already decided upon formed the intent before the intoxication, so the evidence cannot show that the intent was missing when the act occurred.²² What counts is whether the evidence tends to make the required mental state less likely, and a defendant who admits the mental state leaves the evidence nothing to rebut.

The shift came slowly and over resistance. The Egelhoff plurality describes it as an exception that courts carved out of the common law's across-the-board condemnation of the drunken offender, one that let a jury consider intoxication in deciding whether the defendant had the mental state needed for a crime requiring a "specific intent," meaning a particular further purpose beyond the physical act, such as the intent to steal in burglary.²³ As the preceding section showed, that exception was slow to take root, since an English judge in 1835 said there was no doubt that Grindley was not law, and a Missouri court in 1858 still defended the old rule on the ground that relief for the drunk would leave most crimes unpunished.²⁴ By the end of the century, though, the new view had prevailed in most American jurisdictions, which allowed intoxication to be considered in deciding whether a defendant could form the specific intent.²⁵ The two opinions in Egelhoff describe this shift with different emphasis. The plurality presents an exception confined to specific-intent crimes, a limit consistent with the modern rule that voluntary intoxication is generally no defense to a general-intent crime.²⁶ The dissent presents a broader recognition that wherever a subjective mental state is an element, the defense must be allowed to show its absence.²⁷

The incompatibility that moved nineteenth-century courts later moved the Montana Supreme Court to hold its own statute barring intoxication evidence unconstitutional on a charge requiring purpose or knowledge, because removing that evidence leaves the defendant unable to rebut the mental-state element and spares the State from proving it against negating evidence.²⁸ The U.S. Supreme Court ruled that the statute does not offend the Constitution, and that dispute belongs to the later section on statutory bars.²⁹ Washington v. Glucksberg appears only in that section and plays no part in the history traced here.

What the nineteenth-century courts left behind is the idea that § 2.08(1) later codifies. The Model Penal Code provides that intoxication of the actor is not a defense unless it negatives an element of the offense, which restates the nineteenth-century formulation as a statute.³⁰ Where the cases tied the relief to specific-intent crimes, the Code drops the specific-intent and general-intent labels and asks, element by element, whether the intoxication negatives the mental state that the offense requires.³¹