Wisconsin law once permitted criminal defendants to introduce evidence of their voluntarily produced intoxication to show that they did not possess the requisite mental state to commit a particular crime.1 That mechanism was aptly named the voluntary intoxication defense (VID).2 In 2014, lawmakers repealed it in the wake of an alcohol-related tragedy.3 In 2012, Alisha Bromfield and her unborn daughter, Ava, were murdered when Bromfield’s ex-boyfriend strangled Bromfield and raped her corpse in a fit of intoxicated rage.4 His blood-alcohol content was approximately four times the legal limit.5
At trial, the accused raised the VID and argued that he was too inebriated to have intended to commit his crimes.6 His argument was rejected, and a jury eventually found him guilty of first-degree intentional homicide and third-degree sexual assault – crimes for which he is now serving a life sentence in prison.7 Despite the guilty verdict, the public’s outrage over the VID remained raw; many people were incensed that Wisconsin offered an intoxication-based defense to criminal defendants.8
Repealing the VID raises questions about due process rights and defendants’ access to a fair trial. This article posits that lawmakers should restore the VID because it struck a workable balance between criminal due process rights and the public’s interest in holding defendants responsible for their actions.
The Voluntary Intoxication Defense
Laws reflect the populations they serve. Wisconsin has an above-average rate of alcohol consumption,9 so it should come as no surprise that state law accounts for criminal acts committed under the influence of alcohol.10 The VID was a limited, specific response to this need. Before it was repealed in 2014, the VID and its counterpart – the involuntary intoxication defense (IID) – provided as follows:
Storm Larson, U.W. 2018, is a first-year associate at Bell, Moore & Richter, Madison. He primarily practices in general liability defense, labor and employment law, and insurance law.
“An intoxicated or a drugged condition of the actor is a defense only if such condition:
(1) Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed; or
(2) Negatives the existence of a state of mind essential to the crime, except as provided in § 939.24(3).”11
Subsection one defined the IID, which exists today under slightly different wording.12 As its name suggests, the IID applies to crimes committed under the involuntary influence of intoxicants.13
Subsection two (which is no longer in effect) defined the VID. In practice, the VID allowed criminal defendants to introduce evidence of their voluntary intoxication as a way to show that they did not have the requisite state of mind to commit a crime.14 It stands to reason that if a crime requires a particular state of mind, then evidence of a person’s intoxication is relevant.
However, it was not a blanket excuse to criminal behavior. Merely raising the VID in response to such a charge containing a mental element did not ensure that a criminal defendant would escape liability.15 Whether the VID would even succeed depended heavily on which state of mind was at issue.
Wisconsin courts have spilled much ink discussing how the VID functions.16 As a general proposition, however, the VID never served as a complete defense against a crime such as intentional homicide.17 This is because intoxication almost never prevents a person from forming intent.18
But if an accused criminal merely needed to be aware of the risk that was being created, then the VID was a more effective tool. Inebriation squarely dilutes a person’s awareness and cognition. To summarize, although inebriation affects a person’s recognition that certain behavior creates a risk of harm, it does not generally affect a person’s ability to intend an action.
The VID and Intent
A clear understanding of why intoxication does not negate intent is important, and two descriptive hypotheticals provide clarification.
Scenario one: Two men, Brad and Derek, are drinking at a bar together. A third man, Garrett, arrives and begins teasing Derek about his “feminine” outfit. Derek and Brad ignore Garrett’s taunts at first, but Garrett becomes obnoxious. Derek, who has anger issues and a past history of bar fights, is not drunk and recognizes that fighting is unwise. Brad and Derek simply leave the bar, and nothing further happens.
Scenario two: Brad, Derek, and Garrett are in the same situation, but all three are heavily inebriated. Garrett does not know that Derek often is belligerent while intoxicated and has a hair trigger for conflict while under the influence. Garrett’s teasing pushes Derek over the edge and in response, Derek pulls a pocket knife from his jeans and plunges the knife repeatedly into Garrett’s neck. Garrett dies within minutes.
These hypotheticals distinguish between intent and decision-making. Intent means that the actor either “has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.”19 Under that definition, no one can seriously dispute that Derek intended to kill Garrett when he stabbed him repeatedly. Drunk or sober, that action serves one purpose: to kill. To be sure, Derek’s intoxication escalated Derek’s anger, but it did not prevent him from meaning to stab Garrett repeatedly and cause his death.
The VID and Awareness of Risk
Unlike intent, intoxication squarely affects a person’s awareness of risky circumstances and surroundings more generally. Thus, the VID is a better fit for crimes that merely require awareness of risk. Reckless homicide is one such crime.20
In Wisconsin, a verdict of first-degree reckless homicide requires determining that a person “recklessly cause[d] the death of another human being under circumstances which show utter disregard for human life.”21 In turn, recklessness means that “the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.”22
To illustrate why intoxication affects a person’s awareness of risk but not intent, we return to Brad, Derek, and Garrett.
Suppose that Brad and Derek have been drinking heavily together for several hours in a crowded bar. Derek has a loaded gun tucked into the waist of his jeans. Garrett walks into the bar and begins teasing Derek. In response, Derek pulls the loaded gun from his pocket and repeatedly pistol-whips Garrett in the face. He does so with such force and abandon that Derek accidentally fires the gun and Garrett dies from a gunshot wound.
Simply banning a category of evidence wholesale (rather than amending the statutes themselves) impermissibly restricts a defendant’s due process rights.
The state could charge Derek with first-degree reckless homicide because he did not intend to kill Garrett – he just meant to beat him up. Because criminal recklessness merely requires an actor to be aware of the risk being created, Derek could at least argue that his heavy intoxication prevented him from recognizing that pistol-whipping an individual with a loaded gun was such a dangerous activity and carried the potential to actually kill Garrett.
An important exception in Wisconsin law (which lawmakers repealed in 2014) prevented people like Derek from making this argument. That exception was directly included in the state’s definition of criminal recklessness. The relevant clause provided that:
“A voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness if, had the actor not been in that condition, he or she would have been aware of creating an unreasonable and substantial risk of death or great bodily harm to another human being.”23
Thus, the original VID never shielded people who behaved like Derek from liability for charges of reckless homicide as well as intentional homicide for the reasons discussed earlier. In sum, the VID was not a complete defense against intent-based crimes and was explicitly inapplicable to criminal recklessness. This would change after 2014.
Criminal Due Process Rights
The U.S. Constitution grants criminal defendants numerous protections against the government’s prosecutorial power. Two preeminent U.S. Supreme Court decisions underscore why categorical bans on particular types of evidence are problematic.
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In Chambers v. Mississippi, the Supreme Court concluded that states violate the due process rights of accused criminals when they craft complicated rules and procedures that restrict a defendant’s ability to produce evidence and respond to the charges.24
Likewise, in Crane v. Kentucky, the Court concluded that a defendant’s due process rights were violated when a circuit court prevented him from introducing evidence related to his confession, which was used to convict him.25 The Court wrote that this ruling “deprived petitioner of his fundamental constitutional right to a fair opportunity to present a defense.”26 These cases are familiar to all criminal defense lawyers because they buttress the rights of defendants against the power of the government’s prosecutorial authority.
With these cases as a backdrop, the Court turned its attention to Montana’s version of the VID. Twenty-two years ago, in Montana v. Egelhoff, the Court discussed the interaction of Montana’s version of the VID with criminal defendants’ due process rights.27 This case produced five opinions: a plurality, a concurrence, and three dissents. The justices were anything but in agreement and fundamentally disagreed about the scope of the problem at hand.
The underlying facts of Egelhoff are as follows: James Egelhoff, Roberta Pavlova, and John Christenson spent one day drinking together. That night, police officers found Christenson’s car in a ditch. Inside, they discovered Pavlova’s and Christenson’s bodies; they had been shot to death. Egelhoff also was in the car but he was alive. Gunshot residue was on his hands, and his gun was on the floor of the car. He was so intoxicated that even one hour later, his blood-alcohol content was 0.36 percent.
American courts have a long tradition of accepting evidence of voluntary intoxication as it is relevant to particular mental states.
Egelhoff was charged with deliberate homicide, one of the elements of which was purposely or knowingly causing a death. Egelhoff claimed that his extreme intoxication made him physically incapable of committing the crime and unable to remember what happened. The jury was instructed on the requirements for a defendant to act purposefully or knowingly but was also told that it could not consider Egelhoff’s intoxication in deciding whether he had the requisite mental state. The Montana criminal code provided that a defendant’s intoxicated condition could not be considered in determining whether the defendant had the mental state required for commission of the offense.
Egelhoff was convicted. On appeal, the Montana Supreme Court reversed the conviction, concluding the statute violated Egelhoff’s due process right to introduce “all” evidence relevant to his mens rea (state of mind).
The U.S Supreme Court reversed the Montana Supreme Court’s decision. Justice Antonin Scalia’s plurality opinion was joined by Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Anthony Kennedy. These four concluded that the Montana Legislature’s ban on introducing voluntary intoxication evidence comported with the Due Process Clause.28 They rejected the Montana Supreme Court’s conclusion that the Due Process Clause was violated by this ban. They likewise declined to extend the defendant-friendly reasoning in Chambers and Crane to the facts of this case.
Central to the plurality opinion’s analysis was the historical treatment of voluntary intoxication evidence.29 Justice Scalia surveyed legal history and noted that intoxication has routinely been rejected as a valid defense to crimes, but he ultimately conceded that American courts have a long tradition of accepting evidence of voluntary intoxication as it is relevant to particular mental states. However, the plurality concluded that this tradition was too new and not “deeply rooted” at the time of the Fourteenth Amendment’s ratification, so no actionable due process violation existed. Justice Ginsburg concurred with the plurality on separate grounds.30
Four Justices (O’Connor, Souter, Breyer, and Stevens) dissented. This opinion bemoaned the plurality’s treatment of Chambers, Crane, and their progeny. The dissenting justices believed that this ban was severe enough to violate Chambers and that the Montana Supreme Court’s decision should control because it was interpreting state law.31 While the dissenters acknowledged that defendants do not possess an absolute right to introduce all relevant evidence, they stated that categorically banning a type of highly relevant evidence has the effect of easing the prosecution’s burden and thus denies defendants the due process of law.32
Wisconsin’s 2014 Legislative Changes
As a result of the 2014 legislative changes, Wisconsin’s criminal defendants no longer can introduce evidence of their voluntary intoxication – even if it is relevant to a mental element of their crimes.33 For the reasons that the dissenting justices discussed in Egelhoff, this may constitute a due process violation.
However, a second, equally problematic issue arose from the 2014 amendments. When lawmakers abolished the VID, they also removed the clause from the criminal recklessness statute that explicitly prohibited individuals from raising the VID in response to such behavior. Thus, accused defendants now have a new opening to argue that voluntary intoxication evidence should be considered in connection with their charges. There is no longer any prophylactic measure preventing such evidence from being relevant to criminally reckless behavior.
Some may wonder why due process rights of accused criminals were not already being violated in connection with the exception clause. The reason is that the clause was incorporated directly within the statute that defined recklessness. This made the evidence wholly irrelevant to the crime itself; thus, defendants could not argue that they had a right to introduce it. State legislatures are empowered to define the scope and elements of given crimes.34
On the other hand, simply banning a category of evidence wholesale (rather than amending the statutes themselves) impermissibly restricts a defendant’s due process rights. Now, however, criminal defendants can borrow the logic that four dissenting justices adopted in Egelhoff and argue that their due process rights are being violated by the statute and the evidence should be considered under Chambers and Crane.
Although these changes were made more than four years ago, it is difficult to quantify how many criminal defendants have been denied the benefit of the due process rights that the VID afforded them. To be sure, this harm has been continuous and it might only be a matter of time before a criminal defendant argues this claim to escape liability for morally reprehensible conduct. The U.S. Supreme Court has suggested that such a defendant stands a chance of succeeding.
Americans should be concerned whenever their government restricts a defendant’s right to answer the prosecutor’s call. Recent studies show that problem drinking is becoming worse, not better.35 Thus, voluntary intoxication evidence is likely to become more relevant than ever. The VID was a proportional response to a difficult problem, and it should be reinstated sooner rather than later.
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In August 2015 during law school orientation, then State Bar of Wisconsin president Ralph Cagle offered suggestions on how to make our time in law school a success. I carry one piece of advice that Mr. Cagle offered us that day with me in my professional and personal lives. He told us that no matter what is happening in your life, no matter how busy you are with work, family, or school, you always have 15 minutes to give anyone. This is profound advice if you think about it.
Without realizing it, we become entrenched in the minutiae of everyday life and lose perspective on the relationships that really matter. We assume that our lives are so busy and important that we cannot possibly spare a few minutes to catch up with a friend, call a relative, or rearrange our schedule to give a client some extra time on the phone.
In practice, I recognize that we do not have 15 minutes at every point in the day. We are lawyers, after all; we live and die by deadlines. We run late for work, for court, for a discovery deadline. But despite our hectic lives, I am willing to bet that each of us can find a few minutes (if we really search for them) to offer to someone who needs our company.
Storm Larson, Bell, Moore & Richter, Madison.
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1 Geoff Ziezulewicz, Man sentenced to 2 life terms for killing pregnant woman, Chicago Tribune (July 28, 2014).
9 Wis. Dep’t of Health Servs., Wisconsin Epidemiological Profile on Alcohol and Other Drugs (2016).
10 Wis. Stat. § 939.42 (2015-16).
11 Wis. Stat. § 939.42 (2013-14) (amended 2014).
12 Wis. Stat. § 939.42 (2015-16).
13 State v. Gardner, 230 Wis. 2d 32, 39, 601 N.W.2d 670 (Ct. App. 1999).
14 See State v. Strege, 116 Wis. 2d 477, 485-86, 343 N.W.2d 100 (1984).
15 See id.
16 Id.; State v. Heisler, 116 Wis. 2d 657, 344 N.W.2d 190 (Ct. App. 1983); see also Gardner, 230 Wis. 2d 32.
17 Heisler, 116 Wis. 2d at 661.
18 Alan M. Goldstein & Irving B. Weiner, Handbook of Psychology, Forensic Psychology (2002).
19 Wis. Stat. § 939.23(3) (2015-16).
20 Wis. Stat. § 939.24(1) (2015-16).
21 Wis. Stat. § 940.02(1) (2015-16).
22 Wis. Stat. § 939.24(1) (2015-16).
23 Wis. Stat. § 939.24(3) (repealed 2014).
24 410 U.S. 284, 294 (1973).
25 Crane v. Kentucky, 476 U.S. 683 (1986).
26 Id. at 687.
27 518 U.S. 37 (1996).
28 Id. at 56.
29 Id. at 43-46.
30 Id. at 56.
31 Montana v. Egelhoff, 518 U.S. 37, 71-72 (O’Connor, J., dissenting).
32 Id. at 64.
33 Wis. Stat. § 939.42 (2015-16).
34 McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986).
35 Paula Span, Alcohol Abuse Is Rising Among Older Adults, N.Y. Times (Sept. 14, 2017).