Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 152 Issue: 48

March 10, 2006 

Statutory Construction Should Be As Easy As 1, 2, 3

When Felix Frankfurter was a professor at Harvard Law School, he told students there were three keys to interpreting a law: ''(1) read the statute; (2) read the statute; (3) read the statute!'' Henry J. Friendly, ''Mr. Justice Frankfurter and the Reading of Statutes,''in Benchmarks, 196, 202 (1967).

You know what I like about the new Illinois Supreme Court decision that construes the involuntary intoxication defense? The court (1) read the statute; (2) read the statute; (3) read the statute!

To understand why this is so remarkable, you have to take a look at People v. Hari, 2006 Ill. LEXIS 9, (Jan. 20).

David Hari admitted to shooting his wife and her lover, wounding the former and killing the latter. He was thus charged with first-degree murder and attempted first-degree murder. In his defense, he introduced evidence that he had been taking the antidepressant Zoloft in combination with an over-the-counter antihistamine called diphenhydramine. A doctor testified that Hari was given no information that the combination of these two drugs could result in an inability both to appreciate the criminality of his acts and to conform his conduct to the requirements of the law.

Based on this evidence, Hari asked the trial court to instruct the jury on the defense of involuntary intoxication. The Illinois Criminal Code provides that: ''A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.'' 720 ILCS 5/6-3.

The trial judge refused to give the instruction. He cited several cases in which Illinois courts stated that involuntary intoxication was an issue only if the drugs had been ingested through ''trick, artifice or force.'' Under this rule, merely being unaware of the effects of drugs taken knowingly would not support the instruction.

Without the involuntary intoxication instruction, the jury found Hari guilty on both counts.

The Supreme Court reversed. First, the court noted that the phrase ''trick, artifice or force'' is simply not in the statute. Then the court held that the trial judge's decision ignored the ordinary and popularly understood meaning of the phrase ''involuntarily produced.'' The court held simply that, ''An unexpected and unwarned adverse effect of a drug taken on doctor's orders falls within the ordinary and popularly understood definition of 'involuntarily.' '' Slip op. at 8.

So where did the Illinois appellate opinions come up with the ''trick, artifice or force'' language that is nowhere to be found in the statute? Essentially, this language came from recent cases that cited old cases that in turn relied on the 19th-century intoxication statute that had been superseded by the Criminal Code of 1961. The superseded statute limited the defense of intoxication to those cases in which the intoxication was ''occasioned by the fraud, contrivance or force of some other person.'' Ill.Rev.Stat. 1874, ch. 38, par. 291.

Hari referred to five cases — an Illinois Supreme Court case and four Appellate Court cases — that all referred to the ''trick, artifice or force'' gloss and proceeded to overrule them all. As Hari succinctly concluded, ''It is never proper for a court to depart from plain language by reading into the statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent.'' (Citation omitted.) Slip op. at 9.

Hari is a model of judicial common sense. But I am going to suggest another area of the Criminal Code in desperate need of the same kind of common sense.

Start with this question: What kinds of provocation will support reducing first-degree murder to second-degree murder? The Illinois Supreme Court is very clear on this point. It holds that adequate provocation exists only in very specific categories: ''substantial physical injury or substantial physical assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse.'' People v. Garcia, 165 Ill.2d 409, 429 (1995).

And where are these categories found in the Criminal Code?

Nowhere.

Just as the ''trick, artifice or force'' language was created by sloppy appellate decisions, so too these four categories of provocation are old common-law concepts that are nowhere to be found in the Illinois Criminal Code.

How did this happen? The second-degree murder story is remarkably similar to the involuntary intoxication story.

First, look at the second-degree murder statute. It states that a murder may be considered merely second-degree if the person is acting under ''sudden and intense passion resulting from serious provocation.'' 720 ILCS 5/9-2(a)(1). What is ''serious provocation''? The statute explicitly states, ''Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.'' 720 ILCS 9-2(b). This language is simply a carry-over from the former definition of ''voluntary manslaughter.''

So where did all this talk of mutual combat, adultery and illegal arrest come from?

It came from the committee comments to the voluntary manslaughter statute in the Criminal Code of 1961. The comments mentioned that common law recognized only limited categories of ''serious provocation'': mutual combat, adultery and so forth. The committee comments were arguably descriptive, explaining how ''serious provocation'' had been interpreted at common law. Yet Illinois cases began referring to these old common-law categories as if they were actually part of the statute. See, e.g., People v. Chevalier, 131 Ill.2d 66, 71 (1989) (holding that verbal admissions of adultery were not the same as actually seeing adultery, without acknowledging that the word ''adultery'' is not even in the second-degree murder statute).

So where did common law come up with these rigid categories for ''serious provocation''? One commentator, Professor Richard Singer, has concluded that the creation of these discrete categories was based on legal error. Singer, ''The Resurgence of Mens Rea: I — Provocation, Emotional Disturbance and the Model Penal Code,'' 27 Boston College L.Rev. 243 (1986).

Singer contends that the original role of ''serious provocation'' centuries ago in England was to provide an individualized, fact-intensive inquiry to determine whether the defendant's subjective state of mind merited conviction on voluntary manslaughter rather than murder.

Yet something odd happened. Treatises began collecting cases showing what constituted serious provocation. But instead of treating the cases as merely examples of serious provocation, the treatises began suggesting that these cases actually limited what could be considered serious provocation. In sum, the treatises began to transform ''serious provocation'' from a subjective, fact-intensive inquiry into crabbed, objective rules. Gradually, courts began to treat these treatise-created constructs as if they were The Law.

Let me repeat: mutual combat, adultery, illegal arrest — none of these terms is found in the second-degree murder statute. Like the language criticized in Hari, these are merely judicial constructs that blatantly ignore the plain language of the second-degree murder statute. These treatise-created categories are nothing more than common-law barnacles that need to be removed from the hull of the Illinois Criminal Code.

The Illinois Supreme Court in Hari did us a real service simply by reading the involuntary intoxication statute and conceding that the phrase ''trick, artifice or force'' is not there. The court's next job should be to examine the second-degree murder statute and similarly conclude that categories such as mutual combat, adultery and illegal arrest are equally illusory.

But the court can do this only if defense attorneys start pushing the envelope and asking for second-degree murder instructions in cases where there is serious provocation that is not covered by the common-law categories. Hari now gives defense attorneys an example of how Illinois courts should ''read the statute; read the statute; read the statute!''