Abstract

Criminal courts increasingly treat intoxication as an aggravating rather than a mitigating factor in sentencing. This shift, seen in Australian law and other jurisdictions, raises the prospect of unjust outcomes. We examine this trend through the lens of desert‐based justifications for punishment, setting aside questions of deterrence and public safety. We first argue that intoxication can impair key capacities required for responsibility, suggesting that it should sometimes mitigate blame. We then examine two counter‐arguments. The first takes responsibility to stem from the expression of character (attributability) while the second traces responsibility for intoxicated wrongdoing to an earlier decision to become intoxicated (the tracing principle). We argue that these arguments can only justify treating intoxication as non‐mitigating in specific cases. Drawing on this analysis, we identify conditions under which intoxication might legitimately aggravate culpability, but again find that these conditions are met in only a subset of cases. We conclude that sentencing guidelines which treat intoxication as generally aggravating are likely to increase sentences in many cases where punishment is otherwise appropriate or should even be reduced, leading to systematic injustice in sentencing decisions.