Addiction and criminal liability

Law and Philosophy

Volumn 18, Issue 6, 1999, Pages 655-684

  Husak, Douglas N ^a  

^a RUTGERS UNIVERSITY   (United States)

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EID: 0033267529     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505096     Document Type: Article

References (63)

1. I am unsure what kinds of things should be described as the subject matters of addictions. I doubt that material objects such as drugs can be such subject matters. After all, no substance can addict a person unless he consumes it. Thus, I suppose that only behaviors (such as consumption) are literally the subject matters of addictions. Despite this uncertainty, I will describe material objects such as drugs as possible subject matters of addictions.
2. Model Penal Code, Sec. 2.09(1).
3. The leading case is U.S. v. Moore, 486 F.2d 1139 (D.C. Cir. 1973).
4. Insofar as I use a name, I simply refer to this new defense as the addiction defense. Alternatives sometimes found in the literature - such as "psychological compulsion" or "pharmacological coercion" - are problematic. The former name fails to indicate that many psychological compulsions - those that do not involve the pain of withdrawal - do not give rise to the excuse I ultimately describe. The latter name fails to indicate that the nature and severity of withdrawal symptoms are not solely a matter of pharmacology.
5. I do not pretend that these comments provide an especially deep rationale for the excuse of duress. How does the supposition that a person of reasonable firmness would assist the villain rather than endure the pain of a broken leg support the conclusion that we should not blame this particular defendant for committing the offense? Presumably, a person should not be blamed if he succumbs to a threat which persons of reasonable firmness would not resist. More generally, a person does not merit the condemnation of the criminal law when his behavior, although wrongful, conforms to that of the person of reasonable firmness, and standards of reasonableness are sensitive to the behavior of other persons. For a more detailed discussion, see Douglas Husak, "The 'But-Everyone-Does-that!' Defense," Public Affairs Quarterly 10 (1996), p. 307.
6. Reservations about accepting the defense in this example might stem from features of duress that restrict its application in a few jurisdictions. Many states, for example, require a threat to be "imminent" before the excuse can arise. In my example, the defense may be precluded because the pains of withdrawal are not imminent. The requirement of imminence, however, seems dubious; it is not retained in the Model Penal Code formulation of duress.
7. Hence the alleged need for an excusing disability that is "gross and verifiable." See Paul Robinson, Criminal Law Defenses Vol. 2 (St. Paul: West Publishing Company, 1986), sec. 177(e)(7).
8. Commentators debate how this objective component should be formulated. A more fundamental issue, however, is why tests of duress should include an objective component at all. Why shouldn't the standard of duress be purely subjective? A given person, after all, may have a low threshold of pain. Why should he be required to resist a threat just because a person of reasonable firmness would do so? If the test of duress were purely subjective, the excuse would be available if the particular defendant, with his peculiar sensibilities, was unable to resist the threat. I do not pretend to address this issue, other than to point out that the criminal law has long recognized that persons vary greatly in their dispositions, circumstances, and in their ability to conform their conduct to law. Unless the burden of conformity reaches a critical threshold, these individual differences have long been thought to be immaterial.
9. I will return to the subjective component of the defense of duress in Part III, especially in my discussion of cocaine.
10. See Part III.
11. If I am mistaken, and some persons who resist snacks or sex experience severe pains, then the case for excusing their conduct seems comparable to that of the drug addict or the defendant who acts under duress.
12. For better or worse, the Model Penal Code formulation of duress does not give rise to an excuse in this circumstance; the defendant must act in order to avoid force against a person.
13. This generalization about the nonvoluntariness defense is subject to the culpability-in-causing exception I discuss in Part II.
14. For a useful introduction to differing views about the nature and value of autonomy, see Gerald Dworkin: "Autonomy," in Robert Goodin and Philip Pettit (eds.), A Companion to Contemporary Political Philosophy (Cambridge: Basil Blackwell, 1995).
15. Ideally, one would identify several plausible senses of autonomy, and then analyze whether and to what extent addiction undermined autonomy in each sense. In what follows, I am well aware that my treatment of autonomy is superficial and cursory.
16. The subsequent points about criminalization require not only that the state has an interest in preventing persons from becoming addicted, but that this interest is sufficiently strong to justify sentencing persons to jail. This determination depends, inter alia, on the importance of the value of autonomy - an issue on which I hope to avoid commitment.
17. This claim is extremely controversial. I will not challenge it here, except to remark that alternative measures to discourage the use of addictive drugs - measures that do not resort to criminal punishment - may well be more efficacious.
18. I believe that the state is selective in a variety of contexts involving illicit drug use. As James Bakalar and Lester Grinspoon point out: When we talk about the dangers to health caused by drugs, we tend to use the broadest possible definition of health to justify the strongest restrictions. When we establish legitimate purposes for using drugs, of which health is obviously one, we try to define health narrowly so that again we can justify severe restrictions. Health as positive liberty - total well being - is a legitimate reason for banning drugs but not for using them. Drug Control in a Free Society (Cambridge: Cambridge University Press, 1984), p. 129.
19. When I say that a legislator "cannot" make such judgments, I should not be understood to suggest that courts would find that legislatures lack the constitutional authority to make them. Under current law, state legislatures appear to have almost unlimited authority to create criminal offenses or to refuse to recognize criminal law defenses. See Louis Bilionis, "Process, the Constitution, and Substantive Criminal Law," Michigan Law Review 96 (1998).
20. I do not mean to suggest that other possible replies are unavailable. 21 For a sustained effort to respond to harm-to-other rationales for drug proscriptions, see Douglas Husak, Drugs and Rights (Cambridge: Cambridge University Press, 1992), chap. 3.
21. The best way to proceed, I think, is to describe a paradigm of perfectly autonomous choice. Various factors (e.g., coercion) undermine the extent to which this paradigm is exemplified in actual choices. Somewhere along this continuum, a particular choice deviates from this paradigm to such a degree to become nonautonomous. No one should have a clear sense of exactly where this point should be located, or whether it should be located in the same place for all purposes for which a model of autonomous choice may be needed. Here I follow Joel Feinberg's suggestions about voluntariness in his Harm to Self (New York: Oxford University Press, 1986), pp. 113-117.
22. Suppose that the act of addictive drug use exemplifies a sufficient degree of autonomy to defeat the excuse of drug addiction. The question remains open, however, whether addiction should mitigate the quantum of justified punishment. No theory of mitigation is widely accepted. If mitigating circumstances are construed as "almost defenses," however, the case for mitigation would seem strong. For further thoughts, see Douglas Husak, "Partial Defenses" Canadian Journal of Law & Jurisprudence 11 (1998), p. 167.
23. Anyone who endorses this reply should be pressed to identify the degree of autonomy that is exemplified in the choice of the defendant who acts under duress in my paradigm case. Assignments of degrees of autonomy must not undermine the basis for granting an excuse of duress.
24. I borrow this term from Paul Robinson: "Causing the Conditions of One's Own Defense: A Study in the Limits of Criminal Law Doctrine," 71 Virginia Law Review 1 (1985).
25. Model Penal Code, Sec. 2.09(2).
26. See my subsequent discussions about the probabilities that users of addictive drugs will actually become addicted.
27. This conception may or may not recognize as treatment the substitution of one addictive drug for another (e.g., methadone for heroin).
28. See, for example, "New Approaches in the Treatment of Substance Abuse," Journal of Drug Issues 27(1997), pp. 195-444.
29. This proposal encounters enormous practical problems. What modes of treatment would suffice to preclude liability? How recently must treatment have been sought? How sincere and conscientious must the addict have been in his attempt to quit? Of course, these same difficulties resurface in assessments of the claim that addicts are "really" to blame not for their actual drug use, but rather for their failure to seek treatment.
30. In re Winship, 397 U.S. 358 (1970) requires the state to bear the burden of proof with respect to all material elements of a criminal offense.
31. Perhaps, however, the act of coercing the defendant is not as wrongful when the defendant is coerced to perform an act that is not itself wrongful.
32. For a discussion of this judgment, see William Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989).
33. On the other hand, addictive drug use has a second important dissimilarity from the two-party case of duress. In the two-party case, the act-type that coerces (viz., the threat) is a different act-type from the act-type performed under duress (viz., the driving of the getaway car). My fanciful example preserves this feature; the act-type of taking philoin makes the distinct act-type of studying philosophy irresistible. In real cases of drug use, however, the very act-type that creates the addiction - drug use - is the act-type subsequently performed as a result of that addiction. In other words, the same act-type that undermines autonomy is the act-type performed nonautonomously. This fact seems significant to the justification of criminalization.
34. See Robert Goodin, No Smoking (Chicago: University of Chigao Press, 1989), p. 99.
35. See Charles Winick, "Nonharmful Drug Use," Milbank Quarterly 69 (1991).
36. The variables that affect the probability that a given person will become addicted to a given drug involve set and setting in the classic work of Norman Zinberg, Drug, Set and Setting (New Haven: Yale University Press, 1984).
37. These facts complicate the culpability-in-causing rationale for denying a defense of drug addiction. Although the initial act of drug use may be a culpable act that causes the subsequent lack of autonomy, it is not at all clear that it is a "reckless" act that makes the subsequent loss of autonomy "likely" - as is required to withhold the defense of duress.
38. Recall that Odysseus does lose his autonomy in Homer's version, but is unsuccessful in steering the ship toward the sirens because his sailors have been disabled from hearing his commands.
39. The punishment of persons who will not become addicts would be easier to justify if we suppose that such persons are unlike Greeks in that they cannot be identified. But this supposition is dubious. First, those persons who have used addictive drugs for many years without already becoming addicted must be members of this class. Recall that Odysseus has already proved his ability to resist the siren's song. Moreover, even first-time users can employ various strategies to greatly reduce their risk of addiction. Finally, familial and genetic studies are helpful in predicting susceptibility to addiction. See Norman Miller, Jane Guttman, and Sonya Chawla, "Integration of Generalized Vulnerability to Drug and Alcohol Addiction," Journal of Addictive Diseases 16(1997), p. 7.
40. See Douglas Husak, "Reasonable Risk Creation and Overinclusive Legislation," Buffalo Criminal Law Review 1 (1998), p. 599.
41. Perhaps the best framework is defended in Nils Jareborg and Andrew von Hirsch, "Gauging Criminal Harm: A Living-Standard Analysis," Oxford Journal of Legal Studies 11 (1991). I am unaware, however, how such an account could be applied to assess the seriousness of various drug offenses.
42. Presumably, there are no constitutional limits (short of the death penalty) on the severity of punishment for drug possession. See Harmelin v. Michigan, 111 S.Ct. 2680 (1991).
43. For further thoughts, see Douglas Husak, "Desert, Proportionality, and the Seriousness of Drug Offences," in Andrew Ashworth and Martin Wasik (eds.), Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), p. 187.
44. Again, the classic work - on which countless researchers have expanded - is Zinberg, supra note 37.
45. Although the facts to which I will appeal are familiar to researchers, I am quite aware that they are contrary to public opinion about drugs. These claims may represent what Herbert Fingarette called "an open secret" in the context of his insightful discussion of alcoholism. See his Heavy Drinking (Berkeley: University of California Press, 1988), p. 1.
46. See Lester Grinspoon and James Bakalar, Psychedelic Drugs Reconsidered (New York: Lindesmith Center, 1997). p. 176.
47. See Lynn Zimmer and John Morgan, Marijuana Myths, Marijuana Facts (New York: Lindesmith Center, 1997), p. 28, especially footnote 12.
48. Id., pp. 28-29, especially footnotes 13 and 21.
49. See Craig Reinarman and Harry Levine (eds.), Crack in America (Berkeley: University of California Press, 1997).
50. See F. Gawin and H. Klebner, "Abstinence Symptomatology and Psychiatric Diagnosis in Cocaine Abusers," Archives of General Psychiatry 43 (1986).
51. See Jerome Platt, Cocaine Addiction (Cambridge: Harvard University Press, 1997), Chapter Three.
52. See Ronald Akers: "Addiction: The Troublesome Concept," Journal of Drug Issues 21(1991), p. 777.
53. See O. Ray and C. Ksir, Drugs, Society, and Human Behavior (St. Louis: Times Mirror/Mosby, 1987).
54. See R. West and M. Gossop, "Overview: A Comparison of Withdrawal Symptoms from Different Drug Classes," Addiction 89 (1994), p. 1483.
55. R. Wise and M. Bozarth, "A Psychomotor Stimulant Theory of Addiction," Psychological Review 94 (1987), p. 469.
56. See Part I.
57. There is no reason to presuppose that only illicit drugs satisfy my criterion. The case for recognizing a defense for nicotine addicts - or for proscribing the use of tobacco to protect the autonomy of potential addicts - cannot be ruled out of hand.
58. S. Tiffany and B. Carter, "Is Craving the Source of Compulsive Drug Use?" Journal of Psychopharmacology 12 (1998), p. 23.
59. See the accounts in John Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), pp. 15-16.
60. See J. Hughes, S. Higgins, and W. Bickel, "Nicotine Withdrawal Versus Other Drug Withdrawal Symptoms: Similarities and Dissimilarities," Addiction 89(1994), p. 1461.
61. In one study, 74% of persons who sought treatment for drug dependence and who both smoked and used one or more illegal drugs reported that cigarettes would be at least as hard to give up as the substance for which they sought treatment. 57% said that cigarettes would be even harder to give up. See Lynn Kozlowski, et.al., "Comparing Tobacco Cigarette Dependence with Other Drug Dependencies," Journal of the American Medical Association 261 (1989), p. 898.
62. See Henner Hess, "The Other Prohibition: The Cigarette Crisis in Post-war Germany," Crime, Law & Social Change 25 (1996), p. 43.
63. I conclude only that the state interest in protecting the autonomy of potential addicts may provide a good reason to proscribe opiate use. Of course, this reason is not dispositive; many other conditions must also be satisfied. In addition, the enforcement of such proscriptions must do more good than harm. I am skeptical that the criminalization of any drug satisfies this latter condition. See Ethan Nadelmann: "Drug Prohibition in the United States: Costs, Consequences, and Alternatives," Science 245 (1989), p. 939.