Excusing addiction

Law and Philosophy

Volumn 18, Issue 6, 1999, Pages 589-619

  Watson, Gary ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0033275622     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505094     Document Type: Article

References (96)

1. In what follows, I will be exploring the possible rationale for an addiction-based defense, rather than mitigation. (But see the Conclusion.) This distinction is very important for many purposes, but much of what I say will be relevant to both issues. For the proposal that many addicts should be eligible for an "excuse of partial responsibility" (though on the basis of impaired rationality rather than control), see Stephen J. Morse, "Hooked on Hype", this issue. Morse argues against duress interpretations of impaired control excuses in "Culpability and Control", The University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1587-1660.
2. In what follows, I will be exploring the possible rationale for an addiction- based defense, rather than mitigation. (But see the Conclusion.) This distinction is very important for many purposes, but much of what I say will be relevant to both issues. For the proposal that many addicts should be eligible for an "excuse of partial responsibility" (though on the basis of impaired rationality rather than control), see Stephen J. Morse, "Hooked on Hype", this issue. Morse argues against duress interpretations of impaired control excuses in "Culpability and Control", The University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1587-1660.
3. The issue of responsibility for addiction arises in civil law too. For example, it is central to recent litigation involving the tobacco industry.
4. See Sanford Kadish "Excusing Crime", in Kadish's Blame and Punishment (New York: MacMillan Publishing Co., 1987), p. 105.
5. Again, if being intoxicated were to result in a tendency to criminal violence, say, then the addictive need that leads to the intoxication would not motivate the crime.
6. Quoted in Grinspoon and Bakular, Cocaine: A Drug and its Social Evolution (New York: Basic Books, 1976), p. 177.
7. See John Kuehule and Robert Spitzer, "DSM III Classification of Substance Use Disorders", in J.H. Lowinson and P. Ruiz (eds.), Substance Abuse: A Comprehensive Textbook (Baltimore: Williams and Wilkins, 2nd edn., 1997), pp. 22-23.
8. "The Measurement of Craving in Cocaine Patients Using the Minnesota Cocaine Craving Scale", Comprehensive Psychiatry, 32(1), pp. 22-27. In "Acute and Chronic Pain" (in J. H. Lowinson, P. Ruiz, R. B. Millman, and J. G. Langrod (eds.), Substance Abuse: A Comprehensive Textbook (Baltimore: Williams and Wilkins, 3rd edn., 1996), pp. 563-589), Russell K. Portenoy and Richard Payne insist upon a distinction between physical dependence and addiction, defining addiction as a condition in which one is unable to abstain: "Use of the term 'addiction' to describe patients who are merely physically dependent reinforces the stigma associated with opioid therapy and should be abandoned. If the clinician wishes to describe a patient who is believed to have the capacity for abstinence, the term physical dependence must be used" (564).
9. "The Measurement of Craving in Cocaine Patients Using the Minnesota Cocaine Craving Scale", Comprehensive Psychiatry, 32(1), pp. 22-27. In "Acute and Chronic Pain" (in J. H. Lowinson, P. Ruiz, R. B. Millman, and J. G. Langrod (eds.), Substance Abuse: A Comprehensive Textbook (Baltimore: Williams and Wilkins, 3rd edn., 1996), pp. 563-589), Russell K. Portenoy and Richard Payne insist upon a distinction between physical dependence and addiction, defining addiction as a condition in which one is unable to abstain: "Use of the term 'addiction' to describe patients who are merely physically dependent reinforces the stigma associated with opioid therapy and should be abandoned. If the clinician wishes to describe a patient who is believed to have the capacity for abstinence, the term physical dependence must be used" (564).
10. The skeptics include Herbert Fingarette, Heavy Drinking: the Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988); Grinspoon and Bakular, supra note 5, and Stanton Peele, The Meaning of Addiction (Lexington Mass.: Lexington Books, 1985), and The Diseasing of America (Lexington Mass.: Lexington Books, 1989). For judicial expressions of skepticism that addictions involve volitional impairments of the legally relevant kind, see Justice Leventhal's concurring opinion in U.S. v. Moore: "Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. . . . the difficulty is sharpened by the appreciable number of narcotic "addicts" who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable . . ." Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and its Processes (Boston: Little, Brown, 5th edn., 1989), pp. 1071 and 1074. (All references to this edition are hereafter cited as "Kadish and Schulhofer".)
11. The skeptics include Herbert Fingarette, Heavy Drinking: the Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988); Grinspoon and Bakular, supra note 5, and Stanton Peele, The Meaning of Addiction (Lexington Mass.: Lexington Books, 1985), and The Diseasing of America (Lexington Mass.: Lexington Books, 1989). For judicial expressions of skepticism that addictions involve volitional impairments of the legally relevant kind, see Justice Leventhal's concurring opinion in U.S. v. Moore: "Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. . . . the difficulty is sharpened by the appreciable number of narcotic "addicts" who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable . . ." Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and its Processes (Boston: Little, Brown, 5th edn., 1989), pp. 1071 and 1074. (All references to this edition are hereafter cited as "Kadish and Schulhofer".)
12. The skeptics include Herbert Fingarette, Heavy Drinking: the Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988); Grinspoon and Bakular, supra note 5, and Stanton Peele, The Meaning of Addiction (Lexington Mass.: Lexington Books, 1985), and The Diseasing of America (Lexington Mass.: Lexington Books, 1989). For judicial expressions of skepticism that addictions involve volitional impairments of the legally relevant kind, see Justice Leventhal's concurring opinion in U.S. v. Moore: "Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. . . . the difficulty is sharpened by the appreciable number of narcotic "addicts" who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable . . ." Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and its Processes (Boston: Little, Brown, 5th edn., 1989), pp. 1071 and 1074. (All references to this edition are hereafter cited as "Kadish and Schulhofer".)
13. The skeptics include Herbert Fingarette, Heavy Drinking: the Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988); Grinspoon and Bakular, supra note 5, and Stanton Peele, The Meaning of Addiction (Lexington Mass.: Lexington Books, 1985), and The Diseasing of America (Lexington Mass.: Lexington Books, 1989). For judicial expressions of skepticism that addictions involve volitional impairments of the legally relevant kind, see Justice Leventhal's concurring opinion in U.S. v. Moore: "Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. . . . the difficulty is sharpened by the appreciable number of narcotic "addicts" who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable . . ." Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and its Processes (Boston: Little, Brown, 5th edn., 1989), pp. 1071 and 1074. (All references to this edition are hereafter cited as "Kadish and Schulhofer".)
14. The skeptics include Herbert Fingarette, Heavy Drinking: the Myth of Alcoholism as a Disease (Berkeley: University of California Press, 1988); Grinspoon and Bakular, supra note 5, and Stanton Peele, The Meaning of Addiction (Lexington Mass.: Lexington Books, 1985), and The Diseasing of America (Lexington Mass.: Lexington Books, 1989). For judicial expressions of skepticism that addictions involve volitional impairments of the legally relevant kind, see Justice Leventhal's concurring opinion in U.S. v. Moore: "Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. . . . the difficulty is sharpened by the appreciable number of narcotic "addicts" who do abandon their habits permanently, and much larger number who reflect their capacity to refrain by ceasing use for varying periods of time. The reasons are not clear but the phenomenon is indisputable . . ." Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and its Processes (Boston: Little, Brown, 5th edn., 1989), pp. 1071 and 1074. (All references to this edition are hereafter cited as "Kadish and Schulhofer".)
15. Loewenstein, George, "A Visceral Theory of Addiction", forthcoming, in Jon Elster and O.J. Skog (eds.), Getting Hooked: Rationality and Addiction (Cambridge and New York: Cambridge University Press, 1999). See also Loewenstein's "Out of Control: Visceral Influences on Behaviour", Organizational Behavior and Human Decision Processes, 65(3) (1996), pp. 272-292. For a judicious overview of this issue, see Jon Elster, "Rationality and Addiction": ". . . most addictive behavior can be traced back to irrationality in the choice, the belief formation, or the information acquisition of the agent", typescript, p. 1.
16. Loewenstein, George, "A Visceral Theory of Addiction", forthcoming, in Jon Elster and O.J. Skog (eds.), Getting Hooked: Rationality and Addiction (Cambridge and New York: Cambridge University Press, 1999). See also Loewenstein's "Out of Control: Visceral Influences on Behaviour", Organizational Behavior and Human Decision Processes, 65(3) (1996), pp. 272-292. For a judicious overview of this issue, see Jon Elster, "Rationality and Addiction": ". . . most addictive behavior can be traced back to irrationality in the choice, the belief formation, or the information acquisition of the agent", typescript, p. 1.
17. Loewenstein, George, "A Visceral Theory of Addiction", forthcoming, in Jon Elster and O.J. Skog (eds.), Getting Hooked: Rationality and Addiction (Cambridge and New York: Cambridge University Press, 1999). See also Loewenstein's "Out of Control: Visceral Influences on Behaviour", Organizational Behavior and Human Decision Processes, 65(3) (1996), pp. 272-292. For a judicious overview of this issue, see Jon Elster, "Rationality and Addiction": ". . . most addictive behavior can be traced back to irrationality in the choice, the belief formation, or the information acquisition of the agent", typescript, p. 1.
18. "Out of Control", p. 40.
19. I do not here attribute to Loewenstein any particular view about the implications of his work for legal responsibility. I am using his theories, which I find plausible, to fix ideas for the purposes of my argument. See note 21 below.
20. Kadish and Schulhofer, p. 1066.
21. For a challenge to the conception of alcoholism employed in this reasoning, see Herbert Fingarette, "The Perils of Powell: In Search of a Factual Foundation for the 'Disease Concept of Alcoholism'", Harvard Law Review 83 (1970).
22. It should be noted that White himself had dissented from the majority in Robinson.
23. Kadish and Schulhofer, p. 1068.
24. Kadish and Schulhofer, p. 1056.
25. "Actus Reus", Sanford Kadish (ed.), Encyclopedia of Criminal Justice (New York: Free Press, 1983). Quoted in Kadish and Schulhofer, p. 1077.
26. Kadish and Schulhofer, p. 1071.
27. Kadish and Schulhofer, p. 1074.
28. Kadish and Schulhofer, 1073.
29. "A Visceral Account of Addiction", p. 3. Again, I should say that Loewenstein himself does not address the legal implications of his position. In "Out of Control", he acknowledges the issue about policy. "Although we hold people accountable for their behavior as a matter of policy", he thinks that "sexually motivated behaviour often seems to fall into 'the gray region' between pure volition and pure compulsion" (p. 286).
30. "A Visceral Account of Addiction", p. 3. Again, I should say that Loewenstein himself does not address the legal implications of his position. In "Out of Control", he acknowledges the issue about policy. "Although we hold people accountable for their behavior as a matter of policy", he thinks that "sexually motivated behaviour often seems to fall into 'the gray region' between pure volition and pure compulsion" (p. 286).
31. Quoted in Nigel Walker, Crime and Insanity in England (Edinburgh: Edinburgh University Press, 1968), p. 156 (my emphasis).
32. Walker, Crime and Insanity in England, p. 150.
33. See Crime and Insanity in England, p. 155. According to Ariel Goodman ("Sexual Addiction", in Substance Abuse, pp. 340-354), "Sexual addiction is defined as a condition . . . characterized by two key features: (a) recurrent failure to control sexual behavior and (b) continuation of the behavior despite significant harmful consequences" (342). As it turns out, the majority of sexual addicts are men, who experience the "onset" of the affliction "prior to age 18"; the condition "typically peaks between the ages of 20 and 30, and then gradually declines" (Goodman, 342). In other words, sexual addiction is the condition of prolonged male adolescence that is so familiar from frat house to White House, a condition known to our moral traditions, as philandering, intemperance, promiscuity, or debauchery, as the case may be.
34. See Crime and Insanity in England, p. 155. According to Ariel Goodman ("Sexual Addiction", in Substance Abuse, pp. 340-354), "Sexual addiction is defined as a condition . . . characterized by two key features: (a) recurrent failure to control sexual behavior and (b) continuation of the behavior despite significant harmful consequences" (342). As it turns out, the majority of sexual addicts are men, who experience the "onset" of the affliction "prior to age 18"; the condition "typically peaks between the ages of 20 and 30, and then gradually declines" (Goodman, 342). In other words, sexual addiction is the condition of prolonged male adolescence that is so familiar from frat house to White House, a condition known to our moral traditions, as philandering, intemperance, promiscuity, or debauchery, as the case may be.
35. Fitzpatrik v. Commonwealth of Kentucky (1883).
36. "A Visceral Account . . .", p. 3.
37. The so-called "rotten social background" defense suggests one attempt to define a class of exceptions to the standing obligation to conform to the law. For a sympathetic consideration of this issue, see Richard Delgado: "'Rotten Social Background': Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?", in Law and Equality 9, 1985.
38. Quoted in Kadish and Schulhofer, p. 1057, note 9.
39. See Kenneth Blum et al., "Reward Deficiency Syndrome", American Scientist 84 (1996), pp. 132-145. For a popular report, see J. Madeleine Nash, "Addicts", Time 149(18) (1997), pp. 69-77.
40. See Kenneth Blum et al., "Reward Deficiency Syndrome", American Scientist 84 (1996), pp. 132-145. For a popular report, see J. Madeleine Nash, "Addicts", Time 149(18) (1997), pp. 69-77.
41. Criminal Law Defenses, Vol. 2 (St. Paul: West Publishing Co., 1984), pp. 444-445.
42. According to Nash, "Americans tend to think of drug addiction as a failure of character. But this stereotype is beginning to give way to the recognition that drug dependence has a clear biological basis" ("Addicts", p. 70). The fact that addiction has a biological basis is neither surprising nor clearly relevant to our question. What should strike us here is the crudity of the contrasts, as though having a "biological basis" precludes failure of character; as though we must think that the natural appetites cannot have a "biological basis", if we think they can be implicated in vice.
43. In "Disordered Appetites" (to appear in a volume edited by Jon Elster for Russell Sage Publications), I argue that there is nothing about the ways in which addictions impair agency to distinguish them in kind from natural appetites. I think this is also a feature of Loewenstein's visceral theory.
44. For a good discussion of this point, see Christopher Boorse, "Premenstrual Syndrome and Criminal Responsibility", in Premenstrual Syndrome: Ethical and Legal Implications in a Biomedical Perspective (New York: Plenum Press, 1987), pp. 81-124. As Boorse points out, that one (probably) wouldn't have committed robbery if one had been middle-aged, or committed murder if one had not been male is not taken to be extenuating. "Causal influence of a factor, even when mediated by an endocrine process, does not negate and may not even limit criminal responsibility. On the contrary, criminal law expects everyone to meet stress with increased self-control, and it must take more, not less, care to punish anti-social acts where typical temptation to them is strong" (102).
45. See U.S. v. Freeman (1966), and U.S. v. Lyons (1984).
46. Section 4.01 of the 1985 Model Penal Code, quoted in Kadish and Schulhofer, p. 981.
47. American Journal of Psychiatry, 1983 (quoted in Kadish and Schulhofer, p. 998).
48. Kadish and Schulhofer, pp. 998-999.
49. I think the Court's confidence in the comparative clarity and objectivity of the "cognitive" part of the insanity standard is misplaced; the claim that ". . . psychiatric testimony about volition is more likely to produce confusion for jurors than is psychiatric testimony concerning a defendant's appreciation of the wrongfulness of his act" (K. & S. 998) seems to me highly doubtful.
50. Although the defendant in Moore did not officially offer an insanity defense, he claimed his addiction resulted in substantial impairment of his "behavior controls" (specifically a loss of self-control over the use of heroin) that is sufficient in common law for exculpation.
51. Admittedly, the foregoing may be hard to imagine. But that is because to meet the M-test is to be "defective" or "diseased" in an important sense. In that case, the requirement of "caused by a disease" is superfluous. Compare the gloss on "mental disease" in McDonald v United States: ". . . a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behaviour controls" (Kadish and Schulhofer, p. 1010). Again, any impairment of mental, emotional, or volitional precesses is bound to be abnormal in some sense, thus obviating a causal inquiry. (But consider adolescence!)
52. Note the recommended standard of the American Psychiatric Association, which not only excludes a defense of volitional incapacity, and narrows the understanding of cognitive impairment, but explicitly excludes any conditions that result from voluntary drug-use: "A person charged with a criminal offense should be found not guilty by reason of insanity if it is shown that as a result of mental disease or mental retardation he was unable to appreciate the wrongfulness of his conduct at the time of the offense. As used in this standard, the terms mental disease or mental retardation include only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable primarily to the voluntary ingestion of alcohol or other psychoactive substances." (Kadish and Schulhofer, p. 1003.)
53. Kadish and Schulhofer, p. 1072.
54. I should say that what I have in mind by volitional impairments are not merely defects of something called the will, as distinct from reason or intellect. As I see them, impairments of the kind typified by addictions characteristically involve cognitive distortions of various kinds. The ability to see things straight, and in focus, is not entirely separable from the ability to respond to the reasons one knows one has. In contrast, in his contribution to this volume, "Addiction as Defect of The Will: Some Philosophical Reflections", R. Jay Wallace wishes to isolate defects of will from defects of reason. I am not sure this can be done. Otherwise, I find Wallace's account congenial and insightful.
55. Nicomachean Ethics, Book 3.1, 1110 a1-4, translated by Terence Irwin (Indianapolis: Hackett, 1985).
56. Nicomachean Ethics, 3.1, a4-12.
57. 1110 a25f.
58. I use 'duress' here in a non-technical sense. The legal usage is much more restrictive, as we'll see.
59. See People of California v. Romer (1992), in which the defendant pleaded duress to charges of robbery and attempted robbery on the grounds that she was threatened with death unless she participated. I discuss this case further in the next section.
60. On a conception of irresistible impulse as a force that overpowers the agent's will, it would be especially wrong-headed to think of that notion of compulsion as the non-cognitive prong of an insanity test. On this conception, the person's moral agency is not in that case undermined but bypassed; he is a passive bystander to internal forces. There is then no actus reus. It belongs again in Aristotle's first category.
61. I elaborate this argument in "Disordered Appetites". Robert Schopp also questions this conception of addictive desire in Automatism, Insanity, and the Psychology of Criminal Responsibility (Cambridge and New York: Cambridge University Press, 1991), p. 249.
62. I elaborate this argument in "Disordered Appetites". Robert Schopp also questions this conception of addictive desire in Automatism, Insanity, and the Psychology of Criminal Responsibility (Cambridge and New York: Cambridge University Press, 1991), p. 249.
63. I suggest a normative account in "Skepticism about Weakness of Will", The Philosophical Review, April, 1977. The idea is that weakness is the manifestation of a vice; someone is a victim of compulsion if she is subject to motivation that even a person of exemplary self-control could not resist. See also Patricia Greenspan, who argues that the victim of motivational compulsion is "unfree because he is faced with a kind of threat, like a robbery victim coerced at gunpoint, with intense discomfort as his only option to compliance." "Behavior Control and Freedom of Action", The Philosophical Review 87 (1978), pp. 225-240, reprinted in John Fischer (ed.), Moral Responsibility (Ithaca: Cornell University Press, 1986), p. 196 of the reprinting. Greenspan's discussion focuses on those who are subjected to aversive behavioral control (such as the character Alex, in Anthony Burgess's Clockwork Orange).
64. I suggest a normative account in "Skepticism about Weakness of Will", The Philosophical Review, April, 1977. The idea is that weakness is the manifestation of a vice; someone is a victim of compulsion if she is subject to motivation that even a person of exemplary self-control could not resist. See also Patricia Greenspan, who argues that the victim of motivational compulsion is "unfree because he is faced with a kind of threat, like a robbery victim coerced at gunpoint, with intense discomfort as his only option to compliance." "Behavior Control and Freedom of Action", The Philosophical Review 87 (1978), pp. 225-240, reprinted in John Fischer (ed.), Moral Responsibility (Ithaca: Cornell University Press, 1986), p. 196 of the reprinting. Greenspan's discussion focuses on those who are subjected to aversive behavioral control (such as the character Alex, in Anthony Burgess's Clockwork Orange).
65. I suggest a normative account in "Skepticism about Weakness of Will", The Philosophical Review, April, 1977. The idea is that weakness is the manifestation of a vice; someone is a victim of compulsion if she is subject to motivation that even a person of exemplary self-control could not resist. See also Patricia Greenspan, who argues that the victim of motivational compulsion is "unfree because he is faced with a kind of threat, like a robbery victim coerced at gunpoint, with intense discomfort as his only option to compliance." "Behavior Control and Freedom of Action", The Philosophical Review 87 (1978), pp. 225-240, reprinted in John Fischer (ed.), Moral Responsibility (Ithaca: Cornell University Press, 1986), p. 196 of the reprinting. Greenspan's discussion focuses on those who are subjected to aversive behavioral control (such as the character Alex, in Anthony Burgess's Clockwork Orange).
66. I suggest a normative account in "Skepticism about Weakness of Will", The Philosophical Review, April, 1977. The idea is that weakness is the manifestation of a vice; someone is a victim of compulsion if she is subject to motivation that even a person of exemplary self-control could not resist. See also Patricia Greenspan, who argues that the victim of motivational compulsion is "unfree because he is faced with a kind of threat, like a robbery victim coerced at gunpoint, with intense discomfort as his only option to compliance." "Behavior Control and Freedom of Action", The Philosophical Review 87 (1978), pp. 225-240, reprinted in John Fischer (ed.), Moral Responsibility (Ithaca: Cornell University Press, 1986), p. 196 of the reprinting. Greenspan's discussion focuses on those who are subjected to aversive behavioral control (such as the character Alex, in Anthony Burgess's Clockwork Orange).
67. Section 3.02 of the MPC (1985) formulates the defense in this way: ". . . conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that the harm or evil to be avoided by the conduct is greater than that sought to be prevented by the law defining the offense charged [and the actor's choice situation isn't due to her own negligence or recklessness]".
68. "Exegesis and the Law of Duress: Justifying the Excuse and Searching for its Proper Limits", Southern California Law Review 62(5) (1989), p. 1374.
69. "Two Conceptions of Emotion in Criminal Law", Columbia Law Review 96(2) (1996), pp. 269-374, p. 337. I have learned a lot from this perceptive essay, which I discuss further below.
70. But this explanation doesn't explain why cases such as State of New Jersey v. Toscano (1977) would not be tried under a justification defense. Would it really be preferable or ideal from a public/legal point of view for the defendant to allow himself and his family to suffer death or severe injury rather than to falsify a medical report? I doubt it. This rationale needs more work.
71. The Rejection of Consequentialism (Oxford: Clarendon Press, 1982). The idea is that morality permits us to act in a less than "optimific" way when certain "personal" concerns are at stake. We recognize in morality that the standpoint of what is preferable from a moral point of view might be something the morally decent person has no overriding reason to adopt.
72. In their paper, Kahan and Nussbaum note that agent centered reasons are important to their idea of duress as distinct from both justification and excuse. Dressler also notes that coercive predicaments might create a distinctive justification based on "self-interested" reasons ("Exegesis of the Law of Duress", pp. 1356), though he argues that in legal practice, the defense of duress is best understood as an excuse.
73. Alan Wertheimer argues that "duress is best understood as an agent-relative justification" (Coercion (Princeton, N.J.: Princeton University Press, 1987) p. 168.
74. In saying this, I want to distinguish faulty conduct from innocent conduct that (accidentally, say) has bad consequences. Faulty conduct in my sense is open to criticism.
75. However, for arcane reasons, self-defense could not in law ground a duress defense (on either interpretation). For one thing, in most jurisdictions, a defense of duress is not available in homicide cases. (I discuss this below.) For another thing, the defense is usually available only where the crime is a fulfillment of the coercive threat. For example, someone who escapes prison to avoid rape or other forms of brutality might have a justification defense rather than a duress defense; whereas the latter might be available if his tormentors threatened to kill him unless he escaped. See People of Illinois v. Unger (1977), discussed in Kadish and Schulhofer, p. 903ff.
76. "Two Conceptions of Emotion in Criminal Law", p. 336.
77. Their thesis reflects Kahan's and Nussbaum's larger argument on behalf of an "evaluative" rather than a "mechanistic" conception of emotions in understanding criminal law. The argument seems to me to rest on an overly simple contrast: emotions are either evaluations, and hence reasonable or unreasonable, or they are brute, nonrational forces that impede moral agency. In fact, emotions are both evaluative states and states that potentially interfere with rational control in various ways. It is therefore not surprising that coercive predicaments give rise to defenses expressing both of these truths.
78. One could find expressions of this ideal in other parts of the law - for example, in making room for "conscientious objection". This ideal manifests itself, I suspect, only in relatively stable social contexts where concerns for justice as distinct from social control come to the fore.
79. What We Owe to Each Other (Cambridge: Harvard University Press, 1999), p. 266.
80. Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1994).
81. For discussions of the notion of normative competence in general, see Wallace, Responsibility and the Moral Sentiments, as well as Paul Benson, "Freedom and Value", Journal of Philosophy 84(9) (1987). Normative competence, according to Benson, is "an ability to criticize courses of action competently by relevant normative standards" (469). Susan Wolf uses this phrase to describe the kind of "sanity" that she takes to be presumed by our moral practices: "the minimally sufficient ability cognitively and normatively to recognize and appreciate the world for what it is." ("Sanity and the Metaphysics of Responsibility", in Ferdinand Schoeman (ed.), Responsibility, Character, and the Emotions (Cambridge and New York: Cambridge University Press, 1987) p. 56.)
82. For discussions of the notion of normative competence in general, see Wallace, Responsibility and the Moral Sentiments, as well as Paul Benson, "Freedom and Value", Journal of Philosophy 84(9) (1987). Normative competence, according to Benson, is "an ability to criticize courses of action competently by relevant normative standards" (469). Susan Wolf uses this phrase to describe the kind of "sanity" that she takes to be presumed by our moral practices: "the minimally sufficient ability cognitively and normatively to recognize and appreciate the world for what it is." ("Sanity and the Metaphysics of Responsibility", in Ferdinand Schoeman (ed.), Responsibility, Character, and the Emotions (Cambridge and New York: Cambridge University Press, 1987) p. 56.)
83. For discussions of the notion of normative competence in general, see Wallace, Responsibility and the Moral Sentiments, as well as Paul Benson, "Freedom and Value", Journal of Philosophy 84(9) (1987). Normative competence, according to Benson, is "an ability to criticize courses of action competently by relevant normative standards" (469). Susan Wolf uses this phrase to describe the kind of "sanity" that she takes to be presumed by our moral practices: "the minimally sufficient ability cognitively and normatively to recognize and appreciate the world for what it is." ("Sanity and the Metaphysics of Responsibility", in Ferdinand Schoeman (ed.), Responsibility, Character, and the Emotions (Cambridge and New York: Cambridge University Press, 1987) p. 56.)
84. For this phrase, see the British case, Lynch v. Director of Public Prosecutions, quoted in Leo Katz, Bad Acts and Guilty Minds (Chicago and London: University of Chicago Press, 1987), p. 64.
85. Nicomachean Ethics, 1110a27.
86. Wertheimer points out that the exclusion would also make sense on the justification-interpretation of duress; it might reflect the judgment that nothing could justify taking the life of a non-aggressor. See Coercion, p. 155. This shows again how normative judgment is involved on both interpretations of the duress defense.
87. Quoted in Katz, Bad Acts and Guilty Minds, p. 68.
88. Here I agree with Dressler; Dressler rejects the blanket exclusion of defenses to murder as well - "Exegesis of the Law of Duress", p. 1071. Wertheimer, Coercion, also questions the rationale for the exclusion of homicide (155-156).
89. Here I agree with Dressler; Dressler rejects the blanket exclusion of defenses to murder as well - "Exegesis of the Law of Duress", p. 1071. Wertheimer, Coercion, also questions the rationale for the exclusion of homicide (155-156).
90. I know of no official attempt to offer an addiction-based defense of duress. But the defendant in Moore (cited above) claimed his addictive condition to be "on the same footing" as "a person forced under threat of death to inject heroin" (quoted in Kadish and Schulhofer, p. 1072). Michael Moore seems to place addiction in the same category as other coercive circumstances, broadly conceived: "External threats, external but natural necessity, internal emotional turmoil, or passionate cravings [such as those of addiction] are different from one another, yet all make a choice difficult. Each at least mitigates the actor's responsibility because of the difficulty of refraining from doing what he ought not to do." Law and Psychiatry (Cambridge and New York: Cambridge University Press, 1984), p. 87.
91. The MPC (1985) makes this explicit in the second clause of its codification of the defense: "The defense . . . is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subject to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged."
92. But notice that this simile assumes a social climate in which the drug in question is liable to be in short supply. This factor is obviously affected by social policy.
93. If George Ainslie is right, however, some addictive substances have the property of rendering individuals self-absorbed in a disturbing way. See "A Research-Based Theory of Addictive Motivation", this issue. Can't something similar be said of certain meditative/religious practices?
94. The remarks in the next few paragraphs are adapted from my "Disordered Appetites".
95. In a suggestive article, Gold, Johnson, and Stennie argue that the reward system activated by addictive drugs is the same system that responds to the "primitive species reinforcers" food, thirst, and sex. What happens is that these drugs come to "acquire the organismic significance attributed to food. They become an acquired primary drive equated with survival." See "Eating Disorders", in Substance Abuse, Third Edition, p. 320. As they put it, in addiction, "the fundamental processes of reward of primitive species survival drives" are "usurp[ed] . . . by exogenous agents" (319). This conjecture accounts for the sense of urgency and alarm that is common to the experience of addictions and natural appetites.
96. This issue. Once again, I do not follow Morse in construing the addict's "partial responsibility" as due to an impairment in rationality rather than in control.