DOUGLAS N. HUSAK?

ADDICTION AND CRIMINAL LIABILITY (Accepted September 3, 1999)

In this paper I explore how the judgment that an activity is addictive might be relevant to the justifiability of criminal liability.1 Most (but not all) of my focus will be on drug addiction. In Part I, I present a case which, in principle, provides a basis for recognizing a defense of drug addiction. In Part II, I examine whether this case can be adapted to justify legislative proscriptions of addictive drug use. In Part III, I consider to which drugs, if any, my arguments apply. I describe my project as an exploration rather than as a defense of a view about the relevance of addiction to criminal liability. Few of my conclusions are more than tentative; I will pose as many questions as I will provide answers. I hope that the issues I will raise are sufficiently interesting and challenging to stimulate greater numbers of moral and political philosophers to think carefully and critically about the philosophical issues surrounding the justifiability of sanctions for drug use. Ultimately, I will contend that our best empirical evidence about the nature of addictive activities supports the conclusion that addiction is rarely relevant to criminal liability – at least, for the reasons I explore. The case for thinking that addiction is relevant to criminal liability is more vulnerable on empirical than on normative grounds.

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[Prepared for the National Humanities Center Workshop on Addiction and the Law, University of North Carolina at Chapel Hill, September 25–27, 1998] 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. Law and Philosophy 18: 655–684, 1999. © 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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I

One might defend a view about the relevance of addiction to criminal liability by proceeding in either of two ways. Perhaps the more typical approach would begin with an account of what addiction is: Since addiction is thus-and-so, its relevance to criminal liability is as follows. I propose to proceed from the opposite direction. I begin with an account of what is relevant to criminal liability. Then I consider whether anything that seems close to what we think of as addiction might have that kind of relevance. Admittedly, this latter approach cannot be pursued without indulging in some speculation about the nature of addiction. Perhaps my inquiry is more accurately described as a quest for what addiction would have to be like before the judgment that an activity is addictive would be relevant to criminal liability. A promising route to understand the possible relevance of addiction to criminal liability can be taken by thinking about excuses – reasons for not blaming persons for their criminal conduct. Consider, in particular, the familiar excuse of duress. All modern codes of criminal law, as far as I am aware, recognize some form of defense for duress. According to the Model Penal Code, this defense applies when a defendant is “coerced to [commit an offense] by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.”2 According to this formulation, the excuse of duress is unavailable to a defendant whose criminal offense is somehow the product of his addiction. Clearly, the addict who commits the criminal act of using an illicit drug is not responding to a threat of unlawful force. Thus, as a matter of positive law, no court would or should recognize duress as a defense to any crime – including the crime of drug use itself – simply because that crime is perpetrated by an addict.3 But this conclusion does not end my inquiry. The question I pose here is whether much the same rationale that underlies the defense of duress

2 3

Model Penal Code, Sec. 2.09(1). The leading case is U.S. v. Moore, 486 F.2d 1139 (D.C. Cir. 1973).

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might also support the creation of a new- defense that is available to the addict.4 In order to answer this question, we must try to identify the rationale that underlies the defense of duress. Consider a paradigm case in which a defendant assists a villain rob a bank because the villain threatens to break the leg of the defendant unless he drives a getaway car. Why should enlightened systems of criminal justice recognize his excuse of duress? I think it is fair to say that the defendant in this example had “no choice” but to assist the villain. Construed literally, of course, this statement is inaccurate; the defendant could have chosen to suffer the breaking of his leg. The statement that he had “no choice” expresses a normative judgment about his blame. When we say that this defendant had “no choice” but to commit the offense, we mean that the available alternatives were so unpalatable that we do not blame him for what he chose to do. A person of reasonable firmness – a reasonable person – would have made the same choice, and assisted the villain rather than endure the pain of a broken leg. Juries are trusted to decide whether a person of reasonable firmness would have been able to resist a given force. Exactly how they make these judgments can be mysterious. Legal philosophers seldom protest that juries tend to make incorrect decisions in contexts involving duress. But commentators disagree about how to characterize these judgments. Since a reasonable person would have done what this particular defendant did, isn’t his choice permissible, and isn’t he justified rather than excused? Perhaps. I am inclined to believe, however, that persons of reasonable firmness sometimes can be made to commit wrongful acts when they are threatened with enough pain. If so, duress can function as an excuse. But I do not know how to support this belief. Any example of a situation in which I am persuaded that a person of reasonable firmness would succumb to a threat can plausibly be construed as giving rise to an 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.

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agent-relative justification rather than to an excuse. Even if I am correct that duress can function as an excuse rather than as an agentrelative justification, I do not tend to believe that persons who are exempted from blame when they succumb to a threat need manifest a defect of volition or rationality. Sometimes, rational persons with non-defective wills make wrongful choices under threats of pain. That is, they make a rational choice; their wills are intact; but they make a wrongful choice for which they are not to blame and thus are excused. Or so I am inclined to believe.5 Any philosopher would like to know more about how and why juries decide whether to accept or to reject an allegation of duress. Why do juries agree that persons of reasonable firmness sometimes succumb to threats of pain, but never, for example, to bribes? Philosophers would also like to know whether the best theory of permissible action would succeed in characterizing all situations in which the defense of duress should be granted as giving rise to an agent-relative justification rather than to an excuse. Fortunately, however, these deep and interesting philosophical questions about duress need not be resolved for present purposes. Hopefully, we can put these issues aside in inquiring how the assumption that a defendant is addicted to an activity might play a role in a judgment about his blame that is roughly analogous to that of the villain’s threat. Suppose that a defendant is faced with the choice of committing or not committing an act of illicit drug use. Suppose further that he will suffer pain if he does not consume the illicit drug. Such a pain might ensue because some addictive substances give rise to withdrawal symptoms when their use is discontinued. There is no a priori reason why the pain of with5

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.

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drawal could not be of sufficient severity that a person of reasonable firmness would choose to commit an illegal act of drug use rather than to endure it. To bolster the plausibility of this scenario, consider an example that combines the pain of withdrawal with the external threat in paradigm cases of duress. Imagine that our villain does not threaten to break the defendant’s leg, but continually injects him with an addictive substance for whatever period of time is required to give rise to withdrawal symptoms if the injections were discontinued. The villain then threatens to discontinue the injections – unless, of course, our unfortunate defendant agrees to drive the getaway car. If these symptoms were sufficiently severe, I have little difficulty accepting that such a threat – like the threat of a broken leg – could give rise to a defense of duress.6 In the remainder of this Part, I will make seven observations about the foregoing argument for recognizing a possible defense of addiction. I intend these observations to clarify the argument, and to avoid possible misinterpretations of it. 1. I am aware that positive law has been uniformly unwilling to extend the rationale of the excuse of duress to recognize a defense for the drug addict. One source of this reluctance has been evidentiary.7 Courts and commentators have raised the enormous difficulty of distinguishing psychological pressures that persons of reasonable firmness could not resist from those that could have been resisted, but were not. I do not mean to minimize these evidentiary problems. Much the same difficulty, however, arises when coercion is applied by an external agent, as in my paradigm case of duress. Juries are given the difficult task of deciding whether the degree of coercion in question is of such magnitude to prove irresistible to a person of reasonable firmness. I see no principled reason why juries could not be entrusted to make a similar decision in one-party cases – 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).

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situations in which pain arises solely from actions the defendant has performed himself. 2. All formulations of the defense of duress combine both “objective” and “subjective” components. The objective component of these tests has received a great deal of scholarly attention.8 The subjective component, however, has been relatively neglected. Duress does not excuse a defendant unless he committed the offense because he was coerced; he cannot use the threat as a convenient opportunity to excuse an offense he would have committed anyway, even though the degree of force was sufficient to coerce a person of reasonable firmness. This same subjective requirement applies to drug addicts, insofar as they hope to excuse their drug use by the same rationale that underlies the defense of duress.9 This subjective component entails that an addict must have some understanding that withdrawal is painful before it can be said that he uses drugs in order to avoid withdrawal pain. But he need not actually have experienced withdrawal pains – any more than the defendant in my paradigm case must actually have experienced a broken leg. 3. Whatever the case may be with existing drugs,10 I am skeptical that the foregoing argument can generate an excuse for activities that frequently are said to be addictive but do not involve the use of drugs. Virtually any activity has been alleged to be potentially addictive, giving rise to a bewildering vocabulary of terms derived from alcoholism: persons are said to be workaholics, sexaholics, chocaholics, and the like. Perhaps compulsive gambling is the 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.

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activity other than drug use that is most commonly said to involve a “true addiction.” As far as I am aware, however, the cessation of these activities does not give rise to painful withdrawal symptoms.11 I do not insist that the fear of pain provides a unique explanation of why persons of reasonable firmness are unable to resist performing a given act. After all, the excuse of duress is and ought to be available when unlawful force is threatened against some person other than the defendant. Before giving rise to an excuse, however, the reason to succumb must support the normative judgment that the agent had “no choice.” Perhaps the avoidance of severe property damage satisfies this test and should generate a defense as well.12 Borderline cases will inevitably arise; I see no basis for drawing clear lines about exactly what kinds of motivations will support this normative judgment. At any rate, some familiar explanations of why persons succumb to temptations clearly fail to give rise to an excuse. As I have indicated, persons of reasonable firmness are expected to be able to resist bribes, for example – even when the amount offered is substantial. The pursuit of pleasure or gain, unlike the avoidance of pain or loss, is insufficient to excuse. In this respect, pain and pleasure are asymmetrical. I do not propose an alternative explanation of compulsive behaviors such as gambling. Perhaps these compulsive behaviors involve weakness of will. When someone is too weak-willed to resist a snack, for example, I see no reason to believe that he would have experienced severe pain if he had resisted. But the addict who seeks to avoid the pain of withdrawal should not be understood to suffer from weakness of will – any more than the person who acts under duress in driving the getaway car. 4. I do not understand the foregoing argument to represent an alternative to the claim that addiction should be recognized as a defense because the addict “could not help himself,” or “can’t quit,” or “could not have done otherwise.” Instead, this argument should be construed as an explication of why we tend to find 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.

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some grain of truth and exculpatory significance in these claims. According to the foregoing argument, addicts could not have done otherwise than continue to engage in their addictive activity because the consequences of making a sustained effort to quit – the pains of withdrawal – are too severe to expect them to endure. Again, the sense in which addicts “could not have done otherwise” is normative, and does not express some deeper insight into the metaphysics of free will and determinism. 5. In at least one respect, drug addiction has a feature that is not replicated in my example of duress, and which actually strengthens the case for recognizing an excuse from liability. In my example, the villain merely threatens the defendant, who acquiesces without having experienced any pain. But the pains of withdrawal are gradual; they increase over time. A given addict may not use drugs to prevent the onset of the withdrawal symptoms he anticipates and dreads; he may use drugs to relieve the pain from which he is currently suffering and which he knows will soon become more intense. The analysis of a case involving the experience of pain is somewhat different from that involving the mere threat of pain. Our original defendant makes a calculated, deliberate choice to help the villain rather than to endure a broken leg. When a person seeks relief from pain he is currently experiencing, however, his conduct lies in the gray area between the voluntary and the nonvoluntary. To the extent that his conduct shades into the nonvoluntary side of this continuum, the case for granting an excuse becomes stronger. Unlike a typical case in which a defendant makes a calculated and deliberate choice to commit a crime, a defendant whose criminal conduct is nonvoluntary is almost always excused from liability.13 6. Although I have mentioned the concept of voluntariness in suggesting why persons who respond to actual pain may have an even better excuse than those who act under the mere threat of pain, my explication of the foregoing argument makes no reference to abstract concepts such as autonomy. On some occasions, I am tempted to keep such controversial concepts out of the inquiry. Philosophers differ radically about both the nature and the value of autonomy, and there is good reason to try to steer as far as possible 13

This generalization about the nonvoluntariness defense is subject to the culpability-in-causing exception I discuss in Part II.

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from these difficult issues.14 Still, it is instructive to comment about how the foregoing argument might be placed in a broader philosophical tradition. On a number of accounts of autonomy,15 the foregoing argument can be construed as an attempt to identify what addiction would have to be like to support the conclusion that addicts use drugs nonautonomously – just as acts performed under duress are nonautonomous. In what follows, I will simply assume that persons who succumb to pressures that persons of reasonable firmness would be unable to resist – which support the normative judgment that they had “no choice” – act nonautonomously. 7. I cannot think of any other plausible argument for recognizing an excuse of addiction to criminal liability. Other components of what we think of as addiction seem to have no potential relevance to criminal liability. For example, consider tolerance, the phenomenon in which greater quantities of a substance are gradually needed to attain the same desired effect – relief from pain, or a “high” in the case of recreational drug use. I am unable to understand how the fact that persons fail to gain the same desired effect after persistently performing an activity could be relevant to their criminal liability. In any event, I do not know how to defend the negative proposition that the foregoing argument represents the only means by which addiction could have exculpatory significance. All I can say is that I have been unpersuaded by other arguments for this conclusion. Alternative bases for supposing that addiction has exculpatory significance may have unacceptable implications. In particular, they may prove too much. Suppose we construe addiction as somehow impairing rationality or volition, and contend that such impairments can give rise to an excuse. On these models, it is hard to account for why drug addiction might generate a more plausible candidate for an excuse than other conditions that might have similar effects on rationality or volition. Consider Jim, who is absorbed and blinded 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.

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by ethnic hatred to such a degree that his rationality or volition is impaired. Should his crimes against ethnic groups be partially or completely excused because they result from this impairment? An account of the exculpatory significance of addiction that avoids this implication would be desirable. If the exculpatory significance of addiction could be derived from the painful withdrawal symptoms of drugs, there would be good reason not to extend a defense of addiction to persons like Jim. I hope to have provided a basis for understanding what addiction would have to be like in order to give rise to a defense from criminal liability. In principle, I believe that the foregoing argument provides a good reason to recognize drug addiction as an excuse. That is, the case I have sketched is strong if any addictive behavior actually conforms to my speculation – a matter to which I will return in Part III. In the next Part, I will discuss the limitations of this argument in attempts to justify the enactment of criminal offenses against drug use.

II

Addiction might have either of two kinds of relevance to the justifiability of criminal liability. In Part I, I defended a view about what addiction would have to be like in order to give rise to an excuse from liability for violations of drug proscriptions. Of course, an excuse from liability is not needed unless these proscriptions actually exist. Does the phenomenon of addiction also provide a reason to enact such proscriptions? Many persons have thought so; they have thought that the evils of addiction provide the basis of a good reason to criminalize the use of drugs. If they are correct, the phenomenon of addiction may possess both of the above kinds of relevance to the criminal law; it may provide a reason to recognize a defense from liability for violations of existing drug proscriptions, and a reason to enact such proscriptions in the first place. The very feature of addiction that I have argued might induce us to recognize a defense from criminal liability for violations of existing drug proscriptions might also persuade us to favor the legislative creation of such proscriptions. Suppose, for the reason I have sketched, that addicts use drugs nonautonomously. If we concede

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that the state has an interest in protecting the autonomy of persons – in this case, the autonomy of potential addicts – then the state has an interest in preventing persons from becoming addicted.16 Arguably, the most effective means to achieve this objective is by punishing persons who use addictive drugs.17 Notice that this argument introduces a possible paternalistic rationale for drug proscriptions – a rationale that purports to justify drug proscriptions because of the effects of drugs on the user himself. This rationale will have no appeal for those philosophers who categorically reject all paternalism, or all paternalism for sane adults. Such a sweeping condemnation of paternalism, however, seems unwarranted. When we inquire why the effects of an activity on the sane adult himself should typically be insufficient to justify criminalization, the most compelling answer involves the importance we attach to autonomy. This answer is inapplicable, however, if we concede that addicts use drugs nonautonomously. Thus the door to paternalistic interference is opened. In this Part I eventually inquire whether the state interest in protecting the autonomy of potential addicts provides a justification for enacting proscriptions against drug use. First, however, I propose to raise a question of consistency. If the state endeavors to justify its criminalization of drug use by its interest in protecting the autonomy of potential addicts, must it also recognize a defense of addiction along the lines I described in Part I? Conversely, if the state recognizes a defense of addiction, does it also have a reason to proscribe drug use? In other words, must the phenomenon of addiction either have both kinds or neither kind of relevance to the criminal law? The line of reasoning in favor of an affirmative answer to this question is as follows: Either (a) addicts use drugs autonomously, or (b) addicts do not use drugs autonomously. If (a), and addicts do use 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.

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drugs autonomously, then addicts need not be excused from liability for their offense. If addicts use drugs autonomously, however, then the creation of drug proscriptions cannot be justified by the state interest in protecting the autonomy of potential addicts. But if (b), and addicts do not use drugs autonomously, then the state interest in protecting the autonomy of potential addicts provides a reason to proscribe drug use. If addicts do not use drugs autonomously, however, then addicts should be excused from liability for their offense. This same line of reasoning can be expressed somewhat differently: If it is justifiable to impose criminal liability on addicts for their use of drugs, then the use of drugs by addicts must be autonomous. But if the use of drugs by addicts is autonomous, the criminalization of drug use cannot be justified by the state interest in protecting the autonomy of potential addicts. Is this line of reasoning sound? Must addiction really have both kinds or neither kind of relevance to the criminal law? I am skeptical that the state can be “selective” with respect to the relevance of addiction to autonomy and thus to criminal liability.18 A legislator cannot emphasize the grave threat which addiction poses to autonomy when called upon to justify the enactment of offenses of drug use, and yet downplay the impact of addiction on autonomy when called upon to justify the punishment of addicts who commit the very offenses he has enacted.19 Attempts to respond to the 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).

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foregoing line of reasoning are among the most difficult and interesting projects in philosophical reflection about drugs and the law. In what follows, I will describe four possible replies to this line of reasoning.20 Each reply attempts to show that the criminal law can be selective with respect to the relevance of addiction after all. None of these replies, however, is altogether persuasive. 1. I will only mention what I take to be the most obvious reply to the foregoing line of reasoning – a reply that avoids rather than addresses the problem of consistency I have raised. I have suggested that if addicts use drugs autonomously and should not be excused for their drug use, then the creation of drug proscriptions cannot be justified by the need to protect the autonomy of potential addicts. It does not follow, of course, that drug proscriptions cannot be justified by some other rationale. The most that the foregoing line of reasoning proves is that a state that fails to recognize a defense of drug addiction cannot justify drug proscriptions by a paternalistic appeal to its interest in protecting the autonomy of potential addicts. Of course, the state may seek to justify the creation of drug offenses by some rationale entirely distinct from its interest in protecting the autonomy of potential addicts. A harm-to-others rationale for drug proscriptions might do all of the justificatory work. Clearly, I cannot discuss here any of the several possible alternative rationales for criminalizing drug use.21 I restrict myself to the sole observation that the overall case for drug proscriptions is likely to be weakened substantially by the concession that addicts use drugs autonomously. 2. The second reply confronts rather than evades the challenge of consistency I have posed. This reply begins by pointing out that autonomy, on most any sensible account, admits of degrees.22 If 20

I do not mean to suggest that other possible replies are unavailable. 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. 22 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 21

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autonomy did not admit of degrees, then infants, whose conduct is completely lacking in autonomy, would suddenly become capable of fully autonomous choice at some moment of time in their maturity and development. Thus, I assume that some choices are more or less autonomous than others. If so, the foregoing line of reasoning presents a misleading picture of the possible connections between addiction and autonomy. The issue is not whether or not addicts use drugs nonautonomously, but how much autonomy is exemplified in their use of drugs. If pressed to provide an example of a fully autonomous act, no one would think to cite the case of drug use by an addict. But the case of drug use by an addict may also be a poor candidate for an act that is wholly lacking in autonomy. The drug use of an addict lies somewhere on the continuum between a fully autonomous and a wholly nonautonomous act – probably much closer to the latter end of the spectrum. Acknowledging that autonomy admits of degrees provides a possible reply to the foregoing line of reasoning. Assume, for purposes of illustration, that the extent to which autonomy is exemplified in a particular act can be identified with precision. Let us represent a fully autonomous choice as “A”, and a wholly nonautonomous choice as “Z”. Suppose that the amount of autonomy exemplified by the drug use of an addict is represented along this spectrum as “T”. Two distinct questions now arise in assessing the relevance of addiction to the criminal law. First, how much autonomy must a choice lack before a person should be excused for making it? Second, how much autonomy must a choice lack before the state has a good reason to enact criminal laws to prevent persons from making it? Once we understand that autonomy admits of degrees, we can appreciate that the answers to these two questions may well be different. The amount of autonomy that must be lacking in order to excuse an act may not be identical to the amount that must be lacking in order to justify its proscription. Perhaps a choice must lack autonomy to degree “P” before the state has a good reason to enact criminal laws to protect persons from making it, although a choice must lack autonomy to degree “V” before a before a person should be excused for making it. The drug Joel Feinberg’s suggestions about voluntariness in his Harm to Self (New York: Oxford University Press, 1986), pp. 113–117.

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use of addicts may lack enough autonomy (“T”) to justify criminalization (“P”), but possess enough autonomy to defeat the claim for an excuse (“V”). If so, the criminal law can be selective after all, and invoke its interest in protecting the autonomy of potential addicts to support criminalization while simultaneously withholding a defense from liability for existing addicts.23 I am unaware of anyone who has endorsed this reply to the foregoing line of reasoning.24 The myth of precision aside, I take this reply seriously, and do not pretend that I have a persuasive response to it. Certainly, it would be a convenient simplifying hypothesis if the amount of autonomy that must be lost by addictive drug use to justify the enactment of criminal legislation is the same amount that would justify the recognition of an excuse for addicts. I see no good reason to believe that the former is less than the latter. Since imprisonment is such a terrible hardship to impose on persons, the diminution of autonomy that is needed to justify criminalization may even be greater than the amount that would support the granting of an excuse of addiction. But I can think of little more to say against this second reply. 3. The third reply invokes a class of considerations I call culpability-in-causing considerations.25 These considerations endeavor to withhold an excuse from addicts for their drug use, despite conceding that addictive drug use may be nonautonomous. According to this reply, even a nonautonomous choice is ineligible for an excuse if the defendant is somehow culpable in causing his 23

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. 24 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. 25 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).

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own loss of autonomy. Such is the case (the argument continues) with the drug use of addicts. Culpability-in-causing considerations are not ad hoc, but govern the application of many defenses, including the excuse of duress. This excuse is unavailable when the defendant “recklessly placed himself in a situation in which it was probable that he would be subjected to duress.”26 Defendants who have recklessly placed themselves in various predicaments should foresee that they are likely to be subjected to threats that persons of reasonable firmness would be unable to resist. By parity of reasoning, the argument continues, the proposed defense should be withheld from drug addicts. Although nonautonomous, their drug use is justifiably punished because addicts have autonomously performed a culpable act (viz., their use of addictive drugs prior to the time they became addicted) that they should have foreseen would subsequently deprive them of autonomy. This reply is plausible, and merits careful scrutiny. Let me hazard several possible rejoinders. First, consider a number of hard questions that might fuel suspicion about culpability-in-causing considerations generally. Exactly why is the defendant denied an excuse when he culpably caused himself to be in a predicament in which an excuse is needed? Does the rationale involve estoppel? Transferred or equivalent culpability? Practical difficulties of proof? In the absence of a more detailed account of this rationale, a rejoinder is difficult to produce. Moreover, is it really true that the first-time user should foresee that addiction and nonautonomous use are the likely results of his initial experimentation with drugs? Perhaps not.27 In addition, the severity of punishment that results from denying the excuse seems grossly disproportionate to the gravity of the wrongful act the defendant has committed. Suppose that our defendant has culpably and autonomously placed himself in the company of thugs. The wrongfulness of this act seems relatively minor. Subsequently, however, his excuse for the serious crime of bank robbery is denied altogether. Surely the blame of this accomplice to bank robbery should not be equated with that of the garden variety bank robber 26

Model Penal Code, Sec. 2.09(2). See my subsequent discussions about the probabilities that users of addictive drugs will actually become addicted. 27

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who was not subjected to duress at all. Although the defendant who placed himself in the company of thugs might have foreseen his need to make some difficult choices, he may not have foreseen that anything as serious as bank robbery was likely to be among them. Finally, the application of these considerations can lead to results that I regard as counterintuitive. Does the law really expect our defendant to endure a broken leg just because he culpably placed himself in the predicament in which this choice was forced upon him? I submit that no person of reasonable firmness – no reasonable person – would make the choice the law demands. At any rate, if the basis for denying the defense to the drug addict is his culpability in causing his own addiction, the excuse should remain available to those persons who lack such prior culpability. Some persons may not be especially culpable for becoming addicts. No reason has been given to deny such persons the addiction defense I have described. Yet no jurisdiction, as far as I am aware, grants them the defense. 4. A fourth reply to the foregoing line of reasoning is similar to the third, in that it purports to justify withholding an excuse to addicts who use drugs, even while conceding that their use is nonautonomous. Unlike its predecessor, however, this reply denies that addicts have “no choice” but to use drugs nonautonomously. The addict deserves blame and punishment not for his drug use, which is nonautonomous, nor for his previous autonomous choice that caused him to become addicted, but rather for an altogether different autonomous choice – his choice to forego various strategies that would allow him to discontinue his use of an addictive drug. Let me simply refer to all such strategies as treatment.28 According to this reply, the addict becomes eligible for punishment because of his autonomous decision to forego whatever treatment would allow him to discontinue his drug use. The most obvious rejoinder to this fourth reply is that treatment is often unavailable, and, when available, is not especially effective. This rejoinder is not definitive, however, because more

28

This conception may or may not recognize as treatment the substitution of one addictive drug for another (e.g., methadone for heroin).

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promising approaches may be on the horizon.29 A less obvious rejoinder involves what might be called “truth in liability.” If the act for which addicts are “really” punished is some act other than their drug use, then addicts who use drugs should not be charged with violations of laws proscribing drug use, but rather with a new offense that proscribes their failure to seek treatment. The enactment of this new offense would accomplish more than accuracy and candor. An addict who had sought treatment, or for whom treatment was unavailable, would not be liable for this new offense.30 Since a person who had sought treatment would not satisfy the material elements of this new offense, the state would be required to bear the burden of proving that a given defendant had not sought treatment before liability could be imposed.31 Obviously, existing law imposes no such requirement; addicts who use drugs are liable notwithstanding the fact that they had sought treatment, or that treatment was not available. I am not wholly convinced by any of these four replies to my line of argument. Perhaps, however, one or more of these replies is persuasive, and a state can consistently criminalize drug use to protect the autonomy of potential addicts while simultaneously denying an excuse to existing addicts. At this point, however, I propose to place questions of consistency to one side in order to comment briefly about a more basic issue involving criminalization. Whether or not drug addicts are excused, does the state interest in protecting the autonomy of potential addicts really provide the basis of a good reason to proscribe the use of addictive drugs? In the remainder of this Part, I will provide two (of several) distinct grounds for believing that this question should probably be given a negative answer. 29 See, for example, “New Approaches in the Treatment of Substance Abuse,” Journal of Drug Issues 27(1997), pp. 195–444. 30 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. 31 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.

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1. Some progress in answering this question might be gained by returning to my paradigm case of duress. Recall that the villain requires the defendant to assist him in the crime of bank robbery. But the fact that the villain requires the defendant to assist him in the commission of a crime is not essential to our judgment that the villain has acted wrongfully in coercing the defendant. Of course, the defendant would not need a defense unless he has participated in the commission of a crime. But if the villain did not coerce the defendant to assist him in the commission of a crime – if instead he had coerced the “defendant” to study philosophy – the act of coercing the “defendant” would still be wrongful.32 What is wrongful about the villain’s coercion is not simply a function of what act the defendant is coerced to do nonautonomously, but that he is coerced to do an act – any act – which, because he is coerced to do it, is nonautonomous. The state has an interest in protecting persons from being placed in circumstances in which their actions are nonautonomous. My latest example of duress shows that the state retains this interest even when the actions that are nonautonomous are permissible or even commendable. Is the example of addiction comparable to that of duress? Notice that some features of the two-party case of duress are difficult to replicate in the one-party case of addiction. In the one-party case of addiction, the strength of the state interest in preventing persons from performing an action nonautonomously cannot easily be divorced from what action would be nonautonomously performed. Suppose, for example, that a new drug were created: philoin. Persons of reasonable firmness who became addicted to philoin would be unable to resist the study of philosophy. Their study of philosophy would be nonautonomous; they would experience severe withdrawal symptoms if they attempted to resist immersing themselves in philosophical inquiry. Someone may reasonably judge that the study of philosophy by philoin addicts has less value (or perhaps has no value at all) relative to the autonomous study of philos-

32

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.

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ophy.33 But would anyone believe that good reason had been given to criminalize the use of philoin? If not, has good reason been given to criminalize the use of addictive drugs? Even though autonomous actions may have a value that nonautonomous actions lack, and even though the state may have an interest in ensuring that persons perform actions autonomously, little reason has yet been given to criminalize conduct that produce nonautonomous actions in cases that involve only one party. If the use of addictive drugs should be criminalized, some reason must be found other than the supposition that addicts use drugs nonautonomously, coupled with the state interest in protecting the autonomy of potential addicts. Something else about addictive drugs must be sufficiently bad to justify the punishment of persons who use them.34 The supposition that addictions are “unamiguously bad,”35 apart from an evaluation of the conduct that the addiction produces, is insufficient to justify criminalization. 2. Thus far, I have failed to mention some empirical facts of potentially great significance to the claim that the state interest in protecting the autonomy of potential addicts provides a good reason to proscribe the use of addictive drugs. Many users of even the most addictive drugs never become addicted to them.36 Not only do different people have different probabilities of becoming addicted to the same drug, but the same person has a different probability of

33 For a discussion of this judgment, see William Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989). 34 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 acttype performed nonautonomously. This fact seems significant to the justification of criminalization. 35 See Robert Goodin, No Smoking (Chicago: University of Chigao Press, 1989), p. 99. 36 See Charles Winick, “Nonharmful Drug Use,” Milbank Quarterly 69 (1991).

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becoming addicted to a given drug in some circumstances than in others.37 These empirical facts may not undermine the case for recognizing an excuse for liability for those users who actually become addicts.38 But these facts cast a new light on the claim that drug proscriptions are justified to protect the autonomy of potential addicts. The class of potential addicts, which is said to require protection, turns out to be narrower than and thus different from the class of persons who are punished for their use of addictive drugs. That is, punishment is imposed in order to prevent the diminution of autonomy exemplified by addictive drug use, but the class of persons who are punished for their drug use is not identical to the class of persons who require protection. Some persons are punished who do not require protection because they would not become addicted if permitted to use drugs. In light of these facts, the claim that drug use should be proscribed to protect the autonomy of potential addicts raises questions of overinclusion and is seen to involve trade-offs. The autonomous choice of some persons is punished to prevent other persons from losing their autonomy. What is the justification for depriving the former persons of their liberty to use a drug in order to prevent the latter persons from becoming addicted to it? Let me illustrate this problem by a variation on the story of Odysseus – a story that is frequently used (and misused) in discussions of autonomy, addiction, and paternalism. In Homer’s version, of course, Odysseus outwits the sirens and manages both to hear their seductive song and to escape with his ship intact. Suppose, however, that some imaginary jurisdiction decided to punish persons who sailed within audible distance of the sirens. Their laudable objective, let us imagine, is to protect the autonomy of sailors who would become enslaved to the sirens if permitted to come too close. Suppose, however, that some sailors – call them Greeks – did not 37

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). 38 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.

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need to be protected. By some means or another, Greeks are able to hear the siren’s song without suffering a diminution of their autonomy.39 After Odysseus evades the sirens but is captured and prosecuted, would his punishment be justifiable? At the very least, liability in such cases raises grave concerns of justice. The rationale for punishing Odysseus involves trade-offs that appear to be utilitarian but arise in a context – the justification of punishment – in which utilitarianism has been thoroughly discredited. I simply mention two familiar premisses. First, persons should not be punished in the absence of their desert. Second, desert is personal. Of course, these two premisses require enormous elaboration and explanation, but each seems attractive and defensible. Why should the Greeks of the world be punished for having used a drug to which they are not and will not become addicted because other persons cannot use that drug without losing too much of their autonomy? Perhaps this question can be answered.40 Utilitarian trade-offs are hardly unknown to the substantive criminal law.41 Before hazarding an answer, however, it would be important to try to ascertain the ratio of potential addicts to total users. What if Greeks are as numerous as persons who could not resist the siren’s song? What if they outnumber them 2 to 1? Or 10 to 1? Or 100 to 1? At what point should we accept, and at what point should we reject these utilitarian trade-offs? I do not pretend to have answers to these important and difficult questions. But I hope to have cast doubt on the claim that the 39

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. 40 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. 41 See Douglas Husak, “Reasonable Risk Creation and Overinclusive Legislation,” Buffalo Criminal Law Review 1 (1998), p. 599.

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state interest in protecting the autonomy of potential addicts justifies the criminalization of drug use. Moreover, I hope to have identified some of the many difficulties in supposing that the criminal law can be selective with respect to the relevance of addiction to autonomy and thus to criminal liability. A state that endeavors to justify its criminalization of drug use by its interest in protecting the autonomy of potential addicts is hard-pressed to deny in principle the defense of addiction I have described in Part I.

III

Despite my reservations, suppose that the case in favor of criminalization that I have sketched in Part II is sound. The state interest in protecting the autonomy of potential addicts, let us suppose, provides a good reason to enact drug proscriptions. Suppose, moreover, that the case in favor of recognizing an excuse of drug addiction that I have sketched in Part I is sound. If persons use drugs to relieve withdrawal pains of sufficient severity, they should be excused from criminal liability for their offense. To what particular drugs do these cases apply? In other words, what drugs do addicts use nonautonomously? What drugs does the state have a good reason to prohibit because of its interest in protecting the autonomy of potential addicts? I have suggested that these questions should be answered by identifying those drugs, if any, that give rise to withdrawal symptoms of sufficient severity that persons of reasonable firmness would not be expected to endure. It is certainly possible to imagine drugs that satisfy this criterion, just as it is possible to imagine drugs that do not satisfy this criterion. In reality, not much imagination is required for the latter possibility. Some addictive drugs clearly fail this test. Caffeine is the best example. The cessation of the use of caffeine unquestionably gives rise to unpleasant withdrawal symptoms (e.g., headaches) in addicts. I assume, however, that persons of reasonable firmness are able to endure these experiences. If the use of caffeine were criminalized, addicts would not be able to excuse their offense by invoking the addiction defense I described in Part I. But the state interest in protecting the autonomy of potential addicts would not provide a good reason to criminalize the use of caffeine in the first place. I

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trust that this example is persuasive in showing that some addictive drugs fail the test for criminalization or for granting an addiction defense. But do any existing drugs actually satisfy this test? It is tempting to try to answer this question by examining the pharmacological properties of various drugs. Indeed, I will discuss these matters shortly. At this point, however, I will mention two issues that render my question difficult or impossible to answer. 1. Thus far, I have fostered the impression that the application of the foregoing case to existing drugs depends solely on the severity of their withdrawal symptoms. This variable, however, provides only part of the answer to the question of whether addicts should be excused for using a given drug. Whether a person of reasonable firmness should be excused for committing an offense rather than resisting a threat depends not only on the severity of the harm threatened, but also on the seriousness of the offense committed. A person should be excused for overtime parking rather than suffering a slap in the face. But the slap would hardly excuse an offense of rape. Thus, we cannot determine whether a given quantum of pain is sufficiently severe to generate an excuse for the use of drugs without taking a stance on the seriousness of the offense of drug use. How serious is this offense? Unfortunately, no theories of the seriousness of crime have enjoyed wide acceptance.42 If positive law is employed as a guide, however, the use and possession of various illicit drugs must be a serious offense indeed, since punishments often are extraordinarily severe.43 Sentences vary with the particular illicit drug used. Punishments for the use and possession of crack, for example, are notoriously more harsh than those for powder cocaine. Should a person of reasonable firmness therefore be expected to endure greater pains from his withdrawal from crack than from his withdrawal from powder cocaine? This question reveals the deficiency in uncritically adopting positive law as an accurate measure of the seriousness of crime. After all, the whole 42

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. 43 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).

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point of the present exercise is to challenge the justifiability of positive law. I do not propose here an alternative device to assess the seriousness of offenses in general and drug offenses in particular.44 Without such a device, however, my case for an addiction defense cannot be applied. Here, then, is yet another unanswered set of questions in the tangle of issues involving the relevance of addiction to criminal liability. 2. In addition, the application of the foregoing case to existing drugs is difficult or impossible because of the empirical facts I mentioned in Part II above. The effects of drugs on users, including the extent and severity of withdrawal symptoms, are not simply a function of pharmacology. In addition, these effects are a function of the set of drugs users and the setting of drug use. I cannot begin to describe here how the expectations, mood, personality, and cultural conditions contribute to the effects of drugs in general and to the severity of withdrawal in particular.45 I conclude only that one cannot simply attribute to a given drug the effects that the drug users of today tend to experience in our climate of prohibition. If this climate were altered, these effects would be likely to change dramatically. This conclusion creates enormous complications for the task of applying my criterion to existing drugs. If the present climate of prohibition should not be used to assess the severity of withdrawal symptoms, what climate should be used? In other words, what set and setting should provide the norm or baseline by reference to which the severity of withdrawal symptoms should be measured? Perhaps this normal set and setting should be idealized. What withdrawal symptoms would persons of reasonable firmness experience by using drugs in an environment that contains the ideal drug policy? Unfortunately, the characteristics of the ideal drug policy are extraordinarily controversial. Moreover, this proposal involves a circularity; the severity of withdrawal symptoms is a crucial factor that must be taken into account in identifying which policy is ideal. 44

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. 45 Again, the classic work – on which countless researchers have expanded – is Zinberg, supra note 37.

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In what follows, I will pretend that these two formidable obstacles can somehow be surmounted. That is, I will assume that we have identified a suitable set and setting to assess the severity of withdrawal symptoms, and that the seriousness of drug offenses has been ascertained. I will conclude with some very brief remarks on the application of my criterion to the most widely used existing drugs.46 The most obvious point to notice is that the foregoing case has no conceivable application to those drugs that do not give rise to unpleasant withdrawal symptoms. Perhaps the clearest such examples are the hallucinogens, most notably LSD. Cessation of use – even prolonged and extensive use – simply does not involve withdrawal.47 Thus, users lack an addiction defense. Perhaps more importantly, any justification for the criminalization of the use of such drugs cannot appeal to the state interest in protecting the autonomy of prospective addicts. Only slightly more troublesome is the case of marijuana, the most widely used illicit drug. Even high-dose users of marijuana rarely experience withdrawal symptoms.48 Those symptoms that occur are mild and transitory; their severity is almost certainly less than or equal to that experienced by persons addicted to caffeine.49 Again, although marijuana “addicts” lack a defense, the state interest in protecting autonomy provides an exceedingly poor rationale for marijuana proscriptions. The case of cocaine is only somewhat more difficult, even when smoked as crack.50 Cocaine does not produce severe physical withdrawal symptoms;51 typically, the cessation of use causes mere 46

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. 47 See Lester Grinspoon and James Bakalar, Psychedelic Drugs Reconsidered (New York: Lindesmith Center, 1997). p. 176. 48 See Lynn Zimmer and John Morgan, Marijuana Myths, Marijuana Facts (New York: Lindesmith Center, 1997), p. 28, especially footnote 12. 49 Id., pp. 28–29, especially footnotes 13 and 21. 50 See Craig Reinarman and Harry Levine (eds.), Crack in America (Berkeley: University of California Press, 1997). 51 See F. Gawin and H. Klebner, “Abstinence Symptomatology and Psychiatric Diagnosis in Cocaine Abusers,” Archives of General Psychiatry 43 (1986).

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anxiety and irritation.52 Still, cocaine use tends to be extraordinarily compulsive. This combination of findings about cocaine led some researchers to draw a distinction between two alleged kinds of addictions – physical and psychological – involving two alleged kinds of withdrawal symptoms.53 The symptoms associated with the cessation of cocaine use – feelings of dysphoria and anhedonia that give rise to a craving – were said to exemplify psychological addiction. I am not confident that the concept of “psychological addiction” is meaningful. In any event, I see no reason to believe that the phenomenon of psychological addiction can provide the rationale for either a defense for cocaine “addicts” or an autonomy-based justification for the criminalization of cocaine use. This point about cocaine allows me to make a more general but very important observation about drug use. The desire to avoid the pain of withdrawal provides a woefully inadequate explanation of why patterns of consumption among users of many drugs – not only of cocaine – tend to be so compulsive.54 Many users would continue to report a craving, and succumb to drug use, even if no physical withdrawal symptoms occurred. Accounts that emphasize the desire to avoid withdrawal distort the phenomenology of addiction from the perspective of most addicts.55 In particular, the hypothesis that persons consume drugs in order to prevent withdrawal cannot begin to explain why current addicts find it hard to quit, or why former addicts find it easy to relapse.56 Many former addicts resume their drug use, even though they have abstained from drug use for a sufficient period of time to no longer experience withdrawal symptoms. These facts about patterns of drug use, however, do not undermine the arguments I have made here. I have not sought to define 52

See Jerome Platt, Cocaine Addiction (Cambridge: Harvard University Press, 1997), Chapter Three. 53 See Ronald Akers: “Addiction: The Troublesome Concept,” Journal of Drug Issues 21(1991), p. 777. 54 See O. Ray and C. Ksir, Drugs, Society, and Human Behavior (St. Louis: Times Mirror/Mosby, 1987). 55 See R. West and M. Gossop, “Overview: A Comparison of Withdrawal Symptoms from Different Drug Classes,” Addiction 89 (1994), p. 1483. 56 R. Wise and M. Bozarth, “A Psychomotor Stimulant Theory of Addiction,” Psychological Review 94 (1987), p. 469.

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addiction, or to provide an accurate explanation of why the typical addict actually uses drugs. I hope only to have identified what explanation of drug use would generate an excuse from liability. Not all addicts are alike. An addict who uses drugs for some reason other than to avoid the pain of withdrawal does not satisfy the subjective component of the proposed addiction defense57 and cannot excuse her drug use by the same rationale that underlies the defense of duress. Ultimately, I take no position on whether it is appropriate to use the term “addict” to describe a person who was clearly addicted at one time, has abstained from drug use for a sufficient duration to no longer experience withdrawal, but begins to use drugs once again. I see no reason to believe, however, that whatever explains his resumption of drug use should give rise to an excuse from liability. I concede that to understand his behavior – or to have any prospects of modifying it – his situation would have to be differentiated from that of the first-time user. Yet the “relapsing addict” has no better defense than the first-time user. Since neither person acts to avoid the pain of withdrawal – a pain that explains why a person of reasonable firmness would do as he did – no excuse should be granted. To what drugs, then, does the foregoing argument apply? The opiates may be the only existing illicit drugs (at least among those that are widely used) to satisfy my criterion.58 Even here, however, the empirical evidence is very hard to assess. Just how painful are the withdrawal symptoms from heroin? Difficulties of devising interpersonal measures of pain are notorious. Perhaps the best way to proceed is to compare and contrast the severity of opiate withdrawal with other unpleasant experiences that persons are likely to have suffered. Two such comparisons are noteworthy. First, opiate withdrawal can be compared with the symptoms of common diseases. The severity of heroin withdrawal is frequently described as roughly comparable to the symptoms of a one-week flu or even a bad cold.59 At worst, these physical symptoms include vomiting, 57

See Part I. 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. 59 S. Tiffany and B. Carter, “Is Craving the Source of Compulsive Drug Use?” Journal of Psychopharmacology 12 (1998), p. 23. 58

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chills, diarrhea, nausea, irritation, insomnia, headache, and the like.60 Second, opiate withdrawal can be compared with withdrawal from drugs that are more commonly used – most notably, nicotine.61 Persons who try to quit nicotine rarely become very ill. But the reported difficulties of quitting heroin and nicotine are not so very different.62 The lengths to which persons are willing to go (or the depths to which they are prepared to sink) to satisfy their craving under conditions of scarcity are somewhat similar.63 These two bases of comparison may help to put the issue in better perspective. Should “persons of reasonable firmness” be expected to endure the symptoms of opiate withdrawal? Or are they excused when they use drugs to relieve them? The case is close. If an addiction defense should actually be recognized to excuse the use of any drug – and if any drug should be criminalized to protect the autonomy of potential addicts – opiates are the best candidate.64

CONCLUSION

I have posed several questions that must be addressed in order to decide, first, whether addiction should be an excuse from crim60 See the accounts in John Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), pp. 15–16. 61 See J. Hughes, S. Higgins, and W. Bickel, “Nicotine Withdrawal Versus Other Drug Withdrawal Symptoms: Similarities and Dissimilarities,” Addiction 89(1994), p. 1461. 62 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. 63 See Henner Hess, “The Other Prohibition: The Cigarette Crisis in Post-war Germany,” Crime, Law & Social Change 25 (1996), p. 43. 64 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.

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inal liability, and, next, whether the state interest in protecting the autonomy of potential addicts provides a good reason to criminalize the use of addictive drugs. In addition, I have identified a number of important and difficult questions that arise in the course of this inquiry. These issues include the nature and value of autonomy, the justice of trade-offs in punishment, the problem of assessing the seriousness of crime, the rationale for the defense of duress, the moral significance of culpability-in-causing considerations, and many others. Ultimately, however, I conclude that the general case I have explored for supposing that addiction is relevant to criminal liability is more likely to fail on empirical than on normative grounds. Department of Philosophy Rutgers University New Brunswick, NJ 08903 U.S.A. (E-mail: [email protected])