In 2016, Julie Eldred, 26 years old, was arrested for stealing and fencing jewelry. This was her second theft offense and she had stolen both times to buy fentanyl, to which she was addicted. She was quickly arraigned and admitted the crime. The judge placed Eldred on probation with the condition that she remain drug-free and submit to randomized drug testing. This is a routine condition of probation and parole for addicted criminals and criminal defendants diverted to drug court programs.
Ten days after being placed on probation, Eldred tested positive for fentanyl. No in-patient hospital treatment bed was available, so the same judge revoked her probation and sent her to prison. After 11 days in prison, an in-patient bed was found, and she was discharged from prison to the hospital.
After her release, Eldred challenged the constitutionality of imprisoning her for her probation violation. She claimed that because she was an addict and relapse is part of the course of the disease of addiction, it was cruel and unusual punishment to imprison her for conduct that she was helpless to avoid.
The Massachusetts Supreme Judicial Court quickly decided to hear the case, which immediately attracted intense interest from the local and national media and from professional groups. The New York Times had an almost full-page editorial about it entitled, “If Addiction Is a Disease, Why Is Relapse a Crime.” (Of course, no one claimed that violating probation is a crime, but newspapers must be sold.) Virtually all the interested professional groups, such as the Massachusetts Medical Society, the American Academy of Addiction Psychiatry, and the Massachusetts Society for Addiction Medicine, supported Eldred’s claims by filing amicus briefs. The only exception was the National Association of Drug Court Professionals, whose jobs depend on courts using staying clean as a condition for release. If diverted defendants fail this requirement and are dropped from the specialty court program, they are returned to the criminal justice process for resolution. (Full disclosure: Three other addiction experts, Gene Heyman, Ph.D, Scott Lilienfeld, Ph.D., Sally Satel, M.D., and I co-authored another amicus brief in support of Massachusetts’s position that revocation did not violate the constitution, a brief joined by seven other addiction experts.)
Claims like Eldred’s have a long constitutional history. In a 1962 case, Robinson v. California, the United States Supreme Court was asked to decide whether punishing someone for being an addict was cruel and unusual punishment. The Court held the statute unconstitutional, but there were seven separate opinions and the basis of the holding was unclear. Two interpretations were dominant. The first was that punishing someone for a status, such as having red hair or being an addict, was unconstitutional because no harmful act was involved. The second was that addiction was involuntary behavior, and it is unconstitutional to punish people for conduct they cannot control. There was also a third view that the state cannot punish people for having a disease, but that view has been conclusively shown to collapse into one of the first two.
The debate was settled by Powell v. Texas in 1968. Leroy Powell was a chronic and severe alcoholic who had been arrested for being drunk and disorderly in public about 200 times. Tried yet again for that offense, Powell used expert witness testimony to establish that being drunk and disorderly was a compulsive symptom characteristic of his disease of chronic alcoholism. He was convicted, fined $50 and appealed immediately to the Supreme Court of the United States because no other court had appellate jurisdiction. (This was clearly a test case.) His claim on appeal was that public drunkenness was compelled by his disease and therefore it would be unconstitutionally cruel and unusual to punish him for this allegedly involuntary behavior. In short, Powell was asking the Court to create a constitutionally-mandated defense of involuntariness or compulsion that would apply in all cases because there is no way in principle to limit the defense to those behaviors that are the basic criteria for the disease. Any criminal behavior that is genuinely involuntary for any reason would have to be excused.
Powell’s claim was plausible on its face, and he was a sympathetic defendant, but a plurality of the Supreme Court rejected his argument in an opinion written by Justice Thurgood Marshall. Justice Marshall gave many good reasons, including hesitance to impose a one-size-fits-all constitutional defense on the states, which are usually granted a great deal of deference by the Court concerning the definitions of offenses and defenses, and the fear that the liberty of people with alcoholism might be more impaired if they were responded to by the civil justice system. These are still valid worries. For our purposes, however, more important was Justice Marshall’s conclusion that the medical science was insufficient to justify characterizing Powell’s conduct as a compulsion symptomatic of his disease.
Justice White concurred in the holding on the ground that Powell was distinguishable from Robinson because in the former the defendant was being punished for conduct independent of Powell’s alcoholism despite Powell’s claim to the contrary. He also noted that if it is unconstitutional to punish someone for the status of being an addict, it seemed equally objectionable to punish them for the conduct—using the addictive substance—that is a fundamental criterion for characterizing the person as an addict.
Powell thus established that Robinson was limited and no state or federal court since has been willing to establish a general “involuntariness” or “compulsion” defense, whether or not the alleged compulsion is produced by an underlying disease. Some appellate judges have been willing to grant such a defense, including for more serious crimes such as armed robbery, that supposedly may be part of the pattern of the defendant’s disease of addiction, but these judges have never been able to command a majority opinion. This is where the law on the responsibility of addicts has stood since 1968. Addiction or any of its arguable criteria, such as compulsion, is not the basis for a defense to criminal conduct.
Julie Eldred attempted to succeed where other addicted defendants had failed. Her claim was largely indistinguishable from Powell’s. True, the behavior she was being “punished” for, relapsing by using again, is not independent of her disorder whereas Powell’s conduct was, but the claim of compulsion based on a disease is identical. She tried to upend settled legal doctrine for half a century on the ground that the current science of addiction is finally able to establish that addiction is genuinely a disease and that addicts are compelled to relapse. In the language of the National Institute of Drug Abuse (NIDA), the Federal government’s foremost addiction authority and research funder, addiction is a “chronic and relapsing brain disease” and relapse (use) is a compelled symptom of it, a characterization Eldred embraced.
A unanimous Massachusetts Supreme Judicial Court rejected Eldred’s constitutional claim in the summer of 2018. In a legally narrow opinion, the court held that on the state of the judicial record before it, they could not conclude that Eldred’s use of fentanyl was involuntary in the legal sense, and thus her constitutional claim had to fail. The Court seemed to leave open the possibility, however, that a future case might build a sufficient record to support such a claim. But for now, the settled law is still settled.
There is no doubt that other addicted defendants will attempt to use the current science of addiction to justify a claim that addicts are not responsible for the actions of possessing and using the substances to which they are addicted. Have Federal and state courts, Congress, and the state legislatures been as unfeeling and harsh as the New York Times editorial quoted above suggests? Is the legal treatment of addiction fair and optimum social policy? Should future addicted defendants prevail or is the present policy reasonable?
To answer these questions, the first issue to be addressed is the meaning of addiction. The American Psychiatric Association’s influential Diagnostic and Statistical Manual of Mental Disorders, DSM-5, does not use the term, but instead lists individual “substance use disorders” depending on the problematic substance involved. Nonetheless, most addiction researchers define the term to mean something like persistent drug seeking and using, especially “compulsively” or with craving, in the face of negative consequences (without being clear whether these consequences are subjectively recognized or simply objectively exist). There are no validated biological criteria for addiction.
The conclusion that addicts can’t help using, that they are compelled to use, underlies the claim that they are not responsible and should be excused. How can it be fair to blame and punish people for conduct they cannot control? But what if the conclusion about loss of control (or any of the synonyms, such as having “no choice”) is highly contestable? Then perhaps legal policy would not look so objectionable.
The meaning of compulsion is unclear and is often based on a common-sense inference. The addict’s persistent seeking and using is accompanied by craving (but not always), negative interpersonal, medical, occupational, and legal consequences (but not always), subjective feelings of wanting but not liking the substance (but not always), and the addict’s claim that he wants to quit but cannot. After all, why would he continue to use under these dreadful circumstances? It must be true, it is concluded, that the use “must be” “compelled” and the addict is therefore unable to quit using.
Observe, first, that the the primary, utterly necessary criteria for addiction are intentional actions—persistent seeking and using of substances. These are not pure mechanisms, like spiking a fever in response to an infection or metastases of a primary tumor. Injecting or inhaling a controlled substance, for example, is not a muscular spasm. They are intentional human actions and human action can always be evaluated morally, unlike a pure mechanism, which is not subject to potential moral evaluation. We don’t blame a hurricane for the destruction it wreaks or the infected person for showing a fever, but we do blame people who commit arson. Why can’t we blame and punish addicts for using substances because, unlike mechanisms, they are people who have choices or control over their actions? It may be fearsomely difficult for addicts to control their use, much as it is difficult to break many bad, strong habits, but don’t we expect people to exert control even over difficult choices when they have good reason to do so.
At this point, proponents of excusing addicts for at least possessing and using make the following major counter-argument. The gist, already alluded to above, is that addiction is a disease—indeed, a chronic and relapsing brain disease—and using is an “involuntary” sign of it. I believe that various parts of this argument are essentially contestable and sometimes flat out wrong.
Even if addiction can be usefully considered a disease, and many dispute this, it is not a disease like any other. Further, it assumes the conclusion to be proved to say that actions that are a sign of addiction “must be” involuntary just because they are a sign of a disease. Although intentional human action can contribute to both the cause and cure of many diseases, most diseases cannot be “cured” by a simple decision to stop the disease process because most signs and symptoms of diseases are not actions; they are mechanisms. In contrast, if the addict decides to stop using and acts on that decision for a non-trivial time period, the person is no longer diagnosable as an addict. My intentional action of taking an antibiotic may cure an infection, but I didn’t cure the infection directly by my action. The addict directly cures the addiction by intentionally not using. Addiction may be a disease, but it does not mean that addicts have no or little choice over the action of using. Lack of choice or control must be proven independently and not simply by assertion. Even if addiction is a disease and use is a sign of it, perhaps addicts do have substantial choice about whether to use, even if it’s a hard choice to give up using.
If persistent use of substances changes the brain, doesn’t this mean that addiction is a brain disease, after all, and that addicts should therefore be excused? Of course, persistent drug use changes the brain, but every experience changes our brains. Reading this article or learning a new language changes your brain. If brain changes were indicative of disease states and lack of control, all human behavior would be the symptom of a disease and no one would be responsible for any behavior. This argument proves too much.
But what if the changes are of a specific nature that makes stopping difficult, say, by usurping the usual reward systems that make activities necessary for survival like eating and procreation pleasurable and recruiting these systems for drug use? We know that it is not easy for addicts to stop using and it would be entirely unsurprising if some of the difficulty stemmed from altered neural anatomy or physiology. When addicts don’t quit using, is it because they cannot stop or simply will not stop? The empirical evidence on this question strongly suggests that most and perhaps all addicts have substantial choice about whether to use.
After a number of unsuccessful attempts to quit using, most addicts quit permanently without addiction treatment, although they may be assisted by family and friends and by organizations such as AA. Although the evidence for why they finally quit is anecdotal, it all points to them discovering a good enough reason for them to give up using, such as shame, the inability to look after family, the desire to live a better life, and similar good reasons. The high rates of spontaneous ceasing to use coupled with the reasons for doing so are very inconvenient facts for the chronic and relapsing brain disease model.
Virtually all the studies that have been done that show high rates of relapse involved addicts in treatment for addiction, but these are not a random sample of addicts. Addicts in treatment disproportionately have another psychiatric diagnosis and it is impossible to know whether addiction alone accounts for the relapse. The same subjects are also the data base for the studies that show differences between the brains of those with and without addiction, so once again we don’t know if addiction alone accounts for the brain changes.
Addicts also respond to incentives. Imagine that I give a heroin addict really good stuff and the means to inject, such as a clean needle, but I credibly threaten to kill the addict immediately if he uses. The addict won’t use (unless he also desires to die). Try stopping the unfortunate Parkinson’s disease sufferer from shaking by the threat that he’ll be killed if he does shake. The usual response to such arguments is to concede that of course addicts have “some” control, but that the amount of such control is effectively trivial. Again, the evidence does not support this assertion. Some treatment programs, such as those for addicted physicians and airline pilots, as well as probation and parole programs and drug courts, all use the threat of sanctions to deter addicts from relapsing, and most do; the sanction gives them a good enough reason to quit. Addicts are not automatons. They are acting human agents who can respond to reason despite their addiction. Finally, even if there are some addicts who are otherwise responsible but cannot control their substance use, we cannot reliably identify this sub-category.
Leroy Powell himself furnishes an excellent concluding example. On the morning of his trial, Powell had been given a drink, presumably by his counsel to help him avoid the shakes. Powell’s expert psychiatrist had testified that although he had some control over taking a first drink, once he had that drink he was powerless to stop drinking. Powell’s cross-examination at trial, which was quoted by Justice Marshall in his opinion, disclosed, however, that Powell was not drunk at his trial. When asked why not, Powell responded that he didn’t keep drinking because he knew he had to come to court and that he would have been unable to do so if he kept drinking.
There are attractive theories suggesting that at the time of possessing and using, when addicts are in states of peak desire for the substance, many may not be responsible for their conduct. But these theories run afoul of the following consideration. When not in states of peak desire, when quiescent, addicts are fully responsible agents who know that if they don’t seek help or take other measures to deal with their addiction, they will use and get into trouble again. It is their duty at that point to take such steps, or they deserve to be held responsible if they use later in a state of non-responsibility. A person suffering from epilepsy who knows that his seizures are not well-controlled by medication should not get behind the wheel of a car. If he seizes while driving and causes a fatal accident, he will be held responsible even if he was “blacked out” at the time. Now, some addicts may be so completely mentally disabled by their lives of addiction and consequent deprivation that they are simply not responsible most of the time and should not be held responsible for use (or most anything else that they do), but most addicts are not like that. Most addicts can fairly be held responsible when they possess and use because they had the capacity to avoid doing so by potential earlier behavior.
In short, the available evidence does not support the oft-repeated claim that addicts cannot control use, and it would be unfair to blame and punish them for it. Perhaps future discoveries of the various disciplines that investigate addiction will challenge this conclusion, but for now Justice Marshall’s dictum in Powell still applies to the claim by addicts like Joyce Eldred that they must be excused for using. They are asking for too much based on too little evidence.
In the current state of understanding, courts should not limit legislatures by imposing a one-size-fits-all, constitutional excuse for addicts. As the legislatures struggle to respond to addiction, including the opioid epidemic, using criminal blame and punishment is one potential tool. Furthermore, imposing the defense might well have unintended negative consequences. For example, it would be difficult to limit the defense simply to use by those on probation and parole or to defendants charged with possession or use alone. Recall that sympathetic judges in the past have thought the logic of the excuse should apply to any criminal behavior that is a compulsion symptomatic of an individual defendant’s addiction. The effects on the plea-bargaining process, which adjudicates roughly 98 percent of Federal criminal cases and 94 percent of state cases, would be immense and uncertain. Addicted defendants might be treated even more harshly.
Having defended the current legal regime of permitting the state to blame and punish addicts for possession and use, let me be clear that I don’t think the current regime is optimal. For example, sending Joyce Eldred back to prison, where substance treatment services are extremely limited if available at all, was not the best response for her or society. At the very least, there should be adequate treatment services in jails and prisons, including methadone maintenance and medically assisted treatment (MAT) in general. And a hospital bed would have been a better place for her.
More broadly and basically, I think legislatures would be wise to decriminalize possession of small amounts of substances for personal use, whether by addicts or others, and to adopt a public health stance towards addiction. This is already beginning. Marijuana possession is being decriminalized by legislation and by permissive law enforcement processes. Very few inmates are in prison for simple possession of substances generally. Finally, to fully support the argument that most addicts can fairly be held responsible because they have a duty when quiescent to take steps to prevent further use, the state has a duty to make more adequate treatment services available in the community so that addicts who need assistance really do have viable alternatives. In addition to strengthening the argument, it is also the right thing to do.
Much more could be said about the optimal legal response to the immensely complex problem of the opioid addiction epidemic and of addiction in general, but excusing addicts is not a justified policy. Addicts are not puppets controlled by their neuronal strings. As those who treat addicts know, addicts must be encouraged to take responsibility for themselves and to exercise the self-control they undoubtedly possess.