Penn Law professor Stephen J. Morse and 11 other experts on addiction have filed an amici curiae brief in the Commonwealth of Massachusetts Supreme Judicial Court case Commonwealth v. Julie Eldred. The brief was written by Morse and three co-authors: Sally Satel, MD, an addiction psychiatrist, resident scholar at the American Enterprise Institute and lecturer at Yale University School of Medicine, and psychologists Gene Heyman, PhD, of Boston College and Scott Lilienfeld, PhD, of Emory University. Morse and Satel have also published an op-ed(subscription required) based on the brief online and in print in the Wall Street Journal Monday, October 2.
This important case addresses the question of whether a probationer may be required to remain drug free as a condition of probation when the probationer suffers from Substance Use Disorder (addiction). The probationer claims that she cannot control her drug use, therefore, she cannot be expected to refrain from it as a condition of probation. The legal basis for the claim is that revoking her probation for this reason is unconstitutional cruel and unusual punishment under both the state and federal constitution.
Eldred’s claim is being supported by virtually all the relevant professional groups, such as the American Academy of Addiction Psychiatry. The only other amicus that supports the Commonwealth, in addition to the brief by Morse and co-authors, was filed by the National Association of Drug Court Professionals. The case has received wide attention.
In their brief, Morse and his fellow addiction experts argue that the brain disease model of addiction does not account for the scientific and clinical data that show that addicts have the capacity to respond to incentives and reasons. They further argue that ruling in favor of the probationer in this case would have significant implications for criminal justice.
Morse is the Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and Law in Psychiatry. He is also the Associate Director of the Center for Neuroscience and Society. His research examines problems of individual responsibility and agency.
“We show that despite claims that the [brain disease] model is “generally accepted,” it is in fact highly contested and exceedingly controversial in the scientific community,” Morse and his co-authors write.
While the brain disease model focuses on the changes to the subject’s brain, they explain, not all brain changes are the same. The authors of the brief give the example of learning a foreign language: learning French and addiction both cause brain changes, but one is obviously very different from the other. The occurrence of brain changes, they note, does not signify a disease state. Nor do such brain changes mean that seeking and using drugs is involuntary.
Rather than focusing exclusively on neurobiology, the co-authors write, “there is greater value in viewing addiction as a multifaceted behavior that operates on several levels at once, including molecular function and structure, brain physiology, motivation, personality, the psychosocial environment, culture, and social relations.”
Each level has elements that contribute to excessive drug use, they write, as well as to avenues to control addiction. “There is no reason to privilege one level of analysis above all of the others unless doing so enhances our ability to respond effectively.”
The brief argues that the necessary and primary criterion for diagnosing addiction — persistent seeking and using drugs, often despite negative consequences — is intentional human action. Addiction can be altered by choice, meaning that addicts retain the capacity to respond to incentives and reasons. They are not addicted if they choose not to persistently seek and use drugs. In contrast, the symptoms of conventional brain diseases such as Alzheimer’s and multiple sclerosis do not respond to reasons and incentives, they explain. “Addiction may narrow addicts’ focus and reduce their ability to take pleasure in non-drug experiences, but it does not turn them into automatons or slaves to their desires.”
Most addicts quit on their own without treatment because of the accumulation of negative effects of drug use, they write, which does not match with model of addiction as purely a brain disease. Most treatment programs use incentives to treat addiction, which is called contingency management. A wealth of data show that these programs work, which proves that addicts can respond to reasons and incentives.
By accepting the probationer’s claim, the implications for the criminal justice system would be profound, the co-authors write. The state would lose the ability to sanction addicts who violate their parole or probation, which is a powerful incentive for addicts to remain drug-free. The inability to impose sanctions would also increase recidivism and imperil, or even cripple, diversion programs for non-violent crimes. A constitutional decision would tie the hands of the probation and parole authorities, denying them the flexibility to impose conditions that have been proven to work. It could open the door to addicted defendants charged with illegal possession being acquitted by reason of insanity, which could lead to sentences of commitment much harsher than the consequences of conviction. Finally, there is no guarantee that the defense could not be extended to other crimes that are allegedly compelled symptoms of the disease of addiction, such as larceny or burglary, which are often committed repetitively to support a drug habit.
“[T]he best scientific and clinical data are strongly at odds with the view that addicts are unable to choose not to use substances,” Morse and his co-authors conclude. “We believe that a decision in favor of the probationer could have significant, even devastating, implications for the future of treatment-based approaches to criminal justice as well as for criminal responsibility more generally.” As Justice Marshall wrote in Powell v. Texas (1968) rejecting Powell’s claim that public drunkenness was a compelled symptom of his disease of alcoholism and therefore it would be unconstitutional to punish him for it, the claim “goes much too far on the basis of too little knowledge.” This is still true, according to the brief.