Steven Morse (University of Pennsylvania Law School) has published "Criminal Law and Addiction" on SSRN. Here is the abstract:
There is a debate among addiction specialists about the degree to which addicts can exert control over seeking and using substances and about other behaviors related to addiction. Some think that seeking and using are solely or almost solely signs of a disease and that addicts have little choice about whether to seek and use. In contrast are those who believe that seeking and using are constrained choices but considerably less constrained on average than the first group suggests. This group is also more cautious about, but does not reject, characterizing addiction as a disorder. There is evidence to support both positions. There is a third group who believe that addiction is simply a consequence of moral weakness of will and that addicts simply need to and can pull themselves up by their bootstraps. The empirical evidence for the moralizing third view seems weak, although such attitudes play a role in explaining the limited role the criminal law accords to addiction. This chapter demonstrates that existing Anglo-American criminal law is most consistent with the choice position. It also argues that this is a defensible approach that is consistent with current science and with traditional justifications of criminal blame and punishment.
The chapter first discusses preliminary issues to avoid potential objections that the discussion adopts an unrealistic view of addiction. It then provides a general explanation of the responsibility criteria of the criminal law and briefly addresses false or distracting claims about lack of responsibility. Then it turns to analysis of the criminal law’s doctrines about addiction to confirm that the criminal law primarily adopts a choice model and that addiction per se plays almost no role in responsibility ascriptions. It concludes with a general defense of present doctrine and practice, but briefly suggests beneficial liberalizing reforms.
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