this assignment asks you to craft an analytic philosophy paper. Your paper should be between 1,500-
2,500 words long and engage with  this article.What is an analytic philosophy paper? Generally speaking, a philosophy paper aims to persuade the
reader of some philosophical claim by presenting and explaining a convincing argument. Consider the
philosophy papers that we have read this semester. All of the authors’ have some philosophical claim
they want to convince the reader of and offer arguments in defense of that claim.1 For this assignment,
you will be doing just that!
This kind of philosophy paper is not a research paper. You do not need to go out and read a bunch
of philosophy articles we didn’t engage with in class to write this paper. You are practicing and
demonstrating your ability to craft an interesting, original, clear, persuasive philosophical argument.
You are not demonstrating your ability to do a bunch of research into the current state-of-play of a
philosophical debate. This latter skill is important, and one that you will learn if you continue talking
philosophy courses. However, it is not the focus of this assignment.
Your final paper should include the following elements:
1) A Thesis: The thesis is the philosophical claim you want to defend.
The thesis should be in the introductory paragraph and appropriately signposted as the thesis.
You can signpost the thesis with phrases like “In this paper, I will argue...”, “In this paper, I will
defend...”, etc.
Choosing an original, interesting, and manageable thesis is imperative to crafting a good paper.
There are a number of different philosophical “moves” your thesis could make. For example:
1 There is an exceptions: the 1,000 Philosophy introductory articles.
2
Your thesis can be an objection to a view or argument made by one of the authors
we’ve read. E.g. “In this paper, I will object to Dworkin’s argument on the grounds
that...” or “In this paper, I will argue that Kuhse is mistaken when she claims that...”
Your thesis can be a novel defense of a position or theory we have encountered in
class. E.g. “In this paper, I will defend the view that physician assisted suicide is morally
impermissible...”
Your thesis could concern a philosophically important ambiguity in one of the articles
that we’ve read. E.g. “In this paper, I argue that the concept of personhood relied on
by Kuhse, is problematically ambiguous. After outlining the different possible
conceptions of personhood, I show ...”
Your thesis could substantively extend or expand on a philosophical concept
introduced by one of the texts: E.g. “In this paper, I will argue that there is a distinct
notion of disease that can accommodate objections to the disease model of
addiction...”
And there are more...If you have ideas but aren’t clear on how to organize them into a thesis,
come talk to me!
Note the use of the first person! Using the first person is totally appropriate in a philosophy
paper!
2) Relevant Background: The paper should explain any relevant background information to the
reader.
For example, say your paper’s thesis is: “In this paper, I will argue that advanced directives are
morally binding...”. If this is your thesis, you are going to need to explain what an advanced
directive is to the reader before jumping into your argument.
3) An Argument: The paper should present and explain an argument in defense of your thesis. The
argument is a series of claims designed to convince the reader that your thesis is true.
Remember: a good argument isn’t merely a list of unrelated reasons that all generally point in
the direction of the conclusion. In a good argument the premises work together to show that
the conclusion is true. Moreover, all the arguments premises are justified to the reader, i.e.,
the reader is given reasons for believing the truth of the premises.
3
4) An Anticipated Objection and Reply At some point, the paper should anticipate, present, and
explain an objection to the paper’s original argument. The paper should then defend the argument
and thesis against that objection.
Be very precise when explaining the objection. Don’t merely present the considerations you
expect an objector to raise. Explain clearly how those considerations could undermine the
argument. Do they weaken a particular premise? Do they put pressure on the claim that the
premises entail the conclusion?
Make sure that the response to the objection is consistent with the paper’s original thesis and
argument. Again, be precise. Don’t just present reasons that counter the objection, explain
clearly how those reasons serve as a defense against the objection.
5) Substantive Engagement with at least 1 of the Assigned Articles:
For this paper, substantive engagement with an article requires presenting and explaining
another author’s view accurately. The paper should not only state what the other author
believes but explain why they believe it.
Substantive engagement with an article can occur at a number of different points in the paper.
Perhaps one of the articles we read offers an objection your paper’s original argument.
Perhaps one of the articles we read can we used in your reply to an anticipated objection.
Perhaps your original argument expands on the claims made by one of the authors we have
read. Any of these forms of engagement would be appropriate.
6) An introduction and conclusion
Length: 1500-2,500 words. 
Appropriately cite any material that is not your own work. You do not have to use any citation
style in particular, but please be consistent in your formatting. When citing direct quotations
include page numbers Clarity is key. My suggestion is to keep the language simple. You can use short declarative sentences.
Don’t needlessly thesaurus-ize your writing.2
Here is a silly way I like motivating clarity: Write your paper so clearly that the reader would
have to be maliciously obtuse not to understand what you are saying. Without being
condescending to your reader, hold their hand and lead them exactly where you want to go.
Say exactly what you mean. Don’t lead them astray by discussing irrelevant information.
Use examples! Illustrating points with detailed examples is a great way of helping your reader
out.
Empirical claims should be cited using reputable sources.
The Introduction:
2 I really can’t stress this enough. There is nothing wrong with using the same words throughout the paper. When you
are using a word in a technical way, it is really important that you refrain from varying your language. I often find that
students run the risk of saying things that are (strictly speaking) false when they are trying to vary their language choices
too much. Here is a common example: Students often seem to think that is bad to use the locutions “the author argues”,
“the author claims”, “the author states” frequently. They often end up writing “the author implies” or “the author alludes”
even when explaining a point the author explicitly discusses in the original text. In varying their language, they end up
misrepresenting an author’s position. For some reason, it’s common for intro philosophy students to start their paper with
unsubstantiated generalizations or statements about how a philosophical issue has been
debated “since the beginning of time”. Don’t do this. Here are three reasons why: (1) At this
point, it is cliché. Our introductions should be attention-grabbing and intriguing. Clichés aren’t
really attention grabbing. (2) In my experience, the “since the beginning of time” claims are
usually false. They are at least very difficult to substantiate. (3) It is not clear how a claim like
this serves the project of a short philosophy paper. Short philosophy papers usually defend
specific, narrow theses. As such, claim this general likely won’t be relevant.
How should you start your paper? Dive directly into the topic. For example, this would be a
solid start to an intro paragraph:
“Utilitarians are deeply committed to impartiality. In other words, in determining the
morally right action, Utilitarians argue that we must give equal moral consideration to
every persons’ wellbeing...In this paper, I argue that [insert thesis here].” Then,
proceed to give a roadmap, or mini outline of the paper: “After explaining the core
features of Utilitarianism, I then...”
Here’s one important function of your introduction: it sets up the “playing field” and the “goal
posts” of your paper. What do I mean by this? Let’s say I was trying to get someone to play
a game with me. First, I might try and get them excited about playing the game with me. I
might highlight what it fun and interesting about the game and show them why they should
want to play. Then I might then explain to them what success in the game looks like, showing
them where the goal posts are and how they work. I know this may seem like a stretch, BUT:
an introductory paragraph for a philosophy paper can work in a similar way. In the
introductory paraph, philosophers want to get their readers excited about a debate or idea.
They give the reader a sense of why they should care about the debate – what’s at stake.
Then, they explain how their paper works as a productive or successful “move” or “play”
within that debate. The paper can make a successful move by showing that a common intuition
is false, by showing that a theory is vulnerable to a formidable objection, etc. Here is why I
think it is important to think about the introduction in this way: the introduction can be a
place where you as the author get to establish the terms on which your paper is understood.
Final Paper Advice:

make sure it includes all of the following:
An easily identifiable thesis.
Relevant background information.
An original argument.
An anticipated objection (that objects to the original argument).
A response to the anticipated objection (that defends the original argument).
Substantive engagement with at least one of the assigned articles.
An introduction.
A conclusion.
A title
Appropriate citations. 
Paper Structure
Philosophy papers have many different structures. I encourage you to think about structure-choice in the
following way: what presentation of the material will best help my reader understand my thesis?
That said, let’s go through a couple of different possible paper structures. The following three options are
not exhaustive! There are many other ways of going!
2
Paper Structure A
This final paper can directly build on the structure we have practiced in previous assignments in the class. The following quotes are only examples on what to do, dont actually include hart in this paper.
Say your paper’s thesis is crafted in opposition to an author we have read this semester. Here is an example
of this kind of thesis: “Hart argues that understanding addiction as a brain disease promotes social injustice. In
this paper, I will argue that this view is implausible because...”
Here is how we could structure that paper:
Section #1: Introduction
Section #2: Hart Argument Reconstruction
Reconstruct Hart’s view. Importantly, this section should not just describe his conclusion, but explain to
the reader the reasons Hart offers in defense of that position.
Section #3: Your Original Argument (An Objection Against Hart’s View)
Present and explain your original argument!
Section #4: Anticipate an Objection to Your Original Argument
Imagine: What Hart would say in response to the objection to his view raised in section #3? How would
he try and defend his view (reconstructed in section #2)?
Section #5: Respond to the Anticipated Objection
How would you defend your original argument (crafted in section #3) from the anticipated objection
(discussed in section #4)? How would you counter the objection you anticipated Hart would raise?
Section #6: Conclusion
A Note on Signposting
As you can probably tell from the sample structures above, this paper requires a lot of dialogical “back-and-
forth”. Because of that, it is really important to clearly indicate to your reader what you are doing at any given
time. Are you presenting and explaining your own view? Are you anticipating an objection? Responding to an
objection? Are you describing someone else’s view? It should always be clear to the reader how the idea under
discussion relates to the project’s thesis.
You are welcome to label or title your sections in your final paper submission.
You are more than welcome to use the first-person in this paper. Indeed, it can be a really helpful way of
signposting!
You could indicate that you are anticipating an objection by using language like the following:
• “One might object to my view on the grounds that...”
• “An opponent could disagree with my argument by claiming that...”
• “You might be concerned that my argument fails to...”
You could indicate that you are responding to an objection (in defense of your original argument) by using
language like the following:
• “I counter this objection by arguing...”
• “In response to this objection, I contend that...”
• “I argue this objection can be rebutted. Consider...”

We talked about this in preparation for the argument reconstruction + analysis assignment: An argument isn’t merely a
conclusion; rather, an argument is a set of premises (i.e., reasons) that work together to convince the audience that a
particular conclusion is true. A targeted objection to an argument isn’t merely a completely separate, independent
argument for an incompatible conclusion. Rather, a targeted objection to an argument comments specifically on the way
in which the premises in that particular argument work together to establish its conclusion. Is one of the target-
argument’s premises false? Are the premises insufficient to establish the truth of the conclusion?
Okay here is tne paper I want you to write the objection on: COMPELLED OR CAJOLED?
The Criminal Responsibility of Opioid Addicts
STEPHEN J. MORSE
Many have argued that opioid addicts have no meaningful choice about
whether to use and so cannot be held criminally responsible for their
actions. This is simply not true.
n 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 ling 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
rst 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 rst 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,
ned $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-ts-all constitutional defense on the states, which
are usually granted a great deal of deference by the Court concerning the
denitions 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 insufcient 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
T
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 nally 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 sufcient 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?
o answer these questions, the rst issue to be addressed is the meaning of
addiction. The American Psychiatric Association’s inuential 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 dene 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, rst, 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 difcult for addicts to control their use, much
as it is difcult to break many bad, strong habits, but don’t we expect people to
exert control even over difcult 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 at 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 specic nature that makes stopping difcult, 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 difculty 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 nally 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 testied that although he had
some control over taking a rst 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-ts-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
difcult 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 justied policy. Addicts are not puppets controlled by
Stephen J. Morse, J.D., Ph.D. is Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and
Law in Psychiatry at the University of Pennsylvania.
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.
Published on: November 6, 2018