Timothy P. O'Neill

But I am making an exception in today's column. The article in question concerns the role of criminal law in dealing with addicts and addiction. It is written by Stephen J. Morse, the Ferdinand Wakeman Hubbell Professor of Law and a Professor of Psychology and Law in Psychiatry at the University of Pennsylvania. The title of the article is ''Addiction, Genetics and Criminal Responsibility,'' 69 Law & Contemporary Problems 165 (2006). (The article may be downloaded at the Social Science Research Network Web site, www.ssrn.com).

But don't take my word for it. The article came to my attention through a recent opinion by Judge Gilbert Merritt of the 6th U.S. Circuit Court of Appeals, who referred to it as ''the most intelligent, scholarly discussion of criminal responsibility for addiction that I have read.'' U.S. v. Eversole, 487 F.3d 1024, 1036 (Merritt, J., dissenting).

I know I do not have to convince you of the prevalence of substance abuse and addiction among those involved in the criminal justice system. A 2003 study showed that 73.9 percent of adult male arrestees in 39 cities tested positive for alcohol or at least one of nine controlled substances; 37 percent had engaged in the heavy use of controlled substances and 39.1 percent were at risk for drug dependence; 47.9 percent had engaged in heavy drinking within the past 30 days and 28.6 percent were at risk for alcohol dependence. See Zhiwei Zhang, National Opinion Research Center, ''Drug and Alcohol Use and Related Matters Among Arrestees,'' tables 3, 9 and 10 (2003).

Morse begins by setting out the two polar arguments concerning the criminal responsibility of addicts: either they are puppets pulled by the strings of a biological disease with no control over their behavior, or they are merely people with a moral weakness who should bear complete responsibility for their behavior. He rejects both as being overly simplistic.

He rejects the disease model because he believes it does not take into account the fact that many addicts indeed do decide to quit. This makes addiction quite different from our usual perception of a disease.

As Morse writes, ''People do not stop being diabetics, for example, simply by deciding that their pancreases should produce more natural insulin, nor does cancer abate because people have good reason to be free of this terrible disease.'' At 169, note 9. On the other hand, the addict ''has an exceptionally powerful desire" a craving " to consume the addictive substance.'' At 176. ''The question, then, is how to assess the responsibility of an agent acting intentionally and unlawfully, but apparently compulsively in response to cravings.'' At 178.

Morse is adamant that addicts do in fact commit ''acts'' as defined in criminal law: ''The criminal actions of addicts are in fact actions, not mechanisms, even if they may also be properly characterized as signs of disease or brain pathology. The agent is not an addict unless that person seeks and uses the drug. And when she seeks and uses, she acts. She is not legally unconscious, even according to the most extravagantly narrow definition of action, and she surely acts intentionally.'' Id.

Although Morse does not deny that addicts should be responsible for most criminal behavior motivated by addiction, he does contend that addiction can in some cases affect the addict's ability to make rational decisions: ''An addict who burgles, robs or kills surely forms the intent to do so. In the narrow legal sense, most addicts have the true purpose to engage in their drug-related conduct. If they deserve mitigation and excuse, it is because they are not fully rational, not because they lack the mental state required by the definition of the offense.'' At 193.

What should be done? Morse offers three proposals.

First, relying on the model of extenuating circumstances reducing murder to voluntary manslaughter (or, in Illinois, second-degree murder), he argues for a ''limited, generic partial excuse of 'partial responsibility.' '' At 197. Morse contends that juries could make the same judgments about mitigation for other crimes that they routinely make in murder-or-manslaughter cases. He thus proposes a general, partial affirmative defense that would be reflected in a special jury verdict of ''guilty but partially responsible.'' And unlike the sham ''guilty but mentally ill,'' this verdict would result in a reduced sentence.

Second, he argues, states should be allowed leeway to use the leverage of the criminal justice system to induce an otherwise unwilling prisoner to enter a treatment program. He analogizes to the U.S. Supreme Court's approval of a state offering incentives to convince prisoners to enter a treatment program for sex offenders. McKune v. Lile, 536 U.S. 24 (2002).

Third, just because addicts' acts can be treated as criminal does not mean that they should. Morse does not argue for decriminalization of all drug laws; however, he believes that the decriminalization of possession of small amounts of drugs for personal use might reduce both drug-related harms and criminal justice costs.

Morse analogizes to the American experience with alcohol. In the 1920s, the nation learned that Prohibition not only did not work it also spawned a host of other criminal problems. Today we focus not on prevention of drinking, but rather prevention of criminal acts caused by drinking, such as drunken driving.

Morse comes out strongly for limited decriminalization coupled with more treatment programs. As he concludes, ''[A]lthough the criminal justice system might play a useful role in responding to addiction-related action, non-criminal, non-judgmental interventions also should play a substantial role. The criminal justice system response should be limited and reformed to enhance the potential efficacy of treatment approaches.'' At 205.

Merritt used Morse's analysis in his dissent in Eversole. Darrell Eversole was a 44-year-old addict sentenced to almost 30 years in prison for the manufacture of methamphetamine. Merritt argues that for too long the federal courts have ignored provisions in the U.S. Code that mandate that a sentence should be ''not greater than necessary'' and that the sentencing court should provide for ''needed medical care or other correctional treatment.'' 18 U.S.C. 3553(a)(2)(D).

Sentencing judges have ignored these statutory provisions because the U.S. Sentencing Guidelines specifically forbade a downward departure based on drug or alcohol dependence. Section 5H1.4. Merritt contends that now that the guidelines have been made merely discretionary (see U.S. v. Booker, 543 U.S. 220 (2005)) the federal courts need to give serious consideration to the U.S. Code provisions on mitigation.

Merritt concludes his dissent with a thought that could have come directly from a defendant's brief: ''If the federal judiciary is to impose just sentences after Booker, it must extricate itself from the prevailing mind set under the guidelines that includes almost all conceivable enhancements and aggravators while excluding from consideration almost all significant mitigating circumstances.'' At 1037 (Merritt, J., dissenting).

The Morse article and Merritt's eloquent dissent are important additions to the ongoing debate concerning the nation's so-called war on drugs.