Addiction, Choice and Criminal Law

In ADDICTION AND CHOICE, ed. Nick Heather and Gabriel Segal, Oxford U.P. (Forthcoming)

U of Penn Law School, Public Law Research Paper No. 15-37

38 Pages Posted: 16 Dec 2015

See all articles by Stephen Morse

Stephen Morse

University of Pennsylvania Law School

Date Written: December 14, 2015

Abstract

This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the prima facie case of crime, it is not an excusing or mitigating condition per se, and it does not contribute relevant evidence to existing excusing conditions, such as legal insanity. This chapter evaluates the criminal law’s model of responsibility using scientific and clinical evidence and dominant criminal law theories. It concludes that although the law’s approach is generally justifiable, current doctrine and practice are probably too unforgiving and harsh. Recommendations for reform conclude the chapter.

Keywords: addiction, disease, choice, responsibility, criminalization, punishment

Suggested Citation

Morse, Stephen J., Addiction, Choice and Criminal Law (December 14, 2015). In ADDICTION AND CHOICE, ed. Nick Heather and Gabriel Segal, Oxford U.P. (Forthcoming); U of Penn Law School, Public Law Research Paper No. 15-37. Available at SSRN: https://ssrn.com/abstract=2704444

Stephen J. Morse (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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