Problems of Control: Alcohol Dependence, Anorexia Nervosa, and the Flexible Interpretation of Mental Incapacity Tests

Jillian Craigie & Ailsa Davies, Problems of control: Alcohol dependence, anorexia nervosa, and the flexible interpretation of mental incapacity tests, L. Rev. (2018).

Abstract: This article investigates the ability of mental incapacity tests to account for problems of control, through a study of the approach to alcohol dependence and a comparison with the approach to anorexia nervosa, in England and Wales. The focus is on two areas of law where questions of legal and mental capacity arise for people who are alcohol dependent: decisions about treatment for alcohol dependence and diminished responsibility for a killing. The mental incapacity tests used in these legal contexts are importantly different—one involves a ‘cognitive’ test, while the other includes an explicit impaired-control limb—and the comparison provides insight into a longstanding debate about the virtues of one type of test over the other. It is shown that both kinds of test can take control problems into account, but also that both can be interpreted in narrow and wide ways that significantly influence the outcome of the assessment. It is therefore argued that to a large extent, it is not the kind of mental incapacity test that matters, but how the test is interpreted. It is further proposed that value judgements are playing an unrecognised and inappropriate role in shaping this interpretation. This raises concerns about the current approach to assessing the impact of alcohol dependency on the capacity to make decisions about alcohol use or treatment, as well as broader concerns about flexibility within incapacity tests.

Drug Abuse and Addiction: Recognizing the Signs and Symptoms of Drug Addiction

This article provides an overview of drug abuse, misconceptions about addiction, the signs and symptoms, and warning signs. Read the full article.

Anger Management and Addiction: How to Take Charge of Anger Issues in Sobriety

This article provides a helpful guide for managing anger when trying to become sober. Read the full article.

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

Maria Slater, Note, Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual, 104 L. Rev. 547 (2018).

Abstract: In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.

The Science of Addiction and Criminal Law

Abstract: Although there is debate in the scientific and clinical literature about how much choice addicts have concerning the use of drugs and related activities, this article demonstrates that Anglo-American criminal law is most consistent with the position that addicts have substantial choice about engaging in crimes involving their addiction. It suggests that the criminal law’s approach is consistent with plausible and reasonable current scientific and clinical understanding of addiction and is therefore defensible, but it also suggests that the law is unduly harsh and far from optimum. Read the full article.

Brief of Amici Curiae of 11 Addiction Experts in Support of Appellee

Heyman, Gene M. and Lilienfeld, Scott O. and Morse, Stephen and Satel, Sally, Brief of Amici Curiae of 11 Addiction Experts in Support of Appellee (September 2017). U of Penn Law School, Public Law Research Paper No. 17-44. Available at SSRN: or

Abstract: This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to contingencies. We then present an overview of data demonstrating that addiction is a set of behaviors whose course can be altered by foreseeable consequences. The same cannot be said of conventional brain diseases such as Alzheimer’s or multiple sclerosis. The best scientific and clinical data we have do not support the view that addicts are unable to refrain from using substances by choice. By “choice” we mean the product of the capacity to respond to incentive and reasons, which obviously varies among addicts but which are virtually never entirely lost. Data amply show that addicts retain that capacity. Finally, we demonstrate how a decision in favor of the probationer could have significant implications for the future of treatment-based approaches to criminal justice, as well as for criminal responsibility more generally. We conclude that the probationer’s claim should be denied because it rests on refuted scientific premises and will have negative consequences if it is accepted.

Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction

Cusick, Meredith, Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction (April 1, 2017). Fordham Law Review, Vol. 85, No. 2417, 2017. Available at SSRN:

Abstract: In American criminal law, actus non facit reum, nisi mens sit rea, “an act does not make one guilty, without a guilty mind.” Both actus reus and mens rea are required to justify criminal liability. The Model Penal Code’s (MPC) section on culpability has been especially influential on mens rea analysis. An issue of increasing importance in this realm arises when an offensive act is committed while the actor is under the influence of drugs. Several legal doctrines address the effect of intoxication on mental state, including the MPC, limiting or eliminating its relevance to the mens rea analysis. Yet these doctrines do not differentiate between intoxication and addiction.

Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.

Incidence of Drug Problems in Young Adults Exposed to Trauma and Posttraumatic Stress Disorder by Philip L. Reed, James C. Anthony, and Naomi Breslau, Archives of General Psychiatry (2007)


CONTEXT: Most estimated associations of posttraumatic stress disorder (PTSD) with DSM-IV drug dependence and abuse are from cross-sectional studies or from prospective studies of adults that generally do not take into account suspected causal determinants measured in early childhood.

OBJECTIVE: To estimate risk for incident drug disorders associated with prior DSM-IV PTSD.

DESIGN: Multiwave longitudinal study of an epidemiologic sample of young adults first assessed at entry to first grade of primary school in the fall semesters of 1985 and 1986, with 2 young adult follow-up assessments.

SETTING: Mid-Atlantic US urban community.

PARTICIPANTS: Young adults (n = 988; aged 19-24 years) free of clinical features of DSM-IV drug use disorders at the first young adult assessment and therefore at risk for newly incident drug use disorders during the 1-year follow-up period.

MAIN OUTCOME MEASURES: During the 12-month interval between the 2 young adult follow-up assessments, newly incident (1) DSM-IV drug abuse or dependence; (2) DSM-IV drug abuse; (3) DSM-IV drug dependence; and (4) emerging dependence problems (1 or 2 newly incident clinical features of DSM-IV drug dependence), among subjects with no prior clinical features of drug use disorders.

RESULTS: Prior PTSD (but not trauma only) was associated with excess risk for drug abuse or dependence (adjusted relative risk, 4.9; 95% confidence interval, 1.6-15.2) and emerging dependence problems (adjusted relative risk, 4.9; 95% confidence interval, 1.2-20.1) compared with the no-trauma group controlling for childhood factors. Subjects with PTSD also had a greater adjusted relative risk for drug abuse or dependence compared with subjects exposed to trauma only (adjusted relative risk, 2.0; 95% confidence interval, 1.1-3.8) controlling for childhood factors.

CONCLUSIONS: Association of PTSD with subsequent incident drug use disorders remained substantial after statistical adjustment for early life experiences and predispositions reported in previous studies as carrying elevated risk for both disorders. Posttraumatic stress disorder might be a causal determinant of drug use disorders, possibly representing complications such as attempts to self-medicate troubling trauma-associated memories, nightmares, or painful hyperarousal symptoms. Read the full article.