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Willful ActsSeason 2, Episode 8Complete TranscriptBarry: In 1976, an Army veteran named Jim McKelvey was accepted into an alcoholism counseling program at Johns Hopkins UniversitySM: he applied for VA benefits, and they told him noBarry: This is Sue McKelvey.SM: Jim McKelvey was my husband for 50 years. Barry: Jim passed away in 2013, he is survived by sue and four kids including DebbieDP: my name is Debra Pearman, I go by Debbie.Barry: according to VA rules at the time veterans have to use their GI benefits within ten years of their discharge from the military. Jim had just missed the window, but there was an exception. Veterans are granted an extension on the deadline if the reason they were unable to use those benefits within years was because of a disability or disorder. This was the exception that Jim sought.SM: so he reapplied many times and they kept refusing him and somewhere in that process he got a lawyerBarry: you see there was an exception to the exception in the VA benefits guideline. Jim could get an extension on his benefits only if he wasn't at fault for having the disorder or disability. In the language of the law the disorder of disability couldn't have resulted from his own willful misconduct the analogy, and this is the exact one given in a statute, is that if you knowingly drank some poison and became disabled as a result then you're at fault for the disability, so no extension. It was on these grounds that the VA denied the extension to Jim. They claimed that his disorder was his fault.DP: he would jokingly say that he was a member of the CIA: Catholic Irish Alcoholic, kind of described exactly who he wasSM: and that did describe itBarry: Jim's disorder was alcoholism.SM: he appealed it he reapplied and it was District Court in Washington and Scalia was one of the judges who said, “No.” And they denied it.Barry: a full ten years after the VA first denied benefits to Jim McKelvey he and a co-plaintiff Eugene Traynor brought their case before the Supreme Court of the United StatesSM: just being in the Supreme Court was just amazing to meBarry: it was a case that had the potential to once and for all set a precedent in the U.S. judicial system, and treat alcoholism and addiction as a disease or disability.From Vassar College, you’re listening to Hi-Phi Nation a show about philosophy that turns stories into ideas. I'm Barry Lam.Today we're going to look at the disease model of addiction as a played out in two court cases one thirty years ago one today. While almost everyone in public health has been talking about the disease of addiction the legal system still treats drug use as something you can be at fault for doing even as an addict. The few times that this issue has been litigated, governments keep signing the same thing: free will. Well this week we look at how the American courts can't shake the language of free will in their characterizations of drug use, and why that characterization has led to almost no progress in sixty years worth of litigation on addiction.HP: I'm a Hanna Picard I'm a professor in philosophy at the University of Birmingham and visiting Princeton's program in cognitive science and I've also worked clinically in a therapeutic community for people with personality disorders and complex needs for the last ten years. The disease model definitely is dominant in the scientific community right now and I think it's arguably quite dominant in our popular conception as well, and it's a model of addiction which treats drug taking as compelled by a neurobiological state. People use drugs when addicted because they have no control and something is wrong with the brain as opposed to anything to do with the person and choices they make or agency.Barry: the official characterization of alcoholism as a disease goes back to the World Health Organization and American Medical Association in the early 50s. The disease model in America goes even farther back, all the way to the founding fathers. Dr. Benjamin Rush was the most famous doctor in the early days of the nation, he'd signed the Declaration of Independence, served in the Revolutionary War. He wrote an essay called “Inquiry into the Effects of Ardent Spirits Upon the Human Body and Mind.” It's a pretty remarkable document, half anthropological descriptions of him observing drunk men at Philadelphia taverns, half observations about how alcoholism seems to progress in stages, like many diseases, eventually leading to death in some cases. He also noticed that it seemed to be heritable, alcoholism ran in families. He characterized taking a drink as first an act of free agency, and through the progression of this disease like conditioned drinking becomes an act of necessity, we might call that compulsion.JM: I was baffled when I was initially turned down for those benefits, at first I thought somebody was pulling my legBarry: that's Jim McKelvey on the steps of the Supreme Court on the day of oral arguments.JM: I can assure you I did not will to be an alcoholic and I can also assure you I did not will to drink a half a gallon of bourbon a day in the final days of my alcoholism. No alcoholic has the will our willpower to turn down a drink. If I was a diabetic, if I had cancer there'd be no question about this. I think the Veterans Administration stigma towards alcoholism sort of takes us back fifty years. Alcoholism a moral problem or something like that.HP: One of the popular understandings, which used to be dominant before the disease model was the moral model, where people saw addiction first as a choice, but second of all, and this is incredibly important, because it needn't follow just because you see addiction as a choice, they also saw it as a bad choice as a morally wrong choice, so the moral model saw addicts as making a lifestyle choice which was wrong and sinful and something which as a society we ought to condemn.Barry: Sue and Jim met while he was in the Army in the mid-60s, Deborah was born not long after that. Jim started drinking at age 13.SM: 13 is probably mild I think he probably drank before that ,and while he was in the army and he did a lot of drinking, but it never interfered with anything. He got out in ‘66Barry: he was honorably dischargedSM: it sort of caught up with him and he couldn't work anymore after about 70-71 he was drinking pretty much 24 hours a day. During that period I think he was in the hospital maybe 28/30 times in about a four year period to be detoxedDP: so I was very young during my dad's drinking both my mom and dad both kept all of us kids very shieldedSM: I had been going to Al-Anon for maybe a year year and a half and it changed me the way I treated him. The drinking was his problem not mine. And it was a Saturday, I was a scout leader, and there was a scout exposition for the Cub Scouts, and the three kids and I went to the exposition because our troop had stuff, and I know he was drunk when I left, and when I got home there were two priests going down in the elevator of our building and one of them said, “Oh that must be the wife.” When I got in and I just thought, “Ah what did he do now?” Father Gregory is the priest that came, who was an alcoholic himself, and Jim kept saying, “You need to give me the last rites because I'm dying,” and he said, “I am NOT going to give you the last rites, I'm not here to save your soul, I'm here to save your ass.” And he said he was gonna go to AA, he was gonna stop drinking, everything was going to change, and I just thought, “Yeah I've heard it before,” but it did.Barry: for the next year Jim went into recovery and his entire world revolved around AA. After work he went to meetings, not coming home until bedtime, and when he's not at meetings he brings the other recovering alcoholics over for dinner.SM: there would be a priest, homeless menDP: Peter who was a transvestite very wild characterSM: yeah Peter was from Ireland flaming red hair, wore boas and oh yeah this is in the 70s I had never seen a man out dressed as a woman before, and he was our babysitter he used to love to put your hair in rollersBarry: AA is so much a part of Jim's life that Sue suggested to him that he'd do it for a living, go back to school, become an alcohol counselor. By the time Jim's case makes it to the Supreme Court, he's out of school and well into his career. The relevant regulation from the VA was that if you're an alcoholic as a result of some other disease or disorder, such as depression or PTSD, then your alcoholism isn't the result of willful misconduct, but if you're just an alcoholic and have no other disorder then that alcoholism is the result of your willful misconduct. Both Jim and Eugene Traynor did not claim any other disorder, and so McKelvey Traynor versus the VA had the potential to set a precedent that addiction or substance use disorder as it's now called cannot be a basis of discrimination under the law. The popular press at the time looked to the case as a decision that could affirm the disease model of addiction in American law, but McKelvey and Traynor lost, it was a narrow decision 4-3DP: I don't think my dad felt defeated, I think he felt kind of empowered because it really got word out and really got the dialogue going, in the news in magazines and people in general talking about alcoholism.SM: it was more positive thenDP: yeah taking away the stigma of being an alcoholicBarry: in their decision the majority cited the fact that the disease model of addiction is not universally agreed upon. They cited papers that claim that even if alcoholism were a disease its cure requires acts of voluntary control, so the disease itself must originate at least somewhat in the will of the agent, and finally the majority took the line that if addiction at least somewhat originates in the will of the agent that it's enough for Congress and the VA to make a blanket claim that alcoholism is the result of willful misconduct for the purposes of denying benefits. In Justice Blackmun's dissent he argued that the VA was generalizing about alcoholics in precisely the way that was prohibited under federal law. Blackmun wrote that it might be true that some alcoholics have their disease as a result of willful misconduct, but you don't get to presume they all do just because their alcoholism is not the result of other mental illnesses. Maybe, some are willful choices, some our brain induced compulsions some are environmentally induced compulsions. And finally Blackman argued that just because the cure for a condition requires acts of will, it does not follow that the cause of the condition was an act of will. Managing type II diabetes requires many acts of will like dieting, but that doesn't mean the cause of every case of type II diabetes is an act of will. The majority in the Supreme Court were not convinced of Justice Blackmun's reasoning, but many important people were. Later that year Congress decided to act and overturned the decision in McKelvey Traynor versus the VA. They explicitly altered the regulation in the relevant section of the VA benefits to state that alcoholism will be treated as any other disease or disorder. Jim and Eugene Traynor got the law change for future veterans like themselves.DP: I think my dad felt elated he knew that he wasn't getting the benefits, but he was excited at the idea that future men and women who served in the military hopefully would be able to get their benefits if they got sober.Barry: but the ending wasn't fully happy for American law. Because the court ruled against McKelvey Traynor no legal precedent was set for the treatment of alcoholism as a fault free disorder in American law, and Congress didn't pass sweeping legislation on addiction, they overturned a tiny regulation about veteran benefits. The litigation would continue for at least another thirty years, which brings us to today.LNP: my name is Lisa Newman-Polk, I am a lawyer and a social worker and a criminal justice advocate.Barry: Lisa Newman-Polk is a criminal defense attorney in the Boston area. She reminds me a lot of my own public defender friends, but Lisa isn't a public defender anymore, she's in private practice. They have this strange mix of relentlessness and resignation in the face of constant injustice like Tom Hanks at the end of Saving Private Ryan sitting there half dead shooting a pistol at a Nazi tank.LNP: I worked as a public defender for four years and in that process the vast majority I would say you know 90% of my clients were suffering from mental health issues which includes substance use disorder also known as drug addiction. Early on in my practice I remember very specifically a young woman, it was so evident she was desperate to not use drugs, she was desperate to be completely sober, she had also committed theft. She gets put on probation, I think I do this great job getting her a great deal all she needs to do is be drug free, that's all she has to do and then everything will be fine. And within a week she comes in and she ends up testing positive and I see her in the hallway of the courthouse and she tells me what's happened and I remember at that moment having this moment of judgment like, “Come on! Get it together! You know like I did all this work on your case and you can't just be drug free? and the look that I remember her having in her face of just this desperation not wanting to disappoint me, feeling like a failure to herself, I realized I've got this wrong, like there's something going on here that I don't understand.Barry: from there Lisa goes back to school for social work, addiction counseling in particular. She gets a master's and starts working as a drug counselor in the prison system. Now she's dealing from the inside with these drug-free court orders for her clientsLNP: and what I started to realize as a therapist is it was really interfering with my ability to do healthy authentic productive work with my clients, because the first thing you learn in treating addiction is that a person needs to be able to talk about what's going on, needs to be able to talk about either urges to relapse or actual relapse, and if we're in a dynamic, like I was in as a therapist with people on probation and parole, where their truthfulness could have this result where they go to jail, that is a true massive problem for therapists. Then this unhealthy dynamic gets created where therapist is trying to find ways to avoid telling the court, when really what I kept thinking to myself is, “Can we all just be able to be honest? and can the court stay out of it?” If I have a client who's showing up to therapy every single day five days a week to this program if they're not doing well then we're not doing something well also within our program to help that person get better, and we in the program need to think about what are we not doing?Barry: after working as an addiction counselor with clients on probation, parole, and in prisons, Lisa went back to the public defender's office and decided to take her new skills and knowledge into the drug courts. The drug courts are small specialty courts where teams of lawyers, judges, law enforcement, and even social workers, are supposed to take a public health approach to offenders whose crimes arise from substance use disorders. I'm constantly amazed by how much work gets put into what turned out to be important but ultimately powerless documents. The drug courts have a national association the National Association of Drug Court Professionals, NADCP, they publish a document called the Adult Drug Court Best Practices Standard. This document contains decades of empirical data telling judges about what has been shown to work and what has been shown to make things worse for addiction and addiction based crime. It has studied based conclusions like this, “Drug courts are significantly more effective and cost effective when they jail sparingly. Research and drug courts indicate that jailing produces diminishing returns after approximately three to five days. Jailing people for more than one week led to increases in recidivism and jailing people for more than two weeks led to increased recidivism and increased cost.” The document even gives recommendations for the conduct of judges. Judges that take the time to listen to a defendant's story show a little understanding and come across as fair have significantly better outcomes, like the reduction of crime in their district, than judges that appear to be punitive it's a document that's so reasonable it's bound to be ignored.LNP: in the drug courts I was in, unfortunately, it was the policy of the judge that if somebody tested positive for drugs they were going to be incarcerated, and I became increasingly distressed by this, increasingly upset I didn't really know what to do, because there was nothing legally to appeal if an order is to be drug free the judge has a right to incarcerate. I made a complaint to a supervising judge who is in charge of specialty courts, and that complaint was not well received. Ultimately the judge kicked me out of his court and kicked me off all of my drug court cases and said I was no longer allowed to represent my eleven clients. After I got kicked out I was so angry upset and frustrated that not only had I been basically effectively told I lose my voice in standing up for people with this issue in that drug court setting, I just thought, “Okay well you know what the only way to feel better is to try to keep advocating for this issue and find a different way to do it.” And I'm a lawyer if I think that this is so wrong then there was a legal claim.Barry: Lisa went to Massachusetts General Hospital to the doctors there in charge of addiction treatment and talked to them about their experiences with the court system and how it hindered the treatment process. They agreed to support her in her efforts to construct a legal argument she was developing about addiction and the criminal law.LNP: drug use when somebody especially has a severe substance use disorder is essentially a symptom of this medical disorder. If this is a symptom, how can we order it away? How can a court order somebody to just stop having this symptom?Barry: after Lisa developed the beginnings of her argument, she had to wait for the right client who was the victim of the right kind of injustice so she can take the claim up the court system.LNP: Julie Eldred at the time was a 28 year-old woman who had been placed on probation for a period of one year after she had admitted that she had stolen jewelry. Technically the offense was larceny over, which is a felony in Massachusetts.Barry: Julie was addicted to opioids she had been addicted since her early teenage years and prior to that she was medicated as a child for ADHD. There's a high correlation between ADHD and substance use disorders, whether it's because of the underlying brain state or the drugs used to treat ADHD is unknown. Julie's crime arose from the addiction.LNP: as part of her probation conditions she was ordered to attend NA or AA meetings and she was also ordered to be drug-free and to submit to random drug screens. She had been placed on the medication therapy called suboxone and she started using that suboxone as prescribed and she also started an intensive outpatient day program where she was showing up every day all day and she had just started that on a Monday when on Friday she went to court per her probation officers orders and she submitted to a drug screen.Barry: Julie failed the drug stream she had relapsed having taken the opioid fentanyl the week.LNP: so I'm assigned to represent Julie at this hearing and even though I've worked in the system for years and I should probably have known better I thought there's no way this judge will hold this woman, I mean she's been on probation for 11 days she's been struggling with addiction since her teenage years, it's not like it happened overnight, and we'll give her some space to try to at least get more into a groove with her recovery. But I was wrong.Barry: the judge orders Julie to jail, the judge then assigns to Lisa the responsibility of finding an inpatient rehab facility for Julie as a condition of release, that's not usually the job of an attorney, but it’s Lisa we're talking about here. Still it takes ten days.LNP: there remains this misunderstanding within the court system that if we just order a person to stop using drugs if we just tell that person if you use you're going to jail that is therefore going to motivate that person to stop using and what I can tell you from my experience working in the court system for over a decade and working as an outpatient therapist with people on probation and parole and in the prison system where people are actively using drugs, is that this fear of punishment is not a motivator for most people. While somebody is desperate not to be incarcerated, it's not simply just about this free choice to engage in this compulsive behavior of drug use.Barry: surely judges who have been on the bench for a long time know this, they have their own data about recovery versus recidivism, and if they don't know they can read the best practices from their own national organization. There's no legal mandate in Massachusetts that judges incarcerate drug violators on probation, so all of this is done on a judge's discretion. Why would they do something over and over again that doesn't solve their problem? I religiously follow the principle of charity never attribute irrationality or mistaken belief when a rational explanation will do. I think people are operating on competing conceptions of criminal justice and incarceration. The first is how Lisa thinks about it: does imprisonment actually work to solve a problem, the problem of drug-addicted offenders? No incarceration doesn't solve that problem, the data is overwhelming. The very act of punishing and shunning addicts increases the chances of drug use, because of the kind of behavior that drug use is, more on that later. But there's another conception that doesn't make these judges have mistaken beliefs. They're punishing people for doing something bad, do you know what the legal grounds were for incarcerating Julie? Her taking of opioids was a willful violation of probation. There's that word again “willful violation.” If you're caught up in the idea that justice is punishing people who do bad things, then it doesn't much matter that your punishment doesn't solve some other problem, the problem that there's a person who's addicted to substances. You're not trying to punish your way out of that problem the punishment itself is a solution to a problem the problem of having willful violators walking around who haven't been punished. Lisa was long ready to fight this fight, she found in Julie a perfect client, it was time to take the argument that addiction was a disease up as high as she could.LNP: so we argued that it was unlawful to find her in violation because her drug use given her substance use disorder was not a willful violation of probation, that's where the other side will say, “you know oh it's free will you know etc and-”Barry: that’s for us philosophers to decide”LNP: which is funny because that's exactly what I thought when I rather brief I'm like, “oh we're bringing philosophy into the case.”Barry: and so that's exactly what the Commonwealth argued, Julie had free will.LNP: we also made a claim under the eighth amendment the Federal Constitution that it would be cruel and unusual punishment to be incarcerating her for relapse.Barry: the case so far has made it to the Massachusetts Supreme Court, oral arguments were in the fall of 2017, the court was supposed to issue a decision by February of 2018, that hasn't happened yet. The court asked for an indefinite extension. Lisa doesn't know when the decision is coming down. Scores of addiction medicine specialists, scientific researchers, and civil liberties organizations filed briefs either for or against the arguments Lisa was making in Eldred versus Commonwealth. The briefs were taking the question of the disease model of addiction head-on. Was it a disease or a choice? Is drug use willful? Lisa encountered an unexpected opponent in the courts. We'll look at the arguments after this message from our new sponsor…The Great Courses Plus is a streaming service that gives you unlimited access to learn from award-winning professors about virtually any topic as an audio or video course philosophy, history, science, art, cooking. Watch or listen to any course of your choice on any device anytime through the website or the Great Courses Plus App. Today's episode is about moral responsibility and you may be surprised to find out that philosopher's have long thought that responsibility has its roots in emotions such as guilt and resentment. If you want to learn more I recommend listening to “Passions, philosophy, and the intelligence of emotions.” Professor Robert C Solomon of UT Austin is one of the fields top experts on emotions and in the course he talks about how we could avoid being deceived about the meaning and significance of emotions, so that we can more truly uncover the truths that emotions are trying to tell us. Start enjoying the Great Courses Plus today with my special offer one month free sign up now at the hiphi or just click the link in the show notes.Barry: two landmark Supreme Court cases set the stage from all subsequent litigation surrounding addiction and drug use in criminal law. In Robinson versus California in 1962, the Supreme Court struck down a California law that made it a crime to simply be addicted to a drug. The police had evidence that Robinson was a regular drug user, he had needle tracks in his arms, but they didn't bust him for possession or dealing or anything else they simply used the evidence as evidence of addiction. The Supreme Court considered addiction a status or condition that a person was in and concluded that you can't criminalize a status, only conduct. In ordinary language: the state can't criminalize you for being a certain way, only for doing something. The next test came in Powell versus Texas 1968. Powell was busted for public intoxication, was this being a certain way or was this doing something? Ultimately the court upheld the existence of public intoxication laws on the grounds that you can be an alcoholic but not be drunk in public, that was conduct not a status, and the court recognized the shaky metaphysical ground here. Think about it, being an alcoholic can't be criminalized and getting drunk is conduct that is a definitive of being an active alcoholic. How do you take a status that is not criminal but the status leads to conduct which you say is criminal? You do it with free will if addiction isn't a biologically based compulsion, the reasoning goes, then having that status doesn't necessitate anything individuals can put the brakes on, the fact that they don't in a socially determined context in which they should is an act of free will. Therefore, blameworthy, therefore liable to criminal sanction.It's about time we talk about free will, it's a philosophical obsession, it's the willful part of willful violation. The classical account of free will has its root in thinking about human in material souls human souls are thought to be actors but aren't acted upon they're little gods, movers of the world but cannot themselves be moved by it. Why do people eat? You can say it's biology, hunger is a response mechanism to nutritional needs of the body: wrong. You eat because you have a soul that freely decides to do that, you're not a slave to biology, you're a slave to nothing. That's why, by the way, people are to blame for what they do, it's a reflection of their soul and nothing else. I have a hard time accepting that the foundations of criminal justice is a belief in an immaterial soul with the power of God in the world, something we don't have any reason to believe anymore. In fact neuroscientists even claim that they falsified this view. There's another view that says that free will is putting the brakes on biologically or socially conditioned responses to stimuli. This view says that free will is veto power, it's actually pretty close to how we talk about willpower, when you do something biology or social conditions drive you to do it it's not your will, but when you stop yourself from your drives, that is your will.LNP: I was extraordinarily nervous, thought I was gonna throw up my entire ride into Boston on that morning, you know and also very aware that I felt like not only are the stakes high you know for Julie and myself in terms of just wanting to you know win this case, there were a lot of other people who had gotten involved and were relying on me to deliver.Barry: Lisa Newman-Polk needs to argue that relapsing during treatment, which is a violation of the probation conditions, are not willful. Backing up Lisa were briefs from addiction treatment organizations, universities, hospitals, even the former president of Switzerland. Switzerland actually solved their opioid crisis in the 90s through decriminalization. There's a lot of brain science, but the upshot is the same: relapse is a symptom of addiction. It's virtually guaranteed in addicts with other psychiatric conditions like ADHD, so relapse is not willful even if it is a violation. Lisa cited three Massachusetts cases where supposed wilful violations of probation were overturned by the courts as not willful she argued that Julie's case was just like these. In Commonwealth vs. Henry a judge jailed Henry for willfully violating the court order to pay back Walmart for stolen goods. The problem was Henry was broke, provably so, the court overturned the violation, the violation wasn't willful if compliance wasn't possible. Commonwealth vs. Poirier and Commonwealth vs. Canadyan, in both cases the offenders were jailed for willfully violating the installment of GPS monitoring devices on their bodies as a condition of probation, the problem was both were homeless living on the streets or in shelters. The GPS device needed to be charged, neither had reliable enough access to an electrical outlet. The court once again overturned the violation, it's not willful if compliance was impossible.LNP: they pushed on both of us it went about a half an hour longer than normal each side supposed to get 15 minutes we both were allowed to argue for approximately 30 minutes, and I found the court to be really engaged with the question, and left me entirely unclear how they'll rule.Barry: How would you rule? On the other side of the argument the Commonwealth was arguing freewill and they weren't alone.HP: one of the key claims of a standard disease model is that addicts have no choice in control. There really is increasing evidence that this is just false, that addicts are responsive to incentives in many circumstances.Barry: this is a Hanna Pickard again, philosopher and clinician, she wasn't involved in the case, but she is one among many academics who are looking to overturn the disease model of addiction, on the basis of much newer research.HP: so here's some of that evidence: many of us know addicts who have just gone cold turkey despite withdrawal. In addition there's large-scale epidemiological data suggesting that the majority of people who would meet a DSM diagnosis with addiction mature out as it's called without clinical intervention when they're in their late 20s or early 30s so the natural thought there is that's when the kind of responsibilities and opportunities of adult life kick in and so incentivize people to quit. It's well known that rates of use in addiction are cost sensitive indeed there are reports of addicts deciding to go into withdrawal so that their tolerance goes down, thereby bringing down the amount of money they need to pay to get high. Some new effective treatments really hone the way in which addiction involves choice and response to incentives so contingency management treatment basically offers addicts a structure of small immediate rewards in return for drug-free urine samples they're typically given three times a week, and it's been shown to be significantly more effective than other forms of therapy. In addition Carl Hart has done some wonderful studies in his lab at Columbia which involve taking crack addicts from New York and bringing them into the lab when they're not high and offering them there and then a choice between some money or hit and sometimes they take the hit and sometimes they don't they take the money and walk out. Finally there is wonderful work from animal models which demonstrates that even rats if you give them alternative choices will take them when addicted, so much of the drug use within animal models looks like it is caused by limiting the other kinds of goods available to rats, as opposed to giving them an environment where if they want there's something else of value for them to do. Putting all of that together it really looks like the majority of addicts in many many circumstances have the capacity not to use.Barry: these were the exact considerations that the Commonwealth cited. They were backed by an amicus brief by academics and researchers who did the work that Hanna Pickard is explaining. Addiction is a human phenomena and human phenomena are messy. The population of people with substance use disorder is huge, very big by epidemiological standards. A quarter aged out of addiction with no intervention, but what does that mean? That it's a choice for everyone? Many addicts respond to positive incentives to quit, but what does that mean? That we can effectively use negative incentives? The percentage of addicts who end up encountering the criminal justice system is small, atypical, extreme. Are you supposed to draw conclusions about them by looking at the bigger population? That can be as mistaken as drawing conclusions about the bigger population by looking at offenders. It's in the middle of these epidemiological and clinical facts that Lisa had to litigate this case. The Commonwealth and their supporters were arguing from the bigger population drawing conclusions about free will that they think must be true of the population of drug addicted offenders, and they had one final argument. Think all the way back to Jim McKelvey, why did the VA need to claim that McKelvey's conditions was in some way the result of his willful misconduct, at some point in his past? Because if they didn't, he'd be blameless for his condition and therefore blameless for missing the deadline for his benefits. You have to find blame somewhere in someone's past if you want to punish them for where they are now. The Commonwealth argued that if you want to punish any addict for any of their crimes you have to find them to blame at some point in their past. If they're not to blame for their status as addicts and not to blame for their conduct as drug users, then how could you blame them for the crime that results directly from their drug use? I think this is the real issue. It's blame not free will. The language of the law is all wrong, willful misconduct, willful violations. They should be struck forever from the law. No court is in a position to determine the answer to a question like this, we don't even agree about what the will is. The question before the court is whether there are any mitigating factors that give an excuse from blame. Lacking free will is one excuse, but there are others. The veto view of free will already mitigates responsibility. If A shoots B and you had the power to stop the bullet but didn't and B gets killed A is to blame for killing B not you, but neither are you fully off the hook for B's death, it depends. How hard was it for you to stop the bullet? What was the cost for you? That's one way to think of addiction, if you're a fan of choice and free will. Maybe people can stop at different points. How hard is it for them? What were the costs? Hanna Pickard is a choice theorist, but she's not a fan of blame, in fact you're not gonna find a lot of choice there it's about addiction who her fans have blame these days, and that's not because they hate free will, it's because they're locating the problem of addiction elsewhere. Question: One of the things that was supposed to be a benefit of the disease model was the move away from morality all right the disease model was supposed to erase stigma. Does the choice model bring it back in?HP: It could, if you're a choice theorist I think you have an obligation to make sure that it doesn't. So here's how you do that. If you think back to the moral model of addiction that has two parts to it, it has the idea that addiction is a choice and then it has the moral condemnation of that choice. My own view is that choice theorists in virtue of acknowledging the choice component of addiction need to work to maintain a non stigmatizing non condemnatory attitude, and that has to do with interrogating our own understanding of why people use drugs, and in some sense turning the spotlight as much on ourselves in our society as we do on addicts. Just because somebody has a choice, first of all doesn't mean we need to blame and stigmatize them from making that choice, second of all we often need to contextualize that choice so we understand it in relation to factors which may mitigate responsibility or mitigate any tendency we have to condemn or blame.Barry: choice theorists don't think it's the brain compelling people to addiction, they think it's a certain kind of brain placed in awful circumstances. Those circumstances are our fault, the brain together with the circumstances lead to drug use as the only way to cope.HP: Addiction is associated with personality disorders as well as mood and anxiety disorders, all of which are defined by having intense negative emotions, so given that association we can really see drug use as a way of sedating people, as a way of getting some relief from the suffering which severe and intense psychological pain and distress brings. Many people who have mental health problems, especially of those sorts, typically live in impoverished circumstances and have complicated relationships with others as well as limited opportunities, so you have external suffering as well and not very many ways managing it. So all of that combined points to the way drug use for people with comorbid mental health problems really is a coping mechanism, it's a way of managing the miseries of life. There's another feature, which is true for some patients in that category, with people who come from backgrounds where they were mistreated as children, sometimes their self-concept is such that they don't care about themselves, they actually dislike themselves and feel like they deserve to suffer or be punished in some ways, so that kind of mindset is part of potentially the explanation of all forms of self-harm, which can include drug abuse.Barry: Hanna Pickard is arguing for a view she calls “responsibility without blame.” Drug addiction for Pickard arises from often false beliefs about oneself worth, denial about negative consequences, and it's done in a social context in which no other options give someone with those beliefs and attitudes an alternative to coping. But, you are still responsible in the sense that you had agency in that circumstances. You are not to blame, the blame lies elsewhere. The moral model says the problem is all with the addicts, the disease model says the problem is not with the addicts it's with their brain, but in neither case do we look at the social context which seems to cause people to turn to drugs as opposed to providing them with other options that might be better. That's a question for all of us.Barry: I've thought about the question. I don't know what we're doing. Whether addicts used by choice in a social context they're not responsible for or by compulsion from a sick brain, the solution has been settled, it's been settled in other countries it's been settled in this one in clinical practice. Addicts are not to blame for their state and can be taken out of it in the right conditions, jail is not one of them. The idea of punishing an addict even if it is a choice is just perverse. It's a conclusion I came to while thinking about Hannah Pickard's work. Imagine thinking it the right thing to do to a cutter, someone whose self mutilates, is to impose a punishment on them for cutting. Self-harm is bad, so why not impose some suffering on them to punish them for their bad behavior? Maybe we should punish them by cutting them. What are you doing when you dish out retributive justice for those whose injustice is self-harm? Can you see the absurdity of this practice? All right last question, how's Julie doing?LNP: Julie is doing well she loves to work with animals and that has been her main focus, she's continuing to do work where she gets to interact with animals and she's just trying to stay focused one day at a time.Barry: if you're interested in Hanna Pickard's work you can find her new initiative Responsibility Without Blame at there's a link to it on the show page.PART TWO: THE DECISIONBarry: The Massachusetts Supreme Court issued its ruling in the case of Commonwealth versus Julie Eldred. Here’s an update to our episode 8 of season 2, “Willful Acts.”LNP: Hi BarryBarry: Hi Lisa, how are you?LNP: I’m OK I’ve been better but I’m alright. How are you?Barry: I’m doing well, let’s talk.LNP: OK, are we recording right now? Barry: Yeah we’re rollingLNP: OKBarry: Describe to me, where you were, what you heard and the decision.LNP: Well I learned at about 8, 8:30 in the morning that a decision was coming out, and I rushed over to my co-counsel Ben Keans’ office in Framingham, Massachusetts, so we could read the decision together and discuss and opened the decision on his computer, I saw who it was written by who was Justice Loey, and quite honestly immediately burst into tears because I knew we had lost, so we scrolled down quickly to see if there was a dissent or concurring opinion, and there was none which just was like a whole other level of devastation, so it slowly became evidence that this was a 7-0 decision against us, and as we read through it, it was clear that we had lost in every single way, not a nod of acknowledgement pretty much to anything that we had set forth, it was just a hundred percent loss from my perspective.Barry: the judges of the Massachusetts Supreme Court did indeed deny every single one of Lisa’s arguments in the Eldred case. They claimed that Julie violated probation by relapsing on fentanyl, she was jailed for the previous crime of larceny, not the relapse itself, so it wasn’t the case that the state was criminalizing or criminally punishing relapse, she was being punished for larceny. The court claimed that jailing someone who they believed ahead of time would relapse, has to be OK, because judges should be allowed to determine ahead of time whether relapsing would be dangerous for the person or community. They took this reasoning to apply directly to the case of Julie Eldred, because jailing her after relapsing on probation, is simply equivalent to jailing ahead of time for relapsing and not giving her probation.LNP: Yeah well they also didn’t answer the question that was presented before that, they didn’t answer the question that we briefed and we argued to the court, the issue we presented was, when a probationer is addicted to substances, is it constitutional to order that that person be symptom free and then punish the person if they’re not symptom-free? Basically the court just decided they didn’t like that question and so they changed the entire question of law and answered a question that we didn’t brief to the court didn’t argue to the court so they pretty much just rolled right over our argument, that substance abuse disorder is brain disease, a brain disorder that impairs someone’s ability to stop using when they’re really in the throws of addiction and it was as if we hadn’t briefed them entirely on this subject and had Aniki brief them solely on this subject, it was just like the idea of substance abuse disorder as a disease was just completely irrelevant to them.Barry: The discussion of whether Julie Eldred’s probation violation as wilful was curious to say the least. On my reading, the court was expressing that Lisa’s argument bares the standard of proof, it was up to Lisa to prove to the course that substance abuse disorder bypassed the freewill of the addict, and that’s fair enough, but the courts didn’t explicitly make a judgement about the veracity of the scientific or philosophical argument that Lisa made. Let me read you this curious line from the decision, “The affidavit submitted by the defendant in support of her decision, that her violation was not willful because addiction affects the brain in such a way that certain individuals cannot control their drug use, did not require the judge to accept her argument.” Think about what that means, it sounds like the Supreme Court is saying: you did submit evidence that drug addiction bypassed her freewill, and I know that we’re in a position to make a judgement about how good that evidence is, but we’re not gonna do that. The fact that some lower court judge didn’t accept this evidence as good enough, is enough for us to jail you.LNP: They just weren’t interested in answering the question. That’s honestly how I feel and obviously I’m really down and out about the whole thing, it was an extraordinary blow to have it be 7-0, and to have a decision issue that really just ignored the argument you put before them and decided to really just rubber stamp the status quo. Why I find this incredibly frustrating is that part of our blue brief to the court was including chapter two of the Surgeon General’s report on addiction, and honestly I don’t know what else is consensus if the Surgeon General is not, that’s exactly what the Surgeon General is for. Instead of citing anything that the experts in the field of addiction and neuroscience have put out there, instead they decided to rely on some standards that the supreme judicial court and the trial court apparently wrote in 1998 as their guidance, I just find it quite incredible that the justices are simply citing standards that justices wrote in 1998, well before the very recent Surgeon General report, as their guidance on how to deal with people suffering from addiction, rather than looking to any of the experts in the field, I find it frankly kind of senseless. Like I said before, the status quo is a really dysfunctional way of treating people in the criminal justice system and so obviously I’m just hugely disappointed that instead of making any progress in this area I feel like the decision has potentially made things worse by having a 2018 decision that is that bad in this area.Barry: Are there any next steps for you at this point?LNP: Well I know you want me to take it to the US Supreme CourtBarry: Yeah that’s right of course I doLNP: I honestly after the decision I was so upset that I was thinking I’m not practicing law anymore, this is why I went into social work, I can’t practice law it’s so incredibly frustrating, so much of it feels like banging my head against the wall and it is hard to the extent that I have been making this argument for years to so many different judges you know and I was so hopeful about getting a ruling that would actually dictate something and instead I just got all of them to say, “No you’re wrong.”Barry: Yeah that’s right, it’s the life you’re leadingLNP: In terms of next steps, I mean I think that my colleagues and I are all just trying to regroup on how to push the issue on the trial court level, we’ve been encouraged by some smart minds to basically build another case based on what you could say is the guidance from the SJP on what they’d want in a next case, there are other ways of them going about the issue. I’m working on a documentary about the criminalization of addiction and hoping to speak with legislators to perhaps try to come up with legislation about how to deal with this problem, but clearly we’re not getting anywhere in the court system for the time being.Barry: Well Lisa keep fighting the good fightLNP: Thank you Barry I appreciate it. ................
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