Addiction and responsibility.
Author: Bonnie, Richard J. Source: Social Research v. 68 no3 (Fall 2001)
p. 813-34 ISSN: 0037-783X Number: BSSI01037997 Copyright: The magazine
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THE subject of addiction has attracted increasing interest over the past
decade from moral philosophers (Watson, 1999; Wallace, 1999), legal
theorists (Corrado, 2000a, 2000b; Morse, 1999), and, most intriguingly,
from economists (Becker, 1992; Becker and Murphy, 1988) and other social
scientists (Elster, 1999a, 1999b; Elster and Skog, 1999). Among the
factors that explain this escalating intellectual interest in addiction
are the crack epidemic beginning in the mid-1980s (which triggered the
latest drug war); the surgeon general's 1988 report on nicotine addiction;
advances in the science of addiction, especially in neuroscience; tobacco
litigation predicated on the addictiveness of nicotine; and continuing
public debate on the premises of the nation's policies toward users of
illicit drugs. 

The advances in neuroscience serve as my point of departure in this paper.
Remarkable scientific achievements over the past 25 years--especially in
the last decade--have significantly advanced our understanding of
addiction in a variety of respects. First, neuroscientists have discovered
the neural circuits activated by using addictive drugs--the brain's common
pathways of addiction--and have thereby intensified the search for
pharmacological treatments (McLellan et al., 2000: 1691). Leshner (1997:
46) has summarized the scientific findings:. 

V irtually all drugs of abuse have common effects, either directly or
indirectly, on a single pathway deep within the brain--the mesolimbic
reward system. Activation of this system appears to be a common element in
what keeps users taking drugs. This activity is not unique to any one
drug; all addictive substances affect this circuit. 

The neurochemical system that Leshner is referring to is the dopamine
system; all these drugs affect the dopamine system, although through
different mechanisms (McLellan et al., 2000: 1691). 

Second, imaging techniques have revealed the effects of chronic
administration of psychoactive drugs on the brain. Leshner (1997: 46)
summarizes the evidence:. 

Not only does acute drug use modify brain function in critical ways, but
prolonged drug use causes pervasive changes in brain function that persist
long after the individual stops taking the drug. Significant effects of
chronic use have been identified for many drugs at all levels: molecular,
cellular, structural, and functional. The addicted brain is distinctly
different from the nonaddicted brain, as manifested by changes in brain
metabolic activity, receptor availability, gene expression, and
responsiveness to environmental cues. Some of these long-lasting brain
changes are idiosyncratic to specific drugs, whereas others are common to
many different drugs. 

Third, addiction specialists have convincingly demonstrated why addiction
is sensibly understood as a chronic disease similar to other chronic
diseases--such as diabetes and hypertension--that are also characterized
by intermittent remissions and relapses (McLellan et al., 2000; O'Brien
and McLellan, 1996). Several important claims are embedded in this overall
assertion: (1) that the condition should be understood as a chronic
disease, characterized by occasional relapse, rather than as an acute
condition; (2) that the high rate of relapse is related to the
neurobiological changes that accompany addiction; and (3) that the onset,
severity, and management of the condition are affected by interactions of
biological and behavioral variables analogous to those that affect the
onset, severity, and management of other chronic diseases. 

IS ADDICTION A "BRAIN DISEASE"? 

The scientific leadership of the addiction field is waging a broad
dissemination campaign to bring these advances to professional and public
attention--within medicine and among opinion makers and the general
public. This campaign has a motto: "Addiction is a Brain Disease." The
core message is reflected in the following excerpt from the standard
presentation by Dr. Alan Leshner, the director of the National Institute
on Drug Abuse:. 

That addiction is tied to changes in brain structure and function is what
makes it, fundamentally, a brain disease. A metaphorical switch in the
brain seems to be thrown as a result of prolonged drug use. Initially,
drug use is a voluntary behavior, but when that switch is thrown, the
individual moves into the state of addiction, characterized by compulsive
drug seeking and use (Leshner, 1997: 46). 

At present, I think this claim has to be understood more as a political
statement, a rhetorical tool in a debate about public policy, than as a
scientific claim. Scientifically, it is both incomplete and premature. It
is incomplete because it fails to communicate the whole story about the
behavioral and contextual components of addiction. (In his standard
presentation, Dr. Leshner is always careful to note that addiction is "not
just a brain disease.") Behavioral components are much more substantial
than in Alzheimer's or epilepsy or even schizophrenia. It is premature
because research has not connected the observed changes in the brain to
behavior. After all, Dr. Leshner found it necessary to speak
metaphorically because we cannot yet speak scientifically. "It is still
not possible to explain the physiologic and psychological processes that
transform controlled" use of drugs to addiction (McLellan et al., 2000:
1693). 

Notwithstanding its scientific shortcomings, I embrace the
characterization of addiction as a brain disease as a political statement:
medicalization of addiction (as a policy choice) will have salutary
effects on the lives of people enmeshed in drug use and on society,
whether or not this term captures the full complexity of the condition.
Addiction is amenable to treatment--although outcome evaluations of
treatment must take into account the high probability of relapse--and the
society should be investing more resources in treatment and should reduce
its expenditures on incarceration and enforcement. Moreover, continued
investment in research is likely to pay off in therapeutic advances. 

One prominent rhetorical feature of the campaign needs much more careful
scrutiny, however--the issue of "voluntariness." According to two leading
clinical researchers on addiction, "at some point after continued
repetition of voluntary drug-taking, the drug 'user loses the voluntary
ability to control its use. At that point, the 'drug misuser becomes 'drug
addicted and there is a compulsive, often overwhelming involuntary aspect
to continuing drug use and to relapse after a period of abstinence."
(O'Brien and McLellan, 1996: 237). 

Leshner (1997: 46) puts the point this way:. 

We need to face the fact that even if the condition initially comes about
because of a voluntary behavior (drug use), an addict's brain is different
from a nonaddict's brain, and the addicted individual must be dealt with
as if he or she is in a different brain state. We have learned to deal
with people in different brain states for schizophrenia and Alzheimer's
disease. Recall that as recently as the beginning of this century we were
still putting individuals with schizophrenia in prisonlike asylums,
whereas now we know they require medical treatments. We now need to see
the addict as someone whose mind (read: brain) has been altered
fundamentally by drugs. 

The emphasis on involuntariness bristles with implication for
responsibility. Medicalizing addiction and emphasizing its neurobiological
underpinnings are meant to negate the common belief that addiction
manifests a moral weakness or a flaw of character, and thereby to
counteract stigmatization and punishment. Presumably people should not be
held morally and legally accountable for behavior that is involuntary. But
we should take a much closer look at these assertions. What is meant by
the concept of involuntariness in this context? Is an addict's drug use
involuntary after the switch is flipped? In what sense? Is relapse
involuntary? Again, in what sense? Do people voluntarily take the risk of
becoming an addict when they begin to use drugs? Should this matter? These
are very difficult questions, and the answers have a direct bearing on
numerous legal issues of responsibility. My goal here is to explore
ethical and legal concepts of responsibility in these three domains:
addiction, relapse, and onset. 

THE VOCABULARY OF "VOLUNTARINESS" 

After addressing several important conceptual issues about the vocabulary
of voluntariness, I will cover the law on each of these issues. 

ADDICTION 

What is meant when it is said that drug use becomes involuntary after "the
switch is flipped"? Does the disease cause drug use in the way that a
brain lesion causes epileptic seizures or loss of cerebral blood flow
causes loss of consciousness? This is the language of mechanism, and the
language of choice or voluntariness would be out of place in that context
(Morse, 2000). But clearly something is involved with addiction than
mechanism. Addiction is "not just a brain disease." The link between brain
and behavior is mediated through consciousness. So when we say that the
addict's drug use is "involuntary" and symptomatic of disease, we mean
something different from what we mean when we say that having a seizure is
involuntary. In terms of responsibility, this is a very important
distinction. 

Even within the realm of conscious experience, situations occur where we
properly say that a person has no "real" choice (like grasping the edge of
a cliff, where the inevitable effects of muscular fatigue will prevail, no
matter how hard the victim chooses to resist). Again, this is the language
of mechanism. But this is not what we mean by "loss of control" in
addiction. What we mean is that, due to neurobiological process deep in
the brain over which the addict no longer has any control, he is
experiencing a strong need for or desire for substance, and that this need
is so great that it is unlikely that he will be able to resist it. This is
the language of choice and compulsion--not mechanism and causation (Morse,
2000). 

The addict has the experience of choosing just as a person experiencing
"duress" ("push the button or I'll kill you") has the experience of
choosing. Such situations involve a "hard choice" rather than "no choice."
Clinically, we are addressing what most accurately might be called
impairments of volition, not "involuntary" behavior. This important
conceptual distinction is needed to connect scientific and clinical ideas
about addiction to the vocabulary of responsibility. 

RELAPSE 

The nature of relapse is another issue too easily blurred by the brain
disease rhetoric. Even after detoxification and a period of abstinence,
addicts have a strong susceptibility to relapse. In fact, 40 to 60 percent
of patients treated for addiction relapse within a year, and the rate is
highest for tobacco addiction. It is said that this tendency to relapse is
not voluntary because the person has no control over conditioned responses
associated with previous drug taking. McLellan and colleagues (2000: 1691)
explain:. 

One neurobiological explanation for addicts' tendency to relapse lies in
the integration of the reward circuitry with the motivational, emotional
and memory centers that are co-located within the limbic system. These
interconnected regions allow the organism not only to experience the
pleasure of rewards, but also to learn the signals for them and to respond
in an anticipatory manner. Repeated pairing of a person (drug-using
friend), place (corner bar), thing (paycheck), or even an emotional state
(anger, depression) with drug use can lead to rapid and entrenched
learning or conditioning. Thus, previously drug-dependent individuals who
have been abstinent for long periods may encounter a person, place or
thing that previously was associated with their drug use, producing
significant physiologic reactions such as withdrawal-like symptoms and
profound subjective desire or craving for the drug. These responses can
combine to fuel the "loss of control" that is considered a hallmark of
drug dependence. 

Does it make sense to characterize relapse as involuntary under these
circumstances? The physiologically conditioned feelings may be
involuntarily aroused, and relapse may be made more likely by this
conditioning and the accompanying neurobiological changes. But the addict
is not an automaton, responding mindlessly to the environmental cues. What
is meant is that the addict has a strong predisposition or vulnerability
to relapse. Of course, relapse is not inevitable and its likelihood can be
reduced if addict will choose to avoid the contexts or environments that
tend to trigger relapse. 

Note that I have just simultaneously used the probabilistic vocabulary of
causation and the individual-centered language of choice. Clinically
speaking, the experience of compulsion is the experience of feeling that
one must choose to do something to avoid anxiety, pain, or dysphoria.
Similarly, whether a particular individual can avoid relapse is at least
partly affected by whether he or she chooses to take precautions, such as
to avoid the environmental cues. 

The central claim of this paper is that the concepts of disease and choice
are compatible, and that the law (which is based on our shared moral
intuitions) can easily incorporate advances in our understanding of the
neural substrates of addiction. The advances amend but do not displace the
vocabulary of choice. 

ONSET 

The same point is pertinent to the pre-addiction phase of drug use.
Although O'Brien and McLellan (1996: 237) say that drug use is "voluntary"
during this phase, they emphasize that the onset of drug use also has many
"involuntary components":. 

One reason why many physicians and the general public are unsympathetic
towards the addict is that addiction is perceived as being self- in
flicted: "they brought it on themselves." However, there are numerous
involuntary components in the addictive process, even in the early stages.
Although the choice to try a drug for the first time is voluntary, whether
the drug is taken can be influenced by external factors such as peer
pressure, price, and, in particular, availability.... Nonetheless, it is
true that, despite ready availability, most people exposed to drugs do not
go on to become addicts. Heredity is likely to influence the effects of
the initial sampling of the drug, and these effects are in turn likely to
be influential in modifying the course of continued use. Individuals for
whom the initial psychological responses to the drug are extremely
pleasurable may be more likely to repeat the drug taking and some of them
will develop an addiction. Some people seem to have an inherited tolerance
to alcohol, even without previous exposure. 

It is important to note that the concept of voluntariness is being used in
two different senses in this passage. With regard to any specific act of
using drugs, "compulsion" is the relevant sense, and this is what O'Brien
and McLellan mean when they say that drug use is "voluntary" before the
addiction switch is flipped, and "involuntary" afterward. However, when
they refer to the "involuntary" features of the early phases of the
addictive process, O'Brien and McLellan emphasize that certain factors
increase the probability that a particular person will be exposed to
drugs, will continue to use them, and will become addicted to them. Now
they are using the word "involuntary" in the "causation" sense. Note,
however, that the vocabulary of causation is not incompatible with the
vocabulary of choice in this context. For example, people who are aware of
their vulnerability might choose to behave in a way that reduces the risk
of addiction or, conversely, might knowingly take that risk. This is a
very important point, with implication for disease prevention in general:
all of us are in a position to take precautions to reduce the risk that we
will get heart disease, cancer, etc. (see table 1). 

ADDICTION AND LEGAL RESPONSIBILITY 

With these observations in mind, I will now explore legal concepts of
responsibility that track the clinical chronology of addiction: the
pre-addictive phase, period(s) of active addiction, and the period of
remission. 

RESPONSIBILITY FOR BECOMING ADDICTED 

We begin with whether people are responsible for becoming addicted. As
noted, everyone agrees that people choose (voluntarily) to initiate the
use of addictive drugs. The legal and ethical question of interest is
whether people who voluntarily choose to use addictive drugs are
responsible for all of the consequences of their actions, including
addiction. Should it be said, for example, that people who become addicted
have only themselves to blame and that they have no legitimate claim on
the society to insulate them from the consequences of their own folly?
Taking as a given that once addicted, the person has a brain disease, an
irreversible pathological process, under what circumstances does the
person bear responsibility for becoming addicted? This question has direct
bearing on some of the key policy aims of the public campaign now being
waged by the scientific leadership of the addiction field--access to
addiction treatment and nondiscriminatory access to health care and public
economic assistance. 

Whether drug users are responsible for becoming addicted connects to a
broader ethical question. When are people responsible for their own
disability or disease? Each of us can think of many cases of conscious
risk-taking that can lead to injury or disease, including riding a
motorcycle 100 mph without a helmet or engaging in promiscuous,
unprotected sexual behavior, not to mention smoking and the use of other
addictive drugs. However, as O'Brien and McLellan (1996) point out, many
people have the genetic good fortune to be essentially immune from these
conditions (because the effects of tobacco or the hormonal surge
associated with risk-taking are aversive to them), while others are
biologically predisposed to sensation seeking or to addiction. Again, we
have the mixed vocabulary of predisposition and choice. 

But judgments of responsibility are not made in the abstract like this;
they are contextual. Fundamentally, the underlying issue is whether the
distributive principle is need or fault. A person with an injury or
disease is ordinarily no less entitled to rescue, treatment, or continuing
support based on disability even though he or she may have contributed to
the onset or severity of the disabling condition. The distributive
principle in this context is need, not fault. Interestingly, addicts do
not now have equal access to health care and disability benefits.
Addiction treatment is often not covered under health insurance plans or
is subject to benefit restrictions not applicable to other covered
conditions. Addictive disorders are not in themselves a basis for
disability benefits under the applicable federal programs. Addicts have a
diminished priority in access to scarce medical resources (for example,
liver transplants). Whether these disadvantages are rooted in judgments of
personal responsibility is more ambiguous, because it is possible that
some of these restrictions can be explained or justified on grounds of
effectiveness and cost. To the extent that they are rooted in
controversial judgments of responsibility (see Glannon, 1998), the brain
disease formulation strengthens the claim of access. 

When the issue is compensation for the losses associated with addiction,
the distributive principle is fault; the general rule here is personal
responsibility based on an informed choice paradigm. However strong the
environmental influences, and whatever the person's individual
vulnerability, a person knowingly takes the risk of becoming addicted when
he or she uses drugs whose addictive properties are well known. Smokers
know about the risks of addiction, and drinkers of alcohol know about the
risks of alcoholism (see, for example, Seagram & Sons, Inc. v. McGuire,
814 S.W.2d 385, 1991). Undercover drug purchasers know about the risks of
using the goods they are buying, and are not entitled to compensation
under a worker's compensation program (DiGloria v. Chief of Police of
Methuen, 395 N.E. 2d 1297, 1979). Physicians who become addicted to
opiates diverted from the hospital pharmacy are responsible for their own
condition and will not be able to shift the blame to the hospital's
negligence in allowing access (Campo v. St. Lukes Hospital, 755 A.2d 20,
2000). 

Also note an important point implicit in what I have written. Obviously,
etiological literature could be assembled to show that some combination of
environmental, familial, and individual variables strongly predicts who
will use drugs and who will become addicted to them. But, in this
context--compensation for the consequences of addiction--the language of
the law is the language of choice and responsibility, not the language of
causation. 

The law reflects a fairly strong commitment to the rule of personal
responsibility for becoming addicted when one knowingly uses addictive
substances.(FN1) There is but one possible deviation from this rule: the
prospect of industry liability for addicting adolescents to tobacco and
alcohol. This potential exception reaffirms the rule: by marketing alcohol
and tobacco to children and adolescents, who are unable to appreciate the
consequences of their behavior, and especially the grip of addiction, the
manufacturers could be held liable for causing their addiction. 

RESPONSIBILITY FOR BEHAVIOR SYMPTOMATIC OF ADDICTION 

According to the standard vocabulary, the hallmark of addiction is loss of
control over drug use. So what? Are addicts responsible for using drugs
after the switch has been pulled? Are they responsible for other conduct
prerequisite to drug use--theft, for example? Or consequent to use (for
example, public drunkenness)? Does the brain disease formulation have a
bearing on these questions? 

The area of law most clearly relevant to responsibility for addictive
behavior is the criminal law. The law's response to addiction cannot be
fully understood without understanding a few general principles of
criminal responsibility. 

* Everyone over a certain age is perceived to have the capability to obey
the commands of the law. This is a key postulate of the rule of law: that
the law is generally and equally applicable to everyone. Lack of
responsibility must be regarded as a begrudging exception to the general
rule. 

* A very narrow exception has been traditionally recognized for people
with severe mental illnesses who lack the capacity to understand or
appreciate the moral significance of their conduct. 

* Although some states have expanded this exception to cover cases of
severe volitional impairment, this move has been highly controversial when
it is not limited to situations involving psychotic decompensation. That
is, the criminal law has been highly resistant to excusing offenders who
have what would be diagnosed as impulse disorders, paraphilias, or other
conditions that allegedly impair volition. 

* Setting aside the insanity defense, the criminal law has also been
resistant to excusing people who claim to have committed offenses because
their will was overwhelmed by strong emotions or pressures. The best
illustration is the defense of duress. A narrow defense has been
recognized for the extraordinary circumstances in which a person is
threatened with imminent death or serious bodily harm but not other kinds
of threats, including financial or social ruin, that would render the
threatening party guilty of extortion if he or she were seeking the
victim's money rather than his or her complicity in crime. 

Given this general resistance to volitional grounds of excuse, it should
come as no surprise that addiction has not been recognized as a defense in
prosecution for using drugs, being drunk, or other conduct symptomatic of
loss of control. 

Quite aside from the issue of responsibility, however, the wisdom of using
criminal prosecution as a means of dealing with problems of addiction has
been controversial for more than a century, with fluctuations of support
for criminalization and decriminalization. 

The ambivalence was reflected in two cases decided by the Supreme Court in
the 1960s in which the court was asked to push the states in the direction
of decriminalization through constitutional rulings. In Robinson v.
California (370 U.S. 660, 1962), the court held that convicting a person
for being an addict punishes a person for having a disease and amounts to
"cruel and unusual punishment" banned by the Eighth Amendment. Yet, as
legal commentators pointed out immediately, the decision implied that an
addict could not be punished for the symptoms of the disease, including
using drugs, or possessing them for this purpose. Thus, the court's ruling
in Robinson raised the possibility that the Constitution barred
criminalization of drug offenses committed by addicts. 

Six years later the court pulled back from this position when it decided
Powell v. Texas (392 U.S. 514, 1968). Powell, an alcoholic, was convicted
of public drunkenness. He argued that Robinson stands for a broad
principle of excuse--an addict cannot be punished for conduct symptomatic
of disease (a condition he is powerless to change). The court declined to
embrace this principle and read Robinson narrowly. According to the
prevailing view in Powell, although an addict like Robinson cannot be
punished for the status of being an addict, he or she can be punished for
conduct, such as possession or use. Similarly, Powell could not be
punished for being an alcoholic, but he could be punished for coming into
public while drunk. 

In the course of its opinion, the court mentioned two reasons for refusing
to take the law down the path of excuse. First, the prevailing justices
pointed out, we lack the tools needed to measure volitional impairment,
and thereby to differentiate between offenders who were "compelled" by
their addiction to use drugs and others who could have chosen not to
violate the law. Second, the court was concerned about the implications of
such a ruling for the fabric of legal rules governing criminal
responsibility: if an addict cannot be punished for using drugs, what
about conduct symptomatic of all other volitional disorders (now called
"impulse disorders" under DSM-IV) such as pyromania and kleptomania? Also,
constitutionalizing an excuse for volitional impairment would require all
the states to recognize a defense for what was then called an
"irresistible impulse" under laws governing the insanity defense. The
court did not want to unsettle the law of criminal responsibility. 

These concerns continue today. The advances in neuroscience that have
begun to elucidate the neural substrates of addiction reinforce the
argument for an excuse based on compulsion, but they have not yet begun to
answer these operational questions. Science has not yet connected the dots
between brain and behavior, between synaptic changes and the experience of
craving and compulsion. We still do not have validated behavioral models
of craving. 

The effect of Robinson and Powell was to ratify the traditional reluctance
of courts and legislatures to excuse addictive behavior. But it is
important to emphasize that these decisions are not incompatible with the
characterization of addiction as a "disease," or even as a "brain
disease." What they stand for is the proposition that, even if addiction
is a disease, the Constitution does not preclude punishment of addicts for
their unlawful conduct. Symptoms actually caused by disease are not
punishable, but conduct said to be "compelled" need not be excused. It may
diminish responsibility but it does not erase it. 

It should be clear that the brain disease formulation does not
fundamentally reconfigure the law governing responsibility for addictive
behavior. The argument for excuse is no more or less powerful than it was
before the recent advances in neuroscience. The disease concept does not
require an excuse for addictive behavior. As a matter of policy, however,
quite apart from the question of excuse, it is wise to forego punishment
in favor or treating addicted offenders, not only for consumption-related
offenses but also for other criminal conduct that may be linked to their
addiction. The most important policy question is whether criminal
sanctions can be used effectively and fairly to facilitate a successful
therapeutic intervention. Indeed, despite their emphasis on
destigmatization, I suspect that Doctors Leshner, O'Brien, and McLellan
and other proponents of a medical approach would resist decriminalization
of addictive behavior because doing so would remove an important source of
leverage for treatment. In my view, the strongest justification--if not
the sole one--for retaining criminal snactions against drug use is that
they provide therapeutic leverage. 

RESPONSIBILITY FOR RELAPSE 

To punish a severely addicted person for using drugs before detoxification
and short-term withdrawal may strike some people as harsh and unwise,
whether or not it is morally objectionable. But what about revoking a
defendant's probation for failing to remain dry or clean after agreeing to
do so or after signing a so-called last-chance agreement? Is requiring
abstinence as a condition of probation for an addict "reasonable"? Courts
have held that it is, at least when the offender's drug use was connected
to the offense. Using probation as a tool for keeping the addict engaged
in treatment and for prolonging the period of abstinence seems less
problematic because it aims to help the addict achieve personal
responsibility for managing his or her own condition. To put it another
way, it eschews punishment for addiction but it holds the offender
responsible for relapse. 

In the final part of this paper I want to explore the issue of
responsibility for managing one's own addiction. I will do so in the
context of modern disability law, specifically the employment provisions
of the Americans with Disabilities Act (ADA). The ADA embodies the
distinction between disease and conduct that, as we have seen, defines the
boundaries of responsibility under the penal law. Specifically, an
employer is permitted to establish generally applicable rules of conduct,
if they are justified by business necessity, and to hold all employers
accountable for violations even where the violation may be attributable to
the employee's disability. One example is making threats against coworkers
that might be symptomatic of a severe psychiatric disorder. 

Although addiction is a disability under the ADA and an employer may not
discriminate against an otherwise qualified person on grounds of
disability, rules of conduct basically trump the nondiscrimination
requirement of the ADA. Use of an illegal drug, even off the job, is
itself a lawful basis for exclusion or termination of employment, even
without any documented effect on performance. Employers are permitted to
prescribe random drug testing and to fire people who are "currently
engaging in the illegal use of drugs" regardless of whether their drug use
is symptomatic of addiction. Even though use of alcohol off the job is not
illegal and does not ordinarily implicate any rule of conduct for
employees, most employers have sound business reasons to ban intoxication
on the job or even to ban use of alcohol at the workplace, and would be
permitted to enforce such rules against everyone, including alcoholic
employees. 

What an employer cannot do is discriminate, on the basis of disability,
against a person who has completed or is participating in an addiction
rehabilitation program. Enrolling in treatment provides a safe harbor for
addicted employees as long as they comply with the conditions of treatment
(see, for example, Hall v. Jewish Hospital of Cincinnati, 2000 WL 707073
(Ohio App., 2000)). This may require employers to accommodate the demands
of treatment. The effect of the ADA, then, is to promote
self-identification, grant a safe harbor for treatment, and use continued
employment as the lever to promote therapeutic compliance. By creating the
safe harbor, the law invites addicted employees to take responsibility for
ameliorating their addiction. Negotiations regarding the conditions of
treatment occur within the shadow of the ADA. But once the conditions are
set, the employee bears the risk of noncompliance. 

Let me illustrate this process with the case of William Mararri, a
steelworker whose alcoholism was accommodated by allowing him to enter
into a last-chance agreement after he twice violated bans against
workplace intoxication. The last-chance agreement required him to submit
urine samples on request for five years and specified that a positive test
at any level would be sufficient cause for termination, as would reporting
for work after having consumed alcohol. After he was fired for failing a
urine screen, Mararri sued under the ADA. The United States Court of
Appeals for the Sixth Circuit held that firing Mararri for failing a urine
test administered pursuant to a valid last-change agreement did not
violate the ADA even though it was not a companywide policy (Mararri v.
WCI Steel, Inc, 130 F.3d 1189, 1997). 

Mararri's company had chosen to accommodate his alcoholism when it might
have lawfully discharged him from the outset for being intoxicated on the
job. In other cases, however, the last-chance agreement itself might be a
reasonable accommodation of employees with a history of relapse. Either
way, once the agreement is signed, the employee's job is hostage to his or
her compliance with its terms. Some disability rights advocates might
regard this arrangement as unduly paternalistic, arguing that employers
should not have the authority to prescribe conditions of treatment.
Whether or not this approach is ethically appropriate, it does seem to
represent the prevailing understanding of the ADA. It also casts the
characterization of addiction as a chronic relapsing disorder in a
somewhat different light: it emphasizes responsibility rather than excuse,
and it also raises questions about the generalizability of the principle
embedded in the addiction cases. Is this a special rule for addicted
employees or does it represent a more general principle of disability
employment discrimination law? Several recent cases--involving diabetes,
bipolar disorder and asthma--strongly suggest that a more general
principle is emerging. 

James Siefken was diagnosed with diabetes in 1987. Five years later he was
hired by the village of Arlington Heights, Illinois, as a police officer.
The village government knew of his condition but assumed that he was
capable of carrying out his duties safely as long as he monitored his
condition and took his medication. However, because Siefken did not
properly monitor his condition, he experienced a diabetic reaction with
resulting disorientation and memory loss while he was driving his squad
car and, as a result, drove erratically and at high speed. After he was
fired, he sued Arlington Heights under the ADA, arguing that he had been
discriminated against because of his disability. His claim was dismissed
by the federal courts on the ground that he was fired not on the basis of
disability but rather "due to his failure to control a controllable
disability" (Siefken v. Village of Arlington Heights, 65 F.3d 664, 1995). 

Consider also the case of Jessica Keoughan, who was fired from her job as
a flight attendant by Delta Airlines in 1994 after several years of
episodic absenteeism. She claimed that her absenteeism was due to manic
phases of bipolar illness. The evidence showed that Ms. Keoughan's
disorder was controlled when she took her lithium and that her absences
were attributable to her failure to take her medication. The court ruled
that the dismissal was not on grounds of disability but rather her failure
to manage or ameliorate an otherwise controllable disorder (Keoghan v.
Delta Airlines, 113 F.3d 1246, 1997). 

Dimitra Tangires was hired by Johns Hopkins Hospital as an interior
designer in 1984 and notified the hospital that she had asthma and some
related ailments. No accommodations were needed. In 1992, she took a
medical leave, although no accommodations were requested when she returned
to work. The next year she was hospitalized for a bronchial infection, an
asthma attack, a collapsed lung, and other respiratory conditions
apparently triggered when she was exposed to fumes from a broken furnace
at her parents' home. Instead of granting her a medical leave, Hopkins
Hospital placed her on medical layoff pursuant to its written policy on
grounds of business necessity. After her internal grievance was denied,
she filed suit, alleging disability discrimination under the ADA. The
federal district court in Maryland granted summary judgment for the
hospital on the ground that Ms. Tangires' condition was correctable by
steroid medication, and that the exacerbations of her condition were
attributable to her failure to comply with her physician's
recommendations. Accordingly, the court held, she did not have a
disability under the ADA (Tangires v. The Johns Hopkins Hospital, 79
F.Supp.2d 587, affirmed 230 F.3d 1354, 2000). 

The principle of these cases is that people have a responsibility to
ameliorate and manage their own disability. This means seeking treatment
when the disorder is identified and complying with medical direction. An
employer has an obligation under the ADA to accommodate such an employee
only to the extent that the residual impairments lie outside the
employee's control. Only then is it fair to shift the costs of
accommodation to the employer. 

In summary, to characterize addiction as a disease is not necessarily
morally incompatible with saying that addicts are responsible for yielding
to it. This is admittedly a demanding approach to responsibility, but our
criminal law has always set the bar pretty high. Holding addicts
responsible is also strongly supported on utilitarian grounds because the
threat of sanctions provides leverage to press them into treatment. Such a
stern approach may be thought to be both unfair and unduly paternalistic.
However, focusing on relapse suggests a more gentle, less jarring way of
thinking about the addict's responsibility: after detoxification and acute
treatment, the addict is responsible for taking steps to manage his or her
addiction. 

In this connection, the similarity between addiction and other chronic
diseases, which lies at the heart of the brain disease claim, is
particularly important. Yes, addiction is best understood as a chronic
relapsing disorder. This helps to establish realistic expectations for the
benefits of treatment. But it also emphasizes the important role of
behavior in disease management and points in the direction of a theory of
responsibility for managing one's own illness. 

SUMMARY 

I began by taking note of the campaign now being waged by our nation's
scientific and public health leadership to nurture a medical and public
health approach to addiction--a campaign whose motto is that addiction is
a brain disease. Some addiction experts have a strong reservation about
this campaign. I do not. I believe that an emphasis on the biological
underpinnings of addiction is a good thing:. 

* framing addiction as a chronic disease analogous to other chronic
diseases characterized by intermittent relapse helps to promote an
investment in treatment and nurtures supportive attitudes among
physicians, families, insurers, and legislators;. 

* emphasizing the biological elements of addiction helps to counter the
attributions of moral weakness that have impeded support for a therapeutic
approach to this condition;. 

* medicalization helps to reinforce support for continued investment in
addiction research within the biomedical research establishment and among
policymakers. Neuroscience research has spearheaded major advances in
understanding addiction and can reasonably be expected to yield
pharmacological innovations in the near term. 

But--as Dr. Alan Leshner is always quick to point out--addiction is not
just a brain disease. Equal emphasis should be given to the behavioral
components of addiction and, in particular, to the role of personal
responsibility. Although the main objective of the analogy between
addiction and other chronic diseases has been to "normalize" addiction and
to emphasize its biological features, this analogy is also helpful for the
opposite reason: it calls attention to the behavioral features of asthma,
hypertension, and diabetes, and to the importance of accepting personal
responsibility for managing one's own condition. 

More specifically, the "official line," so to speak, should emphasize that
characterizing addiction as a brain disease is not incompatible with the
vocabulary of choice and responsibility. As both biological and behavioral
knowledge continues to advance, we can expect to learn more about the
factors within individual control that will enable an individual to reduce
the risk of relapse, or perhaps, of becoming addicted in the first
instance. 

Added material. 

TABLE 1. 

(TABLE)Vocabulary of Causation Vocabulary of Choice 

determinants of initiation, escalation conscious risk-taking 

disease mechanism compulsion/hard choice 

determinants of abstinence, relapse conscious risk-reduction. 

FOOTNOTE 

1 Medical use of drugs whose addictive properties are unknown can give
rise to manufacturer liability. Crocker v. Winthrop Laboratories (514
S.W.2d 429, 1974) is illustrative of a series of suits brought
successfully in the 1970s against the manufacturer of Talwin, a pain
reliever not know by its users to be addictive. 

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