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Some topics are hard because their subjects are complex and difficult. Sometimes, however, a topic can be hard not because the nature of its subject matter makes it so, but because those who have previously written about it have

made it hard.308 The relation of addiction to responsibility is a hard topic for the

first reason, but it is also a difficult topic for the second reason as well. There are now such a number of blind alleys, tangents, and confusions introduced by the now vast literature on this topic that it is often difficult to see the real problems. Part of the ambition for this Article is just to clear these intellectual tangles so that the issues and paths for future research can be seen clearly. I have not orga- nized this Article around these confusions—the discussion is rather organized in the manner described in the introduction as an undertaking of the three-fold tasks of describing, explaining, and evaluating addiction, with a neuroscience redux of these three tasks at the end. Yet during the course of the argument that completes these three tasks, I have sought to defuse a number of mistakes in the literature that would otherwise get in the way of framing the right questions to pursue. These have included:

1. To confuse the adjudicative question of moral excuse and legal defense, with the legislative question of moral wrongdoing and criminalization. Some of those who argue that addiction should be an excuse and a defense really think that the wrongs and crimes of which addicts are mostly charged—possession and use of drugs—are not really moral wrongs and therefore should not be crimes at

all. My own libertarianism strongly inclines me to agree with this latter view.309

But that has nothing to do with the issue of excuse and defense. For that latter issue, the question is whether addicts are compelled to serve their addiction in ways and to an extent that excuses such acts of acquisition and use of drugs; the question assumes that such acts are crimes and thus are moral wrongs—either because prohibited by law or antecedently so—because if that were not so, no issue of excuse could arise. Even if one thinks that the moral part of that assump- tion is wrong, as do I, one should welcome the separate discussion of excuse because some acts by addicts that are not possession and use but are nonetheless in the service of their addiction, are wrong by anyone’s theory of morality; hom-

icide and theft in the acquisition of drugs comes to mind.310 In addition, however

wrongheaded they may be, the present laws under which we live do criminalize drug possession and use, and the issue of legal defense based on moral excuse is thus quite real and pressing.

308. I fear that I have done a bit of that myself in times past. E.g., my law partner Jerry Falk saying to me when I left practice and handed him my litigation files, “Did you just happen to get all the complicated cases in the office or did you make them that way?”

309. Moore, Liberty and Drugs, supra note 119.

310. An example is provided by the recent Canadian arbitration decision about a nurse who stole her pa- tients’ drugs to feed her own addiction. Peter Smith, Nurse Who Stole Opioids Wins her Job Back Because Ad- diction Is a Disease, Arbitrator Rules, NAT’L POST. (Jan. 18, 2019, 2:01 PM), https://nationalpost. com/news/nurse-who-stole-opioids-wins-her-job-back-because-addiction-is-a-disease-arbitrator-rules. I take her theft to be a serious moral wrong that should legally be prohibited and punished. The issue of excuse is thus squarely present in such cases even in legal regimes much more libertarian than our own in their drug policies.

2. To conclude that if retributivism is unjustified as a theory of punishment then the only question to ask about the punishment of addicts is whether the harsh treatment necessarily involved in punishment works to prevent recurrence of use, not whether such harsh treatment is undeserved. Many of those who write about the responsibility of addicts, particularly within medicine and neuroscience, are

unsympathetic to retributivism.311 _{And if retributivism is rejected generally as}

they think it should be, they infer that the question of whether addicts are suffi- ciently responsible to deserve punishment drops away—the only question is one of therapeutic efficacy, namely, is punishment (imprisonment and moral con- demnation) a way of curing addiction? And of course, they are skeptical about that. But this ignores one of the major contributions to criminal law theory made by Herbert Hart, namely, the recognition that nonretributivists should care about

moral blameworthiness and desert even though they reject retributivism.312 _Even

if desert is not a reason to punish as the retributivist believes, it still can be (and is in fact) a reason not to punish when it is absent. The question of moral excuse for addicts is thus a very live question for retributivists and nonretributivists alike.

3. To infer that addicts must be excused whenever neuroscience, medicine, or some other science finds that their criminal behavior is caused by genetic, environmental, and brain factors that they do not control. (A related mistake is to infer excuse whenever a mechanical process in the brain is discovered to un-

derlie or constitute the mental processes of decision by addicts.)313 The mistake

is a mistake because fully responsible choices may be made by addicts like eve- ryone else even though those choices are identical to, or caused by, mechanistic or other causes in the brain. Excuse lies in compulsion, not in causation or in mechanistic reduction.

4. To conclude that addicts must be excused if their addiction can rightly be characterized as an illness or a brain disease. As we saw in Part II, being ill or diseased are medical conclusions having no import for moral or legal issues of

excuse.314 _{It is very unfortunate that so much of the literature portrays the moral}

issue of excuse as being determined by the simple dichotomy of “choice versus disease” models of addiction. It is also unfortunate that the issue when cast in these terms has become politicized so that it is now a battle cry rallying the troops

to the barricades for either conservatives (“choice”) or liberals (“disease”).315

5. To conclude that addicts are not to be excused for their acts as addicts, no matter how compelled those acts might be, because almost all addicts at some point in time voluntarily ingested the drugs that eventually made them addicts and thereby culpably caused the conditions of their putative excuse. This is the

311. I am not among those. See, e.g., Moore, The Moral Worth of Retribution, in PLACING BLAME,supra note 103, at 110–12.

312. See H.L.A.HART,PUNISHMENT AND RESPONSIBILITY (1968).

313. These are two of the four mistakes I unravel in my forthcoming book, MICHAEL S.MOORE, MECHANICAL CHOICES:THE RESPONSIBILITY OF THE HUMAN MACHINE (2020).

314. See supra note 26 and accompanying text.

315. See, e.g., Editorial, If Addiction Is a Disease, Why Is Relapsing a Crime?, N.Y.TIMES (May 29, 2018), https://www.nytimes.com/2018/05/29/opinion/addiction-relapse-prosecutions.html.

mirror image of the previous mistake in that both purport to provide “Alexan-

drian” solutions to the knotty problems of addiction,316 _{the one by slicing through}

all complexities by easily concluding that no addict is responsible and the other equally easily concluding that they all are. Each of these mistakes, while pur- porting to be a shortcut to truth, have instead been blind alleys taking theorists further away from the real issues.

There are other, less general mistakes that have also impeded progress here, such as the mistake of thinking that the loss of opportunity occasioned by withdrawal can provide grounds for excuse, or the mistake of thinking that the kind of control needed for responsibility is not just control of one’s actions and of one’s choices but that one must also have control of the existence of the desires that motivate choice. In any case, once all of these distracting confusions are put aside so that the complexity of the problem can be seen aright, my conclusions on the merits can be summarized in the paragraphs that follow.

My conclusions from Part II have been: that the common concerns of law, ethics, medicine, and neuroscience converge enough to think that all such disci- plines and professions have reason to work with a shared conceptualization of addiction; that that shared conceptualization of addiction with which doctors, lawyers, moralists, and neuroscientists should work is that of continued and ex- cessive craving for, and use of drugs, in the face of knowledge by users that that use causes serious problems to their lives; and that one should not completely separate such conceptualization from the explanations science discovers about addiction, nor from the features of addiction that its moral evaluation as a poten- tial excuse might add, making any such conceptualization tentative and hostage to the future insights of both science and ethics.

Further, my conclusions from Part III were: that the background for under- standing the decisions of addicts to use drugs lies in the general schema of the folk psychology by virtue of which we explain the actions of persons in terms of their characters, desires, values, beliefs, intentions, likes, and volitions, all of which are related by our notion of what constitutes rational agency; that the rea- soning of that large subclass of addicts we called “unwilling” addicts can display a variety of different breakdowns in this model of practical rationality, break- downs we rightly characterize as defects of rationality; that there is no one defect of rationality universally present in all choices by addicts to use drugs but that different addicts on different occasions seem to display different irrationalities; that as a matter of folk psychology, limited as that psychology is to behavioral and phenomenological evidence, no one model of addictive reasoning can be seen to predominate.

Further, my conclusions from Part IV have been: that, following on the prolixity of explanations for how and in what ways addicts may be irrational in their choices, there can be no simple, yes-or-no, across the board answer to the question of whether addicts should be excused for their addiction-related behav- iors; that nonetheless most of the defects in the rationality of addicted decision-

316. The allusion in the text is to Alexander’s famous “solution” to the problem of untying the Gordian Knot, the solution being to cut the Knot through with his sword.

making do nor rise to the level of moral excuse (and thus, not of legal defense), yet even with our present knowledge some defects do generate such an excuse and defense; that when the latter situation obtains, the excuse is usually only a partial one, mitigating but not eliminating responsibility and punishment.

Further, my conclusions from Part V have been: that the neuroscience of the late Twentieth Century produced a lotus-fruit kind of explanation of the be- havior of addicts which if true had the potential to excuse virtually all repeat users of drugs, including but not limited to addicted users; but that such “demon drug” explanation turned out not to be true in certain crucial respects; that con- temporary, Twenty-First Century neuroscience has deepened our explanation of addicted decision-making and focused that explanation on a few of the many factors part of the folk psychological explanation of addiction; that as yet such neuroscience has not produced the holy grail of explanations for purposes of ex- cusing addicts, namely, an explanation showing that despite appearances there is no choice by addicts to use drugs, or showing how the choices that addicts do make in this regard are inefficacious in causing the actions chosen, or showing how such choices are themselves not the product of what the addict most wants or most values; that the existence of such an explanation must await future dis- coveries, discoveries that are possible but far from inevitable.