Does Drug Use Make You Bad?

 By Universal Pictures (Touch of Evil trailer) [Public domain], via Wikimedia Commons

Study of Prison Inmates Suggests Yes

In a prior post we asked the question whether alcohol makes you sick. Long ago we asked whether alcohol makes you stupid. Now we ask whether drug use makes you bad.

People who can’t tell right from wrong often get arrested and incarcerated.  Now it turns out that repeated drug use may impair the region of the brain responsible for moral decision-making. In other words, heavy drug users may lose the ability to completely tell right from wrong, so they go on to commit crime.

Well, that's kind of the conclusion reached in a study of prison inmates, entitled Abnormal fronto-limbic engagement in incarcerated stimulant users during moral processing, and published in Psychopharmacology.

We’re not talking about all illegal drugs, but the stimulants cocaine and methamphetamines. Chronic cocaine and meth users seem to have difficulty integrating emotions into their moral processing. That would mean a decision concerning whether or not to perform certain immoral/criminal acts would not be limited by emotions or feelings of guilt, shame, sorrow, or remorse.

Okay, so long term cocaine and meth use doesn't make you bad, but it does seem to impair the part of the brain responsible for moral processing.  


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Substance Use Disorder

Not Substance Abuse v. Dependence

By Mario Antonio Pena Zapatería (https://www.flickr.com/photos/oneras/3449142109) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) is used by medical professionals to diagnose and classify mental disorders. More importantly for the sake of the Drunk Lawyer Blog, it is used to classify and diagnose those with drug and alcohol problems.

Prior to 2013, the DSM separated those drug and alcohol problems into either substance abuse or substance dependent. Individuals with at least one out of four possible symptoms could be diagnosed as alcohol abusers. An individual with at least three out of seven possible symptoms could be diagnosed as addicted.

The symptoms for substance abuse could be:

1. Substance use resulting in a recurrent failure to fulfill work, school, or home obligations (work absences, substance-related school suspensions, neglect of children).
2. Substance use in physically hazardous situations such as driving or operating machinery.
3. Substance use resulting in legal problems such as drug-related arrests.
4. Continued substance use despite negative social and relationship consequences of use.

The seven symptoms, at least three of which had to be met during a given 12-month period, for the diagnosis of substance dependence, were:

1. Tolerance, as defined either by the need for increasing amounts of the substance to obtain the desired effect or by experiencing less effect with extended use of the same amount of the substance.
2. Withdrawal, as exhibited either by experiencing unpleasant mental, physiological, and emotional changes when drug-taking ceases or by using the substance as a way to relieve or prevent withdrawal symptoms.
3. Longer duration of taking substance or use in greater quantities than was originally intended.
4. Persistent desire or repeated unsuccessful efforts to stop or lessen substance use.
5. A relatively large amount of time spent in securing and using the substance, or in recovering from the effects of the substance.
6. Important work and social activities reduced because of substance use.
7. Continued substance use despite negative physical and psychological effects of use.

The DSM-5 no longer uses the terms substance abuse and substance dependence.  Instead it identifies substance use disorders. A substance use disorder can be mild, moderate, or severe to indicate the level of severity, which is determined by the number of diagnostic criteria met by an individual. 

Substance use disorders occur when the recurrent use of alcohol or drugs causes clinically and functionally significant impairment, such as health problems, disability, and failure to meet major responsibilities at work, school, or home. According to the DSM-5, a diagnosis of substance use disorder is based on evidence of impaired control, social impairment, risky use, and pharmacological criteria.

Impaired Control

• Alcohol is often taken in larger amounts or over a longer period than was intended. 
• There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
• A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
• Craving, or a strong desire or urge to use alcohol. 

Social Impairment

• Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home.
• Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
• Important social, occupational, or recreational activities are given up or reduced because of alcohol use.  

Risky Use of the Substance

• Recurrent alcohol use in situations in which it is physically hazardous.
• Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.

Pharmacological Criteria

• Tolerance, as defined by either a) a need for markedly increased amounts of
• alcohol to achieve intoxication or desired effect, or b) a markedly diminished effect with continued use of the same amount of alcohol.
• Withdrawal, as manifested by either a) the characteristic withdrawal syndrome for alcohol, or b) alcohol (or a closely related substance) is taken to relieve or avoid withdrawal symptoms

Mildly affected individuals have two or three symptoms, while moderately affected individuals have four or five. Physicians identify a severe substance use disorder in people with six or more symptoms of abuse/addiction.

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Florida Attorney Arrested Trying to Purchase Cocaine

By Unknown, U.S. Government photo available through the National Archives [Public domain], via Wikimedia Commons

We hate reporting items like this, but we feel it is part of our mission to raise awareness of substance abuse and addiction in the legal community. 

Earlier this month a Florida attorney was arrested after he tried to purchase cocaine from an undercover Florida State University police officer. The story is here.

In the late afternoon, the attorney is accused of getting into a car with the undercover officer and trying to buy $800 worth of cocaine - abouit 10 grams. It is important to note that an arrest is not a conviction, and he has pled non-guilty. We make no judgments about the attorney. He is innocent until proved guilty.

For everyone else in the legal profession, remember that we attorneys face tremendous stress as part of our every day work. Perhaps as a consequence, attorneys as a profession suffer higher rates of alcohol abuse and addiction than the general public. Additionally, when attorneys turn to illegal drugs, the substance of choice is normally cocaine.  

That's why most states require attorneys to complete continuing legal education in the prevention of substance abuse. 

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Is Addiction Caused By Character Flaws?

The Moral Model of Addiction

By Libertinus Yomango (originally posted to Flickr as Shame) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

There are many people, especially in certain religious groups and the legal system, who attribute alcohol and drug addiction - and many other forms of addiction - to personal choices caused by an individual's character flaws. This is referred to as the moral model of addiction.

Those who accept this view, perhaps the majority in Traynor v. Turnage, 485 U.S. 535 (1988), explain substance abuse and addiction on the grounds that: 1) a person with greater moral strength could have the force of will to break an addiction, or 2) the addict demonstrated a great moral failure in the first place by starting the addiction. They have little sympathy for individuals with serious drug and alcohol addictions.

The moral model of addiction doesn’t acknowledge biological or genetic factors. It blames addiction on an individual's poor choices and lack of willpower or moral strength. Support for this theory is seen in the fact that drug and alcohol addiction is often associated with immoral activities like prostitution and other crimes. Punishment for addiction related crimes, such as for DUI, or being drunk in public, are intended to motivate people to behave properly.

The downside of the moral model of addiction is that it may create in some the belief that addicts are immoral. Consequently, addicts who have been taught to accepts this view, or are surrounded by those who do, may blame themselves for their addiction problems and feel great shame. These feelings make it more difficult for people suffering from abuse and addiction problems to seek help when they need it.

The National Institute on Alcohol Abuse and Alcoholism recognizes alcoholism as a disease - not a character flaw - that includes: craving, loss of control, physical dependence, and tolerance.

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The Dissent in Traynor v Turnage

Alcoholism Should Not Be Presumed to be Caused by Willful Misconduct

In our last blog post, we looked at the majority decision in Traynor v. Turnage, 485 U.S. 535 (1988), upholding a Veterans' Administration (VA) regulation that defined primary alcoholism as "willful misconduct." Today, we look at the three-Justice dissent.

By The U.S. Army (Veterans remember Prisoners of War) [Public domain], via Wikimedia Commons

The Traynor majority ruled that two Vietnam War veterans, who were in recovery for alcoholism, were not entitled to an extension of time in which to use their GI Bill education benefits. Under the law, veterans had to exhaust their educational benefits within 10 years of their military service. Extensions were only allowed for veterans who could not use their benefits because of a disability not caused by their willful misconduct.  Because VA regulations defined alcoholism as willful misconduct, the VA denied the veterans' requests for extensions, and the Court upheld those denials.

The dissenting opinion by Justice Blackmun, joined by Justices Brennan and Marshall, concerned the majority's upholding of the regulation whereby the VA presumed, irrebuttably, that primary alcoholism always is the result of the veteran's "own willful misconduct."  Justice Blackmun shared facts about the named veterans, that were not presented in the majority opinion, to show how that presumption is flawed.

The first veteran, plaintiff Eugene Traynor, began drinking when he was eight or nine years old. He drank with increasing frequency throughout his teenage years, and was suffering alcohol-related seizures by the time he was on active military duty in Vietnam. During the four years following his honorable discharge in 1969, Traynor was hospitalized repeatedly for alcoholism and related illnesses.  Not until 1974 - five years after his discharge - did Traynor conquer his drinking problem. He attended college part-time beginning in 1977, and continued working toward his degree until the 10-year period for using his veteran's educational benefits expired for him in 1979.  Because of the VA regulation, Traynor was presumed to have brought his alcoholism upon himself through "willful misconduct." He was therefore unable to obtain an extension of the 10 year limitation period to utilize all of his GI educational benefits.

The other veteran, plaintiff James P. Mckelvey, also started drinking when he was a child. By the time he was 13, he began to develop the alcohol dependency that was common among members of his family. His drinking problem plagued him while he was in the Army, and afterwards. He was hospitalized frequently during the nine years that followed his honorable discharge in 1966. Mckelvey finally obtained sobriety in 1975, only a year and a half before his 10-year delimiting period expired. The VA denied Mckelvey's request for an extension because his disability, primary alcoholism, was conclusively presumed to have been caused by his "own willful misconduct."

The dissent noted that the VA's regulation deprived each of these veterans of any opportunity to establish that, in his particular case, disabling alcoholism was not willfully incurred.

Justice Blackmun wrote:

While some primary alcoholics may well owe their disability to willful misconduct, as delineated by the regulation, the VA has failed to demonstrate that all primary alcoholics had any awareness that their initial drinking was likely to result in serious injury. Nor, in many cases, would it be appropriate to describe one's gradual development of alcohol dependency as evidence of "wanton and reckless disregard of [drinking's] probable consequences." Indeed, I wonder how one meaningfully can ascribe such intent and appreciation of long-range consequences to a 9- or 13-year-old boy who follows the lead of his adult role models in taking his first drinks.

Justice Blackmun then noted that the diagnosis of alcoholism, as recognized by the medical community, requires an individualized assessment to fully understand the cause of alcoholism in each person. Presumably, evidence concerning the circumstances surrounding a veteran's development of alcohol dependence -- including his age, home environment, and psychological health -- always will be relevant to this assessment, and may not suggest willful misconduct.

The dissent concluded that the VA failed to demonstrate that any legislative or medical determinations justify its conclusive presumption that the veterans' alcoholism were incurred willfully. The dissent would have remanded the case back to the VA for individualized determinations, based on sound medical judgments whether the veterans were entitled to the extensions of time to receive all of their veterans' educational benefits.

That would have been the more reasonable approach in our opinion.

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The Supreme Court and the Disease Concept of Alcoholism

350z33 at English Wikipedia [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons

Has the U.S. Supreme Court ever been confronted with the issue of whether alcoholism is a disease?   Yes, as a matter of fact, in the 1988 case, Traynor v. Turnage, 485 U.S. 535 (1988).  But it punted.

In Traynor, two honorably discharged veterans, who suffered from years of alcohol addiction, failed to use all of their GI Bill educational assistance benefits within 10 years of their military service.  Federal law required veterans to use such benefits within that time frame, or forfeit the unused amount.  But the law allowed veterans to request an extension of the 10 year period if they were prevented from using their benefits by a physical or mental disorder which was not the result of their own willful misconduct.  The veterans applied to the Veterans' Administration (VA), claiming they were entitled to the extension on the ground that they were disabled by alcoholism during much of the 10 year period.

The VA denied the veterans' extension requests, because its regulations defined alcoholism as "willful misconduct."  Petitioners filed separate federal court actions - one in the Second Circuit and the other in the D.C. Circuit - seeking judicial review of the VA's decisions.

Procedural History

The procedural history is interesting because the Second Circuit held that veterans were not even entitled to judicial review of VA determinations made pursuant to the particular federal law. The VA denial was therefore upheld.  In contrast, the D.C. Circuit held that VA determinations were subject to judicial review, but nevertheless sided with the VA.  The court reasoned that the VA could reasonably conclude that alcoholism is a "willfully caused handicap" unless attributable to an underlying psychiatric disorder.

The Supreme Court first held that the question whether a VA regulation violates federal law is subject to judicial review, and went on to address the merits of the veterans' claims.

Decision on the Merits

The Court observed that since World War II, Congress had always imposed time limitations on the use of GI Bill educational benefits.  In 1977, Congress created an exception to the current 10-year delimiting period for veterans who were forced to delay their education because of a physical or mental disability, as long as that disability was not the result of their own willful misconduct.

Congress has long used the term "willful misconduct" in veterans' benefits statutes.  The term has been used to deny compensation for service-connected disabilities that are "the result of the veteran's own willful misconduct."  Interpreting these statutes, the VA has long promulgated regulations construing the term "willful misconduct" to include alcoholism not caused by an underlying psychiatric disorder.

Congress was presumed to know about the VA regulations at the time it enacted the 1977 legislation. The Court thus reasoned that if Congress had intended alcoholism not be deemed "willful misconduct," as it had been deemed for purposes of other veterans' benefits statutes, "Congress most certainly would have said so."

The Court did not believe VA regulations to be unreasonable, because a veteran who claims to have been disabled by alcoholism is entitled to an individualized assessment of whether his or her condition was the result of a mental illness, and not due to willful misconduct.

The American Medical Association (AMA) has classified alcoholism as a disease since 1957.  But that did not sway the Court.  The Court, quoting the D.C. Circuit, noted that "a substantial body of medical literature . . . contests the proposition that alcoholism is a disease, much less that it is a disease for which the victim bears no responsibility."

The Court noted:

Indeed, even among many who consider alcoholism a "disease" to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary.  

Yet the Traynor decision should not be regarded as the complete repudiation of the disease concept of alcoholism.  The Court offered these closing remarks, possibly to assure the AMA, that it was remaining neutral.

This litigation does not require the Court to decide whether alcoholism is a disease whose course its victims cannot control. It is not our role to resolve this medical issue, on which the authorities remain sharply divided. Our task is to decide whether Congress intended . . .  to reject the position taken on the issue by the Veterans' Administration and by Congress itself only one year earlier. In our view, it is by no means clear that [the federal statute] and the characterization of . . . alcoholism as a willfully incurred disability are in irreconcilable conflict. If petitioners and their proponents continue to believe that this position is erroneous, their arguments are better presented to Congress than to the courts.

In our next post, we'll take a look at the dissenting opinion in Traynor.

Eckhart Tolle's Advice For Dealing With Addiction

By Kotivalo (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

Eckhart Tolle, for those of you who do not know, is regarded as one of the most spiritually influential individuals in the world. He has authored several books, including The Power of Now, and A New Earth: Awakening to your Life's Purpose. A New Earth became the first spiritual book to be selected for Oprah Winfrey's 's Book Club as well as the subject of a ten-week online workshop co-taught by Eckhart and Oprah.

By Kyle Hoobin (twitter.com/kylehoobin) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

So why are we mentioning Tolle in the Drunk Lawyer Blog? In A New Earth, Tolle provides some advice for individuals suffering from addiction problems. On page 246 of my paperback edition of A New Earth, Tolle describes an addiction as "a long-standing compulsive behavior pattern." To some addicts, this behavior takes on its own subpersonality that may possess the mind of an addict at times.

Many addicts, such as those in Alcoholics Anonymous, live with, and overcome, their addiction "one day at a time." Abstaining from their addiction for the rest of their lives may seem like an insurmountable task. But focusing on just today - living in the now and not thinking about the future - makes achieving sobriety manageable.

Tolle's advice seems geared for that day-to-day challenge. He says that when an addict observes the compulsion arising to engage in some form of destructive conduct (be it smoking, drinking, drugs, gambling, porn, the internet, etc), the addict should try this simple practice: Stop what ever it is you are doing or thinking, and take three conscious breaths. That means to observe your deep inhalations and exhalations. Then become aware of the compulsive need arising inside you. You can sense it, and feel it. Realize that you are the observer watching it. Then take more deliberate, conscious breaths.

Tolle believes that just this practice of conscious breathing to make you aware and in the present may be enough for the compulsive urge to disappear in some individuals. If not, don't give up. He believes that continued practice of this conscious breathing technique will eventually cause the addiction pattern to weaken and dissolve.

The essence of Tolle's teaching is that you are not your addiction, you are not even your body. You are consciousness without conditions. Your true self is formless and eternal. So taking those conscious breaths helps you become still and remember who and what you are.

Peace.