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«Kent Academic Repository – Addiction in public health and criminal justice system governance: neuroscience, enhancement and ...»

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Post-genomic genetics, neuroscience and the governance of addiction Criminal justice and public health governance both deploy the notion of addiction as a central trope. If we are seen as addicted, we have harmed ourselves through an unhealthy seeking after pleasure, and pose harm to others through placing excess burdens on healthcare resources, or committing crimes to fund our drug abuse. Yet classification of psychoactive substances as lawful (alcohol, nicotine), unlawful (cocaine) and/or medicinal (opiates, cannabis) is socio-historically contingent,23 and fails to conform with their potential to harm our health.24 Nonetheless, sizeable tax revenues from alcohol and tobacco, combined with international agreements mandating a war on drugs, have sustained a categorisation which conflicts with both the impetus to enhancement and with those who assert rights to cognitive liberty.25 We, as self-reflexive citizens, are expected to exercise our wills judiciously, to choose lawful pleasures and to maintain healthy lifestyles. Those of us who do not are liable to be seen as engaging in sub-optimal choices, and to be condemned for losing control. 26 Should we be deemed to seek pleasure excessively or inappropriately through consuming unlawful psychoactive substances, we may be subsumed under criminal justice or public health models and punished or treated for addiction accordingly.

How far might post-genomic genetics and neuroscience anchor policy here? Some of us find ourselves unwilling or unable to restrict our pleasures. Research establishing the neurochemistry of reward pathways in the brain has associated this with genetic susceptibilities. Some of us are more likely to take risks to increase our stores of dopamine, some of us can resist psychoactive substances more than others and still more of us have difficulty changing patterns of consumption once they have become habitual. Views on how to characterise this vary over time and place. Moral censure and the involvement of the criminal justice system prevail where intoxications are associated with failures of the will, harmful impacts upon others and unlawful acts.

Under a public health model, however, addictions are characterised as chronic, relapsing conditions which should attract treatment rather than punishment or incarceration.

Jurisdictions exercise governance through these alternative models in varying fashions, which impact upon specific groups in different ways, often commensurate with social stratification.27 In addition, in the United States the emphasis upon the war on drugs has fostered a framing of unlawful psychoactive substance use within the criminal justice paradigm of punishment as prevention of harm to others, on the assumption that many offend in order to support drug abuse. Treatment programmes for offenders operate under the aegis of the drug courts, with the aim of eradicating both habits. Elsewhere, particularly in Europe and the Antipodes, the harm reduction movement leans more towards the public health treatment model. Here reducing harms to users and others is fostered by treatment programmes and measures which provide support for those using unlawful drugs, such as providing them as part of medical treatment.28 The United Kingdom draws from both approaches.

What impact should the revelation of varying genetic susceptibilities to different forms of addiction have upon offenders? Should my liability for breaking the law be

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tempered by the fact that my genetic make-up and neurochemistry incline me towards taking undue risks, thereby making unlawful psychoactive substance use more of a temptation? How far should my lowly social status, statistically correlated with my risk profile, be taken into account? Classically the criminal justice system has been unwilling to allow evidence of genetic or biological variations to influence ideas of culpability. Where sentencing options are concerned, however, offenders who are categorised as suffering from addictions may be offered treatment for these, often within contexts which are presented as therapeutic. Civil liberties protections may be waived by the offenders, while the penalties of incarceration recede where judges consider that a cure against re-offending based upon addiction has taken place.

Misgivings have been expressed over the assertion of biological culpabilities as justifying the removal of such crucial protections.29 While the DSM-IV-R uses the more recent clinical term drug dependence to classify those who are deemed to overuse or abuse psychoactive substances, neuroscientists continue to favour the label of addiction as denoting neural adaptations which foster a loss of control over urges to take a drug. Within this model, the pleasure which comes from taking psychoactive substances tempts us to do so excessively. If we do, our volition may be compromised as pure psychoactive drugs ‘bypass adaptive information processing systems and act directly on ancient brain mechanisms that control emotion and behaviour’.30 Even where homeostatic mechanisms within the brain ensure that we no longer experience pleasure from consuming the drug, once we are addicted we crave it nonetheless, so that our ability to decide not to take it, not to damage the rest of our life by seeking it out, or to enjoy the ordinary pleasures of life becomes seriously compromised.31 Hence drug addiction is characterised as ‘a chronic, relapsing disorder in which compulsive drug seeking and drug taking behaviour persists despite serious negative consequences. … Continued use induces adaptive changes in the central nervous system that lead to tolerance, physical dependence, sensitisation, craving and relapse’.32 It is currently estimated that genetic factors account for 40-60% of vulnerability to addiction, either as genetic variations, through gene-environment interactions or via variable metabolism of drugs or sensitivity to their effects.33 Rewarding experiences associated with drugs or with what is usually termed ‘natural’ rewards, ie other pleasure inducing substances or activities such as sugar or sex, produce similar effects in the brain. It seems likely that all drugs which are subject to abuse share common neural and molecular pathways which provide reward and promote addiction.34 Thus, as identifiable neuronal mechanisms underlie rewards, craving, relapse and the disruption of the ability to experience pleasure, addiction ‘is best conceptualised as a disease of brain reward centres that ensure the survival of organisms and species’.35 From this perspective, volition is compromised by neuroadaptations associated with addiction which induce relapse.36 Both patients with damage to the ventromedial prefrontal cortex, the part of the brain associated with reflective decision-making, and those addicted to substance abuse persistently engage in choices which lead to significant harms in their lives. Neural mechanisms which enable the amygdala system, a part of the brain involved in the experience of pain and pleasure, to hijack the capacity to abjure short term gains for long term goals as a result of addiction have been put forward as an explanation for addicts’ loss of will power.37 Thus compulsive drug-seeking and drug-taking behaviour is facilitated by difficulties in decision making and a compromised ability to judge the consequences of one's own actions.





These genetic and neuronal effects on the wills of those suffering from addiction have Published version available in ‘Genomics, Society and Policy, 2 (1) pp 92 – 109’

-6Kent Academic Repository – http://kar.kent.ac.uk obvious implications for the criminal justice system, where punishment is coded to mens rea, or volition. Punishment for voluntary prohibited actions preserves the viability of social groups by curtailing the activity of free riders, and may precede reintegration.38 However, the extent to which prohibited actions may be considered sufficiently volitional to attract punishment within the criminal law is problematic.

New neuroimaging technologies suggest that the genomic and genetic underpinnings of choice may undercut current notions of moral responsibility. Nonetheless, these do not at present indicate mental states at times crimes are committed.39 Mental condition defences are based upon the materialist assumption that abnormalities or diseases of the mind may be located in malfunctions of the brain.40 Yet even materialist evidence of brain functioning may be difficult to interpret in these terms. How useful, then, are neuroscientific explanations and technological possibilities for criminal justice systems wherein offenders may be seen as addicted?

A salient caveat here is the increasing complexities revealed by post-genomic genetics. The subtleties of varieties of gene expression, how each variation may result in differing behaviours and the ways in which epigenetics has demonstrated that environment may impact on inherited characteristics all make it clear that straightforward assertions of genetic cause and effect cannot be put forward convincingly.41 Correlation and statistical associations between biology and behaviour, however, produce hypotheses of possible mechanisms here, many of which are gradually being bolstered by ongoing research. This picture is complicated where investigations of addiction to psychoactive substances are concerned. Much of the extant knowledge of the neuroscience of addiction, neurotransmitters in general and the impact on behaviour comes from the use of animal models.42 Ethical factors restrict the range of investigations which would be approved for human subjects.

Varieties of effect and mechanism exist amongst different species of non-human animals, between these and humans, and amongst humans.

Much of the research involving human subjects where dependence upon psychoactive substances is being investigated is also complicated by the fact that many of these substances are unlawful. Access to the both subjects and substances is thus compromised. Even where human subjects are available, the fact that many who are seen as abusing psychoactive substances suffer from various co-morbidities, such as mental illness, renders verification of comparisons and conclusions difficult. Indeed, one of the commonly accepted rationales for co-morbidity is that substance abuse represents an attempt to self-medicate by those experiencing uncomfortable mental states.43 A further obstacle is that those who depend upon psychoactive substances tend to avail themselves of more than one, rendering generalisations over the effect of a specific substance problematic.44 Accordingly, assertions about the neuroscience of criminal responsibility, pleasure and addiction rest upon suggestive rather than certain scientific foundations. To claim otherwise would be to engage in what Healy has condemned as biobabble.45 In addition, there are obvious philosophical difficulties inherent in connecting biological substrates with both subjective experiences and conscious and volitional actions.46 Although as outlined above Lord Layard’s rereading of utilitarianism, based partially on neurochemical evidence, has influenced policy in the United Kingdom, many philosophers and ethicists contend that it is both impossible and inappropriate for neuroscience to be seen as providing the potential to replace normative questions with scientific ones.47 Published version available in ‘Genomics, Society and Policy, 2 (1) pp 92 – 109’

-7Kent Academic Repository – http://kar.kent.ac.uk What, then, might the neuroscience and post-genomic genetics associated with psychoactive substance use contribute towards criminal justice system governance?

Evidence of compromised volition seems unlikely to overturn present interpretations of mens rea, or criminal responsibility, in the near future. Yet, where this may be interpreted as addiction, a disease in need of treatment, it can be framed in terms of its constituting harm to oneself and one’s health, as well as a motivation for harm against others in the sense of crimes against property or persons embarked upon in order to sustain unlawful psychoactive substance use. Criminal justice system and public health governance thus converge over the treatment of offenders who may be classified as addicts. It is to this territory I now wish to turn.

Addiction in public health and criminal justice system governance

Both public health and criminal justice authorities possess coercive powers. Should serious infectious diseases threaten us, we may be segregated, forcibly treated and incarcerated in order to protect the rest of the populace. Similar mechanisms ensure that offenders are imprisoned and punished. Ideally, overreaching of these powers is kept in check by human rights and civil liberties procedural protections. While public health and criminal justice both possess claims to heal individuals and society at large, then, these are underpinned by significant access to lawful force. We may be compelled to accept treatment or punishment when the larger interests of society are seen as being at stake. It is these wider social interests which purportedly underlie public health and the criminal justice system’s classification of some pleasures as preferable or lawful. For example, the endogenous opiates we produce through exercise are to be encouraged, whereas the exogenous equivalents we may purchase in the form of heroin are to be prohibited in part because we may commit crimes to fund our habit.



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