This article connects the debate about addiction with the fundamental criminal law principle of deterrence. It seeks to bridge the gap between the competing medical and criminal justice approaches by exploring addiction in light of recent research about the brain, gender differences, and what works best from both a treatment and justice perspective. To sharpen the issues, the article deliberately focuses on the emotionally freighted subject of pregnant drug users. This approach will illuminate prevailing assumptions about how biological, genetic, cultural, and other environmental factors shape human behavior and challenge conventional understandings of deterrence in light of new research on substance abuse and addiction.
It is important to point out what this article is not. This article is not about criminal responsibility in the age of neuroscience. Rivers of ink have been spilled and acres of forests have been destroyed discussing whether our expanded understanding of the biological and environmental factors that shape human decision-making demands a change in the laws of criminal responsibility. In the 1990s much of the debate among academics and public policymakers about criminal responsibility and its scientific and philosophical underpinnings focused on genetic predispositions and predictions about engaging in such behavior. Since the turn of the twenty-first century, most commentators have couched their arguments in terms of neuroscience. This article does not propose to add to that debate, which is often viewed simplistically as a choice between accepting free will or determinism as the explanation for human behavior.
Linda C. Fentiman, Rethinking Addiction: Drugs, Deterrence, and the Neuroscience Revolution, 14 U. Pa. J. L. & Soc. Change 233 (2011), available at http://digitalcommons.pace.edu/lawfaculty/786/.