Status as an Act


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown, Ph.D.


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In this context, status refers to who we are. Some conditions, such as race, ethnicity, and sex are always with us. Others are developed over time, such as diseases and addictions. Generally, the criminal law cannot punish people for who they are, only what they do. The basic idea is that our legal system is based on the principle that people have free will; if that will is not involved, then we do not like to punish people.

Thus we cannot make it illegal to be a drug addict (Robinson v. California, 370 U.S. 660). We can make it illegal to manufacture, distribute, or possess drugs—these are all acts, not statuses. Similarly, we can still prohibit public drunkenness—a behavior voluntarily engaged in (Powell v. Texas, 392 U.S. 514). On the other hand, we could not constitutionally make it illegal to be an alcoholic.

Many regard it as cruel to criminalize addiction, believing that one can’t help being an addict once they are one.  Others would argue that it is only fair. After all, a person may have made the decision to use drugs or alcohol before they were addicts, so they are culpable for the fact that they are an addict.  Many of the past attempts to criminalize addiction were actually well-intentioned and designed to help the addict. The logic was that if the condition was criminalized, the criminal justice system could get the addict off the streets and put them into secure confinement where they could “get clean.”  

Most mental health professionals today regard this logic as flawed on the grounds that physically withdrawing the addict from the addictive substance doesn’t fix the problem.  If the psychological and medical components of addiction recover are not addressed, the person will go right back to using drugs once they are released from custody. There are calls from several different kinds of stakeholders to start treating addiction and drug use as a public health crisis rather than a criminal justice problem.  When we consider this trend along with the fact that our current drug control policies have abysmal failures, there is likely to be sweeping changes in our national drug control stance over the coming years.

Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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