1 For a discussion of the history of alcohol use, see Tongue, 5,000 Years of Drinking, in Drinking: alcohol in American Society—Issues and Current Research 31-38 (J. Ewing & B. Rouse eds. 1978) [hereinafter cited as Drinking].

2 In classic Hammurabian style, violations of the law were punishable by death. Id. at 32.

3 The criminal sanction was rarely applied, however. Howland & Howland, 200 Years of Drinking in the United States: Evolution of the Disease Concept, in Drinking, supra note 1, at 39, 42-43.

4 Levine, The Discovery of Addiction: Changing Conceptions of Habitual Drunkenness in America, 39 J. Stud. alcohol 143, 147-48 (1978).

5 Quoted in Waller, Drinking and Highway Safety, in Drinking, supra note 1, at 117.

6 U.S. Dept. of Health and Human Services, Fifth Special Report to the U.S. Congress on alcohol and Health 9 (Dec. 1983) [hereinafter cited as alcohol and Health].

7 N.Y. Times, Sept. 30, 1984, § 1, at 41.

8 Id., June 19, 1985, § 1, at 1.

9 Id., May 21, 1985, § 3, at 9.

10 Id., April 29, 1984, § 22, at 10.

11 Id., April 21, 1984, § 1, at 6.

12 There have been a number of articles in legal periodicals (including several symposium issues) describing the problem of alcoholism in the legal profession, and the profession's response to that problem. See, e.g., Speaking Personally, 73 Ill. B.J. 28 (Sept. 1984); Facing My Most Difficult Trial, 45 Ala. Lawyer 100 (Mar. 1984); King, Lawyers on the Rocks, 70A.B.A.J.78 (Mar. 1984); Your Bar or Mine?, 48 Kv. Bench & B. 24 (Jan. 1984); Wolf, Alcoholism and the Legal Profession, 62 Mich. B.J. 873 (Oct. 1983); My Return to Sobriety, 57 Fla. B.J. 10 (Jan. 1983); Laviano & Thompson, The Alcoholic Lawyer, 29 R.I.B.J. 6 (Apr. 1981).

13 See infra notes 95-96 and accompanying text.

14 See infra text accompanying notes 72-80.

15 See infra text accompanying notes 81-100.

16 The initials “DWI” (driving while intoxicated) are used throughout this Note to designate laws relating to the operation of motor vehicles while intoxicated or under the influence of alcohol, although the specific crime has many different names in the various states. Levine, , The Vocabulary of Drunkenness, 42 J. Stud. Alcohol 1038 (1981)CrossRefGoogle Scholar.

17 See infra text accompanying notes 103-105.

18 Quoted in Levine, , The Vocabulary of Drunkenness, 42 J. Stud. Alcohol 1038 (1981)CrossRefGoogle Scholar.

19 Finn, , Attitudes Toward Drinking Conveyed in Studio Greeting Cards, 70 Am. J. Public Health 826 (1980)CrossRefGoogle Scholar.

20 U.S. Dept. of Health and Human Services, alcohol and Health, Fourth Special Report to the U.S. Congress (1981). Alcoholism research terminology is currently undergoing a change. This paper uses the terms “alcohol abuse” and “problem drinking” interchangeably, and also uses “alcoholism” and “alcohol dependence” as synonyms. The third edition of the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association 1980) [hereinafter DSM III] defines alcohol abuse as a set of symptoms including: (a) a pattern of pathological alcohol use, sometimes evidenced by daily consumption, binge drinking, and continued drinking despite a serious physical disorder that the individual knows is exacerbated by alcohol, etc.; (b) impairment of social or occupational functioning due to alcohol use, sometimes evidenced by violence while intoxicated, absenteeism, legal problems, domestic disturbance, etc.; and (c) duration of disturbance for at least one month. DSM III defines alcohol dependence as all of the above, plus either: (d) tolerance (need for increased amount of alcohol to reach desired result); or (e) withdrawal after cessation or reduction in drinking (morning shakiness, malaise, nausea). See also alcohol and Health, supra note 6, at 100-02.

21 E. Jellinek, the Disease Concept of Alcoholism (1960). Dr. Jellinek had extensive clinical experience in the treatment of alcoholics. His book tried to identify some common denominators characteristic of alcoholism. His clinical experience showed him that not all alcoholics followed the same course. He identified four types of alcoholics, which he called “alpha,” “beta,” “gamma,” and “delta.” “Gamma” and “delta” alcoholics had a physiological dependence on alcohol. Jellinek's typology is no longer used, but his major contribution to the field, the initiation of serious discussion of alcoholism as a disease, lives on.

22 Gitlow, Alcoholism: A Disease, in Alcoholism: Progress in Research and Treatment 3 (P. Bourne ed. 1973) [hereinafter cited as Alcoholism: Progress]. The outward manifestations of alcohol dependence are listed by Gitlow as follows: character disorganization, diminished ability to achieve potential, decreased attention span, diminished ability to concentrate, tremulousness, insomnia, recurrent somatic symptoms (especially headache, bowel dysfunction, muscle spasm, fatigue, palpitations, and exaggerated subjective response to minor local pathology), diminished seizure threshold, and eventually elevated tolerance, amnestic episodes, hallucinations and delirium. The most critical aspect of the patient's history is recurrent use of the sedative agent despite evidence that alcohol adversely affects some aspect of his life (health, work, interpersonal relations, etc.). The progressive nature of this deterioration, usually obscured by an elaborate and powerful denial system, is an almost univeral characteristic. Recurrent episodes of increased psychomotor activity, necessitating continued use of some sedative agent in a vain attempt to control the agitation, are regularly noted in and almost limited to the alcoholic population. Id.

23 The American Medical Association, American Psychiatric Association, American Public Health Association, American Hospital Association, American Psychological Association, National Association of Social Workers, World Health Organization, and the American College of Physicians have all officially recognized alcoholism as a disease. Alcoholism: Progress, supra note 22, at 8.

24 Ala. Code § 27-20A (Supp. 1985); Alaska Stat. § 47.37.010 (1984); Ariz. Rev. Stat. Ann. § 36-2021 (1974 & Supp. 1985); Ark. Stat. Ann. § 83-718 (1976); Cal. Welf. & Inst. Code §5001 (West 1980); Colo. Rev. Stat. §25-1-301 (1982); Conn. Gen. Stat. Ann. § 17-155ff (West Supp. 1985); DEL. Code Ann. tit. 16, §2201 (1983); Fla. Stat. Ann. § 396.052 (West Supp. 1985); Ga. Code Ann. § 37-8-1 (1982); Hawaii Rev. Stat. § 321-191 (1976); Idaho Code § 39-302 (1985); Ill. Ann. Stat. ch. Ill 1/2, § 6301 (Smith-Hurd Supp. 1985); Ind. Code Ann. § 16-13-6.1-1 (Burns 1983); Iowa Code Ann. § 125.1 (West Supp. 1985); Kan. Stat. Ann. §65-4001 (1980); KY. Rev. Stat. §222.210 (1982); LA. Rev. Stat. Ann. §46.2500 (West Supp. 1985); Me. Rev. Stat. Ann. tit. 22, §7101 (Supp. 1984); Md. Health Code Ann. §8-101 (1982); Mass. Gen. Laws Ann. ch. 111B (West 1983); Mich. Comp. Laws Ann. § 404.201 (West 1976); Minn. Stat. Ann. § 41-30-1 (1981); Mo. Ann. Stat. §631.010 (Vernon Supp. 1985); Mont. Code Ann. §53-24-101 (1983); Neb. Rev. Stat. §83-158.01 (1981); NEV. Rev. Stat. § 458.010 (1981); N.H. Rev. Stat. Ann. § 172.1 (Supp. 1983); N.J. Stat. Ann. § 26-2B-7 (West Supp. 1985); N.M. Stat. Ann. § 43-3-1 (1984); N.Y. Mental Hyg. Law §29.01 (McKinney 1978); N.C. Gen. Stat. § 122-7.1 (1981); N.D. Cent. Code § 54-38 (1981); Ohio Rev. Code Ann. § 3720.01 (Page 1980); Okla. Stat. Ann. tit. 63, § 2100 (West 1984); Or. Rev. Stat. § 430.260 (1981); Pa. Stat. Ann. tit. 50, § 2101 (Purdon Supp. 1985); R.I. Gen. Laws § 40.1-4-1 (1984); S.C. Code Ann. § 44-51-10 (Law. Co-op. 1985); S.D. Codified Laws Ann. § 34-20A (1977); Tenn. Code Ann. § 33-8-101 (1984); Tex. Rev. Civ. Stat. Ann. art. 5561c (Vernon 1958); Utah Code Ann. § 63-35-3 (1978); Vt. Stat. Ann. tit. 18, §9141 (Supp. 1984); Va. Code § 37.1-220 (1984); Wash. Rev. Code Ann. § 70.96A (Supp. 1985); W.VA. Code § 27-1A-11 (Supp. 1985); Wise. Stat. Ann. § 51.45 (West Supp. 1985).

25 As examples of explicit recognition of the disease concept, N.M. Stat. Ann. § 43-3-2 (1984) defines alcoholism as a “disease,” and Ala. Code § 27-20A-1 (Supp. 1985) defines alcoholism as a “chronic disorder or illness.” The state statutes’ mere existence implicitly recognizes the disease concept.

26 See Fingarette, , The Perils of Powell: In Search of a Factual Foundation for the ‘Disease Concept of Alcoholism; 83 Harv. L. Rev. 793 (1970)CrossRefGoogle Scholar.

27 See id., passim.

28 Cambell, , Scadding, and Roberts, , The Concept of Disease, 2 British Med. Journal 757 (1979)CrossRefGoogle Scholar.

29 Id. at 759.

30 Id.

31 Id. at 757.

32 Dorland's Illustrated Medical Dictionary 385 (26th ed. 1985).

33 Cambell, Scadding and Roberts, supra note 28, at 759.

34 See C. Williams, Lung Cancer 51-74 (1984); Maassen, Greschuchna and Martinez, The Role of Surgery in the Treatment of Small Cell Carcinoma of the Lung, in Small Cell Lung Cancer 107 (S. Seeber ed. 1985).

35 Cambell, Scadding and Roberts, supra note 28, at 759.

36 Dorland's Illustrated Medical Dictionary 635 (26th ed. 1985).

37 Maxwell, A Functional Approach to Screening, in the Hypertension Handbook 53 (1974); see infra note 61.

38 Cambell, Scadding and Roberts, supra note 28, at 759.

39 Epileptics do not refer to epilepsy as a “disease“: they prefer to call it a “neurological disorder.” By doing so, they seek to avoid the negative connotations of the word “disease.” Interview with Barbara Walters, Epilepsy Foundation of America, Boston, Mass. (March 8, 1985).

40 R. Barrow & H. Fabing, Epilepsy and the Law 7-8 (1956).

41 G. Vaillant, the Natural History of Alcoholism 17 (1983) [hereinafter cited as Natural History].

42 See Albrecht, The Alcoholism Process: A Social Learning Viewpoint, in Alcoholism: Progress, supra note 22, at 11-12.

43 See infra notes 52-53 and accompanying text; see also, Goodwin, Studies of Familial Alcoholism: A Growth Industry, in D. Goodwin, K. Vandusen & S. Mednick, Longitudinal Research in Alcoholism 98 (1984); McClearn, The Genetic Aspects of Alcoholism, in Alcoholism: Progress, supra note 22, at 337.

44 See L. Kolb, Modern Clinical Psychiatry 640 (9th ed. 1977).

45 See infra notes 57-59 and accompanying text; see also Schmeck, Alcohol Tests Back Disease Idea, N.Y. Times, Sept. 2, 1983, § 1, at 11; Walsh, The Biochemical Aspects of Alcoholism, in Alcoholism: Progress, supra note 22, at 43.

46 See supra note 42.

47 See e.g., Gifford, A Practical Guide to Medical Management, in The Hypertension Handbook 83, 85-7 (1974).

48 Alcoholism: Progress, supra note 22, at 6.

49 Cambell, Scadding, and Roberts, supra note 28.

50 Dorland's Illustrated Medical Dictionary, supra note 32.

51 id.

52 Natural History, supra note 41, at 2. The Harvard Medical School study of Adult Development began in 1940 when researchers Sheldon and Eleanor Glueck at Harvard Law School selected 456 inner city males as a control group for their prospective study on juvenile delinquency. The inner city group males were all junior high school students, and were predominantly in the lower and lower-middle social classes. The Gluecks obtained extensive social service records on the group, allowing the researchers to determine each subject's ethnicity, “alcohol heredity,” and childhood strengths and problems. The inner city subjects were interviewed at ages 25, 31, and 47. A second group of subjects in the study was taken from the Harvard College sophomore class of 1940. This group consisted of approximately 200 young men in the upper middle and upper social classes. The background of this group was determined through medical records. The subjects in this group were interviewed every two years until age 55.

Aside from the original medical and social background information, all of the data collected in the study were self-reported by the subjects in interviews with the researchers. Vaillant, Paths Out of Alcoholism, in Evaluation of the Alcoholic: Implications for Research, Theory and Treatment 383-85 (Meyer ed. 1981) [hereinafter cited as Evaluation].

53 Natural History, supra note 41, at 2.

54 Id. at 311.

55 Goodwin, supra note 43, at 98.

56 See, e.g., Cadoret, Cain and Grove, Development of Alcoholism in Adoptees Raised Apart from Biologic Relatives, 37 Archives of General Psychiatry 561-63 (1980).

57 Schukit, and Griffiths, , Gamma-Glutamyltransferase Values in Nonalcoholic Drinking Men, 139 Am. J. Psychiatry 227 (1982)Google Scholar.

58 Schmeck, supra note 45.

59 Previous studies have also “discovered” traits which are common to alcoholics, although many have turned out to be spurious. For a humorous essay, see Keller, The Oddities of Alcoholics, in Emerging Concepts of alcohol Dependence 63 (E.M. Pattison, M. Sobell and L. Sobell eds. 1977) [hereinafter cited as Emerging Concepts].

60 Marlatt, The Drinking History; Problems of Validity and Reliability, in Evaluation, supra note 52, at 28.

61 Hypertension provides a helpful analogy. Possible human blood pressures define a continuum from very low blood pressure to very high blood pressure. At the extremes, diagnosis is easy and accurate. For example, a patient with blood pressure of 30 over 20 would have incredibly low blood pressure, while a patient with blood pressure of 250 over 180 would have dangerously high blood pressure. Most people, however, fall somewhere between these two extremes. “Normal” blood pressure is about 120 over 80. R. Gray, Attorney's Textbook of Medicine 180-15, f 180.23 (3d ed. 1985). But what about a person with blood pressure of 140 over 100? Is it high? Or is it within range of “normal”? A physician would have to use medical judgment to decide, because blood pressure varies considerably with age, sex, race, climate and weight. Id,; Maxwell, supra note 37.

Similarly, alcohol dependence exists on a continuum, and must be evaluated by a trained observer who can consider the many ways that alcohol affects the individual's life—physically, psychologically, socially, etc. Once the alcohol has an effect on the individual's life different from that of any other beverage, the individual has the beginnings of an alcohol problem. If that problem grows to such a degree that it interferes with the individual's physical health, social, work, or familial relationships, then the individual is an alcoholic.

Some people will think that hypertension is more precise, despite its subjective nature, because doctors can measure blood pressure and assign it a numeric value. What most people fail to appreciate, however, is that a person's blood pressure reading can vary significantly depending on the time of day the reading is taken, the state of mind of the patient, the skill of the person taking the measurement, and the type of measuring device used.

62 See supra note 20 for a description of these terms.

63 As with many other medical conditions, diagnosis of alcoholism must be done on a case by case basis. Other conditions requiring individual diagnoses are hypertension and senility. Because of the subjective nature of alcoholism, however, some researchers question whether the “unitary disorder” approach to the disease concept of alcoholism is correct. These researchers favor the notion of “alcohol dependence” to describe this multifaceted problem. Pattison, Sobell & Sobell, Old and New Views of Alcohol Dependence, in Emerging Concepts, supra note 59, at 3. Their thesis posits that the condition “alcoholism” is a state marked by various symptoms and behaviors for which the “general case” cannot be meaningfully described. In this view, there can be as many alcoholisms as there are alcoholics. Natural History, supra note 41, at 3. Despite their questioning the so-called “unitary disorder” approach to alcoholism, these researchers do not question the idea that alcoholism is a disease. Their point is that it is a more complex disease than measles or chicken pox, for example, which are unitary disorders.

64 These three points are taken from the eleven-point outline given in Emerging Concepts, supra note 59, at 4-5.

65 Szasz, Bad Habits are not Diseases: A Refutation of the Claim That Alcoholism is a Disease, 2 Lancet 83-84 (1972), quoted in Natural History, supra note 41, at 19.

66 See supra text accompanying notes 52-56.

67 See Robinson, , The Akohologists's Addiction, 33 Q. J. Stud. Alcohol 1028, 1035 (1972)CrossRefGoogle Scholar.

68 Natural History, supra note 41, at 19.

69 As Thomas Szasz notes, “The expression ‘mental illness’ as a convenient term of derogation, denigration or thinly veiled attack has become part of everyday life.” T. Szasz, Law, Liberty and Psychiatry 20 (1963).

70 Cf, Volinn, , Health Professionals as Stigmatizers and Destigmatizers of Diseases: Alcoholism and Leprosy as Examples, 17 Social Science and Medicine 385 (1983)CrossRefGoogle Scholar.

71 In more detailed form, the goals of the criminal sanction can be described as follows: Deterrence. General deterrence warns the population at large that severe consequences will result from criminal behavior. S. Kadish, S. Schulhofer and M. Paulsen, Criminal Law and its Processes 195 (4th ed. 1983).

In theory, people weigh the benefit to be gained from committing the crime against the penalty for the crime discounted by the chance of being caught. If the benefits outweigh the costs, the individual will commit the crime. Specific deterrence seeks to prevent a particular individual from committing a crime. Id. To meet this goal, the penalty for breaking the law must exceed the individual's subjective benefit from breaking the law.

Incapacitation. In some situations, the goal of the criminal sanction is to get a dangerous individual “off the streets.” Incapacitation seeks to physically restrain a criminal offender so that he no longer has the capacity to commit crime. H. Packer, the Limits of the Criminal Sanction 48 (1968).

Retribution. The visceral urge to get revenge runs deep in the law, though it is often an unstated goal. This is especially true where the law-breaker is considered an immoral person. See J. Stephen, A History of the Criminal Law of England 81-82 (1883). Retribution has been justified on the distributive justice grounds that criminals have gained an unfair advantage over the rest of the society by casting off the burdens of self-restraint shouldered by the rest of the law-abiding public. According to this argument, to bring the criminal back into line with the rest of the citizens, restraint must be imposed upon him in the form of punishment. H. Morris, on Guilt and Innocence 33-34 (1976).

Rehabilitation. Under this theory, society can use the prison system as a way to address an offender's underlying psychological problems and nip his life of crime in the bud. Prisons, however, are ill-suited as “rehabilitation centers.” They are places for punishment. See Martinson, , What Works?—Questions and Answers About Prison Reform, 35 Pub. Interest 22 (1974)Google Scholar. For this reason, the goal of rehabilitation is often given short shrift, although it is important not to dismiss non-prison rehabilitation programs.

72 W. Lafave, A. Scott, Handbook on Criminal Law 178 (1972).

73 Id. at 177.

74 See A. Stone, Law, Psychiatry and Morality 62 (1984).

75 See Greenawalt, , Uncontrollable Actions and the Eighth Amendment: Implications of Powell v. Texas, 69 Colum. L. Rev. 927, 942 (1969)CrossRefGoogle Scholar.

76 As a practical matter, we must retain at least the will to believe in free will. W.James, The Will to Believe, in the Will to Believe and Other Essays in Popular Philosophy 24-25 (1896). William James makes a fitting analogy to describe the problem of free will versus determinism. He suggests that we think of a chess match between the reigning world champion and a novice chess player. The outcome of the match is practically predetermined—the chess master will win. However, the individual moves that the novice makes are still within his free will to control. In this way, free will and determinism coexist in the same world. See The Dilemma of Determinism, Id. at 181.

77 H.L.A. Hart, Punishment and Responsibility 181 (1968).

78 Model Penal Code § 4.01 (1962).

79 W. Lafave, supra note 72, at 268. Although involuntary committment of an insane offender to a mental institution serves the same goal of incapacitation that imprisonment would serve, the goals of hospitalization differ from the goals of incarceration. H. Packer, supra note 71, at 25. The goal of hospitalization is treatment; the goal of incarceration is punishment. Generally treatment benefits the person being treated, without regard to past or future conduct. Punishment is meted out, as noted above, to incapacitate, deter, or to exact retribution for previous behavior. Therefore, the justifying purposes of the two processes are divergent. They seem to converge on the fourth goal of the criminal sanction, rehabilitation. This, however, is a false notion. Although society may inflict punishment on someone and say “he will be better off for it” (which looks like a treatment goal), that is not the complete reason why society imposes criminal sanctions. The ultimate aim of the criminal sanction is the prevention of the offending conduct, not the betterment of the offender. Id. at 27-28.

80 See infra text accompanying notes 151-155.

81 370 U.S. 660 (1962), reh'g denied, 371 U.S. 905 (1962).

82 370 U.S. at 660-61 (quoting Cal. Health & Safety Code § 11721 (repealed 1972)).

83 370 U.S. at 666.

84 Compare Commonwealth v. Sheehan, 376 Mass. 765, 383 N.E. 2d 1115 (1978) (evidence of drug addiction habit causing a compulsion to steal is admissible to negate actus reus element of robbery) with United States v. Moore, 486 F. 2d 1139 (D.C. App. 1973) (status as heroin addict no defense to charge of heroin possession).

85 See generally Wald, , Alcohol, Drugs, and Criminal Responsibility, 63 Geo. L.J. 69 (1974)Google Scholar; Fingarette, , Addiction and Criminal Responsibility, 84 YALE L.J. 413 (1975)CrossRefGoogle Scholar.

86 See, e.g., Driver v. Hinnant, 356 F.2d 762 (4th Cir. 1966), and Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966).

87 392 U.S. 514 (1968).

88 In the period from 1949 to 1966, Powell was convicted of public inebriation approximately 100 times. 392 U.S. at 555 (Fortas, J., dissenting). After testimony by a noted psychiatrist, the trial court made the following findings of fact:

• (1) Chronic alcoholism is a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol;

• (2) A chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism; and

• (3) Leroy Powell is a chronic alcoholic who is afflicted with the disease of chronic alcoholism. 392 U.S. at 521.

89 392 U.S. at 532.

90 Id. at 559 (Fortas, J., dissenting).

91 Justice Fortas, devoting the largest part of his dissent to a discussion of the disease concept of alcoholism, suggested that the reason Powell's defense failed was because the majority did not accept the disease concept. Id. at 559-65 (Fortas, J., dissenting).

92 Id. at 535.

93 Id. at 528.

94 Alcoholism: Progress supra note 22, at 6-7. In the treatment community, “dryness” refers to abstinence from drinking without further treatment, while “sobriety” refers to arrested drinking accompanied by a treatment program. C. Bepko, The Responsibility Trap 80 (1985). A third argument of the majority was the fear that the compulsion argument would be used by all criminals, from vagrants to murderers. 392 U.S. at 534. This argument is a complete non-sequitur. The crux of the argument is that the Court cannot “draw the line” on Robinson -type defenses. Line-drawing, however, is the Court's job; every case requires that a line be drawn somewhere. To say that the Robinson defense could not be extended to alcoholism because it would be impossible to draw the line on other conditions is, in effect, a line-drawing decision. Since the Court draws the line by saying that it cannot draw a line, its argument is illogical on its face.

95 Schmidt, and Smart, , Alcoholics, Drinking and Traffic Accidents, 20 Q. J. Stud. Alcohol 631 (1959)CrossRefGoogle Scholar (compared to the general driving population, alcoholic drivers were found to be involved in a significantly larger number of collisions per year per miles driven. The ratio between the observed and expected number of collisions for the alcoholic group was 1.8: 1); Filkins, Alcohol Abuse and Traffic Safety: A Study of Fatalities, DWI Offenders, Alcoholics and Court-Related Treatment Approaches, summarized by Vingilis, Drinking Drivers and Alcoholics, in Research Advances in alcohol and Drug Problems 332 (1983) (study found that 1.9 times as many alcoholics had two or more crashes over a given period of time when compared to a control group); Eelkema, , A Statistical Study on the Relationship Between Menial Illness and Traffic Accidents—A Pilot Study, 60 Am. J. Public Health 459 (1971)CrossRefGoogle Scholar (study showed a 1.6: 1 ratio for alcoholics, which reduced to nearly 1:1 after alcoholics received treatment).

96 Drinking, supra note 1, at 127. In this study, the researcher based his evaluation on driving records and materials available through public agencies, such as the county welfare and probation departments, rehabilitation clinics, state mental hospital and family service agencies. On his scale, “alcoholic” was determined by the number of contacts the DWI offender had with various government agencies. Since most of these governmental services are geared to the lower end of the socio-economic scale, this study is probably underinclusive, in that the estimate that two-thirds of the DWI population is alcoholic or alcohol abusive is probably too low.

97 alcohol and Health, supra note 6.

98 Fell, Alcohol Involvement in Traffic Accidents: Recent Estimates from the National Center for Statistics and Analyses, NHTSA Technical Report No. DOT HS 806-269 (1982).

99 Every state attacks the problem of drunk driving through its criminal law as if it is unconnected to the larger problem of alcohol abuse, but few states effectively combat the underlying problem. When viewed in this light, the drunk driving laws in most states seem to illustrate Thoreau's observation that “[t]here are a thousand hacking at the branches of evil to one who is striking at the root.” H. Thoreau, Walden 68 (Modern Library Edition 1937).

100 See supra note 24.

101 See supra note 25.

102 Ala. Code § 32-5A-191 (Supp. 1985); Alaska Stat. §28.35.030 (1984); Ariz. Rev. Stat. Ann. §28-692 (Supp. 1985); Ark. Stat. Ann. §75-1027 (1979); Cal. Veh. Code § 13352 (West Supp. 1985); COLO. Rev. Stat. §42-4-1202 (1984); Conn. Gen. Stat. Ann. §53a-213 (West Supp. 1985); Del. Code Ann. tit. 21, §4177 (Supp. 1984); Fla. Stat. Ann. §316.193 (West Supp. 1985); Ga. Code Ann. § 40-6-391 (1985); Hawaii Rev. Stat. § 291-4 (Supp. 1984); Idaho Code § 18-8004 (Supp. 1985); Ill. Ann. Stat. ch. 95 1/2, para. 11-501 (Smith-Hurd Supp. 1985); Ind. Code Ann. § 9-11-2-2 (Burns Supp. 1985); Iowa Code Ann. §321.281 (West Supp. 1985); Kan. Stat. Ann. §8-1567 (Supp. 1984); Ky. Rev. Stat. § 189A.010 (Supp. 1984); La. Rev. Stat. Ann. § 14:97 § 98 (West Supp. 1985); Me. Rev. Stat. Ann. tit. 29, § 1311 (Supp. 1984); Md. Transp. Code Ann. § 21-902 (1984); Mass. Gen. Laws Ann. 90, §24 (West Supp. 1985); Mich. Comp. Laws Ann. §257.625 (West Supp. 1985); Minn. Stat. Ann. § 169.121 (West Supp. 1985); Miss. Code Ann. §63-11-30 (Supp. 1984); Mo. Ann. Stat. § 577.010 (Vernon Supp. 1985); Mont. Code Ann. § 61-8-401 (1983); Neb. Rev. Stat. §39-669.07 (1983); Nev. Rev. Stat. §484.379 (1983); N.H. Rev. Stat. Ann. §265:82 (Supp. 1983); N.J. Stat. Ann. §39:4-50 (West Supp. 1985); N.M. Stat. Ann. § 66-8-102 (Supp. 1985); N.Y. Veh. & Traf. Law § 1192 (McKinney Supp. 1984); N.C. Gen. Stat. §20-138.1 (1983); N.D. Cent. Code §39-08-01 (Supp. 1983); Ohio Rev. Code Ann. § 4511.19 (Page Supp. 1984); Okla. Stat. Ann. tit. 47, § 11-902 (West Supp. 1984); Or. Rev. Stat. §487.540 (1981); Pa. Stat. Ann. tit. 75, § 1542 (Purdon 1977); R.I. Gen. Laws §31- 27-2 (Supp. 1984); S.C Code Ann. § 56-5-2930 (Law Co-op. 1977); S.D. Codified Laws Ann. § 32-23-1 (1984); Tenn. Code Ann. § 55-10-401 (Supp. 1985); Tex. Rev. Civ. Stat. Ann. art. 6701 1-1 (Vernon Supp. 1984); Utah Code Ann. § 41-6-44 (Supp. 1983); Vt. Stat. Ann. tit. 23, § 1201 (Supp. 1984); Va. Code § 18.2-266 (Supp. 1985); Wash. Rev. Code Ann. § 18.2- 266 (Supp. 1985); Wash. Rev. Code Ann. § 46.61.502 (Supp. 1985); W.Va. Code § 17C-5-2 (Supp. 1985); Wise. Stat. Ann. §346.63 (West Supp. 1985); Wyo. Stat. §31-5-233 (1977).

103 H. Packer, supra note 71, at 345.

104 Whitford, , The Skid-Row Merry-Go-Round: Despite Decriminalization, Drunks Still Clog our Nation's Jails, 9 Corrections Magazine 30 (1984)Google Scholar.

105 See Cameron, , The Impact of Drinking-Driving Countermeasures: a Review and Evaluation, 8 Cont. Drug Prob. 495 (1979)Google Scholar.

106 Waller found that two-thirds of those charged with DWI had drinking problems. See Drinking, supra note 5.

107 Ludwig, , Treatment and Sentencing: The Power of the Court, the Rights of the Defendant, and the Legal and Ethical Implications of Sentencing Alternatives, 8 Cont. Drug Prob. 381, 382 (1979)Google Scholar.

108 See supra text accompanying notes 60-63.

109 This can be determined by looking for correlations in several tests instead of placing all of the diagnostic burden on one screening device. For a tidy summary of the leading clinical tests for alcoholism, see G. Jacobsen, the Alcoholisms (1976).

110 See, e.g., Ariz. Rev. Stat. Ann. §28-692.01A (Supp. 1985); Colo. Rev. Stat. §42- 4-1202(5)(a) (1985); Minn. Stat. Ann. § 169.126 (West Supp. 1985); N.J. Stat. Ann. § 39:4- 50(3)(b) (West Supp. 1985).

111 See, e.g., Mass. Gen. Laws Ann. ch. 90, § 24D (West Supp. 1985).

112 H. Packer, supra note 71, at 25.

113 Some courts have recognized that long continued drinking can lead to actual insanity. See, e.g., Rucker v. State, 119 Ohio St. 189, 162 N.E. 802 (1928); Britts v. State, 158 Fla. 839, 30 So. 2d 363 (1947); Meyers v. State, 83 Okla. Crim. 177, 174 P.2d 395 (1946).

114 W. Lafave, supra note 72, at 208.

115 Treating the Unwilling Patient, in Alcoholism: Progress, supra note 22.

116 Id. at 6-7.

117 See Hunt & Azrin, A Community-Reinforcement Approach to Alcoholism, and Simpson & Webber, A Field Program in the Treatment of Alcoholism, in Selection of Treatment for AlcoholicS 425, 442 (E. Pattison ed. 1982).

118 Levinson, Resources for Epilepsy: Access and Advocacy, in Epilepsy: A Handbook for the Mental Health Professional 240 (H. Sands ed. 1982). The state laws are: Ala. Code § 36-66-7(5) (1983); Alaska Stat. § 28.15.030(4) (1984); Ariz. Rev. Stat. Ann. § 28-413(5) (Supp. 1985); Ark. Stat. Ann. § 75-309(5) (1979); Cal. Veh. Code 12800(g), 12805(e) (West Supp. 1985); Colo. Rev. Stat. § 42-2-103(d) (1984); Conn. Gen. Stat. Ann. § 14-36(e) (West Supp. 1985); Del. Code Ann. tit. 22, § 2724 (1979); Fla. Stat. Ann. § 322.05(5) (West 1975); Ga. Code Ann. § 40-5-22(4) (1985); Hawaii Rev. Stat. § 286-104(4) (Supp. 1984); Idaho Code § 49-309(5) (Supp. 1985); Ill. Ann. Stat. ch. 95 1/2, § 6-103 (Smith-Hurd Supp. 1985); Ind. Code Ann. § 9-l-4-30(e) (Burns 1980); Iowa Code Ann. § 321.186 (West Supp. 1985); Kan. Stat. Ann. § 8-237(e) (1982); KY. Rev. Stat. § 186.411 (1980); La. Rev. Stat. Ann. § 32:414(e)(8) (West Supp. 1985); Me. Rev. Stat. Ann. tit. 29, § 547 (Supp. 1984); Md. Transp. Code Ann. § 16-206(a)(iii) (Supp. 1985); Mass. Gen. Laws Ann. ch. 90 §22 (West Supp. 1985); Mich. Comp. Laws Ann. § 257.303(f) (West Supp. 1985); Minn. Stat. Ann. § 171.04(9) (West Supp. 1985); Miss. Code Ann. § 63-l-9(d) (1973); Mo. Ann. Stat. § 302.060(5) (Vernon Supp. 1985); Mont. Code Ann. § 61-5-105(5) (1983); Neb. Rev. Stat. § 60-407(1) (1984); Nev. Rev. Stat. § 483.250(4) (1983); N.H. Rev. Stat. Ann. § 261:59 (1982); N.J. Stat. Ann. § 39:3-10 (West Supp. 1985); N.M. Stat. Ann. § 66-5-5(E) (1984); N.Y. Veh. & Traf. Law § 510(3)(b) (McKinney 1970); N.C. Gen. Stat. § 20-9(e) (1983); N.D. Cent. Code § 39-06-03(4) (1979); Ohio Rev. Code Ann. § 4507.08(b) (Page 1982); Okla. Stat. Ann. tit. 47, § 6-103 (West 1962); Or. Rev. Stat. § 482.130(a) (1981); Pa. Stat. Ann. tit. 75, § 1503(4) (Purdon 1977); R.I. Gen. Laws §31-10-3(5) (Supp. 1984); S.D. Codified Laws Ann. §32-12-32 (1984); Tenn. Code Ann. § 55-7-105(5) (1980); Tex. Rev. Civ. Stat. Ann. art. 6687b § 30 (Vernon Supp. 1984); Utah Code Ann. §41-2-5(4) (Supp. 1983); VT. Stat. Ann. tit. 23, §603 (1978); Va. Code § 461-430(3) (Supp. 1985); Wash. Rev. Code Ann. § 46.20.031(5) (Supp. 1985); W.Va. Code § 17B-2-3(5) (1974); Wis. Stat. Ann. § 343.09 (West Supp. 1985); Wyo. Stat. § 31-7-108(v) (1977).

119 See, e.g., Ky. Rev. Stat. § 186.411 (1980) (requires signed letter from physician each time license is renewed stating that condition is under control and that medication is being taken); Wis. Stat. Ann. § 343.09 (West Supp. 1985) (requires certification every six months for two years, then every two years for ten years; after a ten year seizure-free period, certification is no longer required).

120 R. Barrow and H. Fabing, supra note 40, at 41.

121 See, e.g., KAN. Stat. Ann. § 8-237-(e) (1982); N.M. Stat. Ann. § 66-5-5(C) (1984); R.I. Gen. Laws § 31-10-3(4) (Supp. 1984). California, Ohio and Washington have laws that allow the Department of Motor Vehicles to deny licenses to “alcoholics:” Cal. VEH. Code § 12800(b) (West Supp. 1985); Ohio Rev. Code Ann. § 4507.08(A) (Page 1982); Wash. Rev. Code Ann. §46.20.031(4) (Supp. 1985).

122 Vermont's current law allows the court to make abstinence a prerequisite for reinstatement of driving privileges. VT. Stat. Ann. tit. 23, § 1208(e) (Supp. 1984).

123 This follows from the way epileptic drivers are treated, see supra notes 118-120 and accompanying text.

124 Levinson, supra note 118; Cal. Health & Safety Code § 410 (West 1979); Conn. Gen. Stat. Ann. § 14-46 (West Supp. 1985); Del. Code Ann. tit. 24, § 1763 (1981); La. Rev. Stat. Ann. § 32:403.2 (West Supp. 1985); Mich. Comp. Laws Ann. § 257.304 (West 1977); Nev. Rev. Stat. § 439.270 (1983); N.J. Stat. Ann. § 39:3-10.4 (West 1973); Va. Code § 46.1-429 (1980) (Virginia's reporting law applies to alcoholics as well).

125 Epilepsy Foundation of America, the Legal Rights of Persons with Epilepsy 26-27 (1985).

126 E.g., Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

127 Ludwig, supra note 107, at 384-85.

128 See generally Cameron, supra note 105.

129 U.S. Deft, of Transportation, the National alcohol Countermeasures Program (Pamphlet, 1973).

130 There were many flaws in the program's design, including: (a) the sites selected for pilot programs were not comparable to each other; (b) there were inadequate control sites; (c) there were too many countermeasure programs going on at the same time to establish a causal link between any one of them and a change in drunk driving behavior; (d) the projects were phased in too quickly—new sites were added before data gathered from the original projects were evaluated; and (e) the programs were over-politicized. Reed, Reducing the Costs of Drinking and Driving, in alcohol and Public Policy: Beyond the Shadow of Prohibition 368-70 (M. Moore & D. Gerstein eds. 1981).

131 The study was methodologically weak for several reasons: (1) lack of sufficient data (3 years of baseline data and only 1 or 2 years of ASAP operational data); (2) insufficient statistical analysis; (3) obvious anti-ASAP bias; and (4) the design problems discussed in the text. See Johnson, Levy, and Voas, A Critique of the Paper “Statistical Evaluation of the Effectiveness of'Alcohol Safety Action,'” 8 Accident Analysis and Prevention 67, 76 (1976).

132 Zador, , Statistical Evaluation of the Effectiveness of “Alcohol Safety Action Projects,” 8 Accident Analysis and Prevention 51, 59 (1976)CrossRefGoogle Scholar.

133 alcohol and Health, supra note 6, at 84.

134 Nichols, , Weinstein, , Ellingstad, & Struckman-Johnson, , The Specific Deterrent Effect of ASAP Education and Rehabilitation Programs, 10 J. Safety Research 177 (1978)Google Scholar. Unfortunately, this study was also beset by methodological problems. Cameron, supra note 105, at 533. Serious methodological problems included lack of sufficient data and lack of a statistically rigorous control group.

135 Quoted in Cameron, supra note 105, at 533.

136 Nichols, supra note 134, at 185-86.

137 Id. at 183.

138 Id. at 186.

139 Jacobsen v. Massachusetts, 197 U.S. 11 (1905) (compulsory smallpox vaccination law calling for punishment by fine upheld as constitutional).

140 Several states use alcohol education or treatment programs as conditions for suspending fines or jail sentences. See Trenery, DWI Laws: Getting Tough on Drunks, 28 S.D. L. Rev. 492, 496 n.26 (1983). Delaware requires successful completion of an alcoholic treatment program in order for a DWI offender to get his license back. Del. Code Ann. tit. 21, § 4177C (Supp. 1984).

141 Cameron, supra note 105, at 524-525.

142 Reed, supra note 130, at 343-44.

143 The following equation illustrates the relationship between penalty, enforcement and deterrence:

where P = penalty for drunk driving;

A = chance of being apprehended;

C = cost to driver of being drunk;

u = subjective utility to driver of driving drunk

P x A = C

if C > u, then deterrence will be achieved

if C < u, then driver will drive drunk

if C = u, driver will be indifferent

In simple terms, the cost to the driver of driving drunk must exceed the value to him of driving drunk. The size of the penalty is only one component of the equation. If the penalty is very onerous, but the chance of getting caught is infinitely small, no one will be deterred from the behavior.

144 Note, Alcohol Abuse and the Law, 94 Harv. L. Rev. 1670, 1677 (1981)Google Scholar.

145 Lecture by Ralph Hingson at Boston University School of Law, March 14, 1985.

146 Cameron, supra note 105, at 542.

147 S. Kadish, supra note 71, at 340; U.S. Const, amend. VIII.

148 Vennochi, Drunk Driver Abuses Found, Boston Globe, Oct. 31, 1985, at 1, col. 6.

149 See Schulhofer, Due Process of Sentencing, 128 U. PA. L. Rev. 733, 735-41 (1980).

150 Sec Commonwealth of Massachusetts, Senate Committee on Post Audit and Oversight, Progress & Problems with the State's Drunk Driving Law 26-7 (Oct. 1985); see J. Taylor, Jail Terms for Drunken Driving Fatals Seldom Given, Study Reports, Boston Globe, Feb. 11, 1986 at 21, col. 1. Note, supra note 144, at 1677; Cameron, supra note 105, at 524-25; Drinking, supra note 1, at 131.

151 See supra text accompanying notes 77-78.

152 The Madd and Sadd groups, while opposed to drunk driving, apparently do not view alcohol itself as a problem. “We aren't against drinking,” notes the executive director of MADD, Donald Schaett. “We are just trying to encourage responsible behavior.” Some critics say MADD and SADD are reluctant to attack alcohol abuse because the alcohol industry has co-opted these groups. Anheuser-Busch has given at least $70,000 to Madd and at least $200,000 to Sadd. Seagrams and Sons is also a supporter of Madd. RID refuses to accept alcohol industry money. Conte, Crusaders Against Drunk Driving Split Over Whether to Fight Alcohol Broadly, Wall Street Journal, Nov. 6, 1985, at 35, col. 3.

153 E. Durkheim, The Division of Labor in Society 108-109 (Simpson trans. 1933).

154 W. Lafave, supra note 72, at 342-45.

155 See Alcoholism: Progress, supra note 22, at 6-7.

156 Several states that have a treatment option in their DWI laws require the offender to pay the cost of treatment. See, e.g., Mich. Comp. Laws Ann. § 257.625(8) (West Supp. 1985); Neb. Rev. Stat. § 39-669.07(3) (1984).

157 See, e.g., Mass. Gen. Laws Ann. ch. 175, § 110(h) (West Supp. 1985); N.D. Cent. Code § 26-39 (Supp. 1983).

158 alcohol and Health, supra note 6, at 93.

159 Natural History, supra note 41, at 316.