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Daily Archives: August 5, 1997


By Ann Waldron

Special to The Washington Post – March 14, 1989, pp. 13-15 (c) The Washington Post

Many giants in American literature have turned to the bottle, yet the link between creativity and alcoholism remains unproven

Do writers drink more than other people? It would seem so. Raymond Carver, acclaimed author of stories about America’s working poor, died last August at the age of 50. “He began achieving recognition as a writer in 1967 when his story Will You Please Be Quiet, Please? was selected for the anthology Best American Short Stories, his obituary said. “But that was also the year he began to drink heavily…After being hospitalized for the fourth time, he turned to Alcoholics Anonymous and quit drinking.”

The same month, Adela Rogers St. John, a very different kind of writer, a “sob sister” and author of romances, died. “Her personal triumphs were accompanied by tragedy…and the conquest of alcoholism,” said her obituary.

David Roberts’ just-published biography of novelist and journalist Jean Stafford reveals the harrowing details of her alcoholism. She started drinking in college, and in her twenties was sipping sherry in the morning while she wrote. Her drinking progressed until “she hardly drew a sober breath,” as a friend recalled. If she went out to dinner, friends had to help her home. She told her sister that she hated to drink, that it made her unspeakably miserable but that she could not stop.

A doctor put her on Antabuse. It worked for a while, but she went back to drinking until she suffered from delirium tremens and endured falls and injuries. Several times she passed out on the floor and stayed there all night. Even after a heart attack and a stroke she drank.

In his biography of Truman Capote, published last spring, Gerald Clarke detailed the horrors of Capote’s drinking. While Capote was writing In Cold Blood, he would have a double martini before lunch, another with lunch and a stinger afterward. After he was arrested for drunken driving on Long Island, he went to Silver Hill, an expensive clinic in Connecticut for alcoholics. Dried out, he was soon drunk again; he fell, cracking his teeth and bloodying his head. He tried Antabuse.

He could stay off the booze for three or four months, and then he went back on it. He went to the Smithers Alcoholism Rehabilitation Unit of St. Luke’s Roosevelt Hospital in New York, which he called the Devil’s Island of alcohol clinics. Capote’s cure did not last. He appeared on a talk show; drunk and rambling. “I drink,” he said after one binge, “because it’s the only time I can stand it.”

Was it ever thus?

A friend of mine was teaching a survey course in American literature one summer session at the University of Houston. In the class were several older students, schoolteachers mostly. A teacher came up to him after class one day and said, “Listen, I just want to know why every single author on our reading list was an alcoholic!” The professor ran his eye down the list. Edgar Allen Poe. Stephen Crane. Theodore Roethke. Herman Melville. Delmore Schwartz. Scott Fitzgerald. William Faulkner. The school-teacher was right. Every writer on his list was an alcoholic.

In 1913, Jack London published a book called John Barleycorn, which his wife suggested he call Alcoholic Memoirs. In it, he tells how he got drunk the first time. He was 5 years old and drank some of the beer in the bucket he was carrying to his stepfather at work in the fields. In his teens, he learned to drink strong men to the floor. For a long time after he turned to writing, he refused to drink until he had done his thousand words a day. Soon he learned to get a “pleasant jingle,” as he called it, after the 1,000 words were on paper but before lunch. Then he acquired another “jingle” before dinner. “It was the old proposition,” he writes. “The more I drank, the more I was compelled to drink in order to get an effect.”

Insomnia and hangovers followed, along with the need for a drink in order to write. “I had the craving,” he said. “And it was mastering me. ” He vividly describes the “white logic” (skepticism) and the “long sickness” of alcohol. Then he quit drinking. But the ravages of the past held sway: He committed suicide three years later at the age of 40.

Tragic Literary Heroes

The prototype in American letters of the alcoholic writer as tragic hero is Ernest Hemingway. The newest biography of Hemingway by Kenneth Lynn deals very forthrightly with his drinking. Hemingway had the same capacity for alcohol that his characters did, and in The Sun Also Rises Jake Barnes and Brett Ashley drank three martinis apiece before lunch, which was accompanied by five or six bottles of red wine.

In 1939, Hemingway was ordered to cut down on his drinking. He tried to hold himself to three Scotches before dinner but he couldn’t do it and, in 1940, he began breakfasting on tea and gin and swigging absinthe, whiskey, vodka and wine at various times during the day. He even let his boys drink hard liquor when one of them was only 10.

His alcoholism brought on hypertension, kidney and liver diseases, edema of the ankles, high blood urea, mild diabetes mellitus and possibly hemochromatosis, recurrent muscle cramps, chronic sleeplessness and sexual impotence. He shot himself to death at age 62.

William Faulkner, who won the Nobel prize in literature in 1950, was hospitalized innumerable times for alcoholism. Then there were Allen Tate, Caroline Gordon, Ring Lardner, Dorothy Parker, Robert Lowell, Eugene O’Neill, John O’Hara, O. Henry, Conrad Aiken, John Berryman, Edmund Wilson–all acclaimed writers in the 1930s. All had trouble with alcohol.

Sometimes it seems that no American writers escaped the bottle.

One notable exception was Upton Sinclair, the muckraking author of The Jungle and a score of other novels, who was a rabid teetotaler. He wrote The Cup of Fury in the 1950s to warn young people against the evils of alcohol. He, too, noticed the prevalence of drinking among writers and talks in the book about all the writers he had known who had problems with alcohol. His list includes O. Henry, Sinclair Lewis (“never had anybody gotten so blind drunk as Sinclair Lewis”), Scott Fitzgerald, Stephen Crane, George Sterling, Maxwell Bodenheim, Sherwood Anderson, Hart Crane, Dylan Thomas and Joaquin Miller, the “frontier poet.”

Donald W. Goodwin, chairman of the department of psychiatry at the University of Kansas Medical Center and author of the recent book Alcohol and the Writer (Andrews & McNeel, $16.95) points out that while objective data on the numbers of writers afflicted with alcoholism is hard to come by, statistics show that, after bartenders, more writers die of cirrhosis of the liver, a disease closely associated with alcoholism, than people in other occupations.

Goodwin looked at the seven Americans who have won the Nobel prize for literature and found that four of them–Sinclair Lewis, Eugene O’Neill, William Faulkner and Ernest Hemingway–were definitely alcoholic, while a fifth–John Steinbeck–drank to excess. The two Nobel winners who weren’t alcoholics were Pearl Buck and Saul Bellow.

Goodwin also discusses the drinking lives of Edgar Allen Poe, Scott Fitzgerald, Hemingway, Steinbeck, Faulkner, O’Neill and Malcolm Lowry. He concludes that alcoholism is an epidemic among 20th-century writers.

Yet the link between alcoholism and creativity remains unproven. Many of the most notable American writers managed to stay away from the bottle. The list includes Nathaniel Hawthorne, Mark Twain, Mary McCarthy, Upton Sinclair, Emily Dickinson, Henry Thoreau, Zane Gray, Ralph Waldo Emerson, Saul Bellow, William Golding, Robert Frost, Edith Wharton, Willa Cather, James Michener, Lillian Hellman, Tom Wolfe and Flannery O’Connor.

Some alcoholic writers, moreover were able to conquer their addiction. John Cheever, for example, after years of alcohol abuse, signed himself into Smithers (Capote’s Devil’s Island) and never took another drink after the 28-day treatment was over. He was like a different man afterward, his daughter Susan wrote in Home Before Dark. “It wasn’t just that he didn’t drink anymore …it was like having my old father back, a man whose humor and tenderness I dimly remembered from my childhood. He was alert and friendly…He was interested in what we were doing and how we felt…In three years, he went from being an alcoholic with a drug problem who smoked two packs of Marlboros a day to being a man so abstemious that his principal drugs were the sugar in his desserts and the caffeine in the…tea that he drank instead of whiskey.”

A little more than a year after he left Smithers, Cheever finished Falconer, his most successful novel. When it was published in 1977, he was on the cover of Newsweek and the book was No. 1 on the best-seller lists. He died at 70, shortly after his last novel, Oh What a Paradise It Seems, was published in the spring of 1982.

Madness and Creativity

Nancy J. Andreasen, a professor of psychiatry at the University of Iowa with a PhD in English, did a 15-year study of 30 creative writers on the faculty of the Iowa Writers’ Workshop, where students and faculty have included well-known writers Philip Roth, Kurt Vonnegut, John Irving, John Cheever, Robert Lowell and Flannery O’Connor. She found that 30 percent of the writers were alcoholics, compared with 7 percent in the comparison group of nonwriters, she wrote in the October 1987 issue of the American Journal of Psychiatry.

Andreasen had begun her investigation to study the correlation between schizophrenia and creativity. She found none. But she did find that 80 percent of the writers had had an episode of affective disorders, i.e. a major bout of depression including manic-depressive illness, compared with 30 percent in the control group. Two thirds of the ill writers had received psychiatric treatment for their disorders. Two of the 30 committed suicide during the 15 years of the study.

The study is small but the relatively high rates of alcoholism and depression buttress the folk wisdom that creative artists are mad, with alcoholism an inevitable part of that insanity.

Freudian psychology has held that creativity is a sublimation of aggressive and sexual impulses or a response to emotional pain. A domineering, cold mother or any kind of unhappy childhood, according to this view, causes neurosis and anxiety, and neurosis is a veritable hotbed, or incubator, for creativity.

Proponents of this theory point out that those same anxieties would cause alcoholism in writers and other artists.

Writers do behave oddly. They can be monomaniacal about their work, obsessional about rewriting, insecure about any success they might have, paranoid about editors and publishers, riddled with anxiety about their talent. They are often nonconformists.

But is this mental illness? Ronald R. Fieve, in his 1975 book Moodswings, concedes that creative individuals tend to be eccentric and erratic, but he does not agree with the general Freudian idea that creativity is simply a response to emotional pain. That thesis “would say that art is rooted in sickness,” he writes. “I would conclude that individuals are creative despite their disorders, but certainly not because of them.”

In 1904, Havelock Ellis, who wrote copiously about psychology and sex around the turn of the century, did a study of 1,030 geniuses in England’s history and found that only 4.2 percent of them were crazy. That’s the same proportion of disturbed people in the general population, according to some estimates.

At the same time, if creativity itself does not cause alcoholism, are there occupational hazards that lead writers to become alcohol abusers?

Perhaps. For one thing, writers usually work alone, facing an empty page that must be filled. There’s no camaraderie at work for the fiction writer. He or she must keep at it day after day alone in a room with a keyboard, writer’s block and fears of failure to even get published. Then there is the horror of hostile criticism. Virginia Woolf suffered from depression of psychotic intensity after unfavorable criticism. Although she did not turn to alcohol as self-treatment for depression, many writers do. No wonder that Jack London’s “pleasant jingle” could become so comforting–and so illusory.

Journalists are not so apt to write alone, but they face other hazards in the midst of the old newspaper culture, where hard drinking is glamorous and macho. Journalists are often away from home and family for long periods in strange places. Hard drinking with colleagues provides some relief from the tedium.

Dr. Anita Stevens, a psychiatrist in New York who is the author of Your Mind Can Cure, treats a number of people in the creative professions. “My writer patients work in isolation, and isolation leads to alcohol,” she said. “Anybody can become addicted, but writing seems to lend itself to addiction. Writers’ enthusiasm will carry them away into the bottle. Then instead of getting more ideas from alcohol, they find their ambition dulled.”

It’s the lulls between writing that are dangerous, Stevens said. Writers try to fill the gap with alcohol. It begins as a pastime and then becomes alcoholism. “It takes a great deal of insight to be able to give it up,” she said.

Steven Levy, a New York psychologist who has worked with several writers, says that different kinds of writers react differently to alcohol. “Journalists have this `belly up to the bar’ attitude,” he said. “Authors do the cocktail party thing, but of course it’s their personal life histories that determine how they’ll handle it.” In what seems to echo the Freudian refrain, Levy added: “Part of creativity is pain.”

To Goodwin, drinking is often an integral part of a writer’s life. He points out that writers make their own hours, so it is easier for them to drink. It’s expected that writers will drink, and writers live up to the expectation. Some writers think they get inspiration from alcohol. Writers are loners and therefore drinkers.

Still, the evidence is anecdotal. Everyone agrees that more work and more biomedical investigation is needed to discover the causes of alcoholism among writers and assess the connection between writing and drinking.

Toll on Literature

The impact of alcoholism on American letters is a subject that attracts increasing attention from literary scholars.

A 1987 article in The American Scholar titled F. Scott Fitzgerald’s Little Drinking Problem takes a new look at Fitzgerald’s drinking and tries to assess how it affected his writing. Between 1933 and 1937, Fitzgerald was hospitalized eight times for alcoholism and arrested at least as often. He abused gossip columnist Sheilah Graham, who lived with him. “We know that alcoholism made Fitzgerald’s days hellish and clearly brought about his early demise,” writes Julie M. Irwin, the author of the article. “Yet given that Fitzgerald worked with this considerable handicap, his productivity becomes all the more impressive…Knowing that Fitzgerald worked under the pressure of alcoholism makes him seem not like an elegant wastrel…but a literary craftsman devoted to producing art regardless of the obstacles that stood in his way. This, finally, is the lesson to be learned from Fitzgerald’s alcoholism: He was a writer who was also the victim of a disease, not a self-destructive drunk bent on wasting the talent he was given.”

Upton Sinclair in The Cup of Fury wrote about Sinclair Lewis and his drinking: “Through a miracle of physical stamina, [Lewis] made it to the age of 66. More tragic than any shortage of years was the loss of productivity, the absence of joy.”

If he had not become such a drunk, would Truman Capote have finished Answered Prayers? If she had not turned to alcohol in such a destructive way, would Jean Stafford have finished the novel she worked on for 20 years? Would Caroline Gordon have finished her long novel about explorer Meriwether Lewis?

Imagine a world where Hart Crane continued to write poetry into middle age; where Jack London lived beyond 40 and worked as his talent matured on novels a cut above White Fang, where Ernest Hemingway did not sink in his later years to novels like Across the River and Into the Trees.

It’s impossible to predict what should have happened, of course, if so many writers had not become addicted to alcohol, but it’s impossible not to mourn as teetotaler Sinclair put it, “the loss of productivity, the absence of joy.”

Ann Waldron is a writer in Princeton N.J., and the author of Close Connections, a biography of Caroline Gordon.

Warner v. Orange County Department of Probation

115 F.3d 1068

No. 1760——August Term, 1994
(Argued: July 20, 1995 Decided: September 9, 1996)
Docket No. 95-7055



Before: Winter, Leval, and Calabresi, Circuit Judges.
Appeal from a judgment of the United States District Court for the Southern District of New York (Goettel, J.), after a bench trial, finding the Orange County Department of Probation liable, under 42 U.S.C. § 1983, for violating the First Amendment’s Establishment Clause by recommending plaintiff’s participation in Alcoholics Anonymous as a condition of his sentence of probation. Affirmed.

Judge Winter dissents by separate opinion.

ROBERT N. ISSEKS, Goshen, N.Y., (Alex Smith, Middletown, N.Y., Of Counsel), for Plaintiff-Appellee.
RICHARD B. GOLDEN, Orange County Attorney, Goshen, N.Y., (M. Kevin Coffey, Antoinette Gluszak, Laurie T. McDermott, Of Counsel), for Defendant-Appellant.

LEVAL, Circuit Judge:

Orange County Department of Probation (“OCDP”), the defendant, appeals from a decision of the district court awarding declaratory judgment, nominal damages of one dollar, and attorney’s fees to plaintiff Robert Warner in his civil action under 42 U.S.C. § 1983. Warner claimed that a probation condition imposed on him as part of a criminal sentence, which required him to attend meetings of Alcoholics Anonymous (“A.A.”), forced him to participate in religious activity in violation of the First Amendment’s Establishment Clause, and that OCDP was responsible, in part because it recommended the A.A. therapy to the sentencing court as a condition of probation. OCDP argues on several grounds that it cannot be liable for Warner’s exposure to A.A. pursuant to a sentence imposed by the court. We reject OCDP’s arguments, and affirm the judgment.


On November 13, 1990, Warner pleaded guilty to driving drunk and without a license in violation of New York law. N.Y. Veh. & Traf. Law §§ 511(2), 1192(1)(McKinney 1986 & Supp. 1996). This was his third alcohol-related driving offense in a period of little more than a year. Judge David L. Levinson, of the Town of Woodbury’s Justice Court in Orange County, New York, accepted the plea and ordered the Orange County Department of Probation to prepare a presentence report.

The OCDP’s report recommended a term of probation with six special conditions, which the department routinely recommends in cases of defendants with alcohol problems. These included that the probationer “totally abstain from the use of intoxicating beverages,” avoid “establishment[s] where the primary business is the sale or consumption of alcohol,” and, as the fifth recommended condition, that he “attend Alcoholics Anonymous at the direction of [his] probation officer.”

These recommended special conditions were set forth on a standard form rider which OCDP routinely provided to sentencing judges in such cases. Judge Levinson sentenced Warner to three years of probation, imposing the special conditions recommended by the OCDP. In imposing these special conditions, Judge Levinson endorsed the Probation Department’s standard form.

Warner attended A.A. meetings at the direction of his probation officer, Neal Terwilliger, from November 1990 through September 1992. However, in January of 1991, Warner complained to Terwilliger that, as an atheist, he found the religious nature of the A.A. meetings objectionable. The probation officer instructed Warner to continue his attendance. Some months later, Terwilliger determined that Warner lacked sufficient commitment to the program; he directed Warner to attend “Step meetings” and to seek another more advanced A.A. member as a “sponsor” to give him guidance and encourage his adherence to the program. The Step meetings were devoted to discussion of A.A.’s “Twelve Steps,” which represented the heart of the therapy program.

The district court found that the program Warner was required to attend involved a substantial religious component. For example, the “Twelve Steps” included instruction that participants should “believe that a Power greater than ourselves could restore us”; “[make] a decision to turn our will and our lives over to the care of God as we [understand] Him”; “[a]dmit[] to God . . . the exact nature of our wrongs”; be “entirely ready to have God remove all these defects . . . [and] ask Him to remove our shortcomings”; and “[seek] through prayer and meditation to improve our conscious contact with God, as we [understand] Him.” (Emphasis in original.)

Group prayer was a common occurrence at the meetings Warner attended. They frequently began with a religious invocation, and always ended with a Christian prayer. The district court found that the program “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.”

In July of 1992, Warner filed a motion in the Town of Woodbury Justice Court challenging the constitutionality of his consignment to A.A. The OCDP — after meeting with representatives from the local district attorney’s office — responded by offering Warner therapy in another program. The municipal court judge then dismissed Warner’s motion as moot. Warner subsequently brought this action in federal district court, seeking damages, as well as a declaratory judgment that OCDP had violated his First Amendment rights. After a bench trial, the district court found that compelling Warner to attend the program violated the Establishment Clause, and further determined that the OCDP was liable for the constitutional injury, notwithstanding that it was the sentencing judge — not the Probation Department — who had imposed the condition of A.A. participation. The court, however, found that Warner’s claims of financially compensable injury were not convincing, and thus awarded nominal damages in the amount of one dollar, plus attorney’s fees.


OCDP asserts that the trial court committed a variety of errors. First, it claims that it cannot be liable because, under New York law, the determination of probation conditions is solely the responsibility of the sentencing judge. Second, the OCDP argues that if it is responsible for Warner’s probation terms, it is protected from any damages judgment by a quasi-judicial absolute immunity. Finally, it contests the district court’s conclusion that requiring Warner to attend A.A. violated the Establishment Clause. We disagree with these contentions.

I.OCDP’s Responsibility for the Sentence

To establish OCDP’s liability for his sentence under 42 U.S.C. § 1983, Warner must first demonstrate that his injury resulted from a custom or policy of Orange County, as opposed to an isolated instance of conduct. Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 162-67 (1970)(describing congressional intent in creating liability for custom or practice). The OCDP’s recommendation that Warner be required to participate in A.A. therapy was unquestionably made pursuant to a general policy. This was one of six standard special conditions, set forth on a form captioned “Additional Conditions of Probation Pertaining to Alcohol,” which OCDP routinely submitted to sentencing judges in alcohol cases.

OCDP argues that it is nonetheless not legally responsible because it was the judge’s sentencing decision, not the Probation Department’s recommendation, that caused the harm. The County is certainly correct that in cases brought under § 1983 a super-seding cause, as traditionally understood in common law tort doctrine, will relieve a defendant of liability. Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir.), cert. denied, 116 S. Ct. 173 (1995); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989); Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir. 1987). “[T]he Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under section 1983.” Buenrostro v. Collazo, 973 F.2d 39, 45 (1st Cir. 1992); see Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe v. Pape, 365 U.S. 167, 187 (1961).

However, tort defendants, including those sued under § 1983, are “‘responsible for the natural consequences of [their] actions.'” Malley, 475 U.S. at 344 n.7 (quoting Monroe, 365 U.S. at 187). As the First Circuit has explained, an actor may be held liable for “those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.” Gutierrez-Rodriguez, 882 F.2d at 561 (citations omitted). 1

A complex chain of events led to Warner’s participation in religious exercises at the A.A. meetings. Two candidates present themselves as possible superseding causes of his injury that might relieve OCDP of liability: First, as the County argues, the judge’s sentencing determination; second, the actions of the A.A. chapter that Warner attended.

A.Act of the Sentencing Judge

As the OCDP correctly points out, under New York law the determination of probation terms is a judicial task, which may not be delegated to probation officers. People ex. rel. Perry v. Cassidy, 257 N.Y.S.2d 228, 229 (N.Y. App. Div. 1965); see also People v. Fuller, 455 N.Y.S.2d 253, 256 (N.Y. 1982)(sentencing court must independently decide how much of probation department report to adopt). The probation department therefore argues that its role was purely advisory, and cannot have been the proximate cause of Warner’s injury.

The Supreme Court, however, in Malley v. Briggs, 475 U.S. 335 (1986), rejected a similar argument. Malley was a civil rights action under § 1983 against a state trooper who had procured a warrant for the plaintiff’s arrest by submitting an affidavit. Plaintiff claimed the affidavit was legally insufficient. The district court had dismissed the case, believing the police officer to be absolutely immune when swearing out a warrant. The Court of Appeals reversed, resuscitating the action. The officer argued in the Supreme Court not only that he was immune, but also that he was shielded from responsibility by his entitlement to rely on the judgment of the judicial officer in finding probable cause and issuing the warrant. The Supreme Court ruled that such reliance was not justified if “a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Id. at 345. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it risked an unnecessary danger of unlawful arrest. “It is true,” the Court observed,

that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this damage by exercising reasonable professional judgment.

Id. Commenting on the claim that the judge’s decision to issue the warrant broke the “causal chain” between the application and the wrongful arrest, the Court noted that such an argument was “inconsistent with our interpretation of § 1983,” which makes defendants “‘responsible for the natural consequences of [their] actions.'” Id. at 344 n.7 (quoting Monroe, 365 U.S. at 187); see also Gutierrez-Rodriguez, 882 F.2d at 561 (defendants in § 1983 cases liable for consequences caused by “reasonably foreseeable intervening forces”).

The circumstances in Malley were more favorable than those here to the argument of exoneration by reason of the intervening decision of the judge. That is because a police officer applying for an arrest warrant appears in a partisan role. The magistrate to whom the application is addressed is automatically on notice that the application comes from an interested party and therefore knows that scrutiny is warranted. The probation officer, on the other hand, is not a partisan advocate aligned with either the prosecution or the defendant. He is a neutral adviser to the court. 2 Schiff v. Dorsey, 877 F. Supp. 73, 77 & n.1 (D. Conn. 1994) (describing analogous role of federal probation officer; “the sentencing judge’s need for complete and accurate information about an offender requires that he enjoy a relationship of the utmost trust and confidentiality with the federal probation officer”); see also Sharon Bunzel, Note, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 105 Yale L.J. 933, 945 (1995) (describing historical role of probation officer as “neutral information gatherer with loyalties to no one but the court”). The district court noted a high likelihood of court adoption of such recommendations by the probation department.

Given the neutral advisory role of the probation officer toward the court, it is an entirely “natural consequence[],” Malley, 475 U.S. at 344 n.7, for a judge to adopt the OCDP’s recommendations as to a therapy provider without careful scrutiny. Such action by a judge is neither “abnormal” nor “unforeseen.” Gutierrez-Rodriguez, 882 F.2d at 561.

Court adoption of the probation officer’s recommendation is particularly likely when the recommendation deals with a provider of therapy. Judges are unlikely to possess particularized information about the relative characteristics and merits of different providers of therapy. For this type of information, courts generally rely heavily on probation department recommendations. 3

Whether it was reasonably foreseeable that the sentencing judge would adopt the OCDP’s recommendation that Warner attend A.A. is a question of fact. See Springer, 821 F.2d at 876; Restatement (Second) of Torts § 453 cmt. b (1965). The district judge found a high likelihood that a judge would follow such a recommendation of the probation department. We review this determination for clear error, and find none. Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985).

Finally, the dissent argues that, because Warner — following the advice of his attorney — sampled A.A. sessions prior to sentence and made no objection to their religious content at the time of sentence, the probation department’s recommendation was not a proximate cause of the injury. The dissent argues also that Warner’s conduct constituted consent. We are not persuaded by either argument.

The issue of proximate cause is not resolved by the mere fact that Warner’s failure to object was an intervening event, subsequent to the probation recommendation and prior to the sentence. The issue, as noted above, is whether, when probation made its recommendation, it was reasonably foreseeable that the recommendation would result in the harm. Warner’s failure to object was entirely foreseeable. Assuming his early visits made him aware of the full extent of the religious content of the A.A. therapy, it was not clear that Warner was aware at the time that the religious content gave him any legal basis to object, or that he had even told his lawyer about the religious content.

Furthermore, even if aware of his rights, he might well have been afraid to annoy the sentencing judge by objecting to the standard recommendation of the probation department. In short, for several reasons, it was entirely foreseeable at the time probation made its recommendation that Warner might not object.

For the same reasons and others, Warner’s conduct did not constitute consent. Had Warner either suggested A.A. as a condition of probation, or somehow communicated his agreement to such a condition, we might well agree with Judge Winter. But the mere fact of his presentence attendance, designed to demonstrate his commitment to rehabilitation, did not amount to a consent to the aspect of the sentence that essentially required him to attend religious exercises. A defendant facing sentence may well undertake daily attendance at mass in the hope of convincing the sentencing judge of his penitence. We do not see how such conduct, without more, could be construed as consent to a sentence of probation conditioned on daily attendance at mass. The defendant’s voluntary attendance may suggest that the illegal sentence caused him no great harm and may explain, in part, the setting of damages at $1, but it does not show consent.

B.Acts of Alcoholics Anonymous

The immediate cause of Warner’s injury was not the sentencing judge’s decision to send him to an alcohol rehabilitation program, but rather the actions of those who conducted the A.A. meetings Warner attended. Whether the religion-infused meetings should be regarded as a break in the causal chain between OCDP’s action and plaintiff’s injury, thus shielding the probation department from liability, depends, again, upon whether those actions were reasonably foreseeable to OCDP at the time it made the recommendation. Gutierrez-Rodriguez, 882 F.2d at 561; see also Malley, 475 U.S. at 344 n.7. On this point, the district court made no findings. The probation department was, of course, obligated to use reasonable care to inform itself of the suitability of therapy programs it recommended to the court, especially where such recommendations were repeatedly made as a matter of policy. Furthermore, the parties stipulated prior to trial that OCDP, when it formulated its policy of recommending A.A., was aware of the program’s Twelve Steps and of their deeply religious character. Accordingly, there can be no question as to the reasonable foreseeability of the religious nature of the program OCDP was recommending for Warner; OCDP was well aware of it. The actions of A.A. cannot be considered to have broken the chain of causation. OCDP is responsible for any resulting injury to Warner’s First Amendment rights.

II.Orange County’s Other Defenses


OCDP contends that even if its recommendation to the judge was a proximate cause of Warner’s sentence, it is immune from liability. It claims that probation department sentence recommendations are so integral a part of the judicial process as to benefit from an absolute quasi-judicial immunity similar to that enjoyed by prosecutors. Cf. Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)(noting “exten[sion of] absolute [judicial] immunity to certain others who perform functions closely associated with the judicial process”); Imbler v. Pachtman, 424 U.S. 409, 420, 431 (1976)(prosecutor’s actions taken pursuant to prosecutorial function benefit from absolute quasi-judicial immunity).

Were this suit brought against the probation officer, Terwilliger, the claim for absolute immunity would likely have merit. We have held that actions of federal probation officers in preparing and furnishing presentence reports to courts are protected by an absolute immunity from suit for damages. Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987). In so holding, we noted that this determination was consonant “with the similar conclusions of other circuits with respect to state probation officers operating within similar frameworks.” Id. at 138 (citing Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1985); Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir. 1984)). A district court of this circuit, recognizing the close similarities between the roles of New York state and federal probation officers in preparing presentence reports, has held that New York state probation officers benefit from a similar absolute immunity. Shelton v. McCarthy, 699 F. Supp. 412, 414-15 (W.D.N.Y. 1988).

This case, however, does not require us to determine whether New York state probation officers benefit from immunity covering their submission of presentence reports, for Warner did not name any probation officers as defendants. The suit is brought only against the Orange County Department of Probation. The question is thus whether the claimed immunity extends to the governmental entity. We find that it does not.

Although the Supreme Court has not yet ruled on the applicability of absolute quasi-judicial immunities to municipal government entities, it has repeatedly suggested that such protections are not available. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993), Justice Rehnquist explained on behalf of a unanimous Court that past “decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit–either absolute or qualified–under § 1983.” Id. at 1162. 4 Similarly, in Kentucky v. Graham, 473 U.S. 159, 166-67 (1985), the Court indicated that the absolute prosecutorial immunity doctrine set forth in Imbler v. Pachtman, 424 U.S. 409 (1976), did not extend to claims brought against government entities under § 1983. “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167. These rulings follow directly from the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980), which held that municipalities do not benefit from the qualified immunity of their officers.

Following the direction of these cases, we refused in Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995), to extend the absolute prosecutorial immunity of the Suffolk County district attorney to the County itself. Id. at 1153 (citing Leatherman). 5 The Pinaud ruling guides our decision here, for in origin the quasi-judicial immunities of probation officers and prosecutors are closely linked. Indeed, our holding in Dorman v. Higgins that federal probation officers are protected by an absolute immunity in the preparation of presentence reports was grounded in significant part on the similarities between the prosecutorial function and the task of the probation officer, as well as probation officers’ close relationship to the judicial process. 6 Dorman, 821 F.2d at 136-37. As we have found in Pinaud that the absolute quasi-judicial immunity of prosecutors does not extend to the municipalities that employ them, the answer to the closely parallel question whether any immunity possessed by municipal probation officers would similarly benefit the municipality follows directly. We conclude on the basis of the authorities cited above that no such protection inures in Orange County by virtue of any immunity that may be possessed by its probation officers.

We are fortified in this view by our own opinions and those of other circuits, which have in a variety of contexts refused to extend immunities — either absolute or qualified — to municipalities. As Judge Posner has explained:

[T]he municipality’s liability for [its officials’] acts extends to acts for which the policy-making officials themselves might enjoy absolute immunity because the acts were legislative or judicial in character. Owen . . . so held with regard to the qualified immunity of municipal officers for their executive acts, and we cannot see why there should be a different result here just because these officers’ immunity is absolute rather than qualified.

Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir. 1983).

Also, in Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992), we held that a municipality is liable for the unconstitutional acts of its legislature even though the legislators themselves are protected by absolute immunity. Id. at 74. We stated in that case that “there is no immunity defense, either qualified or absolute, available to a municipality sought to be held liable under 42 U.S.C. § 1983.” Id.; see also Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1993)(“[T]he town and county have no § 1983 immunity.”), cert. denied, 115 S. Ct. 572 (1994); Reed, 704 F.2d at 953 (municipality has no absolute legislative or judicial immunity). Indeed, the circuit courts that have addressed the question are unanimous that the absolute immunity of local legislators does not extend to the municipalities they serve. See Berkley v. Common Council of Charleston, 63 F.3d 295, 296 (4th Cir. 1995)(en banc), cert. denied, 116 S. Ct. 775 (1996).

We are similarly not alone in the view that quasi-judicial absolute prosecutorial immunity does not extend to municipalities. The Ninth Circuit made a similar ruling in Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984)(“[Local governments] enjoy no immunity under § 1983 for damages.”). At least one circuit has even gone so far as to hold that the absolute judicial immunity of courts themselves does not extend to local governments where a municipal official acts in a judicial capacity. Reed, 704 F.2d at 953; Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th Cir.),

cert. denied, 471 U.S. 1117 (1985); see also Haynesworth v. Miller, 820 F.2d 1245, 1272 n.227 (D.C. Cir. 1987)(noting that “municipality may . . . face § 1983 liability for the conduct of officials who enjoy absolute personal immunity” including liability for “conduct of a judge”). 7 In any event, we hold that even if OCDP’s probation officers are absolutely immune from liability, that protection does not extend to the County itself.

B.Establishment Clause

The County also argues that forcing Warner to attend Alcoholics Anonymous did not violate the First Amendment’s Establishment Clause. We disagree. The Supreme Court has repeatedly made clear that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.'” Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)); see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591 (1989); Everson v. Board of Educ., 330 U.S. 1, 15-16 (1947); see also Katcoff v. Marsh, 755 F.2d 223, 231-32 (2d Cir. 1985) (observing that army chaplaincy program “meets the requirement of voluntariness by leaving the practice of religion solely to the individual soldier, who is free to worship or not as he chooses without fear of any discipline or stigma”).

The A.A. program to which Warner was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer. The trial judge reasonably found that it “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.” We have no doubt that the meetings Warner attended were intensely religious events. 8

There can be no doubt, furthermore, that Warner was coerced into participating in these religious exercises by virtue of his probation sentence. Neither the probation recommendation, nor the court’s sentence, offered Warner any choice among therapy programs. The probation department’s policy, its recommendation, and its printed form all directly recommended A.A. therapy to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content. Once sentenced, Warner had little choice but to attend the A.A. sessions. If Warner had failed to attend A.A., he would have been subject to imprisonment for violation of probation. See N.Y. Penal Law §§ 60.01(4), 65.00(2) (McKinney 1987); N.Y. Veh. & Traf. Law §§ 511(2), 1192(1) (McKinney 1986 & Supp. 1996).

Had Warner been offered a reasonable choice of therapy providers, so that he was not compelled by the state’s judicial power to enter a religious program, the considerations would be altogether different. Our ruling depends, as in Lee, on the “fundamental limitation[] imposed by the Establishment Clause” that bars government from “coerc[ing] anyone to support or participate in religion or its exercise.” 112 S. Ct. at 2655. In circumstances similar to our case, the New York Court of Appeals recently reached the same conclusion. Griffin v. Coughlin, No. 73, 1996 WL 317180 (N.Y. June 11, 1996). In Griffin, the New York court held that a prisoner’s family visiting privileges may not be conditioned on participation in a treatment program that adopts the “religious-oriented practices and precepts of Alcoholics Anonymous.” Id. at *1. The court emphasized that it was not proscribing A.A. programs offered to prisoners on a voluntary basis. Id. at *11. It was the coercive circumstances, conditioning a desirable privilege on the prisoner’s participation in a religious program, without alternative, that drove the New York court to find a violation of the Establishment Clause. 9

Orange County argues that even if Warner was forced to attend the meetings, he was not required to participate in the religious exercises that took place. The County argues that, as a mature adult, Warner was less susceptible to such pressure than the children who were required to stand in respectful silence during a school prayer in Lee v. Weisman, 112 S. Ct. at 2658-59; it points out that the Supreme Court expressly questioned whether the obligation imposed by the school in Lee might have been constitutionally tolerable “if the affected citizens [had been] mature adults.” Id. at 2658.

We do not find Orange County’s argument convincing. Although it is true Warner was more mature, his exposure was more coercive than the school prayer in Lee. The plaintiff in Lee was subjected only to a brief two minutes of prayer on a single occasion. Warner, in contrast, was required to participate in a long-term program of group therapy that repeatedly turned to religion as the basis of motivation. And when he appeared to be pursuing the Twelve Steps of the A.A. program with insufficient zeal — “Thirteen Stepping” in A.A. parlance — the probation officer required that he attend “Step meetings” to intensify his motivation. Warner was also paired with another member of A.A. as a method of enhancing his indoctrination into the group’s approach to recovery from alcoholism. Most importantly, failure to cooperate could lead to incarceration. Although the trial judge found that Warner’s success in remaining aloof diminished his damages to a token of one dollar, the fact that Warner managed to avoid indoctrination despite the pressure he faced does not make the County’s program any less coercive, nor nullify the County’s liability.

The County argues further that the non-sectarian nature of the A.A. experience immunizes its use of religious symbolism and practices from Establishment Clause scrutiny. The argument is at the very least factually misleading, for the evidence showed that every meeting included at least one explicitly Christian prayer. Furthermore, the claim that non-sectarian religious exercise falls outside the First Amendment’s scrutiny has been repeatedly rejected by the Supreme Court. As the Court made clear in Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1993), “a principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion.” Id. at 2491; see also Allegheny, 492 U.S. at 591; School Dist. of Abington Township v. Schempp, 374 U.S. 203, 216-17 (1963). 10

Similarly, the County’s reliance on Marsh v. Chambers, 463 U.S. 783 (1983), is unavailing. In Marsh, the Supreme Court held that the Nebraska state legislature did not violate the Establishment Clause by commencing its sessions with a sectarian prayer. That opinion relied heavily on the long tradition of public prayer in this context. Id. at 786-90, 795 (noting “unbroken practice for two centuries in the National Congress”). The Court in Lee noted the significant differences between the opening ceremony of a state legislative session where adults are free to “enter and leave with little comment and for any number of reasons” and the powerful emotional compulsion for a child to be present at her high school graduation. Lee, 112 S. Ct. at 2660. The differences between the invocation at a session of the state legislature and Warner’s compulsory adherence to the A.A. program are even more obvious. 11

Resolving questions as to the reach of the Establishment Clause “of necessity [requires] line-drawing, . . . determining at what point a dissenter’s rights of religious freedom are infringed by the State.” Id. at 2661. We have little difficulty concluding that the constitutional line was crossed here.


We have considered Orange County’s other claims, and find them to be without merit. The judgment of the district court is affirmed.

WINTER, Circuit Judge, dissenting:

I respectfully dissent.

The pertinent facts concerning Warner’s plea and sentencing are not in dispute. He was arrested and pled guilty to his third alcohol-related driving offense in a year. Prior to meeting with the probation officer who would recommend a sentence, Warner voluntarily began to attend Alcoholics Anonymous meetings. This was on the advice of his lawyer, who, according to Warner’s testimony, believed “that the court would look upon me more favorably in the sentencing procedure if I can show that I was pursuing a program of rehabilitation.” The probation officer subsequently recommended to the sentencing court that Warner continue his ongoing attendance at A.A. meetings as a special condition of probation. The sentencing judge, who is obliged by state law to make an independent sentencing decision, imposed that condition. Warner registered no objection at the sentencing hearing and took no appeal. Later, he moved the sentencing court to relieve him of any obligation to attend meetings with a religious component and was quickly accommodated with a non-religious counseling program. Based on these facts, my colleagues hold that the county probation authority may be sued for damages under Section 1983 for violating the Establishment Clause.

My dissent is based on two of the available grounds. First, Warner waived his claim or, applying tort law, consented to the probation officer’s alleged intentional tort of recommending to the court attendance at A.A. meetings as a condition of probation. Indeed, Warner voluntarily began attendance at A.A. meetings before any involvement by the probation office in order to convince the sentencing judge that his voluntary selection of this particular rehabilitative program obviated the need for a stiffer sentence. Moreover, the judge exercised his exclusive authority to determine what sentence should be imposed. The imposition of the sentence by the court was, therefore, an independent cause that superseded the recommendation of the probation officer in causing the injuries. Second, the invocation of the Establishment Clause, rather than the Free Exercise Clause, puts into play a principle that portends changes in our penal system that are not required, in my view, by the Constitution.


I turn first to the consent and causation issues.

This lawsuit is an instance of remarkable gall. Warner voluntarily selected and began attendance at A.A. meetings on the advice of counsel in order to impress the sentencing court with his determination to overcome his alcoholism. Now he complains that a subsequent recommendation of a probation officer that he attend such meetings entitles him to monetary damages.

Although we do not have the minutes of the sentencing hearing, Warner’s testimony in the district court stated that his ostensible desire to attend A.A. meetings was to be used as a plus in his favor in persuading the sentencing court to be lenient. The judge thus imposed a condition of probation embraced by Warner on his own initiative. Warner never indicated to the sentencing court his view that a condition of probation requiring attendance at A.A. meetings rendered the proposed sentence unconstitutional. Nor did Warner appeal from the sentence imposed.

By any measure known to me, Warner’s conduct was a waiver, the purposefully planned abandonment of a known right or, in common law tort doctrine, consent to an intentional tort, a full defense under New York law. See Van Vooren v. Cook, 75 N.Y.S.2d 362 (App. Div. 4th Dep’t 1947); see also Prosser and Keeton on the Law of Torts § 18. I would hold, therefore, that his claim for damages is barred.

Even if the principles relating to injuries caused by negligence relied upon by my colleagues are applied, Warner’s claim fails. Warner’s initiative in voluntarily selecting and attending A.A. meetings and his failure to bring his present claim to the court’s attention were the cause of whatever constitutional harm he suffered from the recommendation of the probation officer. As his successful petition for state collateral review under N.Y. Crim. Proc. L. § 440.20(1) and the recent decision in the New York Court of Appeals in Griffin v. Coughlin, 1996 WL 317180 (N.Y. June 11, 1996), demonstrate, relief was his for the asking.

I also cannot agree with the “finding” that the sentencing judge did not make the independent judgment required of him by state law, see People ex rel. Perry v. Cassidy, 257 N.Y.S.2d 228, 229 (N.Y. App. Div. 1965), and that that judgment was not, in the jargon of negligence law, a superseding cause of Warner’s injuries. In my view and that of others, see People ex rel. Brown v. La Vallee, 211 N.Y.S.2d 728, 729 (1961); Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir. 1979), cert. denied, 446 U.S. 985 (1980), a heavy presumption of correctness attends proceedings such as the one before us where no error was brought to the attention of the sentencing judge. My colleagues, and the district judge, indulge in the contrary presumption, namely, that acceptance of the sentencing recommendation of a probation officer as to sources of treatment is merely “rubberstamping.” They do this notwithstanding testimony that New York judges frequently reject special conditions of probation recommended by probation authorities. They also ignore the possibility that recommendations of probation officers may be tailored to the known views of judges, creating a false appearance of rubberstamping.

Moreover, as noted, the record is not silent as to whether the particular sentencing judge would have imposed the requirement of attendance at A.A. meetings had Warner indicated his concerns about the religious aspects of A.A. In fact, it fairly shouts that the judge would have rejected the condition. After sentencing, Warner complained to the probation officer about the religious aspects of A.A. At this point, of course, the officer lacked power to alter the sentence. Warner then, for the first time, challenged the sentence by filing a petition under N.Y. Crim. Proc. L. § 440.20(1) (McKinney 1995) to set aside the pertinent part of his sentence on the ground that it was invalid. The court ruled that Warner could comply with the conditions of probation by going to a non-religious alcohol counseling program and denied the petition as moot. Indeed, Warner’s complaint alleged that “[a]s a result of the Town of Woodbury Justice Court’s Decision and Order, plaintiff is currently no longer required by his probation officer to participate in Alcoholics Anonymous but is, instead, required to attend an alternative program.” In short, Warner’s own papers indicate that as soon as the judge was alerted to Warner’s distaste for the religious aspects of A.A., the judge immediately altered that condition of probation. That being the case, the record support for the finding that the judge merely rubberstamped the recommendation of the probation officer is not apparent to me.

Furthermore, another finding, not made by my colleagues, is necessary to establish the recommendation of the probation officer as the legal cause of Warner’s injuries. To reach my colleagues’ conclusion, we would also have to find that an appeal from the sentence would have been fruitless because the New York appellate courts would simply not have given any consideration whatsoever to Warner’s constitutional challenge out of blind and unhesitating deference to the recommendation of the Orange County probation officer. Quite the contrary, we now know that relief was available. See Griffin.

Malley v. Briggs, 475 U.S. 335 (1986), works against Warner. The procuring of a search warrant is not an adversary proceeding, much less one like sentencing, in which the subject has a constitutional right to counsel and a hearing on the merits. Because the magistrate issuing a warrant is not subject to adversary argument revealing flaws in the application and affidavit, the magistrate’s intervening decision does not immunize the officer’s unreasonable conduct. Malley simply has no application to a proceeding that is adversary and subject to immediate appellate review.


I now turn to the use of the Establishment Clause to invalidate a condition of probation that requires attendance at A.A. meetings. I will assume that the religious aspects of A.A. are sufficient to trigger a violation of either the Establishment or Free Exercise Clause if the other requisites of such claims are met. Nevertheless, I do not agree that the Establishment Clause provides a basis for relief to Warner.

In finding an Establishment Clause violation, my colleagues rely heavily upon the fact the probation authority did not recommend to the sentencing court that Warner have a choice between A.A. and a non-religious rehabilitation program. As a result, he was, in their view, coerced into participation in A.A. (In my view, of course, he freely chose A.A.) Although, as my colleagues point out, coerced participation in religious ceremonies may be a factor in finding an Establishment Clause violation, see Lee v. Weisman, 505 U.S. 577 (1992), it is not a necessary element of such a claim, and a choice among all available options is not a remedy for a valid Establishment Clause claim.

Relevant Establishment Clause precedent bars governmental endorsement and support of religion even in contexts in which no coercion exists. The “preservation and transmission of religious beliefs and worship is . . . committed to private sphere,” Lee at 589, and government may not support religious practices even when those engaged in them have freely chosen to do so. Government may not aid “a single religion or religion generally,” School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 382 (1985), but must “maintain a course of neutrality among religions, and between religion and nonreligion.” Id. A law that merely facilitates citizens in the practice of their religion may, therefore, be invalid even though no non-believer is negatively affected — even as a taxpayer. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481 (1994).

If attendance at A.A. meetings as a condition of probation violates the Establishment Clause, it is because such a condition entails governmental sponsorship of religion over nonreligion. Following the logic of Establishment Clause jurisprudence, it would seem to me that such a condition is a violation whether or not the only person directly affected, the probationer, preferred a religiously oriented program over a secular one. The lack of governmental neutrality is precisely what caused the Supreme Court in Grumet to strike down a state law establishing a school district for the Village of Kiryas Joel, which was populated only by persons with a common religion. And, in Lee, surely the plaintiff’s constitutional claim could not be satisfied by an offer of an additional ceremony at the high school graduation allowing speakers of her choice to express whatever spiritual or atheistic views — or disagreements with the spiritual or atheistic views of others — that were congenial to her.

Establishment Clause logic, if followed, therefore, would endanger any number of ubiquitous penal programs that are, in my view, clearly permissible. To take just two common examples, prisons may have chaplains, who systematically offer religious counseling, services, and other programs to prisoners. They may be selected, paid, and even monitored by state officials. Also, sentences to community service may involve service at soup kitchens, many of which are operated by churches where a meal begins with a prayer and religious tracts are distributed.

None of the programs described above violate the Establishment Clause in my view. Applying the three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), each has a secular purpose in that they all further rehabilitation in one way or another. None have as a principal or primary effect the advancement or inhibition of religion. Any such effect is incidental. Finally, they do not lead to excessive entanglement of the government in religion. I very much doubt that substantial disagreement exists over this point. The state’s control over the lives and activities of prisoners certainly justifies its making religious programs available to them. Indeed, under our caselaw, a state must offer some congregate programs of a sectarian nature. See Salahuddin v. Coughlin, 993 F.2d 306 (2d Cir. 1993); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.), cert. denied, 492 U.S. 909 (1989). However, I also see no difference between the penal programs described above and Warner’s sentence so far as the Establishment Clause — in contrast to the Free Exercise Clause — is concerned.

To be sure, my colleagues do not hold that attendance at A.A meetings can never be a condition of probation. Indeed, they expressly state that Warner should have been given a choice, a statement I take to mean that persons facing a sentence for alcohol-related offenses may constitutionally be offered a choice between A.A. meetings (or other religiously-based rehabilitation programs) and alternative secular programs as a condition of probation. My disagreement is simply over whether such a choice is required, or even permitted, by the Establishment Clause.

I hasten to add that I do not view compulsory activity with a substantial religious component as a valid penal measure, at least where equally effective secular rehabilitative programs are available. See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (restriction on free exercise rights must be reasonably related to valid penalogical interest). Compulsory attendance at religious ceremonies as part of a penal sentence surely raises serious issues under the Free Exercise Clause and might well require the provision of a choice between secular and sectarian programs. Warner makes no Free Exercise claim, however.


This is a decision with important ramifications. It transports tort doctrine of proximate cause and foreseeability drawn from the law of negligence to the judicial process. In so doing, it fails to give any recognition to the more appropriate rules governing intentional torts, to the power of a party to a court proceeding to avoid harm by raising objections and taking appeals, or to the role of the judge as an independent decision-maker. It thus may have implications for advocates as well as for those who advise judges. See Note 6, supra. It also brings to sentencing, probation, and penal institutions Establishment Clause doctrine that may not be easily cabined.

At a practical level, my colleagues’ decision exposes every probation authority in this circuit to suits for damages and attorney’s fees in virtually every case in which a recommendation of attendance at A.A. meetings has been made and accepted within the statute of limitations period, if no available alternative was offered and such recommendations were commonly made. Liability will follow no matter whether the defendant ever brought the constitutional issue to the attention of the sentencing court. Other claims of unconstitutional recommendations under Section 1983 will follow notwithstanding failure to make objections to sentencing courts.

I therefore respectfully dissent.

—- Begin EndNotes —-

1 The First Circuit went on to state:

A negligent defendant will not be relieved of liability by an intervening cause that was reasonably foreseeable, even if the intervening force may have “directly” caused the harm. An “unforeseen and abnormal” intervention, on the other hand, “breaks the chain of causality,” thus shielding the defendant from liability.

See also Stagl v. Delta Airlines, Inc., 52 F.3d 463, 473-74 (2d Cir. 1995)(under New York law liability turns upon whether the intervening act is “a normal and foreseeable consequence of the situation created by the defendant’s negligence”)(quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980)); Bonsignore v. City of New York, 683 F.2d 635, 638 (2d Cir. 1982)(same); White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990); Marsh v. Barry, 824 F.2d 1139, 1143 (D.C. Cir. 1987)(question in § 1983 case where intervening cause is alleged is “whether the resulting harm was reasonably foreseeable”); Springer v. Seaman, 821 F.2d 871, 876-77 (1st Cir. 1987); Restatement (Second) Torts §§ 442A, 442B, 443, 447 (1965).

2 New York law prohibits a court from sentencing a defendant to a term of probation not agreed upon by the parties without first considering the probation department’s pre-sentence report (“PSR”). N.Y. Crim. Proc. § 390.20 (McKinney 1994). PSR’s include not only material the department thinks appropriate, but also any other information the court may direct the investigation to include. Id. at § 390.30(3)(a). Once written, PSR’s become confidential court documents. Id. at § 390.50(1). Although not formally located within the judicial branch, Bowne v. County of Nassau, 371 N.Y.S.2d 449, 452 (N.Y. 1975), New York statutes intimately tie the probation department to the sentencing process.

3 The dissent suggests that we malign New York’s judiciary by finding that the sentencing judge merely “rubber stamped” the probation office recommendation. We neither find nor imply any such thing. First, to say, as we do, that it was reasonably foreseeable that the sentencing judge would accept probation’s recommendation on this point does not imply that the judge did not make his own determination. Second, our discussion relates only to the selection of a therapy provider and not at all to the court’s determination of appropriateness of probation and of alcohol therapy. The selection of a provider of therapy is not an issue of law, and courts are ill equipped to perform this task without relying heavily on recommendations. For sentences involving alcohol abuse therapy, furthermore, the probation department’s role is particularly significant. New York law allows a judge to sentence a defendant to a term of probation conditioned on “participat[ion] in an alcohol . . . abuse program . . . approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate.” N.Y. Penal § 65.10(2)(e)(emphasis added). The statutory requirement that the judge seek advice in approving a particular alcohol abuse program suggests judicial reliance on the department’s expertise in selecting a program.

4 Justice Rehnquist referred in particular to the Court’s decision in Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), overruling Monroe v. Pape, 365 U.S. 167 (1961), and holding that local governments were no longer absolutely immune from suit under § 1983. Monell expressly reserved the question of whether municipalities might be entitled to some more limited form of immunity. 436 U.S. at 701. In Owen v. City of Independence, 445 U.S. 622, 638 (1980), the Supreme Court rejected the notion that the qualified immunity of municipal officials extends to municipalities themselves.

5 See also Baez v. Hennessy, 853 F.2d 73, 75-76 (2d Cir. 1988)(noting Supreme Court’s agreement in dictum with view that absolute prosecutorial immunity does not extend to County government)(citing Kentucky v. Graham), cert. denied, 488 U.S. 1014 (1989). A few district courts had taken a different course, but these opinions were overruled by Pinaud. See Whelehan v. County of Monroe, 558 F. Supp. 1093, 1108 (W.D.N.Y. 1983); Armstead v. Town of Harrison, 579 F. Supp. 777, 782-83 (S.D.N.Y. 1984).

6 We noted, paraphrasing the Supreme Court’s language in Imbler setting forth the limits of prosecutorial immunity, that “a federal probation officer acts as an arm of the court and that . . . task is an integral part of one of the most critical phases of the judicial process.” Dorman, 821 F.2d at 137. And we made clear that federal probation officers deserve absolute immunity because they fall into a class of persons, such as prosecuting attorneys and witnesses testifying in judicial proceedings, whose activities require them to “perform functions [so] closely associated with the judicial process” that they “have also been accorded [absolute judicial] immunity.” Id. (citation omitted).

7 We do not imply that we would rule similarly where the asserted liability of the municipality derives from the conduct of a judge. A number of questions arise that may distinguish such a case. It is difficult to say that a municipal judge has “final authority to establish municipal policy” under state law at all, Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993); City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion), as such rulings are almost always — as here — appealable to higher courts within the state system. See Eggar v. City of Livingston, 40 F.3d 312, 314-15 & n.3 (9th Cir. 1994), cert. denied, 115 S. Ct. 2566 (1995); N.Y. Uniform Justice Court Act §§ 1701, 1702 (McKinney 1989). “Local” judicial decisions are therefore neither final, nor exclusively local. Eggar, 40 F.3d at 314-15 & n.3.

Moreover, when a municipal judge enforces state law he does not act as a municipal official or lawmaker, but rather serves only to effectuate state policies. See Eggar, 40 F.3d at 314-15; Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir.)(judge’s “‘deliberate or mistaken departure from the controlling [state] law’ cannot be said to represent county policy”)(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 486 (1986)), cert. denied, 488 U.S. 851 (1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.), cert. denied, 474 U.S. 1007 (1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980).

Courts have also denied municipal liability where — as is frequently the case — state law makes judges who are casually referred to as “county” officials in fact officers of state government, and a part of the state judicial system. See Eggar, 40 F.3d at 314 & n.3 (power of city judges under Montana law derives from state statutes, and the judges are in the hierarchy of the state judicial system); Woods v. Michigan City, 940 F.2d 275, 279 (7th Cir. 1991)(under Indiana law county courts are a branch of the “state’s constitutional system”); Thompson v. County of Rock, 648 F. Supp. 861, 866-67 (W.D. Wis. 1986)(denying municipal liability for acts of Wisconsin county court commissioners on grounds that they are in fact state officials). Since New York municipal courts are “part of the unified court system for the state,” N.Y. Uniform Justice Court Act § 102 (McKinney 1989), this logic might well apply in New York as well. Finally, we note that even in the event that the law were to allow a municipality to be liable for judicial actions, judges themselves may be protected against providing testimony as to their thought processes in issuing an opinion. A number of courts have so held in the context of federal habeas corpus review of state court decisions. See Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989)(recommending that state trial judges offer testimony in federal habeas cases, if at all, by voluntary affidavit since “it would be unseemly for a federal district judge to summon the state trial judge as a witness . . . to give testimony and be cross-examined”); Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir. Unit B 1982)(prohibiting testimony of state trial judges in federal habeas cases on rationale underlying their initial decision, inter alia, for reasons of federalism and comity), rev’d on other grounds, 466 U.S. 668 (1984). A similar logic would apply in collateral review of municipal court decisionmaking under § 1983.

8 As noted above, the district court made no finding on OCDP’s awareness of the religious nature of the A.A. program. We nonetheless found OCDP’s responsibility by reason of the stipulation of the parties that OCDP knew the religious nature of A.A.’s Twelve Steps. The district judge’s finding of a violation of the Establishment Clause was based in part on several factors, recited above, that were not included in the Stipulation covering OCDP’s knowledge — particularly the prayers. Although there was no finding that OCDP knew (or should have known) of the prayers, the finding of Establishment Clause violation and of OCDP’s responsibility are adequately supported by the stipulated facts.

9 See also O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994)(no Establishment Clause violation where probationers were offered a choice between A.A. and a secular program).

10 Orange County relies upon Stafford v. Harrison, 766 F. Supp. 1014 (D. Kan. 1991), for the proposition that A.A. participation is not a religious exercise. Stafford involved a mandatory prison-based substance abuse program, structured around the principles of A.A. The court upheld the program, arguing that A.A.’s notions of a “higher power” and “God” were sufficiently flexible and non-denominational that the program could not be said to constitute a “religion.” This is a misapplication of First Amendment doctrine, which prohibits coerced participation in religious exercise of any variety for its favoritism of religion over non-religion. We decline to follow that case, which has been criticized for misreading relevant Supreme Court precedent. See Scarpino v. Grossheim, 852 F. Supp. 798, 804 n.5 (S.D. Iowa 1994); Warner v. Orange County Dep’t of Probation, 827 F. Supp. 261, 267 (S.D.N.Y. 1993).

11 The parties also offer analyses of this case within the much-maligned but still viable framework of Lemon v. Kurtzman, 403 U.S. 602 (1971). Compare Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2148 n.7 (1993)(noting ongoing viability of Lemon) with Lee, 112 S. Ct. at 2685 (Scalia, J., dissenting)(noting criticism of Lemon) and Lamb’s Chapel, 113 S. Ct. at 2149-50 (Scalia, J., concurring)(same). Whatever other tests may be applicable in the Establishment Clause context, the Supreme Court has made clear that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Lee, 112 S. Ct. at 2655. Because sending Warner to A.A. as a condition of his probation, without offering a choice of other providers, plainly constituted coerced participation in a religious exercise, we find a violation of the Establishment Clause.



By James R. Milam, Ph.D.

November 17, 1995

  • “In my opinion, interdisciplinary work does not mean the meeting of specialists in different disciplines, but rather the meeting of different disciplines in the same individual–an adventure that our system discourages, when it does not absolutely forbid it.” – LUCIEN ISRAËL, Conquering Cancer (1978)

Since its publication (some 30,000 original circulation) copies of the enclosed paper, The Alcoholism Revolution, are continuing to spread, and there is now clear evidence that this definitive statement is transforming scientific and professional understanding of addiction, inspiring a cleanup of the peer review scandal, and profoundly influencing pending healthcare and criminal justice reforms. Major media stories are already reflecting the more positive attitudes toward treatment and recovery.

Meanwhile, with only stop-gap measures available to address the social and fiscal crises of our time, there is a continuing urgency for this rectifying information to be more widely available in its present form. So I have mailed evolving versions of this letter with its enclosures to scientists, professionals, government officials, media members and others who by their cumulative actions and influence will help to finally put a stop to this cultural calamity. To this end, I ask that you read this information thoughtfully, and share it with still others.

As early responses indicate, The Alcoholism Revolution speaks eloquently for itself, but it is also necessary to address what may otherwise still seem to be an insurmountable obstacle to the more general dissemination of this “heretical” material. Some members of the broader scientific and professional community have been constrained, without substantive comment, to hold the paper in abeyance as extreme, or premature. The reason is as obvious as it is absolute. Everything in the paper is anathema to the long established peer review consensus in alcoholism. There is no interdisciplinary mechanism of substantive appeal, no higher scientific authority, and it is unthinkable for official scientific spokespersons to violate the sacrosanct hegemony of an intradisciplinary peer review procedure. Neither they nor the communications media have had any way to know that in the field of addiction research this obstacle has been more apparent than real. Thus the fact that the peer review process has long been corrupted and subverted is a necessary part of the story of the alcoholism revolution.

Over twenty years ago Mark and Linda Sobell began publishing research reports alleging that controlled drinking was a viable treatment option for alcoholics because having trained twenty to do so, “…many engaged in limited, nonproblem drinking throughout the followup period.” The Maltzman, Pendery, and West investigations (The Winter of Scholarly Science Journals, enclosed) found that both during the Sobell followup and continuing through 1981, with the exception of one patient whose initial diagnosis was questioned, all had been drinking alcoholicly, with multiple hospitalizations and incarcerations. Four had died of alcohol related causes, another had disappeared while drinking, and six had resorted to programs of total abstinence. None had been drinking non-problematically.

Peer review then denied relevant journal access to Maltzman and the other whistle-blowers, as an “investigative” panel of Sobell cohorts castigated the critics and absolved the Sobells, characterizing their research reports as “perhaps too enthusiastic.” The Sobells were defended on the ground that the control group, instructed by the Sobells to abstain, fared no better than those taught to moderate their drinking. This diversionary point is, of course, irrelevant to the fact that the Sobells blatantly lied about their critically important data.

It would be hard to overstate the enormous impact of the Sobells’ “demonstration” on both science and public policy. It was insider knowledge that all other attempts to justify the denial of physical addiction had instead confirmed it that put such heavy pressure on the Sobells to falsify their data, and that made their bogus reports the most widely cited and most influential in shaping the academic addiction literature through the 1970s and ‘80s.

In parallel, by the 1970s the academic chorus of denial, with Timothy Leary singing the lead, had successfully promoted marijuana as a completely harmless, nonaddictive recreational drug with no physical consequences. There was then a sharp rise in cocaine use. At the first sign of public alarm President Carter’s drug czar, psychiatrist Peter Bourne, quelled the concern with a reassuring White House bulletin: “Don’t worry about cocaine. It’s among the most benign of all drugs in widespread use.”

Herbert Fingarette’s 1988 book, Heavy Drinking, was pivotal in the abrupt national regression from the emphasis on intervention and treatment of addicts to almost complete reliance on condemnation and punishment of “abusers.” He cited the Sobells’ reports twenty times in his argument that there is no such thing as physical addiction, that abstinence treatment is both unnecessary and ineffective. Since it had been scientifically proven that alcoholics can learn to drink moderately, society should demand that they do so, and punish them if they don’t. Thus his primary contribution was to elevate the big lie to public prominence and respectability, supporting Stanton Peele’s raucous sound-bite presentation of it in the media. Incredibly, Fingarette has been the US representative on addictions to the United Nations, which explains the global ignorance of the scientific paradigm shift that has occurred behind the scenes of denial in this country, and our meager distorted information about how other countries are coping with the drug crisis.

Fingarette’s gullibility was one thing, but why was society so ready and willing to be duped? The answer was in the changing composition of society. By 1988 members of the aging baby-boom generation were ascending to society’s levers of control. Reared within the academically sanctioned drug culture of denial of addiction—the diabolic spawn of the older moralistic ignorance of addiction—they were programmed to believe that theirs was the enlightened view, and from the beginning consensual validation had precluded any concern with evidence. In flipping society back into its old moralisms, the task was not so much to persuade as merely to pander to the mind set of this rising majority—denial imbedded in ignorance. Never mind that Fingarette’s evidence and argument were specious. Who but a cross-threaded voiceless minority could know?

Although never mentioned in the long lists of psychosocial risk factors blamed for the growing problem of “drug-abuse,” clearly all such factors are preempted by this big lie—the denial of physical addiction—the seminal crime in the drug-crime epidemic. This deception alone, the cultural message that drugs are nonaddictive, and harmless when not being abused, fully accounts for the drug epidemic. Absent the truth freedom of choice is counterfeit, freedom of speech a mockery, and support for the proposal to decriminalize drugs a capitulation to the hoax that generates the problem.

Citing the failure of alcohol prohibition, blaming the current crime epidemic on the fact that drugs are illicit, is as disingenuous as reciting the psychosocial risk factors. While cocaine and other such drugs were legal up through the first decade of this century there was a major drug epidemic. Finally realizing that the drugs were destructively addictive for most users, the public rallied in full support of the Harrison Act, outlawing the drugs, and the epidemic subsided. According to historian David Musto, “Drug prohibition was a complete success.” The difference was that smirking members of academia and a huge entertainment industry were not flouting the law and, through a disinformed press, continuing to promote recreational use of drugs. On the other hand, one major reason alcohol prohibition failed is that for nine out of ten drinkers, regardless of how, why, how much or how long they might choose to drink, alcohol is not an addictive drug, and for them moderate recreational drinking truly is a valid option.

No, psychosocial “risk factors” are not causes of addiction. Along with the big lie, they help to determine exposure, but the cause is the addictive chemical in a biologically susceptible individual, and most drug users are addicted. It is not just the acute drug effect or the illicit drug seeking that are a problem. They are just the beguiling visible tips of the massive addiction-crime connection. Note that tendencies toward violent behavior have always been with us, and that psychosocial factors have always been precipitating causes. As explained in The Alcoholism Revolution, persisting even after drugs have cleared the blood stream, the chronic brain syndrome of untreated addiction increases (neurologically augments) all destructive response tendencies, thus escalating both the frequency and intensity of overt expression of these normally more controlled impulses. Rates of suicide and homicide and all other crimes and excesses are greatly increased regardless of the ready availability of drugs or alcohol. But with addiction commonly excluded from the consideration of causes, and drug use and “abuse” viewed as incidental symptoms, the cause of the whole inflamed response is attributed to the person and to the familiar psychosocial triggers, as though age old sexual tension, domestic conflict and social injustice somehow in recent generations have become extremely provocative of destructively insane behavior. Alternately, it seems that a failed morality has unleashed this abusive torrent, when in fact, naively thrust to the decoy front in this quixotic war, morality has been blind sided and savaged by the camouflaged foe of addiction. Unable to account for the pandemic destructive behaviors, the media can only describe them, as weird, strange, out of character, irrational, bizarre and mysterious.

The familiar comes to seem normal, but the cumulative loss of civilities and moral sensibilities has been devastating as for three decades the whole of society has been contagiously coarsened to accommodate this misattribution of the insanity of addiction. Through screaming music the nihilistic effluvium of toxic brains has been imprinted as social commentary on the brains of each new generation of innocents, the maudlin agonizing of dying brain cells has been flatteringly mistaken for existential angst, senseless violence has been viewed as social protest, and peeing on cultural icons has been hailed as an avant-garde art form.

And it is through this misattribution that society has unwittingly subsidized and enabled addiction by guiltily trying to assuage its abusive consequences instead of demanding and enabling clean and sober recoveries. Predictably, insane behavior, crime, and poverty have increased in proportion to ever increasing expenditures devoted to their reduction. Thus did the drug culture of denial and misattribution assure that all of the heroic social engineering and fiscal gymnastics intended to create the great society would instead produce the great alibi society, this blundering bankrupt world of psychobabble and victimhood.

And no, informing the addict that he has a disease does not let him off the hook for his bad behavior, as widely proclaimed. On the contrary, it is the only convincing way to put him on the proper moral hook, the enforceable imperative to do whatever it takes to get clean and sober, and stay that way, as the only way to heal the brain syndrome that produces the destructive behavior. When coerced into treatment, once detoxified and returned to sanity and selfhood virtually all patients gratefully accept this truth and its moral obligation—if presented unequivocally and explained thoroughly—and become self-motivated. Most fully recover, even many of the “hopeless.” None recover when their psychosocial alibis and complications are mistaken for causes.

By 1988 the lucrative exploitation of the addiction treatment industry by the “substance abuse” mentality had burgeoned out of control, and it was easy to contrive the public backlash against this “rip-off industry.” Contrived, because it was the same Sobell alliance that fostered the exploitation and then orchestrated the media blitz. They focussed the attack not on their own zero recovery psychogenic programs, but exclusively against the “disease concept.” During the two decades of peer review subversion, scientific evidence proving the high cost/effectiveness of the abstinence oriented programs had been purged from public view. Bereft of scientific legitimacy, they were helpless to differentiate themselves or to defend against the attack, and the voice of recovery disappeared from the national dialogue. Well over half of the better private inpatient programs, ranging downward from eight thousand dollars per treatment sequence and yielding full recovery rates of some two-thirds, have been forced to close, and most of their financially starved public funded counterparts have been compromised to become cheap but extremely costly revolving doors. Meanwhile, at some $25,000 per inmate, per year, the prisons are bulging with alcoholics and drug addicts whose predictably recurrent crimes and incarcerations are secondary to the insanity of unrecognized or wrongly treated addiction.

The surviving treatment programs remain impotent pending public disclosure of the truth, and in their silence we hear the loud replay of the hostile code words of the truly failed psychogenic strategies of the 1970s, “We need to try alternative treatments.” The 44 of these highly varied “alternative” programs in the notorious Rand followup study (including anger management, harm reduction, and dual diagnosis treatments) cruelly provided temporary diversions, but uniformly yielded zero recoveries from this progressive fatal disease. Their future failures are predictable because in their inverted view of cause and effect, addiction doesn’t cause dysfunctional behavior, dysfunctional behavior causes substance abuse (John Bradshaw). If we learned anything from the 1970s it was that increased funding of this wrong premise in whatever guise only produces more colossal failures. So keep your eye on the really big money, in the “dual-diagnosis” replay, and the other Trojan Horses–the “harm reduction” and “moderation management” programs that also smuggle the alcoholics’ old alibis back in as causes.

But enough already of the 50-year obsession with alternatives to what works–the cosmetic tweaking and fiddling within the failed paradigm. As sincere curiosity and respect replace programmed ignorance and contempt, academics can discover and help improve, and multiply, the effective abstinence programs. Just honest scientific validation replacing dishonest disparagement will significantly increase patient confidence and therefore treatment effectiveness.

Take heart from the many signs that the revolution is under way, and gaining momentum. In a historic preemptive move, early in 1994 the principal culprits in the subversion of peer review were very visibly hooked off the academic center stage into the wings. Confronting the ensuing disarray, top officials of the American Psychological Association then suspended their campaign to subordinate addiction to mental health, appealed to their biologically oriented members to assert new leadership in this area (APA Monitor, July, 1994), and began a reassessment of peer review procedures. To the same end, top government agencies have just announced prophylactic peer review changes required for future research funding.

Alas, in a face-saving stall some members of the old guard are now attempting to trivialize the biogenic model by equating addiction with the nerve-transmitter effects of heavy drinking, the normal effects also produced by heavy drinking in nonalcoholics, and similar to the effects of excessive running or stamp collecting. But this denial of genetic susceptibility to addiction will not long prevail because enlightenment is spreading too fast, and government alcoholism and drug funding priorities are already shifting to support remedial professional education and training in the disease of addiction. Of course, the broader default position is still psychogenic. Even with unlikely retractions by the Sobells and their cohorts or published repudiations, it could take many years to glean enough valid information from the chaff comprising the vast inverted “substance abuse” literature to assemble the biogenic paradigm. On the other hand, as growing awareness of the true gestalt reaches a kind of critical mass, in an edifying figure-ground reversal the whole academic literature can be quickly flipped right side up.

In a most promising parallel development, the American Bar Association Task Force on the Drug Crisis has recently discovered and adopted the biogenic model.

It is also evident that the broader public pendulum has started to return from its extreme swing to interdiction and punishment. Drug courts are proliferating, and growing numbers of reformers are discovering the hard data confirming the enormous reduction in crime and healthcare costs following comparatively small investments in effective addiction treatment. So now the really huge question is this: To what will the pendulum return? Will selected addicts merely escape the revolving prison doors to join the throng still cycling in the traditional zero recovery healthcare and welfare caseloads, and the financially compromised revolving door programs? Or will there be a substantial reduction of all caseloads through enlightened leadership and rigorous measures of prevention, intervention and treatment of the core problem, addiction? Heaven help us if we merely continue to follow the advice attributed to Yogi Berra, “If you come to a fork in the road, take it.”

Alcoholics Synonymous: Heavy drinkers of all stripes may get comparable help from a variety of therapies


From: JANUARY 25, 1997 SCIENCE NEWS, VOL. 151 62-63

Psychotherapy studies rarely generate as much anticipation as Project MATCH did. Mental health clinicians and addiction researchers anxiously awaited the results of this 8-year, $27-million investigation that asked whether certain types of alcoholics respond best to specific forms of treatment. The federally funded investigation promised to yield insights that would bring badly needed .guidelines to alcoholism treatment and perhaps allow clinicians to tailor the current hodgepodge of approaches to the particular needs of each excessive imbiber.

The coordinators of Project MATCH have finally served up their findings, but with a shot of disappointment and a twist of irony. At a press conference held last December in Washington, D.C., they announced that alcoholics reduce their drinking sharply and to roughly the same degree after completing any of three randomly assigned treatments.

Trained psychotherapists administered the three programs. In 12-step facilitation therapy, the therapist familiarizes the client with the philosophy of Alcoholics Anonymous (which treats alcoholism as an illness treatable only through abstinence, support from other addicts, and personal surrender to God’s spiritual authority) and encourages attendance at AA meetings. Cognitive-behavioral coping skills therapy focuses on formulating strategies for avoiding or dealing with situations that tempt one to drink. Motivational enhancement therapy helps clients to identify and mobilize personal strengths and resources that can reduce alcohol consumption.

Treatment matching has operated on the assumption that alcoholics fall into categories best served by particular strategies. For instance, 12-step facilitation therapy and AA might work best with alcoholics searching for spiritual and religious meaning in their lives, cognitive-behavioral therapy may suit alcoholics who display serious psychiatric symptoms and thinking difficulties, and motivational enhancement could act as a tonic for heavy drinkers who express little desire or hope for improvement.

The new findings, however, “challenge the notion that patient treatment matching is necessary in alcoholism treatment,” states Enoch Gordis, director of the National Institute on Alcohol Abuse and Alcoholism (N1AAA) in Bethesda, Md. “The good news Is that treatment works. All three treatments evaluated in Project MATCH produced excellent overall outcomes.”

Despite Gordis’ optimism, opinions diverge sharply regarding the study’s implications and the adequacy of its design. Some alcoholism researchers agree with the NIAAA director. They view Project MATCH as a critical step toward the ultimate goal of developing sophisticated therapeutic approaches that thwart the suspected biological causes of uncontrolled alcohol use.

Others dub the federal effort an expensive dud. The absence of a control group of alcoholics who received no specific intervention raises the likelihood that volunteers improved because of intensive personal attention and encouragement rather than any specific treatment techniques, these investigators argue. At best, they contend, the data suggest that AA and other free self-help groups prove effective enough to replace professionally administered alcoholism treatments that command big insurance bucks.

A third perspective holds that flaws in the design of Project MATCH leave open the possibility that many alcoholics benefit from treatment matching or could abandon their addiction on their own, outside the world of clinical interventions and AA.

Scientific interest in developing treatments attuned to alcoholics individual characteristics goes back at least 50 years. More than 30 small-scale studies published during the 1980s reported that treatment matching based on a number of individual characteristics held promise for alleviating alcoholism. In 1989, the NIAAA Initiated Project MATCH (which stands for matching alcoholism treatments to client heterogeneity) to examine closely the most promising of those leads.

A total of 1,726 people diagnosed as alcohol-dependent (a condition marked by daily intoxication or extended drinking hinges that disrupt home and work activities) were recruited from outpatient clinics or facilities that provide care following hospital stays. The volunteers were randomly assigned to one of the three designated treatments, which were delivered over 12 weeks at 30 locations by 80 psychotherapists.

Individuals also dependent on drugs other than alcohol were excluded from the study, although more than one in three volunteers reported having recently used an illicit substance.

Alcohol use was monitored for 1 year after treatment ended, with particular attention paid to the influence of the following individual characteristics on recovery: sex, extent of prior alcohol consumption, the presence of psychiatric symptoms, aggressive and criminal tendencies, difficulties In thinking and reasoning, motivation to change, desire to lind meaning in life, and number of family members and friends likely to promote continued alcohol abuse.

Comparably large drops in alcohol consumption occurred for participants after courses of either 12-step facilitation, cognitive-behavioral, or motivational therapy, according to the N1AAA investigation, which appears in the January JOURNAL OF STUDIES ON ALCOHOL Before treatment, volunteers, on average, drank on 25 out of 30 days, a number that fell to 6 days of drinking per month by the end of the follow-up. The amount imbibed on drinking days also dropped markedly after treatment.

In the year of follow-up, 35 percent of volunteers reported not drinking but 40 percent still had periods of heavy drinking on at least 3 consecutive days.

Only one individual characteristic affected treatment responses, notes psychologist Gerard Connors of the Research Institute on Addictions in Buffalo, N.Y., a Project MATCH investigator. Alcoholics exhibiting few or no signs of psychological disturbance achieved abstinence through 12-step facilitation therapy more often than those with pronounced mental symptoms.

It remains possible that treatment methods not included in Project MATCH, such as group or marital therapy, work especially well for certain types of alcoholics, Connors notes.

For now, Gotelis contends, it appears that individual therapies based on a variety of philosophies make approximately the same dent in alcohol use. The development of new drugs that diminish alcohol cravings (SN: 3/16/96, p. 167) will add to the impact of current psychosocial approaches, he holds.

“Treatment matches may become apparent when we get to the core of the physiological and brain mechanisms underlying addiction and alcoholism,” Gordis asserts

Since the Project MATCH results were first openly discussed at a meeting of alcoholism researchers in Washington, D.C., last June, a dissenting interpretation of their significance has been advanced. Because encouragement to attend AA meetings achieves as much as the two professionally administered treatments under study, according to this view, free self-help groups for heavy drinkers may pack enough punch to justify abolishing insurance coverage for paid treatments. The self-help groups are organized by volunteers and supported through donations. “The Project MATCH findings support the idea that selling treatment for heavy drinking alongside free self-help programs such as AA is like selling water by the river, to coin a Zen saying,” contends psychologist Jeffrey A. Schaler of American University in Washington, D.C. “Why buy when the river gives it for free?”

Moreover. the lack of a nontreatment control group that received as much regular attention and support during the 1-year follow-up as the group given treatment makes it impossible to tell whether any of the Project MATCH interventions had a specific impact, asserts psychologist Stanton Peele, a clinician and writer in Morristown, N.J.

Even if the interventions did work, the findings apply only to the minority of alcoholics who voluntarily enter treatment in clinical settings, Peele argues. A majority of those who seek professional or AA-type treatment for substance abuse in the United States do so on the orders of judges (following arrests for drunk driving or other offenses) or employers, according to federal data. .

Recovery from alcohol dependence or milder alcohol abuse most often occurs outside the confines of hospitals, psychotherapists’ offices. or self-help groups, further undermining confidence in such treatments, Peele adds.

For instance, a pair of Canadian telephone surveys—one nationwide and one in Ontario—find that of the randomly selected adults, three in four who had recovered from an alcohol problem 1 year or more previously did so without any outside help or treatment. About one in three of those who recovered in the national sample continued to drink in moderation, a figure that rose to two in three in Ontario, report psychologist Linda C. Sobell of Nova Southeastern University in Ft. Lauderdale, Fla., and her coworkers in the July 1996 AMERICAN JOURNAL OF PUBLIC HEALTH.

Similar results emerged from an analysis of interviews conducted in 1992 with 4,585 U.S. adults who had at some time been diagnosed as alcohol-dependent. In the year before the interviews, about one in four still had mild to severe alcohol problems, a similar proportion had drunk no alcohol, and the rest had imbibed in moderation, asserts NIAAA epidemiologist Deborah A. Dawson.

Those who had received some sort of treatment were slightly more likely than their untreated counterparts to have had alcohol problems in the past year, Dawson reports in the June 1996 ALCOHOLISM: CLINICAL AND EXPERIMENTAL RESEARCH. For those whose recovery lasted 5 years or more, prior treatment raised the likelihood of abstinence, whereas lack of treatment upped the chances of drinking in moderation.

“Treatment studies may not be generalizable to alcoholics who do not seek treatment,” Dawson concludes.

Peele, who views alcoholism not as a medical disease but as a learned behavior employed to cope with life’s challenges, goes further. Such evidence, combined with the fact that the expansion of treatment rolls during the past 20 years has failed to reduce substance abuse rates, indicates that professional and AA-type approaches often present more risks than advantages to alcoholics, particularly those coerced into treatment, he contends.

George E. Vaillant, a psychiatrist at Brigham and Women’s Hospital in Boston and director of a 50-year study of male alcoholics (SN: 6/5/93, p. 356), takes a much less radical stance than Peele, although he still has reservations about the design of Project MATCH.

Alcoholics Anonymous and behavioral interventions such as those in the NIAAA investigation provide more help over the long haul than any other forms of treatment, without regard to the personal characteristics of alcoholics, Vaillant argues.

“The Project MATCH findings are exactly what I would have predicted,” the Boston researcher says.

In his opinion, researchers need to examine differences between alcoholics who succeed in recovering and those who fail, rather than limiting themselves to a search for contrasts among professionally ran treatments.

Sustained recovery requires at least two of the following experiences, Vaillant theorizes: some sort of compulsory supervision (such as parole) or a painful alcohol-related event (such as a bleeding ulcer or a spouse’s departure); finding a substitute dependency, such as meditation or AA meeting attendance; forming new, stable relationships that diminish addictive behaviors; and reformulating personal identity and the meaning of one’s life through religious conversion or serf-help group participation.

Such factors went unexamined in Project MATCH, according to Vaillant. Most notably, large segments of all three treatment groups attended AA meetings (and were not discouraged by researchers from doing so), thus obscuring the role played by AA in successful recoveries, he argues.

“Project MATCH was poorly designed, to say the least,” asserts psychologist G. Alan Marlatt of the University of Washington in Seattle, a pioneer in the development of behavioral treatments for alcoholism. “Everybody can now project their own views about alcoholism onto this study.”

Aside from the lack of a control group, the federal study also failed to evaluate directly the practice of patient matching, Marlatt holds. Volunteers were assigned to certain treatments not according to specific personal characteristics but at random; researchers tried to ferret out traits linked to improvement after therapy began.

In addition, the relatively “pure” alcoholics recruited for Project MATCH may respond to treatment differently than the majority of alcohol abusers, who regularly use one or more illicit drugs as well, Marlatt says.

While many questions remain about the effectiveness of alcoholism treatments, several psychotherapy studies—including a large federal study of depression treatments (SN: 1/11/97, p. 21)–find that some therapists are far better than others at fostering Improvement In their clients. The quality of the relationship between a therapist and an alcoholic client probably exerts a major influence on how well a particular treatment works, Marlatt suggests.

To put it another way, therapist-client matching may turn out to hold at least as much research promise as patient-treatment matching–especially since the value of patient-treatment matching, at least for now, remains unclear.

The Alcohol and Tobacco Industries Should Have Same Standard

By Jim Gogek and Ed Gogek

While the tobacco industry cowers under a fusillade of million-dollar lawsuits, government regulations and condemnation from all sides, another industry sells its highly addictive and dangerous drug in peace and harmony.

This billion-dollar industry openly manipulates the drug content of its product, catering to addiction. They pitch their ads to youth, presenting the drug as glamorous and hip. And unlike tobacco, they can still advertise on TV.

While the tobacco industry has rightfully become our nation’s corporate pariah, the alcohol industry has been ignored.

Beer, wine and liquor companies nave managed to avoid the spotlight with slick advertising campaigns that condemn underage drinking and drunk driving while encouraging “responsible” use.

The ads present an image of genteel drinkers who nurse one glass through a whole evening, or athletic hard bodies who can quaff a brew or two and never appear drunk

Since most Americans are either teetotalers or occasional drinkers there’s an automatic tendency to assume those ads present an accurate picture of drinking in America.

But they don’t. While most people drink moderately — one or two drinks on occasion — that’s not where the alcohol industry makes its money. The Alcohol Research Group in Berkeley has compiled surveys of thousands of drinkers. They found that heavy drinking supports the industry.

Among adults, 5 percent of the population drinks 60 percent of all alcoholic beverages sold. Half of all alcohol is consumed by heavy drinkers — those who drink an average of nine drinks every day.

Most of these are problem drinkers or alcoholics, people so addicted to alcohol they can’t quit without help. Many of the rest are reckless binge drinkers.

This research leads us to question the beer, wine and liquor ads that make it sound like the industry only wants people to drink in moderation. Does this industry really want to eliminate over half its income? Probably not.

What’s more likely is that the alcohol industry wants to avoid the tobacco companies’ nightmare. They want to avoid the public perception that they make their money off people who are addicted, or that they try to get young people started.

But if they’re not after the youth market, why have they introduced so many cheap, sweet wines and wine coolers? Alcohol that looks and tastes like soda pop appeals to kids as surely as Joe Camel ads. And if the industry isn’t catering to the addicted or to young abusers — people who drink only to get drunk— then why are they selling highly fortified wine and malt liquor?

Increasing the alcohol content of wine and beer is no way to encourage “responsible” drinking. And it’s no different than the accusation that tobacco companies manipulate nicotine content. If a cigarette smoker has grounds to sue the tobacco industry for attempting to addict people to nicotine, then a street drunk hooked on Night Train or Cisco could use the same argument.

The alcohol and tobacco industries have a lot in common. Both depend financially on people who are addicted. Both profit from people who use their products dangerously. Both target young people.

Tobacco companies have been accused of manipulating drug content; alcohol companies surely do. Both advertise heavily to the poor and minorities. And both sell products that kill huge numbers each year.

In deaths directly attributable to the drug, tobacco is the bigger killer, claiming 400,000 lives per year to alcohol’s 100,000. And the $20 billion a year in tobacco-related medical costs beats alcohol’s $10 billion.

But alcohol has some ugly statistics of its own. Alcohol is responsible for nearly half of all traffic fatalities. Two-thirds of all murders in the United States involve alcohol. It’s also a major cause of child abuse, domestic violence, welfare dependency and homelessness. Secondhand smoke pales in comparison.

It’s obvious why our society is taking aim at tobacco companies. But why is the alcoholic beverage industry getting off so lightly?

Jim Gogek is an editorial writer and columnist for the San Diego Union Tribune. Ed Gogek is a Phoenix-based psychiatrist who works in community mental health. © 1996 NY Times Features Syndicate.