The Debate over Abolition
At one extreme, in recent years a small but vocal minority has urged that compulsory commitment is never justified, so that "the goal [of mental health policy] should be nothing less than the abolition of involuntary hospitalization."[42] Such proposals have attracted a considerable following among the legal community, though their most visible and tireless proponent has been the renegade psychiatrist, Thomas Szasz, for whom "involuntary mental hospitalization is like slavery. Refining the standards for commitment is like prettifying the slave plantations. The problem is not how to improve commitment, but how to abolish it."[43] The antithesis to this position, from one perspective, is the extraordinary array of behaviors and conditions John Conolly urged us to accept as justifications for involuntary commitment in his Remonstrance over the Nottidge v. Ripley case[44] —except that few would now defend such a stance, at least in public. Realistically speaking, therefore, the alternative to abolitionism turns out to be a much more limited, eclectic, and qualified defense of compulsory commitment, which presses for involuntary hospitalization as preferable, on balance, to the likely alternatives.
In The Court of Last Resort, these two competing positions are defended with considerable zeal by Stephen Morse,[45] a lawyer and psychol-
[40] Ibid., 42.
[41] Ibid., 211.
[42] Bruce Ennis, Prisoners of Psychiatry (New York: Harcourt, Brace, Jovanovich, 1972), 232.
[43] Thomas Szasz, The Second Sin (Garden City, N.Y.: Doubleday, 1972), 89.
[44] Conolly, Remonstrance; see pages 284–85.
[45] Stephen J. Morse, "A Preference for Liberty: The Case Against the Involuntary Commitment of the Mentally Disordered," in Warren's Court of Last Resort, 69–109. A fuller version of this argument appears in an article with the same title in California Law Review 70(1982): 54–106. (Only the former version is cited in this chapter.)
ogist, and Jack Zusman,[46] a psychiatrist, with Warren joining in to argue for the retention of certain forms of involuntary commitment. Morse's arguments for the abolitionist position closely resemble those previously developed by Szasz,[47] and rest upon a shared commitment to the overriding importance of what they both term "liberty"[48] —though it should be noted at the outset that Morse's brief is less overtly polemical and consciously eschews the vituperative tone, name-calling, and attribution of base motives to one's opponents in which Szasz seems to revel. As one would expect from a skilled attorney, the abolitionist position is persuasively made, with logic and force that threaten to demolish the opposition's more cautious eclecticism. By contrast, Zusman and Warren's uneasy compromises among competing values, and rueful confessions of both the psychiatrists' limitations and the dangers inherent in the exercise of parens patriae powers, give their arguments a necessarily more vulnerable and compromised appearance.[49] And yet, I shall suggest that in the final analysis, it is precisely the moral absolutism of Morse's position that is its decisive weakness, rendering "it impotent to calculate the complex relations between means and ends, risks and benefits which hold in real life."[50]
Morse notes that "the deprivation of liberty authorized by involuntary commitment laws is among the most serious restrictions on individual freedom the state may impose," and that, unlike incarceration for criminal acts, "it may be imposed on the basis of predictions, without the prior occurrence of legally relevant behavior such as dangerous acts."[51] He begins his assault on this practice by denying the validity of the widespread belief in our culture that the irrational behavior of the mentally ill is compelled, while the behavior of "normal" people is freely chosen. Recent social scientific research has indeed cast some doubt on this belief, as a blanket contention, demonstrating that in some contexts, in certain restricted ways, psychotics can exercise a measure of control over their
[46] Jack Zusman, "The Need for Intervention: The Reasons for State Control of the Mentally Disordered," in Warren's Court of Last Resort, 110–33.
[47] See Thomas Szasz, Law, Liberty, and Psychiatry (New York: Macmillan, 1963); idem, "Involuntary Psychiatry," University of Cincinnati Law Review 44 (1976): 347–65.
[48] For analysis and critiques of this term as used by Szasz, see Peter Sedgwick, Psychopolitics (London: Pluto Press; New York: Harper and Row, 1982), 149–84; and Michael Goldstein, "The Politics of Thomas Szasz: A Sociological View," Social Problems 27 (1980): 570–83.
[49] The plausibility of Zusman's contribution is further undermined by his reliance on the highly dubious claim that the commitment process is now sufficiently adversarial to "ensure" that the weaknesses underlying psychiatric opinion will be adequately considered (Warren, Court of Last Resort, 116), a contention that, as we have seen, flies in the face of the evidence presented elsewhere in Warren's book.
[50] Sedgwick, Psychopolitics, 154.
[51] Morse, "Preference for Liberty," 72.
behavior.[52] Indeed, from the early nineteenth century to the present, control of inmate behavior within the mental hospital has perforce rested on precisely this presumption "that it made some sort of sense to hold the lunatic responsible for his actions, and that by doing so his behaviour could be manipulated."[53] Morse seizes on this evidence. The mentally ill, he contends, "often . . . have as much control over their behavior as normal persons do"; and "we cannot be sure that the person was incapable, as opposed to unwilling, to behave rationally or to control him or herself."[54] Moreover, "the assertion that the irrationality or other behavior of mentally disordered persons is compelled . . . is a belief that rests on commonsense intuitions and not on scientific evidence."[55]
But these are disingenuous arguments. "Often" is a very long way from always, and few observers would dispute that much psychotic behavior remains uninterpretable in any ordinary sense as intentional behavior. Indeed, we cannot be sure that a madman's actions were uncontrollable, but it may well be more sensible (i.e., in accordance with the preponderance of the evidence) to act on that presumption than to assume that he was capable of control and treat him accordingly. And of course the claim that action is either free or determined ultimately rests on commonsense intuitions and not on science: How could it be otherwise when (as Morse himself concedes but a few moments later) "empirical evidence cannot definitely prove or disprove that anyone has or lacks free will"?[56] But what Morse neglects to note is that we may have very good grounds indeed for this commonsense presumption.[57]
Moreover, were we to adopt Morse's position, we would be committed to holding "nearly all persons, including crazy persons, responsible for their behavior."[58] Necessarily, then, we would have no grounds for objecting if substantial numbers of discharged mental patients were to end up in prison. To his credit, Morse does not try to duck this issue: instead, he meets it head on, asserting that this result is "more respectful of the dignity and autonomy of crazy persons" than the alternative of confining them in a mental hospital.[59] One cannot help admiring his audacity, even as one is dismayed by the Orwellian use of language. Fortunately, despite
[52] See, for instance, B. Braginsky, D. Braginsky, and K. Ring, Methods of Madness: The Mental Hospital as a Last Resort (New York: Holt Rinehart, and Winston, 1969).
[53] Andrew Scull, Museums of Madness: The Social Organization of Insanity in Nineteenth-Century England (London: Allen Lane; New York: St. Martin's Press, 1979), 202; see also Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, N.Y.: Doubleday, 1961), 361–62.
[54] Morse, "Preference for Liberty." 75 (emphasis in the original).
[55] Ibid.
[56] Ibid. (emphasis added).
[57] See, generally, Jeff Coulter, Approaches to lnsanity (Oxford: Martin Robertson, 1973).
[58] Morse, "Preference for Liberty," 100.
[59] Ibid., 101.
the advent of 1984, we do not all (yet) inhabit a Humpty-Dumpty world in which "a word . . . means just what I choose it to mean—neither more nor less."[60] And until we do, it is unlikely that many of us will view consigning someone to jail as anything but a singularly odd way of respecting his dignity and autonomy.[61] Of equal importance, while Morse may not balk at the prospect of sending the mentally ill to prison, a commonlaw system of justice built around the concept of criminal responsibility almost certainly will.[62] Zusman is thus assuredly correct when he points out that "to eliminate state control as a preventive measure and allow the mentally ill to be accountable for any law-breaking and mistakes, is completely unacceptable without a massive shift in law and public opinion." On the other hand, it is equally plain that "complete disregard of rule breaking by the mentally disordered—that is, freedom to do whatever they please without any consequences—is a politically unacceptable alternative."[63]
Morse's second argument against involuntary commitment is that the mental health system "is unlikely to identify accurately those persons who should arguably be committed."[64] He is on much stronger ground here. The tendency of psychiatrists to overpredict dangerousness is pervasive and (given the structural pressures operating on them) both unsurprising and unlikely to change.[65] Thus, legitimizing commitment on the basis of dangerousness necessarily involves accepting that a high proportion of those preventively detained would not in fact have behaved violently: the most authoritative review suggests that inaccurate predictions will range as high as 60 or 70 percent.[66] Unquestionably, such statistics should give anyone pause. Whether they should also lead us entirely to abandon "dangerousness" as a ground for involuntary commitment is, however, more debatable. There is the obvious objection about the political possibility (or rather impossibility) of such a move.[67] But quite apart from these purely practical concerns, the question remains as to whether we ought to wait until the predicted harm occurs (if indeed it does) before we attempt to intervene. For those who share, with Morse, an absolute and overriding commitment to "liberty"—conceived of as a
[60] Lewis Carroll, Through the Looking Glass, and What Alice Found There (New York: Peter Pauper Press, 1941), 123.
[61] See James Jacobs, Stateville: The Penitentiary in Mass Society (Chicago: University of Chicago Press, 1977).
[62] Compare the discussion in Wexler, Mental Health Law, 11–14.
[63] Zusman, "Need for Intervention," 132.
[64] Morse, "Preference for Liberty,"73.
[65] On these pressures, see, generally, Thomas J. Scheft, Being Mentally Ill: A Sociological Theory (Chicago: Aldine, 1966); S. A. Shah, "Dangerousness: A Paradigm for Exploring Some Issues in Law and Psychology," American Psychologist 33 (1978): 224–39.
[66] See John Monahan, The Clinical Prediction of Violent Behavior (Washington, D.C.: Government Printing Office, 1981).
[67] Zusman, "Need for Intervention," 127.
presocial attribute of atomized individuals—no dilemma exists.[68] By contrast, if liberty is seen as a vital, but not always controlling value, and as an inextricably social phenomenon,[69] decision-making becomes much more complex, with no ready-made and all-embracing solution. One is forced to recognize, for example, that the social costs (including the costs to the liberty of a sizable number of other people)[70] imposed by the continued presence in society of a seriously disruptive and potentially violent crazy person (to use Morse's terminology) may be so great as to justify commitment, even if more than half the time the threat of violence remains merely a threat. The choices here are obviously very difficult; but I suspect that the best pragmatic resolution is to follow Monahan and Wexler's[71] suggestion and require an inverse relation between the probability and the seriousness of the harm, so that the greater the harm predicted, the lower the probability of its occurrence needs to be to justify involuntary commitment.
What of those "who are mentally unable to fend for themselves"[72] and who need to be confined for their own good? Morse denies that such cases exist:
Of course, there are cases of disordered persons that seem to cry out for intervention: the delusional person who seems on the verge of a violent outburst or who appears to be destroying the fabric of his or her family; or the terribly disorganized person whose life is apparently in jeopardy because the person seems unable to cope with minimal food, shelter, clothing, or medical needs; or the person in the throes of a manic episode who appears to be jeopardizing a career or reputation; or, perhaps most compellingly, the person on the verge of suicide who appears clearly to be making a mistake in judgment about his or her own helplessness and the hopelessness of his or her life situation.[73]
Not to worry, they only seem that way: Morse has "an intuitive hunch" that "even the craziest person has substantial control over his or her be-
[68] Note Morse's confession that "even if a commitment system could be devised that accurately identified very crazy and clearly dangerous people and limited commitments to those who could be successfully treated only in a hospital . . . I would still oppose involuntary commitment" (Morse, "Preference for Liberty," 96).
[69] "Freedom is an achieved, not an inherent condition: it is to be measured by the development of the individual's powers in self-determination, not assumed to exist as an all-or-nothing quality whatever one does" (Sedgwick, Psychopolitics, 176).
[70] See Peter Sainsbury and Jacquelyn Grad de Alarcon, "Evaluating a Service in Sussex," in Roots of Evaluation, ed. J. K. Wing and H. Hafner (London: Oxford University Press, 1973), 239–41; M. Yarrow, C. S. Schwartz, H. S. Murphy and L. C. Deasy, "The Psychological Meaning of Mental Illness in the Family," Journal of Social Issues 11 (1955): 12–24.
[71] John Monahan and David Wexler, "A Definite Maybe: Proof and Probability in Civil Commitment," Law and Human Behavior 2 (1978): 37–42.
[72] Zusman, "Need for Intervention," 111.
[73] Morse, "Preference for Liberty," 97 (emphasis added).
havior"; and if that does not seem sufficiently persuasive, he reminds us that crazy persons, like the rest of us, possess "an inalienable right to liberty."[74]
Doubtless, the inalienable right to liberty must have been a great comfort to the severely impaired 89-year-old woman whom Warren observed, slowly starving to death in her home, wandering around a room with "barely a sign of habitation . . . bumping into things and alternately mumbling softly and shouting phrases from fragments of a past life."[75] Or to a Mrs. Simmons, of whom counsel testified:
She was found on the floor of her apartment, where she had not gotten up for three months. She was malnourished. Maggots had eaten away part of her leg. She cannot be moved from the hospital until her leg is healed and she gains some weight. A neighbor had fed her on the floor for three months. She was lying in her own feces for three months.[76]
In the future, if such persons "really" disliked their situations, why then, they could always exercise the "autonomy" Professor Morse had so sedulously and kindly preserved for them when he blocked their involuntary commitment.
On the whole, I think we ought to prefer the commonsense view that one of the things people like this lack is autonomy, even if, as Morse is quick to remind us, such perceptions rest on "little more than an intuitive hunch."[77] Indeed, since the contrary view seems more than a trifle perverse, one wonders what can have led intelligent and thoughtful persons to adopt it. In part, the answer seems to lie in a continuing attachment to the Szaszian position that mental illness is simply a "myth."[78] As Warren points out, sociology made its own distinctive contribution to this belief that "mental illness was merely a matter of labeling of undesired behaviors and persons,"[79] and Morse, like others skeptical of psychiatry's pretentions, seems to have adopted substantial portions of this analysis. Hence his preference for "crazy" rather than "mentally ill," "because it is more descriptive and carries fewer connotations about disease processes that beg important questions about self-control";[80] and his penchant for minimizing the distinctiveness of the psychotic and the claims to expertise of their custodians, the psychiatrists.
For almost a quarter of a century, an intense and often acrimonious debate has raged about the medical model and the appropriate concep-
[74] Ibid.
[75] Warren, Court of Last Resort, 28–29.
[76] Quoted in ibid., 29.
[77] Morse, "Preference for Liberty," 97.
[78] Thomas Szasz, The Myth of Mental Illness, rev. ed. (New York: Harper and Row, 1974).
[79] Warren, Court of Last Resort, 5.
[80] Morse, "Preference for Liberty," 73 n.3.
tualization of mental disorder, with no agreement yet in sight.[81] But whatever the final outcome of the controversy, it surely cannot alter the social reality that there exist a substantial number of people—be they victims of endogenous disease processes or of "problems in living"—who lack basic social capacities and who manifest extreme helplessness and dependency. Moreover, while I share the assessment that on balance the data at our disposal "suggest that expert psychiatric knowledge is a well-managed 'appearance of objectivity' rather than a set of 'objective facts,'"[82] I would suggest that this provides an argument for lessening the role of doubtfully "expert" testimony in the commitment process, not for abolishing commitment altogether.[83] Nor do I think that the evidence supports Morse's attempts to play down the damage associated with psychosis, an essential prop for his contention that commitment is "a simple, although unfair, answer to interpersonal, family, and comparatively mild social problems."[84] In this connection, it is surely significant (though of course in no sense conclusive) that Carol Warren, who began her observations in "Metropolitan Court" sharing this assumption "as an article of faith (although I saw it then as sober scientific reasoning, not belief),"[85] found herself compelled by what she experienced to recognize the existential reality of "mental disorder . . . independent of labeling"[86] and the necessity for compulsory hospitalization.