Chapter Twelve
The Theory and Practice of Civil Commitment

The past two decades have witnessed a significant extension of the involvement of lawyers and the legal system in matters psychiatric. Much of this activity has had a sharply adversarial edge, with mental health lawyers (many of them public-interest attorneys schooled in the civil rights movement) attacking the procedures and practices of organized psychiatry and on occasion impugning psychiatrists' claims to expert status and authority.^[1] Efforts have been made to bestow both the "right to treatment" and "the right to refuse treatment" on the psychiatrically unfortunate, prompting fierce objections from psychiatrists that their clinical authority is being improperly infringed upon, to their patients' (not to mention their profession's) detriment.

Whatever the validity of these protests, it should now be apparent that the judicial system is not the most promising arena of action for those committed to psychiatric reform. In the late Peter Sedgwick's words, "If the resources of court action really did represent the high road of hope for the average institutionalised psychiatric patient, one might imagine

[1] An ACLU attorney, Bruce Ennis, has been a particularly prominent part of this movement. The title of his book (Prisoners of Psychiatry [New York: Harcourt, Brace, Jovanovich, 1979]) and of a subsequent law review article ("Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom," California Law Review 62 [1974]: 693–753) provide a not-so-subtle index of the stance adopted by at least some mental health lawyers. In response, psychiatrists complain of "the right to rot" and of patients "dying with their rights on," rhetoric that has attracted an increasingly sympathetic audience as the expansion of deinstitutionalization, combined with the contraction of social welfare services, has made the homeless mentally ill an ever more visible affront to middle-class sensibilities.

that the United States would by now possess the finest mental-health system that legal and libertarian reason could invent."^[2] To the contrary, the manifest deficiencies of contemporary American mental health policies, particularly with regard to the chronically mentally disordered, are now a staple item in the popular media, both printed and electronic. This situation is unsurprising, since civil libertarian interventions are necessarily reactive, and the law at best a crude instrument for formulating social policy, particularly when the courts attempt to intrude on quintessentially political decision-making about the allocation of funds among competing programs and priorities.

One of the major contemporary arenas of conflict between law and psychiatry has been over civil-commitment laws and procedures. From the late 1960s onwards, states generally began to circumscribe the formal criteria that justified the involuntary commitment of the mentally disordered, many of the states following the model provided by California's Lanterman-Petris-Short Act of 1967.^[3] More recently, one can find evidence of a backlash against such changes. Increasingly, it seems, we are being urged to reconsider our new-found reluctance to countenance the involuntary confinement of the mentally disordered—a stance reflecting "disillusionment and frustration with commitment statutes that have made it increasingly difficult to provide treatment to psychotic patients who are not imminently dangerous, and . . . increasing demands [by an aroused public] for more extensive involuntary hospitalization."^[4]

Carol Warren's The Court of Last Resort contains the most extended and systematic attempt we have to examine empirically the impact of the Lanterman-Petris-Short Act. When the University of Michigan Law Review asked me to write an essay on the issues raised by her study, I welcomed the opportunity to do so, not least because it seemed to me that the contemporary debates uncannily echoed arguments first rehearsed at a much earlier stage in the evolution of the psychiatric profession. To highlight the value of a historical perspective on our contemporary dilemmas, I elected to frame the discussion that follows around a mid-nineteenth century lawsuit brought by an obscure middle-aged lady enraptured by the teachings of a now-forgotten sectarian preacher—a decision that I hope gives some substance to the old saw concerning the value of historical inquiry in understanding the roots of our contemporary dilemmas.

[2] Peter Sedgwick, Psychopolitics (London: Pluto Press; New York: Harper and Row, 1982), 216.

[3] On the passage of the Lanterman-Petris-Short legislation, see Eugene Bardach, The Skill Factor in Politics (Berkeley: University of California Press, 1972).

[4] David Mechanic, "Recent Developments in Mental Health Perspectives and Services" (Paper presented at the Conference on Mental Health Services for the Seriously Mentally Ill, University of California at Los Angeles, 12 February 1988), 14.

The Theory and Practice of Civil Commitment

On a sweltering day in London, towards the end of June 1849, a curious throng of spectators jammed into a special sitting of the Court of the Exchequer to hear the lord chief baron, Sir Frederick Pollock, and a special jury decide the case of Nottidge v. Ripley and another .^[1] For three days, the court remained "crowded to suffocation," while a still larger audience followed the proceedings at a distance, devouring successive installments of the real-life soap opera at breakfast, in the blow-by-blow account provided in the legal columns of the Times . At the conclusion of the trial, after a brief retirement, the jury found for the plaintiff, awarding her fifty pounds and costs.

The object of this unwonted celebrity, Miss Louisa Nottidge, was a quiet and retiring "maiden lady . . . at the meridian of life," and her suit was an action for damages against her brother and brother-in-law for wrongful confinement in a madhouse.^[2] As the trial testimony revealed, shortly after her father's death, in May 1844, Louisa and three of her unmarried sisters (all rather advanced in years) had become enamored of the doctrines of an obscure and tiny religious cult, the Lampeter Brethren, and of the preaching of the sect's leader, a defrocked Anglican curate named Prince. Within a matter of months, they had left their maternal home to follow Prince, taking with them their private fortunes—amounting to some 6,000 pounds each. Three of the ladies promptly married, in the same ceremony, much younger (and penniless) members of the religious commune, not troubling to take the usual Victorian precaution of protecting their property through prenuptial settlements. Louisa, apparently unable to find even so unsatisfactory a suitor, nevertheless joined her sisters in Agapemone, or the Abode of Love, the country house the sect now occupied in Somerset.

Here she lived for six weeks with the other fifty or sixty members of the commune, "dazzled by its luxury, charmed with its games and pastimes, and sustained by glorious assurances of judgment being past, and heaven to come;" till at length her mother learned of her whereabouts.

[1] Unless otherwise noted, my account of the trial is drawn from the daily law reports in The Times (London), 25 June 1849, 7, col. 4; 26 June 1849, 7, col. 2; and 27 June 1849, 7, col. 4.

[2] The meagerness of the damages she received was sharply criticized in some quarters. See, for instance, The Times (London), 30 June 1849, 5, col. 1. Apparently the jury was reluctant to impose heavier damages because it believed that the defendants were not actuated by mercenary or other improper motives.

Convinced that her daughter "was not a free agent," that her mind was deranged, and that her continued presence in this den of sin and iniquity was "endangering her happiness in this and her welfare in a future life," Mrs. Nottidge determined to rescue her from such "a low, degrading, and disgusting association." Accordingly, she dispatched her son and son-in-law to Somerset. Gaining access to the house by stealth, they first tried to persuade Louisa to come with them to visit her sick mother. When she declined, however, they seized her, "dragged her out of the house, notwithstanding her struggles and screams, and forced her into a carriage without either bonnet, or shawl, or shoes . . . and then off they drove as fast as the horses could put their feet to the ground."^[3] Two medical men were readily found to certify that her reckless disregard of her reputation and property, and her peculiar religious beliefs—or delusions, as they were now held to be—constituted clear evidence of insanity, and she was promptly carted off to Dr. Stillwell's madhouse, Moorcroft House.

The spectators at the trial listened to this gothic tale with rapt attention, occasionally mixed with gales of laughter when revelations of the goings-on at the Abode of Love provided a measure of comic relief. Miss Nottidge had remained under confinement for some fourteen months, still insisting that Prince was "God manifest in the flesh," that the day of judgment had come, and that she had been rendered immortal and should shortly "be taken up to heaven in the twinkling of an eye"—and still diagnosed by the asylum superintendent and by the lunacy commissioners, the official inspectors of all asylums, as a religious monomaniac. Then she managed to escape. She was rapidly recaptured and brought back to the asylum, but not before she had succeeded in alerting her co-religionists to her whereabouts. After a protracted struggle, they secured her release (at which point, she promptly returned to Agapemone and handed over all her assets to Prince).

The medical witnesses at the trial were uniformly convinced that Louisa Nottidge had been and still was deranged, and thus in need of protection and treatment in an institution. The lay audience was not persuaded. As the Times put it in its editorial on the case: "We must not stretch a harmless hallucination into legal insanity. . . . The shades and gradations of error and folly are so insensibly blended that we could not incarcerate and coerce such an [sic ] one without danger to others."^[4] And in summing up the evidence for the jury, the Lord Chief Baron all but directed a verdict for the plaintiff: "It is my opinion that you ought to

[3] J. Conolly, A Remonstrance with the Lord Chief Baron, Touching the Case of Nottidge v. Ripley (London: Churchill, 1849), 16. The Times (London), 25 June 1849, 7, col. 4; 26. June 1849, 7, col. 7.

[4] The Times (London), 30 June 1849, 5, col. 1.

liberate every person who is not dangerous to himself or others . . . and I desire to impress that opinion with as much force as I can."^[5]

Periodic moral panics over the issue of the improper commitment of the sane to asylums were endemic in the nineteenth century in both England and the United States, and attempts like Pollock's to limit the criteria justifying involuntary commitment to the narrowest possible compass reflect one possible response to these spasms of anxiety.^[6] But alienists fiercely resisted attempts to constrict the definition of madness within such narrow confines, and for the most part they succeeded. In the Nottidge case, the Lord Chief Baron's dictum drew forth an impassioned critique from John Conolly, the leading authority of his generation in matters psychiatric.^[7]

Notwithstanding its "apparent conformity . . . to the liberty of the subject, and to the dictates of humanity,"^[8] argued Conolly, the attempt to restrict the asylum population to lunatics who were a danger to themselves or others was thoroughly mistaken and mischievous:

If the liberty of an insane person is inconsistent with the safety of his property or the property of others; or with his preservation from disgraceful scenes and exposures; or with the tranquility of his family, or his neighbours, or society;—if his sensuality, his disregard of cleanliness and decency, make him offensive in private and public, dishonouring and injuring his children and his name;—if his excessive eccentricity or extreme feebleness of mind subject him to continual imposition, and to ridicule, abuse, and persecution in the streets, and to frequent accidents at home and abroad ;—his protection and that of society demands that he should be kept in a quiet and secluded residence, guarded by watchful attendants and not exposed to the public.^[9]

Similar are the cases of young women "of ungovernable temper, . . . sullen, wayward, malicious, defying all domestic control; or who want that restraint over the passions without which the female character is lost";^[10] and young men "whose grossness of habits, immoderate love of drink, disregard of honesty, or general irregularity of conduct, bring disgrace and wretchedness on their relatives. . . . People of this kind may not endanger their lives or those of others, but their being at large is inconsistent with the comfort of society, and their own welfare."^[11] "To forbid the placing of such persons in asylums because they are not dan-

[5] Ibid., 27 June 1849, 7, col. 5.

[6] On the issue of improper confinement in the nineteenth century, see, generally, Peter McCandless, "Liberty and Lunacy: The Victorians and Wrongful Confinement," in Madhouses, Mad-Doctors and Madmen: The Social History of Psychiatry in the Victorian Era, ed. Andrew Scull (Philadelphia: University of Pennsylvania Press; London: Athlone Press, 1981), 339–62.

[7] On Conolly, see Chapter 7.

[8] Conolly, Remonstrance, 5.

[9] Ibid., 7.

[10] Ibid., 9–10.

[11] Ibid., 9.

gerous . . . would be to forbid their being protected and cured,"^[12] and furthermore would "bring affliction on a thousand families, and even throw society into confusion."^[13] The case of Louise Nottidge was of exactly this sort: "It belonged to a class in which the patient is unequal, from feebleness and unsoundness of mind, to take care of herself or her property."^[14] Confinement preserved "her money . . . from legalized robbery, and her person from the possibility of legalized prostitution."^[15] Consequently, "those who exult in her liberation from the salutary control of an asylum are exulting over her ruin."^[16]

It is clear that over the next century and more, while perhaps shrinking from endorsing the full measure of Conolly's attempt to equate insanity with any deviation from conventional social and moral standards, the civil commitment codes of all Anglo-American jurisdictions by and large embraced the claims made by psychiatrists to be the arbiters of the boundary between sanity and insanity. These laws accepted the need for a broad standard for commitability, based on the state's paternalistic interest in securing protection and treatment for the loosely defined class of the mentally unbalanced. Sir Frederick Pollock's attempt to narrow the criteria for individual commitment, although symptomatic of a widespread distrust of psychiatrists' character and competence,^[17] had only a limited impact on the development of mental health law.

Beginning in the late 1960s, however, in the context of a virtual explosion of law and litigation in the United States relating to the mental health system, there has been a marked trend away from traditional commitment codes, with their typically loose standards and protections and broad grants of discretionary authority.^[18] One of the earliest and most influential manifestations of this trend was the passage of a new commitment law in California, widely known as the Lanterman-Petris-Short Act (LPS).^[19] Under LPS, the emphasis in involuntary commitment decisions shifted away from a parens patriae concern with "protecting" those unable to care for themselves, toward a much greater stress on the issue of danger to others and on procedural rights. Commitment for anything more than an emergency seventy-two-hour period could be achieved in only two ways: (1) through a conservatorship subject to mandatory yearly judicial review and jury trial for those persons found to be

[12] Ibid., 12.

[13] Ibid.,9.

[14] Ibid., 12.

[15] Ibid., 18.

[16] Ibid., 13.

[17] See, for example, McCandless, "Liberty and Lunacy," passim.

[18] See, generally, Alexander D. Brooks, Law, Psychiatry, and the Mental Health System (Boston: Little, Brown, 1974); David B. Wexler, Mental Health Law: Major Issues (New York: Plenum, 1981); and idem, "Mental Health Law and the Movement Toward Voluntary Treatment," California Law Review 62 (1974): 671–92.

[19] California Welfare and Institutional Code 5000–5464 (West 1972). On the passage of Lanterman-Petris-Short, see Eugene Bardach, The Skill Factor in Politics (Berkeley: University of California Press, 1972).

"gravely disabled"—that is, on the basis of clear and convincing evidence, mentally unable to provide for their "basic personal needs for food, clothing, or shelter"; or (2) through commitments lasting no more than ninety days for persons who are mentally ill and who, as evidenced by recent overt acts, attempts, or threats of violence, are found to be "imminently dangerous." Such ninety-day commitments can be renewed only if it is shown that the patient, while confined, again acted violently. Under either standard of commitment, the person alleged to be mentally ill has the right to be notified of all proceedings against him or her and to be present at all hearings; and the right to be represented by an attorney during all judicial review proceedings.^[20] Thus, the California commitment law in a number of crucial respects now corresponds quite closely to the standard articulated in Nottidge v. Ripley; indeed, from some points of view, it is even stricter.

Carol Warren's book, The Court of Last Resort,^[21] presents a wide-ranging analysis of court administration of this new mental health law. The book's particular focus is an empirical examination of judicial decision-making about whether to release or retain those involuntarily committed under LPS, based on extensive firsthand research and observation in "Metropolitan Court" (a pseudonym for a Los Angeles mental health court). Though she attempts to place her findings in a broader sociological context, to see courtroom decisions as to some degree conditioned by large-scale economic, political, and historical forces, the results of this effort are rather thin and insubstantial.^[22] The book's real strength lies in its documentation of the gap between the formal wording of the statute and the practical application of the law and in its contribution to the current debate about the appropriate standards for involuntary commitment.

The Metropolitan Court Routine

Theoretically, LPS sets up an adversarial system in the courtroom, designed (on an analogy with an idealized portrait of the criminal justice system) to protect the patient's rights. Lawyers seeking commitment confront other lawyers representing those alleged to be in need of confine-

[20] For a review of commitment law in California, including some subsequent modifications of LPS, see Estate of Hofferber, 28 Cal. 3d 161, 616 P. 2d 836, 167 Cal. Rptr. 854 (1980).

[21] Carol A. B. Warren, The Court of Last Resort: Mental Illness and the Law, with contributions by Stephen J. Morse and Jack Zusman (Chicago: University of Chicago Press, 1982).

[22] For example, her discussion (ibid., chap. 7) of decision-making by the court on habeas corpus writs is hampered rather than helped by a clumsy and heavy-handed attempt to structure the analysis around an examination of certain abstract "theories" of the decision-making process (conflict, legal, organizational, and individual decision-maker) and their supposed implications.

ment, and psychiatric personnel face questioning and cross-examination about the grounds for their conclusions. In practice, however, as Warren demonstrates in a variety of contexts, the norm is rather one of cooperation and mutual accommodation among a group of actors who routinely play out the same roles day after day, and who have all developed a working consensus around a "commonsense" model of madness.^[23] The practical effect of a common culture and a set of shared organizational imperatives is a recognition that "we all work together here"^[24] and a conviction that such a state of affairs is both natural and desirable. Thus, though courtroom procedures are dominated by elaborate rituals designed "to demonstrate compliance with procedural rules as well as with substantive law,"^[25] public defenders "generally refrained from vigorous advocacy of their clients' legal rights under LPS."^[26] Instead, they chose to work "together with the other participants in the hearing to come to what all could agree was the 'right decision' for the individual and for society."^[27]

Notwithstanding an apparent conflict between "the medical and legal frames of reference," the practical convergence on "an underlying commonsense and a taken-for-granted perspective on mental illness" smoothed the way for an easy and tension-free collaboration. Just as "attorneys view their clients as crazy and therefore refrain from standing firmly in the way of their involuntary incarceration,"^[28] so too the psychiatrists—mostly state hospital personnel who appear regularly in the same courtroom—adapt readily to "legal practices" and to the existence of "a stable release rate."^[29] The judge, meanwhile, justifies "the smooth, rapid, and routine method of processing" in the courtroom, and

the lack of an adversary approach to justice in mental health law on the grounds that the role of the defense attorney [is] to be 'a reflection of the client's personality' rather than a vigorous advocate. If the client [is] crazy, then this should not be concealed by the defense attorney.^[30]

As Warren notes, this emphasis on assembly line justice closely corresponds with the pattern that obtains in the criminal courts—on whose allegedly "adversarial" procedures the reformers who wrote LPS modeled the new law.^[31]

Where outside intervention in the system threatens this pattern of mutual accommodation, the main actors in the carefully staged drama move quickly to minimize its impact. Thus, in the face of the challenge

[23] Ibid., 38.

[24] Ibid., 140.

[25] Ibid., 147.

[26] Ibid., 165.

[27] Ibid., 172.

[28] Ibid., 140.

[29] Ibid., 191.

[30] Ibid., 191.

[31] See, generally, David Sudnow, "Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office," Social Problems 12 (1965): 255–76; Roberta RovnerPieczenik, "Labeling in an Organizational Context: Adjudicating Felonies in an Urban Court," in The Research Experience, ed. M.P. Golden (Itasca, Ill.: Peacock, 1976), 447–64.

posed by potentially disruptive higher court rulings, the judge, district attorneys, public defenders, and mental health counselors—"members of the organization cooperating as a whole—embarked on a search for a legal way to evade the problems attendant upon [implementation]"—as one participant put it, "'tinkering with' the new precedent until it 'came out right.'"^[32] A more frequent source of disturbance was the arrival of a "new, aggressive, advocate defense attorney," full of idealism, intent on implementing the letter of the law and defending the "rights" of his clientele.^[33] Such callow youths were quickly disabused, and most "would learn the ropes, and would become socialized to the way things are done."^[34] The occasional nonconformist aroused anger and then protective action: Mr. William Simmons, for example, refused to "settle down." Instead,

he persuaded a number of his conservatee clients to ask for jury trials, thus tying up Department 2 for days on end. He also spent hours studying and arguing on habeas corpus hearings, committing what was probably the most egregious organizational faux pas, talking at length to clientele. Unlike his predecessors, Mr. Simmons did not modify this behavior over time, let alone cease and desist. After a few weeks, the judge became angry. . . . Bill Simmons was fired from his job after about three months; when I asked another public defender why, he replied, "Oh, that guy—because he was stupid."^[35]

As this example suggests, while the formal requirements of the law do, to a limited extent, constrain decision-making, they are far from determining outcomes. For instance, "long-term commitment based on the need for care and treatment, the standard overturned by LPS, has been restored through the use of conservatorships."^[36] Patients admitted on an emergency seventy-two-hour hold as "dangerous" are subsequently relabeled as "gravely disabled,"^[37] in part because of the difficulty of demonstrating dangerousness. Indeed, the LPS provision allowing a ninetyday commitment on grounds of danger to others "is almost never used in California."^[38] Moreover,

grave disability standards dealt less with food, clothing, shelter, and finances—functioning within the community—than with functioning inside the family and the mental health system. This suggests that considerations of individual rights and the protection of society are displaced in this court by considerations of the relief of family tensions and the smooth functioning of the mental health system.^[39]

Perhaps even more ironic, conservatorship hearings under LPS take even less time than the five-minute average prior to the act, "the statistic

[32] Warren, Court of Last Resort 189.

[33] Ibid., 195.

[34] Ibid.

[35] Ibid., 195–96.

[36] Ibid., 43.

[37] Ibid., 40.

[38] Ibid., 27.

[39] Ibid., 175.

which had prompted legislative interest in involuntary civil commitment in the first place."^[40]

In the courtrooms Warren studied, therefore, "decision making is particularistic, situational, and arbitrary rather than universal and fair; medical theories posture as proven facts, and organizational needs take precedence over legal and psychiatric requirements."^[41] And there is every reason to believe that this is not an atypical pattern. At the very least, this situation should caution us to be wary of becoming caught up in abstract debates on the issue of civil commitment and to be skeptical about the practical impact of any given set of "reform" proposals. Still, of course, it scarcely renders irrelevant the question of what in principle constitutes appropriate grounds for involuntary commitment, and Warren's book devotes considerable space to precisely this issue.

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.

Care, Treatment, and Liberty

Morse is certainly correct, however, to worry about the potentially repressive consequences of allowing people to be confined "for their own good." As Conolly's remarks on the Nottidge case demonstrate,^[87] the range of behaviors that might render one subject to such intervention (in the eyes of at least some psychiatrists) has in the past been extraor-

[81] For a defense of medicihe's claims, see, generally, John Wing, Reasoning About Madness (London: Oxford University Press, 1978); for alternative views, see David Ingleby, "Mental Health and Social Order," in Social Control and the State: Historical and Comparative Essays, ed. Stanley Cohen and Andrew Scull (Oxford: Basil Blackwell; New York: St. Martin's Press, 1981), 141–88; David Morgan, "Explaining Mental Illness," European Journal of Sociology 15 (1975): 262–80; and Peter Sedgwick, "Mental Illness Is Illness," Salmagundi 20 (1972): 196–222.

[82] S. Pfohl, Predicting Dangerousness (Lexington, Mass.: Heath, 1978), 230.

[83] This, incidentally, is also the conclusion Pfohl reaches (ibid., 228–30), and Morse himself agrees that involuntary commitment decisions could be taken on grounds independent of "the vagaries, unreliability, and internecine disputes of mental health science" (Morse, "Preference for Liberty," 84 n. 12).

[84] Morse, "Preference for Liberty," 81 (emphasis added).

[85] Warren, Court of Last Resort, 5.

[86] Ibid., 202.

[87] See pages 284–85.

dinarily wide: adolescent rebelliousness, harmless eccentricity, violation of conventional standards of morality or of sexual propriety, extreme carelessness with one's money or property.^[88] It is this extravagance, I suspect, that has prompted the claim that "psychiatric opinions are essentially political judgments."^[89] Yet the fact that "benevolent" concern for the welfare of others has served to legitimize egregious violations of some people's freedom does not invalidate the claim that there are occasions when we may indeed be justified in intervening in others' lives "for their own good."

It may be objected, however, that mental hospitals "rarely cure, nor do they decrease the stigma."^[90] Worse, "even in 'advanced' states that supposedly maintain the best services" all too often one encounters "revelations of . . . inadequate and sometimes inhumane care and treatment."^[91] Again, there is a good deal of truth to both claims, though once more I shall suggest that this does not compel us to embrace Morse's chosen alternative of abolishing involuntary confinement.

The critique of the mental hospital's structural deficiencies has a very long history.^[92] In the late nineteenth century, for example, neurologists—then in the process of constituting themselves as a medical specialty—provoked a bitter internecine conflict with institutional psychiatry by urging the asylum's total unsuitability for the treatment of mental disorders.^[93] A long series of exposés by muckraking journalists provided further ammunition for the mental hospital's critics.^[94] And, most notably of all, a mass of social scientific research in the 1950s and 1960s was devoted to the elaborate documentation of the irredeemable deficiencies of what Erving Goffman dubbed "total institutions."^[95]

[88] For recent examples, see Ronald Leifer, In the Name of Mental Health: Social Functions of Psychiatry (New York: Aronson, 1969); Bruce Ennis and Eugene Litwack, "Psychiatry and the Presumption of Expertise," California Law Review 69 (1974): 693–753.

[89] Pfohl, Predicting Dangerousness, 229.

[90] Morse, "Preference for Liberty," 89.

[91] Ibid., 92.

[92] See Andrew Scull, Decarceration: Community Treatment and the Deviant—A Radical View, 2d ed. (Oxford: Polity Press; New Brunswick, N.J.: Rutgers University Press, 1984), 105–33.

[93] See Bonnie Blustein, "A 'Hollow Square of Psychological Science': American Neurologists and Psychiatrists in Conflict," in Madhouses, Mad-Doctors and Madmen, ed. Scull, 241–70; Andrew Scull, "The Social History of Psychiatry in the Victorian Era," in ibid., 17–20.

[94] The most famous of this genre is Albert Deutsch's The Shame of the States (1948; New York: Arno, 1973); for a more up-to-date example, see Wendell Rawls, Cold Storage (New York: Simon and Schuster, 1980).

[95] Goffman, Asylums, 4. See also R. Barton, Institutional Neurosis, 2d ed. (Bristol: Wright, 1965); Ivan Belknap, Human Problems of a State Mental Hospital (New York: McGraw-Hill, 1956); A. H. Stanton and M. S. Schwartz, The Mental Hospital: A Study of lnstitutional Participation in Psychiatric Illness and Treatment (New York: Basic Books, 1954); Robert Perrucci, Circle of Madness: On Being Insane and lnstitutionalized in America (Englewood Cliffs, N.J.: Prentice-Hall, 1974).

Such apparently objective findings have been widely disseminated, serving as one of the major ideological supports for the movement to deinstitutionalize the mental hospital population.^[96] In the process, mental hospitals have been stigmatized as inevitably providing a disabling, counterproductive environment, one that exacerbates any preexisting pathology through an "organizational tyranny [calculated to produce] the thwarting of human possibilities."^[97] Unquestionably, the historical record demonstrates that most mental hospitals have more closely resembled warehouses for the storage of the unwanted than institutions providing treatment and cures.^[98] But this is a far cry from the more extravagant claims made by Goffman and his epigones. It is these more extreme "findings" that Morse and others rely on when they urge us to abolish involuntary hospitalization altogether; and yet the research purporting to document these effects is so methodologically flawed and empirically inadequate^[99] that one must seriously question the wisdom of depending on it.

Of at least equal significance in the present context, those social scientists who have criticized the mental hospital have almost entirely neglected to consider what the alternatives to it are, preferring to make the bland (and untested) assumption that "the worst home is better than the best mental hospital."^[100] In practice, this has proved to be a tragically mistaken belief. A growing volume of research^[101] has demonstrated that community "care" for the chronically crazy is in fact community neglect

[96] See Andrew Scull, "The Decarceration of the Mentally Ill: A Critical View," Politics and Society 6 (1976): 173–212; see also Stephen Rose, "Deciphering Deinstitutionalization: Complexities in Policy and Program Analysis," Milbank Memorial Fund Quarterly 57 (1979): 429–60.

[97] Nicholas Perry, "The Two Cultures and the Total Institution," British Journal of Sociology 25 (1974): 353.

[98] Gerald Grob, Mental Illness and American Society, 1875–1940 (Princeton: Princeton University Press, 1983); David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971); idem, Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (Boston: Little, Brown, 1980); Gerald Grob, Mental Institutions in America: Social Policy to 1875 (New York: Free Press, 1973); John Walton, "The Treatment of Pauper Lunatics in Victorian England: The Case of Lancaster Asylum, 1816–1870," in Madhouses, Mad-Doctors and Madmen, ed. Scull, 166–97; Nancy Tomes, "A Generous Confidence: Thomas Story Kirkbride's Philosophy of Asylum Construction and Management," in ibid., 121–43.

[99] See Craig McEwen, "Continuities in the Study of Total and Non-Total Institutions," Annual Review of Sociology 6 (1980): 147–48; and Chapter 13 below.

[100] Elaine Cumming and John Cumming, Closed Ranks: An Experiment in Mental Health Education (Cambridge: Harvard University Press, 1957).

[101] A. Davis, S. Dinitz, and B. Pasamanick, Schizophrenics in the New Custodial Community (Columbus: Ohio State University Press, 1974); General Accounting Office, The Mentally Ill in the Community: Government Needs to Do More (Washington, D.C.: Government Printing Office, 1977); Senate Special Committee on Aging, Subcommittee on Long-Term Care, 94th Cong., 2d sess., 1976, Nursing Home Care in the United States: Failure in Public Policy, Support Paper no. 7, The Role of Nursing Homes in Caring for Discharged Mental Patients, 1976, Committee Print; Robert Emerson, E. B. Rochford, and Linda Shaw, "Economics and Enterprise in Board and Care Homes for the Mentally Ill," American Behavioral Scientist 24 (1981):771–85; S. Kirk and M. Thierren, "Community Mental Health Myths and the Fate of Former Hospitalized Patients," Psychiatry 38 (1975): 209–17; Rose, "Deciphering Deinstitutionalization"; Scull, Decarceration; idem, "A New Trade in Lunacy: The Recommodification of the Mental Patient," American Behavioral Scientist 24 (1981): 741–54; idem, "Deinstitutionalization and the Rights of the Deviant," Journal of Social Issues 37 (1981): 6–20; Julian Wolpert and Eileen Wolpert, "The Relocation of Released Mental Patients into Residential Communities," Policy Sciences 7 (1976): 31–51.

and that "the effective meaning of liberty for the involuntarily committed is social marginality, deprivation, and despair."^[102] So far from being the grand reform of mental health care its ideologues have proclaimed, the practical implementation of community treatment has created "a system which, daily and quietly, harms and kills the sick."^[103]

At least Morse recognizes that the problem exists: "The condition of many 'deinstitutionalized' ex-patients in the community is a national disgrace."^[104] But he immediately seeks to evade its implications:

One should not compare the all-too-questionable benefits of hospitalization to complete or near-complete neglect in the community. The only fair comparison is to community living and treatment where society meets its moral obligations rather than cynically avoiding them.^[105]

I find this an astonishing claim. Such a comparison is "fair" only in the sense that it supports the argument Morse is advancing—but at the unacceptable price of leaving behind the social realities we must confront. Discharged mental patients do not live in a society that "meets its moral obligations." The alternatives they (and we) must face are inadequate and underfunded mental hospitals or a grossly underdeveloped and often nonexistent system of community care. Here the choices are tougher and the answers less clear-cut than those Morse provides us with; but they have the distinct merit of being the real ones. And when we confront them, I think we must conclude, as Warren does, that for a substantial proportion of the chronically crazy,

[102] Warren, Court of Last Resort, 203.

[103] Sedgwick, Psychopolitics, 229–30.

[104] Morse, "Preference for Liberty," 95.

[105] Ibid., l00. In parallel fashion, Morse insists on comparing the reality of a psychiatric commitment process (focusing especially on the most egregious misuses of "expertise") with a wholly idealized portrait of the law as a routinely adversarial system offering clear-cut and uncompromising protections of individual rights. That our legal system bears only the most superficial resemblance to his picture of it seems to discomfort him not one whit. But those who come before the courts populate the real world, and not this theoretical heaven. One must compare reality with reality, not with some pretty fantasy that better suits the case one wants to make.

care in a profit-making institution at a cost of $14.50 a day seems more treacherous and less human than care in a state institution at $31 a day. And the confines of the state hospital, for the dispossessed, seem to threaten effective liberty less vitally than the sidewalks, streets, and cheap hotels of the completely homeless.^[106]

To suggest that the mental hospital is sometimes a defensible—indeed preferable—solution to the problems posed by mental disorder, and to argue that compulsory commitment is also an option we should retain, is not to deny the need to place a sharp check on psychiatric enthusiasms, since these are no less capable of leading us astray. Indeed, when we debate the merits and demerits of compulsory commitment, we ought constantly to bear in mind that "the real scandal of contemporary public psychiatry is not the particular section of the mental-health statutes under which patients get into hospitals, but the alternatives offered to these supremely weak members of society by our present social arrangements both inside and outside the mental institution."^[107]

[106] Warren, Court of Last Resort, 207. See also J. Rubin, Economics, Mental Health, and the Law (Lexington, Mass.: Heath, 1978); J. F. Borus, "Deinstitutionalization of the Chronically Mentally Ill," New England Journal of Medicine 305 (1981): 339–42.

[107] Sedgwick, Psychopolitics, 180.