Preventive Detention - and Psychiatry

...I'd be weaker and less certain of where I want to go, what I want to do, and how to go about it...

...But he almost always learns about his erroneous predictions of non-violence—often from newspaperheadlines announcing the crime...

...This is why the criminal law does not punish for merely intending, planning, and preparing for a crime...

...It is generally taught that our legal system does not in theory countenance such proceedings...

...One such area...

...Punitive detention is at least honest...

...Attempts at criminal rehabilitation have not been markedly successful...

...When we establish rules for convicting theguilty, we do not require certainty...

...It would represent a way of circumventing a basic rule of procedural due process and would surely, therefore, raise a vital issue of principle...

...Benjamin Franklin T'S NO SURPRISE that our society contains people who support the idea of preventive detention...

...This allows them to avoid the trouble NOTEBOOK some appeal to moral values...

...but, we are to be led to believe, rehabilitating a man for what he might do is not...

...Such discretion might allow a judge to extend a man's sentence (for either punishment or therapy) if he believes the man is still prone to crime...

...Not so when we believe that someone is going to attempt to restructure our personality against our will...

...3 Second, it is important to see that competing models of human nature are involved here...

...It is at least prima facie wrong to do to a man what he does not want done to him, to confine him against his will, no matter whether you call what you do to him punishment or therapy, or whether you call where you put him a prison or a hospital...

...Let me outline the most important, and in my judgment fatal, objections to preventive detention— whether punitive or therapeutic...

...We could then claim that theconstitutional bar on statistical evidence did not here apply since the proceedings did not constitutea criminal trial...

...This would seem a kind of guilt by association and would involve a moral regression of utmost gravity...

...THIS ROSY PICTURE is too good to be true...

...22-27...

...How would the Black Panthers fare at the hands of some Northern state psychiatrists...

...Diagnosed a criminal psychopath, he is subjected to Ludovico's Technique—a refined Pavlovian technique that conditions in him utter revulsion to any form of violence...

...For the central and often ignored point is that common to both criminal punishment and preventive rehabilitation is the involuntary deprivation of liberty...

...Both the attractiveness and danger of these proposals lie in their scientific and even benevolent facade—especially if detention is coupled with therapy...

...What difference is there between imprisoning a man for past crimes onthe basis of "statistical likelihood" and detaining him to prevent future crimes on the samekind of less-than-certain information...

...This may sound outlandish, but intelligentmen have been taken in by even less: Consider, by way of example, how the injustices of the juve nile court system were masked by benevolentrhetoric—rhetoric finally exploded by the SupremeCourt's 1967 Gault decision...

...We should not kid ourselves into believing that those pronounced rehabilitated have necessarily developed morally sensitive and highly principled characters...

...Obvious examples are status crimes (like vagrancy), refusal of bail for those accused— though not convicted—of crime, involuntary commitment for the "insane," and wide judicial discretion in matters of parole and length of sentence...

...His modus operandi becomes: When in doubt, don't lethim ouL 2 Dershowitz's practical case is important...

...The psychiatrist almost never learns abouthis erroneous predictions of violence...

...Finally, we should take an honest look at what sometimes counts as rehabilitation in our state hospitals and prisons...

...They may have simply learned to identify with the aggressor and adapt to repression, to have learned the dubious virtues of civility and conformity, to have learned to do what others want them to do rather than what their own characters dictate...

...tegrity against heavy odds, odds which are probably even greater in state mental hospitals than in state prisons...

...But, of course, it does countenance and even encourage them in fact—though generally under some euphemistic description...

...The protagonist of Anthony Burgess's novel A Clockwork Orange acts on violent impulses...

...111-122...

...It is a moral disgrace that neither our prisons nor our state mental hospitals provide decent opportunities for meaningful therapy— little more than monthly talks with a psychiatrist or a few electric shock treatments...

...If therapy is so benevolent and glorious, and rehabilitation so desirable, how can we account for the fact that people resist it as much as (sometimes more than) punishment...

...Objections we might feel to this can be dispelled if preventive detention is coupled with therapy and rehabilitation...

...First, it is important to see that the case for preventive detention is based on a kind of evidence that would be constitutionally inadmissible in a criminal trial...

...It may be that I can harm myself by speaking frankly and directly, but I do not care about that at all...

...Psychopaths are said to "lack a moral sense" and to "show no normal care and concern for the interests of others...

...Also, it is dangerously simple-minded to assume the moral preferability of a therapy system to a punishing system...

...This is not to say, of course, that all the people declared dangerous by judges and psychiatrists are in fact quite safe...

...The important difference here may not be one ofprinciple...

...ample, the psychiatric concept of the psychopathic or sociopathic personality...

...The people we put in prisons because they have harmed us get out, harm us again, and return to prison—a seemingly useless waste of time and resources...

...So, for once, it seems that the interests of benevolent men, prone to forgive the criminal, and harsh men, whose only concern is to prevent crime, coincide...

...1. Prediction and Principle One morally ineffectual way in which people sometimes seek to oppose preventive detention is to rest their case against it solely on the difficulty of prediction...

...We can help the man and society at the same time...

...Menninger would no doubt be anopponent of any preventive detention that wouldnot provide for therapy...

...Professor Alan Dershowitz of the Harvard Law School, for example, has argued that no important issues of principle are involved in preventive detention...

...Now I am not, let me insist, an opponent of therapy or rehabilitation...

...2. Therapy and Punishment If preventive detention is coupled with therapy, objections to the program tend to be blunted...

...Once we have determined that a man is dangerous, why wait until he actually does harm...

...But surely he is wrong on the question of principle...

...4 Consider, for ex 4 Thomas Szasz makes a similar point about theconcept "mentally ill' in his The Myth of Mental Illness (Harper, 1961...

...Why not prevent the harm by detaining him in advance...

...I am more concerned with what I am going to be after I get out...

...Here is a man holding on to his personal in6 Eldridge Cleaver, Soul on Ice (Delta, 1968), p. 17...

...It also results, alas, in his being rendered incapable of appreciating the music of Beethoven—the one experience in his previous life that had any meaning or character...

...If I had followed the path laid down for me by the officials, I'd undoubtedly have long since been out of prison—but I'd be less of a man...

...Surely at least some cases may be, and this in itself is enough to raise substantial political worries...

...liberty depends on something more--on his "rehabilitation...

...it may be, as Justice Holmes said alllegal issues are, one of degree...

...One may not, in a trial, introduce statistical evidence against the defendant—evidence that he is a member of a social group (say, vagrants) which manifests a high crime rate...

...Thus, we are alert to guard our liberty against it...

...As in so many other areas of contemporary life, an elevation of the importance of technology (especially that of the social sciences) results in the demotion of the importance of humanity, freedom, and dignity as these concepts have been traditionally understood...

...Punishing a man for what he might do is admittedly bad...

...The fact thatthe errors of underestimating the possibilities ofviolence are more visible than errors of overestimating inclines the psychiatrist—whetherconsciously or unconsciously—to err on the sideof confining rather than of releasing...

...It also explains, in part, why the criminal law punishes less severely for attempts than for completed crimes...

...Quite the contrary may be the case...

...Psychiatrists, especially state psychiatrists, are not immune from the tendency to project their own fears and hostilities onto the man they are evaluating...

...The old retributive idea that a man, having paid the price, may regain his liberty is being replaced with the idea that 1 For a discussion of Menninger's views, see myarticle "Criminal Punishment and Psychiatric Fallacies," In Law and Society Review, August 1969, pp...

...The important objection, in his judgment, is practical—the difficulty of accurate prediction and the institutional pressures that make a prediction of dangerousness much more likely than a prediction of non-dangerousness...

...dividualized conception of guilt to a collective or group criterion...

...Karl Menninger, a benevolent humanist, and Attorney General Mitchell, a law-and-order hard-liner, have both recently come out in support of the idea of preventive detention as a partial solution to the crime problem—Menninger in his The Crime of Punishment (Viking, 1968) and Mitchell in proposed criminal legislation for the District of Columbia.' Preventive detention, generally speaking, consists in locking people up for what they might do, rather than for what they have in fact done...

...The most serious danger inherent in any system of preventive detention is that it alwaysseems to be working well, even when it is performing dismally...

...we onlyrequire that guilt be proved "beyond a reasonable doubt...

...When we are to be punished, we at least know what we are bargaining for...

...Evidence at a criminal trial is, to be sure, less than certain, but this does not make it statistical evidence...

...How would Martin Luther King have fared at the hands of Southem state psychiatrists...

...To allow statistical evidence would represent a shift from an in 2 "On Preventive Detention," New York Review, March 13, 1969, pp...

...Therapeutic detention, however, masks practically identical treatment with the slogans of benevolence...

...It is oppressive and cruel, and everyone knows it...

...isthe confinement of the mentally ill on the basisof psychiatric prediction of injurious conduct...

...this is so because it is thenature of any system of preventive detention todisplay its meager successes in preventing crimewhile hiding its errors...

...There's a lesson here...

...But we would, of course, be doingsubstantively exactly the same thing to the defendant...

...What I do oppose is the involuntary deprivation of liberty for the purpose of therapy, for the attempt at rehabilitation against the will of the man to be rehabilitated...

...Quite the contrary...

...3. Ideology and Rehabilitation Another important and seldom noted problem is the extent to which political preference and ideology may affect our application of a notion like "needs rehabilitation...

...They represent the promises of psychology 8 This circumvention would be purely linguistic...

...But surely free men must have the courage to brave this sort of danger (the danger of waiting until they actually commit a criminal act before detaining them)—at least if we consider the 1984 alternative...

...Some inmates will not so compromise, but they of course then pay the price of staying longer (in either prison or hospital) than their more pliable fellows...

...Who could object to rehabilitation...

...5 What hope would any of us have under a system of preventive detention based on such criteria as "probably dangerous" or "lacks a moral sense...

...But they should not be...

...NOTEBOOK rather than a fulfillment...

...Traditionally, the criminal law has regarded men as agents of freedom and dignity— agents who, up to the very last minute, are capable of having changes of heart, of deciding not to perform a certain evil action in the face of even a very high probability that they will perform it...

...It seems more sensible than traditional punishment...

...I know that by following the course which I have charted I will find my salvation...

...We should delude ourselves neither about the efficacy of therapy nor about its benevolence and justice...

...What is surprising is that this support cuts across the usual political ideologies and allegiances...

...And even those too toughminded to object to vengeance rimpliciter must admit that mere vengeance does not work...

...But just imagine the political danger of setting up persons with the authority to deprive people of their liberty on such nebulous grounds...

...Some of them are indeed frighteningly dangerous...

...Not being a trained psychiatrist, I am not competent to pronounce onhis claim that all so-called "mental illness" maybe so analyzed...

...Preventive detention, of course, rests upon a totally different model: locate a man in a sociological framework and deal with him accordingly —deal with him, as you would with an object, solely in terms of prediction and control...

...But Big Brother is Big Brother—even if he wears a Jesus costume...

...Of course I want to get out of prison, badly, but I shall get out some day...

...That is, we would not call the preventive detention hearing a trial...