The ethics of total confinement : a critique of madness, citizenship, and social justice PDF
Preview The ethics of total confinement : a critique of madness, citizenship, and social justice
The Ethics of Total Confi nement American Psychology-Law Society Series Series Editor Ronald Roesch Editorial Board Gail S. Goodman Thomas Grisso Craig Haney Kirk Heilbrun John Monahan Marlene Moretti Edward P. Mulvey J. Don Read N. Dickon Reppucci Gary L. Wells Lawrence S. Wrightsman Patricia A. Zapf Books in the Series Trial Consulting Amy J. Posey and Lawrence S. Wrightsman Death by Design Craig Haney Psychological Injuries William J. Koch, Kevin S. Douglas, Tonia L. Nicholls, and Melanie L. O’Neill Emergency Department Treatment of the Psychiatric Patient Susan Stefan The Psychology of the Supreme Court Lawrence S. Wrightsman Proving the Unprovable Christopher Slobogin Adolescents, Media, and the Law Roger J.R. Levesque Oral Arguments Before the Supreme Court Lawrence S. Wrightsman God in the Courtroom Brian H. Bornstein and Monica K. Miller Expert Testimony on the Psychology of Eyewitness Identifi cation Edited by Brian L. Cutler The Psychology of Judicial Decision-Making Edited by David Klein and Gregory Mitchell The Miranda Ruling: Its Past, Present, and Future Lawrence S. Wrightsman and Mary L. Pitman Juveniles at Risk: A Plea for Preventive Justice Christopher Slobogin and Mark R. Fondacaro The Ethics of Total Confi nement Bruce A. Arrigo, Heather Y. Bersot, and Brian G. Sellers The Ethics of Total Confi nement A Critique of Madness, Citizenship, and Social Justice Bruce A. Arrigo Heather Y. Bersot Brian G. Sellers 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2011 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. ____________________________________________ Library of Congress Cataloging-in-Publication Data Arrigo, Bruce A. The ethics of total confi nement : a critique of madness, citizenship, and social justice / Bruce A. Arrigo, Heather Y. Bersot, Brian G. Sellers. p. cm. — (American Psychology-Law Society series) Includes bibliographical references. ISBN 978-0-19-537221-2 1. Mentally ill offenders — Legal status, laws, etc. 2. Law — Philosophy. 3. Mental health laws. 4. Solitary confi nement. 5. Mentally ill — Care — Moral and ethical aspects. 6. Mentally ill — Commitment and detention. 7. Insanity (Law) — United States. 8. Criminal liability. 9. Punishment — United States. I. Bersot, Heather Y. II. Sellers, Brian G. III. Title. K5077.A95 2011 365’.60874 — dc22 2010048459 ____________________________________________ Printed in the United States of America on acid-free paper For our Critics, That this book serves as a meditative reminder: Justice practiced mutually and dynamically is Citizenship lived virtuously and transformatively. This is why captivity’s release is character’s promise. Its habitual celebration is our praxis invitation To you, for all, always and already, Ever more humanely, again and anew. This page intentionally left blank Series Foreword T his book series is sponsored by the American Psychology-Law Society (APLS). APLS is an interdisciplinary organization devoted to scholarship, practice, and public service in psychology and law. Its goals include advancing the contributions of psychology to the understanding of law and legal institu- tions through basic and applied research; promoting the education of psycho- logists in matters of law and the education of legal personnel in matters of psychology; and informing the psychological and legal communities and the general public of current research, educational, and service activities in the fi eld of psychology and law. APLS membership includes psychologists from the academic research and clinical practice communities as well as members of the legal community. Research and practice is represented in both the civil and criminal legal arenas. APLS has chosen Oxford University Press as a strategic partner because of its commitment to scholarship, quality, and the international dissemination of ideas. These strengths will help APLS reach its goal of educating the psychology and legal professions and the general public about important developments in psychology and law. The focus of the book series refl ects the diversity of the fi eld of psychology and law, as we continue to publish books on a broad range of topics. I n the latest book in the series, The Ethics of Total Confi nement: A Critique of Madness, Citizenship, and Social Justice, Bruce Arrigo, Heather Bersot, and Brian Sellers apply a psychological jurisprudence perspective to examine the ethical and legal issues regarding Goffman’s notion of total confi nement. Drawing on Arrigo’s prior writings extending Goffman’s work, the authors focus on three vii viii Series Foreword key populations in which total confi nement is evident: (1) adolescents who are waived to adult court, ( 2) prison inmates with mental health problems placed in solitary confi nement, and ( 3) sexually violent predators subjected to civil commitment, community notifi cation, and sex offender registration. Their creative analysis focuses on a review of empirical research and case law as it affects all parties involved in the confi nement of individuals. Through an analysis of the text of representative court cases, Arrigo and his co-authors seek to understand jurisprudential intent (underlying attitudes, perceptions, and beliefs of the judges) as well at the underlying moral philosophy that is refl ected in the court decisions. For example, in the context of waiver cases, they fi nd that court decisions suggest that the interests of state and commu- nity are weighed more heavily than the needs of the youth. The authors review the empirical research on the often negative impact on youth that results from waiver to adult court and conclude that the courts fail to consider the conse- quences that youth face in the adult criminal justice system. They apply the same analysis and come to similar conclusions about how the courts favor perceived public demands over the rights and needs of individuals. Not content to simply identify the impact of total confi nement, the authors conclude with their recommendations for legal reform. These reforms are based on the application of policy based on a model of justice that would refl ect the concepts of restorative justice, therapeutic jurisprudence, and commonsense justice. As such, this book will be of interest to researchers, legal professionals, and policymakers. Ronald Roesch Series Editor Preface The ethics of total confi nement: A critique of madness, citizenship, and social justice examines the phenomena of captivity and risk management. This examination is based on key insights derived from psychological jurispru- dence (PJ) understood as a novel and experimental theory, method, and type of praxis. As theory, PJ indicates that captivity extends not only to the kept but also to their keepers, managers, and watchers. The harm of this captivity is both existential and material in its composition and effects, and it includes harms of reduction (limits on being, on one’s humanity) and harms of repres- sion (denials of becoming, of one’s transforming potential). Sustaining this captivity is madness for one and all. This is especially the case in an era of total confi nement where potential threat is contained or avoided through excessive investments in hypervigilance and panopticism. These disciplinary techniques help to manage the risk that fear of crime and fear of would-be criminals incompletely and inadequately signify. Risk management is maintained through its conditions of control. These conditions include interactive and interconnected symbolic, linguistic, material, and cultural infl uences. These intensities co-produce captivity and nurture its ubiquity. A s method, PJ considers the question of citizenship, of restoring it and of revolutionizing it, guided by PJ’s Aristotelian-derived normative theory. This theory holds that the embodied practice of excellence (or of living virtuously) is dynamic, it evolves. Celebrating human fl ourishing, then, is about cultivat- ing transformative habits of character. These evolving habits of character— when consumed, spoken, inscribed, and reproduced — have the nearest power ix
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