Florida State University Law Review Volume 21 Issue 3 Article 2 Winter 1994 Treating the Mentally Disordered Offender: Society's Uncertain, Conflicted, and Changing Views Thomas L. Hafemeister John Petrila Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Criminal Law Commons, Health Law and Policy Commons, and the Law and Society Commons Recommended Citation Thomas L. Hafemeister & John Petrila, Treating the Mentally Disordered Offender: Society's Uncertain, Conflicted, and Changing Views, 21 Fla. St. U. L. Rev. 729 (1994) . https://ir.law.fsu.edu/lr/vol21/iss3/2 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. TREATING THE MENTALLY DISORDERED OFFENDER: SOCIETY'S UNCERTAIN, CONFLICTED, AND CHANGING VIEWS THOMAS L. HAFEMEISTER AND JOHN PETRILA Table of Contents 1. INTRODUCTION ........................................................... 731 II. CHANGING NATURE OF THE UNDERLYING PREMISES OF THE L AW ........................................................................ 732 A. Historical Treatment ............................................ 732 B. Civil Rights Movement .......................................... 733 1. Entitled to Equal Protection of the Law ............. 737 2. Disparagement of Clinician'sDiagnostic Skills ..... 738 3. Judiciaryas the Primary Decision Maker ............ 739 4. Least Restrictive Alternative ............................ 740 5. Impact ........................................................ 742 C. Premises of the 1980s and 1990s .............................. 742 1. All PatientsAre Not Equal.............................. 743 2. Expansion of "Dangerousness"....................... 745 3. Reduced Judicial Scrutiny and Informal, Non- Adversarial Proceedings ................................. 748 4. Impact ........................................................ 752 III. LEGAL IMPACT OF CHANGES IN UNDERLYING PREMISES .......... 753 A. Procedural Aspects Associated with the Retention of the M DO ......................................................... 753 1. Burden of Proof Placed on MDO .................... 753 2. Automatic Commitment and Retention ............. 756 3. Extended or Indefinite Commitment ................. 758 B. Treatment Decisions Regarding the MDO................. 761 1. Right to Treatment ....................................... 762 a. Mental Health Facilities.......................... 762 b. Prisons................................................ 768 2. Treatment Refusals ....................... 780 a. Mental Health Facilities........................... 782 b. P risons................................................. 788 3. The Treatment Program ................................. 795 a. Aversive Therapies.................................. 796 b. Experimental Techniques .......................... 799 c. Intrusive Treatments ............................... 803 730 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 21:729 d. Informed Consent ................................... 805 4. Disclosure of Information ............................... 810 a. Breach of Expectation of Nondisclosure ...... 811 b. Attempts by MDOs to Prevent Disclosure .... 816 C. Changes in Status ................................................ 822 1. Secure Facility to Secure Facility Transfers ......... 823 2. More Secure to Less Secure Facility Transfers...... 830 3. Intra-FacilityTransfers ................................... 832 4. Passes/Privileges........................................... 837 5. Outpatient/ConditionalRelease ....................... 840 6. Release/Discharge......................................... 848 7. Post-Release ................................................ 861 IV . C ONCLUSION .............................................................. 869 19941 MENTALL Y DISORDERED OFFENDERS TREATING THE MENTALLY DISORDERED OFFENDER: SOCIETY'S UNCERTAIN, CONFLICTED, AND CHANGING VIEWS THOMAS L. HAFEMEISTER* AND JOHN PETRILA** My mother groaned! my father wept. Into the dangerous world I leapt: Helpless, naked, piping loud, Like a fiend hid in a cloud.' I. INTRODUCTION An examination of the legal aspects of the treatment of the men- tally disordered offender (MDO), results in a clear consensus that the worla is indeed a dangerous, confusing, cloud-shrouded place. MDOs may find themselves engulfed by a bewildering system, which al- though ostensibly devoted to their treatment, appears to provide little actual help. The general public may perceive MDOs as dangerous in- dividuals assigned to a "treatment" system that neither reduces the likelihood of future dangerousness nor protects society from such be- havior. Finally, the mental health professional, trying to respond si- multaneously to the treatment needs of MDOs and the security needs of the community, may feel required to assume a role which appeases neither, but exposes the therapist to legal attack by both. It must be kept in mind, however, that the law is more than mere constitutional standards, legislative enactments, governmental regula- tions, and judicial rulings. The law, regardless of the source, is a re- flection of the society that generates it. The current attitudes, fears, and beliefs of the community about the world around it, accurate or not, are reflected in the law that governs at any given time. And when there is more than one accepted and forceful perspective at work, the law can become a complex matrix as it attempts to accommodate * Senior Staff Attorney, Institute on Mental Disability and the Law National Center for State Courts, Williamsburg, Virginia. Adjunct Professor, Marshall-Wythe School of Law, Col- lege of William and Mary, Williamsburg, Virginia; B.A., 1971; University of Nebraska; J.D., 1982; Ph.D., 1988. ** Department of Law and Mental Health, The Florida Mental Health Institute, Univer- sity of South Florida, Tampa, Florida. B.A., 1973, St. Joseph's College; J.D., 1976, LL.M, 1977, University of Virginia. Thanks to Joel Dvoskin for his helpful comments on a draft of this article. I. William Blake, Infant Sorrow, st. I. 732 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 21:729 these competing perspectives in a variety of circumstances. As a re- sult, one perspective may prevail in a given situation, while a differ- ent perspective may govern in another. Furthermore, as the relative strengths of these competing perspectives may change over time, the law may vary on a particular issue as time passes. In perhaps no other area of the law is this interplay between com- peting interests reflected more clearly than in the law pertaining to the treatment of the MDO. Because of a criminal act, substantiated or merely alleged, the MDO becomes a focal point of the legal sys- tem. Ordinarily, the processing of a criminal act is relatively routine. However, when an individual's mental disorder becomes an issue, ei- ther as part of the initial criminal prosecution or subsequent to con- viction, that individual's treatment becomes a matter of great concern. For the community, associating criminal acts with a mental disor- der evokes pronounced visceral and emotional reactions. For many members of the general public who envision these individuals vio- lently, unpredictably, and without reason attacking innocent victims, MDOs provoke utter terror. For others, MDOs trigger sympathy and concern for individuals perceived as victims of uncontrollable im- pulses caught up in a system that fails to respond to their unique needs. For those attempting to treat the MDO, the response is often one of confusion and bewilderment. They may be uncertain how to alleviate the MDO's disorder and unclear about what society expects them to do with such individuals. In part because of these strongly felt concerns, and in part because of the continuing visibility and controversy of MDOs, the treatment of the MDO has received close scrutiny in recent years. Nevertheless, this scrutiny apparently has not resulted in greater stability in the rel- evant law, but has instead contributed to its wide fluctuation and var- iability. II. CHANGING NATURE OF THE UNDERLYING PREMISES OF THE LAW A. Historical Treatment The treatment of the MDO was not always closely scrutinized. His- torically, society ignored MDOs partially and perhaps primarily, be- cause of social systems that virtually removed such individuals from the public eye. The criminal justice and mental health systems were given broad discretion to quickly and quietly remove a dangerous 19941 MENTALL Y DISORDERED OFFENDERS "crazy" person from the community, often times in anticipation of a 2 criminal act rather than subsequent to it. For example, the criminal justice system was afforded considerable prerogative in the performance of its duties which allowed it to dis- creetly "sweep up" MDOs. Sanctions could be imposed for "status offenses," such as vagrancy, even though a specific criminal act had not occurred.' Law enforcement officials similarly had wide latitude in their investigations of crimes, with relatively few protections pro- vided to a criminal suspect (e.g., little scrutiny was given to the cir- cumstances under which a confession was given). Following conviction, criminal sentences varied widely and could be increased for individuals perceived as particularly threatening. Finally, once in- carcerated, the focus was on assuring secure custody at minimal cost.