The Ethics of Total Confinement A Critique of Madness,

Citizenship, and Social Justice

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1
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____________________________________________
Library of Congress Cataloging-in-Publication Data

Arrigo, Bruce A.
The ethics of total confinement : 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.
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Series Foreword

This 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
field 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 reflects the diversity of the field of psychology and law, as we continue
to publish books on a broad range of topics.
In the latest book in the series, The Ethics of Total Confinement: 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 confinement. Drawing on
Arrigo’s prior writings extending Goffman’s work, the authors focus on three

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viii Series Foreword

key populations in which total confinement is evident: (1) adolescents who

are waived to adult court, (2) prison inmates with mental health problems
placed in solitary confinement, and (3) sexually violent predators subjected to
civil commitment, community notification, 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 confinement 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
reflected in the court decisions. For example, in the context of waiver cases,
they find 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 confinement, 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
reflect 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 confinement: 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
confinement 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 influences. These
intensities co-produce captivity and nurture its ubiquity.
As 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 flourishing, then, is about cultivat-
ing transformative habits of character. These evolving habits of character—
when consumed, spoken, inscribed, and reproduced—have the nearest power

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x Preface

to create human/social change, to release us from our captivity, and to insight-

fully re-diagnose the madness that presently renders us a mere shadow of who
we could be or could become. Advancing this citizenship is a studious
pursuit.
As praxis, PJ affirms the interactive link between thinking about and doing
social justice. Theory and action are inseparable and interdependent in this
change-oriented and solution-focused endeavor. The possibility of change
(i.e., growing individual well-being, communal good, and societal accord)
begins as an exercise in critique (i.e., the solution). The critique considers how
individual responsibility and institutional accountability co-habitate justice.
An assessment of this self–society cohabitation is necessary as it provides a
key binary framing from which to explore the possibility of one being and
the potential in one becoming more fully human. Undertaking efforts that
further actualize this more complete flourishing or mutating self-excellence
(the subject-in-process) is a praxis response to captivity, risk management,
and the forces that support both. As praxis strategy, cultivating transforming
habits of character entails reflexivity or mindfulness. Mindfulness is about
dis/re-engaging the images, texts, embodiments, and cultural re-presentations
of each that sustain harms of reduction and/or repression for the kept and
their keepers, for their managers and their watchers. This praxis strategy is
about overcoming the forms and forces of captivity that engender harm. This
strategy—as an emergent pact for, by, and about the self–society mutuality—
awaits additional development; it is the journey for a people yet to come. But
this is the journey of thinking about and doing social justice ever more
humanely, collectively, virtuously.
To demonstrate the contributions of PJ—particularly in its innovative
utility for theory, method, and praxis—three total confinement issues in
mental health law are investigated. These issues sourced in prevailing and/or
precedent-setting case law include: delinquent juveniles waived to the adult
system found competent to stand trial despite developmental maturity
problems; psychiatrically disordered offenders placed in long-term disciplin-
ary segregation where said isolation is not deemed cruel and unusual punish-
ment; and adjudicated sexually violent predators subjected to multiple forms
of civil inspection and communal surveillance absent documented or continued
evidence that these re-entry correctives work effectively or are even necessary.
The judicial endorsement of these practices by way of court decision-making
problematically criminalizes, pathologizes, and demonizes citizens. Total
confinement’s teleology is to reify such constructs. When the legal apparatus
legitimizes this reification, it is symptomatic of systemic pathology, of social
disease, of risk management gone awry. An investigation of this court-level
madness; the citizenship that these legal cases ostensibly promote and neglect;
and the justice policy that could be for offenders, victims, and the communities
that unite them all in each examined instance of total confinement are the
subject of detailed analysis and probing commentary.
 Preface xi

The book concludes with a series of provocative, yet sensible, recommen-

dations in theory development; methodology and future research; immediate
and emergent praxis interventions; pedagogy and (continual) training; and
institutional practice, programming, and policy. The relevance of these
proposed reforms for the legal, psychiatric, clinical forensic, scholarly aca-
demic, bioethical, and human service/social welfare communities is both con-
siderable and varied. Collectively, these change initiatives suggest several
vibrant directions by which to activate captivity’s release, to re-evaluate the
risk management thesis, and to experience character’s promise in our lives, in
the lives of others, in mental health law, and in all expressions of dynamic
human/social cohabitation.

Bruce A. Arrigo
Heather Y. Bersot
Brian G. Sellers
Fall, 2010
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Acknowledgments

No book comes to completion without the support, generosity, and counsel of

many individuals. This volume is certainly no exception to this long-standing
and time honored practice. We thank our anonymous reviewers who, very
early on, saw considerable promise in this project. We are indebted to the
series editor, Ron Roesch, who patiently allowed our ideas to evolve over time
until we found our collective voice. Our families and friends deserve praise-
worthy recognition. Collaborative writing can be a selfishly consuming enter-
prise, especially when work demands trump important obligations to loved
ones and other intimates. They willingly provided the requisite space and time
that sustained and grew our individual and collective research, reflection,
and writing energies. Finally, we thank Northwestern University School of
Law and Indiana State University (particularly David Polizzi) for allowing us
to reproduce, in verbatim or modified form, portions of our previously
published work. Chapter 2 represents a considerably revised version of
“Adolescent transfer, developmental maturity, and adjudicative competence:
An ethical and justice policy inquiry,” that appeared in the Journal of Criminal
Law and Criminology, 99, 435–488 (2009). Chapter 3 represents a consider-
ably revised version of “Solitary confinement, inmate mental health, and cruel
and unusual punishment: An ethical and justice policy inquiry,” that appeared
in the Journal of Theoretical and Philosophical Criminology, 2(3), 1–82 (2010).
Finally, we thank Candice Shepard, J.D. for her throughness in preparing the
indexes.

xiii
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Contents

Series Foreword vii

Preface ix
Acknowledgments xiii
Introduction: On Madness, Citizenship, and Social Justice 3
1 The Ethics of Psychological Jurisprudence 13
2 Juvenile Transfer, Developmental Maturity,
and Competency to Stand Trial 33
3 Inmate Mental Health, Solitary Confinement,
and Cruel and Unusual Punishment 60
4 Sexually Violent Predators, Criminal and Civil Confinement,
and Community Re-Entry 93
5 Rethinking Total Confinement: Translating Social Theory
Into Justice Policy 141
Conclusion 160

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xvi Contents

Appendix A 174
Appendix B 184
Appendix C 200
Endnotes 241
References 260
Name Index 283
Subject Index 289
Cases & Statutes Index 297
About the Authors 299
The Ethics of Total Confinement
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Introduction
On Madness, Citizenship,
and Social Justice

Total Confinement: Diagnosing Madness

The phenomenon of total confinement takes as its origins Goffman’s (1961)
classic social-psychological critique of total institutions and extends through
Arrigo and Milovanovic’s (2010) probing cultural-philosophical disputation
regarding the society of captives. Both treatises, in overlapping yet distinct
ways, recognized how the exercise of social control—wielded by institutions
through their agents—normalizes violence for the kept (prisoners) and their
keepers (those who imprison), for their managers (those who administrate
imprisonment) and their watchers (the general public). This violence is the
power to harm, to deny another person their humanity (Henry & Milovanovic,
1996). This harm as denial can manifest itself through formal or informal
mechanisms of restraint/surveillance (e.g., solitary confinement; the under-
ground pariah economy of prisons), as well through conscious or unconscious
belief systems (e.g., the mentally ill are diseased, deviant, and dangerous;
juveniles who do the “crime” must do the “time;” sexually violent predators
[SVPs] are less than human).
In the broader realm of health and social welfare, the scope of total
confinement is both gripping and arresting. Its ambit includes such practices as
relaxed civil commitment statutes (Saks, 2002); city-wide sweeps of the homeless
(Failer, 2002); heightened border patrol efforts targeting illegal immigrants
(Andreas, 2009); electronic home monitoring of paroled offenders (MacKenzie,
2006); inspection of non-criminal suspects (Zureik & Salter, 2006); and the legal
application of brain imaging technology for trial fitness, criminal responsibility,