Table Of ContentMental Health Law
MAJOR ISSUES
Perspectives in
Law &
Psychology
Series Editor: BRUCE DENNIS SALES, University of Nebraska, Lincoln
Volume 1 THE CRIMINAL JUSTICE SYSTEM
Edited by Bruce Dennis Sales
Volume 2 THE TRIAL PROCESS
Edited by Bruce Dennis Sales
Volume 3 JUVENILES' WAIVER OF RIGHTS
Legal and Psychological Competence
Thomas Grisso
Volume 4 MENTAL HEALTH LAW: Major Issues
David B. Wexler
Mental Health Law
MAJOR ISSUES
David B. Wexler
University of Arizona
Tucson, Arizona
PLENUM PRESS' NEW YORK AND LONDON
Library of Congress Cataloging in Publication Data
Wexler, David B
Mental health law.
(Penpectives in law and psychology; v. 4)
Includes index.
1. Mental health laws-Unih;d States. 2. Insane-Commitment and de·
tention-UnItes States. I. Title. H. Se~.
KF3828.W49 344.73'044 80-20523
ISBN-13:978-1-4684-3829-1 e-ISBN-13:978-1-4684-3827-7
DOl: 10.1007/978-1-4684-3827-7
© 1981 Plenum Press, New York
Softcover reprint of the hardcover 1s t edition 1981
A Division of Plenum Publishing Corporation
227 West 17th Street, New York N.Y. 10011
All rights reserved
No part of this book may be reproduced, stored in a retrieval system, or transmitted,
in any fonn or by any means, electronic, mechanical, photocopying, microfilming,
recording, or otherwise, without written pennission from the Publisher
For Brenda
Acknowledgments
The following works of mine have, in some form or another, found their
way into the present volume, and I am grateful to have been able to
draw on them: "The Administration of Psychiatric Justice: Theory and
Practice in Arizona," 13 Arizona Law Review 1 (1971) (with S. Scoville et
al.); "Therapeutic Justice," 57 Minnesota Law Review 289 (1972); "A Defi
nite Maybe: Proof and Probability in Civil Commitment," 2 Law and
Human Behavior 37 (1978) (with J. Monahan); Criminal Commitments and
Dangerous Mental Patients (G.P.O., 1976); "Criminal Commitment Con
tingency Structures," in B. Sales (Ed.), Perspectives.in Law and Psychology,
Vol. 1: The Criminal Justice System 121 (Plenum, 1977); "Foreword: Cur
rent Currents in Institutionalization," 14 San Diego Law Review 979
(1977); "Patients, Therapists, and Third Parties: The Victimological Vir
tues of Tarasoff," 2 International Journal of Law and Psychiatry 1 (1979);
"Book Review," 85 Harvard Law Review 1489 (1972); "Mental Health Law
and the Movement Toward Voluntary Treatment," 62 California Law
Review 671 (1974); "Of Rights and Reinforcers," 11 San Diego Law Review
957 (1974); "Token and Taboo: Behavior Modification, Token
Economies, and the Law," 61 California Law Review 81 (1973); "Behavior
Modification and Other Behavior Change Procedures: The Emerging
Law and the Proposed Florida Guidelines," 11 Criminal Law Bulletin 600
(1975). The publications were copyrighted, in the years specified, by the
law reviews (or their respective law review associations) and are used
here with permission.
For seeing this book to fruition, lowe thanks to a number of per
sons. Thanks are due first to my wife, Brenda, to whom the book is
dedicated, and to Nancy and Douglas, my children, for the feat, I am
vii
viii ACKNOWLEDGMENTS
repeatedly reminded, of simply living with me. My mother has been a
motivating influence by persistently pushing for a hardbound book,
rather than a collection of untidy reprints, to grace her coffee table. On a
more substantive level, I am grateful to Jeffrie Murphy, of the Depart
ment of Philosophy, University of Arizona (who contributed greatly by
suggesting a format for the book), to Roy Spece, of the University of
Arizona law faculty, Bruce Winick, of the University of Miami Law
School, and Saleem Shah of the National Institute of Mental Health, for
serving as substantive sounding boards, and to Bruce Dennis Sales, of
the University of Nebraska, for serving as a superb editor and for guid
ing me through each and every step of the process. Terry Dalke, Lawr
ence Raifman, and Robin Perin, law students at the University of
Arizona, have provided important research assistance, and Rosemary
Emery, formerly of the law school staff, has performed invaluable ad
ministrative and secretarial tasks.
Finally, perhaps not surprisingly, given the average tenure of deans
in modern legal education, my thinking relating to the development of
this work occurred over a period during which three persons served as
dean of the University of Arizona College of Law: Charles E. Ares,
Joseph M. Livermore, and Roger C. Henderson. I am indebted to each of
them.
Chuck Ares hired me, gave up the Law and Psychiatry Seminar so
that I might try my hand at it, and encouraged my early efforts at legal
scholarship. Joe Livermore, whose substantive interests are rather close
to mine, has been a constant source of intellectual stimulation. (When I
reach the point of intellectual satiation, which I am able to do with
remarkable rapidity, he is also a ready source of unmatched wit.) Roger
Henderson has worked to create a genuine, and very helpful, atmo
sphere of scholarship at the College of Law. He has also taken the step of
explicitly tying merit salary increases to scholarly productivity. As much
as anything, this book is a test of his good word.
DAVID B. WEXLER
Contents
1 Introduction: The Core of Mental Health Law ................. 1
PART ONE: THE COMMITMENT SYSTEM 9
A. CIVIL COMMITMENT
I. IN THEORY
2 Therapeutic Justice: An Overoiew and a Discussion of Civil
Commitment Standards and Procedures. . . . . . . . . . . . . . . . . . . . . .. 11
3 An Illustration of the Theoretical Relationship between Civil
Commitment Standards and Procedures: The Standard of Proof
Problem................................................. 59
II. IN PRACTICE
4 The Administration of Psychiatric Justice: A Case Study. . . . . . . .. 71
B. CRIMINAL COMMITMENT
5 The Criminal Commitment System: Its Structure and Components 117
C. THE RELATIONSHIP BETWEEN THE SYSTEMS OF CIVIL AND
CRIMINAL COMMITMENT
6 The Crouch Case: Exploring Problems of Civil and Criminal
Commitment through an Actual Example . . . . . . . . . . . . . . . . . . . .. 137
ix
x CONTENTS
PART TWO: LAW AND THERAPY 155
A. OUTPATIENT THERAPY
7 The Tarasoff Case and the Controversy over Its Therapeutic
Implications ............................................. 157
B. INSTITUTIONAL THERAPY
8 Psychosurgery and the Kaimowitz Case. . . . . . . . . . . . . . . . . . . . . .. 193
9 Behavior Modification: Legal Restrictions on Token Economies .... 213
10 One Proposed Legal Mechanism for Regulating Behavior Control .. 243
11 Afterword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 257
Index ........................................................ 263
