Table Of ContentThe 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
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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.
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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
Description:In three parts, this volume in the AP-LS series explores the phenomena of captivity and risk management, guided and informed by the theory, method, and policy of psychological jurisprudence. The authors present a controversial thesis that demonstrates how the forces of captivity and risk management
