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Legal Implications of Behavior Modification Programs*
MICHAEL L. PERLIN, ESQ.··
I ntrod uction
Although it has probably never been tried in psychiatric practice, the use of the phrase
"behavior modification" in a word association test l^ would probably evoke a range of
responses covering the entire gamut of emotions. Projecting further, it is likely that the
use of the phrase "legal regulation and intervention" in such a test given to practitioners
of behavior modification would elicit even more emotional and anxious replies. l^ A
Significantly, the disparity of (and volatility of) reactions to the above phrases is so great
that even the apparently-simple issue of defining "behavior modification" has resulted in
major, analytical discussions. 2 Any consideration, then, of the legal implications raised by
use of behavior modification programs must come to grips - at the outset - with the
serious problem of definability of the terms in question.
Whatever "behavior modification" mayor may not mean to the psychiatrist or
psychologist, it has been used - in the context of a legal survey - to include programs
running the gamut from psycho-surgery to biofeedback to shock-generating devices to
token economies to encounter groups.3 Although some of these are specifically excluded
from a recent operative definition proposed by officials of the National Institute of
Mental Health,4 the fact remains that all of the procedures listed - along with countless
others - have been so classified. Thus, when public attention is focused on egregious
examples of "treatment" (occasionally nothing more than Orwellianly labeled
punishment), specifically including certain noxious aversive' therapies, e.g.,s it is
insufficient for a practitioner of behavior modification to say "That's really not behavior
mod - they're just calling it that." Regardless of whether or not the outraged practitioner
is right, programs with far-reaching implications are being labeled behavior modification
programs, a factor which itself makes judicial scrutiny all the more inevitable and
necessary.
Because of the wide ~cope of programs involved, serious questions are being raised as
to the constitutionality of many procedures and "therapies," specifically those involving
aversive techniques or negative reinforcement,' on both substantive and procedural levels.
The responses to such questions, as alluded to above, range from, "This is a scientific
question, not a legal one, so courts should stay out," to "All programs should be
abolished." To say that neither extreme contributes to a reasoned debate might appear to
belabor the obvious, but probably needs to be repeated.
Similarly, when Director of the Federal Bureau of Prisons Norman Carlson says (as he
did at a recent convention of the American Academy of Psychiatry and the Law) that the
ST ARTs prison program would not have received the adverse criticism it did had it been
called an "experiment in control" rather than a "behavior modification" program,SA he
bypasses the true issue - a .title alone will neither insulate a program from judicial
scrutiny nor focus unwarranted attention upon it. 9 Rather, the inquiry should be focused
-Mr. Perlin's paper, as one might guess, is separate and apart from the preceding materials of the San Diego symposium on child custody. --Mr. Perlin is Director, Department of the Public Advocate, Division of Mental Health Advocacy, State of New Jersey, P.O. Box 141, Trenton, N.J. 08625.
upon what substantive and procedural rights persons in insitutional behavior modification programs have, and what kinds of behavior or actions might violate those rights.
I. Substantive Rights
All persons - including those who participate In behavior modification programs voluntarily or involuntarily - have the constitutional right to be free from cruel and unusual punishment, a right often characterized as "freedom from harm."lo Although traditionally this right has been found in the context of jailor prison cases, I I it has been applied specifically to mental hospitals 12 and to facilities for the retarded,I3 on the theory that an even higher duty is owed to persons in non-penal or non-incarceratory settings. 14 Among the rights owed (based on a composite Eighth Amendment/Fourteenth Amendment argument) are a "tolerable living environment, "15 protection from physical harm,16 correction of conditions which violate "basic standards of human decency,"l and the "necessary elements of basic hygiene." 18 Mental patients are owed a therapeutic, not a punitive, confinement, 19 and have the right to be secure in the privacy of their own bodies against invasion by the State except where necessary to support a compelling State interest. 20 In protection of this right, courts will thus look at programs (whatever their titles) beyond their alleged guise to determine whether constitutional rights are being violated. For example, the Eighth Circuit Court of Appeals has held that the non-consensual subjection of patients to the use of apormorphine (a morphine-based drug which induces vomiting) as part of an "aversive conditioning program" violated the "cruel and unusual punishment" clause of the Eighth Amendment. 21 Similarly, it has been held that the non-consensual use of succinylcholine (a drug causing temporary paralysis and the inability to breathe), if proven, could raise "serious constitutional questions respecting cruel and unusual punishment or impermissible tinkering with mental processes." Finally, in an analogous setting, a Federal court has held that confinement of prisoners in segregation for sixteen months (in response to their refusal to participate in prison work) similarly constituted cruel and unusual punishment. 23 Cases such as these clearly establish broad outlines which can be seen as a harbinger of how courts in the future will decide similar complaints. 24 In another context, it has been held that an involuntarily committed patient could not give truly informed and voluntary consent 2S^ to experimental psychosurgery which would violate that patient's right to freedom of thought or to control his own "mental processes."26 This right was found to stem from the right to privacy,27 a fundamental right previously found by the United States Supreme Court. 28 The implications of such a decision regarding any program designed to modify a person's behavior (especially when it is embarked upon against the person's will) are clear. 29 Further, the Second Circuit Court of Appeals has held that, even where the medical treatment was non-experimental in a non-emergency situation, an involuntarily detained patient had the right to refuse treatment on religious grounds,30 a decision that has been
extended administratively in at least one instance, to imply a right to refuse medication
on the part of any patient not found to be judicially incompetent.3 1^ Such a decision may
potentially have a significant impact on the implementation of certain behavior modification programs. 32 And, in a case arising in a different setting, it has been held that patients in state psychiatric hospitals and residents of state schools for the retarded who are involved in work programs are deemed to be "employees" within the coverage of the Federal Fair Labor Standards Act 33 even if the work which they do is therapeutic, so long as the hospital derives "any consequential economic benefits" from that work. 34 Interestingly, the class of patients in this case includes "all patient-workers in non-Federal institutions
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has been suggested, "civilly committed patients are especially susceptible to a situational duress,"53 then any consent situation will be scrutinized with "special care"54 - although consent standards have been suggested by both courts 55 and commentators, they have been by no means universally accepted. 57 Yet, as the gaining of consent is "the first step in any behavior change program,"S8 it is an issue which must be considered by virtually all practitioners of behavior modification in institutional settings. S8A •
III. Some Observations
Albert Bandura has noted:
The use of aversive methods is apt to be criticized as being if not anti-therapeutic then certainly anti-humanistic. But is it not far more humanitarian to offer the client a choice of undergoing a brief, painfuL experience to eliminate self-injurious behavior, or of enduring over many years the noxious, and often irreversible, consequences that will inevitably result if his behavior remains unaltered? 59
There are, however, several serious problems with this approach. First, it is premised on the supposition that the participant is "offer[ed] ... a choice" 60 to participate. Clearly, this is often not so in institational settings. 61 In addition, the techniques employed often go far beyond the "brief, painful experience" 62 referred to by Bandura into the realm of cruel punishments. 63 Finally, of course, the Bandura position implies that each person's behavior should be altered, suggesting that each participant's behavior is "noxious" and "self-injurious."64 Given the well-known inabilities of psychiatrists to accurately predict dangerousness,65 this conclusion need not follow. Beyond this, it has been suggested in a Task Force Report of the American Psychiatric Association that the moral issues facing behavior therapy are "the same problems [which] must be faced by all therapeutic approaches."66 The presence of aversive conditioning in and the inability either to refuse or to sham participation in behavior modification programs, however, are sufficiently significant distinguishing characteristics to indicate that a rethinking of the AP A approach is necessary. 67 Thus, although Davison and Stuart have argued that the "record of responsibility" of behavior therapists is "at least the equal" of that other professions,68 whether or not this is true, it misses the point: the Constitution requires a higher standard of behavior than one derived from the intra-professional comparisons. The United States Supreme Court, for instance, in the recent case of O'Connor v. Donaldson,69 finally and forever put to rest the issue of justiciability of treatment questions, where it noted:
Where "treatment" is the sole asserted ground for depriving a person of liberty, it is. plainly unacceptable to suggest that the courts are powerless to determine whether the asserted ground is present. 70
Beyond this holding, the decisions discussed at length in Points I and II, above, clearly reflect a requirement that any behavior modification program must meet specific and stringent constitutional safeguards, both procedurally and substantively, on a case-by-case basis.71 Indeed, the recent NIMH survey of behavior modification programs underlines the need for "appropriate safeguards" when aversive methods are used7^2 and highlights the special problems involved in prison programs. 73 Clearly, any response smacking of
self-satisfaction is inappropriate. 74
Scrutiny, thus, is, and will remain, a fact of life - it must be acknowledged, accepted and dealt with, in spite of what has been characterized as the "dangers of semantic obfuscation."75 As Mr. Justice Brandeis noted nearly ~O years ago in his famous dissent
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in the case of Olmstead v. United States: 76
· .. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficient. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest danger to liberty lurks in insidious encroachments by men of zeal, well-meaning, but without understanding. 77
His words are still most apt in this setting.
References
- For a historical analysis of the use of word association tests, see Murphy and Kovach: Historical Introduction to Modern Psychology 165-167 (3d ed. 1972) (discussing the seminal work of Galton and Wundt). See also, Bemporad and Pinsker: Schizophrenia: The Manifest Symptomatology, in Arieta and Brody, eds., 3 American Handbook of Psychiatry: Adult Clinical Psychiatry, 524, 527, 531 (2d ed. 1974). 1A For a discussion of reactions to anxiety-eliciting material in another situation, see, e.g., Bondewyns and Levis: Autonomic Reactivity of High and Low Ego-Strength Subjects to Repeated Anxiety Eliciting Scenes. 84 J. Abnormal Psychol682 (1975).
- Paul Friedman, a leading mental health rights' advocate, has stated flatly that "the term, as used today, is so broad as to have lost much of its utility," and substitutes "applied behavior research" as more appropriate terminology. Friedman: Legal Regulation of Applied Behavior Analysis in Mental Institutions and Prisons. 17 Ariz L Rev 39, 42-43, n. 5 (1975) [hereinafter "Legal Regulation") Similarly, the Institute for Behavioral Research - an independent research and educational organization - has circulated to a wide range of mental health professionals a tentative 175-word definition of "behavior modification" as part of a glossary it is developing "so specialists in the field can communicate with policymakers, specialists in other fields, and people in general." Parsons and Parsons: A Glossary of Behavioral Tetrns in Behavior Modification, unpaginated cover page and 3 (tentative draft, June 1975)
- See generally, Behavior Modification Technology, in United States Senate Committee on the Judiciary, Staff Subcommittee on Constitutional Rights, 93d Congress, 2d Session, Individual Rights and the Federal Role in Behavior Modification 11-17 (1974) [hereinafter Individual Rights).
- Stolz, Wienckowski and Brown: Behavior Modification: A Perspective on Critical Issues. 30 Am Psychologist 1027, 1029 (1975) (hereinafter "Perspective")
- See e.g., Knecht II. Gillman, 488 F. 2d 1136 (8 Cir. 1973);Macby II. hocu"ier, 477 F. 2d 877 ( Cir. 1973), both discuSsed in further detail below, at pp. 176-177.
- As to the scope of the public controversy and the proliferation of programs, see Legal Regulation, note 2, above, at 45-48. For a review of the "phenomenal" growth of behavior modification use as reported in the literature, see generally, Grundner' and Krasner: Behavior Modification: An Empirical Analysis of the State of the Art, 3 (tentative draft, June 1975).
- See e.g., Wexler: Token and Taboo: Behavior Modification, Token Economies, and the Law. 61
Calif L Rev 81 (1973), and sources cited at id., n. 4.
- "START" is an acronym for Special Treatment and Rehabilitative Training. For a full discussion of the program, see Comptroller General: Behavior Modification Programs: The Bureau of Prisons' Alternative to Long Tetrn Segregation (August 5, 1975) (hereinafter "Bureau's Alternative"); see also, Individual Rights, note 3, above, at 234-272. 8A Director of Prisons Sees End of Medical Model in Criminology. Psychiatric News, X, 24 (Dec. 17, 1975), at 3, 22.
- See, e.g., for a list and description of behavior related projects funded by the Law Enforcement Assistance Administration, Individual Rights, note 3, above, at 394-420. Compare to the substance of those programs, the observation by Stolz et al. that a behavior modification program should
alter an individual's behavior in the direction that, "ideally, he himself (or his agent) has chosen."
Perspective, note 4, above (emphasis added) For the view that "[P) sychiatric therapy in prisons is often indistinguishable from punishment," see Opton: Psychiatric Violence Against Prisoners: When Therapy is Punishment. 45 Miss L J 60S, 643 (1974).
- See U.S. Constitution, Amendment VIII. For a general discussion of the rights discussed in text accompanying notes 10-20, below, see Perlin: Rights of the Mentally Handicapped. 98 N J L J 1057, 1067 (1975). 1l.See, e.g., Holt II. Sarver, 442 F. 2d 304 (8 Cir. 1971); Rhem II. Malcolm, 507 F .. 2d 333 (2 Cir. 1974).
Legal Implications of Behavior Modification Programs 179
procedures. No resident shall be subjected to a behavior modification program which attempts to extinguish socially appropriate behavior or to develop new behavior patterns when such behavior modifications serve only institutional conveniences.
The Wyatt decision is discussed in this regard in Legal Regulation, note 2, above, at 56-57.
33.29 U.S.C.A. 206 et seq.
34.Souder v. Brennan, 367 F. Supp. 808, 813 (D.D.C. 1973). Similarly, in Wyatt v. Stic!tney, 325 F.
Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala 1971), 344 F. Supp. 373, 381 (M.D.
Ala. 1972), 344 F. Supp. 387,402 (M.D. Ala. 1972), aff'd sub nom. Wyatt v. Aderholt, 503 F. 2d
1305 (5 Cir. 1974), the court specified that patients in institutions for the mentally ill and
residents in facilities for the mentally retarded could "voluntarily engage in therapeutic labor" if that work were an integrated part of the patient's treatment,· adequately supervised, and compensated for in accordance with the Fair Labor Standards Act. See, for a general discussion, Perlin: The Right to Voluntary, Compensated, Therapeutic Work as Part of the Right to
Treatment: A Theory in the Aftermath of Souder. 7 Seton Hall L Rev 298 (1976).
The question has also been forcefully raised that compulsory, non-compensated work prosrama might come within the Thirteenth Amendment's prohibition against "involuntary servitude." See,
e.g., Downs v. Department of Public Welfare, 368 F. Supp. 454,465 (H.D. Pa. 1973); see generally,
Friedman: Thirteenth Amendment and Statutory Rights Concerning Work in Mental Institutions. 2 Legal Rights of the Mentally Handicapped 637, 647~9 (P.L.I. Ed. 1973).
Although certain sections of the Federal Minimum Wage Law (29 U.S.C.A. 203 (d), (5) (5), and (x)
were declared unconstitutional as they apply to state patients in the United States Supreme Court's
recent decision in the case of National League of Cities v. Usery, 44 U S L W 4974 (1976), that
action did not specifically overrule Souder, nor did it attack the reasoning behind the Souder
decision. In any event, Souder-type decisions might still be sustainable on a variety of grounds in
addition to the Thirteenth Amendment, including, inter alia, state minimum wage laws, the right to
treatment doctrine, and Section 504 of the Rehabilitation Act of 1973.
H.Souder v. Brennan, 367 F. Supp. 808, 813 (D.D.C. 1973)
- For a survey of institutional settings in which token economy prosrams are employed, see Wexler, note 7, above, at nn. 16-17.
- Wexler, note 7, above, at 92-97. For the view, however, that "the apparent conflict ... may not be as serious ~ feared," see Legal
Regulation, note 2. above. at 75. For a response to that view, see Wexler: Reflections on the Legal
Regulation of Behavior Modification in Institutional Settings. 17 Ariz L Rev 132, 138-139 (1975).
38. See, e.g., Shelton v. 1'uclcer, 364 U.S. 479, 488 (1960).
39. See, e.g., Lessard v. Schmidt, 349 F. Supp. 1078, 1096 (E.D. Wis. 1972), vacated on other
procedural srounds 414 U.S. 473 (1974), on remand 379 F. Supp. 1376, 1379 (E.D. Wis. 1974),
vacated and remanded-U.S.-, 43 U.S. L. W. 3600 (1975); Dixon II. Attorney Gnreral of
Pennsylvania, 325 F. Supp. 966,974 (M.D. Pa.1971); ChamberslAlternatives to Civil Commibnent
of the Mentally III: Practical Guide and Constitutional Imperatives. 70 Mich L Rev 1107, 1145 (1972).
40. See, e.g., Singer v. State, 63 N.J. 319, 323 (1973); State 11. Krol, 68 N.J. 236,257-258 (1975).
- Legal Regulation, note 2, above, at 73. It has similarly been suggested that "every therapeutic intervention should begin with the least intrusive procedure from which a positive outcome can reasonably be expected." Davison and Stuart: Behavior Therapy and Civil Liberties. 30 Am Psychologist 755, 759 (1975) 42.Legal Regulation, note 2, above, at 75. Any such waiver must be "Ia) voluntary ... knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely
consequences." Brady v. United States, 397 U.S. 742, 748 (1970).
The burden of proof in a waiver situation will be far more difficult to sustain, of course, in matters involving an institutionalized population than where the public at large is concerned. See aenerally, Note, 6 Rutgers-Camden L J, note 26, above.
- Legal Challenges, note 23, above, at 10 44.ln addition to those sources heretofore cited, see also, Bomstein: The Forcible Administration of Drugs to Prisoners and Mental Patients. 9 Clearinghouse Rev 379 (1975), and Gobert: Psychosurgery, Conditioning, and the Prisoner's Right to Refuse 'Rehabilitation,' 61 Va L Rev 155 (1975) (hereinafter Right to Refuse). 45.See note 8, above, and references cited therein.
46.Clonce II. Richardson, 379 F. Supp. 338, 348 (W.O. Mo. 1974). For a discussion of the
implications of Clonce, see Right to Refuse, note 44, above, at 177.
47.See, e.g., Goldberg v. Kelly, 397 U.S. 254, 268-271 (1970); Morrisey II. Brewer, 408 U.S. 471,
488-489 (1972); Gagnon v. Scarpelli, 411 U.S. 788, 79c}'791 (1973).
48.Morrisey v. Brewer, 408 U.S. 471,481 (1972)
49. Goldberg II. Kelly, 397 U.S. 254,263 (1970)
Legal Implication. of Behavior Modification Progr.ms 181
- See generally, United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938).
- Stone: Mental Health and Law: A System in Transition 105 (1975). Cf N.J.S.A. 30:4-24.2(d) (2) (1975). 52.Kaimowitz v. Michigan Department of Mental Health, Civil No. 73-19434-AW, 42 U.S.L. W. 2063 (Mich. Cir. Ct. 1973), slip op. at 31
- Note, 6 Rutgers-Camden L 1, note 26, above, at 553. Another commentator has pointed out that "the opportunities for coercion and constraint in mental hospitals are at least as great as those in prisons." Note, Kaimowitz v. Department of Mental Health: Involuntary Mental Patient Cannot Give Informed Consent to Experimental Psychosurgery. 4 NYU Rev L & Soc Change 207, 215-216 (1974) For an exhaustive analysis of the issues raised by Kaimowitz, and an examination of the doctrines traditionally employed to negate consent in a contractual setting (illegality, fraud, duress and incapacity), see Note, 6 Rutgers-Camden L 1, note 26, above at 549-564.
- Legal Regulation, note 2, above, at 83 55.Knecht v. Gillman, 488 F. 2d 1136 (8 Cir. 1973)
- Legal Regulation, note 2, above, Appendix I, at 97- 57.See also, Stone, note 51, above, at 97-106; Stern and Caftel: Legal Issues Involved in Using Women as Experimental Research Subjects, at 5 (Unpubl. mimeo 1975); Katz, note 29, above, at 523-725; Reubhausen and Brim: Privacy and Behavioral Research, 65 Col L Rev 1184 (1965).
- Legal Challenges, note 23, above, at 25 58A See, e.g., Cohn: Mental Patients Vague on Tests, Doctor Says, Washington Post, Dec. 13, 1975.
- Bandura: Principles of Behavior Modification 87 (1969) (emphasis added). 60.lhid.
- See, e.g., Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974). For another approach similar to Bandura's, see Kazdin, Behavior Modification in Applied Settings 234 (1975) ("Applied work usually is conducted with individuals whose behaviors have been identified as problematic or ineffective in some way. The responses may include deficits or behavior which are not under socially accepted stimulus control").
- Bandura, note 59, above 63.See, e.g., Knecht v. Gillman, 488 F. 2d 1136,1137 (8 Cir. 1973) (apomorphine could be given "for not getting up, for giving cigarettes against orders, for swearing, for talking, or for lying"). For a catalog of similar programs, see Schwitzgebel: Development and Legal Regulation of Coercive Behavior Modification Techniques With Offenders, 5-22 (1974 reprint).
- Bandura, note 59, above. Gobert has noted that "(behavior) conditioning depend(s) upon the assumption of recidivism," an assumption which has "rarely been challenged." Right to Refuse, note 44, above, at 172
- From the brief filed by the Division of Mental Health Advocacy (N.1.) as amicus curiae with the u.s. Supreme Court, Kremens v. Bartley, No. 75-1064, pending: The evidence demonstrates that psychiatrists are no more significantly predictively accurate than non-psychiatrists (e.g., lawyers). See Rappeport, Lassen, and Gruenwald: Evaluation and Follow-up of Hospital Patients who had Sanity Hearings, in Rappeport ed., Clinical Evaluation of the Dangerousness of the Mentally III 89 (1969) ("The comparison between court released and hospital released adjustment rates shows no significant difference in the predictive accuracy of either institution"), and Ennis and Litwack: Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif L Rev 693, 749 (1974) (no evidence found that a psychiatrist can predic' dangerousness more accurately than a lawyer). In fact, a recent report prepared by the American Psychiatric Association concludes that "neither psychiatrists nor anyone else have reliably demonstrated an ability to predict future violence or 'dangerousness.''' American Psychiatric Association, Clinical Aspects of the Violent Individual 28 (1975). Of course, in the famous study of the so-called "Baxstrom patients" (those persons ordered released from New York's maximum security facilities for "insane criminals" following this Court's decision in Baxstrom v. Herold, 383 u.S. 107 (1966», it was found that, of the 969 Baxstrom patients who had previously been statutorily incarcerated in maximum security facilities, within one year, only seven were recommitted to such a facility on a finding of dangerousness (although it had been predicted by hospital officials that nearly 250 would need that type security), and, of the 147 patients released to the community, only one had been arrested within that time period (for petty larceny). Hunt and Wiley: Operation Baxstrom After One Year, 124 Am 1 Psychiat 124 (1968), reprinted in Association of the Bar of the City of New York: Mental Illness, Due Process and the Criminal Defendant 224 (1968). The Baxstrom patients have received special behavioral scrutiny. See, e.g., Steadman: Follow-up on Baxstrom Patients Returned to Hospitals for the Criminally Insane. 130 Am. 1. Psychiat. 317 (1973); Steadman and Cocozza: Careers of the Criminally Insane (1974). For a more recent evaluation and survey of the relevant literature, see Steadman and Cocozza: We Can't Predict Who Is Dangerous. Psychology Today 32 (january 1975). See also, e.g., Dershowitz: The Law of Dangerousness: Some Fictions About Predictions, 23
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