Preliminary Analysis of Legal Limitations on Rehabilitative Alternatives to Corrections and on Correctional Research (From New Directions in the Rehabilitation of Criminal Offenders, P 328-375, 1981, Susan E Martin et al, ed. - See NCJ-80920)

• NCJ Number: 80925
• Author(s): B J Winick
• Date Published: 1981
• Length: 48 pages
• Sale Source: National Academies Press
• Language: English
• Country: United States of America

Annotation

Legal issues raised by controversial rehabilitative alternatives such as neurological technologies and behavior modification are discussed, along with the research that inevitably precedes, accompanies, and evaluates them.

Abstract

Sources of legal limitation on rehabilitative approaches and technology are Federal and State statutes, regulations, international law, and judicial decisions. Issues discussed include an analysis of the right to refuse treatment, the government's interest in rehabilitation, the requirement of informed consent, due process, and constitutional limits on correctional therapy. Even if the law does not prohibit some forms of involuntary correctional therapy or research, substantial ethical and policy issues exist. Widely shared societal norms place great emphasis on the freedom, dignity, and autonomy of the individual. At the very least, these principles should place a strong ethical burden on those who would subject offenders to involuntary participation in treatment or research and should remove decisionmaking in these areas from the sole discretion of rehabilitators and investigators. In the area of correctional rehabilitation, there is irony in the fact that the constitutionality of coercive imposition of rehabilitative techniques turns to a large extent on the ability of the offender to avoid or resist unwanted effects; thus, although the law may permit their involuntary imposition on unwilling offenders, the rehabilitative techniques in the lower end of the proposed continuum of intrusiveness will be ineffective without the offender's voluntary cooperation and genuine desire for change. As a result, efficacy and ethical principles combine to favor a voluntary rather than a coercive approach to correctional rehabilitation. Although it may be appropriate to mandate a brief period of compulsory observation of a treatment program so that the offender's choice regarding whether or not to participate will be more informed and to attempt to persuade offenders that it is in their own best interests to participate in such programs, the choice should ultimately be voluntary, with the offender suffering no sanctions or loss of privileges from the decision. About 180 references are listed. (Author summary modified)