NCJ Number
54921
Journal
Virginia Law Review Volume: 61 Issue: 1 Dated: (FEBRUARY 1975) Pages: 155-196
Date Published
1975
Length
42 pages
Annotation
THE INTRODUCTION OF PSYCHOSURGERY AND CONDITIONING IN PRISONS IS EXPLORED IN RELATION TO PROCEDURAL DUE PROCESS, EIGHTH AMENDMENT AND OTHER CONSTITUTIONAL FACTORS, AND REHABILITATION ISSUES PERTINENT TO INMATES.
Abstract
PSYCHOSURGERY IS ACCOMPLISHED BY STEREOTACTIC TECHNIQUES TO CUT FAULTY CIRCUITING SYSTEMS IN THE BRAIN USING TINY ELECTRODES TO DESTROY AREAS OF THE LIMBIC SYSTEM WHICH IS BELIEVED TO BE THE LOCUS OF VIOLENT DRIVES. THE SUBJECT OF BEHAVIORAL CONDITIONING LEARNS TO DO THINGS WHICH ARE REWARDED OR ASSOCIATED WITH POSITIVE REINFORCEMENT AND TO AVOID BEHAVIOR RESULTING IN NEGATIVE REINFORCEMENT. THE PROCESS OF DISCOURAGING OTHERS FROM ACTING ILLEGALLY BY PUNISHING THE OFFENDER IS TERMED GENERAL DETERRENCE TO DISTINGUISH IT FROM SPECIAL DETERRENCE WHICH RELATES TO THE ANTICIPATED EFFECT OF SANCTIONS ON THE INDIVIDUAL PUNISHED. PSYCHOSURGERY AND CONDITIONING SERVE SPECIAL DETERRENCE AND REHABILITATION MORE THAN RESTRAINT, RETRIBUTION, OR GENERAL DETERRENCE. AN INTENDED OBJECTIVE OF PSYCHOSURGERY AND CONDITIONING PROGRAMS, HOWEVER, IS NOT GENERAL DETERRENCE. THESE PROGRAMS ARE DESIGNED TO PROMOTE GOVERNMENT INTERESTS IN REHABILITATION AND SPECIAL DETERRENCE; BY CHANGING THOUGHTS AND BEHAVIOR PATTERNS OF PRISONERS, OFFICIALS HOPE TO PREVENT THE COMMISSION OF FURTHER CRIME. PSYCHOSURGERY AND CONDITIONING, UNLESS SUPPLEMENTED BY OTHER PROGRAMS BASED ON ACHIEVING GOALS OF GENERAL DETERRENCE AND RETRIBUTION, WILL NOT SATISFY FUNCTIONS OF PUNISHMENT. THEY ARE NOT DEPENDENT ON INMATE COOPERATION, AND THEIR CONSTITUTIONALITY IS QUESTIONABLE. GIVEN CONSTITUTIONAL RIGHTS ASSERTABLE BY PRISONERS, PSYCHOSURGERY AND CONDITIONING PROGRAMS ARE VULNERABLE TO ATTACK ON SEVERAL GROUNDS: (1) SCIENTIFIC VALIDITY OF THEORIES ON WHICH PROGRAMS ARE BASED; (2) EXISTENCE OF FAIR PROCEDURES FOR SELECTING PRISONERS TO PARTICIPATE IN PROGRAMS AND POTENTIAL DUE PROCESS, EQUAL PROTECTION, AND CRUEL AND UNUSUAL PUNISHMENT CLAUSE VIOLATIONS; AND (3) COMPETING INTERESTS AT STAKE, SUCH AS FIRST AMENDMENT RIGHTS AND THE RIGHT TO PRIVACY. PROCEDURAL DUE PROCESS SAFEGUARDS ARE ESSENTIAL WITHIN THE CONTEXT OF RESTRAINT AND SPECIAL DETERRENCE THEORIES OF PUNISHMENT AND PRISON REHABILITATION PROGRAMS, SINCE MOST PROGRAMS (INCLUDING PSYCHOSURGERY AND CONDITIONING) PROCEED ON THE IMPLICIT BUT USUALLY UNSTATED ASSUMPTION THAT RECIDIVISM WILL OCCUR. THE DANGER OF DISCRIMINATORY OR CAPRICIOUS ACTION FURTHER STRENGTHENS THE ARGUMENT FOR PROCEDURAL SAFEGUARDS. IN DETERMINING IF THE EIGHTH AMENDMENT PROSCRIBES PSYCHOSURGERY AND CONDITIONING, THE THRESHOLD QUESTION IS WHETHER THE TECHNIQUES CONSTITUTE PUNISHMENT. PUBLIC OPINION SEEMS TO OPPOSE THESE TECHNIQUES. COURTS SHOULD SCRUTINIZE ANY WAIVER FOR SUBTLE COERCIVE FORCES THAT MAY HAVE INFLUENCED DECISIONS MADE BY PRISONERS TO UNDERGO PSYCHOSURGERY OR CONDITIONING AND SHOULD ADDRESS LEGAL EFFECTS OF PRISONER REFUSAL TO PARTICIPATE IN SUCH PROGRAMS. CASE LAW IS CITED. (DEP)