NCJ Number
35461
Journal
Southern California Law Review Volume: 49 Issue: 4 Dated: (MAY 1976) Pages: 880-983
Date Published
1976
Length
104 pages
Annotation
AVERSION THERAPY INVOLVES THE SYSTEMATIC APPLICATION OF AN AVERSIVE REINFORCER ON A PERSON WHO HAS EXHIBITED UNDESIRED BEHAVIOR IN ORDER TO REDUCE THE FREQUENCY OF THAT BEHAVIOR.
Abstract
THIS NOTE EXAMINES THE CONSTITUTIONALITY OF SUCH PROGRAMS UNDER THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF THE EIGHTH AMENDMENT. THIS EXAMINATION FOCUSES ON DISPUTING THE ARGUMENT THAT SINCE 'THERAPY' IS NOT 'PUNISHMENT', IT DOES NOT QUALIFY FOR JUDICIAL REVIEW UNDER THE EIGHTH AMENDMENT AND ANALYZES AVERSION THERAPY AS CRUEL AND UNUSUAL PUNISHMENT BASED ON ITS INHERENT NATURE, ITS DISPORTIONALITY, AND ITS EXCESSIVENESS. THE GENERAL CONCLUSIONS OF THIS NOTE MAKE A DISTINCTION BETWEEN SEVERE AND LESS SEVERE AVERSION THERAPY PROGRAMS. UNDER THE STANDARD OF REVIEW APPROPRIATE FOR THE DETERMINATION OF CRUEL AND UNUSUAL PUNISHMENT, THE SEVERE FORMS OF AVERSION THERAPY WOULD BE PROHIBITED FOR ALL PURPOSES BECAUSE THEY INVOLVE THE TORTUROUS INFLICTION OF PAIN. THE LESS SEVERE FORMS OF AVERSION THERAPY WOULD BE LIMITED IN USE UNDER THESE CIRCUMSTANCES: (1) WHEN USED AS DISCIPLINE, THEY POTENTIALLY WOULD BE PROHIBITED AS ARBITRARY AND CERTAINLY WOULD BE LIMITED IN SEVERITY TO THE SAME EXTENT THAT CURRENTLY ACCEPTABLE FORMS OF PRISON DISCIPLINE ARE LIMITED; (2) AS INEFFECTIVE TREATMENT, THEY WOULD BE PROHIBITED BECAUSE THEY ARE INEFFECTIVE IN FURTHERING ANY VALID PENAL AIM; AND (3) IF (OR WHEN) THEY BECOME EFFECTIVE AS A REHABILITATIVE CURE, THEY STILL MIGHT BE PROHIBITED AS EXCESSIVE WHEN THEY DO NOT CONSTITUTE THE LEAST INTRUSIVE MEANS OF ACCOMPLISHING LEGITIMATE PENAL AIMS. (AUTHOR ABSTRACT MODIFIED)