NCJ Number
76120
Journal
Minnesota Law Review Volume: 65 Issue: 3 Dated: (March 1981) Pages: 331-422
Date Published
1981
Length
92 pages
Annotation
Following a review of legal restrictions on correctional treatment and research, this article analyzes offenders' rights to refuse treatment, issues related to informed consent, application of due process rights to correctional therapies, and the constitutionality of correctional research.
Abstract
The growing demand for alternative correctional programs that rely on sophisticated therapeutic techniques raises several controversial issues involving an offender's right to refuse treatment and methods used to obtain consent to treatment. The survey of legal limitations on treatment and research programs in correctional facilities begins with State and Federal statutes and regulations and then addresses international law (i.e., the Nuremberg Code), tort law, and constitutional law. For constitutional purposes, a continuum of intrusiveness must be developed to classify rehabilitative techniques and determine if they violate inmates' rights. The analysis of the right to refuse treatment used this continuum to evaluated verbal therapies, behavioral techniques, and organic therapies including medication and psychosurgery. The discussion concludes that while verbal and many behavioral treatments are not intrusive, organic therapies are significant invasions of the subjects' minds and bodies that have longlasting effects. The Government's interests in correctional practices stemming from its objective of protecting the community and rehabilitating offenders are examined, with attention to the least restrictive alternative doctrine. Requirements governing waiver of the right to refuse treatment are then considered, particularly the degree of voluntariness that is possible in the institutional context. Due process guarantees are outlined which affect the adequacy of informed consent practices and therapies which are somewhat intrusive but cannot be refused. The types of hearings required in these situations are also discussed. Constitutional limits on research using inmates as subjects are analyzed according to the intrusive continuum, criteria balancing government interests versus individual rights, and due process concerns. An exploration of the constitutionality of random assignment in correctional research concludes that these methods are not illegal. Although ethical codes regarding human research subjects have been developed by professional organizations, they have not applied them to correctional settings. If this attitude does not change, the law will have to impose controls. Cases are cited throughout the text. Approximately 490 footnotes are included.