Civil Detention Research Articles

Civil detentions of older adults under successive Scottish mental health legislation: a comparative analysis

Many countries have adopted new mental health legislation, with the detention of adults for treatment of mental disorders remaining an integral part of such policies. However, there are relatively few publications on the use of mental health legislation in the detention of older adults. This paper examines the civil detention of older adults in one Scottish region under successive mental health legislation. This prospective study collected data primarily by clinician-based interviews on all emergency detentions under the Mental Health (Scotland) Act 1984 of older adults in 1994 and compared these with all emergency and initial short-term detentions under the Mental Health (Care and Treatment) (Scotland) Act 2003 of older adults during 2008 in the same Scottish region. There were a total of 124 detentions, with an initial rate of 68 increasing to 141 detentions per 100,000 of the respective over-65 year age populations, a two-fold increase. Compared to the 1994 patient cohort, the 2008 cohort had higher rates of over 85-year-olds (18.4% v 5.4%) and organic mental disorders (74.7% v 56.8%) and were significantly more likely to be detained by consultant psychiatrists (73.6% v 18.9%) during working hours (87.4% v 48.6%) and proceed to six-month detention orders (31% v 10.8%). The observed higher rates and longer periods of detention in the 2008 cohort may reflect changes in clinical attitudes and legal requirements from a previous reliance on the common law doctrine of necessity to the requirements of a more legalistic framework, and may signal future clinical requirements, given the aging population, pointing towards the need for earlier recognition and management of clinical issues in an attempt to minimize the "necessity" of clinico-legal intervention.

In Aid of Removal: Due Process Limits on Immigration Detention

The use of immigration law to detain foreign nationals has come under increased scrutiny in recent years, as the federal government has increasingly resorted to immigration law as an authority for preventive detention in settings where criminal law would not permit it. Most prominently, the Attorney General used immigration law to justify detaining the majority of those arrested in the mass preventive detention campaign he conducted and is conducting in the wake of the terrorist attacks of September 11. Congress has mandated detention of certain foreign nationals deportable for having committed criminal offenses, a practice currently under review by the Supreme Court. And the INS has used detention of Haitian asylum seekers for symbolic purposes. In this article, I argue that apart from the detention of enemy aliens during wartime, due process prohibits preventive detention in any setting - immigration or otherwise - absent an individualized showing that the person is either dangerous or a flight risk, and a legitimate government purpose other than detention itself. These due process limits apply across the board, to bail decisions in the criminal context, to civil commitment, and to immigration detention. Yet because immigration law in recent years has lost sight of these basic principles, taking due process seriously would have radical consequences for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it has to other forms of civil detention; in other words, this is not a subject on which immigration exceptionalism, or the plenary power doctrine, has played much of a role. Second, I apply these general principles to several immigration law developments since 1996, illustrating that significant aspects of the INS's current detention policy and practice violate due process. Finally, I take up the issue of detention of entering aliens, and argue that cases holding that due process does not limit entering aliens' detention are predicated on an erroneous conflation of the decision to exclude and the decision to detain.

S22-03 - Are psychiatric hospitals, forensic institutions and penitentiaries in Europe an interlocked system?

Introduction and aimsDespite numerous advantages, the shift from hospital based to community mental health care has caused problems as well. To analyse whether or not the process of de-institutionalisation might have gone too far, studies are needed that cover general psychiatry, forensic psychiatry, and penitentiaries and analyse the interdependencies between them.MethodsWe combined epidemiological and service utilization data from three recent European studies that explored legal frameworks and practices of involuntary treatment in general mental health care, the care of mentally disordered offenders in forensic care and the care of mentally ill inmates in the European prison systems.ResultsTime series from several EU-Member States suggest that civil detention rates remained more or less stable during the 1990s, though on rather different levels internationally. Admissions to forensic psychiatric facilities have increased during the same period. Data on the mental state (or on rates of psychiatric morbidity) in European prison populations are not available - aside from the prison suicide rate. Data from selected countries are likely to suggest that changes to the legal framework in one sector may considerably affect admission rates in others.ConclusionsMuch more national studies are needed to analyse the linkage between sectors and to identify inappropriate patient shifting, as this is strongly affected by the varying national health care and criminal justice systems.

La garde en établissement au Québec : enjeux de la détention civile en psychiatrie

Being part of the psychiatric practice, civil detention of patients in hospitals against their will remains difficult to assess clinically in regards to the role of social protection desired by our society. In this paper, the authors promote a broader understanding of the concept of danger that grounds the application of this civil commitment regime in order to fulfill both duty of intervention and promotion of values of beneficence and protection of patients.

After the Gold Rush, Part II: Hamdi, the Jury Trial, and Our Degraded Public Sphere

Consider the possibility that Guantanamo-style detention - streamlined administrative detention of the dangerous - exists not to serve the war on terror, but rather the converse: the war on terror serves Guantanamo. That possibility is at the heart of the claim that the so-called war on terror is ultimately a war on ourselves. This article examines the enemy-combatant-detention case of Hamdi v. Rumsfeld - an exemplar of a burgeoning war-on-terror jurisprudence - through the prism of the thesis that the war on terror, beneath the rhetoric of protecting the homeland, has a very different function: it serves a longstanding drive to implement and perfect Guantanamo-style detention. Terrorism is not so much a threat as it is an opportunity. Hamdi expresses our own internal war against the criminal-justice system, exhibiting not just our ambivalence about it, but our impulse to detach it from its Kantian moorings and to make it administrative, tribunal-like. Just as our technological prowess on 9/11 was whipsawed back against us, thereby threatening to eliminate the distinction between war and peace, so too our fundamental anxiety we feel towards our criminal justice process is whipsawed back to strike us hard, causing us to unleash that other collective drive, a drive towards a form of governmental administration at the heart of what Michel Foucault described as the disciplinary society, a drive to overcome inhibitions in constructing a pure preventive-detention system, a drive that threatens the elimination of the distinction between civil detention and criminal punishment. Viewed from this prism, Hamdi is an emblem of how our legal culture, and indicative of how Western culture itself, has become paralyzed and corrupted by an over-commitment to a form of instrumental reasoning atrophied by a fetishism for means-ends maximization. (After all, Hamdi deploys instrumental reasoning to justify bypassing our greatest institutional expression against rampant means-ends reasoning - the criminal-adjudicatory process, with the jury trial as its crown jewel, which is the most significant vitalizing expression of our Enlightenment heritage). This article argues that the merits or demerits of Guantanamo Bay as a detention site is beside the point, an incidental issue in the larger struggle over the future of globalization and America's vision of its place within that future. Guantanamo-style detention may betray our values, but it inscribes in our pax Americana consciousness the existence of an evil, a plague, that must be vanquished. It may betray our professed self-identity, but it inscribes the major duality of our time, the happy consumer in a globalized wonderland, with its dessicated public sphere, and the religiously fanatical terrorist bent on sabotaging the entire globalization edifice. Hamdi's veil of administrative decency, then, can mute the betrayal, alleviate a bit the sting of it, all the while silently deepening that inscription, through its Weberian rationality, through its means-ends rationality that characterizes an undisciplined and rampant form of instrumental reasoning that thinkers like Jurgen Habermas have been warning us against. In the end, this article calls for a deeper awareness of not only how our civil rights and civil liberties are entangled with issues of globalization and threatened by America's hegemonic quest in our post-Cold War era, but how those rights and liberties are imperiled by 9/11's unleashing of deep cultural forces that have been percolating for centuries.

Demore v. Kim–A Dance of Power and Human Rights

In Demore v. Kim the United States Supreme Court interpreted the United States Constitution to allow detention of non-citizens while are in removal proceedings even if those individuals are not a flight risk and pose no danger to society and even if the detention was lengthy (months perhaps even years). The author discusses the Supreme Court cases dealing with detention of aliens and the cases dealing with civil detention and contends that permanent resident aliens should be treated as indistinguishable from citizens regarding their entitlement to a core fundamental human right like the right to physical liberty.

Detention of Persistently Nonadherent Patients With Tuberculosis

Patients with tuberculosis (TB) who are persistently nonadherent to treatment present a public health risk. In 1993, California created a new civil detention process and allowed detention of noninfectious but persistently nonadherent patients. To determine (1) which patients TB controllers attempt to detain, (2) how often and where patients are detained, and (3) how many of these patients complete TB treatment. Case series with cross-sectional comparison to other adult TB patients in the study counties. Twelve California counties with the largest number of new TB cases reported in 1994. All patients whom TB controllers sought to detain during 1994 and 1995 because of persistent nonadherence to treatment. Public health records, interviews with county TB officials, and Reports of Verified Cases of Tuberculosis to the California Tuberculosis Control Branch. Tuberculosis controllers sought the civil detention or arrest of 67 patients during the study period (1.3% of adult TB patients with the same disease sites). Forty-six percent of these patients were homeless, 81% had drug or alcohol abuse, and 28% had mental illness. Tuberculosis controllers sought civil detention of 15 patients. Fourteen patients were detained (median length of detention, 14.5 days). Tuberculosis controllers sought to arrest 62 patients during the study period. Fifty-three patients were arrested (median time in jail, 83 days). In 10 cases, both civil and criminal detention were attempted. We analyzed completion of therapy after excluding patients who were not detained or who died or moved. Overall, 41 (84%) of the remaining 49 detained patients completed therapy. Of the patients who completed therapy, only 17 were detained until treatment was completed. Compared with other TB patients in these counties, detained patients had 4 times the proportion lost to follow-up and half the proportion completing therapy within 12 months. Further improvements in the care of persistently nonadherent patients may require more psychosocial services, appropriate facilities for civil detention, and detaining patients long enough to assure completion of treatment.

Detention Until Cure as a Last Resort: New York City's Experience with Involuntary In-Hospital Civil Detention of Persistently Nonadherent Tuberculosis Patients

Patients with active pulmonary tuberculosis were civilly detained in a secured 29-bed unit in a long-term care facility in New York City between September 9, 1993, and September 9, 1994. All 46 detained patients were members of minority groups, more than 90% were substance abusers, nearly half had been previously incarcerated, 70% had been homeless at some point prior to detention, and 54% were HIV infected. The median time from TB diagnosis to detention was 19 months (range 4 to 77). The median length of stay for all study patients was 186 days (range 44 to 654). Seventeen patients (37%) were admitted with multidrug-resistant tuberculosis (MDR-TB). Thirty-seven patients (80%) completed treatment with only 1 reported relapse (median follow-up of 30 months, range 1 to 38 months). Two (4%) patients were persistently culture negative and still on treatment 42 months after the start of the study period. Six patients with MDR-TB died of AIDS during detention and a seventh died of tuberculosis. Eleven (24%) of the 46 patients completed treatment as outpatients. All patients achieved initial culture conversion to negative. Five (29.4%) of 17 patients with MDR-TB became culture positive again after initial culture conversion to negative despite treatment under detention; all 5 became culture negative once again with intensified treatment, but 1 of these 5 patients failed treatment yet again and died of TB. A sixth patient relapsed soon after treatment completion and died of AIDS and TB. These six patients were more likely to have advanced disease (P <0.04) and to have failed to achieve negative sputum cultures after 6 weeks of detention (P <0.03) than the patients with rifampin-resistant isolates who remained culture negative throughout treatment. No patient was lost to follow-up.

Reductivism, Retributivism, and the Civil Detention of Dangerous Offenders

The paper examines one objection to the suggestion that, rather than being subjected to extended prison sentences on the one hand, or simply released on the other, dangerous offenders should be in principle liable to some form of civil detention on completion of their normal sentences. This objection raises the spectre of a ‘social harm reduction system’, pursuing various reductivist means outside the criminal justice system. The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. The paper attempts to refute the objection by holding that a wedge can be driven between incapacitation and other reductivist measures, and hints at a possibly new version of dualism in the process.

Preventive detention, Corrado, and me

subject of Arresting the White Death[1] was civil confinement for treatment of tuberculosis, a particularly burdensome form of quarantine; the paper's primary purpose was to understand how such quarantine could be morally justified. Because of the obvious analogy between quarantine and I also discussed demolishing a defense of detention relying on that analogy. So, of course I was surprised to find Corrado criticizing my defense of detention - more surprised when I realized I had a defense to criticize. How did I end up defending detention? What does the answer to that question tell us about Corrado's argument and mine? In the course of trying to answer these questions, I shall argue: (a) that Corrado has misunderstood my defense of detention; (b) that his misunderstanding makes most of his criticism beside the point; and (c) that my defense, though philosophically interesting, leaves most of the important questions open. Some Basic Distinctions Almost two decades ago, Ferdinand Schoeman published a paper arguing that detention of potential criminals to prevent crime is morally no more problematic than quarantining the contagious to protect public health. Though much reprinted since, the paper has received little criticism. No doubt the practical ignored it because Schoeman did not address their problems. His target was philosophical, the moral criticism that detention violated a person's right to punishment. Schoeman's argument seemed to show that the right to punishment, if it existed at all, did not count for much. Since the right to punishment, then associated with Herbert Morris, underwrote much of the revival of retributivism, we would expect Schoeman's argument to have provoked philosophical retributivists. It did not. Why not? My guess is that they found it paradoxical enough to consign to that category of low-priority puzzle of which Anselm's Ontological Argument is the exemplar: hard to prove invalid for interesting, if technical, reasons, but certain to be proved invalid sooner or later. The White Death could not do the same because Schoeman's argument, insofar as it did not quiet doubts about the moral justification of raised doubts about the moral justification of quarantine. By preventive detention, I mean holding a person (a rational agent) against his will to prevent him from committing a crime. Presupposing that the detainee is rational, detention differs substantially from commitment for mental illness or incompetency (which presupposes that the committed is not fully rational). Preventive detention may be civil or criminal. Civil detention uses procedures like those of an ordinary incompetency hearing. Criminal detention uses the procedures of the criminal law. While the place of civil detention may be different from that of criminal, it need not be. Even criminal detention is (as such) not punishment. Like quarantine is an extensive interference with the liberty of some rational agents to protect others.[2] Quarantine differs from detention in what it is supposed to protect others from. Preventive detention is supposed to protect others from the serious crimes that the detainee would otherwise commit; quarantine, to protect others from serious disease the quarantined would otherwise spread. Quarantine also differs from detention in apparent moral status. While detention has always seemed morally problematic, quarantine generally has not. What Schoeman argued was that because quarantine and detention differ in no morally significant way (except apparent moral status), detention is morally no more problematic than quarantine. apparent difference in moral status is only that, an apparent difference. …