Essay:Treatment instead of incarceration

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"Treatment instead of incarceration" is a mantra that reformers and defense attorneys chant. It sounds like a good idea — give the guy a chance to work a job and attend treatment under supervision instead of sending him to prison to be around criminals. If he messes up, he can be sent to prison. Treatment even sounds scientific, as though we're being more enlightened by treating crime as a disorder rather than as a moral outrage. Certainly the doctors and counselors who make their money off of treating these offenders are inclined to view, or say that they view, the treatment as effective and worthwhile.

Interrogation and propaganda


Those who have been through such treatment programs commonly report that the two main purposes appear to be interrogation and propaganda. The interrogation aspect consists of requiring offenders to report their thoughts and feelings. In fact, U.S. Probation readily admits, "Mental health treatment is a risk management tool that helps U.S. probation and pretrial services officers supervise, or monitor, defendants and offenders in the community"[1] — in other words, the mental health professionals give information to the probation officers that is relevant to their law enforcement duties. The Sexual Treatment Education Program and Services (STEPS) program of San Diego required offenders to sign a contract giving over their liberty of thought and action:[2]

I understand that I am required to keep a daily written record in a journal...of my deviant sexual fantasies or other specific thoughts that are related to my sexually aggressive behavior," reads the contract. "I will complete a written autobiography assignment during the first two months of my involvement at STEPS, that will include descriptions of: (a) My past sexual offenses, fantasies, and my state of mind during offenses; (b) Any sexual and/or physical abuse that has happened to me; (c) My history of sexual behavior other than outright offenses; (d) How I kept my problem a secret and avoided getting caught. This assignment will be completed with a minimum of six pages.

The psychologists do not necessarily take the patient at his word; tools such as the polygraph or penile plethysmograph may be used to verify his truthfulness. The Public Agency Training Council advises, "Polygraph can be useful in breaking down the barrier of denial, especially regarding the denial of facts about a sexual crime."[3] The Council on Sex Offender Treatment notes that three uses of the polygraph include disclosure examinations for the instant offense, disclosure examinations for verification of sexual histories, and maintenance/monitoring. The latter two types seek to get the defendant to admit sexual deviance and probation violations for which he has not yet been found guilty; the polygraph tests "explore sexual histories including additional victims, therapeutic issues, and sexual deviance prior to the date of conviction" and "deal with issues of violation of probation and/or the the commission of additional sexual offenses, yet unidentified, while on probation or parole".[4]


A rationalization, according to the DSM-IV, occurs "when the individual deals with emotional conflict or internal or external stressors by concealing the true motivations for his or her own thoughts, actions, or feelings through the elaboration of reassuring or self serving but incorrect explanations." In government-sponsored treatment programs, any arguments raised for why a crime was justifiable are considered rationalizations. Thus, it is assumed that the individual is speaking and acting in bad faith and that he is wrong and the government right.

A less biased curriculum might examine the possibility that the government is rationalizing when it makes excuses for locking up victimless offenders. Offenders are at great disadvantages when it comes to defending their ideas in these programs, however. The person with whom they will be crossing swords is an instructor who has made a career out of pushing a certain ideology. As Ludwig von Mises notes, "the professionals have an advantage over the laymen. The odds are always in favor of those who devote all their effort exclusively to one thing only. Although not necessarily experts and often certainly not more clever than the amateurs, they enjoy the benefit of being specialists. Their eristic technique as well as their training are superior. They come to the encounter with rested mind and body, not tired after a long day’s work like the amateurs."[5] Mises continues:

The layman may brilliantly succeed in proving his argument. It is of no use. For his adversary, clothed with the full dignity of his office or his professorship, shouts back: “The fallacy of the gentleman’s reasoning has long since been unmasked by the famous German professors, Mayer, Muller, and Schmid. Only an idiot can still cling to such antiquated and done-for ideas.” The layman is discredited in the eyes of the audience, fully trusting in professional infallibility. He does not know how to answer. He has never heard the names of these eminent German professors. Thus he does not know that their books are simple humbug, full of nonsense, and that they did not touch the problems which he raised. He may learn it later. But that cannot alter the fact that he has been defeated on the spot.

Or the layman may cleverly demonstrate the impracticability of some project suggested. Then the professional retorts: “This gentleman is so ignorant as not to know that the scheme proposed succeeded very well in socialist Sweden and in red Vienna.” Again our layman is silenced. How can he know that almost all English-language books on Sweden and Vienna are propaganda products badly distorting the facts? He has not had the opportunity of getting correct information from the original sources.

This aptly describes what goes on in treatment programs. The government psychologists cite all sorts of "facts" to support their arguments, but a critical analysis would reveal the fallacies. Rarely, however, is there an opportunity to delve so deeply into the topic. The class must move forward and cover the whole curriculum in the allotted time; only a certain amount of time is allocated for questions, and that is typically consumed by the sycophants who seek to act interested in reforming their ways. Naturally, the teacher will want to give priority to addressing the needs of those who show a cooperative attitude rather than setting aside time for dissidents to express at length their objections.

At any rate, the patient has a strong incentive to refrain from making statements that could be construed as evidence that his thinking has not reformed. Although treatment is supposedly not a form of punishment, it does require the patient to invest time in attending classes and doing homework, arrange for transportation to the treatment center, and in some cases pay for the costs of treatment. Also, some of the interrogation processes can be quite intrusive and unpleasant. The patient may have good reason to want to get a satisfactory report from the psychologist, if it can lead to the patient's being released from treatment or subjected to less intensive forms of it.

Also, treatment is also typically part of a larger framework of probation restrictions. Getting probation terminated early requires that the court be satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.[6] The recommendation of the counselor can go a long way toward making that happen. On the other hand, the counselor might also recommend an extension of probation or more restrictive conditions of probation. The counselor's opinions, and the patient's documented statements that show a lack of remorse, might also be used against the patient in future court proceedings, since they could find their way into a presentence investigation report.

It doesn't necessarily keep people out of prison

These programs result in mental health treatment of people who don't need it. The offenders often find it even more tiresome than they expected and sometimes quit cooperating; then they get sent to prison for a probation violation. People end up serving more time for these violations than they would have gotten if they had just been sent to prison instead of treatment from the beginning, because now the person has not just a conviction but a probation violation on his record. This is especially a bad situation if people plead guilty in order to get into treatment programs, but would have gone to trial and won an acquittal if prison had been the only possible outcome of a conviction.

Of course, the defense attorneys will always favor treatment over incarceration, because like any other plea bargain that gets the client a lesser punishment than what he would have gotten if he'd gone to trial and lost, less work is required on the lawyer's part than would have been the case if he'd gone to trial, and the plea bargain outcome makes it look like they won. If their client violates probation, they can say "Well, don't blame us; we got you a sweet deal but you messed it up by not complying."

There are principal-agent problems

The same problems arise with government funding treatment as arise with any other charity, except that it's worsened by the fact that the person is receiving the service against his will. A person voluntarily buying treatment will seek to save time and money by discontinuing treatment if he finds it ineffective or if he deems himself to be cured. If the government offers treatment free of charge, then the person will only discontinue treatment if he deems it to be a waste of time. But if it is forced on him, then he will not be able to escape treatment even if he finds it extremely harmful, unless he deems incarceration to be a preferable alternative.

The taxpayers are funding a service that is being provided to others, but they cannot monitor the quality of service because the doctor-patient relationship is confidential. Only the probation officer and judge have access to those records. Therefore, the taxpayer cannot know whether he is getting a good deal for his money. It could be that the system is set up to line the pockets of treatment agencies who serve the needs of the judges by saying "This patient is still dangerous," which justifies continuing restrictions on liberty. A judge might wish for such an excuse if he finds a defendant's crimes, attitudes, etc. particularly heinous or otherwise offensive to the judge's values.

One runs into problems whether the judge has discretion about treatment or not. If he has discretion, then the treatment is subject to arbitrary decisions made at the judge's whim. The only alternative is for the judge's decisions to be regulated by rules. But rules cannot possibly account for all situations. The problem is that, as Mises remarked, "In public administration there is no market price for achievements. This makes it indispensable to operate public offices according to principles entirely different from those applied under the profit motive."[7]

Mandatory treatment programs will tend to attract substandard mental health professionals

As Mises notes, "Every half-wit can use a whip and force other people to obey. But it requires brains and diligence to serve the public. Only a few people succeed in producing shoes better and cheaper than their competitors. The inefficient expert will always aim at bureaucratic supremacy."[8] Mental health professionals whose incompetence prevented them from getting any patients to voluntarily seek their services will offer their services to the government. They will trade their loyalty to the government's interests in exchange for a steady clientele.


As an alternative, why not give people however severe a punishment they deserve for their crime? People's incentive to get mental health treatment will be the fact that if their mental health condition causes them to commit crimes, they will get punished. Civil commitment of offenders has served as a backdoor means of imposing longer sentences of incarceration than would otherwise be allowed by law. As Murray Rothbard points out,[9]

[W]e must question the entire notion of taking anyone out from under the rule of objective law. To do so is far more likely to be damaging than helpful to the people thus singled out. Suppose, for example, that two men, A and B, commit an equivalent robbery, and that the usual punishment for this crime is five years in prison. Suppose that B "gets off" this punishment by being declared mentally ill, and is transferred to a state mental institution.The [leftist] focusses on the possibility, say, that B may be released in two years by the State psychiatrist through being adjudged "cured" or "rehabilitated." But what if the psychiatrist never considers him cured, or does so only after a very long time? Then B, for the simple crime of theft, may face the horror of lifelong incarceration in a mental institution. Hence, the "liberal" concept of indeterminate sentence — of sentencing someone not for his objective crime but on the State's judgment of his psyche or spirit of cooperation — constitutes tyranny and dehumanization in its worst form. It is a tyranny, furthermore, which encourages the prisoner into deceptive behavior to try to fool the State psychiatrist — whom he perceives quite correctly as his enemy — into thinking that he is "cured" so that he can get out of this incarceration. To call this process "therapy" or "rehabilitation" is surely cruel mockery of these terms. It is far more principled, as well as more truly humane, to treat every prisoner in accordance with objective criminal law.