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Theories of Punishment

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Suicide is the only action that is not a crime that may be prevented by force.


Criminal justice is the formal practice of preventing and punishing proscribed behaviors.

There are five generally recognized theories of punishment, in criminal justice terms:

  • General deterrence means making an example of a criminal so that the population at large will be deterred from committing a crime.
  • Specific deterrence refers to punishing an individual criminal so that he or she will “think twice” and be deterred from committing a crime in the future.
  • Incapacitation means isolating and/or restraining a criminal so that he or she will not be able to commit a crime for the duration of the incapacitation.
  • Rehabilitation refers to providing assistance to a criminal so that he or she will not want or need to commit a crime in the future.
  • Retribution involves taking revenge on a criminal for the crime that he or she committed.

Deterrence, incapacitation, and rehabilitation models aim to prevent crime. Deterrence and rehabilitation models operate on the criminal’s mind, whereas the incapacitation model operates only on his body.

Suicidality is often considered to be a mental illness, properly considered to be within the purview of medicine; however, the interventions that are commonly undertaken in cases of suicidality demonstrate that the act is properly viewed as part of the criminal justice model.

The key feature of suicide: it is the only action that is not a crime that may be prevented by force.[1]

The prevention of suicide generally takes punitive, rather than medical, form. Generally, the methods used are incapacitative:

Because [preventing a determined person from committing suicide] is impossible, psychiatrists enjoy (if that is the right word) virtually unlimited professional discretion to employ the most destructive suicide-prevention measures imaginable, provided the measures are called “treatments.” The authoritative American Handbook of Psychiatry (1959 edition) endorsed lobotomy “for patients who are threatened with disability or suicide and for whom no other method seems likely to relieve or restore them.” In the 1974 edition, lobotomy was replaced by electroshock treatment administered in sufficient doses to destroy the subject’s will to kill himself: “[W]e do advocate its initial use for one type of patient, the agitated patient, often middle-aged and usually a man, who presents frank suicidal intention. We give ECT [electroconvulsive therapy] to such a patient . . . daily until mental confusion supervenes and reduces the ability of the patient to carry out his suicidal drive.” Thomas Szasz, Fatal Freedom: The Ethics and Politics of Suicide, pp. 56-57 (citations omitted). [Emphasis mine.]

However, often the methods used are so obviously unpleasant that they fall under the deterrent models as well – if not the retributional models!

In they Army, anyone reporting suicidal ideation is made to wear a bright orange vest and rubber bands in place of his shoelaces – not to mention watched 24/7 by a “buddy.” As reported by Elspeth Reeve:

Suicide watch (also called unit watch, buddy watch, or command interest profile) is how the Army deals with soldiers in garrison who express suicidal thoughts but don’t appear to be in immediate danger of harming themselves. It’s been around in some form since the 1980s, and generally involves a suicidal soldier being watched by one or two fellow soldiers around the clock, and having his gun, shoelaces, and belt taken away, so he can’t kill himself.

. . . . “You’re in an isolated state,” [a recruit who was under suicide watch] says. The orange vest makes you a pariah. “You’ve got the reason you’re on suicide watch to begin with on top of the fact that you stick out like a sore thumb,” he says. “It’s like you’re walking around in a zoo, and you’re the animal.”

. . . . The purpose of the vest is, ostensibly, to make it easy for others to keep an eye on a suicidal soldier, but forcing a soldier to advertise his own depression creates a powerful stigma. “When you see what happens to someone on suicide watch—the orange vest, the trips to the chaplain, the drill sergeant talking about them when they’re not there, saying they can’t handle the military. … When you see that, you’re going to think twice about speaking up and saying you need some help. It makes you not want to talk to someone. You don’t want to be like that guy,” the recruit from Benning says. [Emphasis mine.]

The Army’s treatment of suicidality is clearly punitive. Indeed, there is a strong incentive for soldiers to express insincere suicidality – that is, removal from combat duty. This would make it seem rational for the Army to institute counterincentives (conceding, implicitly, that suicidal behavior is rational in that it responds to incentives). But, as Reeve indicates, the punishment also dissuades genuine suicides from disclosing suicidal ideation.

At any rate, the “treatment” is clearly not rehabilitative, but punitive. General and specific deterrence are at work here, as well as incapacitation.

Similarly, from prisons to mental hospitals, disgusting and punitive “interventions” are used to prevent suicide. This is “mental health treatment” only in the most crudely and obsoletely behavioralist sense. Humiliating heavy dresses/smocks, presumably worn without underwear, are placed on male and female prisoners (of hospitals and prisons) to prevent them from committing suicide.[2] Again, general and specific deterrence are operative, as well as incapacitation. The smock is awful and undesirable, in addition to preventing one from enacting one’s suicidal wishes.

If suicide is a symptom of a mental illness, though, wouldn’t the distress be treated – not the action? People with trichotillomania do not have their hands forcibly restrained from touching their heads. Rather, the distressing compulsion to pull one’s hair is treated – and that only if it distresses the patient in the first place. In the case of suicide, however, the distress of everyone except that of the suicidal person is considered. If suicidal ideation does not cause one marked distress, why is it a mental illness?

The truth is that, despite the ostensible decriminalization of suicide, modern society still encounters suicide under a criminal model. The extreme position of Justice Scalia is, unfortunately, the one tacitly held by our government in general:

“At common law in England, a suicide – defined as one who “deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death,” 4 W. Blackstone, Commentaries *189 – was criminally liable. Ibid. Although the States abolished the penalties imposed by the common law (i.e., forfeiture and ignominious burial), they did so to spare the innocent family, and not to legitimize the act.” Cruzan v. Director, MDH, 497 U.S. 261 (1990).

Thanks Rob Sica.


1. I realize it may be necessary to distinguish civil injunctions, and civil contempt actions, here. Civil injunctions are ordered only in the case of irreparable harm to others. And, to be punished – by fine or jail – a contempt action must be proved beyond a reasonable doubt. Neither of these criteria are in place in the case of suicide. And, just to be clear, civil injunctions are by far an exceptional case. Money damages are by far the preferred remedy, when they are at all applicable.

2. Gawker says, “It’s weird these models don’t get more work! They are really selling the look. ‘Show me ‘I sure wish I could kill myself but this smock is impossible to rip into strangle-friendly strips’! Perfect.'”

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Written by Sister Y

May 16, 2009 at 3:57 am

2 Responses

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  1. If you are detained in a mental-hospital (against your will) you should clearly and repeatedly stress you do not wish to be there and that you protest this wrongful and illegal incarceration. I’m not a law-student but I think in this case you could insist on your right of habeas corpus since only those who are suspects in a criminal investigation or are sentenced by the court can be legally locked up and confined. If you are detained and thus deprived of exercising your free will (provided you do not harm or endanger anyone in the process) you must be made aware of the crime you are accused of and you have the right to an attorney. The habeas corpus-act (literally ‘you have the body’) ensures this right: if you are detained you have the right to know what you are accused of and you are entitled to see a judge who’ll revoke or affirm the arrest. Since suicide or attempting to commit suicide is not a crime you simply cannot be detained for it, any judge will have to agree with this and since no-one is above the law it follows doctors do not have any special privileges or prerogatives in this respect. The Constitution of the United States of America garantees and dictates this and to the best of my knowledge the constitution is the supreme law and above any other type of legislation (including laws governing medical practices and so called suicide intervention).

    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (section 9)

    Moreover, forced suicide intervention would seem to violate at least two amendments to the Bill of Rights:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (4th Amendment)

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (1th amendment)

    Since freedom of speech covers even the most outrages things like saying you see the ghosts of dead people or hear voices or what not you cannot possibly be punished for saying just that. Announcing you want or intend to commit suicide falls under freedom of speech (for which you are not to be punished) and getting punished for it (by involuntary incarceration) is a clear and direct violation of the law.

    In any case you should ask those who detain you on what grounds they think they can do so and remind them (over and over if you must) that if they think you committed a crime you have the right to stand trial, if they do not have any evidence and do not follow proper procedure they have no legal grounds whatsoever to detain you and that they’re breaking the law and thus are liable to lawsuits and paying damages. This right to stand trial is embodied in the fifth amendment:

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

    Respectfully yours,

    Zara

    Anonymous

    August 23, 2009 at 5:10 pm


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