From Coercion to Contract: Reframing the Debate on Mandated Community Treatment for People with Mental Disorders Author(s):

Richard J. Bonnie and John Monahan Source: Law and Human Behavior, Vol. 29, No. 4 (Aug., 2005), pp. 485-503 Published by: Springer Stable URL: http://www.jstor.org/stable/4499434 . Accessed: 08/06/2011 21:25
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DOI: 10.1007/s10979-005-5522-9

Law and Human Behavior, Vol. 29, No. 4, August 2005 (? 2005)

From Coercion to Contract:Reframingthe Debate on MandatedCommunityTreatmentfor People with Mental Disorders

RichardJ. Bonnie1and John Monahan1,2

Approximately half the people receiving treatmentin the public sector for mental disorder have experienced some form of "leverage"in which deprivations such as jail or hospitalization have been avoided, or rewards such as money or housing have been obtained, contingent on treatmentadherence. We argue in this essay that framing the legal debate on mandated community treatmentprimarily in terms of "coercion" has become counterproductive and that the debate should be re-framed in terms of "contract."Language derivedfrom the law of contract often yields a more accurate account of the current state of the law governing mandated community treatment, is more likely to be translated into a useful descriptive vocabulary for empirical research, and is more likely to clarify the policy issues at stake than the currently stalemated form of argumentation based on putative rights. Our hope is that adopting the language of contract may help to identify those types and features of mandated community treatment that are genuinely problematic, rather than perpetuating the unhelpful and misleading assumption that all types of leverage amount to "coercion."
treatment. KEY WORDS: coercion; mandated contract; community

Mandating adherence to community-based mental health treatment is one of the most contested human rights issues in mental health law in the United States at the beginning of the 21st century. While 42 American jurisdictions have statutes nominally authorizing outpatient commitment-a legal order to adhere to prescribed community treatment-until recently few states made substantial use of these laws. With the enactment of outpatient commitment statutes in New York State3 in 1999, in California4 in 2002, and in Florida5 and Michigan6 in 2004,
1Universityof VirginiaSchoolof Law,Charlottesville, Virginia. 2Towhomcorrespondence shouldbe addressed University VirginiaSchoolof Law,Charlottesville, at of e-mail: Virginia; jmonahan@virginia.edu. 3N.Y.MentalHygieneLaw ?9.60(C). 4A.B. 1421(2002). 5S.B.700 (2004). 6PublicAct 496 of 2004. 485
0147-7307/05/0800-0485/1 ? 2005American Psychology-Law Society/Division 41 of the American Psychological Association

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scholarlyinterestin the topic has increased(see Petrila,Ridgely, & Borum, 2003; Swartz& Monahan,2001).We are amongthose who have suggestedthat outpatient commitment best seen not as a free-standing is legal phenomenon,but ratheras one or of several forms of "leverage"by which negative events, such as incarceration can be avoided,or positive events, such as placementin subsidized hospitalization housing or the receipt of disabilitybenefits, can be experienced, contingent on whether a person adheres to treatmentin the community(Monahanet al., 2001; Monahan,Swartz,& Bonnie, 2003;Petrila& Monahan,2003). An integratedapproachto mandatedtreatmentin the communityhas several empiricalquestions, such as whether patients feel that advantages.Cross-cutting justice,"Lidz they have been treated fairly (and have been accorded"procedural et al., 1995) can be identifiedand commonproblems,such as cost-shifting(Sinaiko & McGuire, 2005), can be isolated. However, such an integrated approachalso has disadvantages-it elides importantdifferences among the various forms of mandatedcommunitytreatment,and could obscurevaluablelines of empiricaland ethicalinquiry. The first study to obtain systematicinformationon how often given forms of leverageare imposedon people withmentaldisorderin an attemptto improvetheir adherenceto treatmentin the communityhas recently been published(Monahan half et al., 2005).Broadlyspeaking,approximately of the public-sector patientssurveyed at five sites across the United States had experiencedat least one form of leverageat some point in theirtreatmenthistory.Given that mandatedtreatmentis now ubiquitousin servingtraditional public-sector patients,the time maybe rightto treatment revisitthe languagein whichthe policydebateover mandatedcommunity has been framed. In brief, we argue in this essay that framing the debate primarilyin the vocabulary of "coercion" has become counterproductiveand that re-framing it in the language of "contract"may allow for fresh insights and invigorated discussion.We hasten to add, however, that using the lens of contract does not assumethat therapeuticleverage is never properlyunderstoodas coercive;indeed the vocabularyof contractencompassesthe idea that a contractexecuted under duress has been coerced and is therefore voidable (Scott & Kraus, 2003). Our hope is that adoptingthe languageof contractmay help us to identify those types and features of mandatedcommunitytreatment that are genuinely problematic, rather than perpetuatingthe unhelpful and misleadingassumptionthat all types of leverage amount to "coercion"(Dennis& Monahan, 1996; Monahan et al., 1999). We will first sketch the essence of our view that mandatedcommunitytreatof ment is usefullyanalyzedwithina paradigm contract,and then applythe vocabularyof contractto each formof leveragesubsumedunderthe umbrellaof mandated
community treatment. CONTRACTS The essence of contract is bargaining (see for example Chirelstein, 2001). One party makes an offer to another: I will promise to do X if you promise to do Y.

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The second party accepts the offer, or rejects the offer, or makes a counter-offer, in which case the bargaining continues. At the successful conclusion of the bargaining, there has been a "manifestation of mutual assent" between the two parties to the conditions of an agreement. If the party making a promise receives something of value in exchange for making the promise-a "consideration"-a contract has been formed and will be enforced by the courts. If one party later commits a material breach of the contract, i.e., does not, in fact, perform as promised, the other party will be discharged from its own obligation to perform. According to Scott and Stuntz (1991, 1992), "[t]he normative claim that supports enforcing bargains is that voluntary exchange offers people more choices than they would otherwise enjoy and, other things being equal, more choice is better than less." This is especially true for individuals whose choices are limited to begin with:
effectsof the contract The normof expandedchoiceis solely concernedwiththe marginal choicesmaylive in a coercive on an individual's choices.A personwithfew andunpalatable is environment. offer that exploitsthose circumstances neverthelessvalue enhancing, An andenforcement appropriate. is Morechoicesarebetter,even-perhaps especially-if one has few to beginwith.(Id. at 1920)

By employing the contract paradigm, we aim to refocus attention on the possibility of expanded choice, as compared with an emphasis on constricted choice-the distinguishing feature of the coerced treatment paradigm within which the issue of mandated treatment has customarily been framed. Our central claim is that many forms of mandated treatment now being used expand choice-i.e., they give the person more choices than they otherwise would have had, albeit within a severely constricted range. In the clearest case, for example, a person otherwise likely to be sentenced to a term of incarceration for a criminal offense is given an additional option through a plea agreement involving probation conditioned on treatment compliance. Using a plea agreement to illustrate the idea of expanded "choice" may strike some people as counter-intuitive-after all, the defendant has very little bargaining power when he or she succumbs to the prosecution's "offer" of a more lenient punishment than otherwise would have been sought and imposed. It seems like the prosecution has all the cards and defendants (especially those with mental disorders) have none. How can we use the language of contract in such an overwhelmingly coercive environment? The answer is that the defendant does have a choice-he or she has the option of going to trial (putting the state to the time, trouble and cost of trying to proving his guilt) and refusing to assist the state in investigating and prosecuting other people. These prerogatives are of genuine value in the criminal justice system as it is now designed, and provide meaningful consideration for the state's concessions on charges and sentence. This is not to defend the practice of plea bargaining, but only to demonstrate that it depends on negotiation and choice (Maynard, 1984), however disparate the power of the parties may be. As long as the defendant has been fairly charged, the risks of going to trial have not been unfairly magnified, and the conditions themselves are otherwise permissible,' the plea
7Some rightsmay not be waived by a plea agreement,such as the rightto invalidatethe plea due to of ineffectiveassistance counsel.Thisexceptiontracksthe idea in contractlaw that unequalbargaining

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and agreementis voluntaryin a legal sense (i.e., has not been "coerced"), thatis the the SupremeCourthas characterized it.8 way in Another advantageof using the contractparadigm the context of mandated treatmentis that it calls attentionto the processof negotiationthat typcommunity between the consumerand the leveragingparty,and icallyleads to an "agreement" that also continuesthereafterduringthe treatmentprocess.In this respect,the relationshipbetween the parties (includingperhapsthe service provider)resembles a relationalcontract(see generallyGoetz & Scott, 1981) under which the parties and depend on the continuationof the relationship, are preparedto modifyspecific terms in a way that best promotesthe long-termstabilityof the relationshipin the face of changingcircumstances. Empiricallyspeaking,the quality of the relationship between the "contracting parties"is a key variable,as is the dynamicprocess of negotiationduringthe periodof treatment. As will be discussedfurtherbelow, not all forms of mandatedtreatmentare sensibly understoodas being based on a valid agreementwhich expandschoices. Some, like preventativeoutpatientcommitment,are undeniablycoercive (although they may nonetheless be justified). Others, such as linking treatmentwith social welfarebenefits,are more ambiguous.The challengein these contexts is to decide whetherthe possibilityof treatment-contingent housingor welfarebenefitsexpands the person'schoices or constrictsthem. When the patient accepts the housing auhousing,has he or she entered into a valid, volthority'soffer of treatment-linked untary agreement?Or is the agreementinvalid because the tenant's consent was needed houscoerced (i.e., producedunderduress)because denyingor terminating ing would be wrongful?In these cases, the languageof contractincorporatesthe idea of coercion;it does not displaceit. Alan Wertheimer (1987) has stated that "the ability to obligate oneself by creating a binding contract is an important aspect of our freedom" (p. 19). "Voluntariness-and, in particular,the absence of coercion," he stated, is "a necessaryconditionof obligationsgroundedin agreement"(p. 21). How is one to determinewhich contractualdecisionsare voluntaryand which are the productof issue as follows: coercion?He formulatesthe underlying
The standard view of coerciveproposalsis that threatscoerce but offers do not. And the when B will be cruxof the distinction betweenthreatsand offersis that A makesa threat worseoff than in some relevantbaselinepositionif B does not acceptA's proposal,but that A makesan offerwhenB will be no worseoff thanin some relevantbaselineposition whatcountsas if B does not acceptA's proposal.On thisview..,.the key to understanding a coerciveproposalis to properly B's baseline. fix power may lead to an agreementincluding"unconscionable" provisionsthat shouldnot be enforced. See RobertScott andJodyKraus,Contract Law andTheory553-69 (Rev 3d Ed, 2003).In the present to in context,an agreement submitto "psychosurgery" orderto avoidan otherwisevalidprisontermor to gain accessto subsidized housingcouldbe regardedas void on publicpolicyor "unconscionability" v. (Cir. Ct. of WayneCo., grounds.See Kaimowitz Departmentof MentalHealth,No. 73-19434-AW Mich,July10, 1973). 8See Bradyv. United States,397 U.S. 742 (1970) ("We decline to hold, however,that a guilty plea is compelledand invalidunderthe Fifth Amendmentwhenevermotivatedby the defendant'sdesire to of accept the certaintyor probability a lesser penaltyratherthan face a wider range of possibilities to by extendingfromacquittal convictionanda higherpenaltyauthorized law for the crimecharged.")

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We will apply Wertheimer'sapproachto each of the four contexts in which leverageis being used-criminal justice,disabilitybenefits,subsidizedhousing,and outpatient commitment.Our goal here is to identify the individual's"legal baseline,"in orderto determinewhetherthe languageof contractyields an appropriate of characterization mandatedcommunitytreatment. We are awarethat takingthe individual's "legalbaseline"as the point of reference is not unproblematic. One could also take the individual's "moral" baselineas central:regardlessof what forms of leverage currentlaw allows or prohibits,what formsof leveragecan legitimately imposedon an individualwithmentaldisorder be to raise the likelihood that he or she will adhere to treatmentin the community? Here, legal argumentsare exchangedfor moral ones. If one holds the moralview thatincarceration shouldbe reservedonly for the most seriousviolent offenses,that all citizens should be entitled to housing and should receive a minimalincome to should be abolspend as they choose, or that involuntary inpatienthospitalization ished because it offends individualliberty,then one would see virtuallyall forms of leveragecurrently being used to obtaintreatmentadherenceas coercivethreats, since the individual wouldbe beingmadeworse off thanin his or her moralbaseline by refusingtreatment.We have no desireto stifle debateon the profoundquestions of social justice bearingon the legitimacyof mandatedtreatmentfor personswith mentalillness.Recognizing,however,thatpeople's views aboutmoralbaselinesdiffer sharply,we have chosen in this essay the more manageabletask of addressing legal baselines.9 We are also assuming,for present purposes,that the individualswhose treatment is being leveragedby "agreement" competentto enter into such arrangeare ments. The specificationof criteriafor informedchoice under these circumstances poses interesting questionson its own terms,but thatchallengelies outsidethe scope of this paper.10
LEVERAGE: AVOIDANCE OF JAIL

According to the recent five-site survey of the prevalence of mandated communitytreatment,between 15 and 30% of all people receivingtreatmentfor
"objective" legal baseline.We have not addressed 9Inaddition,we addressin this Essaythe individual's the individual's "subjective" legal baseline,the beliefsthat the individual mayhave as to his or her entitlements.Regardlessof whatthe law says,people who believe that disability checksare "mymoney" or that subsidizedhousingis "myapartment" likely to experiencewhat we are calling"perceived are coercion"to a much greaterextent than people who believe that the governmentis giving them a deal. Would using the languageof contracthave a differenteffect on perceivedcoercionthan using the languageof rights?We see this as an empiricalquestion,and an interestingone (see, for example, Poythress,Petrila,McGaha,and Boothroyd,2002;Elbogen,Swanson,and Swartz,2003a;Swartz, and Wagner,Swanson, Hiday,andBurns,2002;Rain,Steadman, Robbins,2003). wouldvarysomewhatfromcontextto context,dependingon 10Itis likelythatthe capacityrequirements the consequencesof non-compliance with the agreement.In the context of a plea agreement,where the non-adherence could lead to incarceration, defendantmust have the capacityto understand the consequencesof pleadingguilty and the abilityto make a rationalchoice;by contrast,the capacity underclinically wouldbe neededto agreeto the termsof a housingagreement emergentcircumstances 494 fairlyminimal.CompareGodinezv. Moran,509 U.S. 389 (1993)with Zinermonv.Burch, U.S. 113

(1990).

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serious mental disorderin the public sector-and up to half of all of the people who have been arrested or convicted of a crime-have experienced therapeutic leverage in the criminaljustice system (Monahanet al., 2005). This can happen in a varietyof circumstances. generalcriminalcourtcan make treatmentadherence A a conditionof suspendedprosecution,or a condition of suspendedsentencing,or a condition of probation (Skeem, Encandela,& Louden, 2003; Skeem & Petrila, Health Justice/Mental 2004). As the Councilof State Government's2002 Criminal ConsensusProject(Council of State Governments,2002) stated, "Typically, when a judge sentences an offender [with a mental disorder]to probation, the order may read that the offender is to participatein treatment,whether drug, alcohol, or mental health" (p. 120; emphasis added). Alternatively,the charges against a mentally disordereddefendant can be disposed of by a specialist mental health court (Boothroyd, Poythress, McGaha, & Petrila, 2003; Griffin, Steadman, & Petrila, 2002; Steadman,Davidson, & Brown, 2000). Mental health courts differ from one anotheron at least four dimensions: type of chargesaccepted(felony the or misdemeanor),the type of adjudication model employed (pre or post-plea),the type of sanctionsused (jail or no-jail),and the type of supervisionimposed (mental health or criminaljustice personnel) (Redlich, Steadman,Monahan,Petrila, and Griffin,in press;Steadman,Redlich,Griffin,Petrila,and Monahan,2005). As an empiricalmatter, these distinctionsbetween generalist and specialist courts,or among differenttypes of specialistcourts,may be of crucialsignificance in determiningwhether using the possibility of conviction and incarcerationas in leverageto obtaintreatmentadherence"works" the sense of actuallyincreasing adherence and producing desired outcomes for the defendant and for society (e.g., better functioning,reducedrecidivism,cost-savings).Conceptuallyspeaking, however,we see no meaningfuldistinctionamongany of these operationalmodels. In all the varietiesof the generalistand specialistcourts,the options faced by the the defendantare functionally same:adhereto treatmentin the communityor have the case processed in the usual fashion (which in practice may well mean being convictedand going to jail). At this point, it is importantto distinguish between two types of arrangements in whichcriminal justicedispositionsare linkedto treatment.In one category,which we will call "no agreement" cases, the offenderplays no role in the decisionto link dispositionand treatment,and the offender may actuallyobject to treatmentparticipation.The typicalexampleis a probationorderin whichthe court,withoutany of participation the offenderor defensecounsel,specifiesmentalhealthor substance abusetreatment(possiblyincludingmedicationadherence)in the list of conditions. Similarly,a parole authoritymay release a prisoner on parole on various conditions,includingmentalhealthor substanceabuse treatment,withoutany discussion with the prisoner.It is well establishedthat requiringmental health counselingis a reasonableconditionof probation.11 Whethermedicationadherencecan be ordered
11For example,Title 18 of the United StatesCode, ?3563,states"Thecourtmayprovide,as furtherconditionsof a sentenceof probation... that the defendant.., undergoavailablemedical,psychiatric, or treatment." United States v Stine (675 F.2d 69, 72-73 (3d Cir, 1982) ("The courts See psychological fromwhichother personsare free, if the limitations realimitations are may imposeon a probationer and sonablyrelatedto rehabilitation publicsafety,the ends of probation... We need not and do not

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(especiallyover the defendant'sobjection)is a complicatedquestion,dependingon the precisetermsof the sentencingand parolestatutes,on the natureof the offense and its connection to the defendant'smental disorder,and still-evolvingconstitutional principlesrelatingto the rightto refuse treatment.12 The second category of cases, which involve what we will call "leveraged agreement," are the ones that interest us here. In these cases, the treatment conditionsare specifiedin an agreementreached between the defendantand the prosecutor(or, in some specializedcourts,between the defendantand the judge) or, in the parole context, between the prisonerand the parole board.We will use plea agreementsfor conditionalprobationas the prototypicalexample, and will focus particularlyon probation orders that prescribemedication adherence as a conditionof probation.The key questionin these bargaineddispositionsis whether the prosecutor'sproposalis best construedas a "threat"to put the defendantin jail if he or she fails to adhere to treatmentin the community,or as an "offer" of treatmentin lieu of jail. According to Wertheimer,the prosecutor'sproposal if would be a "threat" the defendantwould be worse off than in his or her baseline if the defendant does not accept the proposal, whereas it would be an position "offer"(expandingchoice) if the defendantwould be no worse off than in his or her baselinepositionif the proposalis not accepted. The Legal Baseline Which of these characterizations most accurate depends on the court's is authorityin the absence of the defendant'sagreement.In the ordinarycontext of a criminaloffense, the judge is entitled to impose up to the maximumsentence
hold that a psychological counseling requirement can never be an infringement of a constitutional right of privacy. We hold only that when psychological counseling is reasonably related to the purposes of probation, its imposition is not unconstitutional."); United States v. Wilson, 154 F. 3d 658, 667 (7th Cir. 1998) (Condition requiring defendant to participate in mental health treatment and take any prescribed medications "was based on individualized assessment of defendant's past and present behavior and was not an abuse of discretion.") United States v Cooper (171 F.3d 582,587 (8th Cir 1999)("We have little difficulty upholding the.., .special condition [of probation] imposed by the district court [that he] undergo mental health counseling and treatment. This contention is without merit. His recent history of major depression, refusal to take anti-depressant medications, and conduct dangerous to himself and others clearly justifies this limited special condition.") See also United States v. Parrott, 992 F. 2d 914 (1992) and United States v. Allen, 312 F. 3d 512 (1st Cir, 2002). The 2003 edition of Federal Sentencing Law and Practice recommends "Mental Health Program Participation" as a special condition of supervised release: "If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment-a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office" (?5D1.3(d)). 12Itis clear that offenders on probation or parole have a "qualified liberty interest" in refusing unwanted anti-psychotic medication, see Felce v. Fiedler, 974 F. 2d 1484 (7th Cir. 1992). However, the conditions under which this interest can be subordinated are unclear; the analysis in Felce preceded the Supreme Court's most recent decision on the right to refuse anti-psychotic medication, Sell v. United States, 539 U.S. 166 (2003). In United States v Williams, (9th Cir, 2004), the Ninth Circuit ruled that __FJ3d_ an order directing the defendant "to take such psychotropic drugs and other medications prescribed for him by physicians treating his mental illness" was invalid in the absence of "medically grounded findings that the court-ordered medication is necessary to accomplish one or more [statutory sentencing factors]..." and "an explicit finding.., that the condition 'involves no greater deprivation of liberty than is reasonably necessary.' "

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specified in the criminalcode (or in the applicablesentencingguideline) for the crimeof whichhe or she has been convicted(or will in all likelihoodbe convicted,in were not an availablesentencing the case of pre-pleadisposition).If imprisonment underthe applicablestatute or guideline,the probationorder'smedication option requirementwould be properly regarded as involuntary(and the "agreement" to accept it would be properlyregardedas "coerced").(As indicatedearlier, the court might nonethelesshave the authorityto impose the treatmentcondition,but were an it would indisputably regardedas coerced.) However, if incarceration be available sentencing option, as it is in the usual case, probation conditioned on medicationcomplianceis properlyregardedas an "offer,"and the agreement is valid. The agreement'svalidity is clear if the court would have had authorityto treatmentas a condition of probationin the absence of impose pharmacological an agreement (i.e., over the defendant'sobjection), but we think the agreement is valid even if the court would not otherwise have had the authorityto require treatmentbecausethe agreementstill representsa choice by the defendantbetween jail and leveragedtreatmentin the community-a hardchoice, perhaps,but not an unconscionable one. Othersmay disagree.13 Two concernsabout the manipulation the defendant'sbaselinecould invaliof date the arrangement, however.First,selectivearrestor prosecutioncould create an couldoccurin a systematicfashion unfaircontextfor bargaining. Suchmanipulation if the police were more likely to arrest,the prosecutormore likely to charge (or to chargefor a more serious offense), or the judge more likely to sentence to jail (or to sentenceto jail for a longerperiod),defendantswith mentaldisorderthan defendantswithouta mentaldisorder,in orderto channeldefendantswith mental disorder into treatment.These practicesare universallydecried.The Bazelon Center's report on Mental Health Courts (January2003), for example,states that "All are concernedaboutthe potentialof mentalhealthcourtsto encouragearrestas a strategy for accessingmentalhealthservicesthat are not otherwiseavailable"(p. 1) and that "The durationof the court'ssupervisionof treatment..,.should never exceed the typical sentence and probationary period for the underlyingcriminalcharge" Likewise,the Councilof State Government'sConsensusProjectnotes that (p. 15). "It is particularly important... that mental illness itself not be used as a reason to detain a defendantin a case where a defendantwith no mentalillnessfacingsimilar chargesand with a similarcriminalrecordwould likely be released"(p. 13). Arrestingdefendantswith mental disorderwithout lawfuljustification(or under circumstances which otherwisewould not ordinarilytriggeran arrest)for the purpose of drawing them into treatment,or over-chargingsuch defendants (as comparedwith normal practice) to elevate the available sentence and make the
13Thedistinctiondrawnin the text between "no agreement" cases in which the treatmentis imposed cases in which the treatmentis mandatedpursuant without agreementand "leveragedagreement" medication. to a valid agreement,is reflectedin two cases requiringparoleesto take anti-psychotic CompareFelce v. Fiedler,974 F. 2d 1484 (7th Cir, 1992) (state could not requiremonthlyinjections of prolixinby prisonerwho was entitled to release on parole after serving6 1/2 years of sentence with Closs v. Weber,238 F. 3d 1018 (8th Cir, withoutsatisfyingdue processcriteriaand procedures) revokeparolefor prisonerwho had agreedto termsof discretionary 2001)(statecouldconstitutionally treatment condition). parole,including

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treatment option seem more attractive,unfairlymanipulatesthe legal baseline; to these practiceswould makes the defendant's"agreement" adhere to treatment conditionsillusory,renderingthe eventual"offer"a coerciveone.14The solutionto this problemis to trainthe police, prosecutors,andjudges so as to avoid the selecselectiveprosecution-of defendantswith tive prosecution-even the well-meaning mentaldisorder.15 is The relatedfactorthatcould invalidatean "offer"of treatment-in-lieu-of-jail the defendant'sbeing uninformed-or even deceived-regarding the terms of the bargained-for agreement.The possiblesentencebeing used as leveragemighthave been artificially manipulatedso as to make the offer of treatmentappearmore atthe tractive.Even if the defendanthas not been selectivelyarrestedor overcharged, defendantmay be underthe misimpression that, if the judge'soffer of treatmentis refused,the likelihoodof his or her being sentencedto jail for the crimechargedis higherthan it actuallyis (or that the length of time to be spent in jail is longer than with mental disordermightbe charged it actuallyis). For example,a first-offender with a crime for which the statutorysentence is one to four years, but for which first-offenders routinelyplaced on probation.If the prosecutorwere to "highare ball" the sentence, such as by saying or implyingthat the defendantwas facing a
significant jail term-for the purpose of inducing the defendant to accept the "offer"

of treatment-this wouldnegate the conditionsof voluntariness. In the usual commercialcontractualnegotiations,of course, the parties are representedby counsel, one of whose primaryroles is to inform his or her client of the actual risks involved in reachingor failing to reach an agreement.Defendants who are made an offer of treatment-or-jail also representedby counsel. are But they may be mis-representedby counsel who, believing that receivingtreatment is in their clients' best interests,either mislead their clients or fail to correct their erroneousimpressionsregardingthe likely outcome at sentencing.The problem of paternalisticbehavior by lawyerswho fail to provide "zealous advocacy" on behalf of mentally disorderedclients has vexed the area of civil commitment (i.e., mandatedhospital treatment)for decades (Poythress,1978) and can be expected to affect mandatedcommunitytreatment.Research on adjudicativecompetence has describedsimilartendencies in the representationof mentally disordered defendants (Bonnie, Poythress,Hoge, Monahan,& Eisenberg, 1996). The challenge is to train criminaldefense lawyersnot to allow themselvesto become instrumentsof covert coercive practices in cases involving mentally disordered clients.

to 14This exampleshowsagainthatwe areusingthe term"coercion" referto a normative concept,not an the empiricalone, in this paper.In these cases involvingselectivearrestand prosecution, plea agreements eventuallyreacheddo not "feel"any less voluntarythan they would have in the absence of selectivearrestor prosecution. They are nonethelessinvalidbecausethe baseline(no arrestor prosecution)was unfairly manipulated. 15A promisingliteratureon trainingpolice, prosecutors,and judges in dealing with mentallyill defendantshas emergedin the past decade. Bibliographies availablefrom the GAINS Center,at are This in http://www.gainsctr.com. literatureis usefullysummarized the excellentreportof the Council of State Governments, Criminal Justice/Mental Health Consensus Project (2002), available at

www.consensusproject.org.

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LEVERAGE:MONEY
People with mental disorder sometimes receive disability benefits in the form of cash payments (e.g., SSI or SSDI). If the disorder is of such a nature that it impairs the person's ability to manage his or her money, the Social Security Administration (SSA) can appoint a representative payee to receive the disability checks. Representative payees can assure that the beneficiary's essential needs are met by directly paying for rent and food. Any funds remaining after these essential needs are covered can be disbursed by the payee to the beneficiary in the form of "spending money," to be used at the beneficiary's discretion (Cogswell, 1996). Some representative payees or informal "money handlers"-often family members of the person with a mental disorder-may make the disbursement of discretionary funds contingent upon the beneficiary's adherence to treatment in the community or avoidance of substance abuse, or both (Elbogen, Soriano, van Dorn, Swartz, & Swanson, 2005; Elbogen, Swanson, & Swartz, 2003b; Elbogen, Swanson, Swartz, & Wagner, 2003). Moreover, patients who fail to adhere to treatment may be told that they will lose their access to funds altogether. For example, the brochure on "Recipient Responsibilities" for representative payee services used by one state agency16states:
You are receiving benefits based on the mental health and physical problems that you have. SSA requires that you be involved in mental health services and work with your program so that you will feel better. If you use your money for alcohol or drugs, you may lose your benefit.

According to the recent five-site survey of the prevalence of mandated community treatment, between 7 and 19% of all people receiving treatment for serious mental disorder in the public sector-and up to one-third of all people who have a representative payee or an informal "money handler"-have experienced money being used as leverage to keep them in treatment (Monahan et al., 2005). We do not know what proportion of these arrangements are based on "agreements" between the recipient and the representative payee, and what proportion are simply conditions laid down by the payee. Either way, however, whether or not the arrangement is "coercive" depends on the baseline condition. In Wertheimer's terms: the representative payee or money handler would be making a "threat" when the beneficiary will be worse off than in his or her baseline position if the beneficiary does not adhere to treatment whereas the payees would be making an "offer" when the beneficiary will be no worse off than in his or her baseline position if the beneficiary does not accept the payee's proposal.

The Legal Baseline

Is the beneficiary with a mental disorder who meets eligibility criteria entitled to the benefits (typically SSI) and also to personally receive whatever funds are remaining after his or her essential needs have been attended to by a duly appointed representative payee, regardless of whether he or she adheres to treatment? If so, the beneficiary's relevant baseline is "it's my money," and the payee is issuing a
16Document on file with authors.

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coercivethreatby sayingthe moneywill be withheldif the recipientis non-adherent, since the beneficiarywill be made worse off (i.e., have no spendingmoney, or no money period) if he or she rejectsthe payee's money-for-treatment proposition. Or is the beneficiarywith a mental disorderentitled to the benefits,and also to personallyreceive discretionary funds, only in the payee's discretion?Does the have the discretionto withholdmoney if it is being spent on alcoholor other payee conditions"designedto protectthe welfare drugsor to lay down other "reasonable of the beneficiary?If so, the beneficiary's relevant baseline is "no money at all," or "moneyonly undercertainconditions." Dependingon the natureof the payee's and the scope of her discretion,the payee'sproposalmay be properlyunauthority will derstoodas a non-coerciveoffer,since the beneficiary be no worseoff thanin his or her baselinepositionif the beneficiary the payee's proposal.In this view, rejects the beneficiaryis being made a contractual propositionby the payee: if you accept
treatmentin the community, you will be given the remainder of your disability benefits to use at your discretion; if you do not accept treatmentin the community, the remainder of your disability benefits will be withheld until such time as you accept treatment.

we Which is the correctview of currentlaw? Surprisingly, have been unable or cases addressing legalityof a the to locate any statutoryor regulatory provisions the disbursement fundscontingentupon the benof representative payee's making eficiary'sadherenceto treatmentin the community.The 1996Reportof the Representative Payment Advisory Committee makes no mention of this issue. Neither does the SSA's 1999 Representative Payee Program Guide for Organizational Representative Payees. Nor does the 2001 Guide for Representative Payees currently avail-

able on the SSA website.17 The statute authorizingthe representativepayee proU.S.C. ?405[j],2001) states, without elaboration,that the benefitsshould gram (42 "servethe interestsof the individual" and be "in the best interestsof the individual." Neither the statute nor any of the official SSA publicationsspecificallypermits, or specifically prohibits,a representative payee's withholdingdisabilityfunds as leverageto assureadherenceto treatmentin the community. Althoughthe Social has SecurityAdministration stated that refusingtreatmentthat is clearlyexpected to restoreworkingcapacitymay sometimesbe groundsfor terminating it benefits,18 has not clarifiedthe scope of the representative payee's authority. The beneficiary's Underthis legal baseline,therefore,is profoundly ambiguous. until Congressor the courtsresolve the issue-a prospectthat does circumstance, not appearto be on the horizon-it is an open questionwhetherthe representative
17http://www.ssa.gov/pubs/10076.html. 18Itis clear that a personreceivingbenefitsin relationto a disabilitybased on drugaddictionor alcoholismis requiredto participate substanceabusetreatmentas a conditionof receivingbenefitsand in for The ruleswithrespectto personsreceiving maybe terminated failureto do so. See 20 CFR416.214. benefitsbased on other mentaldisordersare more complicated. The Social SecurityAdministration has explicitlystatedthat treatmentrefusalby a personwith severe mentalimpairment not grounds is for terminating benefitsif the beneficiary "clearly the of is unableto understand consequences failing to follow prescribed treatment." SSA Policy SectionDI 23010.005. follows,however,that benefits It for if may be terminated treatmentrefusalby personswith severe mentalimpairment the beneficiary is able to understand consequences refusaland the prescribed the of treatment"isclearlyexpectedto restore" capacityto work.Id. See also Brownv. Bowen,845F.2d1211(3d Cir,1988)(manwithmental in retardation epilepsyrequired adhereto treatment orderto receivebenefits). and to

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payee has the legal authorityto use money as leverage for treatmentadherence. Note also that this ambiguityleaves us uncertainabout the payee's authorityto impose treatmentconditionswithoutagreement("you will receive money only if you adhereto treatment")or to negotiate an agreementin the recipient'sinterests("if you agree to adhereto treatmentconditionsA and B, I will pay you the money on the followingschedule").In the paradigmof agreement,we are uncertainwhether the latterwould be properlycharacterized a valid offer (i.e., makingfunds availas able thatthe personis not otherwiseentitledto receive,conditionalupon adherence to specifictreatmentconditions)or a coercive threat (i.e., withholdingbenefits to whichthe personis otherwiseentitled,unless treatmentis adheredto). LEVERAGE:HOUSING To reduce homelessness, the government provides a number of housing for optionsin the community people with a mentaldisorderthatit does not provide to other citizens.No one questionsthat housing providerscan impose reasonable requirements-such as not disturbingneighbors-on their tenants. The issue is whether the housing provider can impose an additionalrequirementon tenants with mentaldisorder: that they adhereto treatmentin the community(Allen, 1996; Korman,Engster, & Milstein, 1996). Considerthe statement in the 2003 Patient Handbookof the Associationfor RehabilitativeHousingin New York City:19
The Association's is to philosophy thatin orderto treatyourmentalillness,it is important be in psychiatric ... treatment In fact,to be a clientat the Associationyou mustbe involved in treatment... Pleasenote thatthe type of program attendis up to you. But wherever you and as you choose to go, you mustsee a psychiatrist take medications they are prescribed.

treatAccordingto the recentsurveyof the prevalenceof mandatedcommunity ment cited earlier,between23 and40%of all people receivingtreatmentfor serious mental disorderin the publicsector have experiencedhousingbeing used as leverage to keep them in treatment(Monahanet al., 2005). Once again,recallWertheimer's formulationof the pivotalquestion:the houswould be makinga "threat" when the tenant will be worse off than in ing provider his or her baselinepositionif the tenantdoes not acceptthe provider's proposal,and the housingproviderwould be makingan "offer"when the tenantwill be no worse off than in his or her baseline position if the tenant does not accept the provider's proposal. The Legal Baseline Is the tenant (or prospectivetenant) with a mentaldisorderentitledto receive subsidizedhousingfor whichhe or she qualifies,regardless treatmentadherence? of
If so, the tenant's relevant baseline is "having adequate shelter," and the provider is issuing a coercive threat, since the tenant will be made worse off (i.e., homeless) if he or she rejects the provider's housing-for-treatment proposition.
19Document file withauthors. on

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Or is the tenantwith a mentaldisorderonly entitledto receivesubsidizedhousing if he or she agrees to adhere to treatmentin the community?In this case, the tenant'srelevantbaselineis "homeless," the provideris makinga non-coercive and offer, since the tenantwill be no worse off than in his or her baselinepositionif the tenantrejectsthe provider'sproposal.In this view, the tenantor prospectivetenant is being made a contractualpropositionby the housingprovideralong the following lines: if you accept the offer of treatmentin the community, you will be provided with a subsidized apartment; if you reject the offer of treatment in the community, you will not be provided with a subsidized apartment (or will be evicted from such an apartment if you have already been provided with one).

The accuratebut less-than-satisfactory answer to the legal baseline question is: it depends. Most federal housing programsadregardinghousing-as-leverage ministeredby the Departmentof Housingand UrbanDevelopmentare prohibited 20 by statutefrom makingtenancyconditionalon treatmentadherence. But at least two programs,Shelter + Care21and the SupportiveHousing Program,22 permit such conditions(see Allen, 2003). Considerthe provisionsof the federal Shelter + CareProgram: In addition to standard lease provisions, the occupancy agreement may also.., .require the participantto take part in the supportiveservices [including "mentalhealth and substanceabuse treatment"] providedthroughthe programas a conditionof continuedoccupancy. In "packagedeal"programssuch as Shelter+ Care,the tenant or prospective tenantis not legallyentitledto say "I'lltake the shelterbut not the care."Subsidized housingprogramsadministered state ratherthan federal agenciestake similarly by divergentpositions.23 The currentlegal baseline of tenants with a mental disorderin publiclysubsidized housing, therefore, implies that making treatmenta condition of housing constitutesa coercive threat in some housingprograms,but constitutesa contractual offer in others. In the former case, legal action to enforce existingstatutesis an appropriate course of action:the tenanthas rightsto be vindicated.In the latter case, a contractual approachthatfocuseson negotiationbetweenlandlordsand tenants would appearthe more productivetack.Indeed,it would appearto be the only productivetack:the tenanthas few pertinentrightssubjectto vindication.24 OUTPATIENTCOMMITMENT: UNAMBIGUOUSLYCOERCIVE There are three types of outpatientcommitment(Gerbasi,Bonnie, & Binder, 2000). The first is a variant of conditional release from a hospital: a patient is
of 20See,e.g., U.S. Department Housingand UrbanDevelopment,Notice H-98-12,"Use of Section202 at Projectsto SupportAssistedLivingActivitiesfor FrailElderlyand People with Disabilities," p. 10 of serviceby a residentis totallyvoluntary"). ("Theacceptance any supportive
2124 CFR 582. 2224 CFR 583. 23Id at 512-517. 24However, the tenant is entitled to "reasonable accommodation" under the Americans with Disabilities Act and the Fair Housing Act. See Michael Allen, id at 517.

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discharged on the condition that he or she continues treatment in the community. The second type is an alternative to hospitalization (the less restrictive alternative) for people who meet the legal criteria for involuntary inpatient treatment. The third type of outpatient commitment is a form of early intervention for people who do not currently meet the legal criteria for involuntary inpatient hospitalization but who are believed to be at risk of decompensation to the point that they will qualify for involuntary hospitalization if left untreated are ordered to accept treatment in the community (Steadman et al., 2001; Swanson et al., 2001; Swartz et al., 2001). According to the survey of the prevalence of mandated community treatment, between 12 and 20% of all people receiving treatment for serious mental disorder in the public sector report having been placed on outpatient commitment (Monahan et al., 2005).25 Although all three types of outpatient commitment are inescapably coercive, there are important differences among them. Traditional conditional discharge comes closest to the "leverage" paradigm being explored in this essay. Assuming that the patient met the substantive criteria specified in the inpatient commitment statute at the time of commitment (and is still lawfully hospitalized within the temporal limits on the duration of commitment specified in that statute), it is possible to envision a "negotiation" between patient and staff about the conditions of discharge (Gilboy & Schmidt, 1971), including the non-compliant behaviors that will lead to re-hospitalization. Such patient participation in the discharge planning resembles the "contract" model that we have outlined above, and one might even say that the possibility of a conditional discharge "expands" the patient's choices (beyond remaining in the hospital). However, we would not carry the contract analogy that far: the whole negotiation (if it happens at all) occurs in the context of an involuntary commitment whose coercive force continues until expiration of the commitment order. In the vocabulary of contract, it seems incontrovertible that the patient's agreement to comply with the discharge conditions is extracted under duress. Moreover, a patient who no longer needs to be hospitalized is probably legally entitled to discharge (at least on conditions) even if the statutory commitment period has not elapsed. The same analysis applies to "front-end" outpatient commitment of patients who meet the inpatient criteria. Again, one can envision a "negotiation" under which the patient is "offered" the option of outpatient treatment in lieu of (legally authorized) hospitalization subject to the understanding that non-compliance with specified conditions will lead to "revocation" of outpatient status. As before, one could say that this "offer" expands choice since the "baseline" is involuntary hospitalization. However, we reach the same conclusion we reached above: this negotiation (if it happens at all) occurs in the context of the state's authority to order involuntary treatment. Rather than being seen as optional "alternative" to hospitalization, outpatient commitment is better understood as a less drastic exercise of coercive authority, and any "agreement" by the patient is illusory because it is elicited under duress.
25The question read, "Sometimes people with mental health, alcohol or drug problems are put on 'outpatient commitment' by a judge at a legal hearing. If you are on outpatient commitment, the judge orders you to receive treatment in the community, whether you want it or not. Are you now on outpatient commitment, or have you ever been on it?"

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The third variantof outpatientcommitmentinvolves no choice at all. In preventive outpatientcommitment,the person does not currentlymeet the statutory criteriafor inpatienthospitalization, ratheris predictedto meet those criteriain but the futureif untreatedin the community.In the uses of leveragediscussedearlier, the individual's options are being expanded-from one option (jail) to two options or treatmentin the community),for example. In preventiveoutpatientcom(jail before, the indimitment,however,the individual'soptions are being constrained: vidual had two options (adhere to treatmentor do not adhereto treatmentin the community);now, the individualhas only one option (adhere to treatmentin the for is The individual not being "offered" anythingin consideration adcommunity). in the community.The contractmodel does not applyat all. It heringto treatment is interestingto note, however,that the threatenedconsequenceof non-compliance statutesis typicallyratherweak-e.g., beunderpreventiveoutpatientcommitment ing takeninto custodyfor a few hoursor at most a few days.The coercivethreathas as been softenedby the legislativerefusalto authorizehospitalization a responseto 2003).26 non-compliance (Appelboum, CONCLUSION The policy debate on a given form of mandatedcommunitytreatmentis customarilyframedas a clash between state power and individualautonomyor, more specifically,as an effort to force a person with mental disorderto adhere to treatment by threateningto deprive the person of something to which he or she has a "right"-e.g., physicalliberty,disabilitybenefitsor subsidizedhousing (National assumesthat the state is essenCouncilon Disabilities,2000).This characterization tially compellingthe individualto give up one right (the rightto refuse treatment, see Melton, Petrila,Poythress,& Slobogin, 1997) in order to preservetheir other rights.Invokingthe languageof rightshas producedmanylandmarkachievements in mental health law (Appelbaum,1994), and providesadvocateswith access to a rich trove of analogies derived from more establishedareas of law.27 But as currentlyappliedto the area of mandatedcommunitytreatment,there are two significant problemswith "rightstalk." The firstproblemis legal. As we have discussedin this essay,it is often unclear what "rights"are implicatedby many forms of mandatedcommunitytreatment.
26As the Court of Appeals of New York stated in upholding Kendra's Law, New York's outpatient commitment statute, In re K.L., 806 NE 2d 480 (2004): "The restriction on a patient's freedom effected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient's compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization." 27See the National Council on Disabilities (2000): "Deprivation of human and civil rights cannot be tolerated in a country that was founded on the premise that everyone is created equal. The term "liberty and justice for all" must be underscored and applied for people labeled with psychiatric disabilities. Id at 107."

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In some contexts of mandated treatment, the use of leverage does not violate any right, while in others, the rights claim is untested in the courts. Further, even these asserted but untested "rights" are often statutory rather than constitutional in origin, and can be modified or even eliminated by legislative action, just as many federal entitlements ceased to exist when the Welfare Reform Act of 199628 sought to "end welfare as we know it." And the assertion of a constitutional right against making treatment adherence a condition of avoiding jail or of receiving money or housing has to confront the fact that the doctrine of "unconstitutional conditions," as Kathleen Sullivan, a leading legal scholar on this topic, famously observed, is "a mess" (Sullivan, 1989). The second problem with "rights talk" in this context is political. To characterize the issue in terms of coercion and the deprivation of "rights" is to frame the policy issue in unqualified, give-no-quarter terms. Rights do not readily succumb to political compromise. The language of coerced treatment tends to lead opponents to stand their ground and draw lines in the sand. Much of the currently stalemated debate on mandated community treatment, we believe, can be traced to the framing of the arguments in unyielding rights-discourse terms. Diatribe often replaces debate. As Mary Ann Glendon stated in Rights Talk: The Impoverishment of Political Discourse (1991):
Ourrightstalk,in its absoluteness, heightenssocialconexpectations, promotesunrealistic or flict, and inhibitsdialoguethat mightlead towardconsensus,accommodation, at least the discovery commonground... All of these traitspromotemereassertion of overreasongiving.(p. 14)

We believe that there is a better way to frame the policy debate on mandated community treatment-one that avoids doctrinaire forms of argument as well as transparent euphemisms (e.g., "assisted outpatient treatment").29We think that language derived from the law of contract often yields a more accurate account of the current state of the law governing mandated community treatment, is more likely to be translated into a useful descriptive vocabulary for empirical research, and is more likely to clarify the policy issues at stake than the current ships-in-the night form of argumentation based on putative rights. On the normative side, we have drawn on Alan Wertheimer's valuable analysis of coercion to argue that the vocabulary of contract provides a suitable framework for deciding whether and under what circumstances use of mandated treatment expands choice or constrains it. In our analyses of the legal baselines against which the various forms of leverage are implemented, we have shown, at a minimum, that under certain conditions, several forms of mandated treatment are not properly characterized as coercive and are better understood as the product of negotiation and voluntary agreement-assuming that the baseline contingencies have not been manipulated for the very purpose of eliciting the patient's "agreement." Mandated treatment in the criminal justice system pursuant to an otherwise valid plea agreement is illustrative. Some other forms of leverage are more problematic because the legal baseline is ambiguous (e.g., withholding disability benefits) or variable
28pL104-193. 29N.y. MentalHygieneLaw ?9.60(C).

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(e.g., tyingtreatmentto housing).We have also emphasized,however,that the setting of the legal baseline is not ultimatelydeterminativeof the underlyingmoral to issues-i.e., whetherit is fair to use these instruments inducepatientcompliance with treatment.Ultimately,then, we hope that this reformulation this issues will of stimulatediscussionaboutthe utilityof the framework our owncharacterization and of the interventions. Howeverthese conceptualissues are ultimatelyresolved,we thinkthatthe contract paradigmis also valuablebecause it helps to identify fruitfullines of empirical investigation.For example, it focuses attention on the interactiveprocess of negotiation that typicallyprecedes and accompaniesthe use of therapeuticmandates and on characteristics the relationshipsamong service providers,patients of and leveragingagenciesthat implementthese agreements.The factorstherebyexposed may predict outcomes and may also bear on the fairnessof the leveraged arrangements. Finally,we believe that the languageof contractdrawsattentionto the similarities between the majorinstruments mandatedcommunitytreatmentand other of forms of leverage, such as professionallicensing (Monahan& Bonnie, 2004) and child custody, and it also provides a frameworkthat encompassesboth "formal" uses of leverage (e.g., representative payees and publichousingproviders)and "informal"uses of leverage(e.g., a parentwho financially supportsand houses an adult childwith mentaldisorder,and who uses that money and housingas leverageto obtain the child'streatmentadherence).Clearly,the languageof coercion and rights has no tractionin discussinginformalleverage.The legal baseline of an adultchild with mental disorderdoes not entitle him or her to receive financialassistanceor housing from a parent.The languageof contractis entirely apropos here: parent that and childmay enterinto a mutualunderstanding the former'smoney and housing will be exchangedfor the latter'streatmentadherence. To conclude, as we do, that most forms of leverage are best addressedin the languageof contractis in no sense to endorse their use. Even though a given form of leverage (such as subsidizedhousing)may be lawfullyconditionedon treatment compliance,it still may be poor public policy. It may make poor policy because as a purely empiricalmatterit simplydoesn't "work"at achievingproximalpolicy goals (i.e., treatmentadherence)or more distal ones (e.g., a reductionin violence or homelessness).Or a given use of leveragemay make poor policybecause,even if manner.We arguehere it achievesdesiredoutcomes,it does so in a cost-inefficient that the time has come to view mandatedcommunitytreatmentthroughthe only of Whetherand to what extent the vocabulary contractdisplaces lens of contract.30 or or complementsthe vocabulary coercionremainsto be seen. ACKNOWLEDGMENTS
We thank the members of the MacArthur Research Network on Mandated Community Treatment, and Pamela Clark Robbins, Allison Redlich, Robert
RobertScottandWilliamStuntz(1991,1992),at 1968. 30Paraphrasing

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Bernstein, Michael Allen, and Eric Elbogen, for their comments on a previous draft of this essay.

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