The ACLU & Involuntary Commitment


Aryeh Neier
I have long believed that Dr. Thomas Szasz performs a great service for civil liberties by his opposition to the incarceration of persons accused of mental illness. However, I think that the service he performs is substantially diminished by his reckless assaults on those who do not agree with him on every matter. His attack on the ACLU ["The ACLU's 'Mental Illness' Cop-Out," REASON, January 1974] is a case in point.

Here are some examples of his recklessness:

(1) Dr. Szasz notes that Ramsey Clark and Karl Menninger are officers of the ACLU's National Advisory Council. He then proceeds to attack their views on mental commitment. The reader is meant to infer that their views are those of the ACLU.

In fact, while Mr. Clark and Dr. Menninger are members of our 80 person National Advisory Council, the views on mental commitment attributed to them by Dr. Szasz are not those of the ACLU. The ACLU's policies are determined by an 80 member Board of Directors. In the more than a decade that I have worked for the ACLU, I do not recall any occasion in which either Messrs. Clark or Menninger participated in the very extensive discussions on mental commitment that have taken place within the ACLU.

The ACLU National Advisory Council and Board of Directors are both bodies composed of people with diverse points of view. What any of those people say in their private capacities is not necessarily to be taken as the position of the ACLU. If, for example, Dr. Szasz happened to serve on the ACLU Board or Advisory Council, I would hope that his support for Richard Nixon in the last presidential election were not taken as the position of the ACLU and I hope it is not taken as the position of any association with which Dr. Szasz is affiliated unless the association itself has taken the position.

(2) Dr. Szasz refers to Charles Markmann's book on the ACLU, THE NOBLEST CRY, as an "official history." He then proceeds to quote this "official history" as the gospel on ACLU activities.

It is not an "official history." In fact, when Markmann's book appeared, I wrote an unflattering review of it objecting both to its philosophy and to some slipshod treatment of factual material.

(3) Dr. Szasz says that the ACLU has participated in drafting legislation for the civil commitment of persons accused of being mentally ill. What he does not say is that the ACLU role, in every instance with which I am familiar, is one of trying to limit civil commitment by seeking more precise criteria for commitment and by establishing due process protections for persons facing commitment.

There is a school of thought which believes that one legitimizes institutions which should be eliminated by encumbering them with procedural safeguards. I have some sympathy for that point of view. However, reading Dr. Szasz, one would infer that the purpose of ACLU participation in drafting mental commitment legislation was to put more people in institutions. The opposite is true.

(4) Dr. Szasz attacks the ACLU for being enthusiastic about Robinson v. California (1962). He then tells us that in Robinson the U.S. Supreme Court ruled that "addiction is a disease, whose cure is imprisonment in a mental hospital." The decision says no such thing. Rather, it says that addiction is a disease and that to put some one in prison for being sick is cruel and unusual punishment in violation of the Eighth Amendment. The Court noted in passing that compulsory treatment of addiction might be constitutionally valid.

The ACLU applauds the Robinson decision for its holding that the status of being an addict cannot be criminally punished. However, the ACLU is opposed to involuntary civil commitment of narcotics addicts; deplores the dictum in Robinson which tolerates civil commitment; has challenged civil commitment in court; and has testified and lobbied against civil commitment of addicts before state and national legislative bodies. I personally have testified for the ACLU in flat opposition to civil commitment of narcotics addicts before at least 8 legislative hearings in the past 7 years.

(5) With respect to alcoholism, the ACLU has opposed both criminal sanctions and involuntary commitment. While we have supported the creation of rehabilitative facilities, we have insisted that they be voluntary.

(6) Dr. Szasz states that "the ACLU is actually an ideological, and perhaps in part also an economic, captive of the 'liberal' medical-psychiatric establishment.…" I cannot imagine what he means by that statement. It seems to be impossible for Dr. Szasz to believe that anyone does not share all his views unless something like financial corruption is involved.

(7) Dr. Szasz refers to an Alabama case, Wyatt v. Stickney. That case established a constitutional right to treatment for persons incarcerated in mental hospitals.

The ACLU decision to enter that case united two strands of thought that exist within the ACLU. Those who oppose all involuntary incarceration supported the case in part because it would make incarceration on grounds of mental illness expensive for the state and, thereby, reduce the number of persons incarcerated. They were also concerned that as long as involuntary incarceration has not been abolished, inmates of institutions should at least get showers, decent food, changes of laundry, and the like.

Support for the case also came from those who believe that involuntary incarceration can, in certain circumstances, be justified by dangerousness to self and/or others. They believed that if people are incarcerated it must be with treatment reasonably designed to lead to their being freed. In addition, they share the elementary humanitarian concern that people held in institutions should be adequately fed, bathed and clothed.

These two points of view on "right to treatment" are both very well represented on the ACLU Board of Directors. Despite years of debate on the issue, neither side has been able to command the support to enable it to make its point of view the ACLU's definitive policy. I am very much troubled by this, as are the members of the ACLU Board. Unfortunately, I do not see the deadlock being broken at an early point.

However, both sides in the ACLU agree that involuntary commitment should be at most a last resort. In practice, it is generally a first resort. Therefore we have been able to engage in wide-ranging opposition to involuntary commitments. They virtually never meet the standards of even those on the ACLU Board who would support some forms of commitment. I am pleased with what the ACLU has been able to do against involuntary commitment, though I hope we can do a lot more.

Aryeh Neier is Executive Director of the American Civil Liberties Union.

Thomas Szasz
In my article, I wrote that the ACLU has supported, and continues to support, involuntary mental hospitalization. I did not write that every one of the 80 members of the ACLU's Board of Directors, or that Mr. Neier himself, personally support psychiatric incarceration. By asserting that some members of this Board and that Mr. Neier himself oppose such incarceration, Mr. Neier makes it appear as if I were wrong and "reckless." By this sort of reasoning, one could equally well assert that the American Psychiatric Association opposes involuntary hospitalization—when in fact it does not—because some of its members oppose it.

Further examples of my "recklessness" are that I failed to mention that the ACLU is seeking "more precise criteria for commitment" and believes that psychiatric incarceration should be used only as "a last resort." Seeking criteria for commitment implies that commitment is a morally and legally valid imposition of loss of liberty. As to advocating commitment only as a "last resort," the American Psychiatric Association also advocates it only as a last resort. I don't know anyone who advocates it as a first resort. Here, then, Mr. Neier himself supplies the most damaging evidence in support of the thesis of my article—namely, that the ACLU is intimately wedded to the prevailing psychiatric ideology which seeks to legitimize and regulate procedures for depriving persons of liberty who have been neither charged with nor convicted of any offense whatsoever.

What I have called the ACLU's "betrayal of civil liberties for mental health" is further illustrated by Mr. Neier's attempt to justify the ACLU's support of civil commitment in Wyatt v. Stickney on the grounds that the victims of psychiatric incarceration "should at least get showers, decent food" and so forth. No decent person can oppose such amenities for the victims of any kind of oppression. But Mr. Neier is working and writing for the American Civil Liberties Union, not the American Red Cross! I can only regret that Mr. Neier and the ACLU cannot see or do not agree that when a person is unjustly deprived of his liberty, the moral mandate of an organization ostensibly devoted to the protection of civil liberties is to fight for his release from captivity, rather than for his comfort in it; and that when it fights over the conditions of his confinement, it inevitably authenticates the validity of that confinement. When Japanese-Americans were confined in "relocation camps," was it the duty of the ACLU to fight for their freedom, or for their showers?

Perhaps it would have been more accurate if I had described THE NOBLEST CRY not as an "official history" of the ACLU, but as an "adulatory history" of it. However, the facts I have quoted from this book are not is dispute. Is this, then, "recklessness" on my part, or is Mr. Neier's mentioning it—not to mention his mentioning my support of Mr. Nixon in 1972—an attempt to discredit me when he cannot dispute my evidence?

Mr. Neier also cites my claim that "the ACLU is actually an ideological, and perhaps in part also an economic, captive of the 'liberal' medical-psychiatric establishment," and says that he "cannot imagine" what I mean by it. Had he read the next sentence, he would have seen just what I mean by it. It reads: "In other words, the ACLU is, in effect, a lobby for the American Medical Association and the American Psychiatric Association: it is in the interests of these medical guilds that ever-more human conditions and problems be defined and treated as diseases—and it is this interest that the ACLU serves." This, then, is what Mr. Neier's rhetoric of "recklessness" comes down to: I am reckless toward the ACLU in making this perfectly valid charge against it, but he is not reckless towards me in calling the first half of my criticism meaningless, omitting the second half, and topping it off with a gratuitous slur on my character.

Repeatedly, Mr. Neier refers to what he thinks and what, he did. But my essay was about the ACLU, not about Mr. Neier. I am glad that Mr. Neier's view on psychiatry and civil liberties are closer to mine than to the ACLU's. This hardly invalidates my criticism of the ACLU. But it raises a question: Why does Mr. Neier write this letter for the ACLU?

It seems to me, in short, that what I have written about the ACLU is not reckless but embarrassing. The ACLU has no hesitation in publicizing embarrassing facts about persons whose political policies it opposes; I have none in publicizing embarrassing facts about the ACLU whose psychiatric policies I oppose. Is this recklessness on my part, or evidence that the ACLU can dish it out but can't take it?

Thomas S. Szasz is Professor of Psychiatry at the State University of New York at Syracuse.