From Coercion to Contract

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    From Coercion to Contract: Reframing the Debate on Mandated Community Treatment forPeople with Mental DisordersAuthor(s): Richard J. Bonnie and John MonahanSource: Law and Human Behavior, Vol. 29, No. 4 (Aug., 2005), pp. 485-503Published by: SpringerStable URL: http://www.jstor.org/stable/4499434 .

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    Law and Human Behavior, Vol. 29, No. 4, August 2005 (? 2005)DOI: 10.1007/s10979-005-5522-9

    From Coercionto Contract:Reframing he Debateon MandatedCommunityTreatment or Peoplewith Mental DisordersRichardJ. Bonnie1and JohnMonahan1,2

    Approximately half thepeople receiving treatment n thepublic sectorfor mental dis-order have experiencedsome form of "leverage" n which deprivationssuch as jail orhospitalization have been avoided, or rewards such as money or housing have beenobtained, contingent on treatmentadherence. We argue in this essay thatframing thelegal debate on mandated community treatmentprimarily in termsof "coercion" hasbecome counterproductiveand that the debate should be re-framed in termsof "con-tract."Language derivedfrom the law of contractoften yields a more accurate accountof the current state of the law governing mandated community treatment, is morelikely to be translatedinto a useful descriptive vocabulary for empirical research,andis more likely to clarify the policy issues at stake than the currentlystalematedformof argumentation based on putative rights. Our hope is that adopting the languageof contract may help to identify those types and features of mandated communitytreatment that are genuinely problematic, rather thanperpetuating the unhelpful andmisleading assumption that all types of leverage amount to "coercion."KEY WORDS:coercion; ontract;mandated ommunityreatment.

    Mandating adherence to community-based mental health treatment is oneof the most contested human rights issues in mental health law in the UnitedStates at the beginning of the 21st century. While 42 American jurisdictions havestatutes nominally authorizing outpatient commitment-a legal order to adhereto prescribed community treatment-until recently few states made substantialuse of these laws. With the enactment of outpatient commitment statutes in NewYork State3 in 1999, in California4in 2002, and in Florida5 and Michigan6 in 2004,1Universityof VirginiaSchoolof Law,Charlottesville, irginia.2To whomcorrespondencehouldbe addressed tUniversity f VirginiaSchoolof Law,Charlottesville,Virginia; -mail:[email protected]?9.60 C).4A.B. 1421(2002).5S.B.700(2004).6PublicAct 496 of 2004.

    4850147-7307/05/0800-0485/1 ? 2005American Psychology-Law Society/Division 41 of the American Psychological Association

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    486 Bonnie and Monahan

    scholarly nterestin the topic has increased(see Petrila,Ridgely,& Borum, 2003;Swartz&Monahan,2001).We areamongthose who havesuggested hatoutpatientcommitment s bestseen not as a free-standingegalphenomenon,butratherasoneof several forms of "leverage"by whichnegativeevents, such as incarceration rhospitalization an be avoided,or positiveevents,such as placement n subsidizedhousing or the receipt of disabilitybenefits,can be experienced,contingentonwhethera person adheres to treatment n the community Monahanet al., 2001;Monahan,Swartz,&Bonnie, 2003;Petrila&Monahan,2003).An integratedapproach o mandated reatment n the communityhas severaladvantages.Cross-cutting mpiricalquestions,such as whetherpatientsfeel thatthey have been treatedfairly (and have been accorded"procedural ustice,"Lidzet al., 1995)can be identifiedandcommonproblems,such as cost-shifting Sinaiko& McGuire,2005), can be isolated. However, such an integrated approachalsohas disadvantages-it elides importantdifferences among the various forms ofmandatedcommunity reatment,and could obscurevaluable inesof empiricalandethical nquiry.The firststudyto obtainsystematic nformationon how often given formsofleverageareimposedonpeoplewithmentaldisordern anattempt o improve heiradherenceto treatment n the communityhas recentlybeen published(Monahanet al.,2005). Broadlyspeaking,approximately alf of the public-sectorpatientssur-veyed at five sites acrossthe United States had experiencedat least one form ofleverageat somepointin theirtreatmenthistory.Giventhat mandated reatment snowubiquitousnserving raditional ublic-sector atients, he timemaybe right orevisit helanguage nwhich hepolicydebate over mandated ommunity reatmenthas been framed.In brief, we argue in this essay that framingthe debate primarily n thevocabulary of "coercion"has become counterproductiveand that re-framingit in the language of "contract"may allow for fresh insights and invigorateddiscussion.We hasten to add, however, that using the lens of contractdoes notassumethattherapeutic everageis neverproperlyunderstoodas coercive; ndeedthe vocabularyof contractencompasses he idea that a contractexecuted underduress has been coerced and is therefore voidable (Scott & Kraus,2003). Ourhope is that adopting he languageof contractmayhelp us to identifythose typesand featuresof mandatedcommunity reatmentthat are genuinelyproblematic,rather than perpetuating he unhelpfuland misleadingassumption hat all typesof leverage amount to "coercion"(Dennis& Monahan,1996; Monahan et al.,1999).We will first sketch the essence of our view that mandatedcommunity reat-ment is usefullyanalyzedwithina paradigm f contract,and thenapplythe vocabu-laryof contract o each form of leveragesubsumedunder he umbrellaof mandatedcommunity treatment.

    CONTRACTSThe 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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    Coercion o Contract 487

    The second party accepts the offer, or rejects the offer, or makes a counter-offer, inwhich case the bargaining continues. At the successful conclusion of the bargaining,there has been a "manifestation of mutual assent" between the two parties to theconditions of an agreement. If the party making a promise receives something ofvalue in exchange for making the promise-a "consideration"-a contract has beenformed and will be enforced by the courts. If one party later commits a materialbreach of the contract, i.e., does not, in fact, perform as promised, the other partywill be discharged from its own obligation to perform.

    According to Scott and Stuntz (1991, 1992), "[t]he normative claim that sup-ports enforcing bargains is that voluntary exchange offers people more choices thanthey would otherwise enjoy and, other things being equal, more choice is better thanless." This is especially true for individuals whose choices are limited to begin with:

    The normof expanded hoice s solelyconcernedwiththemarginal ffectsof thecontracton an individual's hoices.A personwith ew andunpalatablehoicesmay ivein acoerciveenvironment.An offer thatexploitsthose circumstancess neverthelessvalueenhancing,andenforcements appropriate.Morechoicesarebetter,even-perhaps especially-if onehasfew to beginwith.(Id.at 1920)By employing the contract paradigm, we aim to refocus attention on the possi-

    bility of expanded choice, as compared with an emphasis on constricted choice-thedistinguishing feature of the coerced treatment paradigm within which the issue ofmandated treatment has customarily been framed. Our central claim is that manyforms of mandated treatment now being used expand choice-i.e., they give theperson more choices than they otherwise would have had, albeit within a severelyconstricted range. In the clearest case, for example, a person otherwise likely to besentenced to a term of incarceration for a criminal offense is given an additionaloption through a plea agreement involving probation conditioned on treatmentcompliance.

    Using a plea agreement to illustrate the idea of expanded "choice" may strikesome people as counter-intuitive-after all, the defendant has very little bargain-ing power when he or she succumbs to the prosecution's "offer" of a more lenientpunishment than otherwise would have been sought and imposed. It seems like theprosecution 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 co-ercive environment? The answer is that the defendant does have a choice-he orshe has the option of going to trial (putting the state to the time, trouble and costof trying to proving his guilt) and refusing to assist the state in investigating andprosecuting other people. These prerogatives are of genuine value in the criminaljustice system as it is now designed, and provide meaningful consideration for thestate's concessions on charges and sentence. This is not to defend the practice ofplea 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 asthe defendant has been fairly charged, the risks of going to trial have not been un-fairly magnified, and the conditions themselves are otherwise permissible,' the plea7Somerightsmaynot be waivedby a plea agreement, uchas the rightto invalidate he plea due toineffectiveassistance f counsel.Thisexception racks heideain contract aw thatunequalbargaining

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    agreement s voluntaryn a legalsense (i.e.,has not been "coerced"), nd that is thewaythe SupremeCourthas characterizedt.8Anotheradvantageof usingthe contractparadigmn the context of mandatedcommunity reatment s thatit callsattention o the processof negotiation hattyp-ically eads to an "agreement" etweenthe consumerandthe leveragingparty,andthat also continuesthereafterduring he treatmentprocess.In this respect,the re-lationshipbetween the parties(includingperhapsthe serviceprovider)resemblesa relationalcontract(see generallyGoetz & Scott, 1981)underwhich the partiesdependon the continuationof the relationship, ndareprepared o modify specifictermsin a waythat best promotesthe long-term tabilityof the relationship n theface of changingcircumstances.Empirically peaking,the qualityof the relation-shipbetween the "contracting arties" s a key variable,as is the dynamicprocess

    of negotiationduring he periodof treatment.As will be discussedfurtherbelow, not all forms of mandatedtreatmentaresensiblyunderstoodas being based on a valid agreementwhichexpandschoices.Some,likepreventativeoutpatientcommitment,areundeniably oercive(althoughthey may nonetheless be justified).Others,such as linkingtreatmentwith socialwelfarebenefits,aremoreambiguous.The challenge n these contexts is to decidewhether hepossibilityof treatment-contingentousingor welfarebenefitsexpandsthe person'schoicesor constricts hem. When the patient acceptsthe housingau-thority'soffer of treatment-linked ousing,has he or she enteredinto a valid,vol-untary agreement?Or is the agreement nvalidbecause the tenant's consentwascoerced(i.e.,producedunderduress)becausedenyingor terminating eeded hous-ing would be wrongful? n these cases, the languageof contract ncorporates heidea of coercion; t does not displace t.Alan Wertheimer(1987) has stated that "the ability to obligate oneselfby creatinga bindingcontract is an important aspect of our freedom"(p. 19)."Voluntariness-and, in particular,the absence of coercion,"he stated, is "anecessarycondition of obligationsgrounded n agreement" p. 21). How is one todeterminewhich contractualdecisionsarevoluntaryand which are the productofcoercion?He formulates he underlyingssue as follows:

    The standard iew of coerciveproposalss that threatscoerce but offersdo not. And thecruxof the distinctionbetweenthreatsand offers s thatA makesa threatwhenB will beworseoff thanin some relevantbaselineposition f B does not acceptA's proposal,butthat A makesanofferwhen B will be no worseoff than nsome relevantbaselinepositionif B does notacceptA's proposal.Onthisview.., the keyto understanding hatcountsasa coerciveproposals to properlyix B's baseline.

    powermayleadto an agreementncluding"unconscionable"rovisions hat shouldnot be enforced.See RobertScott andJodyKraus,ContractLawandTheory553-69(Rev 3d Ed,2003).In the presentcontext,anagreemento submit o "psychosurgery"norder o avoidan otherwisevalidprison ermorto gainaccessto subsidizedhousingcouldbe regardedas void on publicpolicyor "unconscionability"grounds.See Kaimowitz . Departmentof MentalHealth,No. 73-19434-AWCir.Ct. of WayneCo.,Mich,July10,1973).8SeeBradyv. UnitedStates,397 U.S. 742 (1970)("Wedecline to hold, however, hat a guiltyplea iscompelledand invalidunderthe FifthAmendmentwhenevermotivatedby the defendant'sdesire toacceptthe certaintyor probability f a lesserpenaltyrather han face a widerrangeof possibilitiesextending romacquittalo convictionand a higherpenaltyauthorized ylaw for the crimecharged.")

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    We will applyWertheimer'sapproach o each of the four contextsin whichleverageis beingused-criminal justice, disabilitybenefits,subsidizedhousing,andoutpatientcommitment.Ourgoal here is to identifythe individual's"legalbase-line,"in orderto determinewhether he languageof contractyieldsan appropriatecharacterizationf mandatedcommunity reatment.We are aware hattaking he individual's"legalbaseline"as the pointof refer-ence is not unproblematic.One could also take the individual's"moral" aselineascentral:regardlessof what formsof leveragecurrent aw allows or prohibits,whatformsof leveragecanlegitimately e imposedon an individualwith mental disorderto raise the likelihood that he or she will adhereto treatment n the community?Here, legal argumentsare exchanged or moral ones. If one holds the moral viewthatincarceration houldbe reservedonlyfor the most seriousviolentoffenses,thatall citizensshouldbe entitled to housingand should receive a minimal ncome tospendas they choose, or thatinvoluntarynpatienthospitalization houldbe abol-ished becauseit offends individual iberty,then one would see virtuallyall formsof leverage currentlybeingused to obtain treatmentadherenceas coercivethreats,sincethe individualwouldbe beingmade worseoff than n hisor her moralbaselineby refusing reatment.We haveno desire to stifle debateon theprofoundquestionsof socialjusticebearingon the legitimacyof mandated reatment or personswithmental llness.Recognizing,however, hatpeople'sviews aboutmoralbaselinesdif-fer sharply,we have chosen in this essaythe moremanageable ask of addressinglegalbaselines.9

    We are also assuming, or present purposes, hat the individualswhose treat-ment is being leveragedby "agreement" recompetentto enter into sucharrange-ments. The specificationof criteria or informedchoice underthese circumstancesposes interestingquestionson its ownterms,butthatchallenge iesoutsidethescopeof thispaper.10LEVERAGE: AVOIDANCE OF JAIL

    According to the recent five-site survey of the prevalence of mandatedcommunity reatment,between 15 and 30% of all people receivingtreatment or9Inaddition,we addressn thisEssaythe individual's objective"egalbaseline.We have not addressedthe individual's subjective"egalbaseline, he beliefsthatthe individualmayhaveas to his or her en-titlements.Regardlessof whatthe lawsays,peoplewho believethatdisability hecksare"mymoney"or thatsubsidizedhousing s "my apartment" relikelyto experiencewhatwe arecalling"perceivedcoercion" o a muchgreaterextent thanpeople who believe that the governments givingthem adeal. Wouldusingthe languageof contracthave a differenteffect on perceivedcoercion thanusingthe languageof rights?We see this as an empiricalquestion,and an interestingone (see, for exam-ple, Poythress,Petrila,McGaha,andBoothroyd,2002;Elbogen,Swanson,andSwartz,2003a;Swartz,Wagner,Swanson,Hiday,andBurns,2002;Rain,Steadman, ndRobbins,2003).10Its likelythat thecapacity equirementswouldvarysomewhat romcontext o context,depending nthe consequencesof non-compliancewiththe agreement. n the contextof a plea agreement,wherenon-adherence ould lead to incarceration,he defendantmusthave the capacity o understandheconsequencesof pleadingguiltyand the abilityto make a rationalchoice;by contrast, he capacityneeded to agree o the termsof a housingagreementunderclinically mergent ircumstances ouldbefairlyminimal.CompareGodinezv. Moran,509U.S.389(1993)with Zinermonv.Burch, 94U.S. 113(1990).

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    serious mentaldisorder n the publicsector-and up to half of all of the peoplewho have been arrestedor convictedof a crime-have experiencedtherapeuticleveragein the criminal ustice system(Monahanet al., 2005).This can happenina varietyof circumstances.A generalcriminal ourt canmake treatmentadherencea condition of suspendedprosecution,or a conditionof suspendedsentencing,ora condition of probation(Skeem,Encandela,& Louden, 2003;Skeem & Petrila,2004).As the Councilof State Government's2002 Criminal ustice/MentalHealthConsensusProject(Councilof State Governments,2002) stated,"Typically,whena judge sentences an offender [with a mental disorder]to probation,the ordermay read that the offender is to participate n treatment,whetherdrug,alcohol,or mentalhealth"(p. 120;emphasisadded). Alternatively, he chargesagainstamentallydisordereddefendant can be disposed of by a specialistmental healthcourt (Boothroyd, Poythress, McGaha, & Petrila, 2003; Griffin, Steadman,&Petrila,2002;Steadman,Davidson,& Brown,2000). Mental health courts differfromone anotheron at least four dimensions: he type of chargesaccepted (felonyor misdemeanor), he type of adjudicationmodel employed (preor post-plea),thetypeof sanctionsused (jailor no-jail),and the typeof supervision mposed(mentalhealth or criminal ustice personnel) (Redlich, Steadman,Monahan,Petrila,andGriffin,n press;Steadman,Redlich,Griffin,Petrila,andMonahan,2005).As an empiricalmatter, these distinctionsbetween generalistand specialistcourts,or amongdifferenttypesof specialistcourts,maybe of crucialsignificancein determiningwhether using the possibilityof conviction and incarcerationasleverageto obtaintreatmentadherence"works"n the sense of actually ncreasingadherence and producingdesired outcomes for the defendant and for society(e.g., betterfunctioning, educedrecidivism, ost-savings).Conceptually peaking,however,we see no meaningfuldistinctionamonganyof theseoperationalmodels.In all the varietiesof the generalistand specialistcourts,the options faced by thedefendantarefunctionally he same:adhere o treatment n thecommunityorhavethe case processedin the usual fashion (whichin practicemay well mean beingconvictedandgoingto jail).At thispoint,it is important o distinguishbetweentwo typesof arrangementsin whichcriminalusticedispositionsare linkedto treatment. n onecategory,whichwe willcall "noagreement" ases,the offenderplaysno role in the decision to linkdispositionand treatment,and the offendermay actuallyobjectto treatmentpar-ticipation.The typicalexample s a probationorder n which the court,withoutanyparticipation f the offenderor defensecounsel,specifiesmentalhealthorsubstanceabuse treatment possibly ncludingmedicationadherence) n the list of conditions.Similarly,a parole authoritymay release a prisoneron parole on variouscondi-tions,includingmentalhealth or substanceabusetreatment,withoutanydiscussionwiththe prisoner. t is well established hatrequiringmental healthcounseling s areasonable onditionof probation.11Whethermedicationadherencecan be ordered11For xample,Title 18 of the United StatesCode,?3563, tates "Thecourtmayprovide,asfurther on-ditionsof a sentenceof probation... that the defendant.., undergoavailablemedical,psychiatric, rpsychologicalreatment." ee UnitedStatesv Stine(675F.2d69, 72-73 (3d Cir,1982)("Thecourtsmay imposeon a probationerimitations romwhichotherpersonsarefree, if the limitations re rea-sonablyrelated o rehabilitation ndpublicsafety,the ends of probation...We need not anddo not

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    (especiallyover the defendant'sobjection) s a complicatedquestion,dependingonthe precisetermsof the sentencingandparolestatutes,on the natureof the offenseand its connection to the defendant'smentaldisorder,andstill-evolvingconstitu-tionalprinciples elating o the rightto refuse treatment.12The second category of cases, which involve what we will call "leveragedagreement,"are the ones that interest us here. In these cases, the treatmentconditionsare specified n an agreementreached between the defendantand theprosecutor(or, in some specializedcourts,between the defendantand the judge)or, in the parolecontext,between the prisonerand the paroleboard.We will useplea agreementsfor conditionalprobationas the prototypicalexample,and willfocus particularlyon probationorders that prescribemedication adherenceas aconditionof probation.Thekey question n thesebargaineddispositionss whetherthe prosecutor'sproposalis best construedas a "threat" o put the defendant njail if he or she fails to adhere to treatment n the community,or as an "offer"of treatment n lieu of jail. Accordingto Wertheimer, he prosecutor'sproposalwould be a "threat"f the defendantwouldbe worse off thanin his or her baselineposition if the defendant does not accept the proposal,whereas it would be an"offer"(expandingchoice) if the defendantwould be no worse off than in his orherbaselineposition f the proposal s not accepted.

    The LegalBaselineWhich of these characterizationss most accurate depends on the court'sauthority n the absenceof the defendant'sagreement.In the ordinarycontextofa 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 rightof privacy. We hold only that when psychological counseling is reasonably related to the purposes ofprobation, 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 prescribedmedications "was based on individualized assessment of defendant's past and present behavior and wasnot an abuse of discretion.") United States v Cooper (171 F.3d 582,587 (8th Cir 1999)("We have littledifficulty upholding the.., .special condition [of probation] imposed by the district court [that he] un-dergo mental health counseling and treatment. This contention is without merit. His recent history ofmajor depression, refusal to take anti-depressant medications, and conduct dangerous to himself andothers 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 Sentenc-ing Law and Practice recommends "Mental Health Program Participation" as a special condition ofsupervised release: "If the court has reason to believe that the defendant is in need of psychological orpsychiatric treatment-a condition requiring that the defendant participate in a mental health programapproved by the United States Probation Office" (?5D1.3(d)).12It s clear that offenders on probation or parole have a "qualified liberty interest" in refusing unwantedanti-psychotic medication, see Felce v. Fiedler, 974 F. 2d 1484 (7th Cir. 1992). However, the conditionsunder which this interest can be subordinated are unclear; the analysis in Felce preceded the SupremeCourt'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, __FJ3d_9th

    Cir, 2004), the Ninth Circuit ruled thatan order directing the defendant "to take such psychotropic drugs and other medications prescribedfor him by physicians treating his mental illness" was invalid in the absence of "medically groundedfindings that the court-ordered medication is necessary to accomplish one or more [statutorysentencingfactors]..." and "an explicit finding.., that the condition 'involves no greater deprivation of libertythan is reasonably necessary.' "

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    specifiedin the criminalcode (or in the applicablesentencing guideline)for thecrimeof whichhe or shehasbeen convicted orwill in all likelihoodbe convicted, nthe case of pre-pleadisposition). f imprisonmentwere not an availablesentencingoptionunder the applicable tatute or guideline,the probationorder'smedicationrequirementwould be properlyregardedas involuntary(and the "agreement"to acceptit would be properlyregardedas "coerced"). As indicatedearlier,thecourtmightnonethelesshave the authority o imposethe treatmentcondition,butit would indisputablybe regardedas coerced.)However,if incarcerationwere anavailablesentencingoption, as it is in the usual case, probationconditioned onmedicationcompliance s properlyregardedas an "offer,"and the agreementisvalid. The agreement'svalidityis clear if the court would have had authoritytoimpose pharmacologicalreatment as a condition of probation n the absence ofan agreement(i.e., over the defendant'sobjection),but we think the agreementis valid even if the court would not otherwise have had the authorityto requiretreatmentbecausetheagreement tillrepresentsa choicebythe defendantbetweenjail andleveraged reatment n the community-a hardchoice,perhaps,but not anunconscionable ne. Othersmaydisagree.13Two concernsabout the manipulation f the defendant'sbaselinecould invali-datethearrangement, owever.First,selective arrestorprosecution ould create anunfaircontextforbargaining. uchmanipulation ould occur n asystematic ashionif the police were morelikelyto arrest, he prosecutormore likelyto charge(or tochargefor a more seriousoffense), or the judgemore likelyto sentence to jail (orto sentence to jailfora longer period),defendantswith mentaldisorder han defen-dants without a mentaldisorder, n order to channeldefendantswithmentaldisor-der into treatment.These practicesare universallydecried.The Bazelon Center'sreporton Mental Health Courts(January2003), for example,states that "All areconcernedaboutthepotentialof mentalhealth courts o encouragearrestas a strat-egy foraccessingmentalhealthservices hat are not otherwiseavailable" p. 1) andthat "Thedurationof the court'ssupervisionof treatment.., should never exceedthe typicalsentence and probationaryperiod for the underlyingcriminalcharge"(p. 15). Likewise,the Councilof State Government'sConsensusProjectnotes that"Itis particularlymportant... that mental illness itself not be used as a reason todetain a defendant n a case where a defendantwith no mental llnessfacingsimilarchargesand witha similarcriminal ecordwouldlikelybe released" p. 13).Arrestingdefendantswith mental disorderwithout lawful ustification or un-der circumstanceswhich otherwisewould not ordinarily riggeran arrest) or thepurpose of drawingthem into treatment,or over-charging uch defendants (ascomparedwith normalpractice)to elevate the availablesentence and make the13Thedistinctiondrawn n the text between "noagreement" asesin which the treatment s imposedwithoutagreementand "leveragedagreement" ases in which the treatment s mandatedpursuantto a validagreement,s reflected n two casesrequiringparoleesto take anti-psychoticmedication.CompareFelcev. Fiedler,974 F. 2d 1484(7thCir,1992) (statecould not requiremonthly njectionsof prolixinby prisonerwho was entitled to release on paroleafterserving6 1/2 yearsof sentencewithoutsatisfyingdueprocesscriteriaandprocedures)with Clossv. Weber,238F. 3d 1018(8thCir,2001) (statecouldconstitutionallyevokeparole orprisonerwho hadagreed o termsof discretionaryparole, ncludingreatment ondition).

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    treatmentoption seem more attractive,unfairly manipulatesthe legal baseline;these practiceswouldmakesthe defendant's"agreement"o adhere to treatmentconditions llusory,rendering he eventual"offer"a coerciveone.14The solution tothisproblem s to train the police, prosecutors,andjudgesso as to avoid the selec-tiveprosecution-even thewell-meaning electiveprosecution-of defendantswithmental disorder.15The relatedfactorthat could invalidatean "offer"of treatment-in-lieu-of-jailsthe defendant'sbeinguninformed-or even deceived-regarding the terms of thebargained-for greement.The possiblesentencebeingused as leveragemighthavebeen artificiallymanipulated o as to makethe offer of treatmentappearmore at-tractive.Evenif the defendanthas not beenselectivelyarrestedorovercharged,hedefendantmaybe underthe misimpressionhat,if thejudge'soffer of treatment srefused,the likelihood of his or herbeingsentencedto jail for the crimecharged shigherthan it actually s (or that the lengthof timeto be spentinjail is longerthanit actually s). Forexample,a first-offenderwith mental disordermightbe chargedwith a crimefor which the statutorysentence is one to four years,but for whichfirst-offenders re routinelyplacedon probation. f the prosecutorwere to "high-ball"the sentence,such as by sayingor implying hat the defendantwas facingasignificant jail term-for thepurpose of inducing the defendant to accept the "offer"of treatment-this wouldnegatethe conditionsof voluntariness.In the usual commercialcontractualnegotiations,of course, the partiesarerepresentedby counsel,one of whose primary oles is to inform his or her clientof the actual risksinvolvedin reachingor failingto reach an agreement.Defen-dants who are made an offer of treatment-or-jailre also representedby counsel.But they may be mis-representedby counsel who, believingthat receivingtreat-ment is in their clients' best interests,either mislead their clients or fail to correcttheirerroneous mpressions egarding he likelyoutcome at sentencing.The prob-lem of paternalisticbehaviorby lawyerswho fail to provide "zealousadvocacy"on behalf of mentallydisorderedclients has vexed the area of civil commitment(i.e., mandatedhospitaltreatment)for decades (Poythress,1978) and can be ex-pected to affect mandatedcommunity reatment.Research on adjudicative om-petence has describedsimilartendenciesin the representationof mentallydisor-dered defendants(Bonnie, Poythress,Hoge, Monahan,& Eisenberg, 1996).Thechallengeis to train criminaldefense lawyersnot to allow themselves to becomeinstrumentsof covert coercive practicesin cases involvingmentally disorderedclients.

    14Thisxample howsagain hatwe areusing he term"coercion"o refer o a normativeoncept,not anempiricalone, in thispaper.In these casesinvolving elective arrestandprosecution,heplea agree-mentseventuallyreacheddo not "feel"anyless voluntary hanthey would have in the absence ofselectivearrestorprosecution.Theyare nonetheless nvalidbecause he baseline no arrestorprose-cution)wasunfairlymanipulated.15Apromising iteratureon trainingpolice, prosecutors,andjudgesin dealingwith mentally ll de-fendantshas emerged n the past decade.Bibliographies re available rom the GAINS Center,athttp://www.gainsctr.com.hisliteratures usefullysummarizedn the excellentreportof the Coun-cil of State Governments, Criminal Justice/Mental Health Consensus Project (2002), available atwww.consensusproject.org.

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    LEVERAGE:MONEYPeople with mental disorder sometimes receive disability benefits in the form ofcash payments (e.g., SSI or SSDI). If the disorder is of such a nature that it impairsthe person's ability to manage his or her money, the Social Security Administra-tion (SSA) can appoint a representative payee to receive the disability checks. Rep-resentative payees can assure that the beneficiary's essential needs are met by di-

    rectly paying for rent and food. Any funds remaining after these essential needs arecovered can be disbursed by the payee to the beneficiary in the form of "spendingmoney," to be used at the beneficiary's discretion (Cogswell, 1996). Some represen-tative payees or informal "money handlers"-often family members of the personwith a mental disorder-may make the disbursement of discretionary funds contin-gent upon the beneficiary's adherence to treatment in the community or avoidanceof 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 losetheir access to funds altogether. For example, the brochure on "Recipient Respon-sibilities" 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 programso that you will feel better. If you use your money for alcohol or drugs, you may lose yourbenefit.According to the recent five-site survey of the prevalence of mandated com-

    munity treatment, between 7 and 19% of all people receiving treatment for seriousmental disorder in the public sector-and up to one-third of all people who havea representative payee or an informal "money handler"-have experienced moneybeing used as leverage to keep them in treatment (Monahan et al., 2005). Wedo not know what proportion of these arrangements are based on "agreements"between the recipient and the representative payee, and what proportion aresimply conditions laid down by the payee. Either way, however, whether or notthe arrangement is "coercive" depends on the baseline condition. In Wertheimer'sterms: 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 thebeneficiary 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 positionif the beneficiary does not accept the payee's proposal.

    The LegalBaselineIs the beneficiary with a mental disorder who meets eligibility criteria entitledto 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 appointedrepresentative 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 a16Document on file with authors.

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    Coercion o Contract 495coercivethreatbysaying hemoneywillbe withheld f therecipient snon-adherent,since the beneficiarywill be made worse off (i.e., have no spendingmoney, or nomoneyperiod)if he or sherejects he payee'smoney-for-treatmentroposition.Or is the beneficiarywith a mental disorderentitledto the benefits,and alsoto personallyreceivediscretionaryunds,only in the payee'sdiscretion?Does thepayee have the discretion o withholdmoneyif it is being spenton alcohol or otherdrugsor to lay down other "reasonable onditions"designedto protectthe welfareof the beneficiary? f so, the beneficiary's elevant baseline is "no money at all,"or "moneyonlyundercertainconditions."Dependingon the natureof the payee'sauthorityandthe scopeof herdiscretion, hepayee's proposalmaybe properlyun-derstoodas anon-coerciveoffer,sincethebeneficiarywillbe noworseoff than n hisor her baselinepositionif the beneficiary ejectsthe payee's proposal.In thisview,the beneficiarys beingmade a contractualpropositionby the payee:if you accepttreatment n the community,you will be given the remainderof your disability benefitsto use atyour discretion;if you do not accept treatment n the community, the remain-der of your disability benefitswill be withheld until such time as you accept treatment.Whichis the correctview of current aw?Surprisingly,we have been unableto locateany statutoryor regulatoryprovisionsor casesaddressinghe legalityof arepresentativepayee's making he disbursement f fundscontingentuponthe ben-eficiary'sadherence o treatment n the community.The 1996Reportof theRepre-sentativePayment Advisory Committee makes no mention of this issue. Neither doesthe SSA's 1999 RepresentativePayee Program Guide for Organizational Represen-tative Payees. Nor does the 2001 Guide for Representative Payees currently avail-able on the SSA website.17The statuteauthorizing he representativepayee pro-gram (42U.S.C. ?405[j],2001)states,withoutelaboration, hatthe benefits should"servethe interestsof the individual" nd be "in the best interests of the individ-ual." Neither the statute nor any of the official SSA publications pecificallyper-mits,or specificallyprohibits,a representativepayee'swithholdingdisability undsasleverageto assureadherence o treatment nthecommunity.Althoughthe SocialSecurityAdministrationhas statedthatrefusing reatment hat is clearlyexpectedto restoreworkingcapacitymaysometimesbe grounds orterminating enefits,18thas not clarified he scopeof the representative ayee's authority.

    Thebeneficiary'segalbaseline, herefore, sprofoundly mbiguous.Under thiscircumstance, ntilCongressor the courts resolve the issue-a prospectthat doesnot appear o be on the horizon-it is anopen questionwhether he representative17http://www.ssa.gov/pubs/10076.html.18It s clear thata personreceivingbenefits n relation o a disabilitybased on drugaddictionor alco-holism s required o participaten substanceabusetreatment s a conditionof receivingbenefitsandmaybe terminatedorfailure o do so. See20CFR416.214.Theruleswithrespect o personsreceivingbenefitsbasedon other mental disordersare morecomplicated.The SocialSecurityAdministrationhasexplicitly tated that treatment efusalby a personwith severe mental mpairments notgroundsforterminating enefits f the beneficiarys "clearlyunable o understand heconsequences f failing

    to followprescribedreatment." SA PolicySection DI 23010.005. t follows, however, hat benefitsmaybe terminatedortreatment efusalby personswith severe mental mpairmentf the beneficiaryis able to understand heconsequences f refusaland theprescribedreatment"isclearlyexpected orestore" apacityo work. d. See also Brownv.Bowen,845 F.2d 1211 3dCir,1988)(manwithmentalretardation ndepilepsyrequiredo adhere o treatmentn order o receivebenefits).

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    payee has the legal authority o use money as leveragefor treatmentadherence.Note also that thisambiguityeaves us uncertainabout the payee'sauthority o im-pose treatmentconditionswithoutagreement "youwill receivemoneyonly if youadhere to treatment")or to negotiatean agreement n the recipient's nterests("ifyou agreeto adhereto treatmentconditionsA andB, I willpayyou the moneyonthe followingschedule"). n the paradigmof agreement,we are uncertainwhetherthe latter would be properlycharacterized s a valid offer (i.e., making unds avail-ablethat theperson s not otherwiseentitledto receive,conditionaluponadherenceto specifictreatmentconditions)or a coercive threat(i.e., withholdingbenefits towhichthe person s otherwiseentitled,unlesstreatment s adhered o).

    LEVERAGE:HOUSINGTo reduce homelessness, the government provides a number of housingoptions n the community orpeoplewitha mental disorder hat it doesnot provideto other citizens. No one questionsthathousingproviderscan imposereasonablerequirements-such as not disturbingneighbors-on their tenants. The issue iswhether the housingprovidercan impose an additionalrequirementon tenantswithmental disorder: hatthey adhere o treatment n the community Allen, 1996;Korman,Engster,& Milstein,1996). Consider the statementin the 2003 PatientHandbookof the Association orRehabilitativeHousing n New YorkCity:19TheAssociation'sphilosophys that n order o treatyourmental llness, t is importantobe inpsychiatricreatment.. Infact,tobe a clientat the Associationyoumustbe involvedintreatment... Pleasenote thatthetypeof program ouattend s upto you.Butwhereveryouchoose to go,youmustsee a psychiatristndtake medications stheyareprescribed.

    According o the recentsurveyof theprevalenceof mandated ommunityreat-mentcitedearlier,between23 and 40% of allpeople receiving reatment or seriousmentaldisorder n the publicsectorhaveexperiencedhousingbeingused as lever-age to keep them in treatment Monahanet al.,2005).Onceagain,recallWertheimer'sormulationof the pivotalquestion: he hous-ing providerwould be makinga "threat"whenthe tenantwill be worseoff than inhis orherbaselineposition f the tenantdoesnot accept heprovider'sproposal,andthe housingproviderwould be makingan "offer"when the tenantwillbe no worseoff than in his or her baselinepositionif the tenant does not acceptthe provider'sproposal.

    The LegalBaselineIs the tenant(or prospective enant)with a mental disorderentitledto receivesubsidizedhousing or whichhe orshequalifies, egardless f treatmentadherence?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) ifhe or she rejects the provider's housing-for-treatment proposition.19Document n file with authors.

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    Or is the tenantwitha mentaldisorderonlyentitledto receivesubsidizedhous-ing if he or she agreesto adhere to treatment n the community? n this case, thetenant'srelevantbaseline s "homeless," nd the provider s makinga non-coerciveoffer,since the tenant will be no worse off than in his or herbaselineposition f thetenantrejectsthe provider'sproposal.In thisview,the tenant orprospective enantis beingmade a contractualpropositionby the housingprovideralongthe follow-ing lines: if you accept the offer of treatment n the community, you will be providedwith a subsidized apartment; if you reject the offer of treatmentin the community,you will not beprovided with a subsidized apartment(or will be evictedfrom such anapartmentif you have already beenprovided with one).The accuratebut less-than-satisfactorynswerto the legal baseline questionregardinghousing-as-leverages: it depends.Most federal housingprogramsad-ministeredby the Departmentof HousingandUrbanDevelopmentareprohibitedby statutefrommaking enancyconditionalon treatmentadherence. 0But at leasttwo programs,Shelter + Care21and the SupportiveHousing Program,22 ermitsuch conditions(see Allen, 2003).Consider he provisionsof the federal Shelter+CareProgram:In addition to standard lease provisions, the occupancy agreement mayalso.., .require the participant o take part in the supportiveservices [including"mentalhealth andsubstanceabusetreatment"]provided hrough he programasa conditionof continuedoccupancy.In "packagedeal"programs uch as Shelter+ Care,the tenant or prospectivetenant s not legallyentitledto say"I'll ake the shelterbutnot the care."Subsidizedhousingprogramsadministeredby state rather han federalagenciestake similarlydivergentpositions.23The current egal baseline of tenants with a mental disorder n publiclysub-sidizedhousing,therefore,implies that makingtreatmenta conditionof housingconstitutesa coercive threatin some housingprograms,but constitutesa contrac-tual offer in others.In the formercase, legal actionto enforceexistingstatutes isan appropriate ourseof action: he tenanthasrights o be vindicated. n the lattercase,a contractual pproach hat focuseson negotiationbetween andlordsandten-ants wouldappear he moreproductive ack.Indeed, t wouldappear o be the onlyproductive ack: he tenanthas fewpertinentrightssubject o vindication.24

    OUTPATIENT COMMITMENT: NAMBIGUOUSLY COERCIVEThere are threetypesof outpatientcommitment Gerbasi,Bonnie, & Binder,2000). The first is a variant of conditional release from a hospital:a patient is

    20See,e.g.,U.S. Department f Housingand UrbanDevelopment,NoticeH-98-12,"Useof Section202Projects o SupportAssistedLivingActivities or FrailElderlyandPeoplewithDisabilities," t p. 10("Theacceptance f any supportiveervicebya resident s totallyvoluntary").2124 CFR 582.2224 CFR 583.23Idat 512-517.24However, the tenant is entitled to "reasonable accommodation" under the Americans with DisabilitiesAct 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 thirdtype of outpatient commitment is a form of early intervention for people who do notcurrentlymeet the legal criteriafor involuntary inpatient hospitalization but who arebelieved to be at risk of decompensation to the point that they will qualify for invol-untary hospitalization if left untreated are ordered to accept treatment in the com-munity (Steadman et al., 2001; Swanson et al., 2001; Swartz et al., 2001). Accordingto the survey of the prevalence of mandated community treatment, between 12 and20% of all people receiving treatment for serious mental disorder in the public sec-tor 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 dischargecomes closest to the "leverage" paradigm being explored in this essay. Assumingthat the patient met the substantive criteria specified in the inpatient commitmentstatute at the time of commitment (and is still lawfully hospitalized within the tem-poral limits on the duration of commitment specified in that statute), it is possibleto envision a "negotiation" between patient and staff about the conditions of dis-charge (Gilboy & Schmidt, 1971), including the non-compliant behaviors that willlead to re-hospitalization. Such patient participation in the discharge planning re-sembles the "contract"model that we have outlined above, and one might even saythat the possibility of a conditional discharge "expands" the patient's choices (be-yond remaining in the hospital). However, we would not carrythe contract analogythat far: the whole negotiation (if it happens at all) occurs in the context of an in-voluntary commitment whose coercive force continues until expiration of the com-mitment order. In the vocabulary of contract, it seems incontrovertible that the pa-tient'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 en-titled to discharge (at least on conditions) even if the statutory commitment periodhas not elapsed.The same analysis applies to "front-end" outpatient commitment of patientswho meet the inpatient criteria. Again, one can envision a "negotiation" underwhich the patient is "offered" the option of outpatient treatment in lieu of (legallyauthorized) hospitalization subject to the understanding that non-compliance withspecified conditions will lead to "revocation" of outpatient status. As before, onecould say that this "offer" expands choice since the "baseline" is involuntary hos-pitalization. However, we reach the same conclusion we reached above: this nego-tiation (if it happens at all) occurs in the context of the state's authority to orderinvoluntary treatment. Rather than being seen as optional "alternative" to hospital-ization, outpatient commitment is better understood as a less drastic exercise of co-ercive authority, and any "agreement" by the patient is illusory because it is elicitedunder duress.25Thequestion read, "Sometimes people with mental health, alcohol or drug problems are put on 'outpa-tient commitment' by ajudge at a legal hearing. If you are on outpatient commitment, the judge ordersyou to receive treatment in the community, whether you want it or not. Are you now on outpatientcommitment, or have you ever been on it?"

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    The third variantof outpatientcommitment nvolves no choice at all. In pre-ventive outpatientcommitment, he persondoes not currentlymeet the statutorycriteria orinpatienthospitalization, ut rather s predicted o meet those criteria nthe future f untreated n the community. n the uses of leveragediscussedearlier,the individual's ptionsarebeingexpanded-from one option(jail)to two options(jail or treatment n the community), or example.In preventiveoutpatientcom-mitment,however,the individual'soptionsare beingconstrained: efore, the indi-vidual had two options(adhereto treatmentor do not adhere to treatment n thecommunity);now, the individualhas only one option (adhereto treatment n thecommunity).Theindividual s not being"offered" nythingn considerationor ad-heringto treatment n the community.The contractmodel does not applyat all. Itis interesting o note,however, hat the threatenedconsequenceof non-complianceunderpreventiveoutpatientcommitment tatutes s typicallyratherweak-e.g., be-ingtaken intocustody or a fewhoursor at most a few days.Thecoercive hreathasbeen softenedbythe legislativerefusal o authorizehospitalization s a response onon-compliance Appelboum,2003).26

    CONCLUSIONThe policy debateon a given form of mandatedcommunity reatment s cus-tomarily ramedas a clash betweenstatepowerand individualautonomyor, morespecifically,as an effortto force a personwith mental disorder o adhereto treat-ment by threatening o deprivethe person of somethingto whichhe or she hasa "right"-e.g., physical iberty,disabilitybenefitsor subsidizedhousing(NationalCouncilon Disabilities,2000).Thischaracterization ssumes hatthe stateis essen-tially compelling he individual o give up one right(the rightto refusetreatment,see Melton,Petrila,Poythress,& Slobogin, 1997)in order to preservetheir otherrights.Invoking he languageof rightshasproducedmanylandmarkachievementsin mental health law (Appelbaum,1994),andprovidesadvocateswith accessto arich trove of analogiesderived from more establishedareasof law.27But as cur-rently appliedto the areaof mandatedcommunity reatment, here are two signifi-cantproblemswith"rights alk."The firstproblem s legal.As we have discussed n thisessay,it is oftenunclearwhat "rights"are implicatedby manyformsof mandatedcommunity reatment.

    26As the Court of Appeals of New York stated in upholding Kendra's Law, New York's outpatient com-mitment statute, In re K.L., 806 NE 2d 480 (2004): "The restriction on a patient's freedom effected bya court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force ofthe order lies solely in the compulsion generally felt by law-abiding citizens to comply with court direc-tives. For although the Legislature has determined that the existence of such an order and its attendantsupervision increases the likelihood of voluntary compliance with necessary treatment, a violation ofthe order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with afailure of efforts to solicit the assisted outpatient's compliance, simply triggers heightened scrutiny onthe part of the physician, who must then determine whether the patient may be in need of involuntaryhospitalization."27See the National Council on Disabilities (2000): "Deprivation of human and civil rights cannot betolerated in a country that was founded on the premise that everyone is created equal. The term "libertyand justice for all" must be underscored and applied for people labeled with psychiatric disabilities. Idat 107."

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    In some contexts of mandated treatment, the use of leverage does not violate anyright, while in others, the rights claim is untested in the courts. Further, even theseasserted but untested "rights"are often statutory rather than constitutional in ori-gin, and can be modified or even eliminated by legislative action, just as many fed-eral entitlements ceased to exist when the Welfare Reform Act of 199628 soughtto "end welfare as we know it." And the assertion of a constitutional right againstmaking treatment adherence a condition of avoiding jail or of receiving money orhousing has to confront the fact that the doctrine of "unconstitutional conditions,"as Kathleen Sullivan, a leading legal scholar on this topic, famously observed, is "amess" (Sullivan, 1989).The second problem with "rights talk" in this context is political. To charac-terize the issue in terms of coercion and the deprivation of "rights"is to frame thepolicy issue in unqualified, give-no-quarter terms. Rights do not readily succumb topolitical compromise. The language of coerced treatment tends to lead opponentsto stand their ground and draw lines in the sand. Much of the currently stalemateddebate on mandated community treatment, we believe, can be traced to the framingof the arguments in unyielding rights-discourse terms. Diatribe often replaces de-bate. As Mary Ann Glendon stated in Rights Talk: TheImpoverishment of PoliticalDiscourse (1991):

    Ourrights alk, n itsabsoluteness, romotesunrealistic xpectations, eightens ocialcon-flict,andinhibitsdialogue hatmight eadtowardconsensus,accommodation,r at leastthediscovery f commonground.. All of these traitspromotemereassertion ver reason-giving. p. 14)

    We believe that there is a better way to frame the policy debate on mandatedcommunity treatment-one that avoids doctrinaire forms of argument as well astransparenteuphemisms (e.g., "assistedoutpatient treatment").29We think that lan-guage derived from the law of contract often yields a more accurate account of thecurrent state of the law governing mandated community treatment, is more likelyto be translated into a useful descriptive vocabulary for empirical research, and ismore likely to clarify the policy issues at stake than the current ships-in-the nightform of argumentation based on putative rights.On the normative side, we have drawn on Alan Wertheimer's valuable analysisof coercion to argue that the vocabulary of contract provides a suitable frameworkfor deciding whether and under what circumstances use of mandated treatment ex-pands choice or constrains it. In our analyses of the legal baselines against which thevarious forms of leverage are implemented, we have shown, at a minimum, thatunder certain conditions, several forms of mandated treatment are not properlycharacterized as coercive and are better understood as the product of negotiationand voluntary agreement-assuming that the baseline contingencies have not beenmanipulated for the very purpose of eliciting the patient's "agreement." Mandatedtreatment in the criminal justice system pursuant to an otherwise valid plea agree-ment is illustrative. Some other forms of leverage are more problematic becausethe legal baseline is ambiguous (e.g., withholding disability benefits) or variable28pL104-193.29N.y.MentalHygieneLaw?9.60 C).

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    (e.g., tyingtreatment o housing).We have also emphasized,however,thatthe set-ting of the legal baseline is not ultimatelydeterminativeof the underlyingmoralissues-i.e., whether t is fairto use these instrumentso inducepatient compliancewith treatment.Ultimately, hen,we hope that this reformulation f thisissues willstimulatediscussionabouttheutilityof the framework ndourowncharacterizationof the interventions.However theseconceptualssues areultimately esolved,we thinkthatthe con-tractparadigm s also valuable becauseit helps to identifyfruitful ines of empir-ical investigation.For example,it focuses attentionon the interactiveprocessofnegotiationthat typicallyprecedesand accompanies he use of therapeuticman-dates and on characteristics f the relationshipsamongserviceproviders,patientsandleveragingagenciesthatimplement hese agreements.The factorstherebyex-posed may predictoutcomes and may also bear on the fairnessof the leveragedarrangements.Finally,we believe that thelanguageof contractdrawsattention o the similar-ities between the major nstruments f mandatedcommunity reatmentand otherforms of leverage,such as professional icensing(Monahan& Bonnie, 2004) andchild custody,and it also providesa framework hat encompassesboth "formal"usesof leverage (e.g.,representative ayeesandpublichousingproviders)and "in-formal"uses of leverage(e.g.,a parentwhofinancially upportsand housesan adultchildwithmentaldisorder,and whousesthatmoneyandhousingas leverage o ob-tain the child'streatmentadherence).Clearly, he languageof coercion andrightshas no traction n discussingnformal everage.The legalbaselineof an adult childwith mental disorderdoes not entitle him or her to receive financialassistanceorhousingfrom a parent.The languageof contract s entirely aproposhere:parentand childmayenterinto a mutualunderstandinghat the former'smoneyand hous-ingwillbe exchanged orthe latter's reatmentadherence.To conclude,as we do, that most forms of leverageare best addressed n thelanguageof contract s in no sense to endorsetheir use. Even thougha givenformof leverage(suchas subsidizedhousing)maybe lawfullyconditionedon treatmentcompliance, t still may be poor public policy. It may make poor policy becauseas a purely empiricalmatter t simplydoesn't"work"at achievingproximalpolicygoals (i.e., treatmentadherence)or more distal ones (e.g., a reduction n violenceorhomelessness).Or a givenuse of leveragemaymakepoor policybecause,even ifit achievesdesiredoutcomes, t does so in a cost-inefficientmanner.We arguehereonly that the time has come to view mandatedcommunity reatment hroughthelens of contract.30Whetherandto what extent the vocabulary f contractdisplacesor complements he vocabulary rcoercionremains o be seen.

    ACKNOWLEDGMENTSWe thank the members of the MacArthur Research Network on Man-

    dated Community Treatment, and Pamela Clark Robbins, Allison Redlich, Robert

    30ParaphrasingobertScott and WilliamStuntz 1991,1992),at 1968.

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

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