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D COERCION IN ALCOHOL
TREATMENT
Constance M. Weisner
At present, a wide range of measures representing varying degrees of coercion is
an established component of entry to both public and private alcohol treatment. Although
this development has occurred relatively recently within the context of the modern alcohol
treatment system, the use of coercion is not an entirely new topic of debate. Involuntary
treatment was an issue that received much discussion in English-speaking countries at the
turn of the century, and the inebriate legislation that was passed to provide for coerced
treatment still exists in many places.
Coercion is defined in this paper as a form of institutionalized pressure (with
negative consequences as an alternative) that results in an individual entering treatment.
In the cases in which it refers to pressure by the family, coercion means those procedures
in which there is an organized strategy involving some institutional contact. The types of
coercion that are found in alcohol treatment today and that are discussed here are civil
commitments, referrals to alcohol treatment from the criminal justice system, workplace
referrals, and family and early intervention programs. These categories form a rough
continuum of coercion, ranging from those that are legally mandated to those that are less
explicit. In addition, there is variation within each category in the level of coerciveness and
the range of practices used.
Major shifts have occurred in all types of coercion within the past 20 years, and
these rapid changes, along with its greater use, have gone largely unresearched. Many
questions remain unanswered. Included among them but not addressed here is whether the
treatment system is expanding to include these new groups of individuals or whether the
new groups are replacing those who have traditionally been served.
In the sociological literature, issues related to the interface between the medical
and treatment systems and the criminal justice and other coercive systems are usually
discussed in terms of the nmedicalization of deviance" (Conrad and Schneider, 1980~.
American society in recent decades has seen a shift from frank punishment to the
therapeutic treatment of deviance, although countertrends are also present (e.g., for opiates
, . _
. A_ ~ ~ .. · . . · · - · at. · , · · ~ ~ · ~ , -
1n tile Lagos, and more generally In the Decline In tnerapeuuc corrections meals In
criminology in recent decades). The "medicalization of deviance" literature reminds us that
there are losses as well as gains in the shift from punishment to treatment-especially when
one considers that frank punishment is often replaced by punishment cloaked as
treatment but minus the civil liberties protection that accompanies punishment (Christie
and Bruun, 1969~.
Although different issues relating to coercion may surface depending on the type
of treatment involved, some issues are common. For example, proponents of employee
assistance programs as well as those who favor the use of the criminal justice system
describe their client groups similarly as having a health problem and as Deviants" (Trice
and Beyer, 1984~. It remains to be seen whether there will be long-term effects from rede
The author is a senior scientist with the Alcohol Research Group, Institute of Epidemiology and
Behavioral Medicine, Medical Research Institute of San Francisco. Preparation of this paper was supported by
a National Alcohol Research Center grant (AA05595) from the National Institute on Alcohol Abuse and
Alcoholism to the Alcohol Research Group. The author wishes to thank Thomas Babor, Herman Diesenhaus,
Frederick Glaser, Robin Room, and Laura Schmidt for their consultation on earlier drafts of this paper.
579
OCR for page 580
580
APPENDIX D
fining the treatment population using a focus on deviant behavior rather than on illness.
The objective of this paper is to describe the patterns of coercion in public and
private alcohol treatment programs today. More specifically, it describes (a) the nature and
prevalence of coercive referrals to alcohol treatment; (b) the distribution of criminal justice
and workplace referrals in public and in private programs; (c) the epidemiology of alcohol
problems within these clinical populations; (d) treatment outcome related to these programs
and populations; and (e) the general impact of the presence of a largely coerced population
in the alcohol treatment system.
Before beginning the paper's main discussion, it should be noted that there are
large gaps in the data related to these patterns and even in the vocabulary available for
exploring these issues. First, definitions are problematic. In the literature, what is meant
by coercion is often unclear; alternatively, varying terms and conceptions may be used.
Second, data are lacking on the number and outcomes of coercive referrals to treatment.
In a discussion of treatment outcome, examining the relationship between coercion and
outcome seems crucial. This literature is not well developed, but related research suggests
that coercion must affect motivation and readiness for treatment, the process of treatment,
and the outcome of treatment. Wherever possible in this report, national data sets are
used. Otherwise, state- and county-level data are presented to illustrate prevalent patterns
across the United States. It should always be kept in mind, however, that there is often
great diversity from state to state.
Types of Coercion
As noted earlier, there is a range of types of coerced treatment for people with
alcohol problems forming a continuum from mandatory to less explicit coercion. These
treatment types are discussed below.
Involuntary Treatment: Civil Commitments
Civil commitments lie at the most severe end of the coercion continuum.
Commitments have long characterized mental health referrals; in fact, early psychiatric
hospitalization was entirely involuntary. (It was not until the enactment of an 1881
Massachusetts law that voluntary admission to psychiatric hospitals was officially
acknowledged and permitted.) By the 1870s, however, reform movements were under way
to establish specific procedures for involuntary treatment, in part as a result of alleged
misuse of the mechanism by the medical profession and because of cases of "railroading"
by the families of some of those committed (Fox, 1978~. By the end of the nineteenth
century, these reforms had led to requirements for independent examinations and trial by
jury in many states (Appelbaum, 1985~.
In addition to psychiatric hospitals, in some states, inebriate asylums provided
treatment for alcoholism. These large, publicly run institutions for the involuntary
treatment of alcoholics were founded during the 1870s, 1880s, and 1890s (Baumohl, 1986;
Baumohl and Room, 1987~. They developed alongside community based Inebriate homes
that had only voluntary admissions. Although only a few inebriate asylums were ever
actually funded and established, the agitation to build them was a mark of therapeutic and
public opinion regarding the historical place of involuntary treatment for alcohol problems.
Influential doctors in the inebriate asylums movement spoke out strongly against
voluntarism: "any concern about the liberty of drunkards was just so much sentimental
nonsense'." (quoted in Bauhmohl, 1986~. There was a general feeling that voluntary
inebriate homes were "wasting philanthropic dollars" and not adequately protecting families
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APPENDIX D
581
or society. The temperance physician and author of the mid-1800s, Henry Gibbons,
recommended that asylums be Placed on a proper footing to consist of a rural asylum
operated under medical direction with patients committed by the courts." Proponents of
temperance also recommended that they become state institutions in order to have "powers
to restrain patients (quoted in Baumohl and Room, 1987~. In an 1874 statute, Connecticut
passed legislation allowing the involuntary commitment of inebriates to private institutions;
other states soon followed its example.
From the early l900s until the late 1960s the predominant criterion for involuntary
commitment, whether under mental health or inebriate laws, was "need for treatment."
Most commitments of inebriates were to mental hospitals under mental health law for
"alcoholic psychosis. Under the Lanterman-Petris-Short Act, however, California in 1969
changed its criterion for mental health commitment to require evidence of dangerousness
to self or others or evidence of "grave disability. That landmark legislation influenced the
enactment of statutes in most other states (Hoge et al., 1989~. Consequently, in recent
years, the focus of civil commitment in most states has been on mental illness resulting in
imminent danger to the self or others (Dunham, 1985~.
There are several issues relevant to a discussion of involuntary commitment today
and its application in the field of alcohol problems. The issues discussed here are (a) the
alcohol specificity of statutes (as well as specifications for procedures and the length of
commitment); (b) the frequency of alcohol-related commitments; (c) changes in the criteria
of dangerousness or of need for treatment used in statutes; (d) the philosophy of the least
restrictive alternative, including outpatient commitments; and (e) distinctions between
voluntary and involuntary admissions, including the official and unofficial functions served
by commitments. Related to each of these issues is the question of alcohol's specificity-do
alcohol-related commitments generally fit the pattern of commitments for mental illness?
Statutory Specif~caimns for Alcohol-related Commitments States vary as to whether
they have alcohol-specific commitment statutes, whether alcohol problems are included as
a criterion within more general mental illness commitment laws, or whether alcohol
problems are excluded as a criterion for commitment. There are also differences from state
to state in the number and characteristics of different commitment sections in the various
statutes. Within the general framework of commitment, there are many subsidiary issues
(e.g., commitment for primary rehabilitation and extended care versus emergency
commitment)." The states also differ in which departments are designated as responsible
for commitment proceedings. Grad and colleagues (1971) reported that 35 states had
involuntary commitment procedures for alcoholism, whereas 32 states had some
organizational division or commission on alcoholism that was listed as having programmatic
responsibility for commitments. The Grad team's compilation was a by-product of
discussions in the late 1960s on decriminalizing public drunkenness arrests. There has not
been a similar compilation since that time.
More recently, Beis (1983) reviewed involuntary mental health commitment
legislation across the 50 states, although not with a focus on alcohol problems. His brief
descriptions of commitment criteria include only six states in which alcoholism, chemical
dependence, addiction, or substance abuse are named in the criteria. Three states explicitly
exclude alcoholism. The picture is actually more complicated than this, however, and a
reading of the broader literature reveals examples of states that have alcohol statutes but
that are not listed in Beis's review (e.g., see Gilboy and Schmidt, 1979; Mestrovic, 1983;
Carlyle, 1988~. It is perhaps indicative of the low profile of alcohol problems in recent
years in studies of mental health commitments that there has been no overall compilation
of state laws focusing on involuntary commitment for alcohol problems since the early
1970s.
Across state statutes, the provisions for commitment often vary for mental health
and alcohol problems in terms of the length of commitment and the specific commitment
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582
APPENDIX D
Across state statutes, the provisions for commitment often vary for mental health
and alcohol problems in terms of the length of commitment and the specific commitment
procedures. For example, Texas does not require a medical certificate for an alcoholism
commitment unless the court orders an examination; for a mental health commitment,
however, two certificates are required (Carlyle, 1988~. Because of the variation across states
and the lack of comprehensive reviews on the subject, it is difficult to gauge the place of
alcohol in the overall civil commitment framework.
Frequent of Akohol-K - d Involuntary Commitments Little is known about the
frequency of such commitments, although some figures are available on the total number
of admissions for alcohol problems. Room (1980) reported that, for the United States,
there were about 15,000 state and private mental hospital admissions for alcoholism in 1942
and about 128,000 in 1976 (from population bases of 133 million and 214 million persons,
respectively). The proportion of involuntary admissions is unknown. Cameron (1983)
reported that the rate of involuntary alcohol-related commitments to state hospitals in
California per 100,000 persons in the civilian population aged 20 and older was 37.3 in
1950 and 0.2 in 1970. The peak was 45.6 in 1961, after which the rate gradually began to
decline. It seems significant that a dramatic drop in the rate took place between 1969 and
1970 (18.7 to 0.2) after the commitment criteria were tightened (Cameron, 1983~.
Recently, there have been a few state-level studies that include prevalence rates for
alcohol-related commitments. It is not possible to generalize from the conclusions of these
studies, however, because they include different alcohol-related categories (e.g.,
polysubstance abuse, substance abuse, alcoholism) and use different criteria (dangerousness,
need for treatment, or both). One of these studies gives an indication of how prevalence
rates for commitments might be affected by the use of different criteria. The Hoge team's
(1989) study in Massachusetts found that substance abuse disorders were responsible for
15 percent of the primary diagnoses of all patients coming to emergency mental health
services. Of those who met the criteria for commitment under the Massachusetts law
(which uses the dangerousness and gravely disabled criteria), 9.5 percent had a primary
diagnosis of substance abuse. Of those who met the criteria but did not voluntarily accept
treatment, 12.3 percent had a primary diagnosis of substance abuse. Of those who met the
Stone criteria,2 8.6 percent had a primary diagnosis of substance abuse. Thus, regardless
of the criteria used, the proportion of cases with a substance abuse primary diagnosis
remained about the same.
There are also some data available from other states. Mestrovic (1983) reported
Ahoy 177 n~r`~P.nt Of ~ ~mnl~ from ~ New York State osvchiatric hhosPita1 had symptoms
.,, . a, ., if_. was ~ an. _ _,., _ ~ _ . . .
Of alcoholism (18.2 percent had symptoms of drug use).
, ~ ,
(New York's state statutes do not
include dangerousness as a necessary part of the commitment criteria; two-physician
certificate is sufficient for establishing the need for treatment iMestrovic, 19833.) Faulkner
and colleagues (1989) reported that in a sample from an Oregon county, about half of the
emergency commitment group and half of those in a temporary police holding group had
a secondary diagnosis of either substance abuse or personality disorder. Cohen's (1987)
study of civil commitments in Colorado found that polysubstance abuse was the fifth highest
disability (14.9 percent) among commitments.
Finally, an Illinois study by Gilboy and Schmidt stresses the importance of
examining the role of alcohol in commitment as seen by the courts even when alcohol
problems are not reported as the primary diagnosis. They describe a commitment case in
which the doctor gave a diagnosis of mental illness, and the judge asked outright, "Is the
basis of this, alcohol?" The doctor responded: "There is underlying mental illness, but
alcohol is a contributing cause" (Gilboy and Schmidt, 1979:447~.
Trends in Statutory Criteria of Dangerousness or of Need for Treatment Whether
existing criteria should be relaxed is perhaps the most widely debated issue involving mental
health commitments today. This discussion is not related specifically to alcohol
~^~ ,, - , ~ ,, ~ _ _ _J -J J
OCR for page 583
APPENDIX D
583
commitments, however, and there is no extant body of research to inform a discussion of
how alcohol-related cases would be affected by changes in commitment policy.
Many of the writers who discuss suggested changes in criteria point out that there
has always been dissatisfaction with the approach of any era. This viewpoint is summed
up by Lidz and coworkers (1989:176~:
The routine use of civil commitment distinguishes psychiatric care from
other medical specialties, and the proper restrictions that should be placed
on this nrofec.cinnal practice have been the source of continuing
rid r
controversy. In general, the history or civil commitment In the mu.. nas
been a series of swings between rigorous, rule-bound standards and looser,
more discretion-based procedures. Strict procedural systems have usually
led to objections that people needing treatment were not receiving it.
Looser standards have usually produced an outcry against the infringe-
ments of civil liberties accompanying the application of broad clinical
discretion. The 1960s and 1970s saw the most recent swing in this contin-
uing cycle, with the growth of more rigid standards of commitment focused
around the notion of dangerousness to self or others.3
Appelbaum describes the move at the end of the 1960s to increase civil liberties
by providing extensive legal safeguards and focusing on dangerousness as a decriminalizations
of the commitment process and the mental health system (Appelbaum, 1985~. He also
makes the case that these changes, in their departure from the notion of a need for
treatment, were intrinsically different from criteria that had been considered basic
throughout the nineteenth and twentieth centuries (Appelbaum, 1985~. In fact, the
controversy over the boundaries of civil commitment may simply reflect the ongoing
tensions among disciplines over the mental health domain. Psychiatrists and other mental
health professionals have traditionally argued for greater discretionary power over
commitment decisions; the legal profession, on the other hand, has favored enhanced legal
and judicial checks on the commitment process and assurances of the protection of patient
civil rights (Fox, 1978~.
The changes during the past 20 years that have precipitated the move toward a
criterion based on dangerousness have resulted in a different set of criticisms from mental
health professionals and patients' family groups. Many of these criticisms center around
dissatisfaction regarding access to care and "right to treatment" issues (Dunham, 1985;
Stone, 1985~. Currently, there is a move to broaden the criteria again. In 1983, for
example, the American Psychiatric Association (APA) published its contribution to the
debate, the Model State Law on Civil Commitment of the Mentally Ill (Stromberg and
Stone, 1983~. Essentially, the APA model law argues for a "seriously deteriorating"
criterion to be appended to the existing dangerousness criteria upheld by most states. It
has been greeted with varying responses from the psychiatric, patients' rights, and legal
communities, as evidenced by the broad range of literature on the subject. Some states
(e.g., California) have proposed legislation that would implement a seriously deteriorating
criterion; the presentation of the model law in 1983 reflects a general trend, supported by
psychiatrists, to relax involuntary commitment criteria.
There are good arguments on both sides of these issues. Civil rights proponents
claim that relaxing the criteria would remove legal safeguards, and this significant change
would occur without knowing whether inpatient hospitalization were effective (Rubenstein,
1985~. Wexler (1985) claims that the process would not ensure fair, independent, and
multiple evaluations. There are also concerns regarding the financial impact of relaxed
commitment laws. On the other side, Dunham (1985) argues that such a statute change
would make it possible to get help earlier for people with problems.
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584
APPENDIX D
examined the impact of such legislation. In one of the early efforts of this group of
studies, Durham (1985) in Washington State, reported that, after statutes were relaxed (in
1979), involuntary commitments increased by 91 percent the year after passage of the
legislation. The "grave disability" criterion embraced three-quarters of the cases. One of
the repercussions of the changes in criteria was that there were not enough facilities or
resources available; as a result, involuntary commitments were given priority over voluntary
admissions.4 As might be expected, such findings have intensified the concerns of those
who felt that the broadening of commitment criteria would result in undesirable
net-widening.
Yet at least one other study had different results. The Hoge team (1989)
conducted a study in Massachusetts that compared the number of applicable commitments
under the Stone commitment criteria and under the dangerousness criterion. The study
found that fewer people were committed under the dangerousness criterion. The sample
for this and other similar studies, however, constituted those who were already there-that
is, those who had been referred under the more stringent criteria. Thus, the change was
likely to be in referrals to treatment, and the available pool of patients was likely to be
larger if the criteria were relaxed. Interestingly, it was thought that the requirement of the
Stone model that Efficacious treatment" for the subject's condition be available would be
a sufficiently restrictive criterion to keep commitments down. Instead, the study found that
this particular criterion was not restrictive, as 87 percent of patients were rated by
psychiatrists as being able to be effectively treated. The authors attributed this sizable
proportion to the availability and current popularity of pharmacological treatments. Of
course, for alcohol-related commitments, this finding may not apply because the field
cannot rely on such treatments to the same extent as in mental health.
Minnesota followed a course different from most of the other states by tightening
its commitment laws in 1982. The criteria it uses include recent and overt dangerous
behavior, a determination that the person has received full protection under prevailing due
process guarantees, routing to the least physically restrictive treatment alternative, and
screening by independent agencies of all applications. However, given such changes, no
significant differences were found in numbers of commitments (Greeman and McClellan,
1985~.
There is little research on the characteristics of persons admitted to institutions
under the different types of criteria, but there is some suggestion the criteria may make a
difference. In his review of civil commitment standards in three countries, Segal (1989)
found that the criteria across the three nations could be divided into two categories: need
for treatment and degree of dangerousness. His study showed that the different criteria
brought different categories of individuals into treatment.
Thus, although the field of alcohol problems is at an important juncture regarding
shifts in civil commitment criteria, research to date does not give any clear direction
regarding the effects of different legislation. In the absence of extensive and replicated
research, professional and other interests appear to have dominated the literature in this
area with rhetorical arguments for and against their positions. The historical tension
between the individual's right to treatment and his or her civil rights remains visible and
central to discussions of civil commitment criteria.
Two institutional strains characterize the debate over commitment decisions. First
is the strain between the legislature and the judiciary. The judiciary tends to hand down
~unimplementableH civil rights decisions. For example, decisions made in the
Right-to-treatment" cases of the late 1970s required treatment of an intensity that many
facilities cannot manage. The judiciary has clearly found "need-for-treatment" statutes
unconstitutional, yet under the pressure of psychiatrists (e.g., the APA model law dictum)
states still try to legislate such statutes. The second strain is the tension between civil
rights lawyers on one side and psychiatrists and patients' family groups (i.e., the National
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APPENDW D
585
states still try to legislate such statutes. The second strain is the tension between civil
rights lawyers on one side and psychiatrists and patients' family groups (i.e., the National
Association for the Mentally Ill) on the other. This tension is the result in part of an old
debate over professional boundaries (Schmidt, 1986~. Although this debate takes place in
the mental health arena, the issues relevant to alcohol commitments are carried along with
it without being separately examined.
Commitment to the Least Restacfive Akerr~ive~ This concept came out of the same
movement that produced deinstitutionalization, patients' rights, and mainstreaming. It
recognizes the existence of a continuum within the larger involuntary commitment
spectrum, referring both to issues of setting (inpatient versus outpatient) and to type of
treatment (e.g., electro-shock, psychotropic medications) (Keilitz et al., 1985~. It can affect
Recommitment screening and evaluation, involuntary civil detention procedures, and the
continuity of community-based services, as well as release, transfer and diversion, and
guardianship. Keilitz and coworkers (1985) argue that although the concept is difficult to
apply in real-world practice and does not deal with the issue of quality of care, it remains
an important principle in guiding procedures at every level.
"Involuntary outpatient civil commitment (IOC)-the legal and psychosocial process
whereby an allegedly mentally disordered and dangerous person is forced to undergo mental
health treatment or care in an outpatient setting" is the most common implementation of
this concept today (Keilitz and Hall, 1985:378~. In their review of state laws regarding
compulsory outpatient treatment, Keilitz and Hall define IOC as "the dispositional options
(lying between inpatient hospitalization and outright release) available to a civil court after
an 'adjudication' of involuntary civil commitment" (1985:378~. Most states insist that the
same criteria be applied to IOCs as apply to involuntary hospitalization, although four
states use different criteria for the two types of commitment, and at least one of them
appears explicitly to attempt to increase the potential of commitment with its use of the
BLOC mechanism. Almost all states now allow for the use of IOCs, whereas 26 states and
the District of Columbia have explicit provisions for it; nevertheless, there are also many
differences in procedures and approaches across jurisdictions.
The Distinction Between Involuntary and Voluntary Commitments This distinction is
another important factor in an understanding of commitment. In fact, the issue of civil
commitment cannot be understood without examining the underlying reasons for
involuntary treatment. Although they are seldom addressed in the literature, the so-called
"latent" or "unofficial" functions of treatment are central to understanding why patients are
involuntarily treated. For example, Baumohl and Room (1987) describe the latent
functions being served by involuntary commitment in the late nineteenth century:
What inebriety doctors sought from the state, at least in English-speaking
countries, pointed in two directions-toward fee-paying, private patients, and
toward poor, urban drunkards. For private, fee-paying patients, doctors
sought procedures to complement treatment. At a minimum, doctors
wanted to be able to enforce the completion of treatment where patients
had voluntarily entered into it. Beyond that, they wanted provisions to
compel private patients into treatment. Essentially, this meant putting a
tool in the hands not only of the doctor but also of the drinker's family.
(p. 45)
Sixty years after the period of the "inebriety doctors," Selzer (1958) reported that state
boards of alcoholism and private psychiatrists were beginning to change their opinions
about the motivational problems of involuntary commitments and to favor such
commitments (because too many people left before treatment really began).
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586
APPENDIX D
Some of the literature discusses the complicated question of the extent to which
voluntary commitments are really voluntary. For instance, the appendix to the task panel
reports of the President's Commission on Mental Health (1978) discussed three studies
(with mixed results) that investigated whether voluntary or involuntary commitment was
longer in duration and whether individuals who were voluntarily admitted really wanted to
be there. Voluntary commitments may serve specific "latent functions; for example, Gilboy
and Schmidt (1979) reported on the practice of persuading people to sign a ~voluntary"
admission form to avoid a police custody form. The complexity and contradictoriness of
the commitment process may also affect voluntary and involuntary commitments. For
example, Mestrovic (1983) examined the intake process in a state hospital and reported on
how the actual intake decisions were made. Some commitments were ~overturned" by staff
at different levels of the institution, and some intakes became "involuntary" when patients
refused to sign voluntary forms. His study is especially rich in exploring the arbitrariness
of the process of admission and commitment.
The commitment process is further complicated by a kind of plea bargaining that
may occur when the patient waives due process rights in order to negotiate sanctions.
Describing the process of deciding between voluntary and involuntary commitment, Cohen
(1987) suggests the analogy to criminal plea bargaining. She summarizes the arguments on
both sides of the issue, pointing out that the existence of involuntary commitment has had
the overall effect of criminalizing the mental health system, whereas voluntary commitment
uses fewer financial resources and often results in fewer sanctions for the individual.
The motives of the person facing a commitment are an additional factor. Lidz and
colleagues (1989) point out that for some the hospital is a place to receive "safe and
timely" housing. Mestrovic (1983) also describes this room and board function, pointing
out that admission is often sufficiently important to people that they fake suicide attempts
to gain admission. The existence of social support to the persons facing commitment has
been reported as an important variable in hospitalization (Schmidt, 1986~.
At the institutional level (as in Baumohl and Room's description of an earlier
period), involuntary commitment is a way to avoid the early termination of treatment (Lidz
et al., 1989~. Lidz and coworkers also claim that the current treatment reimbursement
structure often makes it financially imperative that a person be committed rather than
admitted voluntarily. Another related issue involves determining for whom the
commitment is being made. Is it for the sake of the person, the family, or the community
(President's Commission on Mental Health, 1978~? Makela (1980) discusses the functions
of commitment in solving family and community problems and argues: "It should not be
up to the medical profession to take care of public order and the safety of the drunkard's
family (p. 229~.
It is important to examine the area of civil commitment because, although alcohol
treatment commitments are rare in comparison with alcohol treatment generally, the
coercion issues raised by the commitment process are more clear-cut and easier to discern.
Diversion from the Criminal Justice System
Referrals from the criminal justice system to alcohol treatment are the next level
on a continuum of coercion.6 Diversion programs came originally from a focus on drug
abuse. Programs in several of the states influenced the federal interest-for example,
California's Civil Addict Program of 1961 (Anglin, 1988), which allowed for a seven-year
commitment, and New York's 1966 civil commitment program of the Narcotic Addiction
Control Commission (Inciardi, 1988~. This interest resulted in the passage in 1966 of the
Narcotic Addict Rehabilitation Act (P.L. 89-793), which developed relationships between
criminal justice and treatment agencies. It also allocated demonstration treatment funds
OCR for page 587
APPENDIX D
587
and influenced the establishment of drug programs throughout the United States
(Leukefeld and Tims, 1988). In 1972 the Treatment Alternatives to Street Crime (TASC)
nrnoram It in motion :' ~f..ri~c of community-based diversion Programs (Cook and
Law Enforcement
r ~e, ~ .. v_. . ..~ A. _ _. _ , r
Weinman, 1988). Such projects were often funded by the U.S.
Assistance Administration (LEAA) and focused on crimes associated with drugs (Mecca,
1975). They commonly included panels of criminal justice representatives, treatment
officials, and citizens who assessed cases for diversion from the criminal justice system to
community alcohol treatment programs.7 Although federal funding of most such projects
has ended, in some areas they were followed by state or locally funded formal diversion
schemes. Even in areas in which no subsequent programs were developed the effects of
the projects may still be felt. Their most important achievements were that they set a
precedent and left behind an informal system of contact among the courts, probation
officers, public defenders and other attorneys, and individual treatment agencies for
referring people who commit a wide variety of criminal offenses.
Today, these offenses include public drunkenness, alcohol-specific crimes, and
non-alcohol-specific crimes in which alcohol is nevertheless considered to be a factor in the
offense. Diversion technically indicates the transferring of the individual from the criminal
justice system to a treatment program before sentencing and the removal of criminal
sanctions from the case on the successful completion of treatment. In common practice,
however, it has evolved to more loosely designate referral to treatment at any point in the
adjudication process; such treatment then becomes either part or most of the sanctions
imposed. Using this definition, diversion may occur both formally and informally.8 In
some instances, a case is made by a probation officer, a public defender, a private attorney,
or the defendant that the defendant has a serious problem with alcohol, that the alcohol
problem is responsible for or related to the committing of the offense, and that alcohol
treatment is more appropriate than the sanctions of the criminal justice system (Mosher,
1983~. Cases in this category are sometimes referred to treatment after sentencing, and
treatment is considered to be part of the sanctions. On the whole, courts first convict an
individual and then take alcohol into account (Mosher, 1983~. The offense is considered
a crime, but the handling of it takes place in the alcohol treatment sector rather than
solely within the criminal justice system. Sometimes the individual enters treatment
through the suggestion of a police officer or through the encouragement of (or even a
referral by) a public defender, attorney, or probation officer. The person may also enter
treatment on his or her own initiative before the adjudication process is completed, a move
that often affects later sentencing.
The literature on diversion for drug abuse is helpful in understanding the alcohol
case because drug-related diversion policy has been more clearly specified and there are
many commonalities between it and alcohol-related diversion categories. The report of a
joint German-American commission studying coercion in drug treatment (Brown et al.,
1987) details the points in the criminal justice process at which diversion can take place.
Diversion can be pre- and postadjudicatory. Preadjudicatory diversion can take place in
lieu of arrest for instance, when a policeman gives someone an opportunity to go to a
treatment facility rather than be arrested. (This particular category may be even more
common on the alcohol side for public drunkenness, alcohol-related domestic violence
offenses, and other such Crimes. There is also postarrest but preadjudicatory diversion,
which can take place after arrest but prior to filing charges, at the district attorney's
discretion, or after filing charges. Preadjudicatory diversion can also involve conditional
release (often with the treatment program having some or all responsibility for the diverted
person); treatment referral with disposition to be decided later, depending in part on
treatment outcome (case responsibility is placed with the district attorney, the judge, or
some other party); or a plea of guilty prior to adjudication for a negotiated treatment
option. Postadjudicatory diversion can occur before sentencing, at which point a referral
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APPENDIX D
can be made before the verdict is given or in lieu of a different sentence. Diversion can
also occur after sentencing; in this case, sentencing is deferred while the individual is in
treatment, or alternately, treatment may be a condition of release. These alternatives
usually involve probation supervision as well (Brown et al., 1987~. All of these points at
which diversion may occur represent different levels of judicial review, different levels of
potential alternative sanctions, and different levels of interaction between the criminal
justice and treatment systems. All of these points are defined for drug-related diversion;
however, the categories and processes are similar to those for diversion to alcohol
treatment.
Historically, diversion for public drunkenness has received the most official
attention. In 1971 the National Conference of Commissioners on Uniform State Laws
recommended that all states enact the Uniform Alcoholism and Intoxication Treatment Act.
This act was the culmination of a long history of attempts by various medical and legal
interests to provide more humane treatment of the public inebriate (Kurtz and Regier,
1975~. Its objective was to handle this population within a medical rather than a criminal
justice framework. It suggested a policy stating that "alcoholics and intoxicated persons
may not be subjected to criminal prosecution because of their consumption of alcoholic
beverages" (Hart, 1977:674~. As of 1985, 34 states had fully implemented the Uniform Act
(Finn, 1985~. To be in compliance, states were required to have a plan in place that
provided for continuity of care. This requirement was instituted to avoid the fragmentation
of services and to ensure entry into the full range of services an individual might need. To
be in compliance, states were also required to have appropriate commitment legislation and
judicial safeguards. This legislation could be part of the mental health civil commitment
statute, or it could be a specifically alcohol-related commitment statute. Each state
considered meeting the Uniform Act criteria, but there were many factors that deterred
across-the-board compliance, including the mandate to provide a full range of services.
Because its purpose was to decriminalize an offense, the Uniform Act made
diversion for public drunkenness significantly different from other types of criminal justice
diversion. Yet its success is less than clear. Finn (1985) found mixed results in relation
to how far responsibility for the public inebriate had moved from criminal justice to
treatment. Overall arrest statistics indicated fewer arrests, but they had not always
decreased as much as might be expected from the intent of the legislation. In addition,
several states reported increases in other types of arrests, which suggested a possible
legislative transfer function. Finn also reviewed the literature on the effectiveness of these
programs and concluded that "the health care system has not improved the physical,
emotional, or social condition of most public inebriates" (1985:16~. It is interesting to note
that this is one area of criminal justice-treatment interaction that was fully and officially
sanctioned by law; yet it has not been fully implemented, either legally or practically.
Aside from public drunkenness, in which decriminalization is the issue, there are
two types of cases that are diverted. First there are alcohol-specific criminal offenses, such
as driving while intoxicated (DWI). Although there had been a history of traffic safety
schools in many U.S. communities, the national attention given to a treatment approach
for DWI individuals through the Alcohol Safety Action Projects has been important in
establishing such interventions. Today alcohol treatment is an established sanction for
DWI offenses, and in fact, many states have transferred much of the handling of DWI
offenses to alcohol treatment programs. In some jurisdictions, many DWI drivers are given
their choice of alcohol treatment or criminal justice sanctions; in other jurisdictions, they
are automatically referred to alcohol treatment (U.S. Department of Transportation, 1976;
Weisner, 1986; Stewart et al., 1987~. Whether sanctions involve alcohol treatment alone
or a combination of treatment and criminal justice generally depends on the policy of a
particular state and on the number of DWI offenses a person has committed. The social
movement (e.g., Mothers Against Drunk Driving) toward more stringent sanctions for
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APPEND D
589
drinking drivers has been quite influential in promoting these changes and has resulted in
a strong criminal justice function for alcohol treatment in the context of this treatment
population (Reinarman, 1988~.
The second diversion category includes offenders who are diverted because of their
history of alcohol abuse or the involvement of alcohol in a non-alcohol-specific crime. The
distinction here is that the individual is not referred to treatment because of an intrinsic
condition as much as for a legal problem related to alcohol. The types of offenses range
from burglary to domestic violence. These cases fall under the various diversion categories
described earlier. In many criminal justice diversion cases, there are other coercion-related
issues involving the type of treatment setting and the type of treatment modality. For
example, in some programs, the individual is required (either by the court or by the
program) to take disulfiram (Antabuse) (U.S. Department of Transportation, 1976; Bloom
et al., 1988~. This requirement is a subtle form of coercion; an individual is not
involuntarily given disulfiram but simply referred Back to the legal authority if he or she
refuses it (see, for example, Bloom et al., 1988~. Another related issue is that an individual
may not be given a choice between inpatient versus outpatient treatment settings. In fact,
there is some indication that the treatment setting decision between residential and
outpatient treatment is made on the basis of the seriousness of the crime rather than on
the seriousness of the alcohol problem (Weisner and Room, 1984~.
Raising issues on the other side, however, are recent moves toward evaluation and
screening of individuals for referral into different types of treatment based on the
seriousness of the alcohol problem (especially multiple-offender DWIs) (Klein, 1983~. This
practice raises difficult legal questions concerning punishment that fits the crime rather
than the condition of the offender. These questions will need to be resolved if the trend
toward diagnostic-based referral continues.
The Prevalence of Criminal Justice Referrals
Referrals to alcohol treatment from the criminal justice system are numerous
(Boscarino, 1980; Furst et al.,1981; Speiglman, 1984; Weisner, 1987a,b; Connecticut State
Drug and Alcohol Abuse Criminal Justice Commission, 1988;), a state of affairs that seems
to prevail at the international level as well. (A World Health Organization study found
that 20 of the 43 countries researched had some type of diversion legislation [Curran et al.,
19871.)
There are two data systems that provide statistics on the prevalence of criminal
justice referrals in treatment. NIAAA and NIDA collect data through the National Drug
and Alcohol Treatment Unit Survey (NDATUS), a point prevalence survey of alcohol and
drug treatment programs throughout the United States that has been carried out
intermittently since 1979. Although it collects data on categories of individuals treated, the
NDATUS does not collect individual-level data. Data are also compiled by the National
Association of State Alcohol and Drug Abuse Directors, under contract with NIAAA and
NIDA, and presented in the State Alcohol and Drug Abuse Profile (SADAP). The profile
reports data from individual programs by state and is limited to those programs that are
receiving some portion of their funds from the state. Because states do not organize
services in the same way, the proportion of programs receiving funds from them varies
dramatically. For some states the SADAP primarily excludes private for-profit and some
nonprofit agencies. It has sociodemographic data on individuals in treatment, but the data
are aggregated by agency for each program, which precludes individual-level data analysis.
Thus, as will be discussed later, neither data system offers enlightenment us about the
epidemiology of specific treatment populations because neither provides adequate
client-level data. Also, neither provides data on the ~unduplicated" client count.
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APPENDIX D
and family adverse consequences from drinking (Lettieri et al., 1985~. These measures,
however, seem to focus on these consequences in terms of motivation to do well in
treatment or remain sober and assessments of these factors. They do not obtain
information on the importance or role of the adverse consequences in encouraging the
individual to enter treatment; they also do not assess whether the negative consequences
were contingencies to enter treatment or whether they were connected with treatment entry
at all. Simply put, what is missing are such items as, "Did your spouse/the court, etc., insist
that you come here?" or "Are you glad to be here?" Although the appropriate clinical
approach takes the client pool as a given and assesses the motivational factors that affect
staying sober, the appropriate policy approach would be to assess the effects of the various
types of contingencies on the motivational measures.
Thus, an understanding of the contingencies that affect entrance into treatment, the
treatment process, and treatment outcome is important. Rather than understanding
coercion as a dichotomous variable of coerced versus noncoerced, there is reason to
examine it as a multifaceted concept. The degree of coercion and the types of
contingencies vary greatly. The crucial ingredients may include the immediacy, strength,
enforceability, duration, and consistency of contingencies. In addition, the relationship of
contingencies to treatment readiness, motivation, and other individual factors warrants
consideration.
Implications for Alcohol Treatment
As the discussion has shown, in the past 20 years there have been many changes
that affect the entry into and the conditions of alcohol treatment, and those changes have
not been well documented. As a result, any attempt to understand the effects of those
changes is more likely to raise questions than to provide answers.
First, although the data are persuasive that a significant shift has occurred in the
manner of entering both public and private treatment, even basic statistics on the size of
that change are lacking. The first task is to document the number of individuals who come
to treatment by means of the various types of institutionalized coercion. This is not an
easy assignment, given the nature of the health care system in the United States and the
lack of overall and systematic data collection. Epidemiological data (e.g., sociodemographic
characteristics, drinking patterns and problems, other drug use) for the various coerced
populations should also be collected. If, for example, individuals in alcohol treatment
increasingly have polydrug problems, the nature and prevalence of coercion are likely to be
affected because coercion and diversion programs have much more of a footing in the drug
treatment field.
A second issue relates to overall access to treatment. Is the treatment system
expanding to include these new groups, or are they replacing those traditionally served?
National data seem to indicate that the public system has not grown in proportion to the
_ ~ ~ ~ ~ ~ _ of_ · ~ ^~ ~ ~ ~ A_~__ Abut Aid- ~
number of new referrals discussed here. lne growth In tne private sector also urn llo'
appear to offer a solution because the private sector provides many of its services to
different groups of people (Jacob, 1985; Yahr, 1988~. In those instances in which treatment
services have expanded to accommodate these new client groups, are the numbers still so
large that they overwhelm the alcohol treatment agenda? There appear to be tremendous
differences across states in the proportion of services directed toward some of these new
treatment groups (Diesenhaus, 1989), but there has been no consideration of the
consequences of these differences for access and of the characteristics of treatment
populations.
Third, does treatment work for these new groups? Treatment outcome studies are
lacking. It is difficult to understand how such a systemwide transformation in treatment
OCR for page 601
APPENDW D
601
could take place without a solid research base. As has been pointed out, the outcome
research is sparse and has methodological problems. Behind some of these problems (e.g.,
interchangeable comparison groups, mixed outcome measures) is the lack of conceptual
framing to the point that there may be no theoretical base even for the existence of these
coercive programs. Is the purpose to provide access to new treatment populations so as
to intervene in alcohol problems early on? Is it to treat those individuals for whom
drinking is related to legal problems? Is it to be more humane, more effective, or even
simply more efficient than other sanctions? Is it to solve overcrowding within the criminal
justice system? For work referrals, is the primary motivation to treat individuals whose
drinking is causing job problems, or is it to fill empty treatment slots? It is simplistic to
answer that all of these purposes can be served, because these functions do not easily
coexist. Indeed, the conflicts in purpose among the programs can be seen in looking at
outcome measures in the research. To some extent, the alcohol treatment system, through
these new programs, has taken on broad responsibility for major social problems.
Some of the larger questions relate directly to the functions of treatment
(Speiglman, 1984~. How far is the alcohol treatment field willing to go in taking on a
social control function? Are there contradictions in combining social control and medical
functions? For example, is it consistent to define alcohol problems in treatment as health
problems, even as disease, and at the same time as deviant behavior? The EAP as well as
the criminal justice literature uses both conceptions. Perhaps this inconsistency is the
result of treatment referrals based more on individuals' unacceptable behavior than on their
health problems.
There are also complex ethical issues regarding coercion that must be addressed
by the alcohol field. One concerns the ethics of coercing someone to enter treatment when
the effectiveness of that treatment is unknown. This issue is especially important in
situations in which assessment for referral to appropriate treatment does not take place.
This concern speaks to the lack of outcome research on coerced populations in general, as
well as to the lack of outcome measures related more specifically to the different types and
levels of coercion. As discussed earlier, individuals who enter treatment under pressure
from one institution or another should not lose their rights; they should have alternatives
to choose from, including an alternative to treatment itself. A second ethical issue relates
to informed consent and the importance of providing the person with a full understanding
of the proposed treatment program, as well as what is known about its efficacy. For both
of these issues, it seems reasonable to extend the same protections as are granted
individuals involved in research projects to persons entering treatment, especially when a
person is entering treatment for reasons other than his or her own choosing.
Finally, what will be the long-term effects of the public image of the alcoholic or
problem drinker the image of who belongs in treatment? Although one hears about
celebrities who enter treatment, the mainstream treatment client whose presence is felt in
communities across the United States is increasingly seen as deviant. Will the long-term
effect of coerced treatment, whether through criminal justice or the workplace, be to erode
the hard-won nonstigmatized public perceptions of this problem as a health issue?
This paper has attempted to point out that there are some strong, basic similarities
related to coercion in treatment that cut across public and private institutions and across
criminal justice and work-related referrals. It has also noted that there are new
populations entering treatment, populations that are often entering treatment earlier in
their experience of problems than in the past and whose diversity is invigorating the
alcohol field and broadening its horizons. These populations also bring with them
dilemmas and important overarching questions whose solutions must be vigorously sought
if the field is to serve them effectively.
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602
APPENDIX D
NOTES
1. Gostin (1987) provides an interesting description of the types of powers available for compulsory
treatment of drug abusers in the context of testing for the human immunodeficiency virus (HIV) considered to be
the cause of AIDS. In so doing he also provides a framework for looking at parallel issues for alcohol. Gostin
describes three types of powers: (1) civil commitment, (2) referrals to treatment from the criminal justice system,
and (3) public health powers (community health orders).
2. The Stone commitment criteria were developed by Dr. Alan Stone, who became one of the authors
of the American Psychiatric Association's model act. His criteria are similar to the provisions of the model act,
with two main exceptions: (1) the act does not have a criterion for dangerousness and (2) does not require a
determination of incompetence to make a treatment decision (Hoge et al., 1989~.
3. The judiciary took action in a number of states during the 1970s, striking down need-for-treatment
legislation on the basis of due process and equal protection rights. The following discussions are relevant:
Alabama~ynch v. fly, 386 F. Supp. 387 (1974~; Michigan~ell v. Wayne Corny General Hospital at liaise,
384 F. Supp. 1093 (1974~; Kentucky~Ye~ v. True, 391 F.Supp. 419 (1975~; and Nebraska~oremus v. Farrell,
407 F. Supp. 514 (1975) (Schmidt, 1986~.
4. Zusman (1985) also speaks to this issue, saying that the changing of criteria has no practical
implication in the real world if the system is not designed to handle the changes.
5. Appelbaum and colleagues (1987) elaborate a further question they consider pertinent to the overall
discussion of voluntariness: Is the important issue involuntary versus voluntary treatment, or is it really which type
of treatment should a person receive? Should a person who is being committed have the right to decide what type
of treatment he or she will receive?
6. Treatment programs within the jails are the oldest interface of criminal justice and treatment.
Modern examples date back to the 1940s, but programs in jails can be identified as far back as the early 1900s
(Baumohl and Room, 1987~.
7. Unlike the alcohol treatment sector, the drug treatment sector has a tradition of compulsory
programs. Perhaps as a result of that history, as well as the fact that the drug sector is concerned with drugs as
illegal commodities, coercion in treatment entry has not raised the same issues for that field as has been the case
for alcohol treatment.
8. The fact of diversion outside of formal diversion programs cannot be overlooked. Informal
diversion is found even in the drug treatment system, in which official diversion programs are more the case than
in treatment for alcohol problems. For example, Hubbard and colleagues (1988) found that data from five cities
involved in the Treatment Outcome Prospective Study (a long-term longitudinal study of drug users who receive
treatment from publics funded programs) indicated more criminal justice-referred clients who were non-TASC
clients than TASC clients. They also found that TASC clients were referred earlier in the legal process than non-
TASC criminal justice-referred clients.
9. In both of these studies (Yahr, 1988; Jacob, 1985), the distinction between public and private is not
always clear because there are some nonprofit agencies in the public and some in the private sector. There are
also agencies with mixed funding. It is assumed that "public" includes nonprofit agencies with some public funding
to the agency, as opposed to agencies operating solely on a fee-for-service basis.
10. There is a body of outcome research on the treatment of the public inebriate, the group that, in
general, lacks the characteristics discussed as most related to successful outcome. Finn (1985) reviewed this
literature as part of an assessment of the Uniform Act and pointed out that outcome measures are most often
based on recidivism rates in detoxification centers. Although the results are not usually favorable, it also bears
mention that these treatments are often brief and custodial (see Chapter 16~.
11. Much of the evaluation literature on referrals stemming from the workplace is related to cost-
effectiveness. Some short-term studies of employed clients have found that health care costs decrease after they
receive treatment (Holder and Hallen, 1981; Holder and Schachtman, 1987) (see Chapter 19~.
12. Recently, there have been studies that examine outcome in terms of compliance (treatment
completion). For example, the Colorado State Alcohol and Drug Abuse Division (1988) found significantly higher
success rates (i.e., lower rearrest rates) among those who completed treatment. In all of these studies, results may
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APPENDIX D
603
be biased by the characteristics of those who complete treatment and by the types and effect of the different
contingencies that are applied.
13. The Walsh team's study (1988) currently in progress is significant in its design and should address
some of the issues of concern here. It has three comparison groups: the first is an inpatient program with
intensive follow-up and supervision; the second is similar except that those in this group receive outpatient rather
than inpatient services initially; and the third invokes client participation in selecting one of the two programs.
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Representative terms from entire chapter:
alcohol treatment
