Courting Consent and Compliance:Looping Effects in Involuntary Psychiatric Commitment Hearings

in Paris and New York

Abstract: Socio-legal scholars have long asked why some legal procedures produce rote adherence with the law and professional collaboration, while others lead to ongoing conflict and unpredictable outcomes. This paper address this question through analyzing over 300 hearings in Paris and New York City where people who have been involuntarily hospitalized in psychiatric facilities ask to be released. In contrast to explanations that emphasize broader legal cultures or jurisdictional struggles, I show how differences between the two are produced in interaction through what Hacking calls “looping”: the dynamic feedback effect as professionals try to elicit certain kinds of subjectivity from patients, patients react, and professionals adapt their interventions in response. Parisian courts encourage patients to “consent” and redefine the category to qualify most as both rights-bearing objects of involuntary treatment. In New York, psychiatrists and lawyers fail to converge on a shared conception of “compliance” in the face of patient resistance. My analysis demonstrates the broader impacts of looping processes, depending on the distinctive forms of subjectivity that professionals try to elicit.

Key Words:Psychiatry, Looping, Civil Commitments, Legal Settlement,

Classification

In a drab courtroom inside a public psychiatric hospital in Paris, a judge and a clerk speed

through hearings for people who have been involuntarily hospitalized. Medical certificates

hastily written by psychiatrists explain why the patients1 must continue to receive medical care,

emphasizing their ongoing symptoms and “ambivalence” towards treatment. As each person

shuffles in, the judge asks, “You’ve been hospitalized without your consent, and the law requires

that a judge rule after twelve days on whether you stay. Are you okay with remaining until you

feel better?” Sometimes patients’ own lawyers encourage them to nod their agreement. An ocean

away in New York City, the illnesses are similar—most patients suffer from psychoses like

schizophrenia—but hearings are conflictual and unpredictable. Defense lawyers challenge

psychiatrists’ diagnoses and argue that their clients’ minimal behavioral control merits release.

Judges berate and belittle doctors even when ruling in their favor. One tells a patient, “I certainly

wouldn’t want to take these things [medications], but you have to if you want to get out.”

Community care and criminal justice institutions have increasingly replaced asylums as

the object of studies on the management of people with severe mental illnesses (see, e.g.,

Castellano 2011; Dobransky 2014; Gong 2019). This paper uses hearings on involuntary civil

commitments2 as a window into the continued role of psychiatric hospitals in governing

disruptive behavior that escapes containment in voluntary outpatient services but does not lead to

arrest (see also Herring 2019; Seim 2017). In both Paris and New York City, judges keep most

1 The appropriate terminology to describe people subject to psychiatric treatment is a thorny question. In discussing the literature and historical context, I refer to the “mad.” This follows the reclamation of an otherwise stigmatizing term for people with major disturbances of emotions, thoughts, or relationships usually attributed to psychoses like schizophrenia. In my results, I avoid “the mentally ill” because it is precisely this label that many are contesting. I use “patients” because it is literally true: the people around whom these hearings revolve are currently patients in the public mental health system. More “empowering” terms like “client” or “consumer” underplay the acrimony in this relationship.2 Civil commitments are involuntary psychiatric hospitalizations that are not directly tied to a crime (e.g. the result of a judicial determination of not-guilty-by-reason-of-mental-illness or incompetency to stand trial). Civil commitments can include hospitalizations of incarcerated persons.

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people in the hospital.3 But if we follow socio-legal scholars in looking at the effects of legal

processes and not just their formal outcomes (Carlson 2017; Christin 2008; Feeley 1979; Kohler-

Hausmann 2013), the divergence is stark. In Paris, judges encourage people to “consent” to

doctors’ care and ultimately reinforce ongoing psychiatric control. In New York, legal and

medical professionals fight over how to define “compliance,” judges place limitations on

treatment for a significant portion of the people they leave in the hospital, and unpredictable

releases hasten the churn of patients through a fragmented system.

This paper thus uses a comparative approach to examine the factors that contribute to

differences in legal “settlement.” I use “settlement” to capture a constellation of outcomes of

interest to socio-legal scholars, namely the degree to which a procedure adheres to formal legal

standards while producing predictable effects favorable to its dominant parties. This often

depends on professional collaboration in the face of resistance from defendants, claimants, or

patients. From a temporal, theoretical, and comparative perspective it is surprising that Parisian

hearings are more settled than those in New York. When civil commitment hearings were

expanded in the U.S. in the 1960s, researchers found them to be perfunctory and predictable

(Hiday 1977; Morris 1978; Parry, Turkheimer, and Hundley 1992). New York’s hearings have

become more contentious, even though the sociology of law predicts that procedures become

increasingly rote and ritualistic over time (Dobbin and Kelly 2007; Edelman 1992; Meyer and

Rowan 1977). The change in New York has happened absent new appellate rulings or policy

reform. Comparatively, hearings are settled in France even though they were introduced in 2011

in the context of expanding protections of patients’ rights and an increasingly assertive judiciary.

3 In France, judges side with hospitals 91% of the time (Robilard and Jacquat 2017:77). Although no national data is available for the U.S. (for a review, see Appelbaum 1994), in the 105 hearings in New York dealing with retention that I observed, I saw thirteen people released.

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This paper moves from these more macro-level explanations to show how legal

settlement is produced through interaction in the courtroom itself. Hearings diverge through

distinctive versions of what Hacking (1998:239) calls “looping,” or the “feedback effects”

created by the “interactions between people and the ways of classifying people and their

behavior.” Drawing on French legal standards and the practical needs of the mental health

system, Parisian legal professionals push patients to “consent” to treatment. They manage to

stretch the concept in ways that meet the distinctive requirements of law and medicine. In New

York, judges, psychiatrists, and lawyers appeal to patients’ residual rationality to encourage

medication compliance. Patients’ visible refusal to accept treatment, however, leads some

lawyers to redefine “compliance” as meaning short-term behavioral control. Looping’s effects

ripple outward from individual cases where patients are released, intensifying how lawyers

advocate for their clients and undermining psychiatrists’ control over them.

This paper thus links socio-legal studies of institutional stability and professional

collaboration with a growing literature, often inspired by Foucault (2007, 2008), on how legal

processes, medical care, and welfare programs produce certain kinds of law-abiding, rule-

following, or self-governing subjects. The addition of “looping” calls attention to how

professionals adapt these interventions in practice based on the gaps between their goals for

patients and the response of individual patients to them. Through comparative analysis, I show

how the effects of looping processes depend on what kind of subjects these interventions actually

seek to create: “consenting” or “complying” ones. Empirically, this paper also demonstrates how

hospitals remain an important if understudied (cf. Lara-Millán 2014) institution for managing

disorder and precarity.

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I start by reviewing the comparative literature on legal systems, professional conflict, and

commitment hearings and point to their limitations for explaining the differences I observe. I

then elaborate my framework for analyzing divergent looping effects. Empirically, I draw on

direct observations of 107 hearings in Paris and 206 in New York, combined with archival

materials and over three hundred interviews with professionals, policymakers, and advocates.

For each country, I proceed in four parts: 1) describing the genesis and context of commitment

hearings, 2) showing the interactions between professionals that qualify patients as rights-bearing

objects of involuntary care, 3) demonstrating attempts to elicit consent or compliance, and 4)

examining how looping has settling effects in Paris and unsettling ones in New York. In the

conclusion, I reflect on the implications of my findings for research on psychiatric power,

classification and social control, and cross-national studies of the law.

Theoretical Framework

Explanations for Legal “Settlement”

This paper approaches the difference between Paris and New York in terms of different

levels of what, following other cultural and institutional sociologists (Fligstein and McAdam

2012; Swidler 1986), I call legal “settlement”. A settled legal procedure visibly adheres legal

norms while limiting conflict, in ways that produce outcomes favorable to dominant parties. For

example, in response to new and potentially disruptive diversity and workplace harassment laws,

managers and human resource professionals collaborated to develop affirmative action policies

and complaint-processing offices. These created a new legal settlement by signaling acceptable

compliance to judges while protecting powerful corporations from liability (Dobbin and Kelly

2007; Saguy 2003). But while distinct dimensions of settlement are of interest to the sociology of

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legal institutions and professions, the differences between my cases are surprising in light of

these literatures.

First, New York’s unsettled hearings are a departure from what research on the evolution

of law over time would predict. In the U.S., commitment hearings have existed for two centuries.

But reforms in the 1960s and 70s, encouraged by the anti-psychiatry and civil rights movements,

sought to make them more favorable to patients (Appelbaum 1994; Gong 2017). Researchers

quickly found that revamped hearings nonetheless remained “perfunctory, ritualistic, and non-

adversarial” (Decker 1987:156). One review described lawyers as “reticent,” “ineffective,” “ill-

prepared,” “mostly silent,” “lacking interest,” “rarely extending any effort,” “doing little or

nothing,” and “seldom challenging adverse statements” (Hiday 1981:1030; see also Morris

1978). Reforms delivered trappings of law like legal counsel and cross-examinations, but rarely

substantive outcomes in patients’ favor (Appelbaum 1994; Parry et al. 1992).

The sociology of law might predict that, absent an external “shock” of rights-based

mobilizations or legal reforms (Fligstein and McAdam 2012; Kagan 2003), hearings would only

become more rote over time. As scholars of “symbolic compliance” have shown, in the face of

new mandates, organizations elaborate rituals that signal adherence (Edelman 1992; Edelman et

al. 2011; Meyer and Rowan 1977). For example, universities responded to concerns about sexual

harassment and assault by making visible references to federal law in official documents

(Gualtieri 2020). Legal hearings specifically tend to become more settled as powerful “repeat

players” use their ongoing contact with judges to create rules that favor them over more one-off

litigants (Albiston 1999; Galanter 1974). Yet the hearings I observe are clearly more contentious

than those documented by previous studies, including some in New York (Gupta 1970;

Kumasaka and Gupta 1972).

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A second explanation would be that differences in settlement reflect general features of

each country’s legal system. In the common-law United States, law is “malleable and fallible”

(Kagan 2003:14) and open to reinterpretation by judges and lawyers. The results of this

“adversarial legalism” are “uncertain” and “unpredictable” (Burke and Barnes 2017:9). By

contrast, in civil law systems like France, “any legal affair ruled on by justice is supposed to

have already been decided by the [written] code, of which the judge is only a mouthpiece”

(Garapon and Papadopoulos 2003:162). Such “bureaucratic legalism” is thus more “predictable”

and “rigid” (Burke and Barnes 2017:9).

These generalizations are disconnected from the specific case of psychiatric

commitments. Far from reproducing American legal culture in a new context, commitment

hearings in the U.S. were initially anything but adversarial. Meanwhile, French courts mandated

the introduction of systematic hearings in 2011 amid pressures from European institutions that

have prompted a “race to the top” to adopt an “evermore powerful and ubiquitous fundamental

rights framework” (Lasser 2013:290). This shift towards a more adversarial legal system

(Bignami and Kelemen 2017) has been abetted by domestic initiatives to advance “health

democracy,” or legal mandates to respect patients’ consent and choice (Bouquet and Jaeger

2017; Eyraud 2013; Ward et al. 2019).

A third possible explanation explains outcomes in terms of the balance of power between

professional groups. In both France and the United States, law and medicine have long struggled

for jurisdiction over the mad (Abbott 1988; Goldstein 1987). The earlier expansion of civil

commitment hearings in the U.S. suggests that American lawyers might have been more

vigorous in challenging psychiatry, at least at the appellate and policy level. Yet the introduction

of hearings in France in 2011 is one instance of a more general trend towards an increasingly

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assertive judiciary (Bignami and Kelemen 2017; Lasser 2013). On the ground, ethnographic

work shows that French judges exercise more discretion than “bureaucratic legalism” would

suggest. At least in criminal cases, jurists are not consistently deferent to psychiatrists (Christin

2008; Pélisse, Protais, and Larchet 2012).

The biggest problem with predicting legal settlement based on the outcomes of

professional conflict outside the courtroom, however, is the long history of psychiatric-legal

collaboration within it. Foucault (2007:102) examined debates about criminal responsibility in a

series of high-profile trials in early 19th-century France “at the borders of psychiatry and the

penal system.” Psychiatric testimony won validation of the need for specialized psychiatric

hospitals while offering law an expert “truth” about “monstrous” crimes that seemed beyond the

normal “practice of justice” (Foucault 2007:11). Research from the ‘70s and ‘80s found that

reforms inspired similarly collaborative interactions, which quickly reproduced settlement in the

face of destabilizing reforms (Holstein 1993; Warren 1982). Judges used psychiatrists to assess

whether someone accused of no crime should be interned, while psychiatrists relied on judicial

validation to reinforce a grip on patients weakened by ongoing closures of hospitals.

While important for framing my analysis, the literatures on symbolic compliance,

national differences in legal systems, and professional relations leave key questions unanswered.

Why has the practical alliance of law and psychiatry, still visible in recent studies of therapeutic

criminal justice institutions like drug and mental health courts (Castellano 2011; McPherson and

Sauder 2013), broken down for civil commitments in New York? And why has it been quickly

established in Paris, despite a wider context that favors increasing adversarialism and

jurisdictional struggle?

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Constructing Settlement in the Courtroom

My analysis of the sources of legal settlement thus pivots from national legal systems and

meso-level professional relations to the courtroom itself. Here, medical and legal professionals

are confronted with a third party: patients. Settling legal processes requires channeling and

containing claimants, litigants, and the accused. Mass criminal processing, for example, would

be virtually impossible in the U.S. if defendants refused to plea bargain (Kohler-Hausmann

2013) or in France if they spurned “immediate judgment” and demanded full investigations

(Christin 2008). Socio-legal scholars have argued that, as a result, powerful actors seek more

than just legal rulings in their favor. They also use legal procedures to cultivate certain kinds of

subjectivity—particular choices, mentalities, and dispositions—in their participants, which meet

professional and organizational needs (Carlson 2017; Feeley 1979; Kohler-Hausmann 2013).

But what kind of transformations settle hearings by settling down their participants?

Previous research has typically focused on the criminal justice system. Filling legal processing

with a host of indignities and inconveniences provides a modicum of control over defendants

while conserving scarce court resources (Feeley 1979; Kohler-Hausmann 2013; Lara-Millán and

Van Cleve 2017). Yet courts are often working with a wider range of competing mandates. For

example, child support hearings are supposed to both punish “deadbeat dads” (usually through

incarceration) yet also push them to earn money to pay child-support debts (Haney 2018). In

both of my cases, settled professional collaboration requires reconciling a contradictory mandate

to establish that mad people are bearers of rights while also rendering them “serviceable”

(Goffman 1961:379) for doctors as objects of forced treatment.

This paper shows how professionals address this challenge depending on the combination

of constraints, capacities, and resources they bring with them into the courtroom. The legal

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systems of each country provide judges and lawyers with a distinctive legal repertoire (Dobbin

1994; Lamont and Thévenot 2000; Saguy 2003). A repertoire includes an understanding of the

boundaries of legal expertise, a set of legal procedures that are adherent to relevant legal

standards, and distinctive conceptions of “rights.” Because legal mandates are invariably

ambiguous (Edelman 1992), these tools can be “put to different uses depending on the meso-

level features of the field” in which they are deployed (Christin 2018:1390). For example, judges

in Paris can respond to the charge of protecting patients’ “rights” by evoking either a new

emphasis on autonomy or an older set of social rights to care, the latter less available in New

York.

The use of legal repertoires depends on judges’ and lawyers’ expectations of the power

and capacity of psychiatrists. For doctors, classifying patients in the courtroom is not just a

matter of assigning “detached” diagnostic categories, but also allocating the “scarce…social

control resources” attached to them (Heimer and Staffen 1995:645–46). Much like a probation

officer, psychiatrists speak to the organizational resources available to coerce, monitor, and

contain patients, such as hospital beds or linkages to outpatient clinics and housing providers.

The structure of the psychiatric system in each country also gives medical professionals differing

levels of another resource—knowledge of their patients—which they can bring into (or withhold

from) the courtroom (Decker 1987).

Psychiatric and legal professionals, then, collaborate around what Foucault (2007:32)

called a “game of dual medical and judicial qualification” of patients. In Paris, professionals

work to establish patients as suffering citizens, people whose disorderly behavior is a form of

pathology and whose rights are guaranteed by long-term treatment combined with procedural

protections. In New York, professionals converge on qualifying patients as resisting agents.

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Patients’ refusals of psychiatric control justify coercive treatment, but their choices, however

irrational, must be considered in the form that coercion takes.

Settling and Unsettling Looping Effects

The ways classifying and treating people as mad invariably provokes a reaction from

them was developed by classic “labeling” theories, which analyzed how calling someone

mentally ill modified their behavior (see Gove 1970; Scheff 1974). In asylums, patients’

disputations of their diagnoses became proof of the need for institutionalization, while those who

passively conceded their madness might eventually be let out (Goffman 1961). However, as a

range of studies on welfare, legal, and medical institutions have shown, classifications are

increasingly supposed to foster more than just resigned acceptance (Dubois 2003; Heimer and

Staffen 1995; Livne 2019). Declaring someone a “criminal-addict” in a drug court or rehab

program, for example, is the first step in creating “self-governing” individuals able to make

responsible choices in the community (Gowan and Whetstone 2012; Kaye 2013; McKim 2008).

Similarly, as I show, professionals qualify patients as suffering citizens or resisting agents with

an eye towards getting them to accept psychiatric care in the future.

Neither this literature on “subjectification” nor labeling theory has fully addressed how

professionals’ general template for intervention changes as they confront individual cases where

people do not adopt new subjectivities as intended. Hacking (1995:370) describes a process of

“looping” by which the way that people conform to or reject classifications imposed on them in

turn “demand[s] revisions of classification[s]…[and] expectations.” Eyal et al. (2010) illustrates

how an expanding autism spectrum mobilized parents—and, increasingly, autistic people

themselves—who provoked changes to the treatment, boundaries, and meaning of the category.

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Although usually applied to medical and scientific classifications, there is no reason to confine

the use of looping to official classification schemes or formal medical diagnostic categories. The

concept can be extended to whenever “social control agents…[do not] examine and dispose of

cases as discrete units” (Emerson 1983:425) but as part of a broader caseload. In these instances,

individual resistance and acceptance modify not just how professionals respond to specific

individuals, but their approach towards entire categories of people.

Generative though the concept may be, research on looping is often ambiguous as to what

it is that actually loops and how this changes its effects. While in both cities, professionals want

patients to become “self-governing individuals” (Stuart, Armenta, and Osborne 2015:246), what

that means is a product of the specific interactions between medical and legal actors in each, as

illustrated in Figure 1. In Paris, hearings encourage “consent” to long-term treatment. “Consent”

is a key concept in the French legal repertoire. It also reflects what French psychiatrists see as a

need for patients to transform their more “volatile and possibly momentary feelings” into a

“fixed and solid” identity as mentally ill (Livne 2019:199). If “consent” seems like a high bar—

speaking to the underlying volition of patients—it is flexible. Courts manage to elicit a desire for

treatment while concluding that this consent does not run deep enough to justify ending a

hospitalization yet. Patients’ refusals to consent confirm that they are suffering citizens who need

treatment to allow them to exercise their right to consent in the future. Professional interventions

thus “settle in” (Brossard 2019) to create a loop of “medical facilitation,” which moderates how

jurists use their legal repertoire and reinforces psychiatry’s organizational resources.

In New York, however, looping modifies a different classification of patient subjectivity.

Gong (2017) shows how medication “compliance” has become a central goal in a psychiatric

system with only residual resources to monitor patients or provide for their social needs (see,

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also, Brodwin 2012; Perry, Frieh, and Wright 2018). Compliance differs from consent in its

object—behavior, rather than desire and identity—and temporality—immediate, rather than

developing over time. Psychiatrists try to incentivize compliance and lawyers try to bargain with

patients to gain it. But patient non-compliance is often visible and unambiguous, which loops in

two ways that undermine professional collaboration. First, it leads lawyers to intensify their

advocacy, drawing from their repertoire an alternative definition of compliance: short-term

behavioral control. Such a “compliant” patient is no longer “resisting” and thus can be released.

Second, while doctors suggest persistent non-compliance is a sign that someone’s choices as an

“agent” are so irrational they must be overridden, lawyers and judges argue that it may be a

perfectly reasonable rejection of the limited services psychiatrists make available. A widening

“vortex of looping processes” (Eyal et al. 2010:23) that I call “medical cynicism” reinforces a

shared sense of the futility of psychiatric intervention and helps make that futility fait accompli.

This framework considers differences in legal systems and professional relations, but

argues that they do not mechanically produce settled hearings on one hand and unsettled ones on

the other. Instead, I show how settlement requires micro-level collaboration between

professionals to qualify patients as medical-legal subjects and extract certain kinds of

cooperation from them. The looping sparked by patients’ responses to these qualifications

impacts outcomes at the core of socio-legal studies, including symbolic compliance with legal

norms, the ability of legal processes to deliver predictable outcomes, and professional conflict.

Data and Methods

Data for this paper come from a broader study on public institutions for managing

madness in Paris and New York City. These cities are most similar sites within the two countries.

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While the U.S. has only a third as many psychiatric hospital beds and two-thirds as many

psychiatrists per capita as in France, New York and Paris have comparable densities of both.

New York State’s robust use of Medicaid funds means that public mental health services actually

reach a larger proportion of the population than in Paris (3.9% versus 3.6%). New York’s

commitment statutes, like those in France, give a wide latitude to psychiatrists. They require a

relatively late intervention of judges vis-à-vis states like Florida and California, where judges

must validate hospitalizations after five and three days respectively (see Table 1). Matching

cities in this way reduces the likelihood my results simply reflect general national patterns, like

greater resources for health in France or a higher degree of respect for patient’s rights in the U.S.

They instead depend on the way national legal norms are deployed in the courtroom, filtered by

the organizational features and professional experiences with each city’s mental health field.

My primary data consist of observations of hearings over a period of three months in

2017. Courts are public (except in Paris when patients request a closed hearing) and I accessed

them through contacts with key actors (a head judge in Paris and patients’ lawyers in New York).

In Paris, all initial reviews of involuntary commitments are held in a single courtroom, although I

also attended five appeals hearings at the city courthouse. I was also able to observe pre-hearing

meetings between attorneys and clients. Some judges let me view redacted written conclusions.

As the judges rotated every week and the court-appointed attorney every day, I was able to

observe dozens of legal professionals performing these roles across 107 hearings.

In New York, each week a different municipal judge would move between five different

locations. These were all in a single borough (the name of which I am withholding); I thus

observed all the courts serving a catchment area with a total population close to that of Paris.

Nearly all hearings in Paris dealt with a single question: whether an involuntary hospitalization

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would continue. In New York they could pertain to the continuation of a hospitalization, referred

to as “retention and release” (66), involuntary outpatient treatment (43), involuntary medication

(55), both retention and medication simultaneously (39), or administrative questions (3). I did not

interact with participants during observations.

I coded the fieldnotes in the qualitative analysis software Dedoose. I focused on

identifying variation in key features of the hearings, such as the positioning of the patient

towards care, the arguments used by the lawyers, or the reasoning evoked by the judges. I paid

particular attention to patterns that diverged from my expectations formed on the basis of the

literature on commitment hearings and knowledge of the mental health system. I then recoded

the transcripts by treating each hearing as a unit of analysis and identifying the race, gender, age,

and diagnosis of the patient (see Table 2). I then moved iteratively between my fieldnotes from

my two cases to develop a limited set of categories which I used to characterize the stances,

arguments, and outcomes of hearings (Tables 3-5).4 These helped me validate my more purely

qualitative findings, such as confirming that New York lawyers challenged psychiatric

evaluations relatively frequently. On the other hand, comparisons along common categories must

be contextualized. For example, “willingness to take treatment” refers to consent to a long-term

relation with the mental health system in Paris and compliance with medication in New York.

The “puzzle” of this paper requires going beyond the courtroom to identify the contextual

factors that courts had to contend with. For New York, I rely on previously published literature

on civil commitment hearings, government reports (Special Committee 1962; Weddle 1998), and

over two hundred newspaper articles from 1964 to the present referencing “Mental Hygiene

Legal/Information Services” pulled from ProQuest and Lexis. For France, I conducted archival

4 I have left out hearings on initial involuntary outpatient treatment orders in New York. These hearings were often extremely perfunctory (less than a minute) and had no equivalent in Paris (see Player 2015).

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research at the Ministry of Health as well as a review of 703 court decisions, news reports, and

government documents on involuntary commitments compiled by the advocacy group Circle of

Reflections and Propositions for Action on Psychiatry.

In order to further situate my observations, I carried out a total of 61 interviews in New

York (supplemented by 80 in California for another part of the project).5 I focus on a subset of

twenty-four lawyers, three judges, and nine psychiatrists who regularly testified in hearings, as

well as seven others who worked on or advocated around public policy governing involuntary

hospitalizations. For France, I draw on a pool of 187 interviews, including six judges, eight

lawyers, eight psychiatrists, and six others working on regulating commitments. Interviews

lasted between thirty minutes and two and a half hours. Combined with observations I carried out

in clinics and social service offices, these interviews helped me understand how hospitalizations

fit into the overall “institutional circuit” (Hopper et al. 1997) of patients through the mental

health system. They also helped me identify the gaps in control that hearings were supposed to

help fill.

My data have limitations. For example, relying on observations meant that in cases where

the patient did not attend (60 in New York, 21 in Paris), I had limited demographic information.

Most notably, like other studies using looping (Barnard 2019; Navon and Eyal 2016), I show

patients’ responses to categorization through their observable behavior. I examine how

professionals assess and intervene in patients’ subjectivity without delving into patients’

experiences themselves. There may be very good reasons why people spurned heavy treatments,

acted disruptively when forced into a hospital for weeks on end, and denied that what they saw

as social problems were actually medical ones, but I do not explore them here.

5 This includes 18 public defenders who handled civil commitments in California. Fewer psychiatric resources and stricter legal standards appear to create even less “settled” commitment hearings there.

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Paris: From Rapid Reform to Legal Settlement

The Judiciarization of Involuntary Hospitalizations

France’s 1838 “Law of Madmen” created an enduring two-track model of involuntary

hospitalization. One modality, based on the state’s parens patriae, or obligation to help

vulnerable citizens, allowed mad-doctors to intern people based on a “need for treatment.”

Another permitted confinement of those deemed a threat to public order based on the state’s

“police power” (Goldstein 1987). Throughout the 19th and early 20th century, critics of the law in

the National Assembly attempted fifteen times to introduce into the hospitalization process the

“fundamental principle…of the intervention of judges…who alone are able to protect the

incapable” (qtd. in Raymondis 1966:486). Their failure to do so was emblematic of the weakness

of the French judiciary in the face of medical and administrative power (Foucault 2008).

In the mid-20th century, though, the law fell into disuse. While in 1965, 86% of patients in

psychiatric hospitals had been admitted involuntarily, by 1985 only 10% of new admissions were

(Figure 2). This was not driven by an expansion of patients’ “rights,” almost never mentioned in

key government decrees and reports from the period (see Eyraud 2013). Rather, it reflected how

France integrated inpatient care into “secteurs”—an organizational structure that assigned a

single psychiatric team to catchment areas of around 70,000 people. The secteur policy

emphasized the “indispensable continuity of care” for patients as they moved fluidly between

hospitals, outpatient clinics, day hospitals, and “therapeutic apartments.” This system of

“screening, treatment…and surveillance”6 facilitated control without legal coercion.

In the 1990s, budgetary restrictions made it progressively harder for secteur psychiatrists

to provide continuous and intensive care to their patients, even as those patients became

6 Ministère de la santé publique. 1960. Circulaire relative au programme d’organisation et d’équipement en matière de lutte contre les maladies mentales:14,2.

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increasingly economically precarious and socially marginalized. The proportion of patients

hospitalized involuntarily more than doubled. A murder committed by an escaped patient in 2008

fueled a discourse that psychiatry was nonetheless too lax. Then-President Sarkozy delivered a

speech inside a hospital where he called for psychiatry to play a greater role in “submitting the

potentially-dangerous sick to special surveillance.”7 He proposed laws which would ease the

procedures for involuntary hospitalizations and expand commitment’s ambit to include sex

offenders and “delinquents.” The response of public psychiatric unions was virulent. One

psychiatrist recounted, “it’s the only time I’ve seen the whole profession rise up, to challenge the

idea that the mentally ill person is a dangerous one, which was a rupture with the whole approach

since the 1960s.”

Throughout these debates, legal professionals largely remained on the sidelines,8 despite

a 2002 law on “health democracy” that reinforced patients’ rights (Bouquet and Jaeger 2017;

Ward et al. 2019). This lack of judicial oversight moved France steadily further from European

norms: the country was the object of one-third of complaints pertaining to psychiatry adjudicated

by the European Court of Human Rights from 1957-2007 (Niveau and Materi 2007). Under

European pressure, in 2008 France introduced Anglo-Saxon-style judicial review of legislation

(Lasser 2013), which a small group of litigious ex-patients seized upon to challenge France’s law

of involuntary hospitalization. In 2010, France’s Constitutional Court ruled that the need to

“protect the health of the mentally ill” and “prevent violations of public order” had to be

balanced with the “protection of the rights” of individual patients.9 By 2013, this mandate for

7 Sarkozy, Nicolas. December 2, 2008. “Déclaration du Président de la République sur la réforme de l’hôpital psychiatrique.” Retrieved August 19, 2016 (http://discours.vie-publique.fr/notices/087003805.html).8 Although hospitalized patients could technically insist on seeing a judge, with no notification of their rights or access to attorneys, only 1% did so (Legohérel 2014:5).9 Conseil constitutionnel. November 26, 2010. “Décision n° 2010-71 QPC.” Retrieved October 16, 2019 (https://www.conseil-constitutionnel.fr/decision/2010/201071QPC.htm).

17

“judiciarization” had been formalized as hearings after twelve days for all persons involuntarily

hospitalized, in which patients were guaranteed access to an attorney.

While legal and medical professionals perceived the reform as momentous, it was

nonetheless limited. The court did not alter the criteria for hospitalization, allowing doctors and

judges to continue to exercise constraint based on parens patriae. France remains an outlier in

not requiring “dangerousness,” the standard elsewhere in Europe (Sheridan Rains et al. 2019).

The court decided based on a constitutional right to “come and go” rather than personal privacy

or bodily integrity. This gave judges a say in entry or exit from the hospital, but not what

happened within its walls (such as involuntary medication or the use of restraints). The court also

allowed a waiting period for judicial review that was much longer than for criminal or immigrant

detainees, citing “medical motives and therapeutic aims.”10 Mad-people became rights-bearing

citizens, albeit, due to their pathology, of a particular kind.

Facilitating Medical Adherence

Interviewees recounted how, on the ground, the introduction of the judge was initially

disruptive. The director of one hospital reported how putting into place the system obligated her

to return from her (usually sacrosanct) August vacation: “They [the courts] said, ‘This procedure

is going to verify what you doctors have been doing, tranquilly, for two hundred years.’ It was

just incomprehensible! The idea of an adversarial proceeding was something psychiatrists had a

hard time understanding.” In one major Parisian hospital, judges terminated forty-three

hospitalizations in the first year (Mauduit 2013). Yet by the time of my fieldwork in 2017, this

confusion had subsided. Jurists aided psychiatrists to adhere to the new law, helping them

10 Ibid.

18

establish that patients were both bearers of rights and suffering in ways that necessitated

psychiatric care—patients’ own protestations notwithstanding.

Shortly after hearings went into effect, some psychiatrists attempted to work around them

by declaring their patients “non-presentable” due to the risks of transporting them to the

courthouse. Early in 2012, one incensed judge responded by ordering the release of five patients

after they did not show (Mauduit 2012). 2013 legislation partly addressed this conflict by

moving most hearings into a special room within the hospital but under the jurisdiction of the

Ministry of Justice. But in one-fifth of the cases I observed, psychiatrists still declared their

patients unfit to attend, at times with a compelling legal justification: “risk of fleeing and

placement in danger; currently in an isolation chamber and under mechanical restraints.” On

other occasions, their written justifications were bold assertions of medical prerogatives: “the

patient is able to attend, but this would imply excess stimulation that would disturb the

therapeutic improvements that are taking place.” In New York, patients “refused” to come to

hearings; in France, the choice was attributed to the psychiatrist.

The ability to keep patients from hearings was one manifestation of the broader

organizational resources psychiatrists wielded to control the flow of information to judges (see

also Decker 1987). Hearings were conducted by Judges of Liberty and Detentions (JLDs),

typically responsible for authorizing short-term immigration and criminal holds. The choice of

JLDs was important because, unlike administrative magistrates, they were authorized to rule on

the underlying justifications for a hospitalization and not just the bureaucratic process behind it.

Rather than delivering a cursory oral judgment, as in New York, they further needed to write out

and support their conclusions. Given time constraints, they relied on the medical certificates

psychiatrists wrote on the first, third, and eleventh days of hospitalization. Because the law did

19

not require psychiatrists to attend the hearings, no one could ask them to explain phrases like

“Patient presents a mediocre contact with agitation; tachyphrenia and verbal diffluence;

dissociative and discordant delirium, with minimal construction; persecuted and

megalomaniacal; anosognosia with morbid rationalization.” Judges could hypothetically rule that

unclear medical certificates did not meet psychiatrists’ burden of substantiating the need for care,

but they usually didn’t. When a lawyer disputed the claims in one certificate, the judge replied,

“Look, I’m not a doctor, so if the medical certificate says that’s the state of the patient, that’s it.

Voilà.”

As shown in Table 3, many French lawyers—usually hired once every few weeks by the

state to cover a half-day’s hearings—did little to advocate for release. However, I followed a

group of lawyers from an association dedicated to elevating advocacy for psychiatric patients.

One of them nonetheless told me, “I don’t know what I would do with a medical dossier, really. I

don’t know anything about medications, I don’t know their dosages.” Instead, as I learned at a

training, the best strategy they could draw from their repertoire was to identify one of over one

hundred possible administrative errors, such as whether patients were presented with certain

pieces of paper at particular times. This approach allowed lawyers to vigorously enact their

professional role while accepting doctors’ characterization of patients’ “suffering.” One lawyer

explained, after cutting off a patient who said he had been wrongly hospitalized because he was

not mentally ill, “I’m not a doctor, the judge is not a doctor, we’re not here to talk about the

treatment, but just check on the procedure.”

These strategies could be successful. In one case, the patient’s lawyer argued that the lack

of a date on a notification form made the procedure invalid. The hospital’s attorney riposted

“even without the date, it’s clear the patient was notified. We can’t do everything perfectly. He

20

was sick, agitated…” When the judge indicated he was likely to rule for the patient (who was not

present), the hospital’s attorney declared with frustration, “I e-mailed the psychiatrist this

morning to say I needed another medical certificate, but it doesn’t even matter—he’s already

taking his treatment.” The judge replied, “He’s missing the eleventh-day certificate in his

dossier? Then the [involuntary] hospitalization is invalid!” The judge visibly complied with the

law, but now even the patient had at least partly accepted psychiatrists’ qualification of him as

mentally ill.

Hearings thus settled into a state marked by predictable and moderated use of the legal

tools at jurists’ disposal. Statistics show that the courts continue to rule to end about 10% of

hospitalizations. However, the majority of rulings in patients’ favor happen automatically,

without a hearing, when the hospital fails to file its paperwork on time (Robilard and Jacquat

2017:78). In Paris, however, these cases were rare because judges over time came to engage in

“cross-professional collaboration” (Kellogg 2014) with psychiatrists by, for example, calling the

hospital direction when an error cropped up in multiple dossiers. They thus constructed a new

jurisdiction for law that provided an ongoing oversight of psychiatry while accepting that, as the

judges’ training manual said, “The first right [is] the right to care” (ENM 2013).

Courting and Setting Aside Consent

Courts’ qualification of patients as suffering citizens usually happened before asking

patients about their own willingness to embrace the role. But when judges finally did so in the

second half of hearings, relatively few (only 15%) were opposed to all measures of psychiatric

care (Table 4). More were “ambivalent”—a characterization appearing twice as often as

“opposed” in medical certificates—or consenting, but with qualifications. This created an

21

ambiguous situation with respect to a new “imperative to participation” that has been

incorporated into French law (Bouquet and Jaeger 2017:7–8). In this section, I consider the

looping driven by legal prerogatives to respect patients’ variable consent in the face of

psychiatrists who were imposing hospitalizations whose formal legal name—“care without

consent”—implied its absence.

Sometimes, judges took an active role in eliciting consent. One week, the JLD began

every hearing with the statement, “I’m the judge who will decide on your hospitalization. Your

doctors say it’s a bit early for you to leave. Are you willing to trust them and stay a bit longer?”

When a retiree repeated that her antidepressant medication was having no effect because her

problem was that her husband was dying of cancer, the judge replied:

You’re in a severe depression and you don’t see the pathological dimension of it. Most of

the treatments for depression don’t function before fifteen days, so it’s normal that you

don’t feel better yet. It’s a chemical thing…It’s like diabetes. Some people have to take

medication every day for their whole lives. It’s not fun, it’s not easy, but they accept it

and move on.

For her, patients’ resistance looped in a way that confirmed the suffering articulated by

psychiatrists instead of challenging it. Even though she admitted that she never released patients,

the judge explained that the hearings were useful because “I think there is a pedagogical value, to

talk about the value of treatment.” Her references to “trusting” doctors implied this also meant

establishing a long-term relationship with psychiatry.

The most legally complex cases in Paris were those where patients insisted there was no

need for legal constraint because they were consenting. On one hand, for more aggressive

lawyers, such instances furnished fertile arguments that psychiatry’s own effectiveness in

22

ameliorating symptoms meant that patients could return to their lives outside (Table 5). On the

other hand, these same psychiatrists pleaded for judges to give them more time to work on

“accepting treatment” and “preparing discharge.” In the secteur system, inpatient psychiatrists

would retain responsibility for a patient upon their release. But while doctors could force

medication on patients inside, once they left, their ability to override patients’ refusals was

limited.11 A superficial “assent” (Anspach 1993) to being labeled mentally ill within the hospital

was not enough, since psychiatrists would need a more consistent “consent” outside.

One judge explained just how confusing these cases were when she started serving as a

JLD in 2011:

[Ruling to continue a hospitalization] is an infringement on the constitutional right to

consent to care…But then you’re in a hearing, and you’re really dragged into it, because

you have someone under constraint who tells you, ‘Of course, I’m going to take my

treatment.’ It’s complicated…We [judges] really had to puzzle out, ‘is this [consent]

valid?’

A hearing for a thirty-five-year-old woman seemed to present such a quandary. After she

hospitalized herself voluntarily after a suicide attempt, her doctor put her on an involuntary

status citing her “ambivalence about care” and the “degradation of her relationship with the

[medical] team.” On the paperwork informing her, the patient wrote that “I refuse to be

hospitalized involuntary because I take my treatment and I want to be hospitalized voluntarily

and see [a private] doctor specialized in psycho-trauma.” Her attorney argued, “There’s no

justification for an involuntary hospitalization here. She accepts her treatment and cooperates,

she’s even asking to see a doctor…I’m not going to read you the [legal] code, but this is

11 The 2011 law did create “programs of care” (programme des soins) that allow psychiatrists to obligate patients to accept outpatient treatment, but they lack the enforcement mechanisms of Assisted Outpatient Treatment in New York.

23

incoherent.” After the hearing, I commented to the lawyer that it seemed like the judge would

end the hospitalization. He waved me off. As he predicted, the judge ruled that it was

“impossible for her to consent to care” and that she had “failed to understand the gravity of her

suicide attempt,” as evidenced by her insistence on seeing a private doctor.

The decision reflected a particular resolution of the imperative to respect patient choice

with an attempt to buttress psychiatry’s organizational resources for controlling patients. In a

European debate over recommendations around the rights of psychiatric patients, France

objected to proposed criteria for involuntary care that required that “the person in question does

not consent to placement [in a hospital].” The delegation replied that this proposal “did not

respect the principle of consent that is a fundamental principle of French law.”12 Reading the

code carefully, judges explained, the French criteria allow for involuntary hospitalization when

the person’s illness “renders consent…impossible,”13 not when the patient withholds consent per

se. Judges noted that while they frequently evaluated “consent” in other domains, determining

the ability of a patient to consent was strictly medical.

In response to the practical problems of the courtroom, judges redefined consent to allow

them to simultaneously elicit and valorize it while evoking patients’ suffering to negate its legal

impact. Judges could lecture patients that accepting care and collaborating with psychiatrists

would get them out of the hospital sooner—which was, generally, true—and assure themselves

that care would actually make patients more able to consent in the future. Doctors could then tell

their patients that it was the judges who kept them in the hospital—which was only partly true,

since rulings were based on the doctors’ assessments. In fact, nearly all of the fifty psychiatrists I

12 Direction générale de la santé. “Projet de Recommandation relative à la protection des droits des personnes atteintes de troubles mentaux.” DGS - 2009/037- 3.13 Code de la santé publique. Article L3212-1. Retrieved January 20, 2018 (https://www.legifrance.gouv.fr/).

24

interviewed approved of the judge’s intervention. Hearings helped them preserve their

relationships with patients, who would eventually become outpatients in secteurs where consent

would be legally and practically necessary.

From Dangerousness to Suffering

Three-quarters of hearings I observed were for hospitalizations based on parens patriae

criteria of imminent medical need. The remaining quarter were hospitalizations “at the demand

of a representative of the state” (SPDRE), where the prefecture of police requested a

hospitalization for an “infringement of the security of persons” or “public order.” SPDREs were

a subset of cases that most resembled those in New York. Of 24 such patients, all were

diagnosed as having a psychotic disorder, 88% had been hospitalized before, and 71% had made

a threat, destroyed property, or attacked someone just prior to their hospitalization. They also

made for particularly contentious hearings: 70% of these patients clearly expressed opposition to

their hospitalization, and three of the four patients I saw released were SPDREs. One JLD, who

said he usually felt “uninterested” by hospitalization hearings, noted, “A judge is someone who

is supposed to resolve a conflict…For SPDREs I actually feel useful, because it looks like

something closer to incarceration.”

Legal decisions that balanced individual rights and the protection of society were familiar

ground for judges, but also unstable ones. People who had been disorderly in public arrived

twelve days later at hearings heavily medicated and passive. Psychiatrists, many of whom

adamantly did not see policing as part of their role, often made little mention of current “risk” in

medical certificates. In one case, the police stopped a young Malian immigrant outside a train

station during an investigation into a suspicious package. They arrested him when they found a

25

knife and transferred him from a jail to a hospital when he voiced “delusions.” His lawyer

opined, “At no point have the ‘troubles to the public order’ really been characterized here. We’re

not in a [hospitalization based on need-for-treatment] here. The standard is different.” The

decision to leave him in the hospital, however, elided the question entirely: “Monsieur suffers

from a delirium and hallucinations in a context of troubles with his mood since last autumn. He

only partly understands the pathological character of his troubles and his need for treatment.”

In another case, the judge read the prefecture’s order of hospitalization, which talked

about a woman who had “threatened her neighbors with a deadly weapon.” The hearing revealed

that this portrayal was exaggerated—the woman had a toy gun—but the judge left her in anyway.

She explained that she was not so much ignoring the law as choosing between competing

imperatives within the French legal repertoire:

For the law to permit such an infringement on the rights of persons, there has to be

another, more important right to justify it. And that’s the right to the protection of health.

The law says, ‘For someone who needs care but cannot demand it, the state must step in

to organize care.’

In a context of budgetary austerity, judges and lawyers had seen the average length of

hospitalizations plummet. Judges’ “orders” thus functioned as both authorizations and

admonitions towards hospitals. One week, each ended with the declaration that hospitalization

“must continue so that gains can be consolidated, and the doctors have sufficient time to

construct, with the patient, a structured project for discharge, which will permit the patient to

progressively return to a normal life, stabilized and in safety.” They stretched looping out,

putting off the question of whether patients’ resistance made them more “dangerous” than

26

“suffering” to a future when they would have gradually come to consent to treatment on an

inpatient ward.

There was, nonetheless, a problematic remainder. One psychiatrist sounded the alarm in

an interview that “there are SPDREs that are abusive, such as when the municipality uses it as a

solution to someone who is disruptive in the street” or in public housing. The case of a 39-year-

old woman seemed consistent with the fear that SDPREs were being used to manage a grey area

between disruptiveness and criminality. Her lawyer argued that “no risk to the public order has

ever been shown.” The prefecture intervened:

Prefecture’s Attorney: I want to re-center the debate. Does she need care or not?

Patient’s Attorney: Wait, it’s not that at all! She never aggressed anyone. When she went

to the police to complain about her neighbors, they simply said they ‘detected suffering’

and hospitalized her.

Prefecture’s Attorney: Again, let’s look forward: is she going to take medication on her

own? We have four doctors saying she needs treatment. We have to do something!

Patient’s Attorney: And we have another expert saying that she ‘has the power to make

decisions and a therapeutic alliance’ and poses ‘no risk to the public order.’

Prefecture’s Attorney: Yet even that doctor talks about ‘psychic fragility’!

Judge [to patient]: You need to understand that we’re not in a penal situation here. It’s

not about guilt. [Speaking to all] We have a woman who isn’t doing well and we need to

figure out what is best for her. That is the spirit that will guide my decision.

Afterwards, the judge decided to bring in another psychiatric expert, noting, “Even if they put

her on a heavy injection after she killed three people, I need to know whether that treatment is

really necessary.” The parties—except for the patient herself—shifted the terrain of debate from

27

“public order” to parens patriae, evaluating the woman’s need for treatment, her mental state,

and her willingness to engage with psychiatry. When the evaluation suggested the woman was

truly consenting, the judge ended the hospitalization—confirmation that actualizing a right to

treatment could eventually restore someone’s freedom.

Foucault (2008:220) claimed that in 19th-century France, psychiatry consolidated its

power when it adopted “the notion of danger” to “transform an act of assistance into a

phenomenon of protection.” Yet hearings in contemporary Paris did the opposite, transmuting

disorderly persons into, as one judicial guide described it, “above all, people who suffer” (Giloux

and Primevert 2015:982). Judges created a loop of medical facilitation that defined consent,

suffering, and citizenship to qualify most patients as rights-bearing subjects who were

simultaneously objects of involuntary care. But when patient resistance seemed incorrigible and

dangerousness seemed much greater than disease, judges could redefine citizenship as procedural

protection from state power. Revealingly, in judicial statistics, the highest rate of release was for

cases where the prefecture wanted someone to remain in the hospital and their psychiatrist

wanted them to leave.14 Hearings were a settled procedure that reinforced psychiatrists’ control,

either through encouraging consent or in releasing unwanted patients from scarce beds.

New York: Unsettling Compliant Courts

Legal Constraint in a Fragmented System

14 Ministère de la justice. “Statistiques en matière de soins sous contrainte 2012-2018.” Retrieved October 10, 2019 (psychiatrie.crpa.asso.fr/700).

28

New York State was long similar to France in the scale of its public asylums—which by

the mid-20th century housed nearly one-fifth of total inpatients in the U.S.—and the discretion it

gave to doctors in filling them (Grob 1991:90). Subsequent to a 1874 law, admission required a

certificate from the graduate of a “reputable medical school” and a judge (Dwyer 1988:88). Yet,

as a Special Committee on Mental Illness and Due Process (1962:7) described hearings in the

early 1960s, real legal protections were absent:

The patients who have requested a hearing, dressed in pajamas and hospital bathrobes,

wait in a straggly gray line to present their protests against being ‘sent away’…Their

stories are sometimes rambling and incoherent, sometimes only a pitiful plea to go home.

There is no regular representation of the patient’s rights…The hearing[s] may not meet

minimum constitutional requirements.

The Committee (1962:14) argued that people hospitalized in psychiatry were entitled to

“watchful protection of [their] rights” that would be best guaranteed by a specialized Mental

Health Information Service (MHIS). Legislation creating MHIS in 1964 charged it with

providing “legal service and assistance to patients,” including advising them as to their “right

to…judicial hearing and review.”15

Although France and the U.S. began closing psychiatric beds around the same time, the

creation of MHIS was emblematic of how the process in the latter sought to empower patients as

“self-governing subjects…self-reliant, autonomous citizen[s]…capable of self-control and

choice” (Bagnall and Eyal 2016:42). Although New York State’s statutory commitment criteria

are based on a “need-for-treatment” like in France (Table 1),16 the courts have added the

15 New York Code – Mental Hygiene. Article 47. Retrieved November 19, 2019 (https://law.justia.com/codes/new-york/2010/mhy/title-e/article-47/47-03/).16 New York Code – Mental Hygiene. Article 9.27. Retrieved January 20, 2018 (https://www.omh.ny.gov/omhweb/forensic/manual/html/mhl_admissions.htm).

29

requirement that a person “poses a substantial threat of physical harm to himself or others”

(Matter of Harry M., 568 N.Y.S.2d). In Rivers v. Katz (495 N.E.2d 337 [1986]), an appeals court

established a separate process for involuntary medication. These rulings shifted the official basis

of involuntary hospitalization from the state’s parens patriae to its police power. “Rights” were

construed in negative terms as freedom from unwanted treatment and detention without due

process (Gong 2017). Hopes for the reforms were high: advocates declared that this “Magna

Carta” for the mentally ill would “virtually eliminate involuntary hospitalization” (qtd. in Morris

1978:398).

Surprisingly, new statutes in New York went into effect with “little fanfare and no

opposition” (Andelman 1973). The unsettling changes were blunted by both a new optimism

about the mental health system and an older deference to medicine. Civil rights advocates and

the Bar in New York actually agreed with psychiatrists that “rapid noncompulsory admission to

mental hospitals is good for most patients” and ensures “effective treatment and early release”

(Special Committee 1962:54). As in France, the expansion of the community mental health

system seemed to decrease the need for legal constraint. By 1980, 71% of admissions were

voluntary (NIMH 1985:45). Moreover, by replacing judicial certification of initial

hospitalizations with judicial reviews held an average of two weeks later, reforms actually

“greatly reduced the state’s reliance upon courtroom commitment hearings” (Weddle 1998:22)

even as they expanded rights within them. Two decades later, one survey concluded that “the

difficulty researchers have had in demonstrating a clear effect of the new statutes in restricting

admissions is impressive” (Appelbaum 1994:37).

Unlike in France, inpatient commitments are almost entirely absent from contemporary

discussions of mental health policy at the city, state, and national level (cf. SAMHSA 2019a).

30

But as the U.S. closed 80% of psychiatric beds, commitments became a privileged route into the

remainder. In a 2018 national survey, over half of psychiatric inpatients were held involuntarily,

a figure that rose to 89% for public facilities (SAMHSA 2019b:29) (Figure 3). An ER doctor

explained that, since insurance was more likely to pay for an involuntary hospitalization, “We

don’t bother trying to convince people to admit themselves [voluntarily] if they don’t want to be

here.”

While the secteur policy fused hospital and community care under a single auspice, de-

institutionalization in New York separated the two (Grob 1991). Consequently, inpatient

psychiatrists have limited organizational resources to guarantee follow-up care, or even contact a

person’s outpatient provider without their agreement (see Rhodes 1991). The two are nonetheless

linked through programs like involuntary outpatient commitments, under which judges obligate

patients who have been repeatedly hospitalized (or incarcerated) in a context of medication non-

compliance to accept treatment in the community (Brodwin 2012; Gong 2017). The program’s

euphemistic name, “Assisted Outpatient Treatment” is not entirely inaccurate: court orders apply

both to patients and providers, obligating private (albeit Medicaid-funded) clinics to treat and

house unruly, unwanted, and expensive patients. Getting a court order requires that a hospital

keep patients for a several week application period. The threat for non-compliance is

hospitalization.

Other actors, too, have made involuntary hospitalizations an important if temporary step

in a fragmented “institutional circuit” (Hopper et al. 1997). Recent ethnographies show how

police officers use civil commitments as an alternative to arrest in managing disorderly public

behavior (Herring 2019; Seim 2017); one-third of patients I saw in hearings were initially sent to

the hospital by police. Hospitals are not supplanted by control through the criminal justice

31

system, but contribute to it (Lara-Millán 2014). Nearly 20% of the hearings I observed were for

individuals transferred from the county jail, whose mental health units were not authorized to

deliver involuntary medication. All told, although the length of stay is shorter (a median of 14

days, rather than 31), New York City actually has a higher rate of involuntary admissions than

Paris.17

Through this, the key statutes and procedures for civil commitments have been

remarkably stable. But courts are now the primary site for regulating a range of demands to use

commitments as a lever for controlling patients and inmates, getting insurance to cover care, and

accessing outpatient services (see Simmons 2020). Unlike in France, judges and lawyers felt that

the external pressure was largely towards greater curtailment of patients’ rights (Gong 2017;

Sawyer 2019), in a context where psychiatrists’ organizational resources for keeping a grip on

them seemed insufficient. Yet, as I show, this had not led to a new form of settled collaboration

between law and medicine.

Intensifying Advocacy in Unsettled Hearings

Early accounts of post-reform commitment hearings in New York City described hospital

courts “where no law is discussed nor legal precedents cited” (Tomasson 1970). MHIS attorneys

only advocated for release one-third of the time (Gupta 1970:437). Rather, they functioned as

brokerage professionals (see Castellano 2011; Kellogg 2014) who helped judges and

psychiatrists conform to the new law and encouraged patients to accept treatment. In 1980,

however, a state report noted that “a more traditional lawyer-client role” had “emerged” and that

the service’s advocacy had taken on a “more adversarial nature” (State Commission 1980:18,44).

Comparing the rechristened “Mental Hygiene Legal Service” to MHIS, one staff attorney noted,

17 Estimates based on interviews and Freedom of Information Act requests.

32

“It used to be very informal, and we rarely if ever won. Now it feels like we win more cases, and

court has become much more serious as court.” This section demonstrates how legal advocacy

has intensified as courts confront “resisting agents,” patients whose recalcitrance had to be

overridden and taken into account simultaneously.

Parallel to Parisian professionals’ use of written conclusions and references to the legal

code to signal adherence to the norms of civil law, lawyers in New York enacted the “normal”

courtroom procedures of common law through the qualification of experts, direct and cross-

examinations, and debates over the admissibility of evidence. But MHLS attorneys were less

willing to let psychiatric testimony to “suffering” trump due process (Player 2015). As one

attorney explained:

You might have someone who really wants to be out, but by any objective measure is

pretty mentally ill and could benefit from treatment in a hospital, but if that’s not what

the person wants, our job is to advocate for them to be released…In this country we do

value due-process liberty interests above everything else.

An early law review article argued that this advocacy had limits: MHIS attorneys were “not

competent to challenge medical diagnosis” (Columbia Law Review 1967:680; see also Holstein

1993:xviii; Warren 1982:140). But present-day MHLS lawyers cast doubt on the very diagnosis

of mental illness, as in the case of a young black man brought in by his family:

Patient’s Attorney: You said he voiced delusional content in the ER?

Psychiatrist: Yes.

Patient’s Attorney: But you know he is a regular marijuana smoker, right?

Psychiatrist: Yes.

33

Patient’s Attorney: And now he’s refusing to speak to you, so it’s fair to say you have no

idea what his current symptoms are?

Psychiatrist: Well, he’s guarded, he has flat affect, he seems internally preoccupied… it’s

consistent with psychosis.

Patient’s Attorney: People can have a ‘flat affect’ and be ‘internally preoccupied’ without

a thought disorder, isn’t that right?

Arguments that clients really had developmental disabilities or dementia—conditions not subject

to involuntary hospitalization—rarely seemed to convince judges that patients were not, in some

sense, mad. But they highlighted how limitations to the organizational resources of psychiatrists

created a paucity of knowledge of their own charges.

This legal advocacy could be unsettling even when psychiatrists “won.” In hearings on

involuntary medication, MHLS attorneys argued for removing specific medications from the list

of those that psychiatrists were authorized to give:

Patient’s Attorney: You’re asking for a mood stabilizer, but you’re not prescribing one

currently?

Psychiatrist: No.

Patient’s Attorney: You’re already trying to deliver Zyprexa [an anti-psychotic] via an

injection, and that has mood stabilizing properties?

Psychiatrist: Yes, but we still might need a mood stabilizer, it could be the safest and

quickest way to get him well. I would like to have it at my discretion.

Patient’s Attorney: But mood stabilizers aren’t available as injectables, so he can just stop

taking it when he leaves?

Judge: Enough! I’m removing the drug from the order.

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Ultimately, in a quarter of cases judges placed modifications or reservations on favorable rulings

for the hospital, by striking medications or setting (seemingly arbitrary) limits on how long the

hospitals could hold someone. Like attorneys, judges seemed to have embraced decades of

critiques of psychiatric expertise for its arbitrariness, unreliability, and lack of predictive power

(Craciun 2016; Strand 2011). One told me, “I need the MHLS attorneys”—not psychiatrists—“to

tell me if a medication is contra-indicated.”

Lawyers were as likely to argue that treatment would be ineffectual in altering the

patients’ behavior as to claim that it had been successful enough that the patient could leave

(Table 5). In the case of a middle-aged man with several passages through state hospitals, the

psychiatrist wanted to use Clozaril, a potent anti-psychotic whose side-effects can be

debilitating:

Patient’s Attorney: So he hasn’t improved on any previous medications you’ve put him

on [during this hospitalization]?

Psychiatrist: No, he’s basically been the same. But in the past…

Judge: [To patient] Are you going to take this pill?

Patient: No, not that one! I’ll take the others.

Hospital’s Attorney: [To psychiatrist] Can he improve without Clozaril?

Judge: He [the psychiatrist] has no idea! I’m going to sign the order, but I think his [the

patient’s] delusions are his baseline.

Psychiatrist: No! In the past he’s improved enough to be discharged.

Judge: Oh come on, you just dumped him.

35

In this case, this intensified legal advocacy reflected a practical cynicism about psychiatry’s

capacity to overcome both the patient’s unwillingness to take medications or his apparent

biological resistance to their effects.

Indeed, because most patients are discharged quickly with referrals to outside private

providers, less than half show for their first appointment. This makes it “harder to have control

over them.”18 MHLS lawyers—whose had their offices in hospitals and free access to wards—

were well-aware of psychiatry’s limits. When I asked a young MHLS lawyer if he was worried

about a suicidal client returning to the street unmedicated (something one Parisian lawyer said

kept her up at night) he said:

I’m not allowed to think about the consequences of a discharge. If someone is going to be

on the street, that’s not something I can consider…I mean, after two more weeks, they’re

still going to go on the street, and they’re still going to stop complying with their

medication anyway.

He concluded, “Psychiatry has nothing to offer my clients except a short, synthetic sanity.” Even

as their legal strategies frequently left intact psychiatric testimony as to why patients met criteria

for involuntary hospitalization, lawyers insisted that the choices of these resisting agents—to

withhold information or refuse certain medications—had to be incorporated into court rulings.

They simultaneously emphasized psychiatry’s limited grip on patients and undermined it.

Negotiating Short-Term Compliance

Despite this adversarial tone, lawyers and psychiatrists still had potential grounds for

18 New York Health and Hospitals Corporation. December 13, 2018. “Minutes: Strategic Planning Committee Meeting.” Retrieved November 20, 2019 (https://www.nychealthandhospitals.org/wp-content/uploads/2018/12/201812-strategic.pdf).

36

collaboration that might make the hearings produce settled, predictable effects. One veteran

MHLS attorney told me, “I hate medications, I think they’re terrible. But we [MHLS attorneys]

have a lot of conversations where we wind up convincing people to take them. We’re much more

successful than [medical] staff.” Previous research has shown how, in community mental health

services, clinicians encourage medication compliance as a tool for generating “insight.” This

“awareness of illness” is sometimes lacking in people with psychoses, but can be cultivated to

facilitate “self-governance” (Gong 2017:214,204). But, as another attorney explained, “We don’t

talk about insight but just ‘look, this is what the hospital is looking for: behavioral control and

adherence to medication.’” In seeking short-term medication compliance, professionals signaled

respect for patient choice and autonomy while meeting the organizational imperatives of

hospitals to process people quickly.

In hearings on “treatment over objection” orders, psychiatrists had to testify as to whether

patients had a “capacity” to make “reasoned decisions” about medication (Rivers v. Katz (495

N.E.2d 337 [1986])). Psychiatrists defined “capacity” tautologically. Patients who agreed to take

medication had “capacity.” Those who refused did not. Yet even for patients without “capacity,”

professionals appealed to patients as agents with enough residual rationality assess the costs of

compliance relative to the opportunity to be released. The following is from the case of an

elderly Russian man transferred from a nursing home:

Patient’s Attorney [to Psychiatrist]: There’s no guarantee he’ll get better with meds, isn’t

that true?

Psychiatrist: Well it’s…

Judge [cutting off Psychiatrist]: Of course not! [To Patient] Listen, do you want to go

home?

37

Patient: Yes, but those things [medications] are poison!

Judge: If you want to go home, you have to take meds. [To Psychiatrist] How long until

his mood stabilizer reaches a therapeutic level?

Psychiatrist: Usually about a week, but we like to keep them to observe…

Judge: Okay, I’m ordering the meds, but you only get to keep him for one week if he

takes them.

Here, judges joined in the assumption that “psychiatric medication is indeed unequivocally

useful for all patients” (Gong 2017:214). But even psychiatrists articulated the “benefit” as

“being able to be discharged” while the “cost” of non-compliance was often “remaining in the

hospital.” Neither profession followed their Parisian homologues in pushing consent to a stable,

medicalized identity.

MHLS attorneys tightly control testimony to show patients’ willingness to take

medication inside the hospital while eliding the question of what they would do afterward. The

skill was on display when they managed to extract concessions from both doctors and their own

clients, as in the case of a middle-aged white man with schizophrenia:

Patient’s Attorney: Would you be willing to lower the dose of his injection from 400 to

300 milligrams?

Psychiatrist: It’s possible… It’s not certain it would be therapeutic…

Patient’s Attorney: So you’d do it then?

Psychiatrist: His current dosage is what is most likely to keep him in the community and

out of fights but… I’ll give it a shot.

When his client took the stand, he encouraged compliance, a new deal in hand:

38

Patient: The meds make me sick, and I don’t have the condition [schizophrenia] they are

prescribed for.

Patient’s Attorney: Would you feel better if you had a lower dose?

Patient: I mean, the lower the better, I guess.

Patient’s Attorney: So if the doctor prescribed it, you’d be willing to take it?

Patient: I don’t want it, but if they insist, I’ll take it… in oral form.

A switch from a monthly injectable to a daily pill would likely hasten his return to non-

compliance. But in the courtroom, looping effects had narrowed “compliance” to behavior in the

hospital, not outside.

One tool to align legal and fiscal pressures to discharge with a need to control patients in

the community enough to prevent rehospitalization was Assisted Outpatient Treatment (AoT).

Although AoT has been the subject of virulent debates (see Gong 2017; Rose 1998), many

MHLS lawyers actually appreciated the way court orders to take medication or risk being

returned to the hospital shifted their clients’ calculus. As one explained:

I had a client with 28 hospitalizations, and for him, AoT made sense. People want to stay

out of the hospital. This [AoT] gives them an incentive to take their meds. No one ever

says ‘you know, I’d prefer to be in a psychiatric hospital,’ even if they’re living in a

homeless shelter.

At one AoT hearing, the MHLS attorney informed the judge, “My client is objecting to the AoT

order.” The judge responded, “Have you explained to your client that if he prevails, he’s likely to

stay in the hospital for a long time? Why don’t you confer with him to make sure he wants to

object?” He then addressed the patient directly:

39

I want you to look inside yourself. If you leave the hospital, you need AoT…But I have

doubts about your compliance. I need to see that you have some skin in the game. If not,

I’m not going to sign, and that means that you’re going to stay for… whatever.

His threat was doubly empty. The hospital would certainly not keep him for “whatever.” And, as

he recognized in demanding a “certain kind of compliance,” even the menace of being picked up

by the sheriff for non-compliance was largely hollow. Only twelve percent of such patients in

New York City would actually be hospitalized following an ER evaluation.19 In this case, though,

the patient conferred with his attorney, who then announced, “He’s no longer opposing the AoT

order.” The judge signed it and declared, “Congratulations!”

One enormous constraint was the limited incentives the key actors could actually offer. In

its early days, MHIS had social workers who searched for post-hospitalization placements and

sued the state for not providing them (Herman 1982). Judges, for their part, often retained

patients who didn’t “have anywhere to go” or lacked a “caretaker” (Holstein 1993:120). Three

decades later, nearly a third of patients were to be discharged to homeless shelters. Yet MHLS

attorneys never directly argued for improved outpatient services or housing in exchange for

compliance. Instead, some accepted the redefinition of legal coercion as a form of resource-

constrained welfare (Lara-Millán and Van Cleve 2017). An attorney noted, “These days, we’re…

get[ting] calls from people who don’t want to be discharged until there’s something in place.

But, this place [the hospital] is not a Best Western. You don’t have a right to be here.”

Advocating for patients did not mean ensuring care, but redefining “compliance” to give them a

chance to distance themselves from it.

19 Office of Mental Health. “AoT Program Statistics: Removals Resulting in Hospitalization.” Retrieved June 3, 2019 (https://my.omh.ny.gov/).

40

Resistance and Behavioral Control

Forty-four percent of patients in New York entered the courtroom declaring their

opposition to any psychiatric treatment (Table 4). Parallel to the subset of patients who refused to

consent and whose behavior was hard to trace to “suffering” in Paris, people who held fast to that

position despite attempts to spur compliance posed particular problems in New York. In these

cases, arguments that redefined “resistance” and “compliance” in terms of short-term behavioral

control created unsettling looping effects.

In O’Connor v. Donaldson (422 U.S. 563 [1975]), the Supreme Court ruled that a

mentally ill person should not be confined “if they are dangerous to no one and can live safely in

freedom.” But previous research found that both legal and medical actors worked around this

standard based on an implicit parens patriae understanding that the severe illness merited

treatment (Appelbaum 1994; Holstein 1993; Warren 1982). In some cases, I found judges

similarly willing to accept debatable evidence of “dangerousness” in light of seemingly

undeniable madness:

Psychiatrist: The patient actually came in himself for an eye injury, but was transferred to

psychiatry because he was speaking in sentences that made no sense. He claimed that he

was an actor in the play ‘Clockus,’ that he had seven daughters and seven spouses, and

that he wanted a diagnosis with ‘more texture.’ He was also making non-sensical rhymes,

such as he was ‘born in dorn.’

Hospital Attorney: And does that eye injury show that he is in danger?

Psychiatrist: [pause] Uh… yes, if he doesn’t take medicine for it, he could get an

infection.

41

In other cases, courts deferred to the criminal justice system: I never saw a judge deny a request

for medication for a patient transferred from jail or “release” them back to it. The ease of proving

“dangerousness”—and subsequent rates of release—varied by race. One black man’s

dangerousness was his “paranoia that the police are out to get him.”

When MHLS attorneys concluded that claims about patient danger were flimsy and that

further hospitalization would be futile in achieving compliance, they could draw on the most

assertive parts of the American legal repertoire. This often started with objecting to hearsay

statements from families or outside clinicians, which forced psychiatrists to talk only about

dangerous actions observed within the hospital. This created a situation where, as Goffman

(1961:37) described it, “the inmate’s reaction to his own situation is collapsed back into the

situation itself.” In one instance, the doctor described the patient’s “florid mania,” “psycho-

motor agitation,” “grandiose delusions,” “accelerated and pressured speech,” “non-linear

thinking,” and “sexual disinhibition,” only to spend most of his time on a single “dangerous” act

on the ward: destroying a paper towel dispenser.

This narrowing created an opening for MHLS attorneys to challenge qualifications of

patients as “resisting” by evoking a modicum of compliance with behavioral expectations, if not

treatments, while an inpatient. A 68-year-old white woman had been brought to the ER after

calling the police about her neighbors and, upon their arrival, making a threat-laden accusation of

stealing. It was her fifth hospitalization in as many months. The psychiatrist described her as

“hostile,” “intrusive,” and “paranoid,” all of which were “major risk factors,” especially given

her refusal of all medication. When it came to cross examination, the MHLS attorney fired off

questions about her behavior on the unit and quickly cut off the psychiatrist mid-answer:

Patient’s Attorney: She’s only made vague threats, right?

42

Psychiatrist: Yes, but…

Patient’s Attorney: She has no record of violence?

Psychiatrist: No, but we have reports of harassment…

Patient’s Attorney: There’s been no physical altercation on the unit?

Psychiatrist: No, we’re really more worried about…

Patient’s Attorney: She hasn’t acted in a suicidal fashion?

Psychiatrist: She does have one suicide attempt in ’98…

Patient’s Attorney: So nothing currently.

The judge addressed the woman directly: “You have a great deal of paranoia about stealing,

which seems unfounded and irrational. Does that make you a danger to others? No. Please stop

making calls [to the police] and coming back to the hospital.” She summarized, “I cannot hold

you” and then directed the MHLS attorney to “help her change the locks on her house.”

Even though judges still typically ruled in favor of hospitals, a small number of releases

engendered a certain fatalism among clinicians, particularly when “compliance” narrowed to

behavior on the witness stand. The head of psychiatry for a public hospital explained:

Clinical Director: [Decisions are] all over the map. It depends on who’s here [which

judge] and what day.

Researcher: Do you see anything systematic in terms of who is being let out?

Clinical Director: No. Someone needs to educate the judges that you can go to court and

answer nicely, even if the doctor says ‘yesterday, they threw a table and chair because

they didn’t like lunch.’

Researcher: Those are the patients who pose the most problems?

43

Clinical Director: Right. There are people who can present themselves well for ten

minutes and they might get out, get high, take a brick and hit someone, because that’s

how they got here in the first place.

Hearings often demanded that doctors wait hours for their turn to testify and, if the court

adjourned without reaching their case, wait another week for authorization to medicate their

patients. One attorney explained that given these costs and unpredictable outcomes, in some

cases “just asking for a hearing and getting them on the court calendar is enough for the hospital

to discharge them.” But when I asked whether he got pushback from the hospitals for letting

patients out, a judge told me, “No, not really. They have hundreds of patients, with new ones

arriving every day. They’re overwhelmed. If someone needs to go, they just let them go.”

Looping thus sped the unpredictable churn of patients through the system rather than

pinning them in place. In the case of a heavily-tattooed middle-aged white man, the doctor

testified that he had been admitted to the hospital after voicing “homicidal ideation” towards

someone in his building. On cross-examination, the MHLS attorney fired off a rapid string of

questions about current violent ideation, whether he had been restrained on the unit, and if he had

problems with staff, rapidly cutting the psychiatrist off after each “no.” The patient took the

stand and demurred at the question “do you have a mental illness?” The attorney took a more

directive tack:

Patient’s Attorney: You’ll go live somewhere else?

Patient: Sure, do you think the social worker could help me find… [attorney cuts off].

Patient’s Attorney: Do you want to hurt anyone?

Patient: No.

Patient’s Attorney: Would you go to the ER if you did?

44

Patient: Yes.

The judge ruled quickly: “Based on the testimony and the facts adduced in this hearing, the

application of the patient for release is granted.” The psychiatrist protested, “He was admitted

this time just two days after we last discharged him!” The man stood up and declared, “Good

luck everybody,” and walked out. He would probably be back.

Discussion and Conclusion

In this paper, I have examined how civil commitment hearings become settled, a concept

that captures adherence to legal mandates that produces predictable effects favorable to the

dominant parties to a procedure, outcomes of central interest to socio-legal studies (see, e.g.,

Edelman 1992; Galanter 1974; Meyer and Rowan 1977). Settlement demands agreement from

key actors about their roles and rules of interaction (Fligstein and McAdam 2012; Swidler 1986),

in this case collaboration between law and psychiatry that simultaneously affirms mad people’s

rights while controlling behavior seen as dangerous and disruptive. In Paris, legal professionals

endorsed medical characterizations of patients as suffering citizens and redefined patients’

variable consent as further validation of that qualification. Introduced in a context of legal

upheaval, hearings became a settled procedure for facilitating the delivery of involuntary,

medicalized solidarity. In New York, lawyers suggested that patients’ resistance to treatment,

however irrational, had to be taken into account even in a procedure that cited that resistance to

override patient choice. But when patients refused to offer even minimal treatment compliance,

cooperation between jurists and psychiatrists broke down as lawyers redefined compliance as

short-term behavioral restraint. In this conclusion, I consider this study’s limitations and

45

implications for the study of psychiatry, looping and social control, and processes of

“subjectification” through legal, medical, and welfare interventions.

To what extent does this study simply reproduce well-worn national differences? My

argument steps away from the interpretation that the hearings are reflections of static legal

cultures (“adversarial” versus “bureaucratic” legalism) or value systems (“negative” rights to

freedom versus “positive” ones to care). These cross-country distinctions are filtered through

professionals’ more situated experience of the mental health field and its patients, and

constrained by the organizational resources available to control them. Although Paris and New

York City are hardly representative cases, my use of archival materials, as well as over three

hundred interviews throughout each country gives me some confidence that the divergence in

settlement is likely more acute elsewhere. New York’s mental health system, after all, is

comparatively well-resourced in both beds and clinics, even if key organizational features (like

the separation between hospital and community and the need for law to access many services)

are shared throughout the U.S.

A different concern might be that, in an era where scholars claim that the “overt use of

coercion has been replaced” (Perry et al. 2018:109) by community-based, recovery-oriented

services, civil commitments seem like a residual phenomenon. This paper, however, speaks to

the continuing importance of hospitalization (and the courts that regulate its use) as a back-stop

of social control for what Foucault (2008:54) called the “residue of all the disciplines.” Despite

narratives of “trans-institutionalization,” more people in France are forced into a psychiatric

hospital each year than there are total persons incarcerated (CGLPL 2018). In the U.S., repeated

hospitalizations are a criterion for accessing the intensive outpatient services whose more subtle

disciplinary techniques have attracted greater attention (Brodwin 2012; Gong 2017; Rose 1998).

46

Behind attempts at creating self-governing subjects in the community is the threat of a place

where coercion can involve physical restraints, forced medication, and “therapeutic” seclusion

for days on end.

Research on the growing imbrication of law and medicine has often focused on the

intersection of health care and carceral institutions (Castellano 2011; Gowan and Whetstone

2012; Lara-Millán 2014). Indeed, I have shown how civil commitments are part of an ongoing

back-and-forth with the criminal justice system. But they are also a tool for policing forms of

social disorder (like conflict between urban neighbors) partly outside the latter’s purview. This

paper suggests that law will remain central to mental health systems even if the injustice of mass

incarceration is rectified. California is simultaneously decreasing its incarcerated population,

building new psychiatric hospital beds, and loosening criteria for long-term civil commitments to

include chronically-homeless, substance-using “high utilizers” of emergency services (Sawyer

2019). Further research on the “legal control of marginal groups” (Stuart et al. 2015) should

include psychiatric hospitalization or risk missing how forms of coercion complement and

compensate for one another.

At the same time, this paper bears a caution for analyses that present psychiatry as having

reconstituted itself as a discipline engaged in ever-extending risk management (Craciun 2016;

Rose 1998; Strand 2011). The self-reinforcing loop of “medical cynicism” in New York is

parallel to “legal cynicism” (Sampson and Bartusch 1998)—doubts about the efficacy and

legitimacy of the exercise of the law, irrespective of support for its ultimate ends. Medical

cynicism does not mirror the well-worn critique of excess power of psychiatry (Foucault 2008;

Goffman 1961). Rather, it emphasizes how the organizational features of the American mental

47

health system, such as the ability of judges or insurance companies to abruptly rupture treatment,

disrupt and disempower psychiatric practice at ground level.

Theoretically, I have followed a general shift among comparative scholars in approaching

law as a nationally-specific “repertoire” of concepts, procedures, and roles (Christin 2018;

Dobbin 1994; Lamont and Thévenot 2000). The risk of an approach focused on how

professionals strategically “pick and choose from cultural repertoires” (Saguy 2003:126), though,

is it tells us very little about the ends to which those toolkits are used. Focusing on the

intersection of repertoires with the state’s organizational resources—from hospital beds to

surveillance capacity—shows how strategies of population management depend on negotiations

about what kinds of subjects professions and bureaucrats can actually create. The typologies of

“suffering citizens” and “resisting agents” are broadly consistent with what we might expect

from the French and American legal and welfare systems. But they are certainly not the only

possible resolution to the challenge of making rights-bearing mad people objects of legal

constraint, nor are they destined to stay the same over time, as the case of New York would

suggest.

Indeed, by showing how settlement has fallen apart in New York over time, I point more

broadly to the potential fragility of seemingly stable legal institutions in systems that could never

actually guarantee a full hearing for every deportation case or jury trial for each misdemeanor.

The sociology of law is already attentive to the techniques that discipline beneficiaries, litigants,

and defendants into playing their own role in ritualistic but substantively hollow enactments of

legal norms (Carlson 2017; Kohler-Hausmann 2013). But if “people…themselves are changed”

by expert classification and interventions, those changes constantly force experts “to rethink

[their] classifications” (Hacking 1995:369). Scientists, lawyers, and doctors often look as if they

48

are engaged in a top-down process of imposing new classifications on people, such as new

medical and psychiatric evaluations that divide “true” and “false” claims for asylum protection.

But we should follow the loops all the way around. While previous studies have focused on

looping as it shows up in formal classification schemes like the Diagnostic and Statistics Manual

(Eyal et al. 2010; Navon and Eyal 2016), its origins are ultimately in interaction, as professionals

adapt in the face of the incorrigible agency of the concrete individuals before them.

Critics of Hacking have argued that he points to an “interesting phenomenon without

providing the resources for systematic modeling, analysis, and ultimately, explanation”

(Kuorikoski and Pöyhönen 2012:188; see also Brossard 2019). Looping would thus be more

useful with more attention to what is actually looping. Transformations in welfare, legal, and

medical systems in both France and the United States have created a new imperative that

“agency” should be “created, not negated, by systems of control” (Kaye 2013:227; see also

Bouquet and Jaeger 2017; Dubois 2003; Gong 2017). Yet through comparative analysis, we see

that what kind of subjectivities such interventions are supposed to cultivate differs. “Consent”

was at the deep level of volition, but it was also flexible, while “compliance” was at the

superficial level of behavior. We might find such contrasts elsewhere, such as the contested

definitions of “consent” in litigation over sexual assault next to the visible and rote “compliance”

of college administrators with new legal mandates around sexual harassment (Gualtieri 2020).

These differences might explain why in some cases looping ultimately stabilizes categories as

people “grow into the ways they are described” (Hacking 1998:21) while in others leads to

endless and unsettling changes in categories and behaviors “loop upon loop” (Hacking

1995:370). Further research might delve into looping effects tied to other kinds of subjects, like

passively “assenting” (Anspach 1993) or actively “collaborating” ones.

49

Examining the mental health system in an era where medicine was unchecked by law,

Goffman (1961:133) described the ritualized degradation by which a new admit to the asylum

“starts out with relationships and rights” and “ends up…with hardly any of either.” Today,

“rights” clearly weigh in, which makes the particular ways that mad-people exercise them all that

much more an “embarrassment” (Eyraud 2013:47) for polities that claim to respect individual

choice. In New York, even when empowered to make reasonable decisions, some mad-people

did not; in Paris, even when offered the solidarity of a universalistic welfare state, they turned it

down. Almost everywhere, legal, medical, and welfare bureaucracies are confronted with the

everyday organizational challenge of processing clients in a context of limited resources. But

they are also coping with the gaps between particular ideals of citizenship and their ability to

make citizens live up to them. Looping suggests that the meaning of citizenship itself is being

renegotiated along the way.

50

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Tables and FiguresFigure 1: Looping Effects in Paris and New York

Figure 2: Proportion of Public Hospital Patients Placed Involuntarily (France)*

* Data compiled from reports of Commissions Départementales de Soins Psychiatriques.

Figure 3: Inpatients by Legal Status, 1980 and 2018 (U.S.)*

Voluntary Involuntary - Civil Involuntary - Criminal Justice

0

10

20

30

40

50

60

70

8071.2

26

2.7

43 41

16

19802018

Perc

enta

ge o

f Pat

ient

s

* Data drawn from Mental Health, United States (1985) and National Mental Health Services Survey (2018). No time-series data comparable to France is available.

Table 1: Comparing French and American Medical-Legal ContextsFrance United States (New York)

1965

1967

1969

1971

1973

1975

1977

1979

1982

1988

1993

1995

1997

1999

2001

2003

2005

2007

2009

2011

2013

2015

0

10

20

30

40

50

60

70

80

90

100

Among Hospital Pa-tients

Among Hospital Admissions

Perc

enta

ge o

f Pat

ient

s In

volu

ntar

y

59

Context Crisis due to budget cuts, rise in involuntary care, and pressure for psychiatry to police delinquency and dangerousness.

Fragmentation makes it difficult to monitor and control patients in the community; increasing use of constraint as lever for accessing services.

Criteria for Involuntary Hospitalization

“Mental illness that renders the consent of the sick person impossible” AND

“A state that requires immediate care under constant surveillance” AND

Third party demand OR “imminent peril”*

“Mental illness for which care and treatment in a hospital is essential” AND

“Such impaired judgment that he is unable to understand the need for care and treatment” AND

“Poses a substantial threat of physical harm to himself or others.”°

Introduction of Judicial Review

Made systematic in 2011 under pressure from European institutions and constitutional court, in context of greater mandates for patients’ rights and increasingly assertive judiciary.

Expanded in the 1960s and 1970s as part of the broader civil rights movement; legal standards relatively stable subsequently, with some pressure to expand constraint.

Character of Judicial Review

Automatic after 12 days; limited to whether hospitalization will continue.

At demand of patient; deals with “retention and release,” “treatment over objection,” and involuntary outpatient treatment.

* Another modality, “psychiatric care at the demand of a representative of the state,” allows hospitalization in instances of a “infringement of the security of persons” or “grave infringement of public order.”° Can be met by a finding of “grave disability” (inability to provide for food, clothing, and shelter).

60

Table 2: Patient Demographics and Psychiatric CharacteristicsParis (n=107) New York (n=206)

Race

WhiteBlackArabAsian

50%24%25%1%

WhiteBlackArabAsian

Hispanic

24%44%1%6%26%

Gender Male 53% Male 61%

Age

<3030-59>60

Average

22%66%12%40.8

<3030-59>60

Average

22%66%12%39.9

Diagnosis

Psychosis*Anxiety/Depression

Other°

82%8%9%

Psychosis*Anxiety/

DepressionOther

Bipolar Disorder

83%1.4%.7%15%

Prior Hospitalization

YesNo

Not Mentioned

51%11%38%

YesNo

Not MentionedPresumedUnknown

70%6.7%11.6%7.9%1.8%

* For the U.S., “psychosis” includes diagnoses of Schizophrenia, Schizo-Affective Disorder, or Psychosis Not Otherwise Specified. This detail is not given in hearings in France, where Bipolar disorder would be presented as psychosis. ° Includes eating disorders and personality disorders.

Table 3: Lawyers’ Stances During Hearings

Opp

ose

Hos

pita

l w/

case

-sp

ecifi

c

Opp

ose

Hos

pita

l w

/o c

ase-

spec

ific

Stat

emen

t w

/o C

lear

O

ppos

ition

or

Sup

port

Supp

ort

Hos

pita

l ag

ains

t cl

ient

Supp

ort

Hos

pita

l w

ith c

lient

No

argu

men

t

Paris 22.8% 9.7% 15.2% 16.3% 21.7% 14.1%

New York 83.6% 9.8% 0% 0% 3.3% 3.3%

61

Table 4: Patient Stances During Hearings

Opp

ose

– A

ll T

reat

men

t

Opp

ose

– H

ospi

taliz

atio

n O

nly

Opp

ose

– C

ondi

tions

/ M

edic

atio

n

Am

bigu

ous

Con

sent

–

with

So

licita

tion

Con

sent

–

With

out

Solic

itatio

n

Not

Pre

sent

Paris 15% 20% 7% 10% 15% 8% 24%New York 44% 26.4% 7.7% 0% 1% 4.4% 15.4%

Table 5: Legal Arguments for Release / Denial of Treatment Over Objection*

Arguments Based on Legal Criteria Argument Based on flaws in psychiatry, procedure, or treatment

New York Paris New

York Paris

Willing to Take

Treatment

39% (59)

46%(22)

Alternative Explanation for Behavior

28%(43)

10%(5)

Not Dangerous

37%(56)

17%(8) Side Effects 27%

(42)8%(4)

Capable of Surviving Outside

26%(40)

2%(4)

Treatment / Hospital

Ineffective

18%(28)

0%(0)

Less Restrictive Alternative

21% (32) N/A Alternative

Diagnosis15%(23)

0%(0)

Not Severe / Improving

16%(15)

27%(13)

Lack of Information / Justification

9%(14)

21%(10)

Work / Family / Life

Outside

0%(0)

29%(14) Procedural 1%

(2)32%(15)

* Analysis based on all hearings in which the attorneys made an argument or statement in favor of release of patient. N = 151 for New York, 47 for Paris.

62