1 Ayerst Laboratories, Medical Management of the Alcohol-Dependent Patient 5 (1975).

2 California Highway Patrol, Fact Sheet 1 (1974). Report released by Sargent Lance Erickson, Public Affairs Coordinator, Southern Division, California Highway Patrol, Los Angeles, California (March 14, 1980).

3 “Under the influence of intoxicating liquor” (legally drunk) has been characterized by Cal. Veh. Code § 23126(3) to refer to that blood-alcohol level in the defendant's blood of .10 percent by weight and over. Cal. Veh. Code § 23126 (West Supp. 1977).

4 Blinder, , & Kornblum, , The Alcoholic Driver: A Proposal for Treatment as an Alternative to Punishment, 56 Judicature 24 (1972).Google Scholar

5 Interview with John Elliott, Officer of the Traffic Division, City of San Diego Police Department, in San Diego (July 17, 1979). There were 8,388 arrests in San Diego for driving while under the influence of intoxicating beverages in 1977. The figure rose to 8,645 in 1978, and there were 4,156 in the first five months of 1979.

6 The drug's generic name is disulfiram; it was registered under the name Antabuse by its manufacturer, Ayerst Laboratories.

7 Observation of Judge Howard Bein, conducting arraignment proceedings of drunken drivers in Department 3, El Cajon Municipal Court, City of El Cajon, California (July 11, 1979).

8 Physicians Desk Reference 594 (33d ed. 1979) [hereinafter PDR].

9 Interview with Officer Sylvia Binley, Director of the El Cajon Probation Department Antabuse Program, City of El Cajon, California (June 17, 1979).

10 Former “Demonstration Programs in Antabuse,” which were funded bythe federal government and which subsequently have been funded in whole or in part by states and/or local governments, include: Cumberland-York, Maine; Columbus, Georgia; New Orleans, Louisiana; Pulaski County, Arkansas; Kansas City, Missouri; Lincoln, Nebraska; Sioux City, Iowa; Pordand, Oregon; State of South Dakota; Los Angeles County, San Bernardino County, and San Diego County, California. The only federally funded court referral Antabuse program left in the United States is in Sacramento, California. That program analyzes treatment of alcoholism with Antabuse. PRev.ous federally funded Antabuse programs were oriented toward evaluating enforcement, adjudication, public information, and treatment. See T. J. Springer, Program Level Evaluation of ASAP Diagnosis, Referral and Rehabilitation Efforts, Volume I—Description of ASAP Diagnosis, Referral and Rehabilitation Functions (September 1976) [hereinafter Program Level Evaluation].

11 Binley Interview, supra note 9.

12 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

13 Williston on Contracts, § 1604, at 665-68 (3d ed. 1970) [hereinafter Williston]. For a discussion of coercion, see text accompanying notes 104-12 infra.

14 See Commissioner of Correction v. Myers, 1979 Mass. Adv. Sh. 2523, 399 N.E.2d 452 (1979).

15 U.S. Const, amend. VIII, cl. 3.

16 For a discussion of privacy as a fundamental right, see text accompanying notes 157-61 infra.

17 For a discussion of strict scrutiny, see text accompanying notes 161-62 infra.

18 For a discussion of cruel and unusual punishment, see text accompanying notes 205-38 infra.

19 San Diego County's metropolitan area has a population in excess of one and one-half million people. See Thomas Bros. Popular Street Atlas 410 (ed. 1975).

20 W. Ammon, Report to the El Cajon Municipal Court on Progress of the Antabuse Program, El Cajon Probation Reports 1 (1974).

21 Id. at 1.

22 Id.

23 The Safety Action Project was formed with federal funds in the mid-1970's to instruct the states on alternative alcohol-treatment methods. The Project had limited funds and later its functions were merged with connected projects under the auspices of the National Highway Traffic Safety Administration. Telephone interview with Elaine B. Weinstein, Staff Officer, Traffic Safety Program, National Highway Traffic Safety Administration, Washington, D.C. (August 6, 1979).

24 Interview with Robert Kusek, Intake Officer, San Diego County Probation Department, El Cajon, California (July 17, 1979).

25 See Program Level Evaluation, supra note 10, at 1-36.

26 Binley Interview, supra note 9.

27 Interview with Thomas Penfield, Staff Attorney, El Cajon Office, The Defenders Program of San Diego, Inc., City of El Cajon, California (July 23, 1979).

28 See Program Level Evaluation, supra note 10, at 1-33.

29 Penfield Interview, supra note 27.

30 Interview with James M. Cloyd, Supervising Probation Officer, DWI Unit, Probation Department, County of San Bernardino, in City of San Bernardino, California (July 9, 1979).

31 Observation of Judge Bein, supra note 7.

32 Ayerst Laboratories, Now That You're on Antabuse (1976).

33 San Diego County Probation Department—Adult Services, Antabuse Instructions (unpublished instruction sheet printed as form Prob. 2109 (Jan. 1978)) [hereinafter Antabuse Instructions] (emphasis in original).

34 Id.

35 The daily uninterrupted administration of Antabuse is continued until social recovery and a basis for permanent self-control is established. This may range from several months to years, depending on the individual. The policy of the Antabuse Section of the Probation Department generally requires a satisfactory, supervised Antabuse program of a minimum of one (1) year.

San Diego County Probation Department—Adult Services, Facts About Antabuse (unpublished fact sheets printed as form Prob. 2110 (Jan. 1978)) [hereinafter Facts About Antabuse].

36 Binley Interview, supra note 9.

37 Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972).

38 Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

39 Id. at 242,502 P.2d at 9, 104 Cal. Rptr. at 513. Canterbury supports this principle as well, 464 F.2d at 780, 783.

40 464 F.2d at 778.

41 Id.

42 8 Cal. 3d at 235, 502 P.2d at 5, 104 Cal. Rptr. at 508.

43 The plaintiff's suit alleged general malpractice under alternative theories: (1) that the physician negligently performed the surgery; or (2) that the physician's “failure to disclose the inherent risks of the … surgery vitiated plaintiffs consent to operate.” Id. at 235,502 P.2d at 5, 104 Cal. Rptr. at 509. Since the jury's verdict was a general one and did not specify the reasons for its decision, it is impossible to determine which theory it relied upon.

44 Cobbs states that a physician has a duty to disclose “all information relevant to a meaningful decisional process.” Id. at 242,502 P.2d at 10,104 Cal. Rptr. at 513. Furthermore, Cobbs says that “when a given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur.” Id. at 244, 502 P.2d at 11, 104 Cal. Rptr. at 515. Canterbury states that the physician's obligation to the patient includes a “duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved.” 464 F.2d at 782.

45 464 F.2d at 783; 8 Cal. 3d at 243, 502 P.2d at 5, 104 Cal. Rptr. at 510. Once a court has determined that the patient's injury resulted from a medical treatment for which the physician's disclosure regarding material risks was inadequate, the patient would still have to show that if informed of the risks he or she would not have consented to the treatment. (Alternatively, a court could apply an objective standard, as suggested in Cobbs, under which the test would be what “a prudent person in the patient's position [would] have decided if adequately informed of all significant perils.” Id. at 245, 502 P.2d at 11, 12, 104 Cal. Rptr. at 515-16.) But if such a determination were made, the physician would be liable for the injuries resulting from his or her negligent disclosure.

46 464 F.2d at 782 n.27.

47 Id.

48 Id. at 786; 8 Cal. 3d at 245, 502 P.2d at 11, 104 Cal. Rptr. at 515 (citing Canterbury). But note that to determine causation, rather than breach of duty to disclose, Canterbury and Cobbs use an objective test, that is, would a reasonable patient have consented if he or she had been told of the risks. See note 45, supra.

49 464 F.2d at 787.

50 Id.

51 8 Cal. 3d at 244, 502 P.2d at 11, 104 Cal. Rptr. at 515.

52 Id.

53 The medical community standard, which grants physicians considerable discretion, and which is far less broad than the “legal” standard of disclosure governed by the patient's need to know, nevertheless is still controlling in the majority of jurisdictions (although not in California, where Cobbs was decided).

54 8 Cal. 3d at 245, 502 P.2d at 11, 104 Cal. Rptr. at 515 (citing Canterbury, 464 F.2d at 786).

55 Id. at 242, 502 P.2d at 10, 104 Cal. Rptr. at 513.

56 Id.

57 See note 44 supra.

58 It should be noted, however, that the disclosure “requirements” of Cobbs and Canterbury are of a hortatory nature, putting physicians on notice of what they must tell patients in advance of a therapy if they are to defend themselves successfully in a suit for negligence brought subsequently by an injured patient. The requirements are not compulsory, in that a physician who wishes to gamble that an undisclosed injury will not befall the patient need not make such disclosures. Unless harm results, the physician has not been negligent. Even if harm does result, the physician has the defense of “therapeutic privilege,” and may argue that disclosure of material risks was withheld because it was in the patient's best interest not to know. 8 Cal. 3d at 246, 502 P.2d at 12, 104 Cal. Rptr. at 516.

On the other hand, in the case of defendants being warned about the risks of Antabuse, there is no justification for withholding information. Not only do the defendants have a right to know the risks of the therapy so that they can choose whether to accept it, but they are clearly in danger of being harmed if full disclosure is not made.

59 464 F.2d at 787-88.

60 Block, , Preventive Treatment of Alcoholism, 3 Mod. Treat. 450, 456 (1966)Google Scholar. Antabuse was discovered in 1947 by two Danish Biochemists, Drs. Erik Jacobsen and Jens Hald. Observing workers in a rubber plant, they noted a significant rate of characteristic symptoms and illness in those who drank alcohol. Disulfiram, the generic name for Antabuse, was found to be the active ingredient in the rubber-making process that reacted with alcohol to produce a toxic reaction, and illness in workers who drank. See Knee, & Razani, , Acute Organic Brain Syndrome: A Complication of Disulfiram Therapy, 131 Am. J. Psych. 1281, 1281 (1974)Google Scholar; Naismith, , Antabuse Can Help Alcoholics, Readers Digest 139, 140 (1974).Google Scholar

61 See Fox, , Letter to the Editor, (Disulfiram-Alcohol Side Effects), 204 J.A.M.A. 271 (1968)Google Scholar; Cahill, , Letter to the Editor (Safety of Disulfiram), 287 New England J. Med. 935 (1972).Google ScholarPubMed Moreover, the Physicians Desk Reference includes death in its list of possible Antabusealcohol reactions:

PDR, supra note 8, at 594.

62 Ayerst Laboratories, The Alcohol-Dependent Patient 14 (1974); PDR,supra note 8, at 594-95.

63 Ayerst Laboratories, Now That You're on Antabuse 12-18 (1976).

64 Id. at 17; PDR, supra note 8, at 594.

65 Koff, , Papadimas, , & Honig, , Letter to the Editor, (Alcohol in Cough Medicines Hazard to Disulfiram User), 215 J.A.M.A. 1988 (1971).CrossRefGoogle ScholarPubMed In their letter, the writers urged that warnings be given to Antabuse recipients and that the drug's dangers be revealed clearly on its label. In addition, they suggested that the alcohol contents of cough medicines be revealed on the labels.

66 PDR, supra note 8, at 594-95. In addition, PDR warns that preliminary research on rats suggested a toxic interaction between Antabuse a n d inhaled ethylene dibromide, resulting in a higher incidence of tumors and death in rats. Id. at 595.

67 Pugliese, , Martinez, , Maselli, , & Zalick, , Treatment of Alcoholic Methadone-Maintenance Patients with Disulfiram, 36 J. Stud. Alcohol 1584, 1587 (1975).CrossRefGoogle Scholar But see Fox, supra note 61, who says: “The only contraindications are psychosis and a decompensated heart.” Id. at 271. She adds that, in the absence of complete information from studies on pregnant animals, she is withholding disulfiram from women during the first few months of pregnancy. Id.

68 Ayerst Laboratories, The Alcohol-Dependent Patient 14 (1974); PDR,supra note 8, at 595.

69 Fox, supra note 61, at 271; PDR, supra note 8, at 594-95.

70 PDR, supra note 8, at 595.

71 Cockburn, , Abnormal Reaction to Disulfiram, 1 Brit. Med. J. 770 (1964).CrossRefGoogle Scholar

72 Price, & Silberfarb, , Disulfiram-Induced Convulsions Without Challenge by Alcohol, 37 J. Stud. Alcohol 980 (1976).CrossRefGoogle Scholar The authors also report symptoms in one-patient of delirium, mental confusion, disorientation, and loss of memory.

73 Scher, , Letter to t h e Editor; (Psychotic Reaction to Disulfiram), 201 J.A.M.A. 175 (1967).CrossRefGoogle ScholarPubMed

74 Miller, , Letter to the Editor, (Disulfiram: An Unusual Side Effect), 237 J.A.M.A. 2602, 2603 (1977).CrossRefGoogle ScholarPubMed

75 Eisen, & Ginsberg, , Letter to the Editor, (Disulfiram Hepatotoxicity), 83 Ann. Int. Med. 673, 674 (1975).CrossRefGoogle ScholarPubMed

76 Knee, & Razani, , Acute Organic Brain Syndrome: A Complication of Disulfiram Therapy, 131 Am. J. Psych. 1281 (1974).Google Scholar

77 “Of course, disulfiram will not affect the causes of these patients’ drinking any more than methadone treatment gets at the roots of heroin addiction.” Liebson, , Bigelow, , & Flamer, , Alcoholism Among Methadone Patients: A Specific Treatment Method, 130 Am. J. Psych. 483 (1973).Google Scholar See also Kissin, , Research Priorities on Alcohol: Proceedings of a Symposium Sponsored by the Rutgers Center of Alcohol Studies and Rutgers University, Oct. 7-9, 1977, J . Stud. Alcohol 230 (Supp. 8 1979)Google Scholar [hereinafter Rutgers Symposium]; Cisin, id. at 246.

78 Ayerst Laboratories, The Alcohol-Dependent Patient 14 (1974) (emphasis in original); PDR, supra note 8, at 599.

79 “Disulfiram is being used with some success in alcoholics. The major problem in therapy relates to drug compliance. Also, some toxic effects of disulfiram are being recognized.” Israel, Researching the Biology of Alcoholism: One Way of Seeing It, Rutgers Symposium, supra note 77, at 182. See also Lubetkin, , Rivers, , & Rosenberg, , Difficulties of Disulfiram Therapy with Alcoholics, 32 Quart. J. Stud. Alcohol 168, 169-71 (1971).CrossRefGoogle Scholar But see, Liebson, , Tommasello, , & Bigelow, , A Behavioral Treatment of Alcoholic Methadone Patients, 89 Ann. Int. Med. 342 (1978)CrossRefGoogle Scholar, for a report of a study involving alcoholic methadone patients who successfully complied with an Antabuse-therapy program.

80 See Lubetkin, Rivers, & Rosenberg, supra note 79, at 168. See also Liebson, , Bigelow, , & Flamer, , Alcoholism Among Methadone Patients: A Specific Treatment Method, 130 Am. J. Psych. 483 (1973)Google Scholar.

81 See Lubetkin, Rivers & Rosenberg, supra note 79, at 170.

82 Interview with Lynda Nestle, Senior Alcoholism Counselor, East County-Accord, Episcopal Community Services, in El Cajon, California (July 10, 1979). Apparently, some defendants attempt to avoid the Antabuse-alcohol reaction by “cheeking” or by regurgitating the medication; see, e.g., Kimmel, , Antabuse in a Clinic Program, 71 Am. J. Nursing 1173, 1173-74 (1971)Google Scholar, or by ingesting large amounts of vitamin C.

83 Interview with Dr. Nelson Leone, Staff Psychiatrist at El Cajon Valley Hospital (August 14, 1979).

84 Id.

85 Observation of Judge Bein, supra note 7.

86 Penfield Interview, supra note 27.

87 Leone Interview, supra note 83.

88 Id. This conclusion also is based on the experience of the first author, Dr. Corey Marco, in his medical practice when dealing with defendants in the Antabuse Program, and on the experience, relayed to Dr. Marco, of other physicians who prescribe Antabuse to defendants in the Program.

89 Binley Interview, supra note 9.

90 Facts About Antabuse, supra note 35; Antabuse Instructions, supra note 33.

91 464 F.2d at 787 (emphasis added). For a similar statement in Cobbs, see note 41 supra.

92 464 F.2d at 781-83; 8 Cal. 3d at 243-45, 502 P.2d at 10-11, 104 Cal. Rptr. at 514-15.

93 See notes 66-67 supra and accompanying text.

94 Ayerst Laboratories, The Alcohol-Dependent Patient 14 (1974); PDR,supra note 8, at 594-95.

95 Facts about Antabuse, supra note 35, at 1-2.

96 PDR,supra note 8, at 594; for a reported death due to an Antabuse-alcohol reaction, see Cahill Letter, supra note 61, at 936.

97 Facts about Antabuse, supra note 35, at 2 (emphasis added); PDR, supra note 8, at 595. See also Silver, , Ewing, , Rouse, , & Mueller, , Responses to Disulfiram in Healthy Young Men: A Double-Blind Study, 40 J. Stud. Alcohol 1003 (Nov. 1979)CrossRefGoogle Scholar, for a study that showed Antabuse to have only a mild sedating effect and to produce breath odor.

98 See Cooper v. Curry, 589 P.2d 201 (N.M. 1978), cert. denied, Jan. 1979; Garcia v. Presbyterian Hospital Center, 593 P.2d 487 (N.M. App. 1979). Although not addressing the question of informed consent, Garcia stated that “a confidential relationship [exists] in t he standing of a hospital to its patients.” Id. at 490.

99 589 P.2d at 207.

100 Fiorentino v. Wenger, 19 N.Y.2d 407, 409, 280 N.Y.S.2d 373, 381, 227 N.E.2d 296, 301 (1967).

101 Antabuse Instructions, supra note 33 (emphasis in original).

102 One means of ensuring liability for inadequate disclosure is if the state has an informed consent statute. As of 1976, eighteen states had such a statute. Even this, however, might prove to be an inadequate protection for defendants in Antabuse programs. California, for example, does have an informed consent section in its penal code which states that “all persons, including all persons involuntarily confined, have a fundamental right against enforced interference with their thought processes, states of mind, and patterns of mentation through the use of organic therapies … .” Cal. Penal Code § 2670 (West Supp. 1979). Organic therapy, in the Code, refers to “[t]he use of any drugs … when used as an aversive or reinforcing stimulus in a program of aversive … or operant conditioning.” Id. at § 2670.5(c)(3). Section 2670.5(f), however, creates an exception—apparently specifically designed to accommodate California's Antabuse programs—for “the administration of drugs … intended to cause negative physical reactions to ingestion of alcohol or drugs.”

103 Such liability could be imposed through either of two means: (1) the state could impose strict liability on the program for any serious injury to the defendant resulting from Antabuse therapy, with the cost of such liability, like that of the Antabuse program, to be paid out of the state treasury; or (2) the state could waive its sovereign immunity and could create a tort cause of action in negligence for the injured defendant against the state.

Alternatively, courts or legislatures could determine that, although Antabuse programs are not designed to, and do not, obtain defendants’ informed consent to Antabuse therapy, such programs are desirable for reasons of public safety, and the principles and doctrines of informed consent are inapplicable to them. Such a solution at least would acknowledge the reality of the situation and would relieve the program's agents, including physicians, from potential liability for inadequate disclosure. The state, in effect, would be strictly liable for the harm caused by its mandatory Antabuse program, a result that would seem to be in keeping with the principles of justice and equity, in that it would provide some protection to defendants who “agreed” to participate in the program without having had the benefit of full disclosure of its risks.

104 Williston, supra note 13, §§ 1603-1604, at 658-68.

105 Wolf v. Marlton Corp., 57 N.J. Super. 278, 286, 154 A.2d 625, 629 (1959).

106 Id.

107 Williston, supra note 13, at 662 n.7.

108 Id. at 666.

109 Fox v. Piercey, 227 P.2d 763 (Utah, 1951).

110 G. Annas, L. Glantz, & B. Katz, Informed Consent to Human Experimentation, 110 (1977) [hereinafter Annas, Glantz, & Katz].

111 Williston, supra note 13, at 662 n.7.

112 Annas, Glantz, & Katz, supra note 110, at 115.

113 Wolonsky v. Babson, 387 N.E.2d 625 (Ohio 1976).

114 The patient in Wolonsky had been acquitted of a crime by reason of insanity and placed in a mental institution, where he was given a drug whose continued use restored him to sanity. The Ohio Court of Appeals ruled, however, that because his improved mental state was dependent on his taking the drug, the patient was not sane within the meaning of Ohio's definition of legal sanity, and, therefore, could not qualify for release from the institution. Despite the bizarre outcome, acknowledged by the court, that the patient would be forced to remain in the state hospital, although his continued medication removed the psychotic symptoms that had caused his commitment, the court felt bound by Holderbaum v. Watkins, 337 N.E.2d 800 (Ohio 1974). Holderbaum held that a court could not impose conditions on the release of a patient judged sane. The Wolonsky court did express the hope that the Ohio legislature would make possible the imposition of medication as a condition of release under such circumstances. (Apparently, the patient could not obtain release even by giving his voluntary, informed consent to continued drug therapy, because the coercive alternative of institutionalization would render his consent involuntary.)

115 Holderbaum v. Watkins, 337 N.E.2d 800 (Ohio 1974).

116 State v. Janise, 570 P.2d 499 (Arizona 1977).

117 Id. at 502.

118 Id. at 501.

119 Id.

120 Behavior modification experiments, in the cases referred to here as well as in the Antabuse programs, attempt, through an unpleasant or potentially dangerous experience or threat of such an experience, to modify a course of counterproductive behavior.

121 Psychoactive drugs are those that affect the mind or behavior.

122 Kaimowitz v. Department of Mental Health, Civil No. 73-19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973), summarized at 42 U.S.L.W. 2063 (July 31 , 1973).

123 Id., slip op. at 20.

124 Id. at 25.

125 Id. at 27. See also Note, Kaimowitz v. Department of Mental Health: A Right to be Free From Experimental Psychosurgery, 54 B.U.L. Rev. 301, 315-16 (1974).

126 477 F.2d 877 (9th Cir. 1973).

127 Id. at 877.

128 Id. at 878.

129 Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979); Renniev. Klein, 462 F.Supp. 1131 (D.N.J. 1978); Goedecke v. State Dept. of Institutions, 603 P.2d 123 (Colo. 1979).

130 Bach-y-Rita, , The Prisoner as an Experimental Subject, 229 J.A.M.A. 45 (July, 1974).CrossRefGoogle Scholar

131 See Knecht v. Gillman, 488 F.2d 1136, 1140-41 (8th Cir. 1973); Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974).

132 See notes 122-25 supra and accompanying text.

133 Annas, Glantz, & Katz, supra note 110, at 127.

134 488 F.2d 1136 (8th Cir. 1973).

135 Id. at 1138-39. The court stated that although the drug's use was justified only if it could be said to be treatment, and although it was not generally considered to be acceptable medical practice, “neither can we say … that its use on inmates who knowingly and intelligently consent to the treatment should be prohibited on a medical or legal basis.” Id. at 1138-39. The court added, however, that if there were no finding of consent, use of the drug with prisoners would be cruel and unusual punishment.

136 Id. at 1140-41.

137 State v. Hayes, 389 A.2d 1379 (N.H. 1978).

138 Id. at 1381.

139 1979 Mass. Adv. Sh. 2523, 399 N.E.2d 452 (1979).

140 Id. at 2533-34, 399 N.E.2d at 458.

141 Wolonsky v. Babson, 387 N.E.2d 625 (Ohio 1976).

142 Kaimowitz v. Department of Mental Health, Civil No. 73-19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973).

143 State v. Janise, 570 P.2d 499 (Arizona 1977).

144 Kaimowitz v. Department of Mental Health, Civil No. 73-19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973); State v. Hayes, 389 A.2d 1379 (N.H. 1978).

145 Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973).

146 While the Antabuse programs are no longer referred to as experimental, the continuing controversy that surrounds the drug and its side effects suggests that it should be treated as such. Designating Antabuse as an experimental drug, and thus the Antabuse programs as experimental, would result in far more severe standards being applied to its use, particularly under circumstances likely to be coercive, than presendy are being applied. Its use would be subject to federal regulations governing the protection of human research subjects, 45 C.F.R. §§ 46.101-46.401 (1979). These regulations require review of the research protocol by an ethics review committee of the institution sponsoring the research, id. at § 46.106, and legally effective, voluntary consent by the participants, id. at § 46.110 (emphasis added). Further, if the participants had been convicted of drunken driving and jailed, their participation in an experimental Antabuse program would be subject to even stricter federal regulations on experimentation with prisoners, 39 Fed. Reg. 30654-55 (1974), enacted specifically for the purpose of safeguarding the right of prisoners to informed consent, “inasmuch as, because of their incarceration, they may be under constraints which could effect their ability to make a truly voluntary—and uncoerced decision whether or not to participate in such activities.” Id. at § 46.402.

147 Annas, Glantz, & Katz,supra note 110, at 128. As of 1976, only five states banned behavioral research on prisoners. Id.

148 Id.

149 Cal. Penal Code §§ 2670-2674 (West Supp. 1979). The Code, however, apparently exempts Antabuse from its requirements. See note 102 supra. California has similar requirements for consent to treatment for institutionalized mental patients. Cal. Welfare & Inst. Code §§ 5325-5328.9 (West Supp. 1979).

150 Att. Gen. Opinion (Jan. 20, 1970). See also Annas, Glantz, & Katz, supra note 110, at 129.

151 U.S.A.M.R.D.C. Reg. 70-25, § l-10-2.a (1975). See also Annas, Glantz, & Katz,supra note 110, at 130.

152 U.S.A.M.R.D.C. Reg. 70-25, at § l-10-2.b.

153 38 Fed. Reg. 31747, § 46.44(a)(1) and (4) (1973). See also Annas, Glantz & Katz, supra note 110, at 131.

154 38 Fed. Reg. 31748, § 46.46 (1973).

155 Henkin, , Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1411 (1974).CrossRefGoogle Scholar

156 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

157 381 U.S. 479 (1965).

158 Id. at 484-86.

159 410 U.S. 113 (1973).

160 Id. at 209 (Douglas, J., concurring).

161 Note, Constitutional Law—Rennie v. Klein: Constitutional Right of Privacy Protects a Mental Patient's Refusal of Psychotropic Medication, 57 N.C.L. Rev. 1481, 1486-88 (1979).Google Scholar

162 410 U.S. at 154, 165-66.

163 Binley Interview, supra note 9.

164 See, e.g., Runnels v. Rosendale, 499 F.2d. 733 (9th Cir. 1974) (hemorrhoidectomy); Commissioner of Correction v. Myers, 1979 Mass. Adv. Sh. 2523, 399 N.E.2d 452 (1979) (kidney dialysis).

165 See, e.g., Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979) (psychotropic drugs); Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978) (psychotropic drugs); Kaimowitz v. Department of Public Health, No. 73-19434-AW (Cir. Ct., Wayne County, Mich., July 10, 1973) (psychosurgery).

166 See, e.g., In re President and Fellows of Georgetown College, 331 F.2d 1000 (D.C. 1964), cert. denied, 377 U.S. 978 (1964) (blood transfusion); In re Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965) (blood transfusion).

167 See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (chemotherapy); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976) (respirator).

168 Commissioner of Correction v. Myers, 1979 Mass. Adv. Sh. 2523, 2529, 399 N.E.2d 452, 456(1979).

169 Id. at 2531, 399 N.E.2d at 457.

170 Id. at 2529, 399 N.E.2d at 456.

171 331 F.2d 1000, 1000-08 (D.C. 1964).

172 Id. at 1008.

173 Davis v. U.S., 162 U.S. 373, 378 (1896).

174 331 F.2d at 1007.

175 See text accompanying notes 77-82 supra.

176 Commissioner of Correction v. Myers, 1979 Mass. Adv. Sh. 2523, 2529-30, 399N.E.2d 452,456(1979).

177 331 F.2dat 1008.

178 See, e.g., In re Osborne, 294 A.2d 372 (D.C. 1972); In re Melideo, 88 Misc. 2d 974, 390 N.Y.S.2d 523 (Sup. Ct. 1976).

179 See text accompanying notes 77-82 supra.

180 197 U.S. 11 (1905).

181 Id. at 25, 39.

182 See text accompanying notes 77-82 supra.

183 422 U.S. 563, 575 (1975).

184 Commissioner of Correction v. Myers, 1979 Mass. Adv. Sh. 2523, 2530, 399 N.E.2d 452, 456-57 (1979).

185 1978 Mass. App. Adv. Sh. 588, 376 N.E.2d 1232 (1978).

186 Id. at 589-90 n.2, 376 N.E.2d at 12 n.2.

187 1978 Mass. Adv. Sh. 2461, 2480 n.11, 370 N.E.2d 417, 426 n.11 (1978).

188 U.S. v. George, 239 F. Supp. 752, 754 (D. Conn. 1965).

189 Ammon, supra note 20, at 1-4.

190 Id.

191 Id. at 2.

192 1978 Mass. Adv. Sh. at 2477-81, 370 N.E.2d at 424-26.

193 1979 Mass. Adv. Sh. 2523, 399 N.E.2d 452 (1979).

194 Id. at 2533, 399 N.E.2d at 458.

195 Id.

196 Id. at 2526, 2533-34, 399 N.E.2d at 458.

197 For a discussion of less intrusive alternatives to the Antabuse Program, see text accompanying notes 240-47 infra.

198 Robinson v. California, 370 U.S. 660 (1962).

199 State v. Janise, 116 Ariz. 557, 570 P.2d 499 (1977).

200 1979 Mass. Adv. Sh. at 2531, 399 N.E.2d at 457(citing Coffin v. Richard, 143 F.2d 443, 445 (6th Cir. 1944), cert. denied, 325 U.S. 887 (1945)).

201 462 F. Supp. 1131 (D.N.J. 1978). Accord, Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979).

202 462 F. Supp. at 1145-47.

203 For a discussion of Antabuse's side effects, see text accompanying notes 60-76 supra.

204 For a discussion of less intrusive methods, see text accompanying notes 229-31,240-47 infra.

205 Davis v. U.S., 162 U.S. 373, 378 (1896).

206 See note 203 supra.

207 U.S. Const, amend. VIII, cl. 3.

208 PDR, supra note 8.

209 See note 61 supra.

210 Weems v. U.S., 217 U.S. 349, 367 (1910).

211 Note, Aversion Therapy: Punishment as Treatment and Treatment as Cruel and Unusual Punishment, 49 S. Cal. L. Rev. 880, 947-959 (1976)Google Scholar (citing, for example, Nelson v. Heyne, 491 F.2d 352, 356 (7th Cir. 1974), cert. denied, 417 U.S. 976 (1974); Knecht v. Gillman, 488 F.2d 1136, 1139-40 (8th Cir. 1973)).

212 Knecht v. Gillman, 488 F.2d at 1139-40.

213 Vann v. Scott, 467 F.2d 1235, 1240 (7th Cir. 1972).

214 For a discussion of coercion, see text accompanying notes 104-12 supra.

215 “Whether or not it is called ‘aversive stimuli’ or punishment, the act of forcing someone to vomit for a fifteen minute period … can only be regarded as cruel and unusual unless the treatment is being administered to a person who knowingly and intelligently has consented to it.” Knecht v. Gillman, 488 F.2d at 1139-40.

216 Note, Aversion Therapy: Punishment as Treatment and Treatment as Cruel and Unusual Punishment, supra note 211, at 926.

217 Id.

218 Trop v. Dulles, 356 U.S. 86, 101-02 (1958).

219 Weems v. U.S., 249 U.S., 349, 367 (1910).

220 Furman v. Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring); id. at 342 (Marshall, J., concurring).

221 488 F.2d 1136 (8th Cir. 1973).

222 Id. at 1139-40.

223 477 F.2d 877 (9th Cir. 1973).

224 Id. at 878.

225 Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).

226 Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972), aff'd, 501 F.2d 1291 (5th Cir. 1974), modified, 390 F. Supp. 482 (1975).

227 La Reau v. MacDougall, 473 F.2d 974 (2d Cir. 1972), cert. denied, 414 U.S. 878 (1973).

228 Ariz. Rev. Stat. Ann. § 36-2027 (West 1974). “ The court shall in no event order the person to undergo treatment and evaluation … in excess of thirty days.” Id.

229 See, e.g., Mich. Stat. Ann. § 9.2325(c) (Callaghan 1974) ($50-$ 100); N.Y. Veh. & Traf. Law § 1192(5) (McKinney Supp. 1979-80 (not more than $500); Tex. Rev. Civ. Stat. Ann. art. 6701 ch. 1 (Vernon Supp. 1980) ($50-$500).

230 See, e.g., Mich. Stat. Ann. § 9.2325(d) (Callaghan Supp. 1979-80) (not more than two years); 75 Pa. Cons. Stat. Ann. § 1532(a) (Purdon 1977) (one year).

231 See, e.g., Ill. Ann. Stat. ch. 95 ½ § 11-501(i) (defines drunk driving as a misdemeanor), ch. 38 § 1005-1-14 (penalty for misdemeanors) (Smith-Hurd Supp. 1979) (not more than one year); N.Y. Veh. & Traf. Law § 1192(5) (McKinney Supp. 1979-80) (not more than one year).

232 See text accompanying notes 240-43 infra.

233 See text accompanying notes 240-47 infra.

234 See text accompanying notes 77-82 supra.

235 392 U.S. 514 (1968).

236 Id. at 535.

237 370 U.S. 660 (1962).

238 Id. at 667.

239 See text accompanying notes 77-82 supra.

240 Hornaday, J., Sentencing the Drinking Driver in Alaska: The Homer Alternative Work Program, 7 U.C.L.A.-Alaska L. Rev. 235 (1978).Google Scholar

241 Id. at 261.

242 Id. at 261-63.

243 Id. at 261.

244 Ammon, supra note 13, at 1-2.

245 Kuttler, C. and Farrell, D., D.W.I.-Jail or Rehabilitation? 47 Fla. B.J. 232 (1973).Google Scholar

246 Id. at 232.

247 Id.