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88 Va. L. Rev. 1025 (2002)
Uncontrollable Urges and Irrational People

handle is hein.journals/valr88 and id is 1043 raw text is: ESSAY
Stephen J. Morse*
A single strong desire is often enough to leave a man no peace.
If he is seized by two contrary desires at the same time, the effect
can easily be imagined.
Alessandro Manzonf
INCARCERATION, whether in a prison or a treatment facility,
requires weighty justification in a society committed to the pro-
tection of civil liberty. The United States Supreme Court has rec-
ognized, in both the criminal and civil contexts, that citizens have
immense interests in liberty and in freedom from other adverse so-
cial consequences, such as stigma.2 The basic justification for
criminal confinement is that a culpable offender has been con-
victed of a crime; the basic justification for involuntary civil
*Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and
Law in Psychiatry, University of Pennsylvania; J.D., Ph.D. (Psychology & Social
Relations), Harvard University. I thank Adam Candeub, Sherry Colb, Joel Dvoskin,
Kyron Huigens, Leo Katz, James Jacobs, Dennis Klimchnk, John Monahan, Mike
Seidman, Stephen Perry, Stephen Schulhofer, and Amy Wax for helpful comments.
As always, my personal attorney, Jean Avnet Morse, furnished sound, sober counsel
and moral support.
'Alessandro Manzoiri, The Betrothed 316 (Bruce Penman trans., 1972) (1840).
2 E.g., Addington v. Texas, 441 U.S. 418, 425-26 (1979) (recognizing that civil
commitment is a significant deprivation of liberty that can cause adverse social
consequences, such as stigma, which can have a very significant impact on the
individual); Humphrey v. Cady, 405 U.S. 504,509 (1972) (emphasizing, in dictum,
that civil commitment is a massive curtailment of liberty); In re Winship, 397 U.S.
358, 363-64 (1970) (stating that due process requires imposition of a beyond a
reasonable doubt standard in criminal trials because defendants have at stake
interests of innmense importance-liberty and freedom from stigma). See generally
Sherry F. Colb, Freedom From Incarceration: Why Is This Right Different From All
Other Rights?, 69 N.Y.U. L. Rev. 781,787-94 (1994) (arguing that liberty is a
fundamental right).


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