Running head: Mental illness in the justice system

MENTAL ILLNESS IN THE JUSTICE SYSTEM

Dana Almberg

First Colonial High School

Legal Studies Academy

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MENTAL ILLNESS IN THE JUSTICE SYSTEM
Abstract

The author examines the effects of the deinstitutionalization of psychiatric hospitals on the

justice system and the mentally ill. After the dismantling of the existing mental health system,

the mentally ill overwhelmed the courts, prisons and jails, families, and police officers. The

prisons and jails are overcrowded and poorly equipped to deal with the excess pressure the

mentally ill defendants exert on the system. Traditional courts are used in most cases for these

proceedings but specialized mental health courts are growing in popularity. Hospitals and jails

have systems for involuntary treatment. The lack of available treatment has led to practices such

as patient boarding and unnecessary imprisonment. The author explains how the modern

psychiatric and criminal system operates together through case law, policy, and state and federal

laws.
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Mental illness in the justice system

Since the closing of the asylums, the mental health system and the justice system are

closely intertwined. 64% of jail inmates, 45% of federal prisoners, and 56% of state prisoners

have some mental health problem (Kim, 2015). Ten times as many people with a mental illness

are in prison than being treated in a psychiatric facility (Steinberg, Mills, & Romano, 2015).

Furthermore, between 25-40% of all people with mental illnesses are involved in the criminal

justice system at some point in their lifetime (Parker, 2005). While the justice system has so

many people with psychiatric conditions, the prisons and courts are not adequately trained and

equipped to deal with these individuals. There arent enough psychiatric facilities to deal with

mental illness, so approximately 50% of serious mental illness is untreated (Young, 2015). This

shortage also forces hospitals to turn away patients who need care or to hold them without

providing care. The infrastructure intended to deal with mental illness has been dismantled,

forcing prisons and jails to house the mentally ill, leading to overcrowded and underfunded

prisons and widespread untreated illness.

Mental Health Infrastructure

History

In the 1800s, the incarceration of the mentally ill was commonplace. Driven by the

deplorable treatment within prisons, pioneers such as Dorothea Dix created the first asylums,

later renamed psychiatric hospitals; by 1880, only 0.7% of the mentally ill population was

imprisoned. (Public Broadcasting Service. (2005)). By 2005, approximately 50% of the

population of jails and prisons suffered from serious mental Illness (Young, 2005).
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After the successful transfer of the mentally ill population into asylums, the condition in

many deteriorated to the same prison-like conditions. Abuses, forced sterilizations, and

devastating treatments like the lobotomy all helped to lead to the modern view of asylums as

horrifying places of torture as opposed to places of treatment (Pan, 2013). In 1946, Truman

signed the National Mental Health Act, which created the National Institute of Mental Health

(NIMH, 2015), which started the federal research for more effective treatment. In 1955, the

invention of Chlorpromazine, the first effective antipsychotic, started the path to

deinstitutionalization because it allowed many people to function outside of these asylums

(Public Broadcasting Service, 2005). About 15 years later, deinstitutionalization accelerated.

Between 1970 and 1990, 48% of psychiatric beds were gone (McGrew, Wright, & Pescosolido,

1999). There are plenty of factors to blame for this loss: budget cuts, poorly executed

humanitarian efforts, over-reliance on drugs, and failure to create effective community models all

combined to create this epidemic (Lyons, 1984).

The original plan for deinstitutionalization was a community model of treatment. This

movement started with the 1963 Community Mental Health Act signed by John F. Kennedy (Pan,

2013). Theoretically, this model would fund community psychiatric facilities that would allow

higher quality of life for the mentally ill. In reality, however, not nearly enough were built and in

1981, Reagan defunded the program entirely (Torrey, 2013). As a result, we were left with a few

overtaxed hospitals, which could not keep up with the demand presented by an epidemic of

untreated mentally ill with nowhere to go.

Current Infrastructure
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With no better options, the system ended up back at the beginning: warehousing the

mentally ill with poorly equipped prisons and jails. Due to stigma and lack of affordable

treatment options, 50% of all mental illnesses go untreated (Young, 2015). Untreated illness

usually worsens over time, making it more difficult to fit into society, leading to homelessness

and crime. About a third of the homeless population (Insel, 2008) and 50% of the jail and prison

population is mentally ill (James & Glaze, 2006).

Prisons and jails. Prisons are not properly trained or equipped to handle the massive

amounts of mentally ill inmates. Prisons are extremely overcrowded, leading to poor care.

Congress is attempting to improve access to mental health care in prisons with House Bill H.R.

1854 ("Increasing Mental Health Support for Inmates," 2015). However, this bill attempts to fix

a symptom of the problem without addressing the underlying issue. The situation in jails is an

even more extreme version of what is occurring in prisons. Over 20% of jails in America have no

mental health support system (Parker, 2005).

Patient boarding. Because of the lack of psychiatric beds available, psychiatric boarding

is often used as a weak substitute for actual care. Patient boarding has no nationally accepted

definition, but for this purpose it is defined as an emergency department stay of over 6 hours

without admittance into the hospital (Nolan, Fee, Cooper, Rankin, 2005). Patient boarding is

especially common among mentally ill patients due to inability to secure inpatient beds; this is

most pronounced for minors and the homeless, because few psychiatric facilities are willing to

treat these groups (Nolan, Fee, Cooper, Rankin, 2005). Patient boarding is seen as more

restrictive and lower quality than inpatient care. Furthermore, the increased stressed caused by

these conditions may worsen the psychiatric problem. The Washington State Supreme Court has
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declared Patient Boarding unconstitutional under their Involuntary Treatment Act ("FindLaw's

Supreme Court of Washington Case and Opinions.," 2014). However, given that Emergency

Medicine Treatment and Labor Act forbids emergency rooms from discharging patients that are a

danger to themselves or others and there arent any facilities available, in practice this ruling

cannot be enforced until more resources are provided to give doctors a valid alternative

(Rosenau, 2014).

Involuntary treatment. The issue of involuntary treatment is complex because many

people with severe mental illnesses suffer from anosognosia, which is a symptom that impairs a

patients ability to perceive their own illness ("Anosognosia"). Furthermore, forced treatment is

an issue balancing the personal freedoms of the mentally ill and the health and safety of the

community and the patients. Antipsychotics themselves have serious drawbacks; the drugs do not

cure anything but merely alleviate symptoms and the side effects are often permanent and

debilitating (Klein, 2007). The procedures and laws regarding forced treatment are different

between criminal and non-criminal cases and vary from state to state. In all cases in every state, a

person may be involuntarily hospitalized if they are deemed to be a danger to themselves or

others (Klein, 2007). In Virginia, involuntary hospitalization is also allowed when the patient is

deemed unable to care for him or herself and is incapable or unwilling to volunteer for treatment

(Kaplan, 2011). Involuntary medication is generally considered to be more restrictive than

involuntary hospitalization; so many states have stricter guidelines for medication (Klein, 2007).

In Virginia, a separate judicial order after hospitalization is necessary to administer medicine

involuntarily (Beinner, n.d.).

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For the incarcerated mentally ill, the decision to administer medicine involuntarily is

made if they are deemed a danger to themselves, others, or property according to Washington V.

Harper (Dunn, 2005). This standard is lower in prisons because a higher loss of autonomy in a

prison environment is considered acceptable. The case of Vitek v. Jones (1980) outlined the

requirements for involuntary transfer from a prison to a mental health facility. The requirements

acknowledge a prisoners autonomy and desire to avoid the stigma of mental illness while

recognizing a prisons need to protect their population (Vitek v. Jones, 1980). The requirements

for involuntary transfer are as follows: the prisoner must be given written notice; the hearing

must be held after a period long enough for the inmate to prepare and both sides must be allowed

to present arguments; the decision must be made by an independent third party; the prison must

write a statement about the need for transfer; legal counsel must be provided by the state if the

inmate cannot afford one; and the inmate must be given effective and timely notice of all rights

(Vitek v. Jones, 1980).

In cases where the mentally ill individual is being tried in a criminal case, the additional

goal of the state to render the defendant fit to stand trial must be taken into account. However,

the right of defendants to a fair trial must be upheld and many of the side effects of

antipsychotics may bias a jury (Dunn, 2005). For medicine to be forcefully administered to a

defendant, it must be medically appropriate, be unlikely to have side effects that will undermine

the fairness of the trial, and less intrusive options are not sufficient to fulfill important

government interests (Sell v. United States, 2003).

The Insanity Defense

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Contrary to popular belief, the insanity defense is uncommon; it is used in less than 1%

of cases and successful less than 25% of the time it is raised (Schouten, 2012). The insanity

defense is one of many that can be raised when the defendant commits an act without the

necessary guilty intent to be convicted (Schouten, 2012). The requirement for the insanity

defense varies from state-to-state, but is usually extremely strict and the burden of proof is

always on the defendant (Schouten, 2012). In Utah, Montana, Kansas, and Idaho, the Insanity

defense has been abolished altogether ("The Insanity Defense among the States," n.d.). In

Virginia and many other states, the M'Naghten Rule is in used in conjunction with the Irresistible

Impulse Test ("The Insanity Defense among the States," n.d.). The MNaghten Rule stipulates

that the defendant may be found not guilty by reason of insanity if they didnt understand the

nature of the crime or if they didnt know right from wrong ("The M'Naghten Rule," n.d.). The

Irresistible Impulse Test is intended to determine if a person is incapable of controlling their

actions due to their mental illness ("The Irresistible Impulse Test," n.d.). The high burden of

proof and strict guidelines for the insanity defense are intended to stop people from feigning

insanity, and to make sure people with mental illnesses that can control their actions are still

punished, but the harshness of the guidelines is part of the reason why so many people whose

crimes were a result of mental illnesses are in prison.

Traditional Courts

Before a trial can begin, a defendant must be competent to stand trial. If this requires

involuntary treatment, the procedure and requirements set forth in Sell v. United States, described

above, must be followed (2003). In earlier cases such as Riggins v. Nevada, the Supreme Court

recognized the dangers of medicating a defendant to gain competency because the outward
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symptoms of antipsychotics such as lethargy, anxiety, and ticks would possibly bias the jury

(1992). Other symptoms may change the defendants ability to defend him or herself, follow the

proceedings, and answer questions effectively (Riggins v. Nevada, 1992). If a mentally ill

defendant can be made fit to stand trial, the specifics of the insanity defense will likely be

relevant. In Virginia, a person may be declared Not Guilty by Reason of Insanity if, because of a

mental disorder, disease, or defect, they did not understand the nature or consequences of their

actions, was incapable of telling distinguishing right from wrong, or was compelled to commit

the act by an irresistible impulse or force ("NGRI manual ," 2003). In Ake v. Oklahoma, a

defendant diagnosed with schizophrenia was convicted of a double homicide and sentenced

twice to death plus 500 years in prison (1985). The Supreme Court then decided that indigent

defendants, meaning defendants who are too poor to afford their own counsel, who intend to use

the Insanity defense must be provided with a psychiatric expert witness. In Ford v. Wainwright,

executing mentally insane inmates was declared unconstitutional ("Mental Illness and the Death

Penalty," 2016). However, if the inmates capacity can be reestablished through medication or

hospitalization, then they are eligible for execution; severe mental illness alone does not result in

an exemption from the death penalty ("Mental Illness and the Death Penalty," 2016). Because

our court system is based on an adversarial model, meaning the prosecution and defense are

pitted against each other to advocate for their party, it is often poorly equipped to work with the

mentally ill.

Mental Health courts

Mental Health courts are a specialty non-adversarial court with voluntary participation

that is heavily based on the older drug-court model (Parker, 2005). The Norfolk Mental Health
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and Drug Court operate with a single specialized judge (D. Almberg & D. Pope, Personal

communication, November 21, 2016). Usually, defendants are sentenced in traditional court

before being recommended for the mental health court program (Parker, 2005). By using this

method, Mental Health courts have leverage to keep defendants in the program; if the defendant

drops out of the program or refuses to follow rules such as medication and therapy, they are

returned to serve the sentence prescribed by the traditional court. Norfolks program is 18

months long and involves a five step system where the defendant must regularly appear at court,

follow the rules of their assigned parole officer, and see a psychiatrist (D. Almberg & D. Pope,

Personal communication, November 21, 2016).

Successes. Mental Health courts are a relatively new creation that has only existed since the late

1990s (Moore & Hiday, 2006). The cooperative, non-adversarial model has shown more success

with the mentally ill than traditional courts. The recidivism rate among the mentally ill who

completed the mental health court program is significantly less than those who only went

through the traditional court system for similar crimes (Moore & Hiday, 2006). Those who

completed a mental health court program are arrested at 24% the rate of those who went through

traditional court (Moore & Hiday, 2006). The primary goal of mental health courts is to treat

instead of punish, which leads to much better long-term effects (Parker, 2005). Furthermore, the

mental health courts divert defendants from prisons, which is positive both for the patients and

for the unequipped prisons (D. Almberg & D. Pope, Personal communication, November 21,

2016). In Norfolks system, the mental health court only deals with felonies, but there is also a

jail diversion team for misdemeanors whose purpose is to identify people with mental illness
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who have been arrested and transfer them to treatment (D. Almberg & D. Pope, Personal

communication, November 21, 2016).

Failures. The mental health courts are heavily focused on one model and are still somewhat new,

so there are still many ways in which they fall short and need to improve. One major

shortcoming, according to a Norfolk drug and mental health court coordinator, is the

unwillingness of the court to accept violent offenders, and the necessity for affected individuals

to volunteer for treatment (D. Almberg & D. Pope, Personal communication, November 21,

2016). These strict requirements to be eligible for the mental health program clearly lessens their

ability to help more extreme cases, especially when anosognosia may play a role in keeping the

severely mentally ill from recognizing a problem that the specialty courts could help. To be

eligible for mental health court, the defendant must plead guilty to a nonviolent misdemeanor

and volunteer and be referred for treatment (Parker, 2005). These requirements are based on the

drug court model where the generally accepted culpability of the defendant is higher (Parker,

2005). Furthermore, these requirements are currently necessary due to the underfunding of

mental health courts because the courts do not have the resources to treat everyone who could

potentially benefit (Parker, 2005).

Prisons as Asylums

Incarceration without a Crime

There arent enough psychiatric beds available, so the jails and prisons become an

obvious substitute. While much of this has to do with crimes committed because of mental

illness, many mentally ill individuals find themselves incarcerated either without a crime or for a

crime typical people would not be jailed for ("Deinstitutionalization: A Psychiatric "Titanic","
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2005). Often times, police officers will arrest a mentally ill person for their own safety, calling

them mercy bookings ("Deinstitutionalization: A Psychiatric "Titanic"," 2005). Many police

officers consider it their responsibility to protect these members of society who are at far greater

risk of victimization; a West Virginia police officer, when asked about mercy bookings and the

state of the mental hospitals in his area, responded "If the mental institutions will not hold them,

I will" ("Deinstitutionalization: A Psychiatric "Titanic"," 2005). Many homeless people, who are

disproportionately mentally ill, have intentionally been arrested to gain access to food, shelter,

and safety (Ramesh, 2010). Other times loved ones will bring charges against a mentally ill

family member because it is the only way to get them treatment; this is especially common in

states where, even if the patient is willing to be admitted into a psychiatric hospital, the only way

to get treatment is if the patient is considered dangerous (Deinstitutionalization: A Psychiatric

"Titanic"," 2005). A system where a person can only get psychiatric help once their illness has

become severe enough to be violent or get arrested is clearly broken.

Along with police and desperate parents trying to use the justice system as a substitute for

an unavailable mental health system or as a way to expedite care, businesses and others who

consider the mentally ills behavior to be threatening or annoying also exert pressure to clean up

the streets (Deinstitutionalization: A Psychiatric "Titanic"," 2005). In response, police charge

these people with catchall crimes or misdemeanors like disorderly conduct, lewd and lascivious

behavior, or trespassing (Deinstitutionalization: A Psychiatric "Titanic"," 2005). Cities punish the

homeless through ordinances such as the no-camping and anti-panhandling ordinances; a city in

Florida even had an ordinance that outlawed serving food to the homeless outdoors ("Illegal to

Be Homeless," 2007). The behavior of the mentally ill can be alarming or bothersome to others;
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in Texas a man with schizophrenia was repeatedly arrested for following and relentlessly talking

to strangers (Deinstitutionalization: A Psychiatric "Titanic"," 2005). The mentally ill have

nowhere to go, and when their naturally unusual behavior becomes bothersome to business,

police are often ordered to arrest them for minor charges. Furthermore, the behavior of the

mentally ill is often seen as threatening, and the police are called to make the rest of the

population feel safer by hiding them away.

Treatment within Prisons

Access to care. The primary purposes of prisons are punishment and reform, and

Americas prisons are far less likely to rehabilitate than in our past (Benson, 2003). Before the

1970s and the tough on crime movement, rehabilitation was a key part of prison, but by now

the focus is far more on punishment (Benson, 2003). This movement away from rehabilitation

has coincided with the increasing mentally ill population in prisons over the last 40 years,

making prisons increasingly incapable of effectively helping the mentally ill while making them

increasingly overfull with this population. However, basic mental health in prisons is becoming

far more widespread. With the Supreme Court case Farmer v. Brennan (1994), deliberate

indifference to the mental and physical health needs to prisoners was declared unconstitutional.

Nevertheless, over 20% of jails have no mental health system (Parker, 2005). The underfunding

of the mental health system forces this kind of negligence. Congress is pushing for bills that

would improve access to mental health care in prisons (House Bill H.R. 1854) but there are no

major bills on the national or Virginias state level to improve access to care in jails. There are

laws being considered in Congress to improve evaluations of the arrested mentally ill so they can

be dealt with more effectively (Senate Bill S. 993) and Virginia code 37.2-904 requires the
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evaluation of the violently mentally ill, but without funding for actual treatment, these

evaluations have limited use.

Prison punishments. Prisons enforce rules through punishments such as solitary

confinement, removal of privileges, confiscation of property, higher security level, and physical

force (Grabianowski, 2007). However, given that the mentally ill often break prison rules

because they dont understand or cannot follow them, punishment cannot be an effective

deterrent for behavior. And the most extreme punishment, solitary confinement, is often used as a

way to isolate the mentally ill from the rest of the population for the safety of themselves and the

population (DeMoss, 2015). The point of this is to stop the mentally ill individual from

disturbing the population, but the effects of prolonged solitary confinement on anyone can be

extremely damaging; about a third of all people in solitary confinement are acutely suicidal or

psychotic (Breslow, 2014). Effects of solitary confinement include hallucinations, paranoia, loss

of impulse control, hypersensitivity to stimuli, obsessions, poor concentration, loss of social

skills, and panic attacks (Breslow, 2014). Furthermore, the mentally ill are far more prone to

these symptoms due to their already fragile psychiatric state. The intensely confining conditions

of solitary confinement can cause the mental state of already ill prisoners to rapidly deteriorate

and lead to more recurrences of symptoms (Metzner & Fellner, 2010). Access to mental health

care for individuals in solitary confinement is limited or nonexistent (Metzner & Fellner, 2010).

The Justice department has created guidelines for the use of solitary confinement on the mentally

ill, but it is still a legal practice (2016).

Overcrowding. America has a notoriously large prison population; according to the

ACLU, 20% of the worlds prison population is American when we make up only 5% of the total
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population (2011). America doesnt have the space for this massive prison population, so there is

rampant overcrowding in prisons. In California, the average prison was at about 200% capacity

until a series of Supreme Court cases led to a ruling to bring population down to only 137.5% of

the design capacity ("Brown v. Plata," 2010). The first case was Coleman v. Brown, originally

called Coleman v. Wilson, where the California District Court agreed that the California prisons

failed to provide adequate medical care to the mentally ill under the 8th Amendment (1995). The

second was Plata v. Brown in 2001 where the court decided that California failed to provide

adequate care to people serious medical conditions (VanOort, 2011). When California failed to

improve conditions on either of these fronts, a third case, Brown v. Plata, went to the Supreme

Court and decided that California was incapable of providing adequate care because the prisons

were too overcrowded and must bring down population to make the prisons constitutional

(2011). The Supreme Court realized that a prison, if stretched too thin by major overcrowding, is

not able to fulfill the needs of prisoners to the degree required under the 8th Amendment. The

mentally ill require more care than a prison is capable of providing, especially in the 17 states

that report that their prisons are above operational capacity (Wilson, 2014).

Increased victimization within prisons. Prisoners with a mental illness are significantly

more likely to be physically assaulted by other inmates (Blitz, Wolff, & Shi, 2008). Violence is a

common part of prison culture due to the high concentration of people with behavioral problems

or antisocial tendencies in overcrowded conditions (Blitz et al, 2008). Furthermore, mentally ill

individuals are already at higher risk to be victims of violence in ordinary society, so their

increased vulnerability is exacerbated by the highly violent nature of prisons (Blitz et a, 2008).

These especially vulnerable prisoners are also at a higher risk for violence by prison guards and
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staff (Fellner, 2015). Because the mentally ill prisoners may not understand the rules, they are

often harshly and physically punished for breaking them (Fellner, 2015). According to human

rights watch, excessive and unwarranted force against the mentally ill has been increasing due to

inadequate training (2015).

After Prison

While overall rates of recidivism in America are alarmingly high, they are significantly

higher among people with severe mental illnesses (Byron, 2014). People with bipolar disorder

are 3.3 times more likely to end up back in prison than a typical inmate ("Approaches to

Recidivism of Mentally Ill Inmates," 2012). Furthermore, its clear this is a result of failure to

provide care; mentally ill offenders who are found not guilty by reason of insanity and receive

help in a forensic psychiatric unit are far less likely to commit another crime than those who are

sent to prison (Byron, 2014). There is very little significantly intensive care for those released

from prison (Lovell, Gagliardi, & Peterson, 2002). As a result, the mentally ill individual is in the

same situation with the lack of infrastructure and meaningful treatment that led to his or her

incarceration in the first place. As these same individuals rotate through the prison system, the

overcrowding problem that leads to less effective prison care continues to grow.

Conclusion

Prisons and jails have been forced to house the mentally ill due to a lack of adequate

psychiatric infrastructure, leading to untreated mental illnesses and overcrowded, underfunded

prisons. The mentally ill have flooded the justice system after the psychiatric facilities they used

to reside in were shut down. Remaining Hospitals do not have the space to deal with patients,
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leading to patient boarding and the turning away of mentally ill patients. The court systems are

beginning to adapt with specialized mental health courts to deal with mentally ill defendants.

However, prisons and jails are facing the stress of trying to provide treatment for these ill

inmates while they are also forced to deal with extreme overcrowding. Because the mentally ill

are not adequately being treated in hospitals or prisons, their conditions continue to worsen,

leading to a more extreme strain of the already overtaxed hospitals, jails, and prisons.
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