Reports reveal an increase in the number of individuals with serious mental illness in jails, prisons and forensic hospitals. Despite the wide-ranging and devastating consequences of this 'criminalization' of mental illness, there remains a lack of information on the subject as well as on the provision of care for these patients. This important new book fills a gap in the literature by examining topics such as: the history and policy factors related to criminalization; original research on forensic populations; pharmacological and psychological treatment strategies; and principles and guidelines for diversion out of the criminal justice system.
Deinstitutionalization and Other Factors in the Criminalization of Persons with Serious Mental Illness and How it is Being Addressed
H. Richard Lamb and Linda E. Weinberger
The United States prison population, including both federal and state prisons and county and city jails, was 2,162,400 inmates as of December 31, 2016.1 The percentage of jail and prison inmates assumed to be seriously mentally ill (as defined in various studies as schizophrenia, schizophrenia spectrum disorder, schizoaffective disorder, bipolar disorder, brief psychotic disorder, delusional disorder, and psychotic disorder, not otherwise specified) has generally been estimated at about 16%.2 Using these numbers (2,162,400 × 16%) yields an estimate of 345,984 incarcerated persons with serious mental illness (SMI) in jails, and state and federal prisons. The actual number may be somewhat higher or lower, depending on the accuracy of the percentage.
The figures noted above represent a substantial number of persons with SMI in correctional facilities. In a previous era, many more persons with SMI who came to the attention of law enforcement would have been hospitalized rather than arrested and incarcerated.3 The extent to which persons with SMI have been arrested has significantly impacted both the mental health and criminal justice systems. This phenomenon has been referred to as the “criminalization of the mentally ill.”
One of the major concerns in present-day psychiatry is that placement in the criminal justice system poses a number of important problems for and obstacles to the treatment and rehabilitation of persons with SMI.4,5 Even when quality psychiatric care is provided in jails and prisons, the inmate/patient still has been doubly stigmatized as both a person with mental illness and a criminal. Furthermore, correctional facilities have been established to mete out punishment and to protect society; their primary mission and goals are not to provide treatment. The correctional institution’s over-riding need to maintain order and security, as well as its mandate to implement society’s priorities of punishment and social control, greatly restricts the facility’s ability to establish a therapeutic milieu and provide all the necessary interventions to treat mental illness successfully.6
How can we explain these large numbers of people with SMI being arrested and falling under the jurisdiction of the criminal justice system? They come to the attention of law enforcement because they appear to have engaged in illegal behavior. It may well be that they have done so because their mental illness is not being treated adequately in the community. Some of the reasons for this are given in the following sections.
Beginning in the late 1950s, the number of hospital beds declined precipitously. For example, in 1955, when the number of patients in state hospitals in the United States reached its highest point, 559,000 persons were institutionalized in state mental hospitals out of a total national population of 165 million (339 beds per 100,000 population). However, by 2016 (as a result of hospital closures and bed eliminations), the number of persons in state mental hospitals dropped to 37,679 for a total population of approximately 324,000,000, or 11.7 beds per 100,000 population. This rate is similar to that found in 1850 when persons with SMI received little care and concern.7
What were some of the reasons for the reduction of the number of involuntary psychiatric beds? It was the confluence of the following factors: the introduction of chlorpromazine (Thorazine) and other powerful antipsychotic medications; the development of more efficacious community treatment interventions, such as assertive community treatment (ACT); the creation of federal programs (e.g. SSI, SSDI, Medicaid, and Medicare), which fund community treatment and housing for persons with mental illness; the influence of the civil rights movement; and the high cost of institutionalizing persons with mental illness.8
Deinstitutionalization is one of the leading causes that has been viewed as increasing the number of persons with mental illness entering the criminal justice system. The community mental health system was developed in the 1960s and 1970s as a more appropriate setting than psychiatric hospitals to provide treatment for persons with mental illness who had moderate needs and could be maintained in the community. Consequently, the number of public psychiatric hospital beds was reduced with the belief that current and future psychiatric patients could be treated adequately in the community mental health system. Although deinstitutionalization held the promise of persons with SMI being able to live successfully in the community, that outcome did not occur for a sizeable number of people. Part of the reason for the failure was attributed to a lack of planning before or during deinstitutionalization, as well as a lack of adequate funding for the community mental health systems. As a result, many of the important components of a community care system were not sufficiently provided (i.e. housing, medical and psychiatric care, social services, and social and vocational rehabilitation) for the formerly hospitalized patients.
Despite this, the majority of deinstitutionalized patients were able to adapt successfully in the community; however, this was not the case for a substantial minority. Some of these individuals presented challenges in treatment – such as not seeing themselves as mentally ill, not taking their medications, abusing substances, and in many cases, becoming violent when stressed. Many of these persons needed highly structured care to replace that which had been provided to them, albeit imperfectly, in psychiatric hospitals. The flawed implementation of deinstitutionalization would thus appear to be a significant factor accounting for many persons with SMI migrating to jails and prisons as well as to homelessness (between one-fourth and one-third of homeless persons have a SMI).9
Initially, concerns about deinstitutionalization tended to focus on those persons with SMI who were discharged into the community after many years of living in state hospitals. However, treating the new generation that has appeared since the implementation of deinstitutionalization policies has proven to be even more difficult.10 These individuals are different from those who were hospitalized for long periods and who tended to become institutionalized and not experienced in living outside a highly structured setting. When they are placed in a community living situation that has sufficient support and structure to meet their needs, most tend to remain there and to accept treatment. However, this has not been the case for the new generation of persons with SMI; they have not been institutionalized, they have not lived for long periods of time in hospitals and have developed considerable dependence on others, and for the most part they have spent only brief periods in acute care facilities. The lack of community resources capable of adequately treating this challenging new generation of persons with SMI, who often pose difficult clinical problems in treatment and rehabilitation, and may also suffer from homelessness, has contributed to their inappropriate incarceration.
In 1969, California enacted new legislation regarding civil commitment law, known as the Lanterman–Petris–Short Act (LPS). One of the intents of LPS was to “end the inappropriate indefinite and involuntary commitment of mentally disordered persons” (Section 5001 Welfare and Institutions Code). Under LPS, the commitment procedures and criteria were better defined than before; consequently, fewer people were involuntarily committed. Within a decade, every state made similar changes to their civil commitment codes. Such universal and significant changes are virtually unprecedented.
The new civil commitment laws tended to incorporate three major changes. The first change referred to the criteria for involuntary psychiatric hospitalization. The criteria changed from being general in their focus on mental illness and the need for treatment to becoming more specific in addressing how the individual’s mental illness contributed to the person’s danger to self or others, or the person’s ability to care for themselves. The second change impacted the duration of commitment; that is, the length of involuntary psychiatric hospitalization went from an indeterminate period to one with a specific time duration that was often brief. The third change addressed the patient’s civil liberty and due process rights to have prompt access to independent hearings and trials, as well as the assistance and representation of patient advocates and attorneys at the various hearings/trials.
These revised civil commitment laws resulted in fewer, as well as shorter, commitments. In fact, many patients who were discharged from the psychiatric hospitals because they no longer met the strict criteria for involuntary hospitalization were released into the community, often without the resources to help them adjust. They may have had difficulties maintaining psychiatric stability, controlling their impulses, living in unstructured community settings, and adapting to the demands of community living. Thus, some of these individuals might have decompensated to the point where they committed criminal acts and entered the criminal justice system.
Another factor that both leads to and perpetuates the criminalization of persons with SMI is the lack of adequate support systems in the community. This includes mental health treatment, case management, housing, and rehabilitation resources. The inadequacy of these support systems has three important aspects.
First, given the very large numbers of persons with SMI in the community, there may not be sufficient resources to serve them. For instance, case management has come to be viewed as one of the essential components of an adequate mental health program.11 However, the mental health system is ill prepared to provide quality case management services to all persons with SMI who require it, including those leaving jails and prisons.
Second, the community treatment services that are available may be inappropriate for some of the population to be served. For example, there may be an expectation that persons with SMI go to the clinic when in fact a large proportion of them need outreach services.
Third, persons with SMI who have been released from correctional facilities may not be accepted into community treatment or housing, even when it is available. Clinicians may not want to treat this population because they are thought to be resistant to treatment, dangerous, and serious substance abusers. These individuals can be intimidating because of previous violent and fear-inspiring behavior. Working with this group is very different from helping passive, formerly institutionalized patients adapt quietly to life in the community. Thus, these are individuals who generally may not be considered desirable by most community agencies and staff. Moreover, some of these agencies may not have the capability to provide the structure and limit setting necessary to enhance safety for staff who work with these persons.
A large proportion of persons with SMI who commit criminal offenses are found to be highly resistant to psychiatric treatment. They may refuse referral, may not keep appointments, may not be adherent with psychiatric medications, may not abstain from substance abuse, and may refuse appropriate housing placements. There is evidence that many of these persons suffer from a disorder called anosognosia (a biologically based inability to recognize that one has a mental illness, and thus a biologically based lack of insight).12 Consequently, such individuals are less likely to believe they need treatment and seek it when needed.
It should also be mentioned that some researchers suggest that criminogenic factors are a stronger predictor for criminal recidivism than mental illness.13 On the other hand, active psychosis has been found to be a risk factor for violent behavior, independent of criminogenic factors such as antisocial personality characteristics or substance abuse.14
Generally, family members can be an important source of support for persons with SMI. However, they will have to overcome a number of hurdles. These include coping with the symptoms of their relative’s mental illness, dealing with their own emotions (e.g. frustration, denial, anxiety, guilt, feeling inadequate), and ambivalence about involving the police when the relative is violent.15 Given the many obstacles in dealing with their relatives with SMI, as well as obtaining treatment for them, family members may feel overwhelmed and discouraged in their attempt to help their loved ones. As mentioned earlier, these challenges include not being able to obtain adequate involuntary treatment because of the insufficient number of inpatient psychiatric beds, as well as the increasingly restrictive civil commitment criteria. In addition, community treatment services may not be sufficient in addressing the needs of the mentally impaired relative. Moreover, the nature of the individual’s mental illness, which may also include substance abuse disorders, may pose additional problems for both the family and their relative with SMI. Finally, resistance to obtaining treatment is a common phenomenon among those with SMI and thus can contribute to the family’s frustration, which results from their inability to resolve their relative’s problems.
Police play an important role in the criminalization of persons with SMI. Often, instead of directing the individual with mental illness to treatment, the person may be arrested and placed in jail.16 There are several reasons for this.
When urgent situations arise in the community involving persons with mental illness, the police are typically the first responders.17 Consequently, they play a major role as a mental health resource in determining what to do with the individuals they encounter. The police have dual roles. They are responsible for recognizing the need for the treatment of an individual with mental illness and connecting the person with the proper treatment resources, as well as making the determination whether the individual has committed a type of illegal act for which the person should be arrested. These responsibilities thrust them into the position of primary gatekeepers who determine if the individual will enter the mental health or the criminal justice system.
For many years, police have had the legal authority to transport persons with SMI whom they believe are a danger to self, others, or gravely disabled to psychiatric institutions for involuntary treatment. This authority forces police to make decisions about the individual’s mental condition and welfare. Police also have the discretion to use informal tactics, such as attempting to calm the individual by talking to them or taking them home instead of transporting them to a psychiatric hospital.
Generally, the police have a great deal of discretion in determining what to do when they encounter a person with acute mental illness in the community. In some cases, however, public policy limits the police officer’s discretionary power. For instance, if the person with mental illness is alleged to have committed a major crime, the disposition is clear – that person is taken to jail because of the seriousness of the offense. However, in cases where persons with SMI are believed to have committed a minor offense, the officer may use discretion; that is the officer may arrest the individual, transport the individual to an inpatient psychiatric facility for treatment, or refer the individual to an outpatient clinic for mental health treatment. A major issue is that law enforcement officers do not have the training and experience that mental health professionals have in recognizing symptoms of mental illness in their determination of dispositions.18 Mental illness may appear to the police as simply alcohol or drug intoxication, especially if the person with mental illness has been using these substances at the time of the interaction with the police. Moreover, in the heat and confusion of an encounter with the police and other citizens, which may include forcibly subduing the person with mental illness, signs of a psychiatric disorder may go unnoticed.
Another major issue contributing to the criminalization of persons with SMI is that even if the police recognize the individual’s need for treatment, treatment services are not always available. For example, there are often very few accessible hospital beds for psychiatric inpatients; however, the police are well aware that if they arrest a person with mental illness, that person will be dealt with in a more systematic and predictable way under the criminal justice system.