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.
A Brief History of the Criminalization of Mental Illness
Joel A. Dvoskin, James L. Knoll and Mollie Silva
For a very long time, mental illness was viewed not as a disease, but as a manifestation of evil spirits.1 Confusion and apprehension have been the legacy view of mental illness, even as far back as ancient Greece. In 380 B.C., Socrates wrote in The Republic that “The offspring of the inferior…will be put away in some mysterious, unknown place, as they should be.” During the middle ages, an obsession with evil in the form of witches became prominent. The official practice guidelines for detecting evil and witches, the Malleus Maleficarum (1486), assisted inquisitors in finding evil lurking amidst women, the socially disenfranchised, and those suffering from mental illness.2 In 1494, theologian Sebastian Brant wrote The Ship of Fools, which detailed the phenomenon of sending away persons with mental illness aboard cargo ships through the canals of Europe and overseas. During the Renaissance (fourteenth to seventeenth centuries) families were expected to care for relatives with mental illness, which often involved confinement in the home.3 Lay concepts of evil often fuse with professional ethics of mental illness, and threaten to confound each other’s ideologies.4 Even today, there remains a deeply ingrained societal prejudice that persons with mental illness are “ticking time bombs, ready to explode into violence.”5 Thus, the primitive association between mental disorder and moral depravity has yet to be completely dissolved. The age-old concept that depravity is somehow involved in the origin of mental disease lingers in the shadows and waits to be resurrected.6,7
In 1656, the first Hôpital-Général was opened in Paris. These institutions were for the “insane” (sic), as well as those deemed to pose a threat to normality and progress. Within three years, the Hôpital-Général in Paris became home to more than 6000 people – approximately 1% of the French population. In London, the famous Bethlem Hospital began showing its patients off for a price in 1815. The hospital earned an annual revenue from this weekly event of almost 400 pounds from 96,000 visitors who came (the equivalent today of a little more than US $44,000).
Early in the ninteenth century, the idea of “moral treatment” came to the United States. According to Patricia D’Antonio of the University of Pennsylvania, “The moral treatment of the insane was built on the assumption that those suffering from mental illness could find a way to recovery and an eventual cure if treated kindly and in ways that appealed to the parts of their minds that remained rational. It repudiated the use of harsh restraints and long periods of isolation that had been used to manage the most destructive behaviors of mentally ill individuals. It depended instead on specially constructed hospitals that provided quiet, secluded, and peaceful country settings; opportunities for meaningful work and recreation; a system of privileges and rewards for rational behaviors; and gentler kinds of restraints used for shorter periods.”8
Moral treatment led to the asylum movement, which was based on a belief that separation from the community, coupled with long periods of rest, would allow the person to regain their senses and faculties.9 It was not uncommon that a stay in an asylum lasted a lifetime, resulting in a severely restricted existence and limited exposure to life beyond the walls of the institution.10
Initially, the moral treatment philosophy and the asylums that practiced it were reserved for those who could afford this kind of care. In 1841, Dorothea Dix, while teaching in a Massachusetts jail, observed that a high number of inmates were not criminals, but people with mental illnesses. During the 1850s and 1860s, she travelled the country urging states to create public asylums, practicing moral treatment, that would be available to people who could not afford private care. By the end of the nineteenth century, every state had such a public institution.11 Unfortunately, those facilities quickly became incredibly large and overcrowded, resulting in conditions that were nothing like those envisioned by Dorothea Dix and other advocates.12
Clearly, the problem of criminalization of mental illness is not a new one. The reality that initially motivated Dorothea Dix to action (i.e. the large numbers of people with mental illness in jails) is remarkably similar to the situation in which we find ourselves today, where the prevalence of mental illness in jails is significantly higher than for the population in general.13,14
From the mid to late 1800s, public advocacy drew national attention to the plight of persons confined in institutions. Isaac Ray, a founder of forensic psychiatry in the U.S., advocated for clarification of civil commitment laws. Despite this, civil commitment laws were commonly misused, as in the 1860 case of Elizabeth Packard who was committed to an institution for the insane based on an Illinois statute which allowed husbands to commit their wives for reasons other than mental illness. Many of the long-term civilly committed patients may not have been mentally ill at all. Most importantly, the effects of trauma were poorly understood. Women were especially vulnerable to psychiatric commitment when they rebelled against their husbands, including cases where the husband was physically abusive.15
From about the 1870s to 1920s, eugenics and biological theories of crime regarded habitual criminality as a form of intellectual disability.16 Eugenic “segregation” in public institutions for “defectives” and “the feebleminded” was pervasive.
In the decades following the Civil War there was a gradual return to more relaxed procedural standards and physician decision-making in terms of commitment. Psychiatric hospitalization was available only on an involuntary basis until 1881 when Massachusetts enacted the first state law that allowed persons to admit themselves voluntarily. However, the standards for admission were lax and subsequently began to receive greater scrutiny. In 1917, the Minnesota’s Children’s Code was enacted as a package of laws that affirmed the state’s role as protector of disadvantaged children who were defined as “defectives,” and thus a “public menace.” The Code empowered probate judges to commit “defectives” (defined as feebleminded, inebriate, and/or insane) to state guardianship, regardless of the wishes of parents or family. As wards of the state, committees could not vote, own property, or make their own medical decisions. By 1923, nearly 43,000 individuals were confined in custodial institutions for “the feebleminded.” It was not until 1942 that the U.S. Supreme Court ruled that punitive sterilization was unconstitutional in Skinner v. Oklahoma, yet the decision left “eugenic” sterilization laws intact. By 1946, President Truman signed the National Mental Health Act – which created the NIMH and allocated Government funds toward research into the causes of and treatments for mental illness.
In 1952 the antipsychotic effects of chlorpromazine (Thorazine) were discovered, and led to a much more optimistic view about the ability of doctors to treat the symptoms of psychosis. For a variety of reasons beyond the scope of this article, the promise of Thorazine exceeded its performance. The presence of severe and disfiguring side effects (especially tardive dyskinesia) led many people to resist taking this medication, and for those who did take it, the results were not always satisfactory. Nevertheless, the promise of this drug and its progeny ushered in an era of optimism that would help to fuel a movement to move people out of institutions and into the community.
That same year, the U.S. Government’s Draft Act Governing Hospitalization of the Mentally Ill was published. The Draft Act proposed two criteria for involuntary commitment: (1) a risk of harm to self or others, and (2) the need for care or treatment when mental illness rendered someone lacking in insight or capacity and therefore unable to seek voluntary hospitalization.
At about the same time, the treatment of people with mental retardation (now called developmental and intellectual disabilities) was decried as inhumane warehousing of people who posed little or no risk to public safety. The Willowbrook State School in Staten Island, NY, became a national symbol of disgrace. Among the many horrors uncovered at Willowbrook were physical violence, use of persons with intellectual disabilities for medical research without consent, understaffing, overcrowding, and a virtually complete lack of education and habilitative programs. Once these atrocities came to light, the residents of Staten Island filed a 1972 class action that was finally resolved by a consent decree in 1975. Not coincidentally, federal policy was changed by Willowbrook as well. For example, the Protection and Advocacy System for Persons with Disabilities was created in 1975, and in 1980, Congress passed the Civil Rights of Institutionalized Persons Act, which continues to hold various mental hygiene and correctional institutions accountable to this day.17
As the inhumane institutional conditions became clear to the public, public sentiment and eventual involvement of the Federal Courts made it clear that the conditions of confinement for committed psychiatric patients were going to become much more expensive. As a result, there were two powerful tides at work moving toward deinstitutionalization: human rights and money.
In 1960, attorney-physician Morton Birnbaum published a seminal article, “The Right to Treatment,”18 advancing the “revolutionary thesis” that each mental patient had a legal right to such treatment as would give him “a realistic opportunity to be cured or to improve his mental condition.” Failing that, Birnbaum argued, the patient should be able “to obtain his release at will in spite of the existence or severity of his mental illness.” Birnbaum saw right to treatment as a way to impel improved hospital treatment.19 He advocated for a standard of care for state hospitals, which involved improvements such as better staffing ratios and ending overcrowding. He believed such standards could be enforced (given) adequate federal funding.20
Change and intended reformation was the theme of this period, with Thomas Szasz publishing The Myth of Mental Illness,21 and Erving Goffman publishing Asylums: Essays on the Social Situation of Mental Patients and Other Inmates.22 The 1960s–1970s was a period of substantial sociocultural change in which civil rights took center stage. On an even grander scale, the attention to human rights occurred in the context of radical changes in regard to the civil rights of African Americans (and later other marginalized and disenfranchised groups). The Civil Rights Act of 1964 emphasized ideals of equal rights, freedom from government intrusions, the right to procedural protections when individual liberty was at stake, and outlawed discrimination on the basis of race, color, religion, sex, or national origin.23