Scott Blough. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publication.
Crime and disorder are often associated with deviation from the traditional norms and values of society. To ensure that the norms and values are met and respected, laws are instituted that govern behaviors of individuals and prohibit deviant behaviors. These deviant behaviors are often associated with crime. According to the U.S. Surgeon General, the term mental illness refers collectively to all diagnosable mental disorders: conditions that result in alterations of thinking, mood, and behavior. These alterations often cause deviations from normal behavior and thus are often classified as crime. Couple this with the estimated 5% of the U.S. population that have a mental illness, and the problem of mental illness and crime becomes apparent.
Individuals with mental illness typically access the criminal justice system through law enforcement, courts, and corrections (jail, prison, community corrections, and probation). At the time of arrest, mentally ill offenders begin the journey through the criminal justice system. This flow through the system comprises the following five steps: (1) arrest; (2) booking (jail); (3) court; (4) prison, jail, or probation; and (5) release.
During each of these phases, mentally ill offenders come into contact with different actors in the criminal justice system, ranging from law enforcement officers, prosecutors and defense attorneys, through judicial personnel to corrections personnel. As a result, according to the Bazelon Center for Mental Health Law (http://www.bazelon.org), these offenders repeatedly use a significant amount of law enforcement and judicial resources during their initial contact. Also, these offenders’ lack of conformity to correctional policy often leads to significantly more time spent in the institutions or on probation, further draining alreadyscarce resources.
To fully appreciate the impact of mental illness and crime, it is important to understand the dynamics of the population of which we speak. In 1955, there were 558,239 severely mentally ill patients in U.S. public psychiatric hospitals; in 1994, there were 71,619. On the basis of population growth, at the same per capita utilization as in 1955, there would have been an estimated 885,010 patients in state hospitals in 1994 (Torrey, 1997). Most of this projected population—more than 800,000 potential patients—live in the community.
The treatment of individuals with mental illness has undergone vast shifts over time. Around 400 BCE, the Greek physician Hippocrates treated mental illness as a physiological disease. Other cultures, including Indian, Egyptian, and Roman, understood mental illness to be a result of displeasure from the gods or some form of demonic possession (MacLowry & Samuels, 2003). Throughout the Middle Ages, many mentally ill people were assumed to be witches or possessed by demons. In 1407, the first European establishment specifically for people with mental illness was established in Valencia, Spain (MacLowry & Samuels, 2003). During the 1600s, mentally ill people were confined in dungeons and mixed with handicapped people, vagrants, and delinquents, while experiencing increasingly inhumane treatment. In the 1700s, several European reformers began to slowly change the way mentally ill people were treated. In particular, the Gaol Act of 1774, promoted by John Howard, the High Sheriff of Bedford, addressed the idea of improving jails. Among other things, Howard published The State of Prisons in England and Wales, with an Account of Some Foreign Prisons in 1777, which was an account of his travels and gaol (jail) inspections across Englan d. His work was so controversial that it was banned in several foreign countries, one of which was France. In his book, Howard advocated for the removal of mentally ill inmates from gaols and their placement in institutions designed for their care.
In addition to Howard’s work in England, the United States had its share of corrections reformers. Thomas Jefferson worked with Benjamin LaTrobe in Virginia to develop a circular prison that provided direct viewing of inmates by the guards. The prison was completed in 1800 and aptly named the Virginia State Penitentiary. Among continuing reforms, such as the separation of males and females (1789) and the separation of juveniles from adults (1823), the separation of mentally ill people from inmates in prisons and jails and their placement in mental institutions occurred in 1854. This was largely due to the work of Dorothea Dix during the 1840s. Living in Massachusetts, she observed mentally ill people of all ages incarcerated with criminals. These individuals were often left unclothed and in dark cells that lacked both heat and bathroom facilities. In addition, many of the mentally ill were chained and beaten on a regular basis. Armed with that information, Dix successfully lobbied for and established 32 state hospitals for the mentally ill over a 40-year period in the midto late 1800s (MacLowry & Samuels, 2003). In addition to these reforms, in 1887 a female journalist named Nellie Bly went undercover in Blackwell Island, a New York facility for mentally ill women. Her undercover investigation, sponsored by the New York World newspaper, uncovered widespread mistreatment of patients and corruption of staff throughout the facility. Among the issues she uncovered were poor hygiene practices (with multiple patients using the same towel and comb), food quality issues (patients were fed rancid food and doctors and nurses dined on fresh fruit, bread, and meat), and medical malpractice (patients were rarely seen by doctors). As a result of Bly’s exposé, an investigation commenced that resulted in some officials being tried in court and fired, as well as a $3 million allocation for improvements at the facility (see http://americanhistory.suite101.com/article.cfm/nellie_bly_stunt_reporter).
This system was in place for more than 100 years before the deinstitutionalization of the mentally ill, brought about by horrible abuses and lack of accountability in mental institutions, gained momentum. This momentum would carry the mentally ill back into prisons and jails at an alarming rate and make America’s jails and prisons, in essence, warehouses for mentally ill individuals.
During the 1960s, many mentally ill people were removed from institutions and moved toward community placement and local mental health care. In 1963, Congress passed the Mental Retardation Facilities and Community Mental Health Centers Construction Act, which provided federal monies to develop a network of community-based mental health resources that would lessen the burden on the institutions. This legislation presumed that mentally ill individuals would voluntarily seek out assistance and treatment. Unfortunately, this presumption was not correct.
The deinstitutionalization of the mentally ill and the issues faced by communities in regard to lack of treatment and resources resulted in the formation of several advocacy organizations, the most prolific of which is the National Alliance on Mental Illness (NAMI). According to the group’s Web site ( http://www.nami.org), NAMI is “the nation’s largest grassroots organization for people with mental illness and their families. Founded in 1979, NAMI has affiliates in every state and in more than 1,100 local communities across the country.” Among many other functions, NAMI formed an advocacy center called the Law and Criminal Justice Action Center, which is responsible for promoting the interests of people with mental illness in state and federal legislation. NAMI and other advocacy groups have advanced awareness and treatment of mentally ill people in the justice system.
As deinstitutionalization became the norm in the United States, there took place an influx of mentally ill persons into communities that were ill-prepared to care for them. As a result of this influx and the lack of preparedness, communities often turned to the system of last resort: the criminal justice system, which comprises law enforcement, courts, and corrections. Law enforcement and corrections operate 24 hours a day, 7 days a week, thus making them the logical choice for communities experiencing issues with mentally ill people. As a result, many mentally ill people went from state institutions to state and local prisons and jails by way of law enforcement arrest and court convictions.
Police and the Mentally Ill
To understand this phenomenon, it is important to explain the process by which many mentally ill people were ultimately imprisoned. After being placed under community supervision, many persons with mental illness were left to their own devices for obtaining and properly taking their prescribed medication. One of the major assumptions that policymakers made during the transition was that, with better medication for mental illness, mentally ill persons would be medication compliant. This assumption proved to be false; people with mental illness often failed to comply with their medication and then violated the law or some social precedent. This violation often resulted in the commission of a crime or homelessness. Many of the severely mentally ill people who were released into the community through deinstitutionalization are now part of the 600,000 people in America who are homeless. Of these, it is believed that at least one third are mentally ill (U.S. Department of Health and Human Services, 1999). The most common offenses committed by mentally ill persons are assault, theft, robbery, shoplifting, alcohol or drugrelated charges, and trespassing (Robertson, Pearson, & Gibb, 1996). Thus, law enforcement has played a major role in responding to and resolving these issues.
A study conducted by the Consensus Project and published in 2002 (Council of State Governments, 2002) indicated that in “police departments of U.S. cities with a population greater than 100,000, approximately 7 percent of all police contacts, both investigations and complaints, involved a person believed to have a mental illness” (p. 21). Further exemplifying the problem, the study also made the following observation:
During the year 2000, law enforcement officers in Florida transported more than 40,000 people with mental illness for involuntary 72 hour psychiatric examinations under the Baker Act. This exceeds the number of arrests in the state during 2000 for either aggravated assault (39,120) or burglary (26,087). (p. 25)
In 1998, New York City police officers transported 24,787 emotionally disturbed persons to hospitals for psychiatric evaluations, up from 1,000 in 1976 (Bumiller, 1999). Law enforcement officers’ safety is compromised when they are handling incidents involving mentally ill offenders. In 1998, mentally ill offenders killed law enforcement officers at a rate 5.5 times greater than that of the rest of the population (http://www.psychlaws.org). These facts make it apparent that law enforcement is the initial point of governmental contact that mentally ill offenders will have.
To more effectively handle the increased contact between law enforcement personnel and mentally ill people, U.S. law enforcement agencies have implemented numerous programs. The most effective are training programs designed to equip officers with the resources needed to effectively and appropriately deal with the mentally ill. Among these programs is the Crisis Intervention Team (CIT), one of the most successful. Originating in Memphis, Tennessee, in 1988, it is often referred to as the Memphis Model. According to Dr. Mark Munetz (personal communication, February 1, 2008),
The first CIT program began in Memphis, Tennessee. In 1987, 27-year-old Joseph Dewayne Robinson was shot and killed during an incident with the Memphis Police Department. This shooting outraged the community. From this community crisis emerged in 1988 a new way of doing business for both the police and the mental health community in Memphis, based on a collaborative effort designed to help police officers identify and deal with mentally ill people.
The premise of the CIT program is to improve law enforcement officers’ response to the mentally ill. It is a law enforcement–based specialized response model. Until the CIT was developed, most basic law enforcement training referred to mentally ill individuals as emotionally disturbed people (EDP for short) and gave very basic instruction on the dangers officers face when encountering such individuals. This instruction ranged from describing the mentally ill as unpredictable to delineations of the proper distance an officer should maintain from such an individual. There was no training on how to effectively deescalate a situation involving a mentally ill offender. Thus, the 1987 Memphis case just described was often the norm rather than the exception. As CIT programs have become more widespread, these incidents have declined in number.
The CIT program relies on 10 elements to allow law enforcement officers to effectively and efficiently deal with mentally ill offenders (Schwarzfeld, Reuland, & Plotkin, 2008). As with any multidimensional program, collaboration plays a very important part. The CIT program relies on ensuring the appropriate response from incident inception to incident disposition and thus involves all components of law enforcement. The following is a list of the 10 components Schwarzfeld et al. (2008) recommended:
- Collaborative Planning and Implementation
- Program Design
- Specialized Training
- Call-Taker and Dispatcher Protocols
- Stabilization, Observation, and Disposition
- Transportation and Custodial Transfer
- Information Exchange and Confidentiality
- Treatment, Supports, and Services
- Organizational Support
- Program Evaluation and Sustainability
The key to a successful CIT program is the collaboration among agencies involved with law enforcement; health care; mental health; corrections; courts; advocacy groups; and, perhaps most important, funding agencies and sources. Another key component is providing first responders—both dispatchers and law enforcement officers—with specialized training. That training typically includes subjects such as mental illnesses, signs and symptoms of mental illnesses, de-escalation techniques, stabilization, disposition options, community resources, and legal issues. The most important part of the program is the focus on proper identification, intervention, and referral to the appropriate community resources.
The CIT program in Memphis provides 40 hours of specialized training for law enforcement officers, encompassing much of the aforementioned information. According to Dupont, Cochran, and Bush, (1999), the Memphis CIT program reduced officer injuries sustained during mental disturbance calls by over 80%. The Memphis CIT program has also proven to be very cost-effective in that it has reduced the number of rearrests among mentally ill offenders. In addition, officers trained in the CIT program are 25% more likely to transport mentally ill offenders to a psychiatric or community mental health facility instead of to jail (Teller, Munetz, Gil, & Ritter, 2006).
The CIT program is one of the most effective means of helping law enforcement personnel effectively handle persons with mental illness. According to the Bureau of Justice Statistics (2006), there are more than 400 CIT programs operating in the United States. The CIT program has been successful in both metropolitan and rural areas as well.
Courts and the Mentally Ill
After initial contact with law enforcement, mentally ill offenders who are arrested are booked into jail and receive an initial hearing in a court, where they often lack the proper resources, both mental and financial, to ensure proper outcomes. A 2002 study conducted by the Council of State and Local Governments: Criminal Justice/Mental Health Consensus Project determined that “People with mental illness are falling through the cracks of this country’s social safety net and are landing in the criminal justice system at an alarming rate” (p. 2). The report also focused on the fact that many individuals with mental illness are turned away or intimidated by the mental health system; thus, “Officials in the criminal justice system have encountered people with mental illness with increasing frequency” (p. 3).
Part of the reason why mentally ill individuals are falling through the cracks is funding. Mental health agencies are mandated to provide care to persons designated as mentally ill by state governments. These agencies are given funding to supplement the expense of treatment and care for those individuals, often referred to as clients. A gap in the funding system exists when the client enters the criminal justice system. The funding stream for a client who enters the criminal justice system changes from the mental health agency to the criminal justice agency. This change often interrupts the continuity of care for the client and results in a reevaluation of the client’s needs by criminal justice agency personnel without the benefit of medical and mental health records from the mental health agency. To combat this recurring issue, mental health courts were created. A report by the Council of State Governments (2008) provided the following definition of mental health courts:
A mental health court is a specialized court docket for certain defendants with mental illnesses that substitutes a problemsolving model for traditional criminal court processing. Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed jointly by a team of court staff and mental health professionals. Incentives reward adherence to the treatment plan or other court conditions, non-adherence may be sanctioned, and success or graduation is defined according to predetermined criteria. (p. 30)
Only a handful of mental health courts were implemented in the late 1990s, but today more than 175 are now functioning nationwide (http://www.cjmh-infonet.org). It is interesting to note that mental health courts are not cookiecutter projects; they vary in size, scope, programs, and partnerships, making them unique to the communities and populations they serve. The framework and utility of the mental health courts provide offenders with an opportunity to participate in court-supervised treatment. This treatment involves a team composed of a judge, court personnel, and treatment and community providers, all of whom define the terms of participation. Throughout the case, continuous assessments are provided to the treatment team, along with individualized sanctions and incentives for the offender. The final key element is the resolution of the case upon successful completion of the mandated treatment plan (Council of State Governments, 2008).
Among other goals, such as increased public safety, mental health courts seek to provide improved quality of life for participants by ensuring that program participants are connected to needed community-based treatments, housing, and other services that encourage recovery. On a broader scale, they seek to find a more effective use of resources for sponsoring jurisdictions by reducing repeated contacts between mentally ill people and the criminal justice system and by providing, when appropriate, treatment in the community, where it is more effective and less costly than in correctional institutions (Council of State Governments, 2008).
Several studies have evaluated the effectiveness of mental health courts. Moore and Hiday (2006) found that participants were significantly less likely to incur new charges than a comparison group of offenders with mental illness who did not utilize the mental health court. In addition to fewer new charges, participants in the Broward County Mental Health Court spent less time in jail than offenders going through traditional criminal court (Boothroyd, Poythress, McGaha, & Petrila, 2003). This is significant, because mentally ill inmates are typically incarcerated for up to three times longer than typical inmates. By minimizing mentally ill inmates’ jail time, the criminal justice system may experience significant cost savings in the long term. The cost of implementing a mental health court is not a significant burden for government. This was verified in a case study completed by the RAND Corporation in 2007 that assessed the Allegheny County Mental Health Court in Pennsylvania (Ridgely et al., 2007). The study found that the program did not result in substantial added costs, at least in the short term, over traditional court processing for individuals with serious mental illnesses. In addition, it suggested that the mental health court may result in a net savings for government over the long term because of decreased recidivism and use of the criminal justice system’s resources.
Seminal Court Cases
In addition to involvement in the initial and subsequent appearances of mentally ill offenders, the courts have been active in clarifying the rights of mentally ill inmates over the past several decades. Prior to this, the courts operated under the “hands-off” doctrine, which allowed prisons and jails in the United States to operate in relative obscurity. During this time, before the 1960s, the courts held the belief that correctional administrators were better equipped than the judicial system to govern the operation of prisons and jails. As the civil rights movement advanced, courts began to take a more detailed look at inmate complaints, resulting in court intervention under the auspices of inmates’ constitutional rights.
The courts have had a significant impact on the treatment of mentally ill offenders in prisons and jails as well as on the “right to treatment for people with mental illnesses” (Perez, Liefman, & Estrada, 2003). This right was first recognized in the 1972 case of Wyatt v. Stickney at a district court in Alabama. In this decision, the court concluded that there were many treatment options for individuals with mental illness that did not involve warehousing in large state institutions. The court found specifically that institutionalization of the mentally ill did not guarantee “the constitutional right to receive such individual treatment as will give each individual with mental illness a realistic opportunity to be cured or to improve his or her mental condition” (at 785, Wyatt v. Stickney). This effectively placed the burden of treatment of the mentally ill on community-based behavioral health centers, of which few existed because of the previous focus on institutionalization. Thus, the goal of reintegration of mentally ill persons into the community was introduced.
According to Perez et al. (2003), many states “saw deinstitutionalization as an opportunity to save money rather than an opportunity to improve their mental health services” (p. 63). This lack of planning and disregard for the deinstitutionalized individuals led to a dramatic increase in homelessness and incarceration. Perez et al. also made the following observation: “Ironically, instead of deinstitutionalization, we have witnessed the reinstitutionalization of individuals with mental illnesses from deplorable state psychiatric hospitals to correctional institutions, where conditions are often worse” (p. 63).
Just as the courts first began the deinstitutionalization movement in 1972, they began to become more active in prisoner rights issues. One of the key cases related to health care came out of the U.S. Supreme Court in 1976. Although not specifically geared toward mentally ill inmates, it is still considered a landmark case. This case is Estelle v. Gamble, and it had several implications for jails and prisons in the United States:
- It guaranteed prison (jail) inmates medical treatment.
- It established the “deliberate indifference” standards.
- It deemed a lack of medical treatment “cruel and unusual punishment” (Eighth Amendment).
- It stated that the Fourteenth Amendment made the preceding three items applicable to states.
The court considered three issues when discussing “deliberate indifference”:
- The amenability of the patient’s condition to treatment
- The consequences to the patient if treatment does not occur
- The likelihood of a favorable outcome
Deliberate indifference constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment:
Whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action. (Estelle v. Gamble, 1976, pp. 104–105)
The courts are not in the business of second-guessing health care providers or treatment prescriptions but instead seek to achieve the following:
[To] ensure that decisions concerning the nature and timing of medical care are made by medical personnel, using equipment designed for medical use, in locations conducive to medical functions, and for reasons that are purely medical. (Neisser, 1977, pp. 956–957)
The courts have also weighed in on treatment issues within correctional facilities. Ruiz v. Estelle (1980) is the seminal case that established widely accepted standards for an adequate prison mental health system. In the Ruiz case, the court held that the Constitution requires the following:
- A systemic program for screening and evaluating inmates in order to identify those who require mental health treatment
- Treatment that entails more than segregation and close supervision of the inmate patients
- The participation of trained mental health professionals, who must be employed in sufficient numbers to identify and treat in an individualized manner those treatable inmates who have serious mental disorders
- Accurate, complete, and confidential records of the mental health treatment process
- A basic program for the identification, treatment, and supervision of inmates with suicidal tendencies
The court also stated that prescription and administration of behavior-altering medications in dangerous amounts, by dangerous methods, or without appropriate supervision and periodic evaluation is an unacceptable method of treatment.
Even though Ruiz v. Estelle was decided in 1980, it was not until the mid-1990s that prisoner mental health treatment received national attention once again. First, in 1993, the case of Casey v. Lewis was brought by female inmates in the Arizona prison system. The court found that the Arizona prison officials were deliberately indifferent to the serious medical needs of female inmates because they did not provide facilities and mental health care services for females that were comparable to those provided to males. The court found that this was a violation of the Eighth Amendment. In its decision, the court cited the following problems:
- Inadequate screening of incoming inmates. For women, unqualified security staff made the decision as to which women were mentally ill.
- Records of all inmates were not routinely reviewed, and mentally ill inmates did not receive help until they asked for it or their condition deteriorated.
- Inadequate staffing of psychiatrists and psychologists.
- Delays in assessment and treatment.
- Use of lockdown as an alternative to mental health care; the court characterized this as “appalling.”
- Problems with monitoring of, and delays in receipt of, psychotropic medication. Medication was prescribed, continued, and discontinued without face-to-face evaluations by psychiatrists. Also, there was no method to ensure that patients take their medication.
- Insufficient mental health programming.
- Behavior modification implemented by untrained security officers.
Casey v. Lewis brought to light the use of “unqualified security staff” in screening and the implementation of behavioral modification techniques for mentally ill inmates. As a result, the court determined that mental health screening and mental health treatment should be provided by “qualified mental health personnel,” defined by Blough (2004) as “physicians, psychiatrists, psychologists, physician assistants, nurses, psychiatric social workers, and others who by virtue of their education, credentials and experience are permitted by law to evaluate and care for the mental health needs of prisoners” (p. 5). Following on the heels of Casey v. Lewis, in 1995 Ohio became the center of attention for inmates with mental illness in prisons.
Dunn v. Voinovich (1995) was a comprehensive class action suit that challenged the mental health care practices of the Ohio Department of Rehabilitation and Corrections. According to the decision, the “Dunn Decree” mandated the following:
- That mental health services be provided “within the framework of a community health model” and in the “least restrictive available environment and by the least intrusive measures available” (Dunn v. Voinovich, p. 4).
- Implementation of a three-tiered system of services: (1) inpatient hospital beds for long-term care, (2) residential treatment beds and crisis beds for short-term care, and (3) outpatient care for general population prisoners.
- Hiring a specified number of psychiatrists (25.5 personnel) and other mental health professionals (246.5 personnel).
- Implementation of procedures for housing assignments, disciplinary proceedings, suicide prevention, access to mental health care, restraint procedures, medication delivery systems, proper placement of mentally ill prisoners, improved medical records, screening procedures, staff training, and delineation of rules for transfer of mentally ill prisoners between prisons.
The Dunn Decree formalized the Estelle v. Gamble case and the applicability of deliberate indifference to mental health and mentally ill inmates. In addition, it opened the door for future cases that dealt with proper community linkage of released prisoners with mental health issues. This community linkage philosophy was transformed into what is now known as prisoner reentry. According to the U.S. Department of Justice, Bureau of Justice Statistics (2003), reentry is defined as a broad term used to refer to issues related to the transition of offenders from prison to community supervision. Reentry seeks to equip offenders returning to society with the resources necessary to become productive members of society. This concept was embraced by the Ohio Department of Rehabilitation and Correction under Director Reginald Wilson and signaled a philosophical switch in prisoner treatment and programming for both mentally ill and other inmates. Thus, the Dunn Decree proved to be important in the overall philosophy of corrections in Ohio and throughout the nation.
As was recognized in the Dunn Decree, community linkage plays a vital role in reducing recidivism for all inmates but is particularly important for mentally ill inmates. The landmark case in the area of community linkage is Brad H. v. City of New York (2000). This class action suit, like the Dunn Decree, alleged improper treatment of mentally ill inmates. The major difference in the Brad H. case is that it specifically targeted the failure of New York City and St. Barnabas Hospital to provide discharge planning services to jail inmates receiving psychiatric treatment in city jails.
The case complaint in Brad H. v. City of New York stated that more than 25,000 inmates per year received psychiatric care while in jail, yet few received discharge planning upon release (Barr, 2003). The case revolved around the practice of releasing inmates (whether or not they were mentally ill) by taking them to a subway station and giving them $1.50 and two subway fares while providing no other assistance. The Brad H. case resulted in a comprehensive reform of the New York City jail mental health system’s practices. It effectively provided inmates with discharge planning for continued mental health treatment after release from jail. It also provided assistance with obtaining related services and benefit entitlements. The discharge planning included the following elements: (a) mental health treatment and supportive services (including medication and counseling), (b) public benefits (Medicaid, food stamps, etc.), and (c) transportation to housing or shelter.
Medication was mandated to be provided to mentally ill inmates who were released. The settlement required that inmates in need of psychotropic medication must be given a 7-day supply and a 21-day prescription, as well as an escort or transport to a community clinic or mental health treatment center to ensure continuity of care. Another important mandate made staff accountable for obtaining Medicaid benefits for the inmates who were activated or reactivated upon release from jail. This ensured that the inmate would have access to medication and benefits to promote continuity of care after release.
According to Barr (2003), the Brad H. case ironically sought mental health discharge planning by means of the following:
Attributing to a jail the obligations long-accepted as duties of community mental health treatment providers and hospitals. In finding that New York City had an obligation to provide discharge planning to Brad H. class members, the Court found that the jails were “subject to licensure” by the State Office of Mental Health and, thus, subject to the same legal requirements as other mental health service providers in New York. (p. 68)
This decision meant that jails and prisons would be looked on as mental health service providers instead of correctional facilities that provide mental health treatment. Thus, it opened the door for the argument that the rights guaranteed to hospital patients extend into prison and jail walls.
The aforementioned court cases outlined the rights of mentally ill inmates in prisons and jails. The impact of these decisions was a significant change in the management of mentally ill inmates.
Prisons and Jails and the Mentally Ill
The final actor in the criminal justice system with which a mentally ill offender comes into contact is the corrections system. In the United States, the corrections system is composed, at its core, of jails, prisons, probation, and parole. In addition, there are numerous ancillary components, such as community-based correctional facilities, halfway houses, electronic monitoring, home incarceration, and global positioning satellite tracking supervision. These are all broken down into two basic categories: (1) incarceration and (2) community supervision. Incarcerationtypically refers to jails and prisons, whereas community supervisionrefers to probation and parole.
Inmates with mental illness make up an increasing number of the U.S. inmate population. In 1999, the jail population of people with mental illness in the United States swelled to 285,000 and approximately 16% of those inmates reported a mental condition or an overnight stay in a mental hospital (U.S. Department of Justice, 1999) According to a 2006 Bureau of Justice Statistics report, 56% of state prison inmates and 64% of inmates in local jails reported mental health problem. According to that same study, half of mentally ill inmates reported three or more prior sentences. Among the mentally ill, 52% of state prisoners, and 54% of jail inmates, reported three or more prior sentences to probation or incarceration.
The National Institute of Corrections estimates the number of people booked into America’s jails at 10 million per year. Using the aforementioned 16% statistic from the U.S. Department of Justice, one can estimate that nearly 1.6 million people per year with a mental condition or mental illness will pass through America’s jails. According to the Bureau of Justice Statistics (2006), more than half of all prison and jail inmates had a mental health problem. This included more than 784,000 inmates in state and federal prisons and more than 479,000 inmates in local jails.
Characteristics of inmates with mental health problems are indicative of the systemic nature of the problems that arose with the deinstitutionalization of the mentally ill. According to the Bureau of Justice Assistance (2006), inmates 24 years of age and younger reported the highest incidence of mental health problems, and those age 55 and older reported the fewest (Bureau of Justice Statistics, 2006). Many of the inmates reported symptoms of a mental health disorder without a recent history of problems or treatment. This exemplifies the problem of the communitybased approach to treating persons with mental illness identified by the Council of State Governments (2008) as letting “individuals with mental illness [slip] through the cracks.” More often than not, those who slip through the cracks end up involved with the criminal justice system.
Inmates with a mental health problem had a violent offense as their most serious conviction 49% of the time, compared with 46.5% of the time for other inmates. Although violent offenses were more prevalent among inmates with a mental health problem, the use of a weapon during the commission of the offense was relatively the same as other inmates: 37.2% and 36.9%, respectively. Reinforcing the notion that mentally ill inmates recidivate more often than other inmates is that fact that 61% of inmates with a mental health problem had a current or past violent offense, compared with 56% of other inmates (Bureau of Justice Statistics, 2006). In addition, according to Los Angeles County officials in 1991, 90% of the LosAngeles County jail inmates with mental illness are repeat offenders. Of these inmates, an estimated 31% have been incarcerated 10 or more times (see http://www.consensusproject.org).
Another issue in dealing with mentally ill inmates is their adaptation to the correctional facility. Nearly 58% of inmates who reported a mental health problem were charged with a disciplinary rule violation, compared with 43% of other inmates. Almost 25% of inmates who reported a mental health problem were charged with a rule violation involving assault, and over 20% were injured in a fight. Only 13% of other inmates were involved in an assault, and 10% were injured in a fight (Bureau of Justice Statistics, 2006). Thus, mentally ill inmates are almost twice as likely as other inmates to be injured in a fight.
The costs of housing mentally ill inmates can quickly add up. According to the Pennsylvania Department of Corrections, housing a mentally ill inmate costs $140 per day, well above the $80 per day of other inmates (Wilkinson, 2003). This equates to a 75% increase in cost per day to house a mentally ill inmate. In addition, a Rikers Island study conducted in 2003 indicated that mentally ill inmates are incarcerated three to four times longer than other inmates (Insel, 2003). Some studies have reported that mentally ill inmates are incarcerated up to eight times longer and at a cost of more than seven times that of other inmates (Stephey, 2007). According to Butterfield (1998), the average length of stay in the New York City jail system is 215 days for inmates with a mental illness, compared with 42 days for other inmates. Thus, in addition to increased cost per day and increased time in prisons and jails, mentally ill inmates present operational problems for correctional facilities.
The day-to-day management of mentally ill inmates presents numerous problems for prisons and jails alike. One of the key issues surrounding prison and jail management of mentally ill inmates is that staff does not understand the dynamics involved. Most corrections staff are not appropriately trained to recognize the challenges associated with mentally ill inmates, such as maintaining medication compliance, behavioral issues, noncompliance with institutional rules, and so on. This is evidenced by the Dunn Decree in Ohio and numerous other court actions that have been previously mentioned.
In addition to prison issues, jails present a different challenge for the staff. The jail is often isolated from community mental health programs, or jail staff lack the knowledge of where to find services. The eight most important issues in managing mentally ill inmates, as delineated by the Standards for the Mentally Ill in Jails (Blough, 2004), are as follows: (1) reception, (2) housing, (3) programming and services, (4) medical services, (5) discipline, (6) physical plant (i.e., the jail facility itself), (7) linkage (i.e., continuity of care), and (8) staff training.
In attempting to alleviate some of the issues surrounding the management of mentally ill jail inmates, the Ohio Supreme Court Advisory Committee on the Mentally Ill in the Courts formed a subcommittee to address jail standards for the mentally ill. The Ohio Supreme Court Advisory Committee on the Mentally Ill in the Courts is composed of representatives from the Ohio Department of Mental Health, the Ohio Department of Alcohol and Drug Addiction Services, the Ohio Department of Rehabilitation and Correction, the Ohio Department of Mental Retardation and Developmental Disabilities, the Ohio Office of Criminal Justice Services, judges, law enforcement personnel, mediation experts, housing and treatment providers, consumer advocacy groups, and other officials from across the state. This committee, formed by Ohio Supreme Court Justice Evelyn Stratton, is working to establish local task forces in each county in Ohio to bring similar local representatives together to collaborate on the issues of mentally ill inmates in the criminal justice system. The Jail Standards Subcommittee developed the set of aforementioned model jail standards as a reference point for jail administrators across the nation.
The model jail standards are a professional guide of recommended practices for jail administrators to promote better care of mentally ill inmates while they are incarcerated and, perhaps most important, provide continuity of care throughout the transition from jail to community by implementing appropriate information sharing and safety net systems to ensure that inmates have the requisite services and community linkages to prevent recidivism.
The most important component of the Standards for the Mentally Ill in Jails is the first one: reception, when the initial screening of the inmate takes place. From this initial screening, inmates are classified and placed in housing of an appropriate security level. Inmates also are screened for medical and mental illness issues and placed in the appropriate programs or care on the basis of the jail’s medical services plan. Many studies have shown that inmates commit suicide within 72 hours of admission to a jail; thus, a comprehensive reception process is vital to the protection of mentally ill inmates.
Another difficult aspect of managing mentally ill inmates falls within the fifth function, discipline. Many mentally ill inmates spend time in disciplinary isolation or lockdown for infractions that, if the proper management team (including a mental health representative) were involved, would not have occurred or may have been viewed as a medical issue instead of a disciplinary issue. In addition, many jails lack the ability to institute therapeutic seclusion when directed by a qualified mental health or medical authority. Thus, the subcommittee has developed standards regarding the construction of a therapeutic seclusion cell that meets minimum guidelines for physical construction while allowing the mentally ill inmate to orient himself or herself to the time of day by providing natural light.
As stated previously, jail staff often lack training in supervising inmates with mental illness. Thus, training standards have been developed for jail staff, including the jail administrator, supervisors, and nonsecurity staff, in regard to recognition, de-escalation, privacy issues, medication responses, and medical contradictions to restraints. In the final analysis, these standards will enable the jail staff to more effectively recognize and properly supervise inmates with mental illness.
Along with drafting standards for mentally ill inmates, the Ohio Supreme Court Advisory Committee on the Mentally Ill in the Courts also advocates community-based treatment and jail diversion programs. These diversion programs are important for both altruistic and financial reasons. Several studies have shown that diverting mentally ill offenders from jails and prisons saves considerable money.
To highlight this cost savings, two programs that provide intensive community-based services to mentally ill individuals who have been involved with the criminal justice system have demonstrated their cost-effectiveness. The Thresholds Jail Program in Cook County, Illinois, demonstrated a cost savings of $18,873 per program participant. This savings was realized over a 2-year period with 30 participants (http://www.thresholds.org). Another project, in Monroe County, New York, Project Link, demonstrated a cost savings of $39,518 per person over a 1-year period with 44 participants (http://www.consensusproject.org).
In addition to innovative programs for mentally ill offenders, the federal government has implemented groundbreaking legislation over the past several years. The first piece of legislation, the Mentally Ill Offender Crime Reduction Act of 2003, was designed to promote public safety and community health by facilitating collaboration among the criminal justice, juvenile justice, mental health treatment, and substance abuse systems in diverting mentally ill individuals from the criminal and juvenile justice systems and in treating such individuals within those systems. This act provided $50 million in grant funding to promote the expansion of mental health courts and to establish community partnerships to better serve mentally ill offenders.
Another piece of federal legislation that had a significant impact on mentally ill offenders was the Second Chance Act. This act was designed to improve outcomes for people returning to the community from prisons and jails. On April 9, 2008, President George W. Bush signed the Second Chance Act into law (see http://reentrypolicy.org/government_affairs/second_chance_act). This legislation authorizes federal grants to government agencies and community and faith-based organizations to provide employment assistance, substance abuse treatment, housing, family programming, mentoring, victim support, and other services that can help reduce reoffending and violations of probation and parole. The House of Representatives appropriated $45 million to fund these grants.
As a result of these two important pieces of legislation, many new programs have been created or augmented, resulting in better and more cost-effective service to mentally ill offenders. These programs enable communities to tailor their programs to fit both their needs and resources in a community-specific way.
Crime Victimization and the Mentally Ill
Another aspect of mentally ill persons in the criminal justice system that receives little attention is the victim. According to Teplin (1999), persons with serious mental illness are more than seven times more likely to be a crime victim than those without a mental illness. This population is also 9 times more likely to be the victim of a violent crime and more than 24 times more likely to be the victim of rape. Women with serious mental illness are much more likely to become victims of sexual assault than men.
According to experts, symptoms often associated with severe mental illness, such as disorganized thought processes, impulsivity, lack of awareness of one’s environment, and poor planning and problem-solving skills, may compromise one’s ability to perceive risks and protect oneself, making one more vulnerable for victimization. In addition, the deinstitutionalization of individuals with mental illness has led to increased vulnerability due to their tendency toward homelessness, substance abuse, and poverty. According to Levin (2005), nearly 3 million severely mentally ill individuals are crime victims each year. The severely mentally ill are more than 140 times more likely than the general population to be the victim of a property crime. In addition to a higher likelihood of being victims, severely mentally ill individuals are more likely to suffer repeat victimization. This is due to symptoms related to their mental illness, which often lead them to be discredited as witnesses or to be found as complicit in their own victimization.
The subject of mental illness and crime is significant in many ways. Mental illness is pervasive in all aspects of the criminal justice system, from offenders to victims. It impacts each segment of the criminal justice system in many ways, from monetary issues to personnel training and interagency collaboration. It is a problem that requires a multifaceted approach to finding solutions. These solutions are generally community specific and agency resource dependent, requiring innovative initiatives and leaders.