CRUEL AND UNUSUAL: THE CRIMINALIZATION OF PERSONS WITH MENTAL ILLNESS

Author: Mariah Woeste, Senior Editor

Mental health treatment for persons with mental illness in the United States has experienced a major shift in the past half century, from institutionalized care in state mental hospitals to a community-based treatment approach[i] However, the number of persons in state and county mental hospitals has dropped, while the number of individuals with severe mental illness in prisons and jails has dramatically increased. [ii] When counties criminalize mental illness instead of offering treatment, they violate the cruel and unusual punishment clause of the Eighth Amendment. [iii]

The third prong of the Eighth Amendment's cruel and unusual punishment limits what a state can criminalize, not how it can punish.[iv] In its 1962 decision Robinson v. California, the Supreme Court struck down a California statute that made it illegal to be addicted to a narcotic.[v] The court stated, “In the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”[vi] People with mental illness have experienced a shameful history of neglect and face significant barriers through criminal legal mechanisms.[vii]  Over 44 million adults over the age of 18 in the United States have been diagnosed with a mental illness. [viii] This represents approximately 18% of the population.[ix] Historically, persons with mental illness were often placed in shelters and hospitals due to alleged concern for public safety.[x] These shelters and mental institutions were a place to “hide” people who had mental illness rather than treat them.[xi]The little treatment that was provided was inadequate.[xii] Horrifying reports of abuse and neglect at these institutions began to circulate the United States as early as the 1840s.[xiii] Asylums were used to exclude people with mental illness from the rest of society.[xiv] Institutionalizing persons with mental illness became the standard practice. Persons with mental illness were all but erased from society—forced into hiding by governmental and familial influences. However, after World War Two, mental asylums were deinstitutionalized due to public outcry over the inhumane treatment of patients.[xv] Following the deinstitutionalization of mental asylums, many people with mental illness “fell through the cracks” without sufficient financial and political support to ensure their integration into society.[xvi]

 In 1963, President John F. Kennedy signed the Community Mental Health Centers Act, which provided federal funding to create the infrastructure of community-based mental health services and treatment facilities.[xvii] The program failed because it was never adequately funded.[xviii] As a result, more state hospitals were closed.[xix]  Hundreds of thousands of people with mental illness were discharged from hospitals with no mental health resources or options for alternative treatment.[xx] All too quickly, the number of psychiatric state hospital beds in the United States practically disappeared.[xxi] In 2016, there were only 11.7 state hospital beds per 100,000 people - a drastic change from 337 per 100,000 in 1955.[xxii] With no resources readily available to assist, the criminal legal system became a revolving door for persons with mental illness. The deinstitutionalization of psychiatric hospitals soon became “re-institutionalized” in prisons and jails.[xxiii]

As a result, the criminal legal system functions as the United States default system for treating mental illness.[xxiv] For every person treated for a psychiatric illness in a hospital, about five people with similar conditions are treated or confined in prisons or jails. Effectively, prisons and jails have become the largest mental health facilities in the United States.[xxv]  Even though many people with mental illnesses confined in prisons and jails have not committed an offense or are being confined merely on a public order infraction, statistics show that between 30 and 40 percent of persons with mental illness in jails have no criminal charges pending against them.[xxvi] Despite this statistic, mentally ill individuals are vastly overrepresented in the criminal legal system.[xxvii] State and  federal statistics show that people with mental illnesses do not engage in more criminal conduct other members of society. However, reactions from community and law enforcement responses to someone with a mental illness cause these individuals to be vastly overrepresented in jails and prisons. The absence of viable public health alternatives only contributes to this overrepresentation..[xxviii]

Up to 40% of adults with mental illness will come in contact with the criminal legal system at some point in their lives.[xxix] People with mental illness are more likely to encounters with police for a variety of reasons; substance abuse and financial instability being large contributors.[xxx] Usually, arrests of persons with mental illnesses often are for minor crimes.[xxxi] Studies show most violent crimes are not committed by people with mental illnesses. Instead, persons with mental illness are often arrested for nuisance crimes, such as loitering or trespassing, or crimes motivated by hunger or hygiene.[xxxii] These arrests are often referred to by police as “mercy bookings.”[xxxiii] The theory is that for those suffering from symptoms of mental illness to jail is better than living on the streets.[xxxiv] While jails and prisons were not designed to serve as treatment centers for people with mental illness, it has become one of their primary roles.[xxxv] Yet jails and prisons are not equipped to adequately provide for the needs of inmates with mental illnesses, often due to large caseloads, inadequate training, and a lack of funding.[xxxvi] The lack of appropriate mental health treatment in jails and prisons has debilitating consequences to the individual and society.[xxxvii] These consequences include direct costs associated with the involvement of the criminal legal system e.g., probation, court fees and fines. As well as the burden of a criminal record.[xxxviii] Additionally, there are the indirect costs such as lost productivity from untreated or undertreated mental illness and from incarceration and broken social and personal relationships stemming from the stigma of mental illness.[xxxix]

Placing with people with mental illness in jail as an alternative to treatment or by only providing treatment in the jail or prison setting violates the Eighth Amendment's prohibition on cruel and unusual punishment.[xl] Especially where treating the untreated is a proven practice for reducing the disproportionate number of persons with mental illness stuck in the criminal legal system.[xli] One in five of  jail and prison inmates in the United states have a serious untreated mental illness.[xlii] Without access to proper without access to proper mental health treatment, individuals with severe mental illness often wind up with conditions that may linger or worsen.[xliii]

Mental health treatment must become a priority of the criminal legal system. Until then advocates must push for treatment options for their clients. The remedy must come through an Eighth Amendment theory that criminal defense attorneys and advocates can push for treatment for persons with mental illness instead off punishment through criminalization. Civil rights attorney, Lori Rifkin created a blueprint by which persons with mental illness can receive the treatment they need instead of being cruelly punished for their illness. Rifkin suggests that lawyers would need to present evidence that:

“(1) Their client has been diagnosed with mental illness; (2) adequate mental health treatment in the community was unavailable to their client; (3) the behavior(s) for which their client was charged arose from the client' mental health need; and (4) preferably, that the client's symptoms are responsive to treatment when offered (thus making concrete the link between the government's failure to provide publicly-funded mental health treatment and the result for the particular client).”[xliv]

While there is no current legal precedent where this blueprint has been implemented, it is a strong starting place to advocate for treatment for one’s client.

The criminal legal system cannot continue to ignore the needs of persons with mental illness. Furthermore, the criminalization of mental illness creates a “status” crime which, as established in Robinson, violates the Eighth Amendment’s cruel and unusual punishment clause. [xlv] Even beyond the Eighth Amendment, as a matter of public policy, it is morally wrong and inhumane to punish someone through jail or prison whose behavior is a symptom of their illness. Until the ever-revolving door of the criminal legal  system is closed individuals with severe mental illness will continue to be trapped behind the walls prisons and jails. Alternatives to criminal liability for symptoms of mental illness and prioritizing treatment options must become a goal for advocates, lawmakers, judges and community members alike. [xlvi] By advocating for treatment options, attorneys hold the key to convincing legislatures to change the government’s approach to treating individuals with severe mental illness rather than punishing them through criminalization.

[i] Maria Slater, Revolving Doors of Hospitalization and Incarceration: How Perceptions of Procedural Justice Affect Treatment Outcomes, 27 WM. & MARY J. RACE, GENDER & SOC. JUST. 261, 262 (2021).

[ii] Id.

[iii] Id.

[iv] Id.

[v] Robinson v. California, 370 U.S. 660,666 (1962).

[vi] Id.

[vii] Michael Mullan, How U.S. Society Has Treated Those with Mental Illnesses, 24 RICH. PUB. INT. L. REV. 79, 81 (2021).

[viii] Id.

[ix] Rebecca Ahrnsbrak et al., U.S. DEPT. OF HEALTH & HUM. SERVS., Key Substance Use and Mental Health Indicators In The United States: Results From The 2016 National Survey On Drug Use and Health 36 (2017), https://www.samhsa.gov/data/sites/default/files/nsduh-ffr1-2016/nsduh-ffr1-2016.pdf.

[x] Margaret Ahern, "Defunding" the Criminality of Mental Illness by Funding Specialized Police Training: How Additional Training and Resources for Dealing with Mental Health Will Be Beneficial for All Sides, 35 J.L. & Health 181, 185 (2021).

[xi] Id.

[xii] Id.

[xiii]Id.

[xiv] Mullan, supra note 7, at 85.

[xv] Id.

[xvi] Id.

[xvii] Ahern, supra note 9, at 181.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Ahern, supra note 9, at 181.

[xxii] Id.

[xxiii] Slater, supra note 1.

[xxiv] Amanda C. Pustilnik, Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness, 96 J. Crim. L. & Criminology 217 (2005).

[xxv] Id.

[xxvi] Id.

[xxvii] Ahern, supra note 9, at 188.

[xxviii] Pustilnik, supra note 23.

[xxix] Id.

[xxx] Id.

[xxxi] Risdon N. Slate, Deinstitutionalization, Criminalization of Mental Illness, and the Principle of Therapeutic Jurisprudence, 26 S. Cal. Interdisc. L.J. 341 (2017).

[xxxii] Id.

[xxxiii] Ahern, supra note 9, at 188.

[xxxiv] Elyn R. Saks, The Status Of Status Offenses: Helping Reverse The Criminalization Of Mental Illness, 23 S. Cal. Rev. L. & Social Justice 367 (2014).

[xxxv] Ahern, supra note 9.

[xxxvi] Lori Rifkin, A Blueprint for Challenging Criminalization of People with Mental Illnesses and Psychiatric Disabilities, 1 UCLA CRIM. JUST. L. REV. 57, 59 (2017).

[xxxvii]Ahern, supra note 9, at 181.

[xxxviii] Pustilnik, supra note 23.

[xxxix] Id.

[xl] Rifkin, supra note 34, at 57.

[xli] Ahern, supra note 9.

[xlii] Doris A. Fuller et al., Overlooked In The Under-Counted: The Role Of Mental Illness In Fatal Law Enforcement Encounters, 1 TREATMENT ADVOCACY CTR (2015).

[xliii] Ahern, supra note 9, at 181.

[xliv] Rifkin, supra note 34, at 57.

[xlv] Robinson v. California, 370 U.S. 660,666 (1962).