Abstract
In the early 1970s, Dr. Marc Abramson, a jail psychiatrist, was the first author to observe in the scholarly literature that people with serious mental illnesses (PSMI) were being criminalized—that is, processed through the criminal justice system instead of the mental health system (Abramson, 1972). This essay examines four common beliefs about the criminalization of PSMI. The first belief is that criminally involved PSMI are homogeneous. A close inspection of their characteristics and pathways into the criminal justice system proves otherwise (Lurigio & Lewis, 1987). PSMI can enter the criminal justice system through criminalization or standard criminal justice processing. Criminalization occurs only when PSMI are arrested for publically displaying the signs and symptoms of serious mental illness (SMI). These arrests are typically for public-order offenses, stemming mostly from psychiatric symptoms, not from a deliberate neglect of the rights of others (Council of State Governments, 2002).
Heightened awareness of the problem of PSMI in the criminal justice system resulted in the implementation of diversionary police and court programs, which have decreased the likelihood of the mentally ill being criminalized. PSMI can still be criminalized when contact with the police is mishandled and eventuates into charges for assaulting a police officer or when aggressive public-order policing initiatives sweep people who are homeless, publicly intoxicated, or panhandling into the courts or jail (Lurigio, Snowden, & Watson, 2006; Skeem, Manchak, & Peterson, 2011). Other distinctions among criminally involved PSMI include differences in psychiatric severity and treatment needs as well as the risks for crime, violence, and recidivism.
The second belief is that deinstitutionalization precipitated the putative rise of PSMI within correctional populations. This belief is partially true. Deinstitutionalization began in the mid-1950s with the advent of psychotropic medications (Frank & Glied, 2006). The emptying of hospitals was hastened by federal entitlement laws that shifted the costs of psychiatric care from the state to the federal government and led to the placement of PSMI in nursing homes, institutes of mental diseases, and board-and-care facilities (Lurigio & Swartz, 2000; Shadish, Lurigio, & Lewis, 1989). The prison explosion began 25 years after deinstitutionalization. Changes in mental health and correctional policies overlapped but were not coterminous or causally related. Furthermore, the notion that patients simply moved en bloc from the hospital to the jail rests on the faulty assumption that patients had severe criminal propensities. Growth in the criminalization of PSMI was largely predictable, given the rise in the number of people under correctional supervision as well as in the proportion of those defined in the general population as psychiatrically disabled (Whitaker, 2010).
During the 1960s, the mental health system became bifurcated with greater racial and economic disparities between public and private hospital populations. The population of the former grew significantly poorer and younger and more likely to be male and illicit drug using, as well as from crime-infested communities (Frank & Glied, 2006). Hence, PSMI released from a state hospital in the 1970s had higher rates of arrest than members of the general population due to these changes in their demographic characteristics and their origination from criminogenic neighborhoods—risk factors for criminal involvement and arrest (Wolff, 1998). In addition, state patient cohorts in the 1970s began to accumulate arrest histories, which are related to future arrest and penetration into the criminal justice system (Monahan & Steadman, 1983).
Apropos the preceding point, the third belief is that treatment is the key to reducing recidivism among criminally involved PSMI. Recent research has established no pathogenesis between SMI (i.e., schizophrenia, bipolar disorder, and major depression) and criminal predilections or actions. Mental illness alone typically does not cause criminal behavior; therefore, the treatment of mental illness alone will not usually reduce recidivism (Skeem et al., 2011). Treatment is a necessary but not a sufficient condition for preventing crime and violence, allowing PSMI to become more stable and amendable to evidence-based interventions that address criminogenic needs, which elevate risk for crime among PSMI and non-PSMI alike (e.g., criminal thinking, educational and employment failure, substance use disorders) and must be alleviated to lower crime and recidivism rates (Epperson et al., 2011).
The fourth belief is that drug law enforcement has contributed to growth in the numbers of PSMI in the criminal justice system. Much evidence supports this belief. A high proportion of PSMI have co-occurring substance use disorders, which are also common among arrestees. Drug use among PSMI and non-PSMI is a crime accelerator. The possession of drugs is a gateway for a substantial number of PSMI entering the criminal justice system. People convicted of drug crimes are among the faster growing subgroups of the correctional population. The majority of those convicted have comorbid psychiatric and substance use disorders (Lurigio, 2009).
The courts have become the instrumentality for the mandatory treatment of people with substance use and psychiatric disorders and their comorbidities. Similarly, jails and prisons have become the leading sites for behavioral health care services. With respect to addiction, court mandates to refrain from illicit drug use and to participate in recovery services are an appropriate and reasonable exercise of the court’s authority to institute behavioral changes. Coerced treatment for addiction works by providing people with an opportunity for recovery that might not have been pursued without court leverage (Lurigio, 2002). Drug use is illegal; mental illness is not. Therefore, in a criminal context, mandated care for psychiatric disorders is not analogous to care for addictions. Furthermore, as noted earlier, treatment for SMI might not lower the risk for criminal behavior or recidivism; sobriety clearly does (Epperson et al., 2011). Finally, mandating medication for PSMI is questionable from a constitutional standpoint unless they have been subjected to involuntary hospitalization or outpatient commitment proceedings.