Do the Mentally Ill Belong in Our Jails and Prisons?

By Rich Holloway, J.D.

CTU Criminal Justice Degrees - Do the mentally ill belong in prisons?Since the early 1970s, a deinstitutionalization movement for the mentally ill has been underway in the U.S. The result? According to a joint report from the Treatment Advocacy Center and the National Sheriffs’ Association, there are now 10 times more individuals with serious mental illness in prisons and jails than there are in state mental hospitals. This estimate doesn’t count those prisoners sent out of state to private institutions.

Earlier this year, the Cook County Sheriff announced that the Cook County Jail is the largest provider of mental health services in Illinois. Recently, after the deaths of two mentally ill inmates in New York City, officials reported they plan to organize a task force to address the problem in their jails. Reports like these suggest that we are near the end of a long, unsustainable road in how we deal with mental illness in this country – practices that place a heavy burden on our correctional system.

The Issue at Hand

Prison or jail is often not the appropriate place to deal with a person with mental health issues. The presence of large numbers of inmates with mental health issues represents a significant and costly problem for our nation’s prisons and jails. On average, mentally ill inmates:

  • Serve longer sentences than inmates with no mental illness
  • Are more likely to be victimized by other inmates
  • Are more likely to be involved in violence while incarcerated

Beyond this, many mentally ill inmates often have issues that go undiagnosed and consequently, lack the necessary treatment to cope with their mental illness. Even the few who are diagnosed with a disorder rarely receive treatment while incarcerated.  Many states require that the administration of psychiatric medications must occur in a psychiatric hospital, which makes it even more difficult for many jails and prisons to serve those inmates properly.

Yesterday’s Policies, In Effect Today

The law of unintended consequences is clearly visible in our nation’s current situation, with policy decisions made decades ago now negatively impacting us today.

To give a very quick history of the provision of mental health services in this nation: several hundred years ago we locked up “lunatics” in our jails and prisons, and typical of the time, the family members of the incarcerated “lunatic” was responsible for supporting him – they would pay the sheriff or jailer to feed the inmate (Joint Report, 2014).  Around 1820, it was increasingly argued that jails and prisons weren’t the right place to deal with people with mental illness and a shift began to occur.  Virginia led the states by opening the first U.S. mental health hospital and mental health services were state-run for about 145 years. The provision of mental services continued this way until about 1965 when the deinstitutionalization conversation kicked into full swing.

The basic premise behind deinstitutionalization seemed like a good one at the time. Instead of committing people against their will to mental health institutions, it was argued that treatment in their respective communities was a better way to go.  Instead of shipping people off and essentially locking them up “for their own good,” it was argued that mental health patients, in most cases, could be better served by maintaining their connections to their local community and treating them closer to home, family and friends.  It was a good idea, but as is often the case with radical policy shifts, this approach required well-managed funding.  The deinstitutionalization movement began in the 1970s but it was not until 1993 that we first saw evidence that more money was going to community mental health centers instead of state institutions.  For a more comprehensive discussion of the history of deinstitutionalization, read Learning from History: Deinstitutionalization of People as a Precursor to Long-term Care Reform by the Kaiser Commission on Medicaid and the Uninsured.

Time for Change

In the past, the widespread use of mental hospitals was often the result of inadequate treatment methods.  However, since the 1950s, we’ve had successful treatment protocols for many forms of serious and even severe mental illness.  As such, institutionalization for the sake of simply housing people is no longer needed.  We can properly treat mentally ill inmates, even while in prison, if we put the proper laws in place.  In many states, this requires the removal of legal hurdles that make involuntary treatment incredibly difficult despite the U.S. Supreme Court’s ruling in Washington v. Harper, 494 U.S. 210 (1990).

Diversion programs are an accepted and useful tool in the American criminal justice system, and have taken on many forms.  We have seen them used quite often with juveniles and in drug courts, but using them to move mentally ill individuals who’ve engaged in misdemeanor crime away from the jail and prison system is a win-win for the individual, the overcrowded system, and the public. Coupling diversion programs with assisted outpatient treatment makes even greater sense. These programs can even be used with involuntary treatment scenarios. In some states, in addition to a reduction in arrests, we are also seeing reduction in alcohol and illegal drug abuse.

As a trial lawyer, one of my mantras to clients was “it’s always easier to prevent problems than it is to fix them after the fact.”  That mantra applies in this context as well.  Effective intake screening can eliminate a host of problems later.  Identifying potential issues on the front end allows for planning to prevent issues, versus cleaning up the mess afterwards.  Lastly, mandatory release planning is another example of preventing problems versus fixing them later.  Every mentally ill inmate leaving a prison or jail should have a release plan in place.  If there is no established plan for following up with a mentally ill inmate upon release, we are essentially setting that inmate up for failure in the form of recidivism.

The way I see it, America appears to have a historical fondness for criminalizing behavior as the default policy response to what is often a political concern.  Mental illness is no different.  It is far more expedient to label someone with mental health issues as a criminal and lock that person away.  However, it is clear that treating certain individuals with mental illnesses as criminals will only exacerbate their underlying conditions, and when placed in America’s jails or prisons, life becomes more difficult for all involved – the mentally ill inmate, other inmates, correctional officers, correctional healthcare workers, and eventually, the public.

Looking Ahead

So what is the long term solution to this phenomenon we are currently faced with in the American correctional system?  We must fix the broken mental health system – sufficiently fund mental health services at the state, county and local level; and re-envision mental health services in this nation.  Unfortunately, this solution is a political/policy solution; one that will come with its own set of challenges.  Given these challenges, authors of the joint report have made six recommendations which I believe are sound and should be implemented across the states:

  1. Provide appropriate treatment for prison and jail inmates with serious mental illness
  2. Implement and promote jail diversion programs
  3. Promote the use of assisted outpatient treatment
  4. Encourage cost studies
  5. Establish careful intake screening
  6. Mandate release planning

Reaching a long-term solution to this nation’s mental health treatment challenges is clearly beyond the scope of our correctional systems, but the recommendations in the joint report provide a legitimate interim fix that can start us on the road to alleviating much of the strain on our prisons, jails, and local communities.

CTU Faculty - Rich HollowayRichard Holloway, J.D., practiced both criminal and civil law in the Chicago area for nearly a decade before he began teaching as an adjunct professor in Business Law and Criminal Justice.

Image Credit: Flickr/Niklas Morberg