Perhaps 200,000 of the country’s inmates suffer from a serious mental illness. A generation ago such people were handled by the mental health, not the criminal justice system. - Eric Schlosser
by Jackie Berman, Esq.
Many of these inmates had been receiving in-patient care in a treatment facility and are in prison because mental health professionals filed criminal complaints against them. The complaints were filed because of difficult or aggressive behavior they displayed while receiving in-patient care. They are in prison because mental health professionals are increasingly turning to the criminal justice system to solve the problem of serving the “difficult” or “untreatable” patient. Faced with the competing obligations of treating aggressive patients, protecting potential victims, and assuring a safe and orderly environment in treatment facilities, many mental health professionals are choosing to prosecute rather than treat their patients.
However, this use of the criminal justice system may be the first step onto an extremely slippery slope of compromised procedural safeguards and abandonment of ethical principles inherent in the patient-therapist relationship. This strategy creates an avenue for serious abuse of persons with mental illness by their caretakers; and, it furthers decades of bad public policy. Using the criminal justice system as a treatment alternative may be a quick fix for dealing with difficult patients in the mental health system. But what are the long-term consequences for our judicial system - for our mental health system- and especially, for people with mental illness?
This article explores some of the factors that have contributed to the growth of this trend to criminally prosecute difficult mental health patients. Many of these factors are the same ones that have contributed to the larger trend of using the criminal justice system to address other tough social problems. The article will also briefly address the special problems that increased criminal prosecution presents for people dually diagnosed with mental illness and mental retardation. The last section of the article raises critical questions about the some of the justifications that mental health professionals use to support using the criminal justice system for psychiatric in-patients.
For the last 20-30 years there has been a significant trend towards de-institutionalization of people with mental illness. Many people with mental illness who were at one time relegated to lifetimes in locked settings and custodial care have returned to their communities. New medications with fewer side effects have created hope for successful outpatient community care.
As increased de-institutionalization returns non-assaultive patients to community settings, inpatient psychiatric units are increasingly faced with treatment and management of violent individuals. Unfortunately, the treatment landscape for psychiatric patients with aggressive or violent behaviors is not as optimistic as the treatment landscape for non-assaultive patients. Developing strategies to treat aggressive and violent psychiatric patients is an ongoing challenge to the mental health community. Such patients may have disorders that are unresponsive to acute treatment. In some cases, patients with violent histories may refuse treatment with anti-psychotic or other medications, thereby preventing successful short-term intervention.
The Prison Industrial Complex: A National Trend Towards Incarceration
“(T)he raw material of the prison industrial complex includes,
…the poor, the homeless and the mentally ill. ”
The trend of increased prosecution of people with mental illness was not altogether unpredictable. It is part of the larger trend of using the criminal justice system and incarceration to resolve a range of social problems. This larger trend has fed into a burgeoning prison industry for close to three decades. In a 1998 article in the Atlantic Monthly, sociologist Eric Schlosser described a social phenomenon that he called the “Prison Industrial Complex”, which he defined as a “confluence of special interests that has given prison construction in the United States a seemingly unstoppable momentum.” According to Schlosser, although the rate of violent crime has fallen by about 20 percent since the early 1990’s, “the number of people in prison or jail has risen by 50 percent.”
The genesis of this trend was the increased number of people with substance abuse problems. From 1963-1972, prisons were considered a “barbaric and ineffective means of controlling deviant behavior.” Mainstream opinion considered problems such as drug addiction to be largely a public-health problem, not an issue for the criminal courts. In fact, in 1970 Congress eliminated almost all federal mandatory minimum sentences for drug offenders.
However, in the early 1970’s, a number of politicians began to call for “get tough” policies in sentencing for substance abusers. For example, in 1973 New York’s Governor, Nelson Rockefeller, demanded that “every illegal drug dealer be punished with a mandatory prison sentence of life without parole.” He argued that plea-bargaining should be forbidden and that even juvenile offenders should receive life sentences. Other states followed this lead and in the 1980s, Speaker of the House of Representatives, Tip O’Neill led the successful campaign to revive federal mandatory minimum sentences for drug offenders.
The result of this shift is that today sixty to eighty percent of prison inmates have a history of substance abuse. At the same time, the number of drug treatment slots available for prison inmates has declined by more than fifty percent. Of those sentenced to prison for drug crimes, a very small percentage actually receives treatment. For people with substance abuse problems, the alternative treatment solution has in fact become the alternative to treatment.
Similarly, policies that support criminal prosecution of aggressive and violent psychiatric patients have set the stage for dumping difficult to treat patients into prisons to suffer the same fate as those with substance abuse problems. Incarceration has become the alternative to treatment for poor mentally ill people.
It is also interesting to note that at least one study suggests that there may be a disproportionate number of African American psychiatric in-patients prosecuted for behaviors exhibited during hospitalization, as compared to white in-patients exhibiting the same behaviors. Similar concerns have been raised with respect to national statistics for drug related incarcerations of African Americans.
In addition to the disastrous clinical outcomes of putting psychiatric patients in prisons, incarceration itself is often devastating. It is no secret that “(p)risons can be “factories for crime,” or that “(t)he lesson being taught in most American prisons—where violence, extortion and rape have long been routine—is that the strong will always rule the weak. Inmates who display the slightest hint of vulnerability quickly become prey.” (Eric Schlosser, quoting Christopher Stone)
Changing View of Violent Behavior
During this same 20-30 year time period, we have also changed our view of violent behavior. Traditionally, mental health professionals viewed violent behavior as “symptomatic” of some other underlying psychopathology. More recent research suggests that “aggression is usually a learned behavior that is maintained by cognitive distortions and can be reinforced by positive results.” Absent active psychosis or acute substance abuse, there is very little if any direct association between violent behavior and mental illness.
This new view of violent behavior suggests that individuals may find that they can get what they want when they display aggressive behaviors such as using force or intimidation to control a situation or person. Under this new view, if violent behavior is learned, it can be unlearned -- through punishment. If punishment is the goal, the criminal justice system has the ability to punish individuals in a way that is not available to the mental health system.
Ambiguous Legal Obligations Imposed on Mental Health Professionals
The judicial system has significantly impacted the treatment and management of the increasing number of violent individuals in inpatient psychiatric facilities and in the community. More people are hospitalized with pending criminal charges. These hospitalizations often occur pursuant to legal obligations on providers that are set forth in the Tarasoff case. (Citations omitted)
Tarasoff was a case brought against university hospital psychotherapists, to recover damages for the murder of the plaintiff’s daughter by a patient at the hospital. The court held that a psychotherapist who knows that a patient poses a serious danger of violence to another has a duty to exercise reasonable care to protect not only his patient but also the patient’s would-be victim. The court acknowledged that there was a public interest in the effective treatment of mental illness, in protecting a patient’s right to privacy, and in protecting the confidentiality of the therapist-patient relationship. However, the court ultimately concluded that the public interest in protecting these principles ends where the public peril begins.
Consequently, psychiatrists now practice “defensive” psychiatry. Psychiatrists are now more likely to admit individuals to in-patient care solely for the purpose of preventing violence. These hospitalizations often occur pursuant to legal obligations on mental health providers as enumerated in Tarasoff and similar cases.
Ambivalence by Criminal Courts About Prosecuting or Punishing People with Cognitive Impairments
In addition to the ambiguous legal landscape facing mental health professionals, the courts have expressed ambivalence about whether, and to what extent having a cognitive impairment should shield an individual from prosecution or punishment. In 1980, the U.S. Supreme Court allowed a death sentence to stand against an individual with a history of severe mental illness. The defendant in that case, John Paul Penry, was diagnosed with psychosis and mental retardation. The Supreme Court however, maintained that execution of persons with a disability is not “cruel and unusual punishment” under the Eighth Amendment of the U.S. Constitution. (Citations omitted)
But, courts have not always been consistent about this issue. Prior to the Penry decision, a New Jersey Superior Court took an emphatic position against the conviction of an involuntarily committed psychiatric inpatient. In that case, a hospital employee filed a complaint against the inpatient for creating an intentional disturbance at the hospital. The behavior complained of included excited, boisterous and threatening outbursts resulting from the patient’s failure to take his medication. The court in its 1979 decision, stated:
To convict the involuntary committee [sic] of a quasi-criminal offense for displaying symptoms of his illness, while in a place intended to treat that illness, and upon the complaint of one whose duty it is to have the care and custody of such a patient, imposes punishment where none can either constitutionally or morally be justified…; …such a conviction would constitute …an unconstitutional infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment…. (Citations omitted)
PEOPLE WHO ARE DUALLY DIAGNOSED WITH MENTAL ILLNESS AND MENTAL RETARDATION
The involvement of people who are dually diagnosed with mental illness and mental retardation in the criminal justice system is not uncommon. For these individuals, involvement with the criminal justice system raises serious questions about whether they are being afforded equal justice. The currently popular concept of “normalization” requires that people with mental retardation experience the consequences of their behaviors just as would a non-disabled individual. However valid this concept may be for other areas of society, “normalization” ignores certain realities of the criminal justice system for persons with mental retardation.
Because people with mental retardation do not want to be identified as such, they may not be willing or able to exercise their constitutional rights when charged with a criminal offense. They may not comprehend commands from police or court personnel, although they will try to act as if they do. They may be unable to describe their side of the story or explain what happened in a clear and consistent way. They may give responses based on a misunderstanding of the question, or to they may try to please police officers by confessing to a crime, even when they have done nothing illegal. In hopes of being accepted, people with mental retardation may be used by others to assist in law breaking without understanding their involvement in the crime or the consequences.
Once in prison, people with mental retardation are more likely to be victimized by other inmates. They are also less likely to receive parole, and they tend to serve longer sentences because they do not understand prison rules. Thus, although there is no attempt to excuse people with mental retardation from the consequences of their actions, the reality is that a person with a dual diagnosis is more likely to be caught, convicted and incarcerated, even if they have done nothing wrong.
WHY PROSECUTION IS NOT THE ANSWER
What then is it about the criminal justice system that makes many people, including mental health workers, believe it is an appropriate modality for handling people with mental illness who are difficult to treat or aggressive? Perhaps it is that is has become easier to advocate for building more prisons than to advocate for increasing resources for a mental health treatment system. Perhaps the reality is that we use the criminal justice system because of its capacity to punish in a way the mental health system may not. It may be that the answer is as simple as being that we incarcerate people because we just do not know what else to do with them. It could also be that mental health professionals want to treat only those people whose behavior is socially “acceptable”. By using the criminal justice system, we may be attempting to do an end-run around the “right to treatment” protections.
But the arguments supporting prosecution of psychiatric patients raise more questions than answers. Why is it easier to get more prisons built than to get more resources for mental health treatment? Do proponents of the use of prosecution believe that the mental health system has no interest in or responsibility for these patients? How can one assert that a policy permitting prosecution is not meant to scapegoat patients for inadequacies in the treatment milieu…” when today’s overburdened hospitals often offer an environment with “limited staffing and ever-increasing service demands” compounded by “little training…in the management of violence?”
Because violent behavior is no longer automatically associated with psychopathology, some mental health professionals argue that it may be useful to hold an individual responsible for the consequences of their behavior. Bringing the law within the walls of an institution is a more normalizing and respectful way to treat mentally ill patients. It encourages personal responsibility and instructs patients about societal expectations. Where that individual is determined by the facility clinicians to be capable of controlling the behavior, clinicians may deem prosecution to be least restrictive most “natural” consequence of that behavior. They argue that prosecution may be a ‘good thing’ because it preserves the treatment milieu and holds clients accountable for their actions. Some go so far as to assert that failure to include prosecution as a viable option is based in public myth or prejudice about the mentally ill as all being violent, dangerous, and incompetent. (Citations omitted)
Notwithstanding the impassioned tone of arguments that suggest that prosecution may be clinically indicated or in the best interests of a patient, there is little data supporting this assertion. The reality is that we have very little empirical evidence either for or against using the criminal justice system for individuals who commit acts of violence. We have little evidence to show the effect of prosecution on recidivism, on future treatment success, or on any of the other things that proponents suggest prosecution is "good for".
There are many reasons why prosecution of mental health patients should not be viewed as a remedy to the problem of aggression or difficult behaviors. Many voice strong opposition to the practice of prosecuting patients because the outcome of criminal prosecution of patients is, at best, uncertain and at worst, may seriously impact the humane care and treatment of the patient. This can include such outcomes as undermining the treatment alliance between patient and therapist, scapegoating a patient for inadequacies in the treatment milieu, and providing a potential avenue for abuse by untrained, unethical or incompetent staff. Although the criminal justice system does not provide “treatment”, we find numerous excuses to justify our increasing use of it for people with mental illness.
A number of individuals in the mental health community believe that prosecution can never be in the best interests of a patient. William Crane, Esq., former Massachusetts Department of Mental Health Special Assistant for Human Rights, wrote in a September 18, 1990 memo:
Department of Mental Health hospitals are mandated to be able to care for patients who are a danger to themselves or others. It is precisely because these people are not well served in the criminal justice system that state hospitals exist to care for them. Criminal prosecution is presumptively neither in the patient’s best interests nor an appropriate part of a patient’s treatment.” (Citing to Appelbaum) “A policy should not assume that a patient will ever benefit from criminal prosecution. At best the results of criminal prosecution are uncertain and at worst prosecution may have a disastrous impact on the humane care and treatment of the patient.”
For these mental health professionals, prosecuting their patients is never in the best interests of the patient because it permanently undermines the clinical relationship.
One cannot claim to be working for a patient while casting the patient into a system that is inherently adversary in nature. Opponents to using the criminal justice system for patients argue that invoking the criminal process can harm patients far more than it helps them. Diverting difficult to treat individuals to the criminal justice system may provide relief for the staff of psychiatric institutions, but the argument that professionals may have a duty to initiate charges where a serious assault has occurred or may occur, is dangerous nonsense. Significant ethical problems arise if prosecution of patients is pursued for therapeutic purposes. (Citations omitted)
There are several factors that explain the trend towards prosecution of mental health patients. These factors include de-institutionalization, using incarceration as a solution to all social problems, changing views on violence, increased liability for mental health professionals and judicial ambiguity. At the same time, we are seeing an increased concentration of in-patients with dangerous behaviors who are less amenable to existing treatments and whose violent behaviors threaten patient and staff safety and morale. But criminal prosecution of these in-patients will not work. Criminal prosecution of mental health patients will not reduce violence, and it will not help make for a safer society. Incarceration is not treatment. Criminal prosecution of mental health in-patients produces only negative consequences for our judicial system, our mental health system and especially for people with mental illness. We must address this problem and increase resources for treatment alternatives.
1. Title II, Americans with Disabilities Act. 42 USC sec. 12131 (effective date 1992)
2. Amnesty International Report, "Beyond Reason, The Imminent Execution of John Paul Penry," - AMR 51/195/99, December 1999.
3. Appelbaum, P., Legal considerations in the prevention and treatment of assault. Published in J. Lion & W. Reid (Eds) Assaults within psychiatric facilities, (pp.173-190), New York: Grune & Stratton, 1983.
4. Appelbaum, P., "Hospitalization of the dangerous patient: legal pressures and clinical responses," Bull Am Acad Psychiatry and Law, 12: 323-329, 1984
5. Brown, B.S., & Courtless, T. (1971), The Mentally Retarded Offender. (DHEW Pub. No. (HSM 72-90-39), Washington, D.C.: U.S. Government Printing Office.
6. Greenberg, Fern, J.D., Ed.M., Kinscherff, Robert, J.D., Ph.D., (1995) "Delinquency Prosecution of Youth in Behavioral Treatment Facilities: Clinical Practice & Legal Issues."
7. Gutheil, T.G., M.D., Letter to Ed., Hosp and Comm Psych, Vol 36, no. 12 1320-1321. Dec.1985.
8. Hartel, JA, MSW, The prosecution of assaultive clients: treatment considerations, Perspectives in Psych Care, vol. 29, No 3 July-September 1993.
9. Hoge S.K., Gutheil T.G, The prosecution of psychiatric patients for assaults on staff: a preliminary empirical study, Hosp Comm Psych, v 38, no 1: 44-49, 1987.
10. Miller, R.D., M.D., Maier, G.J., M.D., Factors affecting the decision to prosecute mental patients for criminal behavior, Hosp Comm Psych, v 38 n. 1, Jan 1987.
11. Mills, M,. et al, Prosecuting Patients: In reply, Hosp Comm Psych, v 36, n. 12 1321-1322. Dec. 1985.
12. Munson, Allegra Esq., "The Mentally Retarded Offender and the Criminal Justice System," Massachusetts Department of Mental Retardation, 1998.
13. Munson, Allegra, Esq., "An Encounter with the criminal justice system: first out of a three part series, Massachusetts Department of Mental Retardation.
14. New Jersey v. Cummins, 168 N.J. Super. 429, 403 A.2d 67, 403 A.2d 67(1979).
15. Norko M.A., Zonana H.V., Phillips, R.T.M., Prosecuting assaultive psychiatric patients, Journal Forensic Sciences, JFSA, Vol. 37, May 1992, pp. 923-931.
16. Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989).
17. Perske, R. (1991) "Unequal justice? What can happen when persons with mental retardation or other developmental disabilities encounter the criminal justice system," Nashville: Abingdon Press.
18. Phelan, L.A., Mills, Mark J., Ryan, Jane A., Prosecuting psychiatric patients for assault, Hosp and Comm Psych, June 1985, Vol 36, No 6.
19. Rogers v. Commissioner of Department of Mental Health, 390 Mass. 489, 458 N.E.2d 308, 314 (1983).
20. Santamour, M. (1986, Spring-Summer) "The Offender with Mental Retardation," The Prison Journal, 66(7), 3-18.
21. Schlosser, E., The Prison-Industrial Complex, Atlantic Monthly, pp. 51,54, 56,57, 77. Dec 1998.
22. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P2d 334, 131 al.Rptr.14.
23. Tardiff, K., A survey of assault by chronic patients in a state hospital system, in Assaults within psychiatric facilities, Ed Lion JR Reid WH, New York, Grune & Stratton, 1992.
24. Volavka, Jan, M.D., Mohammad, Yar, M.D., Vitrai, Jozsef, Ph.D., Connolly Madeline, C.S.W., A.S.C.W., Stefanovic, Milica, M.D., Ford, Michael, M.D., "Characteristics of State Hospital Patients Arrested for Offenses Committed During Hospitalization." Psychiatric Services, Volume 46, No.8, August 1995.
25. Worcester State Hospital Policy and Procedure: Prosecuting Patients for Presumptively Criminal Acts, 6/1/96In addition, interviews with the following individuals formed the basis for this article:
Leigh Mello, Esq., staff attorney, Disability Law Center, Allegra Munson, Esq., Asst. General Counsel, Massachusetts DMR and William Crane, Esq., former Special Assistant for Human Rights, Massachusetts DMH.
Special thanks to Patricia Freedman, Esq.
Jackie Berman, Esq., is an Assistant General Counsel with the Massachusetts Department of Mental Retardation. She has previously worked at the Disability Law Center, the Children’s Law Center of Massachusetts, the Office for Children and the Law Offices of McGee and Schiavoni. She is a graduate of Northeastern Law School.