The Mentally Ill And Their Effects On Our Criminal Justice System

One of America’s largest problems today is the situation with the Mentally Ill and their effects on our Criminal Justice system. Ever since the deinstitutionalization of mental hospitals, our prisons have become a gathering pool for mentally ill as they are mis-diagnosed or perhaps not diagnosed at all. They become a burden not only on our prison system, but on the economy as well as they often return to the prisons and stay longer. Many law enforcement agencies around the country are beginning to implement programs to counteract what has been happening for the past thirty years.

Mental illness or insanity is:

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1. Persistent mental disorder or derangement. No longer used scientifically.

2. Law. Unsoundness of mind sufficient in the judgment of a civil court to render a person unfit to maintain a contractual or other legal relationship or to warrant commitment to a mental health facility.” (Webster 1996)

The McNaughton Rule which is used in approximately half of the states to define insanity is as follows:

1. The defendant was suffering from ‘a defect of reason, from a disease of the mind.’

2. As a result, the defendant did not ‘know’ the ‘nature and quality of the act he was doing.’

3. An inquiry has been carried out to determine whether the defendant knew ‘what he was doing was wrong’ (Ogloff, Roberts & Roesch, 1993)

The Durham Test simply states that the accused is not ciriminally responsible if his/her actions were produces by a mental disease or defect. Problems then arose when psychiatrists began using any familiar label as a ‘mental disease or defect’ and becoming too lenient. This standard is only used in New Hampshire.

The first survey of mental health issues in jails revealed that less than 1% of our nation’s inmates were mentally ill. According to a 1999 US department of Justice report, 16% of the nations inmates in 1998 were mentall ill. On average, mental health offenders cost more to manage in jail, stay longer, and recidivate at a higher rate than other inmates. (Congress 2000) The mentally ill have become criminalized when in fact, they didn’t often have a choice or maintain the facilities to judge right from wrong. In the early 1960s-70s there were many mental hospitals full of the mentally ill. Now there are many mentally ill in the criminal justice system.

The shift in residency of the mentally ill from hospitals to the criminal justice system is the result of deinstitutionalization, which occurred in the early 1990’s. The impetus began in the 1970’s to eliminate the infamous mental institutions. These “warehouses” of the past were known for their sparse living conditions, brutal treatment of patients, and harsh medical procedures and treatments such as electroshock therapy. Concern for the civil rights of mentally ill persons, a desire to cut costs, and a hope that new medications could replace supervised care spurred the movement to close the institutions.

However, when these institutions were closed, there were no conditions made to facilitate the recovery of the patients. They were simply ‘dumped’ into the streets with no further plans for recovery. In fact, a majority of the deinstitutionalized mentally ill had anosognosia, a condition that made them unable or unwilling to recognize their illness. In the civil rights conscious state of the era, they were allowed to make their own decisions regarding their need for treatment. Not surprisingly, many went off of their medication and lost touch with mental health care centers.

Without family or a means to earn money for rent, many turned to life on the streets. They were then arrested on minor charges by police under social pressure to fix the rising problem–the homeless population. Approaching one third of homeless people have a psychological disorder.

Homelessness is one of the common traits found in criminals. In fact, state prisons, federal prisons and local jails have had 20, 19, and 30% respectively, of their inmates having been homeless at least one year prior to the arrest. Considering that mentally ill are approximately one third of the homeless population, its not hard to believe that it is estimated that 16, 8, and 16% of those incarcerated in state, federal, and local facilities are mentally ill.

This has quite an impact on the Criminal Justice System. In fact, law enforcement and corrections officers will say that they’re at ‘ground-zero’ of our country’s mental health crisis. (Congress 2000) In fact statistics show:

· 25% to 40% of mentally ill individuals become involved in the criminal justice system;

· In July 1999, the Department of Justice issued a Special Report announcing that at least 16% of state jails and prisons, or 260,000 people, are individuals with severe mental illness. That is more than four times the number of people currently in state mental hospitals;

· The American Jail Association estimates that 600,000 to 700,000 bookings each year involve individuals with mental illness;

· On any given day, at least 284,000 schizophrenic and manic depressive individuals are incarcerated, and 547,800 are on probation;

· By default, L.A. County Jail is now the largest mental institution in the United States, holding an estimated 3,300 mentally ill inmates on any given night

· Annual cost to police and sheriff’s department is estimated to be $45 million and $160 million respectively, $605 million total

· Mentally ill offenders are generally repeat offenders, incarcerated ten times or more for minor crimes and misdemeanors. (California Research Bureau, calif. Sate library 2/1999)

· Mentally ill offenders display aggressive violent behavior, have long histories of institutionalization, and/or exhibit a diminished ability to function independently in jail or other detention settings. (Silver 2000)

Its easily seen that mental illness is becoming increasingly popular in the criminal justice system. This is a problem. Most of all these problems can be reduced to lack of one thing. Strickland remembers when the governor of Virginia “expressed dismay that he was ‘forced to authorize the confinement of persons with Mental illnesses in the Williamsburg jail, against both his conscience and the law,’ because of lack of appropriate services.”

(Congress 2000) This was in 1773! Its now more than two hundred years later and we’ve come to accept the homelessness and incarceration simply as a part of the life for the most vulnerable among our population. In most cities, including our capital, severely mentally ill people are part of the urban landscape, shuffling through people, talking to friends only they can see and sleeping on the sidewalks.

As stated previously, our criminal justice system lacks the facilities and resources to effectively treat the mentally ill. Further complicating an already difficult task is the lack of coordination and integration of mental health services in our communities. Some common problems of the system are the point of contact in the field. Most law enforcement officers have no training to recognize and identify mental health factors.

This lack of training combined with a lack of alternatives for disposition of an incident involving a mentally ill person often result in unnecessary entry into the criminal justice system. Also, most jails lack the resources to do adequate and timely screening for mental health problems. Lack of training, insufficient access to mental health histories, and limited or no diversion options create difficult management issues for jail personnel. Inadequate housing and limited in-jail mental health services usually equate to decompensation in the inmate’s mental condition.

Even if the inmates are treated properly, they are discharged from jail without proper discharge planning. This lack of planning is usually due to the lack of a formal linkage with the community mental health providers and results in a lack of continuity. Inconsistent care can not only be ineffective but can actually aggravate the problem increasing its severity.

A community’s lack of resources to deal with the problem is often associated with what the public views as a random act of unexplained violence. For example, a man who tried to commit himself to a psychiatric hospital committed the August 1999 shooting of three children, a teen, and a senior citizen at the North Valley Jewish Community Daycare Center. Had the community had the resources to accept him, the five people would not have been shot. (Silver 2000)

Not only does the problem begin and end with the facilities overabundance of mentall ill. Many mentally ill become worse when in prison. A common disorder to develop in prison is depression, a byproduct of institutionalization. In the context of a total institution, inmates are systematically broken down and manipulated by the staff.

Their lives are completely supervised, homogenized, and organized. In the process, inmates tend to learn behaviors counter productive to their survival in the outside world. Some of these behaviors may include, “aggressiveness and intimidation of others or, conversely, extreme passivity, manipulative behavior and reluctance to discuss problems with authority figures. These behaviors create barriers to engagement in mental health services and treatment.” (Egger 2000)

Although this is a major problem, there are institutions already beginning to instill new programs. One of the most successful of these is Jail Diversion. Jail Diversion generally refers to “specific programs that screen detainees in contact with the criminal justice system for the presence of a mental disorder; they employ mental health professionals to evaluate the detainees and negotiate with prosecutors, defense attorney, community-based mental health providers, and the courts to develop community-based mental health dispositions for mentally ill detainees.”

This has two-fold blessings. First, it identifies the mentally ill at some point in the arrest process and thus can be diverted into mental heath services. This way, it keeps the mentally ill out of the system in which they will simply digress. There are approximately 50-55 true jail diversion programs nationwide. When these were examined, five key elements became associated with the most successful. These are(Congress 2000):

1. All relevant mental health, substance abuse and criminal justice agencies were involved from the start.

2. Regular meetings between key personnel from the various agencies were held.

3. Integration of services was encouraged through the efforts of a liaison person, or “boundary spanner,’ between the corrections, mental health, and substance abuse systems.

The bottom line is that the programs must build new system linkages, view the detainees as citizens, and hold the community responsible for the services needed by the detainees. Another strategy is America’s Law Enforcement and Mental Health Act which was introduced in July. It seeks to help local communities to establish mental health courts in order to direct nonviolent mentally ill offenders out of jail and into long term treatment. Mental health courts are effective at reducing the recidivism of seriously mentally ill offenders because they use the power of the criminal justice court to ensure that the defendants receive long term mental health treatment.

Misdemeanor defendants who are determined to be seriously mentally ill are offered treatment in lieu of jail. The Mental Health Early Intervention, Treatment, and Prevention Act of 2000 was introduced to help fulfill the unkept promise of the Community Mental Health Act of 1963 by providing grants to communities fo! r mental health treatment centers. It also provides grants that train police in how to identify the mentally ill and direct them into available treatment as well as fund jail and prison programs that screen, evaluate and treat mentally ill inmates; and creates more mental health courts.

We also need a continuum of care. Information of the incarcerated’s state, treatment, responses, and behaviors must be made available for community care centers for post incarceration treatment. It is imperative that the jail-based and community-based mental health services are linked together to provide consistent care. The implementers must be careful about confidentiality as well. It will be important that the information is not detrimental to the patient’s rights. (Slobogin 1985)

The forensic psychologists role in the mental health services is paramount. Often times, a forensic psychologist will be asked to assess the defendant prior to the trial and then testify about his findings at the trial. This is important in the insanity defense as the psychologist is an expert that must determine whether the defendant was knowledgeable that his actions were morally wrong.

There are many tests in which the psychologist may use. Some of the more accepted include the Rogers Criminal Responsibility Assessment Scales (R-CRAS), the Mental Screening Evaluation (MSE), the Competency Screening Test (CST), and the Competency Asssessment Instrument (CAI). The R-CRAS is an assessment in which the examiner is given 25 items which they must rate on certain criteria. The MSE’s goal is to simply screen out defendants whose actions were not caused by a mental abnormality. It includes questions about the defendant’s psychological history, about the offense, and an evaluation of the present mental state.

This test has neither formal scoring procedure nor standardized administration, so its validity isn’t very strong. The CST is a 22 item sentence completion task. The administrator must rate the defendant’s sentence completion. This is simply a screening test to use prior to the CAI. If a defendant scores low enough, it is possible that the said defendan! t could be incompetent. The CAI is a structured interview which explores 13 aspects of competent functioning. (Grisso 1986)

The opinion of psychologist’s accuracy in courtrooms varies depending on regions. Testifying as an expert witness for the defense is very challenging. The expert must face the prosecutions own witness who will most likely have conflicting conclusions. In some jurisdictions, defense experts can not express an opinion about the particular case but only the general matters. Most any expert witness will be faced with a withering cross-examination. (Glaser 1998) Jay Ziskin provides tons of material that refutes the claims that the assessments done by clinical psychologists and other mental health professionals possess adequate levels of validity and reliability for use in court (Nicholson, 1999).

This questioning of the ability of psychologists testimony along with the difficulty in determining the mental health of defendants has always been part of the difficulty in absolving the problem of mentally ill. Perseverance of the psychologists, congressmen, and police officers to continue to provide quality services for the mentally ill rather than treat them as sub-citizens, will vastly help the American situation with mentally ill and the criminal justice system.

Bibliography :
Canzini, L. (2000). Evaluation of competence: Views of Forensic psychiatrists. The American Journal of Psychiatry. 157, 585-91
Egger, S. (2000). Courtroom Competency as a Defense. Behavior Modification, (Vol 24) 232-54
Glaser, W.F. (1998). Commentary: The credibility of forensic psychiatry. Australian and New Zealand Journal of Psychiatry. 32,17-19.
Grisso, T. (1986) Evaluating competencies: Forensic assessments and instruments. New York: Plenum.

Nicholson, R. (1999). Forensic assessment. Pscyhology and Law: The state of the discipline. 121-173. New York: Kluwer Academic/Plenum
Ogloff, J.R.P., & Otto, R.K. (1993). Psychological autopsy: Clinical and legal perspectives. Saint Louis University Law Journal. 37, 607-646
Silver, E. (2000). Extending social disorganization theory. A Multilevel Approach to the Study of Violence Among Persons with Mental Illnesses. Criminology. 38,1043-75

Slobogin, C. (1985). The guilty but mentally ill verdict: An idea whose time should not have come. George Washington Law Review, 53, 494-527
Webster’s Revised Unabridged Dictionary (1998). Springfield, MA: G. & C. Merriam
Congress 106. (2000) Impact of Mentally Ill Offenders on the Criminal Justice System. Hearing before the Subcommittee on Crime of the Committee on the Judiciary House of Representatives. Serial #143