Mentally

How do we change the way the criminal justice system deals with the mentally ill?

 

 

In your opinion, which two of the four criminal justice-based programs aimed at reducing recidivism rates of mentally ill offenders are the most promising (Chapter 13, Page 219)? Evaluate the effectiveness of these programs using empirical evidence. How might these programs be expanded to further reduce recidivism rates of mentally ill offenders?

 

 

Increased Diversion Efforts by Expanding the Number and Scope of Mental Health Courts

As previously summarized, most of the studies evaluating the effectiveness of mental health courts finds them to be effective at reducing recidivism (Dirks-Linhorst&Linhorst, 2012; Herinckx et al. (2005); McNiel& Binder, 2007; Moore &Hiday, 2006; Trupin& Richards, 2003) and improving mental health functioning (Boothroyd, Poythress, McGaha, &Petrila, 2003). But there are many communities without this option available. Therefore, it presumes good public policy to advocate for the increase of the number of mental health courts. But care must be taken to ensure that these courts are properly staffed and funded, lest the courts become so backlogged and unable to provide services that their effectiveness is compromised. But adequate court resources are not sufficient since the success or failure of any mental health court program depends “on the ability of the mental health system to treat effectively those diverted from the criminal justice system (Litschge& Vaughn, 2009, p. 550). Thus, as discussed more fully below, inadequacies in the mental health system must also be addressed.

 

Regardless of the availability of mental health courts, there is a question of whether any criminal justice system involvement is necessary at all, especially in many misdemeanor cases. Consider that Fisher and colleagues (2006) noted that a review of records of mentally ill offenders arrested for nuisance crimes and referred to the forensic evaluation unit of a state hospital in Massachusetts found that many of these offenders would have met criteria for an involuntary hospitalization if the police had not arrested them and instead taken them for psychiatric emergency services. If that’s the case, does the criminal justice system need to be involved at all? As Skeem and colleagues (2010) suggested, providing psychiatric treatment to those with SMIs before they violate the criminal law could prevent the criminal justice system from even being involved with people who should be treated as patients rather than offenders. Thus, the best public policy options may lie outside the criminal justice system.

 

Reform Civil Commitment Laws

Torrey and colleagues (2010) called for significant changes in civil commitment laws. Specifically, they seek the statutory authority to commit those who need treatment without regard to their dangerousness. “Many times, it is this very dangerousness standard that necessitates law enforcement involvement. Mentally ill individuals should be able to access treatment before they become dangerous or commit a crime, not after” (p. 12). At first blush, this proposal seems logical and warranted. But, two concerns threaten its viability.

 

First, lax due process protections in the civil commitment arena were one of the reasons that civil liberties activists championed the tightening of these laws in the 1960s and 1970s. Legislators need to vote to loosen these laws over the objections of both civil libertarians and advocates for the mentally ill who oppose involuntary hospitalization. Moreover, when such laws are challenged in the courts, judges not only have to decide if the autonomy and privacy rights of the individual are outweighed by societal interests in caring for the mentally ill against their wishes, but also have to ensure that statutes provide sufficient safe-guards are in place to guarantee due process. This is not, however, a difficult task; New York appears to have done so quite successfully (see Litschge& Vaughn, 2009; New York State Office of Mental Health, 2005).

 

Second, even if better laws could be enacted that eased the dangerousness criteria for commitment while still honoring due process rights, increasing the number of civil commitments is not possible if there are insufficient beds in psychiatric facilities to care for the civilly committed patients . Given how few beds are available, and in light of the incredible budgetary pressures on most states since the Great Recession of 2008, it is highly unlikely that most states can afford to expand the number of psychiatric beds available to accommodate need. Moreover, although there is an argument to be made that the funds currently used to pay for the incarceration of mentally ill offenders in jails in prisons could be shifted out of the criminal justice system and into the public health system to pay for these beds, the politics of doing so is likely a significant obstacle. Consider that many other social services, most notably education, have been cut as public budgets have diminished. Reasonable arguments can certainly be made that education and other services need to be funded before expanded access to psychiatric hospital beds.

 

However, there may be a middle ground. In the past few years, many states have modified their civil commitment laws to allow for outpatient civil commitments of mentally ill people in crisis (Slate, 2009, p. 21). Outpatient civil commitment is more commonly referred to as assisted outpatient treatment (AOT). AOT “requires selected seriously mentally ill persons to take medication under court order as a condition for living in the community” (Torrey et al., 2010, p. 12). According to the Treatment Advocacy Center (2012), 44 states have laws that authorize AOT. Empirical studies of AOT lend significant support to this policy recommendation, as AOT has been demonstrated not only to reduce dramatically the arrest rate of the mentally ill (New York State Office of Mental Health, 2005; Swanson et al., 2000), but also to significantly decrease their use of alcohol and drugs, psychiatric rehospitalizations, homelessness, suicides, and violent behaviors (Fernandez &Nygard, 1990; Munetz, Grande, Kleist, & Peterson, 1996; Phelan et al., 2010; Rohland, 1998; Swartz et al., 2010; Zanni&deVeau, 1986). Moreover, there is evidence that several of these positive outcomes continue even after court supervision ends (Van Dorn et al., 2010).

Improve Services for the Mentally Ill within and beyond the Criminal Justice System

Offenders with SMIs generally fall into three categories: those who were arrested for “simply displaying the signs and symptoms of mental illness in public”; those who committed petty, nuisance, or survival crimes; and those who commit serious crimes, including those that are violent (Lurigio, 2011, p. 12). Those who fall within the first group do not belong in the criminal justice system at all. They need psychiatric services that need to be offered through an improved public health system. When police encounter such individuals, they should be able to take them for treatment without ever making a formal arrest. The aforementioned improvements in outpatient civil commitment laws vis-à-vis AOT gives police the authority to do so and improves the public health outcomes for the mentally ill without ever involving them in the criminal justice system.

 

The second group of offenders should be diverted to mental health courts. But, we need to conceptualize the primary purpose of these specialized courts as serving a public health function, not a criminal justice role. Measures of success need to go beyond mere recidivism statistics. Indeed, the myth that treating psychiatric systems can improve recidivism rates must be dispelled. There are no studies which empirically demonstrate that alleviating psychiatric symptoms—in and of itself—affects recidivism among offenders with SMIs (Lurigio, 2011). Thus, improvements which address only the treatment of psychiatric systems are not likely to reduce recidivism. To accomplish the goal of reducing recidivism, psychiatric treatments need to be paired with other interventions aimed at criminogenic factors (Skeem et al., 2010), such as substance abuse, lack of education, lack of employment, and community disorganization. Toward that end, mental health courts need to pair offenders with a variety of social service agencies in much the same way that prison parolees are paired in the comprehensive reentry and aftercare programs that demonstrated so much success at rehabilitating the whole person. This would not only help these people “get back on their feet,” but also help them avoid subsequent involvement in the criminal justice system (Council of State Governments, 2002; Kesten et al., 2012; Sacks et al., 2004, 2012; Skeem et al., 2010; Theurer& Lovell, 2008; Wolff et al., 2005).

 

The third group of offenders—those who commit serious crimes—pose the most significant policy challenges. To be sure, those who are imprisoned need treatment while incarcerated and, after release, they must be placed into comprehensive reentry and aftercare programs that help them comply with rules governing their release, thereby avoiding probation and parole violations and reducing the incidence of new offenses. But those correctionally based treatment, reentry, and aftercare programs do not address the true problem of incarcerating offenders with SMIs in jails or prisons in the first place. Three changes to law and policy could make a significant difference in reducing the number of people with SMIs in correctional institutions, and the final proposal might even serve to reduce the commission of crime by this population.

 

Initially, the narrowing of the criminal defenses of excuse that began in the 1970s and accelerated dramatically in the wake of John Hinckley Jr.’s case must be revisited. In Clark v. Arizona (2006), the U.S. Supreme Court upheld the authority of states to severely limit a mentally ill criminal defendant from offering some of the most probative evidence concerning his or her guilt. To prove that Eric Clark committed murder, the prosecution in the Clark case introduced evidence that the defendant spoke of wanting to kill police and then argued that to carry out this plan, the defendant lured police to the scene by blaring music from his truck while circling a block in a residential neighborhood. The defendant, however, was barred from introducing largely undisputed evidence about the nature of paranoid schizophrenia and how the disease caused, or could have caused, his actions. Specifically, the trial court was barred from considering expert testimony that people with schizophrenia often play music loudly to drown out the voices in their heads, which would have directly undercut the assertion that Clark did so to lure police officers to his car. The unworkable evidentiary framework upheld in Clark prevent the defense from arguing what should have been straightforward defense, namely that the defendant “did not commit the crime with which he was charged” because he lacked the requisite mens rea (Clark v. Arizona, 2006, p. 801, Kennedy, J., dissenting). The Supreme Court must revisit this misguided result and hold that barring the admissibility of such evidence violates due process (Fradella, 2007). Of course, dangerous people with SMIs like Eric Clark do not belong on the streets where they are free to maim or kill. But they do not belong in prisons either where they burden the correctional system and receive little or no treatment for their SMIs. Rather, such defendants should be remanded for treatment to secure psychiatric hospitals.

 

Next, the jurisdiction of mental health courts should be expanded to include the authority to adjudicate violent felony offenses. As Mann (2011) pointed out, 80% of mental health court systems do not accept any violent felony cases and only 1% handle those involving serious crimes of violence. If defendants who commit crimes like robbery and aggravated assault as a function of their SMIs had their cases handled through a system that subscribed to a therapeutic jurisprudence model, these offenders could get the comprehensive help they need while being monitored for compliance in ways that help to increase public safety.

 

Finally, and most importantly, we must make improvements to the mental health system and related social services so that people with SMIs do not commit serious crimes in the first place. Significantly expanded use of AOT can help to effectuate this desirable outcome. Those with SMIs need both psychiatric care (including access to psychotropic medications, when appropriate) and interventions aimed at criminogenic factors, such as job training, substance abuse treatment, and housing assistance (Skeem et al., 2010). Such multimodal services are likely to bring significant secondary benefits largely unrelated to the narrow metric of recidivism. Providing better treatment for the mentally ill likely reduces psychiatric symptoms in ways that allow the mentally ill to “become sober and employed, find and retain stable housing, develop better self-control, return to school, [and] mend relationships with family” (Lurigio, 2011, p. 15). These benefits, in turn, reduce calls to police and correspondingly reduce the number of inmates with SMIs, because mentally ill people receiving mentally appropriate treatment and adequate social services are better able to follow societal rules so that they do not run afoul of the law to begin with.

 

Criminal Justice Policy, Stacy L. Malicoat& Christine L. Gardiner (Sage Publishing, 1^st ed.)