Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

Finding Solutions for Mental Illness in Criminal Justice


When it comes to mental health care treatment in the United States, we have a long way to go. In the 1960s and 1970s, citing abhorrent conditions at public mental health institutions, or “insane asylums,” a movement of deinstitutionalization began. New antipsychotic drugs such as thorazine and chlorpromazine allowed for the management of serious mental illnesses; Mental health advocates pushed for the “least restrictive” care; community-based mental health resources became the preferred method of caring for those with mental illness and helping them manage their diseases.

Obviously, this move from institutionalization and isolation was necessary and important, but it had some unintended negative consequences. Although the purpose of deinstitutionalization was to allow people to receive mental health care in the community, states closed public hospitals without providing sufficient outpatient resources. While many people benefitted from deinstitutionalization, thousands of others were released from public hospitals homeless and without access to community health care.

Oklahoma is a prime example of what happens with inadequate funding for mental health care. The state spends $56.22 per capita on mental health care—less than half of the national average. Because of this, there are insufficient community mental health resources, leading to people with serious mental illness being waitlisted for treatment. The wait list for state-funded residential drug treatment is more than 800 people long.

For these people with untreated mental illness, “deinstitutionalization” is a myth. They simply moved from one institution, a state-run mental hospital, to another—the state penitentiary.

In an article for Slate magazine last year, writer Dahlia Lithwick called American prisons the “new asylums” and “warehouses for the severely mentally ill.” Lithwick cites a 2014 study by the Treatment Advocacy Center which found that there are roughly 35,000 severely mentally ill patients in state psychiatric hospitals. This number pales in comparison to the 356,268 inmates with severe mental illness in American prisons.

A Treatment Advocacy Center and National Sheriff’s Association survey of the 50 states revealed that nationwide, more mentally ill persons are in jails and prisons than in hospitals. Again and again, jail and prison officials in states across the nation reiterate that their facilities are being used as de facto mental hospitals—only without the staff and facilities trained to care for the mentally ill.

  • A New York sheriff says, ““They’ve closed the mental hospitals and pushed those people into the jails. It’s appalling that they are here.”
  • A Virginia Beach sheriff says that “[scores] of people are sitting in his jail today, long after they would normally have been released on minor charges, because they are too sick to be freed.”
  • A Florida sheriff says, “Our jails and prisons collectively are the biggest mental-health facilities in the state. . . . Jails have become asylums for thousands of inmates with mental illnesses whose problems and needs far exceed what jails can provide.”

The Bureau of Justice Statistics studies show that more than half of all inmates—in jails, state prison, and federal prison—have at least one mental illness, and the rates are even higher among women:

  • State prisons: 73% of women and 55% of men have at least one mental health issue.
  • Federal prisons: 61% of women and 44% of men.
  • Local jails: 75% of women and 63% of men.

Often, inmates with mental illness are incarcerated for drug crimes. Substance abuse frequently co-occurs with other mental health issues, often as people attempt to self-medicate in the absence of appropriate mental health care. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), nearly 8 million adults have co-occurring disorders.

Despite “deinstitutionalization,” the states are still warehousing the mentally ill—only this time, they are housed as criminals in prisons, not as patients in psychiatric hospitals. They are housed in institutions intended for punishment, not institutions intended for care and treatment.

But there is hope on the horizon.

In Nashville, Tennessee, the Davidson County Sheriff’s Department has realized that the problem is not likely to be resolved any time soon, and instead of complaining about the fact that the jails are now tasked with caring for the mentally ill, they have found a way to adapt. The Davidson County Jail will be adding a separate behavioral health center—the first of its kind in the nation. This facility is to be a 64-bed facility for those who have committed misdemeanor crimes but also suffer from mental illness.

Sheriff Daron Hall says of the new facility, “Our goal is to bring that person off the streets and treat the illness, and then release them into what is the community health system, where they won’t be a problem for the criminal justice system.”

In other words, rather than leaving them in jail because they do not have the resources or support to post bail, or because they are too sick to be released, the jail’s behavioral health center will treat the illness rather than criminalizing the behavior.

Another promising light comes from the recent reform of the nation’s mental health system under the 21st Century Cures Act. On December 13, 2016, as one of his last acts as President, Barack Obama signed the Act—a bill more than 300 pages long with more than 100 pages dedicated to mental health reform.

The Act will reform SAHMSA, provide funding for evidence-based treatment programs for severe mental illness, decriminalize mental illness, and more.

Among the reforms aimed at the decriminalization of mental illness are the following:

  • Allowing the use of Department of Justice (DOJ) funds to provide treatment opportunities prior to incarceration.
  • Establishing a pilot federal mental health court to provide better screening and assessment of people with mental illness in the criminal justice system.
  • Allowing DOJ funds to be used in transitioning those with serious mental illness out of jails and prisons, including housing assistance and mental health treatment.
  • Increasing training and funding for law enforcement to divert people with serious mental illness from the criminal justice system, to support mental health training for law enforcement, and to support mental health courts and crisis intervention.

All of these measures—from the deinstitutionalization of the 1960s and 1970s to the decriminalization of mental illness today—are dependent on the availability of community mental health resources. Mental health care funding must be a priority for states. Closing the doors of psychiatric hospitals was not justice when patients were left with nowhere to go for help. Prisons are penal institutions, not care facilities. We must do better than counting on them to treat and manage mental health.

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