Insane: America's Criminal Treatment of Mental Illness

by Alisa Roth

Writing for the majority, Justice Thurgood Marshall observed that because prisoners depend on the prison (or jail) to meet all of their needs, “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’”13 In effect, this historic decision established that people in jails and prisons have a constitutional right to medical care. They are the only population in the country that does.

ONE UNFORTUNATE ASPECT OF OVERMEDICATING prison populations is that it implicitly dismisses the problem of mental illness as fundamentally untreatable. Instead of promoting avenues to long-term treatment and psychological well-being, the widespread use of medications seems to promote a worldview in which it is assumed that particularly unruly prisoners have to be drugged simply to keep them under control. Focusing on medication “reveals a common prejudice about inmates with mental illness, that they are noncompliant, difficult to manage, violent, and otherwise undeserving of clinical attention or services,” the Council on State Governments writes.41

It’s also worth noting that the law does not differentiate between somebody who has a mental illness and somebody who is cognitively impaired for other reasons—because of a developmental disability or a traumatic brain injury, for example. This is important because, as we will see shortly, the reason for the impairment can affect whether or not it can be reversed. A person who is incompetent because he’s psychotic from untreated schizophrenia may be “restored to competency” with medication and therapy. That is probably not the case for somebody who was born with developmental disabilities and who has never been able to function above the level of a five-year-old. Nonetheless, people with developmental disabilities are frequently referred for restoration.

“For persons with severe and treatment-resistant psychotic disorders, who are too unstable or unsafe for community-based treatment, the choice is between the prison-homelessness-acute hospitalization-prison cycle or long-term psychiatric institutionalization. The financially sensible and morally appropriate way forward includes a return to psychiatric asylums that are safe, modern, and humane.”

In 2012 Texas had nearly ten thousand people on the waiting list for intensive outpatient treatment in public care centers, a 642 percent increase in demand over what it was less than a decade earlier.6

when it isn’t possible to get outpatient care, people may get sicker, to the point that they require inpatient care.

40 percent of psychiatrists don’t accept any insurance; more than half of states have a critical shortage of psychiatrists who accept it.

“Police seem to be aware of the more stringent criteria under which mental health professionals are now accepting responsibility for involuntary detention and treatment, and thus regard arrest and booking into jail as a more reliable way of securing involuntary detention of mentally disordered persons.”

About 80 percent of people with mental illness in the criminal justice system have a substance use disorder in addition to the mental illness. Some studies have broken down the links more clearly. One showed that among people with mental illness, men with bipolar disorder and a substance use disorder are most likely to end up in trouble with the law.

A 2012 analysis by the Council of State Governments found that in New York City, people with mental illness stayed in jail on average almost twice as long as people without mental illness

The Court ruled that executing somebody who is too insane to understand why he is being put to death violates the Eighth Amendment: “It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications,”

(The 2005 decision in Roper v. Simmons ruled it unconstitutional to execute juveniles, and the 2002 decision in Atkins v. Virginia deemed it unconstitutional to execute a person with developmental disabilities, although just how to define a developmental disability has also been left to the states to determine.)

We are also a country that is willing to send people with mental illness to their death but insists on restoring them to competency first; a person on death row who attempts suicide will be patched up before he is killed by the state.