III. BACKGROUND

“By default, we get forced to be a pseudo[mental] hospital.”

— Michael Mahoney, warden, Montana State Prison⁶

“On any given day, at least 284,000 schizophrenic and manic depressive individuals are incarcerated, and 547,800 are on probation. We have unfortunately come to accept incarceration and homelessness as part of life for the most vulnerable population among us.”

— Congressman Ted Strickland⁷

“We are literally drowning in patients, running around trying to put our fingers in the bursting dikes, while hundreds of men continue to deteriorate psychiatrically before our eyes into serious psychoses…”

— Unnamed prison psychiatrist⁸

A staggering number of persons with mental illnesses are confined in U.S. jails and prisons — somewhere between two and four hundred thousand or more, according to expert estimates. The causes of this massive incarceration of the mentally ill are many, but corrections and mental health professionals point primarily to inadequate community mental health services and the country’s punitive criminal justice policies. While mental health hospitals across the country were shut down over the last couple of decades as part of the process of “deinstitutionalization,” the community-based health services that were supposed to replace them were never adequately developed. As a consequence, many of the mentally ill, particularly those who are poor and homeless, are unable to obtain the treatment they need. Ignored, neglected, and often unable to take care of their basic needs, large numbers commit crimes and find themselves swept up into the burgeoning criminal justice system. Jails and prisons have become, in effect, the country’s front-line mental health providers.⁹

Most of the mentally ill who end up in prison are initially incarcerated in jail as pretrial detainees. By all accounts, jails across the country are even less able to care for mentally ill prisoners than prisons. Absent adequate mental health screening and services in jails, the prison systems inherit exacerbated mental health problems when the pretrial detainees suffering from mental illnesses are ultimately sentenced and moved from jail into prison.

Indeed two of the largest mental health providers in the country today are Cook County and Los Angeles County jails, both of them urban entry points into the burgeoning prisons systems of Illinois and California respectively.¹⁰ Based on a sample of Cook County jail inmates, Northwestern University psychology professor Linda Teplin reported in 1990 that over 6 percent of inmates were actively psychotic, a rate four times that found in the outside population.¹¹

Rates of Incarceration of the Mentally Ill

Persons with mental illness are disproportionately represented in correctional institutions. While about 5 percent of the U.S. population suffers from mental illness, a 1998 reported noted that “studies and clinical experience indicate that somewhere between 8 and 19 percent of prisoners have significant psychiatric or functional disabilities and another 15 to 20 percent will require some form of psychiatric intervention during their incarceration.”¹² In 2000, the American Psychiatric Association reported research estimates that perhaps as many as one in five prisoners were seriously mentally ill, with up to 5 percent actively psychotic at any given moment.¹³ Given the current U.S. prison population, this means there may be approximately 300,000 men and women in U.S. prisons today who are seriously mentally ill, and 70,000 who are psychotic.¹⁴ The National Commission on Correctional Health Care issued a report to Congress in March 2002 in which it presented the following prevalence estimates:

On any given day, between 2.3 and 3.9 percent of inmates in State prisons are estimated to have schizophrenia or other psychotic disorder, between 13.1 and 18.6 percent major depression, and between 2.1 and 4.3 percent bipolar disorder (manic episode). A substantial percentage of inmates exhibit symptoms of other disorders as well, including between 8.4 and 13.4 percent with dysthymia, between 22.0 and 30.1 percent with an anxiety disorder, and between 6.2 and 11.7 percent with post-traumatic stress disorder.¹⁵

In 1999, the federal Bureau of Justice Statistics, drawing on a survey in 1997 of adult prisoners, estimated that 16 percent of state and federal adult prisoners and a similar percentage of adults in jails were mentally ill.¹⁶ This prevalence rate translates into an estimated 230,505 adults with mental illness confined in U.S. prisons, and another 106,476 in its jails.¹⁷ The Bureau of Justice Statistics has also reported that nearly one in ten prisoners are taking psychotropic medications, with that number increasing to nearly one in five in Hawaii, Maine, Montana, Nebraska, and Oregon.¹⁸

As these numbers suggest, prisons have become warehouses for a large proportion of the country’s men and women with mental illness. In September 2000, Congressman Ted Strickland informed his colleagues on the House Subcommittee on Crime that between 25 and 40 percent of all mentally ill Americans would, at some point in their lives, become entangled in the criminal justice system. According to the American Psychiatric Association, over 700 thousand mentally ill Americans are processed through either jail or prison each year.¹⁹ In 1999, NAMI (formerly known as the National Alliance for the Mentally Ill) reported that the number of Americans with serious mental illnesses in prison was three times greater than the number hospitalized with such illnesses.²⁰

Individual prison systems report high percentages of mentally ill offenders. For example, the California Department of Corrections estimated that as of July 2002, 23,439 prisoners were on the prison mental health roster, representing over 14 percent of the California prison population.²¹ The Pennsylvania Department of Corrections estimates that 16.5 percent of its prisoner population, or approximately 6,500 people, are on the mental health caseload, of whom 1,537 are so ill that their ability to function on a day-to-day basis has been dramatically limited.²² Eleven percent of New York’s sixty-six thousand prisoners receive mental health services. In Kentucky, 14.6 percent of the state prison population is on the mental health caseload, and in Texas the figure is 11.6 percent.²³

There are no national statistics on historical rates of mental illness among the prison population. Some states, however, report a significant increase in recent years in the proportion of prisoners diagnosedwith serious mental illnesses. For example, the mental health caseload in New York prisons has increased by 73 percent since 1991, five times the prison population increase.²⁴ In Colorado, the proportion of prisoners with major mental illness was 10 percent in 1998, five to six times the proportion identified in 1988.²⁵ Between 1993 and 1998 the population of seriously mentally ill prisoners in Mississippi doubled and in the District of Columbia it rose by 30 percent.²⁶ In Connecticut, the number of prisoners with serious mental illness increased from 5.2 percent to 12.3 percent of the state’s prison population.²⁷ Indeed, nineteen of thirty-one states responding to a 1998 survey by the Colorado Department of Corrections reported a disproportionate increase in their seriously mentally ill population during the previous five years.²⁸ While most mental health professionals we interviewed believe that there has been some increase in the proportion of prisoners who are mentally ill, they caution that the dramatic increases noted above may also reflect improvements in the mental health screening and diagnosis of prisoners.

Deinstitutionalization, Crime and Punishment, and the Rise in the Mentally Ill Prisoner Population

Fifty years ago, public mental health care was based almost exclusively on institutional care and over half a million mentally ill Americans lived in public mental health hospitals. Beginning in the early 1960s, states began to downsize and close their public mental health hospitals, a process called “deinstitutionalization.” Many factors precipitated the process. The first generation of effective anti-psychotic medications and litigation led to dramatic changes in mental disability law that increased due process safeguards in mental hospital involuntary commitment and release procedures. Today, fewer than eighty thousand people live in mental health hospitals and that number is likely to fall still further.²⁹ In 1955, the rate of persons in mental hospitals was 339 per one hundred thousand; by 1998, it had declined to twenty-nine per one hundred thousand.³⁰

Deinstitutionalization freed hundreds of thousands of mentally ill men and women from large, grim facilities to which most had been involuntarily committed and in which they spent years, if not decades or entire lives, receiving greatly ineffectual, and often brutal, treatment. Proponents of deinstitutionalization envisioned former mental health hospital patients receiving treatment through community mental health programs and living as independently in the community as their mental conditions permitted. This process was catalyzed by passage of the federal legislation providing seed funding for the establishment of comprehensive mental health centers in the community. Unfortunately, community mental health services have not been able to play the role the architects of deinstitutionalization envisioned. The federal government did not provide ongoing funding for community services and while states cut their budgets for mental hospitals, they did not make commensurate increases in their budgets for community-based mental health services. Chronically underfunded, the existing mental health system today does not reach and provide mental health treatment to anywhere near the number of people who need it.

On July 22, 2003, the President’s New Freedom Commission on Mental Health sent its final report to President George W. Bush.³¹ The Commission found that:

Mental health delivery system is fragmented and in disarray…lead[ing] to unnecessary and costly disability, homelessness, school failure and incarceration…In many communities, access to quality care is poor, resulting in wasted resources and lost opportunities for recovery. More individuals could recover from even the most serious mental illnesses if they had access in their communities to treatment and supports that are tailored to their needs.³²

As the Commission’s Chairman, Michael F. Hogan, stated in his cover letter with the report:

Today’s mental health care system is a patchwork relic — the result of disjointed reforms and policies. Instead of ready access to quality care, the system presents barriers that all too often add to the burden of mental illnesses for individuals, their families, and our communities.

The Commission also found that minority communities were particularly underserved in or inappropriately served by the current mental health care system. It noted that “significant barriers still remain in access, quality, and outcomes of care for minorities….[They are] less likely to have access to available mental health services; are less likely to receive needed mental health scare; often receive poorer quality care; and are significantly under-represented in mental health research.”³³

According to the 2002 report of the Criminal Justice/Mental Health Consensus Project, coordinated by the Council of State Governments:

The professionals in the [mental health] system know much about how to meet the needs of the people it is meant to serve. The problem comes, however, in the ability of the system’s intended clientele to access its services and, often, in the system’s ability to make these services accessible. The existing mental health system bypasses, overlooks, or turns away far too many potential clients. Many people the system might serve are too disabled, fearful, or deluded to make and keep appointments at mental health centers. Others simply never make contact and are camped under highway overpasses, huddled on heating grates, or shuffling with grocery carts on city streets.³⁴

Because of the problems plaguing community mental health systems and the limitations on public funding for mental health services,³⁵ all too many people who need publicly financed mental health services cannot obtain them until they are in an acute psychotic state and are deemed to be a danger to themselves or others.³⁶ While some of the mentally ill are fortunate to have families with sufficient financial resources to get them private treatment, many of the mentally ill are impoverished. According to NAMI (formerly known as the National Alliance for the Mentally Ill), one in twenty persons with a severe mental illness is homeless.³⁷ People with serious mental illnesses are over-represented among the homeless population, which comprises the poorest of America’s residents: experts estimate than anywhere from 20 to 33 percent of the homeless have serious mental illnesses. People with serious mental illnesses have greater difficulty escaping homelessness than other people; many have been living on the streets for years.³⁸

When poor persons with mental illness are able to get treatment, it is typically short-term. People who are hospitalized are often kept for only short periods, until they are stabilized, and then they are released, where they again face limited access to treatment in the community. Persons with mental illness who have prior criminal records or histories of violence have a particularly difficult time getting access to treatment; many mental health programs simply will not take them. According to Richard Lamb, Professor of Psychiatry, Law and Public Policyat the University of Southern California, “it used to be the State Hospital couldn’t turn down anybody. Now the state hospitals can and do… It used to be the state hospital was the facility of last resort; and today the jails and prisons are the facilities of last resort.”³⁹

Community mental health services are especially likely to fail to meet the needs of mentally ill persons with co-occurring disorders. The federal Substance Abuse and Mental Health Services Administration has estimated that 72 percent of mentally ill individuals entering the jail system have a drug-abuse or alcohol problem.⁴⁰Mental health programs are often reluctant to treat persons with substance abuse problems — because of the fear that addicts will prove particularly disruptive and also may try to bring drugs into the programs — and many community mental health staff are not trained to diagnose and treat persons with co-occurring disorders.⁴¹ And, substance abuse programs are often reluctant to take persons who are mentally ill. Despite the prevalence of substance abuse among the mentally ill, few communities have integrated mental health and substance abuse treatment programs.

Deinstitutionalization resulted in the release of hundreds of thousands of mentally ill offenders to communities who could not care for them. At about the same time, national attitudes toward those who committed street crime — who are overwhelmingly the country’s poorest — changed markedly. Both the federal and state governments adopted a series of punitive criminal justice policies that encouraged increased arrests; increased the likelihood that conviction for a crime would result in incarceration, including through mandatory minimum sentencing and “three strikes” laws; increased the length of time served, by increasing the length of sentences and reducing or eliminating the availability of early release and parole; and increased the rate at which parolees are returned to prison. The U.S. rate of incarceration soared, becoming the highest in the world: 701 prisoners per one hundred thousand U.S. residents, or one in every 143 residents.⁴² Championed as protecting the public from serious and violent offenders, the new criminal justice policies in fact yielded high rates of confinement for nonviolent offenders. Nationwide, nonviolent offenders account for 72 percent of all new state prison admissions. Almost one-third of new admissions are nonviolent drug offenders.⁴³

Most of those swept into the criminal justice system are poor, many are homeless, many have substance abuse problems, and many would be good candidates for alternatives to incarceration.⁴⁴ Many of them are also mentally ill. In making America’s response to crime and drug use more punitive throughout the 1980s and 1990s, state and federal lawmakers inadvertently contributed to the imprisonment of greater numbers of mentally ill citizens. The percentage of America’s mentally ill population either living in prison, or having recently come out of prison, increased dramatically.⁴⁵

“Criminalizing the Mentally Ill”

There is a direct link between inadequate community mental health services and the growing number of mentally ill who are incarcerated. As the Criminal Justice/Mental Health Consensus Project noted:

Law enforcement officers, prosecutors, defenders, and judges — people on the front lines every day — believe too many people with mental illness become involved in the criminal justice system because the mental health system has somehow failed. They believe that if many of the people with mental illness received the services they needed, they would not end up under arrest, in jail, or facing charges in court. Mental health advocates, service providers, and administrators do not necessarily disagree. Like their counterparts in the criminal justice system, they believe that the ideal mechanism to prevent people with mental illness from entering the criminal justice system is the mental health system itself — if it can be counted on to function effectively. They also know that in most places the current system is overwhelmed and performing this preventive function poorly.⁴⁶

The President’s New Freedom Commission found that across the country the mental health “system’s failings lead to unnecessary and costly disability, homelessness, school failure, and incarceration.”⁴⁷ Every state across the country has its own experience with the “criminalization of the mentally ill.”⁴⁸ For example, a committee appointed by the state legislature in Maine reported that:

Community mental health services, though very good, are, due to lack of resources, inadequate to meet the needs of persons with mental illness. This has resulted in some persons with mental illness falling through the treatment services net and into the criminal justice system. The lack of community mental health resources also impairs the ability of law enforcement, courts and corrections facilities to divert persons with mental illness away from the criminal justice system and into more appropriate treatment settings.⁴⁹

Thousands of mentally ill are left untreated and unhelped until they have deteriorated so greatly that they wind up arrested and prosecuted for crimes they might never have committed had they been able to access therapy, medication, and assisted living facilities in the community. Mental health professionals told Human Rights Watch that it is next to impossible to get their clients admitted to hospitals or treatment programs until after they have deteriorated to such a point that they have already committed a crime.

The relationship between deinstitutionalization and incarceration is not that of a direct population shift from hospitals to prisons. As described by Pennsylvania psychiatrist Dr. Pogos Voskanian, who works with ex-prisoners in an after-prison program called Gaudenzia House, “deinstitutionalization has created not so much a problem for people who have been deinstitutionalized, but for people who can’t get into institutions in the first place.”⁵⁰ Michael Thompson, lead author of a Criminal Justice/Mental Health Consensus Project report on mental illness in the criminal justice system,⁵¹ agrees that people who might in the past have benefited from publicly provided mental health services are now left untreated until their mental illness deteriorates to the point where they commit a criminal offense and are sent to prison.⁵² Some experts use the term “transinstitutionalization” to refer to this problem of persons with mental illness being left untreated until they end up institutionalized within correctional settings.⁵³

Mental health professionals also believe the growing number of mentally ill persons in jails and prisons reflects the difficulty of obtaining court orders committing persons with serious mental illness to mental health hospitals. Unless a person poses a clear danger to him or herself or to others, courts will not issue orders for involuntary commitment.⁵⁴ In addition, they point to the increased difficulty of obtaining court rulings that mentally ill persons are incompetent to stand trial or of securing verdicts of “not guilty by reason of insanity.”⁵⁵ As a result persons who are extremely ill, even psychotic, end up in prison.

Economic incentives may also encourage states to channel seriously mentally ill offenders into prisons rather than state hospitals. “State hospitals cost $90-$100,000 per year per patient,” said Dr. Fred Maue, chief of clinical services, Pennsylvania Department of Corrections. “In prison, a seriously mentally ill individual is imprisoned and treated for around $35,000. Prison isn’t the best place for a mentally ill person to be. But it’s better than to just be homeless in the community.”⁵⁶ Departments of correction have also been better able to protect — and even increase — their budgets in recent years than state agencies with responsibility for social and mental health services. As Mike Robbins, former acting mental health director for the Washington Department of Corrections, told Human Rights Watch:

The mental health agencies of the DHSS [Department of Health and Social Services] have received budget cuts impacting their service. It feeds the mentally ill into the Department of Corrections. It’s still cheaper to house the mentally ill in prison than in a state hospital. As money is harder to come by for the DHSS, plans for handling that person, providing services to that person, may not take place. And it’s then not unlikely for us to see that person with our system.⁵⁷

Just as it is poor and homeless mentally ill individuals who have the greatest difficulty obtaining the mental health treatment they need, so it is poor and homeless mentally ill individuals who are disproportionately incarcerated. According to the National Resource Center on Homelessness and Mental Illness, the homeless who are mentally ill are twice as likely as other people who are homeless to be arrested or jailed, mostly for misdemeanors.⁵⁸ Reproduced in table 1 are figures from the federal Bureau of Justice Statistics (BJS) reflecting the rates of homelessness and unemployment among mentally ill and other prison and jail inmates.

Table 1: Homelessness, Employment, and Sources of Income of Inmates, by Mental Health Status⁵⁹

	State Prison		Federal Prison		Local Jail
	Mentally Ill Inmates	Other Inmates	Mentally Ill Inmates	Other Inmates	Mentally Ill Inmates	Other Inmates
Homeless
In Year Before Arrest	20.1%	8.8%	18.6%	3.2%	30.3%	17.3%
At Time of Arrest	3.9	1.2	3.9	0.3	6.9	2.9
Employed in Month Before Arrest
Yes	61.2%	69.6%	62.3%	72.5%	52.9%	66.6%
No	38.8	30.4	37.7	27.5	47.1	33.4

The BJS figures in table 1 suggest higher rates of employment than those arrived at in other surveys. According to the President’s New Freedom Commission on Mental Health for example, about one out of every three adults with mental illness are employed. A survey by NAMI of its members revealed that 17 percent of consumers of mental health services were employed part-time and only 14 percent full-time.⁶⁰

The BJS also provides data on the crimes which have sent the mentally ill to prison and jail. According to the BJS, 47.1 percent of mentally ill prisoners confined in state prison and 69.7 percent of mentally ill prisoners in jails committed property, drug, or public order offenses.⁶¹ A higher percentage of mentally ill prisoners committed violent offenses than other offenders (52.9 percent compared to 46.1); similarly, a higher percentage of mentally ill jail inmates committed violent offenses than other inmates (31.3 percent compared to 26.0 percent).⁶²

Diversion

Incarceration is an excessive, unnecessarily costly, and even counterproductive response to low-level nonviolent crimes, particularly when committed by persons who have substance abuse problems and/or are mentally ill. Growing public recognition of the human, social, and financial costs of the country’s experiment in mass incarceration has prompted the development of efforts to divert certain low-level offenders from jail and prison. Across the country, drug courts have burgeoned to divert low-level drug offenders into substance abuse treatment programs.⁶³ Because of the high percentage of mentally ill offenders who also have substance abuse problems, the diversion of drug offenders into treatment programs should help preclude incarceration of some mentally ill offenders. ⁶⁴

Although the effort is only nascent, momentum is also developing to divert low-level nonviolent offenders who are mentally ill to mental health treatment rather than jail.⁶⁵ There are approximately ninety mental health courts currently operating in twenty-two states.⁶⁶ For example, Brooklyn, New York, recently started using a mental health court to divert non-violent mentally ill offenders into mandated treatment programs.⁶⁷ In some places, regular criminal courts are able to divert some mentally ill defendants into treatment programs. Connecticut has a program in which its courts can send certain categories of offenders who are deemed to be seriously mentally ill into mental health treatment programs. Although relatively new, these diversion efforts appear to reduce recidivism and are cost-effective as well. A study in Connecticut, undertaken as part of a national study by the federal Substance Abuse and Mental Health Services Administration (SAMHSA), found the average costs of offenders who were diverted into drug treatment programs in Connecticut were about one-third of those who were not.⁶⁸

As this report reveals, for many persons with mental illness, prison can be counter-therapeutic or even “toxic.” Nevertheless, we recognize the tragic irony that, for many, prison may also offer significant advantages over liberty. For some mentally ill offenders, prison is the first place they have a chance for treatment. For those who are poor and homeless, given the problems they face in accessing mental health services in the community, prison may offer an opportunity for consistent access to medication and mental health services. Realizing this opportunity depends, of course, on whether the prisons provide the necessary services. Depending on the quality of the facility in which mentally ill offenders are confined, prison may be less dangerous, less chaotic, less troubling than, for example, life as a homeless person on the street or as a misfit living on the fringe of society. “I have been to prison four times: three times for three years, once for two years,” 40-year-old E.V. stated, rocking back and forth non-stop as she talked, a year and a half after her release from a women’s prison in California.⁶⁹ E.V. was shot in the cheek and shoulders in 1986 during a robbery; she claims she was in a coma for two months following this attack, that she began taking drugs afterwards in order to fight off severe depression, and that at night she hears voices — she thinks of the people who shot her — threatening her well-being. Her most recent stints in prison, she said, were the first times she ever had routine access to mental health services. Yet, she stated, if she needed to see a counselor, she’d “have to make like it was an emergency. Get an attitude, conflict. Argue with the C.O.s, stuff like that. Then they’d take you out and give you a ducat [referral] to see someone.” Now diagnosed as being borderline developmentally disabled, as well as suffering from acute anxiety, depression, the side-effects of a fifteen-year cocaine addiction, and needing outpatient mental health care, E.V. is an example of the kind of patient, suffering simultaneously from multiple disorders whom the prison system is increasingly being called upon to treat. ⁷⁰

⁶ Jennifer McKee, “Mental Illness Behind Bars, Part II: 'We're all kind of strange.' -- inmate,” The Montana Standard, June 29, 2003.

⁷ Congressman Ted Strickland speaking to the House Subcommittee on Crime, Oversight Hearing on “The Impact of the Mentally Ill on the Criminal Justice System,” September 21, 2000.

⁸ Unnamed prison psychiatrist, cited by California Treatment Advocacy Coalition, Fact Sheet: “People Suffering from Mental Illness Should be in Treatment No Jail,” available at: http://www.psychlaws.org/StateActivity/California/factsheet2.htm, accessed on August 27, 2003.

⁹ “Jails are not designed as care facilities for those with mental disorders, but in fact many jails today are the largest inpatient mental health institutions in the United States.” Martin Drapkin, Management and Supervision of Jail Inmates with Mental Disorders (Civic Research Institute, New Jersey, 2003), p.1-1. See Nahama Broner, et al., “Arrested Adults Awaiting Arraignment,” 30 Fordham Urb. L.J. 663 (2003) (discussing people with mental illness in the beginning of the criminal justice process).

¹⁰ According to “Treatment Not Jail” Sacramento Bee, March 17, 1999, “on any given day, Los Angeles County Jail holds as many as 3,300 seriously mentally ill” people. See also Noah Adams, “A Danger To Self And Others,” National Public Radio, July 6, 1999 (referring to Cook County Jail as having over one thousand prisoners in mental health treatment on any given day).

¹¹ Linda Teplin, “The Prevalence of Severe Mental Disorder Among Male Urban Jail Detainees: Comparison with the Epidemiologic Catchment Area Program,” American Journal of Public Health, vol. 80, no. 6 (June 1990.) Teplin’s sample consisted of 3,654 free world individuals in a five-city catchment area and 627 jail inmates. It was conducted between November 1983 and November 1984.

¹² Jeffrey L. Metzner, et al., Treatment in Jails and Prisons, in Robert M. Wittstein, ed., Treatment of Offenders with Mental Disorders (The Guilford press, New York, 1998), p.211. Dr. Metzner also provides a summary of research on the prevalence of mental disorders in jails and prisons, pp.230-233. NAMI (formerly known as the National Alliance for the Mentally Ill) and the Center for Mental Health Services estimate that 5.4 percent of U.S. adults have some form of serious mental illness. Information compiled in a NAMI fact sheet, updated in January 2001. Available online at: http://www.nami.org/helpline/factsandfigures.html, accessed on June 20, 2003.This number is based on 1998 research by R.C. Kessler, published in Mental Health, United States, edited by R. W. Manderscheid and M.J. Henderson. (Center for Mental Health Services, 1999).

¹³ American Psychiatric Association, Psychiatric Services in Jails and Prisons, 2^nd Ed. (Washington D.C., American Psychiatric Association, 2000), introduction, p. XIX.

¹⁴ Based on a population of 1,361,258 in state and federal prisons. See Paige M. Harrison and Allen J. Beck, Prisoners in 2002 (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, July 2003). Available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/p02.pdf, accessed on August 26, 2003.

¹⁵ National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates, A Report to Congress” (March 2002), vol. 1, p 22. The cited data is based on Bonita M. Veysey and Gisela Bichler-Robertson, “Prevalence Estimates of Psychiatric Disorders in Correctional Settings,” vol. 2 of “The Health Status of Soon �to-be Released Inmates (April 2002). Volume 1 is available online at: http://www.ncchc.org/pubs/pubs_stbr.vol1.html, and Volume 2 at: http://www.ncchc.org/pubs/pubs_stbr.vol2.html, both accessed on August, 25, 2003.

¹⁶ Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers (Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics, July 1999), p. 3. Available online at: http://www.ojp.usdoj.gov/bjs/abstract/mhtip.htm, accessed on June 20, 2003. Prisoners were identified as mentally ill if they met one of two criteria: they reported a current mental or emotional condition, or they reported an overnight stay in a mental hospital or treatment program.

¹⁷ Based on a population of 1,361,258 in state and federal prisons and 665,475 in local jails. See Paige M. Harrison and Allen J. Beck, Prisoners in 2002 (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, July 2003). Available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/p02.pdf, accessed on August 26, 2003.

¹⁸ Allen J. Beck, Ph.D. and Laura M. Maruschak, Mental Health Treatment in State Prisons, 2000 (Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics, July 2001.) Available online at: http://www.ojp.usdoj.gov/bjs/abstract/mhtsp00.htm, accessed on September 10, 2003.

¹⁹ American Psychiatric Association, Psychiatric Services in Jails and Prisons, 2^nd Ed. (Washington D.C., American Psychiatric Association, 2000), Introduction, p. XIX, 2000.

²⁰ NAMI, “Criminalization of the Mentally Ill,” prepared for the NAMI 2001 Annual Convention, p. 1. Available online at: http://www.nami.org/Content/ContentGroups/Policy/criminalization2001.pdf, accessed on September 15, 2003.

²¹ Information contained in chart produced by the Health Care Services Division of the California Department of Corrections titled: “Combined Mental Health Population Per Institution.” The figures were last updated July 25, 2002. According to the Monthly Report of Population for July 2002, the total California Department of Corrections population was 157,514. State of California, Department of Corrections, Data Analysis Unit, “Monthly Report of Population,” July 31, 2002, accessed from http://www.cdc.state.ca.us/OffenderInfoServices/Reports/Monthly/TPOP1A/TPOP1Ad0207.pdf, on June 18, 2003.

²² Human Rights Watch telephone interview with Lance Couturier, chief psychologist, Pennsylvania Department of Corrections, January 23, 2003.

²³ Data on Kentucky comes from a Human Rights Watch telephone interview with Dr. Rick Purvis, director, Division of Mental Health Services, Kentucky Department of Corrections, August 13, 2003. According to information provided by Dr. Purvis, there are 2,333 inmates on the mental health caseload. Kentucky has a total prison population of 15,933. Data on Texas comes from an email correspondence to Human Rights Watch from Tati Buentello, administrative associate, Texas Department of Criminal Justice, August 18, 2003,which indicated the total number of prisoners on the mental health caseload was 18,823. The Texas prison population is 162,003.

²⁴ Mary Beth Pfeiffer, “Mental care faulted in 6 prison deaths,” Poughkeepsie Journal, June 28, 2003.

²⁵ Colorado Department of Corrections, Offenders with Serious Mental Illness, A Multi-Agency Task Group Report to the Colorado legislature Joint Budget Committee, November, 1998; on file at Human Rights Watch. The report includes the results of a survey of prison mental health directors, including their responses to questions regarding the proportion of prisoners with serious mental disorders.

²⁶ Colorado Department of Corrections, Offenders with Serious Mental Illness, 1998.

²⁷ National Institute of Corrections (NIC), “Provision of Mental Health Care in Prisons” (U.S. Department of Justice, February 2001), table 1, p. 3. Available online from the NIC Information Center at: http://www.nicic.org/pubs/2001/016724.pdf, accessed August 25, 2003. According to the report, eighteen of twenty-five states that responded to the NIC survey reported increases in the size of prison population with mental illness; many of the states, however, did not specify particular percentage increases.

²⁸ Colorado Department of Corrections, Offenders with Serious Mental Illness, 1998.

²⁹ Numbers calculated by the Council of State Governments, Criminal Justice/Mental Health Consensus Project (Council of State Governments, New York, June 2002). The report reflects two years of collaborative work between over one hundred lawmakers, police chiefs, sheriffs, District Attorneys, public defenders, judges, mental health advocates, victim advocates, correctional officials, substance abuse experts, and clinicians on the topic of the mentally ill and criminal justice. In “Some Perspectives On Deinstitutionalization,” Psychiatric Services, vol. 52, no. 8 (August 2001). Richard Lamb and Leona Bachrach quoted data generated by the National Institute of Mental Health indicating the number of mental hospital beds nationally had fallen to 57,151 by the end of 1998.

³⁰ Richard Lamb and Linda Weinberger, “Persons With Severe Mental Illness in Jails and Prisons: A Review,” Psychiatric Services, vol. 49, pp. 483-492, 1998. In Richard Lamb and Leona Bachrach, “Some Perspectives on Deinstitutionalization,” Psychiatric Services, August 2001, vol. 52, no. 8, the authors estimated the number of occupied state hospital beds had fallen as low as 21 per 100,000.

³¹ The Commission was created by President Bush on April 29, 2002, with a mandate to produce an interim report by October 2002 and a final report in April 2003.

³² President's New Freedom Commission on Mental Health, Achieving the Promise: Transforming Mental Health Care in America, p.3. Available online at: http://www.mentalhealthcommission.gov/reports/FinalReport/toc.html, accessed August 26, 2003.

³³ Ibid., pp. 49-50.

³⁴ Council of State Governments, Consensus Project (2002), p. 7.

³⁵ For example, federal funding of community-based mental health services is greatly diffused, spread across numerous mandatory and discretionary programs. Within Medicaid, community-based mental health services run through more than six separate optional service categories. Moreover, the complicated federal scheme relies on numerous state and local funding streams. The inevitable result is a complex, confusing patchwork of programs, with fragmented services at the community level - a system that is especially difficult for Medicaid recipients with mental illness. See NAMI, Medicaid Funding of Mental Illness Treatment, http://web.nami.org/policy/wherewestand/medicaid02.html, accessed on August 9, 2003.

³⁶ Because of the restricted access to community services, the phenomenon of “mercy arrests” has arisen in which police officers arrest manifestly psychotic individuals because they know that it is easier to channel them into treatment once they enter the criminal justice system than it is to find them hospital space, or even counseling at a community service institution.

³⁷ Federal Task Force on Homelessness and Severe Mental Illness, Outcasts On Main Street: A Report of the Federal Task Force on Homelessness and Severe Mental Illness (Washington, D.C.: GPO), 1992. Cited by NAMI, accessed on June 11, 2003, from http://www.nami.org/helpline/factsandfigures.html.

³⁸ Data on homeless who are mentally ill obtained from The National Resource Center on Homelessness and Mental Illness, operated by the Center for Mental Health Services of the Substance Abuse and Mental Health Services Administration. See http://www.nrchmi.com/facts/default.asp, accessed on June 10, 2003, and NAMI, accessed from http://www.nami.org/Template.cfm?Section=Issue_Spotlights&Template=/TaggedPage/TaggedPageDisplay.cfm&TPLID=5&ContentID=2069, on June 23, 2003.

³⁹ Human Rights Watch interview with Richard Lamb, Los Angeles, California, January 31, 2003.

⁴⁰ Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), The Prevalence of Co-Occurring Mental Illness and Substance Use Disorders in Jails, Spring 2002. The report sources its information to Abram, K.M. and Teplin, L.A., “Co-Occurring Disorders Among Mentally Ill Jail Detainees,” American Psychologist, vol. 46, no. 10 (1991), pp. 1036-1045. Equivalent data for the prison population is not provided.

⁴¹ See National Center for Mental Health and Juvenile Justice, GAINS Center For People with Co-Occurring Disorders in Contact with the Justice System, accessed on June 23, 2003 from: http://www.ncmhjj.com/projects/gains.asp.

⁴² BJS, Prisoners in 2002, p. 2.

⁴³ Human Rights Watch, “Punishment and Prejudice,” A Human Rights Watch Report, vol. 12, no. 2 (May 2000).

⁴⁴ See, e.g., Marc Mauer, Race to Incarcerate (New York: New Press, 1999).

⁴⁵ American Psychiatric Association, Psychiatric Services in Jails and Prisons, 2^nd Ed. (Washington D.C., American Psychiatric Association, 2000), introduction, p. XIX.

⁴⁶ Council of State Governments, Consensus Project (2002), p. 26.

⁴⁷ President's New Freedom Commission on Mental Health, Interim Report of the President’s New Freedom Commission on Mental Health, October 29, 2002, p. 1. Available online at: http://www.mentalhealthcommission.gov/reports/Interim_Report.htm, accessed on June 23, 2003.

⁴⁸ H. Richard Lamb, M.D. and Linda E. Weinberger, Ph.D., “Persons With Severe Mental Illness in Jails and Prisons: A Review,” Psychiatric Services, vol. 49, no. 4, April 1998, pp. 483-492. According to Lamb and Weinberger, the term "criminalization of the mentally ill” was first coined in Abramson M.F., “The criminalization of mentally disordered behavior: possible side-effect of a new mental health law,” Hospital and Community Psychiatry, vol. 23, 1972, pp. 101-105.

⁴⁹ State of Maine, 120^th Legislature, Final Report of the Committee to Study the Needs of Persons with Mental Illness Who Are Incarcerated, December 19, 2001, introduction, p. ii, accessed from http://www.state.me.us/legis/opla/incarrept.PDF, on June 23, 2003.

⁵⁰ Human Rights Watch interview with Pogos Voskanian, psychiatrist, Gaudenzia House, Philadelphia, Pennsylvania, August 13, 2002.

⁵¹ Council of State Governments, Consensus Project (2002). Coordinated by the Council of State Governments, the Project produced a 432-page report which grew out of a two-year effort to prepare recommendations for improving the criminal justice system’s response to people with mental illness. The Steering Committee was made up of representatives from The Council of State Governments, the Police Executive Research Forum, the Pretrial Services Resource Center, the Association of State Correctional Administrators, the National Association of State Mental Health Program Directors, the Bazelon Center for Mental Health Law, and the Center for Behavioral Health, Justice & Public Policy.

⁵² Human Rights Watch interviews with Mike Thompson, New York City, New York, April 29, 2002, June 13, 2002. Thompson generously shared much of the CSG’s ongoing research with Human Rights Watch.

⁵³ See, e.g., Jolynn E. Hurwitz, Mental Illness and Substance Abuse in the Criminal Justice System (The Health Foundation of Greater Cincinnati), September, 2000: “Deinstitutionalization became ‘transinstitutionalization’ as police resorted to arresting individuals with mental health disorders when the local mental health systems were unresponsive.” The authors quote E.F. Torrey & Zdanowicz, M. Deinstitutionalization: A deadly debacle, 2000, and S.P.M. Harrington, New bedlam: Jails—not psychiatric hospitals—now care for the indigent mentally ill, The Humanist (May-June, 1999), pp. 9-13.

⁵⁴ Prior to the 1970s, many mentally ill persons were involuntarily committed to mental hospitals with minimal protections for their right to liberty and personal autonomy. Since then, substantial case law and new legislation have significantly increased procedural and substantive safeguards for the civil liberties of the mentally ill.

⁵⁵ A public furor erupted when John Hinkley was found “not guilty by reason of insanity” in his 1982 trial for the attempted assassination of President Reagan. In the four years following, Congress and half of the states enacted changes in the insanity defense that limited defendants’ ability to use this defense. Nine states limited the substantive test of insanity; seven states shifted the burden of proof to the defendant; twelve states created specific “guilty but mentally ill” verdicts; and Utah, Montana, and Idaho completely abolished their existing insanity defenses.

⁵⁶ Human Rights Watch interview with Dr. Fred Maue, chief of clinical services, Pennsylvania Department of Corrections, Gaudenzia House, Philadelphia, Pennsylvania, August 13, 2002. In 2002, the New York Times published an editorial reporting that the annual cost to New York State of maintaining a person in a psychiatric hospital in New York was $120,000. “New York's Mentally Ill Deserve Better,” New York Times, Editorial, October 9, 2002.

⁵⁷ Human Rights Watch interview with Mike Robbins, former acting mental health director, Washington Department of Corrections, Olympia, Washington, August 19, 2002.

⁵⁸ National Resource Center on Homelessness and Mental Illness, Get the Facts, March 17, 2003, accessed from http://www.nrchmi.com/facts/facts_question_3.asp, on June 10, 2003.

⁵⁹ This table reproduced from data compiled by the Bureau of Justice Statistics, Mental Health and Treatment of Inmates and Probationers, 1999, table 7, accessed from http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf on June 23, 2003.

⁶⁰ Written communication to Human Rights Watch from Ron Honberg, director of legal affairs, NAMI, September 9, 2003.

⁶¹ BJS, Mental Health and Treatment of Inmates and Probationers, 1999, table 5.

⁶² Ibid.

⁶³ United States General Accounting Office, Drug Courts: Better DOJ Data Collection and Evaluation Efforts Needed to Measure Impact of Drug Court Programs (Washington, D.C.: April 2002), available online at: http://www.gao.gov/new.items/d02434.pdf, accessed on June 10, 2003. Drug abuse counselors and mental health staff inside prisons repeatedly told Human Rights Watch they believed that the true percentage of mentally ill prisoners with substance abuse histories was actually far higher, since many seriously mentally ill people used alcohol and illegal drugs as a form of self-medication.]

⁶⁴ 58.8 percent of state prisoners with mental illness and 64.6 percent of jail inmates with mental illness were using alcohol or illegal drugs at the time of their offense. BJS, Mental Health and Treatment of Inmates and Probationers, 1999, table 10. Among non-mentally ill inmates, 51.23 percent of those in state prison and 56.5 percent of those in jail reported drug or alcohol use at the time of their offenses.

⁶⁵ See, e.g., John S. Goldkamp and Cheryl Irons-Guynn, “Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload” (Bureau of Justice Statistics, April 2000). Human Rights Watch visited the mental health court operating in Broward County, Florida in September 2001. See also Center for Crimes, Communities and Culture, Mental Illness in US Jails: Diverting the Nonviolent, Low-level Offender, Research Brief, Occasional Paper Series, no. 1 (New York: The Open Society Institute, November 1996), accessed online at: http://www.soros.org/crime/research_brief__1.html, on June 10, 2003.

⁶⁶ Human Rights Watch interview with Ron Honberg, director of legal affairs, NAMI, September 4, 2003. NAMI is working with the National GAINS Center for People with Co-Occurring Disorders in Contact with the Justice System, the Council of State Governments, and other organizations to compile a complete list of mental health courts in each state. Mental health courts are defined as courts that are criminal courts, have a separate docket dedicated to persons with mental illness, divert criminal defendants from jail to treatment programs, and that monitor the defendants and have the ability to impose criminal sanctions on their failure to comply with the terms of their diversion. Lucille Schacht, Ph.D., “Mental Health Courts and Diversion Programs Supported by State Mental Health Authorities: 2001,” NASMHPD Research Institute, Inc., under contract with the Substance Abuse and Mental Health Services Administration (SAMHSA), June 2002. Florida created the first mental health courts in 1998; in 1999, Arkansas and Wyoming created courts; in 2000, Georgia, North Carolina, New Hampshire, and Ohio started their courts; in 2001; Alabama, Montana, Nevada, Pennsylvania, Tennessee, and Vermont joined in; and in 2002, New York followed suit. The American Psychiatric Association states that Indiana and Alaska also operate mental health courts. Human Rights Watch visited the mental health court for Broward County, Florida in September, 2001.

⁶⁷ The Brooklyn Mental Health Court began as a pilot program in March 2002. In September 2002, it was formally integrated into Brooklyn’s court system. It is aimed at non-violent offenders, and the district attorney’s office has to agree before a case can be moved to the mental health court. SeeLeslie Kaufman,“Court for Mentally Ill Defendants Will Start Today,” The New York Times, October 1, 2002.

⁶⁸ These numbers are quoted in Albert Solnit, The Costs and Effectiveness of Jail Diversion: A Report to the Joint Standing Committee of the General Assembly (Hartford, CT: The Department of Mental Health & Addiction Services, February 1, 2000).

⁶⁹ Human Rights Watch interview with E.V, ex-prisoner, Sober Living Facility, Los Angeles, California, May 17, 2002.

⁷⁰ Documented in E.V.’s prison medical records.

<<previous | index | next>>

October 2003