• Laurel Anderson

Mental Illness in the Criminal Justice System: Re-Institutionalization behind Bars


Americans have typically feared the reality of mental illness, which has resulted in a traumatic history of systematic oppression to some of the most vulnerable individuals. Although the common thought is that the United States has abolished its practice of indefinitely removing mentally ill individuals from society, in actuality, the practice is alive and well—through the criminal justice system. According to a 2016 article by The Pew, the United States is short 123,300 psychiatric hospital beds. And according to a 2014 study by the Treatment Advocacy Center, “Ten times more mentally ill are in jails and prisons than in psychiatric beds in hospitals.” This not only means that those suffering from severe mental health symptoms are not getting the treatment that they deserve, but it means that these individuals must be incarcerated to be stabilized.

But the news isn’t all bad. Lawyers and mental health advocates have taken a stand in federal and state courts around the country arguing that this practice is violating their client’s 8th Amendment rights. Several courts and lawmakers have agreed. Most recently, the Colorado legislature passed a law that makes detaining individuals who are in psychiatric crisis, and who have not committed a crime, illegal. Lawmakers allocated revenue from marijuana taxes to fund additional mental health treatment programs to support and stabilize those suffering from severe mental health symptoms.

Similarly, the Washington Supreme Court held that holding severely mentally ill individuals in jail for prolonged periods of time violates the 8th Amendment. However, the realistic implementation of this holding has created additional issues because funding for more mental health treatment options has not significantly increased. This ultimately lead to the Washington Social and Health Services being held in contempt of court for continuing to violate the 8th Amendment rights of mentally ill individuals held in jail instead of treatment. The Department was fined heavily, which created more pressure for lawmakers to find a solution to this crisis.

States that have failed to address the constitutionality of incarcerating the mentally ill include: New Mexico, North Dakota, South Dakota, Texas, and Wyoming. These are the only states that have laws that explicitly allow correctional facilities to utilize mental health holds in jails.

Many may still wonder what is so different from housing an individual suffering from severe psychosis or mental health crisis in jail, verses in a hospital. Individuals with Schizophrenia and bipolar disorder are ten times more likely to be in jail than in a hospital. Many states will justify this practice because the government’s interest is in keeping the public safe. However, the government is failing to also keep these individuals suffering from mental health symptoms safe while they are behind bars. In most cases, psychotropic medications are necessary to stabilize individuals in psychosis, but many jails actually do not allow psychotropic medications into their facility. This in itself, not only puts the individual at higher risk of self-harm, but can exasperate their paranoia, aggression, self-harm, and other symptoms. When this is the case, the jail has no other choice but to put the individual in solitary confinement, or to seclude individuals more, for their safety and the safety of others. In a study conducted by the Urban Institute, 77% of incarcerated persons who attempted suicide in the King County, Washington jail were chronically mentally ill. Incarcerating individuals who are suffering from severe mental health symptoms, especially in solitary confinement, only escalates their symptoms. There is no doubt that if funding for mental health programs and treatment over incarceration becomes a priority, the victims to this injustice will decrease.

To top this off, spending a significant amount of time in jail can result in health insurance benefits being cut off. Releasing mentally ill patients back into the community without proper health care in place and with a criminal record is only setting them up to recidivate and return to jail.

Although solving this seemingly circular issue seems daunting, the answer may be not so far from our reach. More collaboration between lawyers, advocates, lawmakers, police officers, and service providers is needed to assess the needs of each community and take action. States who have not enacted legislation to ensure that the mentally ill are receiving treatment and not incarceration, should follow in the footsteps of states like Colorado. States that have already enacted this legislation should reevaluate their funding of mental health treatment to best serve the community. Finally, states should consider using their funding to implement community treatment programs that provide stabilization and support, while encouraging independence with individuals who struggle with severe mental health symptoms on a daily basis. The implementation of more community programs will alleviate the pressure put on hospitals that are already strained on funding for psychiatric beds.


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