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  • Sasha Brisbon

Time or Treatment?

Updated: Oct 19, 2023

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, the cycle through the criminal justice system without appropriate care to address their mental health. According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the United States correctional population. An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem. These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.

In an effort to begin a new era of support for mental health services, President John F. Kennedy passed the Community Mental Health Act of 1963. This Act essentially created a financial incentive for states to close state-funded mental hospitals while promising to fund community-based outpatient treatment and community mental health centers that would replace the services provided by hospitals. However, the community mental health centers that were to be the backbone of the promised community treatment system failed to materialize. The absence of the promised community treatment system, the lack of adequate funding, and the inability to intervene except in the event of a crisis led to the dramatic increase in the incarcerating persons with mental illness. This, however, shifted addressing mental health issues from civil justice to criminal justice, which came at a great human and monetary cost.

Correctional facilities were not equipped nor staffed adequately to properly address the individual mental health issues. By 1998, state prison populations housed roughly 15 percent of mentally ill offenders which quickly rose to 20 percent over just two years. By 2006, more than half of all prison and jail inmates were diagnosed with an existing mental health issue. The increasing prison and jail populations put a strain on the criminal justice system as a whole. These mentally ill offenders were in desperate need of intense monitoring, treatment, and more mental health personnel. Thus, the average annual cost for a single mentally ill offender was $95,233 compared to an average cost of $35,253 for other offenders.

A portion of the increased costs for mentally ill offenders also stems from lawsuits for inadequate treatment and negligence on behalf of the correctional facilities. Theon Jackson was confined indefinitely after he was found guilty for robbing two women. Jackson’s counsel contended, on appeal, that Jackson's commitment under these circumstances amounted to a "life sentence" and that the commitment, therefore, deprived Jackson of his Fourteenth Amendment rights to due process and equal protection and constituted cruel and unusual punishment under the Eighth Amendment. The Supreme Court of Indiana agreed and established a precedent that mentally ill criminal defendants who are incompetent to stand trial could not be indefinitely committed on that basis alone.

Similarly, Kenneth Donaldson was confined without treatment for 15 years. He brought suit in the United States District Court for the Northern District of Florida and the jury returned a verdict assessing both compensatory and punitive damages against the institution. The Court of Appeals for the Fifth Circuit affirmed the judgment and the Supreme Court granted certiorari. The Supreme Court was particularly interested in intervening in such cases to ban long term confinements and encourage more treatment to hopefully allow the offenders to reintegrate with society one day. The Supreme Court ultimately ruled that if an individual is not posing a danger to self or others and is capable of living without state supervision, a state has no right to commit the commit the individual to a facility against his or her will.

Courts have the unique vantage point of the front and back doors of the civil commitment and the criminal justice system. Courts are the ideal organizing force to convene law enforcement officials, prosecutors, public defenders, public health agencies, healthcare providers, as well as correctional agencies to develop better protocols to evaluate the impact of the mental health crisis on our criminal justice system and devise solutions.


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