top of page
  • Annemarie Gregoire

The criminalization of mental illness

Updated: Oct 20, 2023

The criminalization of mental illness has become increasingly common in the United States. A disproportionate number of mentally-ill people are incarcerated; 37% of people in prisons have been diagnosed with a mental illness. Forty-four states hold more mentally-ill individuals in a jail or prison than they do in each state’s largest psychiatric hospital. According to the Treatment Advocacy Center, in every U.S. county that has both a county jail and a county psychiatric facility, “more seriously mentally-ill individuals are incarcerated than hospitalized.” Once a person with mental illness is incarcerated, “they stay longer than people without behavioral health conditions facing similar charges.”

Substance abuse also correlates with mental illness and with incarceration, partly due to the strict criminalization of drug-related offenses. “Adults with serious mental illness are more than twice as likely to use an illicit drug compared with those adults without a serious mental illness.” Thus, a disproportionate number of incarcerated people have substance abuse disorders and mental illness. These individuals, who lack adequate support services, often cycle between homelessness and incarceration.

A significant gender disparity exists among incarcerated people with mental illness. Mental illness is more common in incarcerated women than in men, and this may be partly due to incarcerated women’s experiences of past trauma. In “Risk Profile and Treatment Needs of Women in Jail with Co-Occurring Serious Mental Illness and Substance Use Disorders,” researchers found that while there are “unusually high rates of incarcerated women’s serious mental illness and substance use disorders,” incarcerated women also have “significantly less access to treatment and health services while incarcerated” than incarcerated men. The Bureau of Justice Statistics also found a racial disparity among inmates with a diagnosed mental disorder; diagnosed mental disorders are more prevalent among incarcerated white people than non-white incarcerated people. However, this may reflect racial bias rather than different rates of mental illness, as incarcerated white people may be directed to mental health services (and provided a diagnosis) at a higher rate than non-white incarcerated people.

The criminal legal system can address the criminalization of mental illness by providing support systems at different stages of the criminal process. For example, mobile crisis teams with mental health professionals who are trained to assist in mental health crises can respond more effectively to mental health emergency situations than police. Additionally, pretrial screening for mental health disorders and substance abuse disorders can provide offenders with access to treatment options and diversion programs. Mental health courts can provide voluntary mental health treatment for people with mental illnesses who are charged with nonviolent offenses, and they can offer the possibility of dismissed charges or reduced sentences upon successful completion of their diversion programs. Diversion to community-based services that provide support related to health care, housing and employment can serve as an effective alternative to incarceration for many mentally-ill offenders. Finally, jails and prisons must provide opportunities for mental health assessments (and subsequent mental health treatment) to assist mentally-ill incarcerated persons.

Recent Posts

See All

Revenge porn: Four barriers to prosecuting the crime.

TW: Sex Crimes, Sexual Abuse Revenge porn, often referred to as “non-consensual pornography” or “image-based sexual abuse” (“IBSA”), is a sex crime of the digital age. Combining tort law with criminal

Rejecting blanket prosecution policies post-Dobbs.

After Dobbs v. Jackson Women’s Health Organization, dozens of prosecutors across the United States have made a conscious choice to reallocate their resources away from cases related to abortions, coll

bottom of page