Excerpted From: Patricia Warth, Unjust Punishment: the Impact of Incarceration on Mental Health, 95-FEB New York State Bar Journal 11 (January/February, 2023) (48 Footnotes) (Full Document)


PatriciaWarthSadly, a defining feature of our nation is its legacy of punishing rather than humanely caring for people with mental illness. Yet, the solutions needed to break this legacy already exist. It is well past time to pledge ourselves to implementing these solutions so we can meaningfully care for the most vulnerable among us.

As far back as the late 1700s, people with mental illness frequently ended up in poorhouses or jails--much like today. In the 1840s, reformer Dorothy Dix, appalled by the conditions people with mental illness faced in jails, embarked on a campaign urging state legislatures to build publicly funded state hospitals to offer people with mental illness both treatment and more humane conditions. Dix's vision of treating people with mental illness in state hospitals rather than warehousing them in jails was only partially realized--dozens of state mental hospitals were built, but most were not adequately resourced, and while some provided treatment, others merely warehoused people in conditions no better than jails or prisons.

By the 1950s, the number of people with mental illness in state mental hospitals had peaked. But a series of expos‚s, such as a 1946 Life magazine article by Albert Q. Maisel, led to growing public awareness of the poor conditions and lack of treatment in these facilities. In his article, Maisel described the conditions he observed: “We feed thousands a starvation diet .... We jam-pack men, women, and sometimes even children, into hundred-year-old firetraps in wards so crowded that the floor cannot be seen between the rickety cots .... Hundreds--of my own knowledge and sight--spend twenty-four hours a day in stark and filthy nakedness.”

Media expos‚s like Maisel's prompted various social movements--including the civil rights movement, the community mental health movement, the evidence-based practice movement and the recovery movement--to coalesce around the goal of deinstitutionalization in favor of community-based treatment as a more humane way to care for people with mental illness. In 1999, in Olmstead v. L.C., the U.S. Supreme Court held that failing to care for people with mental illness in the “least restrictive” environment violated the American with Disabilities Act, cementing the concept that people with mental illness should, whenever possible, receive care in the community rather than an institution.

Three significant changes further accelerated the deinstitutionalization movement in the 1960s. The first was the FDA approval of the drug Thorazine to control the symptoms of psychosis, fostering the belief that we could medicate our way out of mental illness and render inpatient treatment unnecessary. Second was the 1963 enactment of the federal Mental Retardation Facilities and Community Health Centers Construction Act, which allotted money to the states to build community-based care centers to treat people with mental illness and developmental disabilities. But while state legislators pointed to this federal legislation as justification to close state hospitals, “[m]any of the new community care centers either never materialized or ended up serving populations with less severe forms of mental illness or with other disabilities, rather than those with serious mental illness.” The year 1965 ushered in the third significant change: the creation of the Medicaid program, which funded health care for low-income people, but which made states rather than the federal government responsible for funding long-term inpatient mental health care. The lack of federal funding for inpatient mental health treatment encouraged states to move people out of institutions to outpatient care so that federal dollars would cover at least some of the cost.

In terms of closing state hospitals and reducing the number of people confined to mental health institutions, the deinstitutionalization movement was an overwhelming success, and “between 1950 and 2000 the number of people with serious mental illness living in psychiatric institutions dropped from almost half a million people to about fifty thousand,” while the number of beds in state and county psychiatric hospitals declined by more than 90%. But the vision of a network of community care centers that would provide meaningful treatment for people with mental illness was never adequately funded and thus never fully realized. Because of the limited availability of treatment options, many people with mental illness do not receive the care they need. Of the “14 million or so people who experience the most debilitating mental health conditions, roughly one-third don't receive treatment,” often because they cannot connect with the services they need, they lack insurance or the services are not available. The result is that people with serious mental illness “have been consigned to lives of profound instability” and, lacking proper care in the community, they often cycle through homeless shelters and periods of incarceration.

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America must develop a commitment to humanely care for, rather than criminalize, people with mental illness. Doing so requires us to address two questions: who are we incarcerating and how are we incarcerating them? With regard to who we incarcerate, we need to implement a range of reforms to dramatically reduce the number of people with mental illness we confine to jails and prisons, including, for example, reforms aimed at decriminalizing conduct that is often a function of mental illness, such as substance abuse, homelessness, and vagrancy; diverting people from the criminal legal system before charges are filed, at the point of police contact; and for people who are charged, diverting them from prison and jail in favor of treatment options. For the latter, a promising reform is the Treatment Not Jails Act, which would expand Criminal Procedure Law Article 216 to allow treatment courts to accept people with mental health issues, significantly enhancing the availability of therapeutic, rather than punitive, sentencing options for people convicted of a crime whose mental illness contributed to their criminal legal system involvement.

For the second question--how we incarcerate--we need to reject the notion that rehabilitation does not work and shift the focus of our prisons and jails from punishment to rehabilitation and treatment. We must also hold jails and prisons accountable for their treatment of incarcerated people by, among other things, requiring accurate reporting and rejecting practices that are not evidence-based, such as solitary confinement. A starting point is acknowledging the failure to fully implement the 2008 SHU exclusion legislation and the 2021 HALT legislation and requiring DOCCS to meaningfully implement these critically important reforms.

Finally, and perhaps most important, we must recognize that the solution to caring for people with mental illness before they become ensnared in the criminal legal system--a network of community mental health centers with a single point of entry--has existed for decades but has never been adequately funded. It is time to commit the fiscal resources necessary to break the cycle of failure that has plagued our nation and to meaningfully care for the most vulnerable among us.

Patricia Warth is the director of the New York State Office of Indigent Legal Services (ILS).