Friday, December 10, 2010

De-Criminalizing Mental Illness: Is Prison Downsizing a Solution?

by Ron Honberg, NAMI Director for Policy and Legal Affairs

Ron Honberg, J.D.
NAMI Director for Policy and Legal Affairs
On November 30, a subject long important to NAMI made it all the way to the U.S. Supreme Court: the treatment of people living with mental illness who are in the prison system. Specifically, the oral arguments before the Supreme Court addressed whether courts have the power to order states to reduce their prison population as a way to solve their failure to meet constitutional standards of health and mental health care treatment in these facilities. The case originated in California, a state that has implemented 30 years of “get tough on crime” policies that have resulted in extreme overcrowding in its prisons. It starkly illustrates the difficulties--indeed the futility--of providing adequate psychiatric treatment to prison inmates living with schizophrenia and other serious mental illnesses.

The case, known as Schwarzenegger versus Plata and Coleman, actually originated 20 years ago, when a lawsuit was filed on behalf of California’s inmates living with serious mental illness alleged that the state was violating their constitutional rights by not providing treatment for mental illnesses and other medical conditions. The court that heard this case ruled that the confining conditions did not meet the level of care guaranteed by the constitution–the 8th Amendment’s prohibition against “cruel and unusual punishment.”

A “Prison Overcrowding State of Emergency”

Over the course of the next 15 years, the court issued a series of decisions ordering the state to take steps to remedy these constitutional violations. However, California was never able to solve these problems to the court’s satisfaction. It became increasingly apparent that extreme overcrowding was preventing the state from remedying these constitutional violations. Indeed, in 2006 Governor Arnold Schwarzenegger declared a “prison overcrowding state or emergency” in recognition of this crisis.

In January 2010, a three-judge panel was convened to review the case under the federal Prison Litigation Reform Act (PLRA). By this time, some of California’s prisons were operating at nearly 200 percent of capacity, housing twice as many inmates as they were built to handle. Experts concluded that the chaotic conditions in these prisons were not only not conducive to solving the problems with delivering treatment, they very likely exacerbated the symptoms and distress of inmates living with serious mental illnesses.

The PLRA permits courts to issue prisoner release orders only under very narrow circumstances, specifically if previous, less severe solutions have failed within a reasonable period of time. In this case, the judges concluded that there was ample evidence that less intrusive remedies had failed to work and only the imposition of a population cap on all of California’s prisons would work. Thus, the panel ordered California to operate its prisons at no more than 137.5 percent of capacity.

The Choice Between More Prisons and Prison Downsizing
If the Supreme Court upholds the lower court’s decision, California will be faced with choosing between releasing large numbers of inmates, including inmates living with serious mental illnesses, or building more prisons and prison mental health treatment facilities. In view of the severe budget crisis the Golden State is currently enduring, it is hard to imagine that California will choose the route of building more prisons.

California’s laws on probation and parole are among the toughest in the nation. Many of this state’s inmates–including individuals living with serious mental illnesses–are incarcerated because of technical violations of their probation, not because they have committed or re-committed serious crimes. These are the individuals who are most likely to be among the first discharged from California’s prisons.

Community Care: Net Cost or Savings?

NAMI has long advocated against the unnecessary “criminalization” of youth and adults living with serious mental illnesses. We believe that little can be gained from incarcerating non-violent offenders with serious mental illnesses who need treatment, not punishment. However, the potential release of large numbers of individuals with serious mental illnesses into their home communities presents a great potential challenge for the state and its 58 counties. California has a budget deficit of approximately $20 billion and cuts in spending are impacting adversely on the availability of mental health services in the counties. Most of these counties are having difficulty serving those individuals with serious mental illnesses they are currently responsible for. Demands on some of these counties could increase as inmates are discharged and come home.

Still, as my mother has always reminded me, “where there is a will, there is a way.”  California’s Department of Corrections stands to save millions of dollars due to lower inmate populations, lower health and mental health treatment needs and the increased efficiency resulting from less overcrowding. Some of this money should go into beefing up the capacity of counties to provide mental health treatment and services to discharged inmates. Additionally, California should consider specialized medical parole programs with personnel trained to manage the needs of parolees with severe mental illness

And, there is ample evidence that the provision of quality mental health and substance abuse treatment sharply reduces criminal recidivism and thus the burdens on correctional systems. California need only look at its experience with the Assembly Bill (AB) 34/2034 program, which demonstrated a decrease in homelessness and incarcerations while reflecting an increase in the ability of consumers to live independently, for evidence.

A Golden Opportunity for the Golden State

The fact is, many Californians living with serious mental illnesses who are currently incarcerated wouldn’t be in prison at all had they received timely services and supports. Now, the Golden State has a golden opportunity to do right by these individuals and benefit the entire state in the process.  If it does so, California will set a very positive standard for the rest of the country to follow.

For more information, see the amicus curiae (“friend of the court”) brief submitted for  this case by NAMI, NAMI California, the American Psychiatric Association, the American Psychological Association and several other organizations.


Tannie said...

I think that would be a good idea,Transferring prisoners to the state mental hospital, they do have long term care facilities there.Maybe paroling them with certain circumstances.However; could be seen as twice life limb and jeopardy. Due to re sentencing.They should be made to follow up with Local mental health,Texas work commission, parole dept.and the welfare office.
Maybe even give them house arrest.
I don't know...sounds kinda harsh to me...

DJ said...

Ron-Thanks for a terrific article on important subject.

Anne said...

Ive been crying as i read this article.. the prison system needs a major rethink on how it treats the mentally ill.. My fiancee ( African American) is presently back in prison, in a Drug Rehabilitation Punishment Unit..He had been on parole, after 16 years in prison as a non violent drug offender(user) In those years he was diagnosed as schizophrenic, in his 10th year of imprisonment he spent 12 months at Montford mental hospital prison facility.( he lost his Mom, Father and Grandmother while incarcerated, which only added to his mental anguish) After 16 years with one year to go he was paroled. He managed to secure a job, working for 18 months without problems, but he went off his medication in Jan 2010 due to a stressful family situation,it was then he returned one positive test for marijuana. An arrest warrant was issued,he appeared before the Parole Board without representation, Even though the paperwork stated that he was a diagnosed schizophrenic, and had been off medication for 5 months, they found he was competent and able to comprehend the questions. The Board took him away from an 18 month job where he was supporting himself, and returned him to a Punishment Facility prison for six months. When he comes out in February again, he has lost his job and will have to go to a halfway house. He has been treated as a drug addict when his real problem is a mental condition and medication. I wasted $3000 on a Parole Lawyer to appeal to the Parole Board! this system is so wrong! to lock a man up for 16 YEARS when he has a mental condition is cruel and barbaric! he cries and is highly distressed, it seems the prison system will never let him go!! please help me!

Nathan said...

There is no public discussion concerning the de-criminalization of mental illness. Too many incidents involving heinous crimes by a mentally ill person such as in Arizona prevent that discussion.

The fact is, the stigma exists that once the court determines you are mentally ill, you are considered guilty. If you do not succumb to a plea adjudicating guilt, then they commences procedures to remove all your rights in a competency proceeding.

Anonymous said...

Thanks very significantly!! It's very helpful ~

Anonymous said...

I've also considered this problem previously, but have not came to the answer, Sigh ~