We're Putting the Wrong People in Jail, Part I

There is little question that well prior to the current economic crisis and accompanying budget cuts, Corrections was underfunded, understaffed and overcrowded with prisoners. Prison administrators were already dealing with overcrowding, working on early release programs for non-violent offenders, and alternately begging legislatures for more money and defending themselves against lawsuits by prisoners and pressure from legislative audit/study panels. Many administrators made solid arguments in defense of increased spending, changes in sentencing laws and guidelines, and regulations on parole and other early-release programs. No matter how much sense these arguments made, politicians, who were the only ones in a position to make changes, could not listen because they answered to the voters, not the administrators. Meanwhile, the public adopted the perception that crime was increasing - whether this perception was supported by the statistics is irrelevant - the pressure on legislators and adminstrators wasn't based on facts, but on public opinion. Generally, the public's answer for rising crime has been "lock 'em up and throw away the key.' Legislators were more than happy to sponsor bills to create new crimes, increase penalties and reduce good behavior and other sentence-reducing options. Any legislator who had the guts to oppose such measures was labeled "soft on crime", a death knell to any political career. A wise administrator, if he wished to keep his job, would at some point acquiesce on important issues to remain in step with what the politicians wanted - they waxed eloquent about being tough on crime and on criminals, and we retained the problem at hand, only with no one willing to approach the matter with common sense, informed by facts as opposed to emotional reactions to individual cases. As a criminal defense investigator, I often wonder what will become of defendants who get convicted or plead guilty. I see a great deal of inequity in sentencing, but that is an article for another day. I see some of the most violent, dangerous criminals, and others who pose little or no real danger to society. Most end up in prison, and I can't help but wonder what needs to be done to make sure people who should be in prison go there and stay, and the rest undergo some other type of pubnishment and/or supervision. Since prisons are undeniably overcrowded, and funding is being cut drastically, prison overcrowding will become worse, and I dread seeing the politically-based "solutions" that neither address the underlying problems nor adequately protect the public, nor protect the rights of prisoners (that's that whole "pesky" Constitutional Rights issue people so readily ignore). Since I am neither a politician nor a prison administrator, I will happily provide my opinion on one aspect of the prison overcrowding problem: We are simply putting the wrong people in prison to begin with. In this and subsequent articles, I will address three groups I believe fall into this category: people with mental illness; people convicted of marijuana-related crimes; and juveniles.

Part I: People with Mental Illness

Let me start with a caveat, lest my comment section be filled with vitriolic responses from crime victims, law enforcment officers and others who work to put people in prison when they've victimized another human being: I am the first to condemn the practice of excuse-making in individual cases, and I recognize the legal standards which must be met in order for an insanity defense to be properly applied in individual cases - I am not arguing that any individual should or should not be in prison. Instead, I propose that we look at the issue systemically, and ask (and hopefully address) the obvious questions that arise. I hope you will see how the politicians of the 60's and 70's pulled off what is arguably one of the most devious misdirections of public funds ever perpetrated...

A little history is in order (that whole "facts" thing, you know). In the 60's and 70's a huge human rights movement came to fruition. For years, a fight had been underway to get the public, and therefore legislators, to recognize, condemn, and change the deplorable conditions and inhumane commitment standards in state-run mental institutions. Their concern was well-founded, and change was indeed needed. People with mental retardation, other developmental disabilities and mental illnesses were referred to as "imbeciles", even in supreme court decisions. Eugenics, or the practice of segregating, imprisoning, forcibly sterilizing (and in extreme cases, killing) "imbeciles" was widespread in the US and abroad. Many people think Hitler came up with the idea of purifying the human race, but in fact eugenics began right here in the United States, and it was practiced and openly endorsed by governments and courts all over the country. Then-unknown Hartford Courant reporter Geraldo Rivera risked a great deal to produce and distribute a documentary on the practices of one of the many insititutions that warehoused "undesireables" in horrendous third world conditions, and performed involuntary sterilization procedures on any and all deemed "unfit" to reproduce. The piece rightly received a great deal of attention, and was exactly what activists needed.

The public reluctantly admitted the errors in these ways, and bit by bit, laws were passed and programs initiated to reduce and eliminate these extreme practices. At the same time, professionals and advocates were working tirelessly to alter the public's perception of mental illness. Advances in research, medications and therapy techniques made it possible for mental illness to be properly perceived as a medical condition rather than a spiritual or moral failing, or inherent personal flaw. Across the United States, legislators made impassioned speeches extolling the virtues of community-based treatment, arguing persuasively that larger numbers of people could be more effectively treated with lower cost community-based services. The barbaric practice of locking up people we didn't understand could be stopped!

The public cautiously supported these ideas, and one by one, state-run facilities were closed, and people formerly unnecessarily confined to institutions were released into community programs for treatment. Ever attracted to the newest trends and popular issues, legislators and the public failed to follow through on the common sense requirement that funds previously devoted to keeping institutions open should be used to fund the new community-based programs. Mental health service funds were never kept at pre-deinstitutionalization levels, and cuts in funding rendered the community service system ineffective at best. As a result, many people who needed help were unable to obtain it, leading to substance abuse and other "unacceptable" behaviors, such as disorderly conduct, public intoxication, domestic violence and on occasion, even more serious crimes.

Statistically, people with mental illness are no more prone to violence than anyone else. Unfortunately, untreated mental illness is very often associated with substance abuse - which does have a definite causal relation to minor and serious criminal behavior. With mental health treatment ever more difficult to obtain, those whose untreated mental illness and/or substance abuse led to criminal charges faced mounting obstacles to a normal life - fines, imprisonment and despair were predictably devastating, and needless to say did nothing to alleviate the mental illnesses. Criminal records made employment hard to obtain, and ongoing symptoms made it ever more difficult to maintain employment, relationships and compliance with what little treatment they might obtain. It is not hard to see how millions of people in these circumstances became relegated to lives of poverty, isolation, and often homelessness - and yes, criminal acts. I am all for personal responsibility, but having been through a period of serious clinical depression myself, I have a great deal more empathy for this slippery slope than those who have not experienced similar circumstances. In any event, over the last 40 years, people with mental illness have ended up in worse circumstances than those from which similarly situated people were liberated in the 60's and 70's: they now comprise a huge portion of the jail and prison populations.

Statistics show that the percentage of prisoners with mild or serious mental illnesses has nearly quadrupled since deinstitutionalization in mental health treatment. Underfunded community mental health centers routinely turn people down who ask for help, and those who are able to get an appointment often have to wait months to see a mental health professional. Follow up appointments are of necessity scheduled at huge intervals, and emergency appointments are simply unavailable. People who end up in the emergency rooms of local hospitals often wait there for 24-72 hours or longer before even being screened for treatment. If they do not meet standards for inpatient treatment, they are told to follow up with community mental health. If they meet standards for inpatient treatment, they may have another wait before being sent to one of very few facilities, where the norm is to stabilize the patients with drugs then discharge them with instructions to follow up with community mental health. This "system" accomplishes what, exactly? When people with mental illness cannot get the help they need, they may turn to substance abuse, which often leads to criminal behavior. Joblessness, homelessness and isolation among people with mental illness are very common. That criminal acts somtimes follow is simply logical, though not often outright excusable.

Once in the jail or prison system, treatment is either non-existent or woefully inadequate. Statistics show that prisoners with mental health diagnoses are far more likely to have "good time" credits taken away and/or have their sentences extended for disciplinary matters. They are also statistically much less likely to make parole, not only due to disciplinary issues, but due to inability to find employment and make housing arrangements, both of which are required for early release programs.

Human rights groups such as Protection and Advocacy for People with Disabilities, Inc., the National Alliance for Mental Illness, the Association of Retarded Citizens, and others, have fought diligently to secure adequate mental health treatment in the community and in the prison and jail systems, largely to no avail. While I understand why most law abiding citizens have little sympathy for the needs of convicted criminals, I believe we should take another look at not only the human rights aspects of this situation, but at the root cause of there being so many prisoners in need of serious mental health interventions. We must also look at how and why our prisons became full to bursting with mental health patients, and whether we are willing, as a society, to continue to label this trend as anything other than deplorable neglect borne of political irresponsibility, greed and ignorance.

The bottom line is that the politicians who rode the wave of public support for modern, humane, cost-effective community based treatment utterly abandoned the cause in subsequent budget discussions. Worse, the public allowed it. The press consistently jumped into the fray with irresponsible sensationalist reports of mentally ill persons committing horrendous crimes, leading the public to believe, inadvertently or deliberately, that people with mental illness are violent and need to be locked up. They occasionally reported the reality; that is, that people with mental illness are no more violent than anyone else, but only when it was convenient and played in with the theme of the particular story. The public, ever hungry for the sensational, the appalling, the strange and the bland-but-real desire to believe anything that "distances" them from criminals, ignored the truth in order to almost gleefully engage each other in the fear-mongering that started every time they turned on a news show, read a newspaper or magazine, or took in the "news" on the internet. Ridiculous but rare incidents like the twinkie defense case further entrenched the attitude that mental illness wasn't really real, and that we as a society therefore had no responsibility to fund treatment for it, and every responsibility to see to it that everyone who displayed behavior we didn't approve of was locked up. This attitude has persisted to this day, and is arguably more prevalent than ever. Sounds a lot like eugenics, at least to me. Whether we want to admit it or not, our society has slipped right back into the attitudes that were popular in the dark ages of mental illness "treatment", digressing ever closer to the acceptance of eugenics, regressing far back before the movement of the 60's and 70's that was supposed to be the age of enlightenment on this subject. How sad. How irresponsible. How reversible!

People with mental illness are still shunned; many don't seek treatment due to the stigma, not to mention the cost, as insurance parity has yet to become standard. Community mental health never had the funding that was promised, and what little there was has been steadily eviscerated in favor of funding more popular endeavors, like putting smiley faces on interstate exits, paying lobbyists for government agencies to obtain greater funding, providing lavish salaries and offices to high-ranking public "servants", funding pork-barrel projects that defy all logic and common sense, creating top-heavy bureaucracies that tie themselves up in knots and lose sight of their obectives (DSS, IRS, DMV) and paying irresponsible single mothers to have more children they are neither willing nor able to raise to be productive, law abiding citizens....but I digress.

It is preferable, both in terms of human rights and financially, to pay for community mental health services rather than incarceration of any kind. We must not continue institutionalizing people with mental illness who can be effectively treated in the community, especially in jails and prisons. We must begin to fulfill the promises made when deinstitutionalization removed access to treatment. The politicians pulled a classic bait-and-switch on the public as a whole, and on people with mental illness in particular. This inexcusable tactic, undertaken to free up money for pork barrel projects, has very effectively unravelled all the progress made decades ago, at the personal expense of some of society's most vulnerable citizens and the collective expense of the taxpayers. And it is perpetuated, to the politicians' delight, by the public's fear of crime and general unwillingness to address any problems associated with incarcerated criminals. This is the most effective and devastating political game ever "won." And you and I are paying the price for it.

As a society, we must make responsible judgments, based on facts, which lead to public policies that address the root causes of the problems we seek to resolve. First, we must admit that we have allowed politicians to replace mental institutions with prisons as the warehouses of choice for people with mental illnesses. It is undeniable that we have underfunded community mental health, and that subsequent to deinstitutionalization, the percentage of persons in prison with mental illness has increased disproportionately to the instance of comparable mental illnesses in the community. It takes no creative thinking at all to conclude that there is a causal relationship between the two. As with most situations that overake us as the result of neglect, both intellectual and financial, this problem does not lend itself to a quick solution. We must start with a two-fold commitment, no pun intended. We must insist that legislators listen to professionals who are telling them that prison medical services must be fully funded, and we must insist, ourselves, that legislators fully fund community mental health services. Only when these two issues are resolved will we begin to see this trend begin to slowly reverse.

I wish I had all the answers, but this is a society-wide issue, and it will take a society-wide change in attitudes to address it. Meantime, we must face the fact that we are putting the wrong people in jail....and we must become willing to do something about it. With the current recession, and the current public attitude towards crime and prisons, those working to resolve this issue have a huge battle ahead. Let us hope, for all our sakes, that they are up to the challenge. I wonder, though, dear reader, what you might be willing to do to help? Would you write to your legislators? Volunteer for or donate to an advocacy group? Speak up at the water cooler (or wherever else you happen to be) when people express uninformed opinions contrary to the truth? Stop and think before buying into the latest sensationalist story shoved at you by an ever more irresponsible press? You are a part of the solution. Will you be one who advances it, or one who, by inaction or outright opposition, slows it?
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Check out this link for an interesting timeline of media coverage of disability issues.
Click here for statistics on mental illness in prisons and jails from Bazelon Center fr Mental Health Law.
Click here for the Human Rights Watch article on mental illness in prisons and jails.