Criminalization of the Mentally Ill
Virginia Aldige Hiday

A selection from:

A Handbook for the Study of Mental Health: Social Contexts, Theories, and Systems Edited by ALLAN V. HORWITZ and TERESA L. SCHEID copyright Cambridge University Press 1999

Police Practices

Police may resort to arrest even when treatment is clearly needed. Teplin (1984a,b) found that Chicago police arrested mentally ill persons when treatment was preferable in cases of deviant behavior that were so public and visible as to exceed the limits of tolerance, and when deviant behavior was likely to continue, proliferate, and require later police intervention if the person were not removed from the site. Police also resorted to arrest when treatment facilities refused to accept a mentally disordered individual. Psychiatric staff, in attempting to control their work environment, commonly refuse persons with criminal charges or criminal records and persons with substance abuse comorbidity. Substance abuse facility staff likewise refuse substance abusers with comorbid mental illness, leaving police with little choice but arrest (Teplin 1984b, 1985). Ironically, police sometimes resort to arrest when psychiatric emergency staff turn down mentally disordered persons who are neither sick enough nor dangerous enough to meet civil commitment criteria for involuntary hospitalization (Steadman et al.1986).

Mentally Ill Persons Arrested

Rather than criminalization of the mentally ill, higher arrest rates of former mental patients may result from another trend, the medicalization of deviance, in particular the trend to hospitalize substance abusers and persons with antisocial personality (ASP) (Kittrie 1971; Steadman et al.1978; Stone 1975).

One group of mentally ill persons that appears to have a high rate of arrests is the homeless mentally ill (Belcher 1988; Crystal, Ladner, & Towber 1986; Fischer 1988; Martell, Rosner, & Harmon 1995; Morse & Calsyn 1986). Although the public has been greatly concerned with the criminal behavior of homeless mentally ill persons, little empirical research has been directed to the criminalization of the mentally ill via homelessness. Two studies of temporary housing and shelter residents in New York and St. Louis reported that almost half of mentally disordered persons (broadly defined) had been arrested (Morse & Calsyn 1986) or jailed (Crystal et al. 1986); however, because a broad definition of mental illness can encompass substance abuse and situational depression and anxiety, one must be careful in generalizing these results to persons with severe mental illness. One in-depth study of persons with major mental disorders who became homeless shortly after hospital discharge to a Midwestern city found that 64% were arrested (Belcher 1988). Those arrested who self-medicated with alcohol and street drugs (rather than taking their prescribed medication) became increasingly impaired in cognitive and social functioning, wandered aimlessly, appeared psychotic much of the time, and manifested bizarre and often threatening behaviors in public places (Belcher 1988).

Criminality of the Mentally Ill

The second belief linking mental illness and the criminal justice system is that mentally ill persons are dangerous and likely to commit crimes, especially violent crimes. Going back at least to the Greco-Roman period, the public has believed that a disproportionate number of the mentally ill were unpredictable and dangerous (Monahan 1992; Rosen 1968). This belief is reinforced today in fiction and human interest news stories (Gerbner et al.1981; Steadman & Cocozza 1978). The frenzied madman, the "psycho" who is driven to harm others, and the delusional paranoid who unexpectedly and randomly kills are regular grist for television and motion picture studios as well as features for the news media (Wahl 1995).

Unlike criminalization (which holds society responsible for processing the mentally ill through the criminal justice system instead of treating them more humanely with mental health and social services), the criminality thesis blames mental illness for behavior that the criminal justice system must control. Indeed, the legal verdict of NGRI is premised on the understanding that mental illness can make an individual insane -- that is, it can override an individual's ability to control criminal behavior. To evaluate the criminality of the mentally ill, researchers have looked to arrest rates and incarceration surveys and have examined data on dangerous behavior that is not punished or treated by the criminal justice system.

Arrest Data

Some observers have cited the previously discussed higher arrest and incarceration rates of mentally disordered persons as evidence supporting the criminality (instead of criminalization) of the mentally ill (Hodgins 1995; Rabkin 1979; Sosowsky 1980). If the criminality concept is correct -- that is, if mentally ill persons are more dangerous -- then they should be arrested predominantly for violent behavior that threatens or brings physical harm to others. However, most studies find the distribution of offenses for mental patients to be similar to that of the general population: most arrests are for misdemeanors (83% for mental patients, 75% for the general population) rather than felonies (Schuerman & Kobrin 1984); most are for less serious offenses (75% for mental patients, 84% for general population) rather than for the more serious FBI "index" crimes (Hiday 1992b). A minority of offenses of mentally ill persons are violent; few (either absolutely or proportionately) are arrested for the violent crimes the public most fears: murder, rape, aggravated assault, and arson (Bloom, Williams, & Bigelow 1992; Feder 1991; Harry & Steadman 1988; Hiday 1991, 1992b; Holcomb & Ahr 1988; Teplin 1994). A Milwaukee study of persons artested for deadly and dangerous crimes against others found no support for the stereotypical madman violently out of control (Steury & Choinski 1995). Even homeless, severely mentally ill persons, whose homelessness puts them most at risk of arrest, are arrested predominantly for nonviolent crimes (Belcher 1988; Fischer 1988). Remember, with the same distribution of offenses as the general population, mentally ill persons will have higher arrest rates for violent crime because of their higher overall arrest rates. Thus, several studies report that mental patients are more likely to be arrested for violent offenses than nonpatients in the same community (Hodgins 1992, 1993; Link, Andrews, & Cullen 1992).

In order to address the question of the criminality of the mentally ill, we must be able to ascertain whether mental illness causes the violent crime or whether coincidental factors are causal. Robins (1993) reported that the association between crime and major mental illness in the ECA data completely disappeared when controls were placed for age, gender, ASP adult symptoms, childhood conduct disorder symptoms (generally considered integral to ASP diagnosis), and substance abuse. She concluded that the association of major mental illness with crime is not direct but occurs when severe mental illness is secondary to ASP and substance abuse. Recidivism studies that compare disordered to nondisordered offenders' arrests after imprisonment also fail to find severe mental illness to be the causal factor in crime and violence. Among Teplin's (1990a) jail detainees, severe mental illness did not predict the probability of arrest or the number of arrests for violent crime over a three-year or a six-year postrelease period:(Teplin, Abram, & McClelland 1994; Teplin, McClelland, & Abram 1993). Among a sample of offenders admitted to a maximum security forensic institution for competency assessment, four fifths of whom had at least one violent offense, schizophrenia was negatively associated with violent recidivism over an eight-year mean risk period (Rice & Harris 1995). Psychopathy and alcohol abuse were the factors that placed this sample of offenders at high risk for violent recidivism. In a study.examining only schizophrenic defendants who were evaluated in.a forensic psychiatric hospital, Rice and Harris (1992) found the predictors of both general and violent recidivism to be the same as those that predict recidivism for nondisordered offenders: prior offenses and aggressive behavior, age, alcohol abuse, and psychopathy (Harris, Rice, & Cormier 1991).

Unofficial Dangerous Behavior

Studies of legal records for involuntary hospitalization and of medical records of both voluntary and involuntary hospital admissions indicate that mental patients often are hospitalized because of dangerous behavior. Depending on the definition used, rates of violence toward others vary. Definitions restricted to threats of physical harm and physical assaults yield lower rates than definitions including loss of impulse control, hostile verbalizations, and thoughts of harming others physically (Hiday 1988). By the more restrictive definition of physical assault, studies report between 10% and 40% of persons admitted to mental hospitals are violent in the community in the weeks immediately prior to hospitalization (Monahan 1992). However, one must use caution in measuring violence mentioned in admission records, because physicians and families may use allegations of dangerousness to obtain admission for a person they think is in need of hospital treatment, given that mental hospitalization is now often limited to those who are dangerous (Hiday 1988; Miller 1987). As a result, court hearings often find that allegations of violence in commitment petitions and medical records cannot be substantiated (Hiday & Markell 1981; Warren 1977, 1982).

Recent epidemiological studies, which avoid the aforementioned problems, have shown that most mentally ill are not violent, that only a small minority with severe mental illness commit any violent act in a year's time, but that their low rate is higher than what is found among those with no mental illness (Link et al.1992; Link & Stueve 1994; Swanson 1994; Swanson et al. 1990). These findings held with controls for age, gender, and socioeconomic status. Further analysis in one sample showed that substance abuse or dependence comorbidity greatly raised the violence rate above that for severe mental illness alone (Swanson 1994; Swanson et al.1990). In the other sample, psychotic symptoms -- especially those that produce feelings of personal threat or involve intrusion of thoughts that can override self-control -- accounted for all violence differences with the nondisordered (Link et al.1992; Link & Stueve 1994). Three other studies also support the finding that active symptoms of psychosis are predictive of violent behavior (McNiel & Binder 1994; Mulvey et al. 1996; Swanson et al. 1996). But it must be emphasized that, although these findings are significant, only a small proportion of persons with severe mental illness and active psychotic symptoms become violent. Traits that are far more predictive of violence than mental illness include being single, a young adult, male, of low socioeconomic status, and a substance abuser (Hiday 1995; Link et al.1992; Monahan 1992).

The Mentally Ill in the Criminal Justice System

We have seen that the mentally ill are more likely to be detected when they commit an offense and more likely to be arrested during encounters with police than are persons without mental disorders. Are they also differentially handled once they enter the criminal justice system?

Based on our society's moral values, legal advocacy system, and presumptions about voluntary behavior, the law provides for different processing when a defendant's mental status impairs his or her capacity to meet the assumptions underlying legal procedures. The law holds that, to be found guilty of a crime and punished for it, a person must be blameworthy - that is, able to choose rationally to commit the offense.

The public's concern about "coddling" and subsequent release of NGRI offenders into the community seems to be unwarranted. ... Although results are mixed across jurisdictions and time as to whether NGRI acquittees serve longer confinements than comparable offenders (Sales & Hafemeister 1984; Silver 1995), unsuccessful NGRI defendants have been found to have longer detention times than convicted felons who did not raise the insanity defense (Braff, Arvinites, & Steadman 1983).

Although the public and the law give much attention to incompetent and insanity defendants, only a small proportion of offenders with major mental illness are evaluated for IST and an even smaller proportion raise the insanity defense. Most mentally ill offenders go undetected during pretrial and adjudication stages and proceed through conviction to imprisonment (Freeman & Roesch 1989; Marques et al.1993; Teplin l990b; Wack 1993). These legally "fit and sane" mentally ill detainees and prison inmates constitute a minority who serve longer incarceration times than nonmentally ill offenders, require significant management attention by correctional authorities (Kropp et al. 1989), and need mental health services (Dvoskin & Steadman 1989). They are more likely to be held in custody awaiting trial because of denial of bail, and this "dead time" commonly exceeds the length of sentence ordered for the substantive offense (Freeman & Roesch 1989). Once imprisoned, they are more likely to be denied parole and to serve a greater proportion of their maximum sentences, in large part because parole boards find few community programs willing to service and supervise offenders with mental illness (Feder 1994; Porporino & Motiuk 1995). Community agencies frequently refuse to take mental patients with criminal records into their programs, causing mentally ill offenders to be detained longer (once imprisoned) than nondisordered offenders (Feder 1994; Porporino & Motiuk 1995).

Diversion

Some mentally ill offenders are never incarcerated or are held only a short time before diversion out of the legal system. Pretrial diversion programs began during the 1960s when minor cases increasingly clogged courts, and popular rehabilitative and therapeutic philosophies encouraged their use (Kittrie 1971; LaFond & Durham 1992; Roesch & Corrado 1983; Roesch et al.1995). Initially, courts relied on informal arrangements with other community agencies, but they soon established many formal diversion programs to turn minor offenders into law-abiding citizens (Roesch et al. 1995).

Diversion programs are also used for mentally ill offenders to prevent disruption in the antitherapeutic, crowded, noisy cell blocks of jails (Kropp et al.1989; Steadman et al.1989,1995). Often, the diversion is ad hoc and passive rather than programmatic; that is, court officers merely drop charges and dismiss a case when they learn that the mental health system is treating the defendant's mental illness (Hiday 1991; McFarland et al.1989; Steadman et al.1989). Formal diversion programs, run mostly by the larger jails, consist of: initial screening of all detainees; evaluation of possible cases by mental health professionals; negotiation with court officers and community mental health providers to agree on a treatment or service instead of prosecution, or as a condition of reduction in charges; and, finally, referral to the treatment or service itself for residential placement, outpatient treatment, and case management (Steadman et al. 1995). Unfortunately, few of the formal programs have specific follow-up procedures once initial placements are made.

Community Tenure and Management

When mentally ill inmates are released from imprisonment or from forensic commitment to a psychiatric facility, mental health treatment is often a condition of probation or parole. But mental health services seldom exist for severely disordered persons with antisocial and substance abusing behaviors, and too often mental health practitioners do not want to engage such persons with criminal records (Draine & Solomon 1992; Freeman & Roesch 1989; McFarland et al.1989; McMain et al.1989). The lack of services for mentally ill offenders in the community and their depressing and unstable living situations -- along with their comorbidities -- lead to a strong likelihood of re-arrest, ranging from 24% to 56% (Bieber et al. 1988; Corrado, Doherty, & Glackman 1989; Draine et al. 1994). However, they are neither more criminal nor more violent than released nondisordered offenders (Feder 1991; Teplin et al. 1993, 1994). Mentally ill persons are also likely to be rehospitalized in psychiatric institutions following criminal justice release. The extensive follow-up study of the Metropolitan Toronto Forensic Service reported that the overwhelming majority of patients have repetitive cycles of institutionalization in both hospitals and prisons (McMain et al.1989; Menzies et al.1994).

To break the cycles of institutionalization and to protect society from both feared and actual violent behavior, some observers have called for an assertive case management model for this population (Draine & Soloman 1994; Dvoskin & Steadman 1994). Assertive case management, which has successfully aided community adjustment of chronically mentally ill patients discharged from mental hospitals, uses case management teams to work intensively with individual clients in obtaining services, resources, and social support such as medication, therapy, housing, and financial assistance (Stein & Test 1985). For mentally ill offenders, establishment of a therapeutic relationship along with assessment and planning begin with the inmate in the prison or forensic unit during the month before discharge. Thereafter, most case management occurs out of the office on the streets and is available after normal work hours, when these clients are likely to get in trouble. Careful monitoring is employed; probation and parole officers become treatment allies, and case management continues into the criminal justice system when a client is jailed (Dvoskin & Steadman 1994; Steadman et al. 1989, 1995). Only two studies have evaluated assertive case management programs with mentally disordered offenders. Both offer preliminary support for its usefulness. The Vancouver program reported that clients had more community time before reconviction (271 vs. 120 days) and fewer days in correctional facilities (80 vs. 214 days) than a comparison group of released mentally disordered offenders (Wilson, Tien, & Eaves 1995). Dvoskin and Steadman (1994) reported that 75% of mentally ill offenders in a Texas program had no arrests after one year of program entry, 92% did not return to state prison, and 80% of those on parole had no parole violations.

Summary

There is no doubt that the criminal justice system deals with a significant number of mentally ill persons on the street, and that it processes and holds a significant number in its correctional and forensic facilities. But whether there has been a criminalization of the mentally ill since deinstitutionalization became public policy cannot be answered definitively because necessary longitudinal data do not exist. Whether mentally ill persons are dangerous and likely to commit crimes -- that is, whether mental illness causes criminality -- remains uncertain.

My reading of the literature leads me to hypothesize that there are three subgroups of persons with severe mental illness who come into contact with the criminal justice system for violating laws. One group commits only misdemeanor offenses, some of which (e.g., disturbing the peace or loitering) would not lead to arrests of nondisordered offenders. Others in this group commit survival behaviors such as shoplifting and failure to pay for restaurant meals (Steadman et al. 1995; Teplin 1984b; Torrey 1995). This group violates the law and becomes criminal not because their mental illness forces them to do so but rather because their social background and their mental illness leave them poor and marginal, and because they do not get the necessary care and services they need in order to survive in the community without getting into trouble. For this group, the American Bar Association (1989) recommends diversion to mental health, not arrest. Prior to deinstitutionalization, this group would have been hospitalized for much of their adult lives and not at risk for criminal offending and arrest.

The second group with severe mental illness who come into contact with the criminal justice system have accompanying character disorders and abuse alcohol and drugs. They are aggressive, often threatening or intimidating, and are likely to have a history of violent acts (Belcher 1988; Corrado et al. 1989; Draine et al. 1994; Lamb et al. 1995). As with the first group, they have few resources and are extremely needy of food, clothing, shelter, direction, and protection. Many of them become homeless. Some fall between the cracks of mental health and substance abuse systems, but others are frequent and demanding users of multiple community agencies such as hospitals, "detox" facilities, emergency shelters, welfare, and community mental health centers. Often their abusive and uncooperative behavior (plus lack of agency coordination and concerted action) deprive them of service benefits. They have high rates of criminal offenses, arrests, and incarceration, which are often for violent behavior (Corrado et al. 1989; Martell et al. 1995). This group is most visible and disturbing to the public. However, their criminal and violent behavior seems to be driven by their character disorders, substance abuse, and desperate situations, and not by mental illness.

Finally, there seems to be a much smaller subgroup consisting of severely mentally ill persons who fit the stereotypical image of the madman out of control. Delusions and hallucinations drive them to criminally violent behaviors. This very small group is the one that receives the most media and fictional attention. These three groups are different -- both from each other and from the larger population of mentally ill persons who are not arrested and incarcerated. It is thus incorrect to generalize from their behavior to all persons with major mental illness, because they are not representative of that population.

All three of these groups tend to live in impoverished communities and within social environments that have substantially deteriorated in the late twentieth century, making it more difficult for persons with major mental illness to survive outside of institutions. Many individuals in these groups come from broken families and disorganized communities that are unable to give desperately needed support and care. In addition, the high prevalence of drugs, alcohol, and violence entrap these very vulnerable persons in greater pathology. Mental health and social welfare systems try to ameliorate the effects of such deleterious social conditions, but the criminal justice system is often left to pick up the pieces when these other systems fail.

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