When Mental Illness & the Law Collide

Part 1: Law Enforcement & Incarceration

In Mental Illness in the Legal System, I outlined a history and provided an overview of how mental illness has become a regular visitor at each level of the American legal system. I introduced several examples of law-mental illness interactions. In this series, I plan to more thoroughly explore each of these intersections, outlining relevant historical components, complications, positives and negatives, as well as outcomes, where known.

The Mentally Ill and Law Enforcement

Despite what many news stories and some celebrities and politicians have suggested, having a mental illness does not increase one’s risk for violence or criminal conduct. In fact, the mentally ill are more likely to be victims than perpetrators of crime. Nevertheless, law enforcement professionals are often the first to arrive when a person is having a mental health crisis. Historically, law enforcement have not enjoyed a reputation as the most sensitive or helpful when dealing with mental health issues. To be fair, they have not typically been extensively trained to recognize or intervene when mental illness is suspected. Some evidence suggests that law enforcement may hold even more negative views of the mentally ill than the general public [1] [2].

These interactions are often complicated and dangerous for both police and the suspect. As one example, the news media frequently cover stories of police-involved shootings where mental illness is suspected. This has almost certainly resulted in needless conflicts, arrests and, at times, deaths. Fortunately, training programs have recently been implemented in many police departments. These programs attempt to improve understanding of mentally ill suspects, as well as police responses to them in an effort to pursue better outcomes.

When addressing a suspect with mental illness, law enforcement are often required to make dispositional decisions, which include “…do nothing, to resolve a situation informally, to arrest, or to seek other formal resolution, such as psychiatric hospitalization” [3]. The growing number and complexity of encounters has led many police departments to implement crisis intervention teams (CIT), which focus on choosing officers with personality characteristics amenable to working with the mentally ill and training those officers in best practices for the inevitable interactions they will have. One of the primary goals of CIT teams is to divert the mentally ill away from the criminal justice system and toward appropriate, available treatment options. There is a good bounty of evidence suggesting they have been effective [4] [5] [6].

CIT programs appear to increase the knowledge, identification, skill and confidence of the officer in interacting with mentally ill suspects. Additionally, it appears to have reduced the number of arrests and led to more transports to appropriate treatment facilities [5] [6]. The logical extension of these outcomes is fewer criminal charges and incarcerations, ultimately reducing the number of mental health issues attorneys and judges are confronted with in the course of their work.

It is quite likely that law enforcement will continue to have many interactions with the mentally ill. CIT teams have much promise to maximize the chances they will receive the resources they need. However, not all mentally ill suspects are diverted to treatment when they have law enforcement contact. Many are arrested, incarcerated and face the adjudication process despite being mentally ill.

Incarceration of the Mentally Ill

Mental illness in correctional institutions creates a number of challenges that have not historically been in the purview of correctional staff. However, with an increasing population of mentally ill inmates with a diverse set of needs, jail and prison staffs have been forced into demanding new roles [7] [8]. While many small jails do not have the resources to provide the level of care often needed, larger jails and state-run departments of correction may have burgeoning mental health staff, including social workers, psychologists and psychiatrists. Even in settings where mental health staff are available, recognizing and providing adequate treatment for the volume and severity of mental illness can be challenging [9], at times bordering on impossible.

Inmates may come to jail or prison with a preexisting mental illness that requires initial evaluation, treatment or maintenance and in other cases, they may develop mental health problems secondary to incarceration. In both cases, some interventions may be necessary, particularly if the mentally ill inmate is aggressive. These situations often require correctional staff to conduct on-the-fly assessments to determine if the aggression is due to mental illness or the antisocial behavior of a more typical inmate. In many cases, the response may be the same regardless of the cause [9]. Correctional institutions value security, order and structure. When an inmate strays too far outside the norm and threatens one or more of these values, the officers are motivated to return to the safe and predictable status quo by squelching the behavior – even if it is due to a serious mental illness. In these cases, housing the disruptive inmate away from others (in segregation or “the hole”) to minimize the disruption may be preferred.

Equally challenging are the inmates who are ‘quietly mentally ill.’ These inmates may suffer extreme symptoms alone in their cells without acting out behaviorally or notifying staff; nevertheless, they may be just as ill, or even more so, as their aggressive counterparts. What is often different is that they do not attract the attention of correctional staff, who may be consumed with others who are disruptive, aggressive or otherwise compromise security.  

It is not difficult to imagine a scenario where a mentally ill inmate is beyond the skill level of correctional staff. Some state laws provide correctional institutions the ability to transfer a mentally ill offender to a state psychiatric facility where they can be involuntarily hospitalized for a period of time while they are psychiatrically stabilized. In certain situations, the offender may be involuntarily detained pursuant to civil commitment statutes and treated for their mental illness, while simultaneously serving their prison sentence. It is not clear how often correctional institutions use this option to assist in the management and treatment of the severely mentally ill. In some jurisdictions, this option may be relatively unknown, if available at all.

In even more specialized situations, a defendant may be suspected of being incompetent/unfit to stand trial (this concept is discussed in detail in Part 2). Prior to a forensic evaluation and hearing to formally make this determination, the inmate may be acutely ill and present a significant behavioral management problem to the correctional staff. The forensic evaluation process and subsequent transfer to a forensic psychiatric facility (when necessary) often takes months to complete, meaning the jail staff may have to manage the acutely ill and dangerous inmate for a significant period of time. If the inmate is refusing treatment (e.g. medication) to help moderate symptoms and behavioral problems, the odds of a poor outcome for the inmate and/or staff increase.

Furthermore, when an incompetent defendant returns to jail from a forensic facility after having been restored to competency, the jail staff has the additional burden of continuing the recommended treatment in an effort to maintain the now-achieved competence/fitness while the inmate awaits the next hearing. Given the challenges, and at times inadequacies, of correctional mental health care, many defendants find themselves in a repetitive cycle between psychiatric and correctional facilities, returning to jail as competent, then decompensating, only to return to the hospital to be restored again [10].

In 21st century American society, accessing quality mental healthcare is a daunting challenge for many. When a mentally person finds themselves intertwined with law enforcement or the correctional systems, their problems become much more complicated. Furthermore, their mental health may deteriorate and deficiencies may amplify as a result. Both police and correctional staff have made substantive and impressive progress in responding to the quickly expanding mental health needs of the community. Nevertheless, these systems are not intended to be the endpoint for the severely mentally ill; thus, more progress is needed to assure those in need of intensive mental health services receive them in a proper setting.

Check back soon for Part 2: Competence/Fitness to Stand Trial

1 Markowitz, F. (2011). Mental Illness, crime, and violence: Risk, context, and social control. Aggression and Violent Behavior, 16(1), 36-44.

2 Watson, AC, et al. (2004). Police Responses to Person with Mental Illness: Does the Label Matter? Journal of the American Academy of Psychiatry and the Law, 32(4), 378-385.

3 Watson, AC, et al. (2004). Police Officer’s Attitudes Toward and Decision About Persons with Mental Illness. Psychiatric Services, 55(1), 49-53.

4 Watson, AC, et al. (2008). Improving Police Response to Persons with Mental Illness: A Multi-Level Conceptualization of CIT. International Journal of Law and Psychiatry, 31(4), 359.

5 Bonfine, N., et al. (2014). Police Officer Perceptions of the Impact of Crisis Intervention Team (CIT) programs, in Police Responses to Persons with a Mental Illness: International Perspectives. International Journal of Law and Psychiatry 37(4), 341-350.

6 Ellis, HA. (2014). Effects of a Crisis Intervention Team (CIT) Training Program Upon Police Officers Before and After Crisis Intervention Team training. Archives of Psychiatric Nursing. 28(1), 10-16.

7 Torrey, EF. (1995). Jails and Prisons-America’s New Mental Hospitals. American Journal of Public Health, 85(12), 1611-1613.

8 McLearen, AM & Ryba, NL (2003). Identifying Severely Mentally Ill Inmates: Can Small Jails Comply with Detection Standards? Journal of Offender Rehabilitation, 37(1), 25-40.

9 Lewis, CF (2000) Successfully Treating Aggression in Mentally Ill Prison Inmates. Psychiatric Quarterly, 71(4), 331-343.

10 Wilkinson Smith, M. (2018). Restore, Revert, Repeat: Examining the Decompensation Cycle and the Due Process Limitations of the Treatment of Incompetent Defendants. Vanderbilt Law Review, 71(1), 319-356.

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