This Is Crazy or, How America Criminalized Mental Illness

I took this really amazing seminar on International & Foregin Legal Research. (Shoutout to Prof. Ismat and my colleagues.)

I created an annotated bibliography on the Criminalization of Mental Illness (available here) of 25 sources that I hope to return to as a disability rights advocate when advocating for cases/policy changes involving mental illness.

I also made a class syllabus (over here) in case any of my SJU Law mentors or colleagues want to teach a seminar about mental illness, disability, and the law someday.

Since I can’t take part two of the course next semester, I am going to outline the thoughts I collected from all that research below.


The spark notes summary here is this – the mentally ill deserve treatment, not convictions. The mentally ill deserve treatment, not convictions. There is no morally sound retributive argument to be made for the necessity of locking up someone with untreated mental illness, because the response is not proportional to the “crime” – if they are acting due to an untreated, severe mental illness, they should not be punished exactly like someone who is in complete, intentional control of their actions. Most mentally ill people are caged for things like petty theft or disturbing the peace, offenses directly tied to their untreated mental illness. Someone suffering from severe, untreated mental illness can not “learn from their mistakes” until they been given proper treatment and have full control over their own selves through treatment. Punishing someones who’s actions stem from untreated mental illness the same way as someone who, in full control of themselves, actively decided to break the law, is an ethically dubious position at best, and morally unjustifiable when taken to the extreme.

Further, because of the lack of access to mental healthcare and treatments in places like Rikers Island, those with mental illness are doubly punished, being forced to bear symptoms and suffer from their mental illness in a way other inmates do not. The goal of protecting the public can be better achieved through civil commitment procedures, which allows for not only keeping someone out of the public for a certain period, but also generally grants them more tools through mental healthcare to no longer be a threat to the public, without having to be treated as a criminal in a cage. Similarly, the current criminal punishment system cannot effectively rehabilitate anyone from mental illness, due to the very different needs, causes, and treatment needed for both various mental illnesses but also for individual cases with differing levels of seriousness.

What there is, however, is an urgent, unmet need for mental healthcare beyond walls and cages.

Mental Illness, Deinstitutionalization, “Crip” Theory, and the Prison Industrial Complex

There is a Marxist critique by scholars like Marta Russell arguing how “disablement” and “the disabled body” are a product of capitalism, because the rise of mechanized factory-based labor, industrialization and automatization lead to the “othering” of bodies that couldn’t fit into the system. Under this idea, conceptions of non-normative bodies/minds/ability was a creation of industrialization, wherein bodies that couldn’t fit into the factory were unable, were dis-abled. This threads into modern times, wherein disabled bodies could be seen as profit centers for institutions (a disabled body in their facility grants them X number of medicaid/medicare/insurance dollars) leading to an industry built on the ver same bodies earlier capitalist structures had cast off as disabled.

Taking a more historical approach – the turn of the century began a system of “compassionate” folks building out state hospitals for the mentally ill, which started out with good intentions (maybe, probably) but eventually turned into warehouses for human beings, somewhere to wall off folks that couldn’t fit into the “normal” social structure.

Eventually however, many facilities were shut down in a moment of deinstitutionalization.

The factors discussed by most authors as having lead to deinstitutionalization of the mentally ill are:

1) exposure by the public to the poor condition of many state facilities (See; the horror of Willowbrook, if you can stomach it)

2) cost-cutting measures by state and federal governments (state facilities $$$)

3) the creation of Medicaid, Social Security, and related policy changes

4) the advent of psychatric medications for the mentally ill

All of of the factors above, taken with releasing patients into a failing or failed community-care model resulted in high incarceration rates for the mentally ill.

There is disagreement by scholars of which factor(s) were most important. There are also some major differences in approach of those studying Disability Rights from the public health, police, and psychatric fields and those writing under the label of “Crip” or engaging with “Crip theory” within academia. “Crip” here refers to “a politicized disability identity and disability as an analytic.” (Source) Crip Theory within Disability Studies, which academics and activists have built, somewhat mirrors how labels of Queer and Queer theory developed within English Departments and literary academia.

But, plot twist, while a shift for institutionalization to community-based care sounds good, for reasons ranging from social stigma to my ~favorite~ fiscal conservatism, community care models of treating disability where either short lived, or didn’t happen at all. With no lasting infrastructure $$$ the community-based care model of assisting the mentally ill failed spectacularly in the US.

Okay so then we are in the 1970’s. Legal decision Estelle v. Gamble (1976) and others made it clear that prisoners can not be denied basic healthcare, although medical malpractice did not constitute “cruel and unusual punishment” under the eighth amendment. This fact + the lack of lasting infrastructure for community care + social stigmas around mental illness = to a high rate of homelessness within the mentally ill population. The data shows increased incarceration of the mentally ill since the 1970’s throughout the 1990’s. Further, Helling v. McKinney (1993) essentially bolstered the rights of prisoners to receive medical care. Most of the “crimes” committed by this population are directly tied to their mental illness, things like petty theft or disturbing the peace.

Help Mental Health Awareness Month GIF - Help MentalHealthAwarenessMonth MentalHealth GIFs

So basically, we have replaced asylums and institutions with jails and prisons. It’s not Willowbrook, but it’s still not much better in terms of long-term treatment and physical conditions. As Bandy X. Lee, a psychiatrist at Yale, explained “the chief problem is that mental health care and criminal justice start with different philosophies, so the ethos itself of the criminal justice approach is incompatible with therapeutic means and methods.” (Source here, for the law school gunners and gunners-at-heart among us, see pg. 107)

Solutions and other problems

One solution the scholars in my annotated bibliography liked to tout how properly funding community based care would overall be more effective, cost the state less, and reduce recidivism and the “mercy bookings” you start to see in states with strong mental health initiatives/programs/operationally separate and specialized mental hospital units within the prison.

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It can also be argued that for-profit private prisons, and prison-focused contractors, have a stake in the continued criminalization of mental illness because more caged bodies = profit. But instead of building new and improved facilities for prisoners with mental illness, scholars, certain lawyers, and this caffeinated 3L argue that it would make more sense to invest in community-based care and other, more effective treatment options unburdened by the limitations brought by bringing the care behind bars.

The Personal is Political

This is personal for me. I have a mental illness, bipolar disorder, which I wrote about here.

Art by Stephen Powers –

I have been told my various providers that I have a “severe” case of bipolar disorder. For those who are less familiar with the mental illness, here is my bipolar 101 post. Early in my treatment, my race came into play in a police interaction while trying to get myself back home during my first severe manic episode in public. That is just one example of several factors effecting the lived reality of bipolar disorder. Others include, the social supports of my family and friends, my middle class upbringing allowing me access to mental healthcare, and the institutional support I received in college, grad school, and law school. If it weren’t for these factors, the severity of my bipolar disorder could have easily escalated into a situation like the over 40% of folks currently incarcerated with (and often primarily due to) their mental illness. (Source for stats pg. 99) If some key factors in my life, many of which I was born into or accessed due to privileges — if those factors had been different, I could easily be on the other side of the bars my future clients may be meeting me through.

We need to create structural change and build a healthcare system that doesn’t require a prison sentence to have a right to mental healthcare, access to psychiatrists, and ability to purse long-term treatment through stable, uninterrupted access to medications.

I hope to continue this research next semester and build out a scholarly article around this issue.

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