The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
February 21, 2015
February 5, 2020

In our series "Where Mental Health and Criminal Justice Collide," we have explored several aspects of the intersection of law enforcement and mental health issues. Part one dealt with violent altercations between police and the mentally ill. Part two discussed the often co-linked issues of mental illness and substance abuse. Part three involved the heavy burden often placed on law enforcement in dealing with a problem would be better handled by mental health professionals. In our fourth and final article about the relationship between the mental health system and the criminal justice system, we will look at the problem if mental health issues in prison.

Before we look at the prevalence of mental illness in American prisons, let us notice how our local jails are being utilized not as facilities to incarcerate dangerous criminals pending trial, but are used to warehouse the mentally ill and those too poor to post bond. A Vera Institute of Justice report issued earlier this month found some startling discoveries about incarceration in county and city jails. In "incarceration’s Front Door: The Misuse of Jails in America," researchers writes that there are approximately 731,000 people in some 3,000 jails across the country on any given day. Up to 75 percent of those incarcerated in American jails are being held for genonviolent crimes, including traffic offenses, public order offenses (disturbing the peace, public intoxication), property crimes, and drug offenses. Three out of five are not serving a jail sentence for conviction, but rather are in jail awaiting trial. While some of these are considered to be dangerous or flight risks and held without bond, most simply do not have the resources to bail out of jail. A 2004 SAMHSA report entitled "Working with People with Mental Illness Involved in the Criminal Justice System" gives some statistics that provide insight into the findings of the Vera Institute:

  • Individuals exhibiting symptoms of mental disorder are more likely to be arrested than suspects who do not display symptoms of mental illness.
  • Many of those with mental illness do not have the resources or support system necessary to post bail, and because of their illnesses, they are often denied personal recognizance bond.
  • Individuals with mental illness are often charged with more serious crimes than people without mental health issues arrested for similar acts or behaviors.
  • People with mental illness spend two to five times longer in jail that those without mental illness.

In 2000, SAMHSA Director Bernard S. Arons testified that about 700,000 people with "active serious mental illness" are admitted to U.S. jails each year. He cites Bureau of Justice Statistics' findings that 16 percent of the prison population has active serious mental illness--a rate three times greater than the general population. Since then, rates of incarceration have increased dramatically. A 2007 report by the Council of State Governments Justice Center estimated that more than 2 million bookings of people with serious mental illness occur every year. So what can be done about this? How do we keep those with mental illness from being warehoused in correctional facilities and instead provide them with mental health treatment that allows them to remain in the community, becoming active and productive members of society? SAMHSA suggests pre-booking jail diversion programs, which allow mental health assessment prior to booking a person into jail. This could prevent a person with mental illness from being jailed in the first place, and could allow appropriate mental health treatment. Most mental health diversion programs are post-booking, in which a person is already arrested and jailed for a crime. They have already become a part of the criminal justice system, which may not be appropriate. Mental health treatment at this point is often court-ordered, which can cause a person to feel as if treatment is punishment, rather than an opportunity for help. Until significant changes are made in mental health care funding, law enforcement training, and criminal justice provisions for those with mental illness charged or convicted of crimes, families of those with mental illness must have an understanding of the criminal justice system. The National Alliance on Mental Illness (NAMI) provides resources and insight for Dealing with the Criminal Justice System. It is important to find a defense attorney who understands the role mental health issues may have played in an "offense," and who can work for treatment over punishment in conviction or deferred sentencing.


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