A Growing Problem in the US Criminal Justice System - Essay Example

?Mental Incompetency: A Growing Problem in the US criminal justice system “On any given day, at least 284,000 schizophrenic and manic depressive individuals are incarcerated, and 547,800 are on probation.  We have unfortunately come to accept incarceration and homelessness as part of life for the most vulnerable population among us" (Mahoney, as cited in Human Rights Watch, 2003, para. 2). The foregoing statement from Montana State Prison warden Michael Mahoney depicts the deplorable conditions regarding the growing problem of mental incompetency in American correctional facilities. This, however, brings to the fore the inevitable truth that the US courts are somehow overwhelmed by a swarm of offenders suffering from mental incompetency and how justice is dispensed in such special circumstances. This paper will attempt to scrutinize mental incompetency and how the American justice system has responded to address the issue. Background It was during the early nineteenth century when the first public uproar regarding the practice of incarcerating offenders suffering from one or more forms of mental illness. The advocacy was spearheaded by Louis Dwight, a Congregationalist minister from Massachusetts who visited jails to offer Bibles to prisoners was disturbed with his discovery that mentally ill offenders are imprisoned just like any other criminal. The state legislature took action by carrying out an investigation. In 1827, cognizant of the substance of Dwight’s cause, the legislature of Massachusetts recommended the outlawing of incarcerating mentally ill offenders and transferring of those already in jails to hospitals. Establishment of the State Lunatic Asylum with a 120-bed capacity at Worcester followed shortly (Torrey, Kennard, Eslinger, Lamb & Pavle, 2010). Legislation has not, however, completely improved the plight of mentally ill offenders. This necessitated another advocacy, this time by Dorothea Dix, who earned her place in history as a well-renowned psychiatric reformer. Dix documented the mistreatment of mentally ill offenders she observed in jails in Massachusetts from 1841-1842 (Torrey, et al., 2010). Dix presented her findings to the state legislature in 1843 with the following lines immortalized in the annals of prison reform: “Men of Massachusetts, I beg, I implore, I demand pity and protection … Become the benefactors of your race, the just guardians of the solemn rights you hold in trust. Raise up the fallen; succor the desolate; restore the outcast; defend the helpless” (Dix, 1843, as cited in Head & Wolcott, 2010, p. 77; Torrey, et al., 2010, p. 14). Efforts for the transfer of mentally ill persons from jails / prisons to mental hospitals during Dix and her colleagues’ time may be considered successful by all measures. The 1880 census of mentally ill persons recorded 40,942 mentally ill offenders in hospitals and mental asylums, and only 397 in jails and prison or less than 1 % of the total jail and prison population. Studies conducted during the late 18th century and early 18th century also revealed a low prevalence of mentally ill offenders in jail (Torrey, et al., 2010, p. 14). In a related development, Lionel Penrose examined the relationship between mental illness and criminality among Europeans. Penrose illustrated an inverse correlation between the populations of prisons and psychiatric hospitals and called it as the balloon theory where prison population of mentally ill offenders rises when the mental hospital population falls, and vice versa (Erickson & Erickson, 2008; Torrey, et al., 2010). Penrose published his findings in 1939. He was actually clueless that the US was then planning to performed a grand social experiment which will put his theory to test (Torrey, et al., 2010). In 1956, the constitutionality of 18 U.S.C. §§ 4244 – 4248 was upheld in the case of Greenwood v. United States. The aforementioned sections stipulate either temporary or permanent commitment of federal prisoners who are mentally ill. The provisions established a protocol for evaluation of mental incompetency and authorize commitment of said prisoners until sanity is restored or until the condition has improved such that this prisoner will not pose any risk to prison officers, property and other interest of the US (American Bar Association, 1956). In the Court’s decision to sustain the constitutionality of §§ 4244 – 4248, the uncertainty of the diagnosis and the tentativeness of the professional judgment in mental cases were factored into the picture. However, the Court asserted that even if there is very minute probability of recovery, the federal power to commit the prisoner was not defeated (American Bar Association, 1956). It was assumed in this regard that the state will commit Greenwood to a facility which can offer therapeutic programs for a mentally ill offender. Exactly two decades after the Greenwood case was resolved, a review of treatment of incarcerated / committed offenders with mental disorders came up with the following generalization: “Corrections do not correct, reformatories do not reform. No matter what kind of program we institute, recidivism remains high. We are aware at the present time that we need to improve the caliber not only of programs but of research tools used to investigate them. There is a growing consciousness of these needs. At the same time programming in institutions does change the quality of life. There is less impersonality and depersonalization, and morale seems to be higher with an active program. What these factors have to do with recidivism has yet to be determined” (Maier, 1976, as cited in Maier & Fulton, 2000). As documented in Erickson and Erickson (2008), George Palermo and his team of researchers extensively analyzed prison and psychiatric facility data between 1904 and 1987 and found Penrose’s balloon theory valid. Findings of the Palermo, et al. study demonstrated that “the number of the mentally ill in American jails and prisons support the thesis of progressive trans-institutionalization …jails have become a repository of pseudo-offenders – the mentally ill” (as cited in Erickson & Erikson, 2008, p. 45). More than three decades later after Maier’s eye-opening generalization in 1976, it seems that conditions have not changed significantly. In the Harris County Jail, for example, 2,400 of the 10,000 inmates take psychotropic medication. This jail is known to be the largest mental institution in Texas, yet only 108 beds are available for the severely mentally. Budget cuts are being pinpointed as the culprit for the seeming inability of government facilities, particularly community-based health services to address mental health problems. Ironically, the ultimate solution to the problem was to put offenders to jail even if they are suffering from one or more forms of mental illness (Grissom, 2011). As the executive director of health services at Harris County Sheriff’s Office declared, “We can’t not put people in jail” (Seale, as cited in Grisso, 2011). In a study of facilities in five American states Maier and Fulton (2000) found that system factors influence progress in the treatment of prisoners with mental disorders. The critical nature of such system issues dictate the significance of understanding the criminal justice system and the usually unspoken assumptions which make up criminal justice theory: “innocent until proven guilty … competent unless shown to be incompetent … sane unless proven to be insane … and responsible unless proven to be not responsible” (Maier & Fulton, 2000, pp. 130-131). Mental Incompetency Parry and Drogin (2007) defined incompetency as a “legal construct for determining whether a person is mentally capable of carrying out a duty, exercising a privilege, receiving a benefit, or participating in the judicial process” (p. 7). Incompetency is an integral component of both criminal law and civil law, although legally this construct varies in terms of type, the applicable jurisdiction and the nature of the proceeding. As to type, mental competency is evaluated in order for a defendant to stand trial, to refuse medication, or to execute a will or contract. Meanwhile, as to nature of proceeding, mental incompetency may be invoked in a civil, criminal or juvenile proceeding. With all the variations considered, there is, however, a common conceptual framework for any type of legal competency is that it is founded on the concepts of cognitive functioning, reasoning and understanding (Parry & Drogin, 2007). Criminal competency is typically viewed in the context of Godinez v. Moran as “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and … a rational as well as factual understanding of the proceedings against him” (Parry & Drogin, 2007, pp. 7-8). Civil incompetency, on the other hand, is “a legal status signifying that an individual’s mental impairment is sufficient to justify delegating to others the power to make decisions regarding that individual’s person and / or property” (Parry & Drogin, 2007, pp. 78). In this paper, criminal incompetency will be discussed vis a vis the burgeoning population of mentally ill offenders in US jails and prisons. The Problem of Mental Incompetency in the Criminal Justice System The US Constitution is very clear in its stipulations for the determination and disposition of cases involving mentally ill suspects. After a hearing to determine the mental competency of a suspected offender, and evidence has demonstrated that the defendant is suffering from mental illness, the court is mandated to commit the defendant to the custody of the Attorney General. The Attorney General in turn, shall hospitalize the defendant for treatment in a suitable facility (US Constitution, § 4241d). This commitment to the custody of the Attorney General for treatment is mandatory (United States v. Shaway, 1989; United States v. Donofrio, 1990). Mitchell - Miller ( 2009) explained that people afflicted mental illnesses usually access the criminal justice system through law enforcement, the courts and eventually through corrections facilities. As mentally ill individuals are arrested for breaking the law, they come in contact with the criminal justice system. The flow into the criminal justice system consists of five steps: arrest, booking (in jail), court, prison, and eventual release” (Mitchell - Miller, 2009). Sun (2008) further explained that the issue of the mental disorder of an offender may be brought up / experienced / or observed on the defendant at any time during the criminal process. The court orders an assessment of the defendant’s competence to sand trial. In which case, those who are not able to stand trial due to mental incompetency will be ordered for treatment before the trial commences. Those who are found guilty by reason of insanity are admitted to a secure hospital administered by the State Department of Health and Social Services (Sun, 2008). Others who are found guilty are sent to correctional facilities where the prison system screens inmates for mental disorders on entry. The dual status of the so-called mentally disordered offenders refers to the overlapping between their status as convicted offenders and mentally ill patient. Such dual status and the method of interpreting the status usually brings forth issues and conflicts in legal decisions, interaction of the prison staff and the application of treatment models (Sun, 2008). It was, however, revealed from a study conducted by the Council of State and Local Governments in 2002 that: “people with mental illness are falling through the cracks of this country’s social safety net and are landing in the criminal justice system at an alarming rate” (Mitchell - Miller, 2009, p. 103). Another important consideration why a substantial portion of the mentally ill population land in jail is either they are turned away or intimidated by the mental health system (Mitchell-Miller, 2009). Torrey, et al. (2010) presented some recent, alarming and contradictory statistics. Severely mentally ill offenders in jails and prisons are triple times more than those in hospitals. It is now a fact that jails and prisons have been utilized as mental hospitals. Prison and jail statistics in1983 reported that 6.4% of incarcerated offenders are suffering from serious mental illness. Compared with the most recent figures available of 16%, the figures almost tripled in less than 3 decades. Torrey, et al. (2010) also revealed that 40% of people afflicted with a serious mental illness have been incarcerated at some point in their life. In the light of the current trends, there is reason to believe that with the prevalence of mentally ill offenders in today’s jails and prisons, the American criminal justice system is in a deja vu back to the 1800s when prisons and jails are teeming with mentally ill prisoners. Considering that it is provided by law for mentally ill offenders to be treated in a suitable facility, questioning how the courts dispense justice for mentally ill offenders can not be helped. One possible explanation to this dilemma may be the observation articulated by Torrey, Stieber, Ezekiel, Wolfe, Sharfstein, Noble, and Flynn (1992) that findings on studies of deinstitutionalization in the states of Wisconsin, Pennsylvania, Maryland and New York showed a switching among mentally ill offenders from mental hospitals to jails. In similar vein, Erickson and Erickson (2008) believe that the glaring statistics illustrate how the US used the criminal justice system as an apparatus to monitor and control mentally ill individuals. Without sufficient mental health service facilities, mentally ill people who were neither supervised nor treated in their communities are considered as high risk deviants which should be controlled by the criminal justice system. Hence, many of those unsupervised or untreated were put in prisons or jails in order to deter criminal activities. Meanwhile, Lamberti and Weisman (2002) maintained that a number of factors would have influenced the over-representation of mentally ill offenders in jails and prisons all over the country. The main factor is, of course, deinstitutionalization. There are, however, other equally important factors such as inaccessibility of community-based mental health care services, fragmentation of health care services, restrictions of civil commitment legislation and the stigma of being identified to the suffering from mental illness. Clear, Cole, and Reisig (2011) singled out the country-wide deinstitutionalization movement as the factor responsible for the diaspora of mentally ill offenders from psychiatric facilities to jails and prisons. Clear, et al. (2011), however, accept that law enforcement forces have virtually very limited alternatives other than confinement of these individuals to jails, in spite of the fact that they are merely nuisances more than they are criminals. The foregoing discussion introduced a number of views and /or about the growing number of mental incompetency in the US criminal justice system. This growing number may be depicted numerically to the tune of 319,918 or 16% of the total prisoner population in the US of 1,999,941 are mentally ill. The odds of a seriously mentally ill person being in jail or in prison compared to being in a hospital ranges from 1 to 1 in North Dakota, to 9.3 to 1 in Arizona. Country wide however, the ratio of mentally ill persons in jail to mentally ill patients in psychiatric hospitals is 319,918 : 100,439 or roughly 3 mentally ill prisoners in jail for every one mentally ill individual confined in a hospital (Torrey, et al., 2010). On the whole, however, whether or not the proportion of offenders who are mentally incompetent to participate in a judicial process rises, “the just guardians of the solemn rights” as Dorothea Dix once said, for a fair and just trial resides in the court of law. Such rights should never be forfeited for a psychologically normal defendant by reason of funding or budget decisions. Neither should such rights be denied to a mentally ill suspect for lack of psychiatric facilities nor for any other excuse. References American Bar Association (ABA). (1956). Criminal law … insane federal prisoners. ABA Journal, 42(5), 451. Clear, T. R., Cole, G. F. & Reisig, M. D. (2011). American corrections (9th ed.). Belmont, CA: Wadsworth / Cengage Learning. Erickson, P. E. & Erickson, S. K. (2008). Crime, punishment, and mental illness: Law and the behavioral science in conflict. Piscataway, NJ: Rutgers University Press. Grissom, B. (2011). The Texas Tribune: As mental health cuts mount, psychiatric cases fill jails. Retrieved April 1, 2011, from: http://www.nytimes.com/2011/02/25/us/ 25ttmentalhealth.html Head, T. & Wolcott, D. (2010). American experience: Crime and punishment in America. New York, NY: Facts On File / InfoBase Publishing. Human Rights Watch. (2003). Ill-Equipped: US prisons and offenders with mental illness. Retrieved 2 April 2011, from: http://www.hrw.org/en/node/12252/section/4 Lamberti, J. S. & Weisman, R. L. (2002). Preventing incarceration of adults with severe mental illness: Project Link. In G. Landsberg, M. Rock, L. K. W. Berg, & A. Smiley (Eds.), Serving mentally ill offenders: Challenges & opportunities for mental health professionals (133-143). New York, NY: Springer Publishing. Maier, G. J. & Fulton, L. (2000). Inpatient treatment of offenders with mental disorders. In R. M. Wettstein (Ed.), Treatment of offenders with mental disorders. New York, NY: The Guilford Press, 126-167. Mitchell Miller, J. (Eds.). (2009). 21st century criminology: A reference handbook. Thousand Oaks, CA: Sage Publications. Parry, J. & Drogin, E. Y. (2007). Mental disability law, evidence and testimony: A comprehensive reference manual for lawyers, judges and mental disability professionals. Chicago, ILL: American Bar Association. Sun, K. (2008). Correctional counseling: A cognitive growth perspective. Sudbury, MA: Jones & Bartlett Publishers. Torrey, E. F., Stieber, J., Ezekiel, J., Wolfe, S. M., Sharfstein, J., Noble, J. H. & Flynn, L. M. (1992). Criminalizing the seriously mentally ill: The abuse of jails as mental hospitals. Derby, PA: Diane Publishing. Torrey, E. F., Kennard, A.D., Eslinger, D., Lamb, R. & Pavle, J. (2010). More mentally ill persons are in jails and prisons than hospitals: A survey of the states. Arlington, VA: National Sheriffs Association / Treatment Advocacy Center. United States v. Shaway, 865 F.2d 856 (7th Cir. 1989) United States v. Donofrio, 896 F.2d 1301 (11th Cir.), cert. denied, 497 U.S. 1005 (1990) Read More