Punishing The Mentally Ill Mocks Justice

You wouldn’t lock up a person and punish them for being ill, would you? The very notion is obscene, an insult to our natural sense of justice and what is fair. Yet we lock up the mentally ill all the time in this country. One estimate puts at 350,000 the number of mentally ill men and women locked up in the nation’s prisons. They are locked up because they broke the law. They broke the law because they are ill.

Pick up an old textbook on delinquency and crime and you are at once struck at how the world looks through rosy-tinted glasses. Conformity is considered the norm. Behavior that is different, that is deviant, requires explanation. The prisons were built, we used to tell ourselves, to house those who chose to deviate, to correct them, to rehabilitate them so that they once again willingly adhered to communal norms.

For many defendants, this is plain and simple hogwash. There is no community of reasonable minds ready, willing and able to shoulder the common yoke. The criminal is often not someone who miscalculated as he or she bargained in the law’s shadow, a quaint, Holmesian notion. Far too often, the criminal is someone who could not escape from the shadows his or her mental illness cast over their perception of the world.

Think of prisons and the criminal justice system less as a system of well-calibrated rewards and consequences, and more as a system of cattle chutes, blindly directing folks in one direction or another.

A Miami Judge, Steve Leifman, is trying to do something about it. He was interviewed on that hotbed of socialism, National Public Radio, the other day. He asked local researchers to study who the prime users of the criminal justice system were in the Miami-Dade region. The results? Ninety-seven people, almost all diagnosed schizophrenics, were in and out of the system over and over and over again. Fewer than 100 persons were arrested almost 2,200 times and spent 27,000 days in the Miami-Dade jail, at a cost of more than $13 million, during one five-year period. Leifman wants diversionary facilities to treat those who err because they cannot help but to do so.

Leifman is not alone in noting our tendency to use prisons and jails as coercive inpatient psychiatric facilities. "We have penalized being mentally ill," Sheriff Greg Hamilton of Austin, Texas opines. The lack of hospital beds for the mentally ill transforms jails into default treatment centers.

Except there is little mental health treatment in jail. Jail is where we send bad people. People who need to be punished. People who make bad choices and must be rehabilitated. In few places does the rhetoric and reality of American life collide quiet so violently as in prison.

Criminal defense lawyers know this. We daily must counsel clients about choices some of them cannot make. They may not be insane or incompetent by the law’s standards, but they lack the capacity to color with the lines most folks take for granted.

A more humane response to mental health issues, including drug addiction, which, like alcohol addiction and nicotine addiction, is a public health problem, is treatment. When we criminalize illness we make a mockery of justice and the law.

Opening the doors of the nation’s psychiatric facilities in the 1960s sounded good in theory. The development of new psychotropic medications put the treatment of mentally ill persons within reach, at least in theory. In practice, it appears, something else happened. We released those in need of care to a community without resources. When folks acted up, we did what we always did: we locked them up. Only this time we called being ill a crime, and did not offer treatment.

Judge Leifman is right. This isn’t justice. Not even close.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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