Involuntary Commitment and the Prison Population

William Galston writes at The New Republic The Tucson Shooter and the Case for Involuntary Commitment:

…the most important and least contestable facts are getting lost: Jared Lee Loughner was mentally ill when he pulled the trigger, there were multiple signs of his descent into delusion over the past year, and no one did very much about it….The bottom line: No one was legally responsible for taking the next step, and they might well have hit a wall if they had….

Starting in the 1970s, civil libertarians worked to eliminate involuntary commitment or, that failing, to raise the standards and burden of proof so high that few individuals would meet it….

We need legal reform to shift the balance in favor of protecting the community, especially against those who are armed and deranged. This means two changes in particular. First, those who acquire credible evidence of an individual’s mental disturbance should be required to report it to both law enforcement authorities and the courts, and the legal jeopardy for failing to do so should be tough enough to ensure compliance…Second, the law should no longer require, as a condition of involuntary incarceration, that seriously disturbed individuals constitute a danger to themselves or others, let alone a “substantial” or “imminent” danger, as many states do.

This sounds like a dangerous path. I’ve seen Titicut Follies (which is now available on dvd) and it doesn’t surprise me there was a mass movement to find alternatives to involuntary commitment during the 1960s (which, remind yourself, had a few political shootings).  Besides poor facilities and terrible treatment, new historical research is documenting the race and clinical assumptions from earlier in the 20th century that were used to make it harder for African-Americans to be declared ‘mentally-fit and socially-productive’ and thus leave confinement:  see Matthew Gambino’s excellent, ‘These strangers within our gates’: race, psychiatry and mental illness among black Americans at St Elizabeths Hospital in Washington, DC, 1900—40.

Going further, the assumption that mentally disturbed people are obviously “armed and deranged” and that necessities, as a legal and policing matter, separation from the community is also wrong. For every Loughner there are hundreds of thousands of people who need treatment, not mandated incarceration and isolation.  I want to see more about what was going on with Arizona’s mental treatment facilities, education about the seriousness of mental health illnesses and the equitable and fairness access to treatment. That doesn’t lead me to involuntary incarceration, even a bit.

It’s a good time to bring up this graph:

That is Mental Hospital versus Prison rate from Bernard Harcourt, with the total added together rate (which is the highest rate, of course). There were as many people, as a percent, in mental hospitals during the 1940s than are in prison today. (See here for full discussion.)   The drop starts in the 1960s, and happens quickly during the 1970s.

Think about that.   Our prison system has a massive footprint, in terms of energy, resources and manpower required to isolate and warehouse that percentage of our citizens, and we used to do the same percentage with our mental hospital rate.  Where has that footprint gone?   I know of some abandoned mental hospitals in Kankakee, Il but that can’t begin to cover it.

As Mark Kleinman notes, that’s not a straight transfer of people; the mental health incarcerated population was more female, older, and more white than the prison population.

Mental illness does play a major role in our prisons. As the Prison Law Blog wrote:

Los Angeles County Sheriff Lee Baca calls the jail system he oversees “the largest mental health provider in the country.”

In smaller communities, too, jails end up housing men and women with a variety of mental illnesses — often because they’ve caused some sort of public disturbance and there’s nowhere else for police to take them. Some of the most tragic cases in the field of prison law arise out of situations where a mentally ill person was arrested, and during his or her time in jail, deteriorated, suffered injury, or even committed suicide. Sometimes these cases involve negligence on the part of jail staff; but all demonstrate the inevitably poor results of expecting county lock-ups to do double duty as emergency mental hospitals. Studies have found that access to health care of all kinds is worst in local jails, where as many as 64% of detainees suffer from a mental illness of some kind. According to newly released numbers from the Bureau of Justice Statistics, the suicide rate in small jails (50 or fewer inmates) was 169 per 100,000 for the years 2000-07, compared to 27 per 100,000 in the largest jails. (By way of comparison the suicide rate for the U.S. overall is about 11 per 100,000, but there is a lot of variation by gender and age.)

The latest research finds that “the mentally ill account for 16 percent of the prison population, or about 350,000 people on a given day; their true numbers may be twice as high….The solution is not merely to improve the woefully inadequate mental health treatment of prisoners. It is “to improve and expand community mental health treatment” on the other side of the prison walls. But how many blue-ribbon panels have already told us that?”

Indeed.  But it’s always worth repeating.