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Despite what you see on television, a verdict of “not guilty by reason of insanity” is exceedingly rare. Most defendants with mental illnesses end up incarcerated—studies reveal that fully half of all prisoners have at least one mental disorder. That is one million people in the U.S. alone, and the prison system does very little to successfully treat them. As a result, the recidivism rate among released convicts is especially high for those with serious disorders.
Forensic hospitals, on the other hand, which hold and treat offenders found not guilty by reason of insanity, have a very high success rate in preventing disordered individuals from returning to crime. In an analysis of data from California, New York and Oregon, Victoria Harris, a forensic psychiatrist at the University of Washington, reported in 2000 that people at these institutions reoffended at a “much lower” rate than untreated mentally ill offenders. Psychiatrist Jeremy Coid and his colleagues at St. Bartholomew's Hospital in London found in 2007 that forensic patients in the U.K. were 60 percent less likely to reoffend than released inmates and 80 percent less likely to turn to violence.
These and other recent studies show that treatment works, and yet we continue to put offenders with mental disorders in prisons for complex reasons, including our society's views toward mental illness—especially addiction—and the high cost of psychiatric care for inmates. Still, solutions are within reach. A Connecticut program, for example, allows some veterans who have committed crimes to seek psychiatric treatment instead of serving time. Public knowledge of and support for such programs are essential to breaking the cycle of crime that the current prison system perpetuates.
Prisons as Mental Institutions
The prison system functions in substantial part as the successor to our shuttered mental institutions. In 2009 epidemiologist Jacques Baillargeon of the University of Texas Medical Branch at Galveston and his colleagues rightly described this situation as a “national public health crisis” and found that it arose from a baleful synergism of developments. First, the invention of antipsychotic medication in the 1960s led to a movement to close the many psychiatric hospitals then extant. These closed institutions were supposed to be replaced by community facilities, but in reality most were not. At the same time, health insurers restricted coverage for mental health treatment, and finally, the “war on drugs,” begun in the 1980s, increased drug-related arrests and brought in mandatory and fixed sentences. More offenders with psychiatric and substance abuse problems, often one and the same, were incarcerated for many years without treatment and then released into a community that had nothing for them: no jobs, no treatment, no housing. This led to drifting, homelessness, further mental decline and the chronic reoffending we see today.
The prison system functions in substantial part as the successor to our shuttered mental institutions. In 2009 epidemiologist Jacques Baillargeon of the University of Texas Medical Branch at Galveston and his colleagues rightly described this situation as a “national public health crisis” and found that it arose from a baleful synergism of developments. First, the invention of antipsychotic medication in the 1960s led to a movement to close the many psychiatric hospitals then extant. These closed institutions were supposed to be replaced by community facilities, but in reality most were not. At the same time, health insurers restricted coverage for mental health treatment, and finally, the “war on drugs,” begun in the 1980s, increased drug-related arrests and brought in mandatory and fixed sentences. More offenders with psychiatric and substance abuse problems, often one and the same, were incarcerated for many years without treatment and then released into a community that had nothing for them: no jobs, no treatment, no housing. This led to drifting, homelessness, further mental decline and the chronic reoffending we see today.
In 2012 Jason Schnittker, a sociologist at the University of Pennsylvania, and his colleagues reported that legislatures have criminalized “many common psychiatric disorders,” especially substance abuse—which psychiatry's diagnostic handbook, the DSM-5, categorizes as a true psychiatric disorder. This criminalization of drug addiction means, as Schnittker puts it, that “some inmates end up in prison at least partially because of their psychiatric disorders.”
Most of these mentally ill inmates are not treated for their conditions in prison. And their numbers are rising. Schnittker reports that for the past 40 years, the rate of incarceration has quintupled, from 149 per 100,000 in 1980 to 749 per 100,000 in 2009. As people go in, other people come out. Nationally, 700,000 inmates are released every year, which means, according to the National Institutes of Health, that more than 350,000 disordered offenders return untreated to society. In most accountings, most of these people will reoffend.
Clearly, this system does not work. Strikingly, though, it runs in parallel with a system that does work, namely the system of forensic hospitals, which is where defendants end up who are found not guilty by reason of insanity. This outcome is difficult to achieve: the legal defense must demonstrate that the offender had no control over his or her actions or did not comprehend the present reality of the deed done (for instance, shot at a police officer because he thought the officer had been threatening him on television). A small fraction of 1 percent of all criminal defendants are acquitted by reason of insanity.
Forensic hospitals confine people as prisons do but achieve radically different results. Both function by way of the criminal justice system, but prisons cause disordered offenders to break the law more—even more than offenders without a disorder—whereas forensic hospitals treat offenders as patients who can and do recover and who return to society as people who can be expected, for the most part, to be law-abiding citizens.
Cured of Criminality
The radical difference in outcomes from these two systems is illustrated by the experience in Connecticut, where I practice law. In its 2010 Annual Recidivism Report, Connecticut's Criminal Justice Policy and Planning Division analyzed 16,241 inmates released during 2005. Of these, 1,514 were classified as severely disordered, including people who had “chronic schizophrenia or bipolar disorders with frequent psychotic exacerbations, who need medication and assistance with activities of daily living, [as well as persons] with borderline personality disorder with frequent suicidal gestures or episodes of self-mutilation.” Others were even worse off, suffering from “acute psychosis, severe depression, suicidal ideation … and overwhelming anxiety.”
The radical difference in outcomes from these two systems is illustrated by the experience in Connecticut, where I practice law. In its 2010 Annual Recidivism Report, Connecticut's Criminal Justice Policy and Planning Division analyzed 16,241 inmates released during 2005. Of these, 1,514 were classified as severely disordered, including people who had “chronic schizophrenia or bipolar disorders with frequent psychotic exacerbations, who need medication and assistance with activities of daily living, [as well as persons] with borderline personality disorder with frequent suicidal gestures or episodes of self-mutilation.” Others were even worse off, suffering from “acute psychosis, severe depression, suicidal ideation … and overwhelming anxiety.”
Although the rate of recidivism for the overall cohort of 16,241 inmates was high—67.5 percent within three years—the rate for those with severe disorders was even greater. The department did not indicate by how much, only that it was “significantly” higher.
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