Bloomberg Law
Jan. 10, 2023, 9:00 AM

Stop Processing Mentally Ill People Through the Justice System

Sherry Levin Wallach
Sherry Levin Wallach
New York State Bar Association

For far too long, America has failed in its promise to provide humane treatment for people living with mental illness.

New York and California have recognized that the mental health system needs change. Both states created programs to help seriously mentally ill people get treatment.

While this is a step in the right direction, programs are too limited and only scratch the surface. We must ensure that all people’s rights are protected and that they are treated compassionately regardless of their challenges or illnesses.

As a result of these programs’ limitations, many people living with mental illness are left to fend for themselves or with a family member who lacks training and resources to provide care. And far too many more are languishing in jails, which over the years have become de-facto psychiatric wards.

The number of inmates living with mental illness is staggering. In the first six years of this century, the number had quadrupled, according to a federal Bureau of Justice Statistics report.

It keeps climbing today—the National Alliance on Mental Illness reports that 37% of incarcerated adults today have a diagnosed mental illness, while two million times every year, persons with serious mental illness are put behind bars, with three out of five never receiving medical treatment.

Recently, a task force of the New York State Bar Association has been examining all sides of the issue of care and legal representation for people living with mental illness and trauma—not just the need to replace jail with treatment, but also the impact that decades of neglect have had on law enforcement, the court system, and attorneys who devote their careers to representing this marginalized population.

On Jan. 18, the association is bringing even more attention to this issue by holding a summit on the intersection of mental illness and the criminal justice system.

Comprehensive Reform Needed

Often, when a mentally ill person acts out in public, the police are called rather than trained medical personnel. A court date is soon followed by a trial. People who are living with mental illness regularly end up in prisons and jails that are not equipped to provide the care they need to successfully re-enter and function in society.

To meet the needs of all people living with mental illness, a comprehensive national program of humane care is needed through a network of community-based support centers.

Such a program has actually been in place since 1963, when President John F. Kennedy signed into law the Community Mental Health Act, promising that “reliance on the cold mercy of custodial care will be supplanted by the open warmth of community concern and capacity.”

The Community Mental Health Act accelerated the process of deinstitutionalization, but what was supposed to be a comprehensive, community-based health care system did not materialize.

Nearly a decade later, in New York, shocking scenes televised from inside Willowbrook State School in Staten Island, N.Y. in the 1970s seared in the national consciousness the abuses that plagued large institutions—for people with developmental disabilities and those living with mental illness.

Willowbrook was graphic proof that society was still warehousing people with disabilities rather than providing the compassionate care Kennedy envisioned.

Today, warehousing has largely disappeared because of the outcry Willowbrook sparked. While people with developmental disabilities have a range of community residential treatment options, there is still a dearth of supportive community treatment for people with mental illness.

Today, a mentally ill person is more likely to end up in jail than in the “warmth of community care.”

Tragedy Prompts Reform

It often takes a widely publicized violent crime committed by a person living with mental illness to prompt swift political reform. That’s what happened in 1999 when a person living with mental illness pushed a young woman named Kendra Webdale to her death on the subway tracks in Manhattan.

New York’s political leaders promptly backed Kendra’s Law, which provides for court-ordered assisted outpatient treatment for people living with mental illness who are deemed unlikely to survive independently in society.

Yet there was no parallel effort to provide care for the thousands of other mentally ill persons, both behind bars and in the outside world, who are entitled to the “warm” community care they were promised long ago.

While Kendra’s Law has addressed the problem of people living with mental illness cycling in and out of psychiatric hospitals, it was never designed to remedy the prevalence of people with mental illness in the criminal justice system.

The record shows that we have been more inclined to punish people with mental illness than to care for them. Imagine if society were to incarcerate people suffering from dementia or Parkinson’s disease. How long would it take Congress to pass reform legislation?

We are determined to keep the focus on the issue at all levels, from Congress to our state leaders and to reform advocates everywhere.

American scientists took less than a decade to accomplish Kennedy’s challenge to land a man on the moon. It should not take decades longer for society to achieve his other goal of replacing the “cold mercy of custodial isolation” with compassionate community care. Every minute of delay is a minute too long.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Author Information

Sherry Levin Wallach is president of the New York State Bar Association, the nation’s largest voluntary state bar association. She is deputy executive director of the Legal Aid Society of Westchester County in White Plains, N.Y.