The most important reason for the existence of any government is the protection of its citizens. Protection by the state also requires protection from the state. Concerning the question of mental illness, we should be free from interference in our eccentricities, including profound unhappiness, social withdrawal or just plain weird behavior.
Through civil commitment procedures, however, the state can take away people’s liberty if, due to a mental disorder, they are a danger to themselves or others or if their current condition threatens their own survival. But the threshold for civil commitment these days is very high. Residents of any large city can look out their windows and see scenes of ruin: people living in filth, using illegal drugs, defecating and urinating on the sidewalk, weeping inconsolably, sitting or lying in direct sunlight in a silent stupor, raving to themselves or others, and frequently being victimized. Most of these people, however, do not qualify for civil commitment, although California has recently proposed the creation of mental health courts in every county, which could compel some homeless people with mental illness to accept treatment.
To make matters worse, a number of people who suffer from mental illness or substance abuse disorders negatively affect others: Some commit a variety of crimes, from quality-of-life issues such as trespass and aggressive panhandling to misdemeanors such as theft, harassment and assault, all the way to serious felonies. These particular individuals are certainly victims of their illnesses or addiction disorders, but they also victimize others.
How concerned (using the term in both its legal and emotional sense) are we in protecting such vulnerable people? How concerned are we about the rest of our citizens who are negatively affected by them? Businesses close when customers are no longer willing to run the gauntlet of drug-using and mentally ill people camping nearby or even in their doorways; people are accosted, harassed, even assaulted on the bus or walking to work. City councils “de-criminalize crimes,” prosecutors drop charges and judges dismiss cases on the grounds that such people are not responsible due to their mental illness or addiction.
Many of these actions reflect the fact that our criminal justice system is ill-equipped to deal with mental illness or substance abuse, and in fact can exacerbate both conditions. Few serious observers of our jails would dispute these facts. However, if victims of crime believe they will receive no protection, no justice nor restitution, then what is the point of calling law enforcement for help, when their role increasingly seems to be “catch and release?” If citizens are on their own, should we be making public service announcements concerning legal use of force in response to trespass, harassment, theft, burglary, assault or any number of crimes?
Although Crisis Intervention Teams (CIT), mandatory de-escalation training and procedural justice programs for police all have their merits, they will be ineffective unless we as a society decide when and how we should respond to mentally ill people when they commit crimes.
Holding People Responsible, While Still Offering Them Care
The issue of civil commitment is enormously complex. The issue of crime is less so. People should be held responsible for their actions, regardless of whether they are malevolent criminals or suffer from mental illness or substance use disorder, provided they are able to understand the charges against them and are able to participate in the judicial process. There is always an explanation how circumstances led an individual to violate the rights of others. Think of the most heinous crime imaginable: torture, sexual assault or brutal murder. Then, do a retrospective analysis of that person’s life. You will always be able to weave together a narrative that explains how the person developed that way.
However, if we regard some people as mere creations of circumstances, that, logically, should apply to everyone. We are thereby eliminating the concept of free will, and from that point forward, there is no crime, no right or wrong. An explanation of how and why someone developed as they did can be valuable information, particularly in attempting to create conditions to ameliorate such circumstances in the future. However, it must never be an excuse. A crime is a violation of the well-being of others, and there must be consequences. The penalty, within a range that serves both justice for the victims and safety for society, must apply to all, be they rich or poor, mentally ill or well, addicted to drugs or sober.
In this model, if someone commits a crime, they must pay with the loss of their freedom. In that restricted place, we help them.
It is absolutely clear, however, that jailing those with mental illness or substance disorder who commit crimes does little to help, because ordinary jails are not the proper place for those abusing substances to recover, or mentally ill individuals to receive treatment. Instead, we need to re-envision incarceration, creating specialized detention facilities that provide state-of-the-art mental health care, substance abuse treatment, and even potentially addressing neurological impairments or developmental disabilities.
These would be true treatment facilities. They would also be true detention facilities—people would have no more opportunity to escape than at any other custodial institution. They would be staffed by correctional officers, who would also be fully trained as psych techs or addiction treatment specialists. These facilities would also employ psychiatrists, psychiatric nurses, case managers and counselor/therapists. Staff should, by the way, be paid very well, because this truly would require highly motivated, well-educated men and women with a range of skills that we usually do not expect within a single person.
Those who are sentenced for committing misdemeanors would serve their entire 60-day, 90-day, even one-year sentence—but for the duration, they would also receive treatment. Within such treatment-based incarceration is a) the restriction of freedom b) data-driven best-practice treatment c) outpatient treatment, housing and job placement after release, some of which would be the responsibility of parole/probation officers and other aspects that would be the responsibility of dedicated case managers.
Some readers may object that this would be impossibly expensive. However, we are spending billions of dollars on the problem of homelessness and most of it is money wasted. For example, the housing-first model, despite how logical it sounded, has been a failure in many cities. Others may object that people would be punished for the “crime of being homeless.” It is an insult to a person’s dignity to say, in essence, “You are damaged goods, and therefore, the values we expect human beings to embody, do not apply to you.” The model I’m putting forth here would be inhumane, if it did not help. However, if there are neither consequences nor an attempt to cure, what justice is there for the victim?
In this model, if someone with mental illness commits a crime, they must pay with the loss of their freedom. In that restricted place, we help them. They would not, should not, get a lesser sentence due to their substance abuse or mental health issues—this would be contrary to their receiving adequate treatment. In many cases, compassion and mercy would truly require a longer sentence, not less, so that the person would be given an opportunity to become stable.
Will everyone benefit? Will everyone comply? Absolutely not. But if we define liberty as merely the right to live a life of illness and pain, when we do not expect people to act and live morally, when we abdicate our responsibility to protect those they victimize, we are masking the cowardice to act righteously behind an abstract principle of freedom.
- The subject of felonies overlaps, but is separate from the scope of this article, which is limited in focus to people with mental illness who commit misdemeanors.
- Most ordinary jails and prisons are bad, some even terrible places for anyone, but jail/prison reform is a subject beyond the scope of this essay. For those interested, see the Norwegian Model.