Decarceration of U.S. Jails and Prisons: Where Will Persons With Serious Mental Illness Go?

The Rise and Fall of the State Hospitals

Before deinstitutionalization (as of 1955), 559,000 persons in the United States were in state mental hospitals, of a total national population of 165,000,000 (339 persons per 100,000 population). The commitment of persons with SMI to state hospitals was an almost unquestioned practice and reflected the policy of the time. That, together with the extremely large number of available beds, resulted in the acceptance by state mental hospitals of nearly all persons with mental illness referred to them. Often, these institutions were the settings of last resort and had to admit patients for whom less restrictive alternatives were insufficient.

Beginning in the late 1950s, the inclination to provide hospital beds declined precipitously because of the introduction of psychoactive medications; the development of more efficacious community treatment interventions; the creation of federal programs, such as SSI (Supplemental Security Income), SSDI (Social Security Disability Insurance), Medicaid, and Medicare, that would fund community treatment and housing for persons with mental illness; the influence of the civil rights movement; and the high cost of institutionalizing persons with mental illness.^6,7 By 2010 (as a result of hospital closures and bed eliminations), the number of persons in state mental hospitals had dropped to 43,318 for a population of 308,745,538, or 14 beds per 100,000 population. This rate is similar to that in 1850, when persons with SMI received little care and concern. Their plight led to the beginning of the movement, spearheaded by Dorothea Dix and others, to provide more humane care by treating persons with SMI in hospitals.⁸

Currently, with such a reduced number of beds, the state mental hospitals have been unable to accommodate most civil commitment (nonforensic) referrals that mental health professionals and various agencies and institutions wanted to send to them, despite the fact that many of these persons probably needed the 24-hour structured care and treatment found in a hospital setting. Moreover, many of the persons with SMI who came to the attention of law enforcement, who in a previous era would have been hospitalized, were now arrested and incarcerated. It soon became clear that jails and prisons had become institutions that had to accept offenders with or without mental illness, even if the number of incarcerated persons far exceeded the correctional facility's design capacity.

The Rise and Fall of Incarceration Rates

Several factors have contributed to today's excessive incarcerated populations, both mentally ill and nonmentally ill. The war on drugs resulted in a very large number of persons incarcerated for use, sales, and other trafficking of drugs. In addition, demands of the public to be shielded from crime, especially violent offenses, as well as tough-on-crime politics, led to long and mandatory sentences.⁹ In contrast, when comparing sentences across some European countries for the same types of offenses, especially violent crimes, sentences in the United States are roughly twice as long as those in the United Kingdom, 5 times longer than those in Sweden, and 5 to 10 times longer than those in France.¹⁰

The sheer number of persons who are incarcerated in the United States has become a financial burden that most state and county jurisdictions cannot afford, if they provide inmates with their constitutional rights, such as acceptable conditions regarding housing, clothing, food, and adequate medical and mental health care.⁶ Another important factor is the belief by many that incarceration on such a large scale is not as effective in reducing crime as had been hoped.^9,11,–,13

Efforts are already under way to decrease the number of persons imprisoned. For instance, many are calling for a rethinking of the war on drugs by such means as drug possession reclassification, which incidentally would affect a large number of persons with SMI. Changes would include removing imprisonment as a punishment for some categories of drug possession, increasing the use of drug courts, and redirecting resources to treatment of addiction and mental illness.¹² In fact, the Justice Department is proposing a federal clemency program so that some incarcerated drug offenders and others may seek early release. This new program was developed as a way to correct former sentencing injustices and to relieve prison overcrowding.¹⁴

An examination of whether there are inequities in the imprisonment of racial and ethnic minorities may result in shorter sentences and thus a decrease in persons incarcerated. For instance, before August 2010, the federal sentence for possession of crack cocaine, which is more likely to be consumed by African Americans, was longer than that for possession of powdered cocaine.⁹ However, Congress passed the Fair Sentencing Act in August 2010, reducing the 100-to-1 disparity between minimum sentences for crack and powder cocaine to 18 to 1.¹⁵

There are now approximately 3,000 specialized criminal courts in the United States, including those for drug charges, mental health, veterans, and re-entry. These diversionary programs contribute to decarceration by assigning defendants who are otherwise most likely jail- or prison-bound to mental health and drug treatment, job and housing placement, along with other services in lieu of incarceration.¹⁶

There are other possible remedies that have been suggested to reduce the incarceration rate. For example, changes in sentencing policy that shorten disproportionately long sentences, especially for property and other nonviolent crimes, have been proposed.⁹ Another remedy is to modify a state's determinate sentencing regimen “to reward prisoners for participating in rehabilitation programs, while allowing the system to retain prisoners who represent a continued public safety risk” (Ref. 17, p 154).

As a consequence of all these factors, the incarcerated population, which seems to have reached its peak in 2009, has now shown small decreases (for example, state and federal prison populations decreased 0.1% in 2010, 0.9% in 2011, and 1.7% in 2012)^18,19 and will probably continue to decline. One example of the pressure to reduce incarceration rates is the situation in California.

Brown v. Plata

In October 2006, California reached its all-time prison population record of approximately 163,000¹⁷ inmates for a system designed for a maximum of 79,650, resulting in state adult prisons that were operating at slightly more than 200 percent of design capacity. In May 2011, the U.S. Supreme Court¹⁵ upheld a lower U.S. district court three-judge panel's¹⁷ ruling that the constitutional rights of prisoners to adequate medical and mental health care were violated in California's prisons and that overcrowding was the primary cause of the violation. Consequently, the U.S. Supreme Court concurred with the district court panel that a reduction to 110,000 inmates in the prison population (137.5% of design capacity) must occur within two years. (It should be noted that the state has been given an extension to February 2016 to reach this goal.)

The ruling left the state with only two choices: build more prisons and increase the quality of care in this expanded system or simply release a large number of current prisoners while limiting the number entering prison. California could not realistically afford to do the former, but decided it could do the latter. Thus, prisons in California are no longer institutions that can incarcerate as many individuals as they previously accepted and housed. To illustrate, as of May 21, 2014, the population in California's prisons had been reduced to approximately 116,600²⁰ which represents a reduction of almost 46,400 inmates since the prison population record was set in 2006. These released individuals are living in the community, although some may be homeless, incarcerated in jail, or hospitalized for medical or psychiatric conditions.

Reducing the Incarcerated Population

An illustration of a way that the incarcerated population, including inmates with SMI, has been reduced is the 2011 Public Safety Realignment Act (realignment) passed in California.²¹ Included in the bill were provisions to shift the responsibility of certain convicted felons from the state correctional system to the counties.

Based on the Realignment Act, two major changes were implemented: the first addressing persons in the community convicted of new crimes and the second focusing on inmates currently in state prison. The first change was that some persons generally convicted of felony offenses punishable by incarceration for three years or less (with specified exceptions) would now be placed in local jails instead of sent to prison to serve their sentences. The second change was that most inmates in prison who were eligible for parole would now be released to their local county department of probation instead of being released on state parole. If these county probationers violated their conditions of probation (but without committing a new crime), they could not be returned to prison, but could be placed in jail.

Thus, realignment resulted in local jails having to absorb a greater number of felony inmates under these new mandates and having to house many for longer periods. As a result of this, some local jails have been operating above 100 percent capacity, which has forced them to prioritize whom they can incarcerate.²² Consequently, jails are having to deny admission (or at minimum, substantially reduce the length of incarceration) to many persons they previously could accept, including many with SMI charged with or convicted of low-level crimes, such as disturbing the peace.

Further, it is believed that the social control formerly exerted on state prison parolees has been lessened to the point that many county probationers, who before the Realignment Act would have been state prison parolees (including those with SMI), are relatively unsupervised. In fact, the Chief Probation Officer for Los Angeles County stated recently that approximately 15,000 inmates who were sent to jail instead of prison as a result of realignment, have served their sentences and are now living in the community without any conditions, such as reporting to a probation officer, undergoing substance abuse rehabilitation and mental health treatment, or seeking any other support services.²³ In this California experiment, the previous seemingly limitless acceptance of incarceration, as well as adequate community control, has now become curtailed and may indeed have a profound effect on where and how persons with SMI will be treated.

The number of persons with SMI who have been affected by realignment is sizeable. Recent studies estimate that at least 16 percent of persons in prisons have SMI.²⁴ If we assume that this is correct and that this percentage of persons with SMI holds for those who have been released, then approximately 7,424 fewer persons with SMI are incarcerated in California prisons (i.e., 16% of the 46,400 fewer inmates now incarcerated compared with California's 2006 all-time prison population record).

Since the passage of the Realignment Act, probation officers have found that some persons with SMI who have been released from prison and placed on probation are in need of treatment services and some of the officers have expressed frustration in not being able to find appropriate community treatment resources. Even with available resources, some offenders with mental illness have not been willing to receive treatment. For example, in Los Angeles County, more than 30 percent of persons with mental illness released from prison were unwilling to meet with a clinician or attend treatment.²⁵ Thus, many offenders with SMI residing in the community will present great challenges, not only for the criminal justice system, but for local mental health systems and the community generally.

The Need for Structure

An important modality that enables persons with SMI to live successfully in the community is structure. Given current trends, it is essential to ask who will provide the structure for many of these persons when they are released from jails and prisons. What constitutes structure? In mental health settings, structure is provided by such means as assigning mental health staff a manageable caseload whereby they can provide frequent and continuing contact with clients as well as closely monitoring medication adherence; offering therapeutic activities to clients that may add structure to much of their day; and housing that is adequate and staff that is willing and able to set limits on inappropriate and violent behavior.

How much structure persons with SMI require varies widely. Some need a minimum degree and can live quite well in the community. Others may need more structure and support, often in a residential setting, such as a board-and-care home or with family, to reach an approximation of independent living.

In our opinion, one of the most important deficiencies for those who do not respond successfully to community treatment is the failure to provide sufficient structure. One approach that has proven effective is intensive, structured treatment.¹³ In fact, a recent report of prisoners released to Los Angeles County under realignment, stated that, “their higher levels of mental health treatment needs…indicate the need to expand intensive residential treatment services.”²⁶ Other ways of adding structure in the community include such modalities as treatment as a condition of probation or parole and assisted outpatient treatment. Some persons may need a high degree of external structure and control on an intermediate or long-term basis, such as placement in an intensive community program like Assertive Community Treatment (ACT) or Forensic Assertive Community Treatment (FACT) or possibly, a locked intermediate care facility or a psychiatric hospital.

What Will the Mental Health System Do?

In light of decarceration, important concerns will now emerge regarding persons with SMI. For example, who should assume responsibility for persons with SMI who commit nonserious crimes? What do we do about people with SMI released from prison? Departments of mental health will be expected to accept responsibility for them; in doing so, they must be able to provide sufficient structure and effective community treatment.

Moreover, having local mental health systems assume responsibility for offenders with mental illness is not without its problems. In our discussions with mental health professionals in California, many clinicians already report feeling extremely uncomfortable and even overwhelmed by this shift. Clinicians in the community who have seen offenders with SMI have noted that many clients have few support services; that is, a lack of a supportive family, social network, or ancillary system (such as social service case workers), few vocational skills, and little access to adequate and supportive housing. Consequently, clinicians may feel that an excessive burden is placed on them to assure their clients' well-being in the community.

Many clinicians practicing in the community never expected to be working with offenders with mental illness, some of whom arouse fear or have histories of violence. Clinicians may have little or no experience with such a population and may feel unprepared to face the challenges of working with these individuals. However, clinicians should expect to work with persons with SMI, regardless of whether they become involved with the criminal justice system or not, rather than viewing them as offenders who happen to have SMI.