Consider a man who experiences mental illness— he has not recently been able to access prescribed medication and has become homeless. He lives in a makeshift shelter in the park and uses drugs and alcohol when he can. This man disposes of his garbage in a pile near a playground structure in the park, blocking the sidewalk and limiting access for people who use the park. Neighborhood residents and park users call for help. Police confront the man and arrest him when he becomes belligerent and potentially dangerous. Police hold him for several hours prior to release because he is intoxicated and appears unsafe. In custody, he spits on the face of a deputy at the jail, incurring a more serious charge. The man is soon released – without resolution of his housing, medical, or substance use issues, and with new charges. Or, alternatively, he is too mentally ill to understand what has happened to him, and he stays in jail awhile longer, awaiting a mental health evaluation; he will eventually be released, under similar circumstances. The criminal justice system has been employed to address very real problems, but it has arguably made these problems worse. This is just one example of the problem of criminalization (figure 4.1).

Figure 4.1. A person sits alone, locked in a jail cell. Criminalization of mental disorders can exacerbate pre-existing problems of isolation and mental illness for people who are arrested.

The criminalization of mental disorders refers to the use of the criminal justice system as the first-line response to people who come to the attention of authorities primarily due to their mental disorders and then face criminal justice consequences such as arrest, criminal charges, and incarceration. As in the opening scenario, criminal justice consequences can escalate once they get started. And, because the criminal justice system can be ill-equipped or unable to resolve cases involving serious mental health issues, people can remain “stuck” in the system for much longer than expected or intended. While stuck, a person with mental disorders may find that their original mental health condition deteriorates, or makes them subject to victimization or self-harm.

Of course, people who have mental disorders do commit offenses, of all levels of seriousness, that warrant criminal processing. But the problem of criminalization arises when people who are not, primarily, criminal in their conduct are brought into the criminal justice system and criminal treatment worsens the situation. A person may have done something that is technically offending behavior (as in our example), or community members may legitimately fear that a person will engage in offending behavior due to obvious signs of mental illness. Police are then enlisted to assist, usually as the only response option available, and the person is then introduced (or re-introduced) into the criminal justice system. Oftentimes, this person is not dangerous and primarily needs help. They do not need or benefit from criminal processing, and in fact they and the larger community may be harmed by this response.

4.2.1 The Roots of Criminalization

As discussed in Chapter 1 of this text, the deinstitutionalization movement – eliminating long-term hospitalizations in favor of community support for those with mental disorders, began in the early 1960s with high hopes, but more moderate accomplishments. The righteous intent of deinstitutionalization was to eliminate the incarceration and segregation of people with mental disorders, and to provide help and treatment to this population in their communities.

The planned reduction of institutions became a reality: from 1955 to 1975, the number of people committed to institutions had dropped from around 550,000 to 200,000, and counts would continue to plummet in upcoming decades, even as the population overall increased (Substance Abuse and Mental Health Services Administration, 2019). Hundreds of thousands of people with mental illnesses and developmental disabilities were leaving hospitals to live in the community, as was their right. While this staggering reduction of institutionalization had been the precise goal of impacted individuals, civil rights advocates, lawmakers and taxpayers, the next steps in the deinstitutionalization movement did not fully materialize.

Despite the reduction of people with mental disorders in state hospitals, no corresponding increase in community supports occurred. The planned community health centers were only partially completed. And mental health care was simply not available at the level of demand. Most health insurers didn’t cover mental health – or certainly not at the level they covered other physical health conditions – until that was demanded by law in 2010, under the Affordable Care Act. For many, this law came decades too late. Many of the people released from restrictive hospital settings re-entered the community but had no real chance of succeeding there.

This gap in support that grew after deinstitutionalization led to a newly voiced concern by observers beginning in the 1970s: the criminalization of those with mental disorders. And indeed, many of those who had been released from closing institutions fell into the gap in care, and they were wholly unable to meet their basic needs. They ended up in jail or prison, with the criminal justice system providing the “care” that was unavailable elsewhere. To some, it appeared that people with mental disorders were simply going to be shifted from one institution to another: from state hospitals into prisons.

But the increase in incarcerated people with mental disorders was not due to closure of institutions alone, by any means (Lurigio, 2013). Another enormous factor was the overall increase in incarceration generally, and particularly the increase due to drug-related convictions. The United States was getting “tough on crime,” especially drug offenses. President Richard Nixon’s  “war on drugs” in 1971 gained speed and power in the 1980s and continued for decades – imposing draconian prison sentences at both the state and federal level. In 1950, 175 out of every 100,000 United States residents were incarcerated. By 1985, the number was up to 312 per 100,000 and rising. By 2005, it was at 743 per 100,000 (Cullen, 2018). Women were a significant part of this increase, especially women of color. From 1990 to 2010, the number of women in prison increased twice as fast as the rate for men; of those, Black women were more than three times as likely as white women to be incarcerated. Most of the women in prison are mothers of young children – creating complicated family struggles (Lapidus, 2011). There was also an enormous impact on people with mental disorders, who often experience primary or co-occurring substance use disorders as part of their diagnosis. Drug use leads to an increase in criminal system engagement for most people, and especially for people with serious mental illness (Lurigio, 2013).

4.2.2 Criminalization Today

Some fifty years after concern about criminalization was first voiced, the problem has grown and persists.  People who experience mental disorders are vastly overrepresented in our nation’s jails and prisons, especially among vulnerable populations including youth, women, and veterans (National Alliance on Mental Illness, 2022). Stigma around mental illness and disability, and the inaccurate assumption that people who have mental disorders are very likely to engage in criminal activity, continues to fuel the practice of treating mental disorders as a criminal justice issue (Pescosolido et al., 2019).

The rate of mental disorders among incarcerated people began to rise in the 1970s and kept going up – now appearing at a rate up to 12 times that found in the general population (Wolff, 2017). Nearly all states have more patients with mental disorders in their jails and prisons than they hold in state hospitals. According to the non-profit Treatment Advocacy Center, people experiencing serious mental illness such as schizophrenia are ten times more likely to be in a jail or prison than in a hospital (Treatment Advocacy Center, n.d.). About half of the people incarcerated in Oregon prisons have diagnosed mental illnesses and/or developmental disabilities (Oregon Health Authority, 2018). The Cook County Jail in Chicago, widely reported to be the largest mental health facility in America, is full of people who have mental illness and have committed so-called “crimes of survival” – theft to get something to eat, breaking and entering to find a place to sleep (Ford, 2015).

People living in extreme poverty, namely the houseless population, are at serious risk of experiencing criminalization due to mental disorders, including substance use disorders. In 2017, more than half of Portland Police Bureau arrests involved people living on the street. The approximately 10,000 arrests of houseless people that year were most often based on low-level crimes such as theft or drug charges; 86% of the arrests were for non-violent crimes, with more than 1200 of the arrests involving procedural offenses such as missing court (Woolington & Lewis, 2018).

For many probable reasons, led by lack of robust mental health care for this group, there is not a clear accounting of exactly how many of these arrestees have diagnosed mental disorders, but evidence suggests the numbers would be high. The homeless population overall is far more likely than others to be affected by mental disorders (figure 4.2). Almost half of Portland’s houseless residents overall self-report themselves as having mental illness, 38% report physical disabilities, and another 37.5% report substance use issues (Maui, 2019). Disability is more common than not among houseless residents of Portland, with higher numbers in certain groups;  67% of houseless women report themselves as disabled (City of Portland, n.d.).

Figure 4.2. A police officer stands over a man trying to sleep on the street, covered by a blanket. This photo depicting police interaction with a community member is from Toronto, but it could be from any larger city in America in recent years.

In contrast, about 20% of adults in the general population report having any mental illness, but only 5% report having serious mental illness (such as bipolar disorder or schizophrenia) and 6.7% report having both substance abuse issues and another mental illness (National Alliance on Mental Illness, 2022). Disability is likewise far less common in the overall population, with about one quarter of Oregonians experiencing any sort of broadly-defined disability (Oregon Office on Disability and Health, 2010).

4.2.2.1 Cost of Criminalization

The financial burdens of incarcerating people with mental disorders are large. For example, lengthy (and unintended) hospitalizations can become an expensive element of even a low-level arrest, when mental illness is a factor. In a jail-to-hospital scenario, a person with serious mental illness is, perhaps, arrested and jailed for a minor criminal offense such as trespassing. This person has the right to understand the charges against them, and to participate in their own defense.  If the person’s ability to exercise these rights is excessively diminished due to a mental disorder, that case cannot be resolved until the person is stabilized, re-evaluated, and declared mentally fit to proceed. (See further discussion of these Constitutional issues in Chapter 6.)

These situations are very expensive and very slow. Financial costs include jail, lawyers, psychological evaluators, and perhaps treatment at a state psychiatric hospital, producing (in Oregon) a bill of around a quarter of a million dollars per year (Disability Rights Oregon, 2020). If the person continues on to prison, having gotten caught up in the criminal system, the average bill for a year in federal prison is around $40,000 (Bureau of Prisons, 2021) and a year in an Oregon prison is even more – closer to $45,000 (Mai & Subramanian, 2017).

The costs associated with criminalization of mental illness are not, of course, limited to finances. There are enormous human costs. Criminalization has a continuing impact on individual mental health and ongoing community safety. In the above jail-to-hospital scenario, the accused person is moved from one very restrictive environment to another, legally unable to resolve their case without achieving mental stability. A person may spend months jailed, hospitalized, and jailed again awaiting resolution of a case that, if they had no mental disorder, might never have resulted in arrest, and in any case would have been resolved in short order.

Any time at all spent in jail, for a person with a mental disorder, comes at a high cost. People with mental health disorders who are kept in a jail or prison environment are less likely to get the treatment they need than they would in the community. This is due to institutional staffing shortages as well as low quality care in institutions. For example, patients may be treated with only medication, when they would benefit from thoughtful treatment planning, including counseling or therapeutic groups.

They may also be left to manage difficult and rule-dense prison environments with few or no accommodations for their disabilities. Failure to adhere to rules may result in additional trauma and harsh treatment, such as solitary confinement. (Fellner, 2006). Young men of color, specifically, are more likely to be met with punishment for behavioral problems than the treatment they need to meet expectations in prison, and they are more likely to spend time in solitary confinement (Kaba et al., 2015).

4.2.2.2 Opposition to Criminalization

Voices in opposition to the problem of criminalization cite the human costs, particularly, in rallying against activities that tend to criminalize mental illness. The National Alliance on Mental Illness (NAMI), a nationwide advocacy organization for people experiencing mental illness and their families, has been a vocal advocate of reducing criminalization of mental illness. NAMI opposes laws that result in criminalization (such as zero-tolerance policing in the face of nuisance offenses) and seeks to educate for change through outreach.

The education approach should be effective, because the numbers are jarring. Among NAMI’s published statistics:

• Nearly 1 in 4 people shot and killed by police officers between 2015–2020 had a mental disorder.
• About 2 million times each year, people with serious mental illness are booked into jails.
• 66% of women in prison reported having a history of mental disorder (twice the number of men in prison)
• Among incarcerated people with a mental disorder, non-white people are more likely to be held in solitary confinement, be injured and stay longer in jail. (National Alliance on Mental Illness, n.d.; National Alliance on Mental Illness, 2022)

NAMI’s efforts to combat criminalization also include sharing powerful personal accounts from people with mental disorders who have experienced mental health crises – often resulting in interactions with law enforcement. These first-hand experiences are shared on NAMI’s public website as well as in a program aimed directly at law enforcement officers: Sharing Your Story With Law Enforcement (SYSLE). The SYSLE program supports individuals in sharing their valuable lived experience at law enforcement training programs. According to NAMI, these personal presentations are highly impactful for the law enforcement officers, enabling them to bring understanding and empathy into future interactions with people experiencing mental illness (National Alliance on Mental Illness, n.d.).

The short video in figure 4.3 describes NAMI’s SYSLE program. As you watch it, consider the benefits to the law enforcement officers, and to the larger community they serve, offered by these generous personal presentations.

Figure 4.3. NAMI Sharing Your Story With Law Enforcement Program [YouTube Video]. Video providing officer perspective on NAMI’s Sharing Your Story With Law Enforcement Program.