Perhaps Jamie, described in the chapter overview, is soon released from custody—without resolution of housing issues, medical and psychological problems, or substance use; without increased access to healthcare and medications; and with a new legal barrier: criminal charges. Alternatively, perhaps Jamie is too mentally ill to even understand what has happened, so Jamie stays in jail a while longer, awaiting an evaluation and legal negotiations. At this point, Jamie still has not resolved any existing issues, likely has exacerbated mental health symptoms, and is sitting in custody. The criminal justice system has been employed to address real problems, but it has arguably made these problems worse. Most of us can also imagine far worse outcomes, for everyone involved, that might have occurred when police responded to Jamie in the community, especially if a weapon had been involved. Jamie’s story is just one example of the problem of criminalization (figure 4.2).

The criminalization of mental disorders refers to the use of the criminal justice system as the first-line response for people who come to the attention of authorities primarily due to their mental disorders. This leads to people facing criminal justice consequences such as arrest, criminal charges, and incarceration. As in the chapter-opening scenario with Jamie, criminal justice consequences can escalate once they begin. And because the criminal justice system can be ill-equipped to manage serious mental disorders, 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, making them subject to victimization or self-harm, or prompting the commission of new offenses.

Of course, people who have mental disorders—just like people without mental disorders—do commit offenses, of all levels of seriousness, that warrant criminal processing. However, the problem of criminalization addressed here arises when people are not primarily criminal in their conduct but are brought into the criminal justice system, which then worsens the situation. A person may have done something that is technically an offending behavior (as in Jamie’s case), or community members may legitimately fear that a person will engage in increasingly offensive behavior due to obvious signs of a mental disorder. Police are enlisted to assist, usually as the only option available, and the person is then introduced (or reintroduced) into the criminal justice system. Often, this person is not dangerous and primarily needs help. They do not need or benefit from criminal processing. In fact, they and the larger community may be harmed by this response.

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, as well as to provide help and treatment to this population in their communities. The planned reduction of institutions became a reality; hundreds of thousands of people with mental disorders left hospitals to live in the community, as was their right (Substance Abuse and Mental Health Services Administration [SAMHSA], 2019). As we have learned, the next step in the deinstitutionalization movement—the creation of a robust community mental health infrastructure—did not fully materialize. Mental health care was simply not available at the level of need. Many of the people released from restrictive hospital settings properly reentered the community but were allowed no real chance of succeeding there.

The gap in support that grew as institutions subsided 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 that gap in care. 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, an idea termed transinstitutionalization, which was introduced in Chapter 1.

However, the increase in incarcerated people with mental disorders was not caused by the closure of institutions alone (Lurigio, 2013). Another enormous factor was the overall increase in incarceration generally and the increase in drug-related prison sentences particularly. 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—resulting in draconian prison sentences at both the state and federal levels. 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 the increase in incarceration, especially women of color (figure 4.3). From 1990 to 2010, the number of women in prison increased twice as fast as the number of 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—especially for people with serious mental illness (Lurigio, 2013).

Criminalization Today

Some 50 years after concern about criminalization was first voiced, the problem has grown and persists. People who experience mental disorders are still vastly overrepresented in our nation’s jails and prisons, especially among vulnerable populations, including youth, women, and veterans (National Alliance on Mental Illness, n.d.-b). Stigma around mental illness and disability and the inaccurate assumption that people who have mental disorders are very likely to engage in criminal activity continue 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. It now appears 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 nonprofit Treatment Advocacy Center, people experiencing serious mental illnesses such as schizophrenia are 10 times more likely to be in jail or prison than in a hospital (Treatment Advocacy Center, n.d.). About half of the people incarcerated in Oregon prisons, for example, have diagnosed mental illnesses and/or developmental disabilities (Oregon Health Authority, n.d.). 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,” such as theft to get something to eat or breaking and entering to find a place to sleep (Ford, 2015).

People living in extreme poverty, namely the unhoused population, are at serious risk of experiencing criminalization due to mental disorders, including substance use disorders. Although Portland, Oregon, is not unique, statistics from this one city provide a snapshot of how these issues manifest. In 2017, more than half of Portland Police Bureau arrests involved people living on the street. The approximately 10,000 arrests of unhoused people that year were most often based on low-level crimes, such as theft or drug charges, with 86% of the arrests occurring for non-violent crimes and more than 1,200 of the arrests involving procedural offenses, such as missing court (Woolington & Lewis, 2018).

For many reasons, including a lack of adequate mental health care systems, there is not a clear accounting of exactly how many of Portland’s unhoused arrestees have diagnosable mental disorders, but evidence suggests the numbers are high. The unhoused population overall is far more likely than others to be affected by mental disorders (figure 4.4). Almost half of Portland’s unhoused 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 unhoused residents of Portland, with higher numbers in certain groups: 67% of unhoused women, for example, self-identify as disabled (The City of Portland, n.d.).

In contrast to its prevalence among the unhoused population, 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, n.d-c). Disability is likewise far less common in the overall population than among Portland’s unhoused population, with about one-quarter of all Oregonians experiencing any sort of broadly-defined disability (Oregon Office on Disability and Health, 2010).

Licenses and Attributions for Criminalization of Mental Disorders

Open Content, Original

“Criminalization of Mental Disorders” by Anne Nichol is licensed under CC BY 4.0.

Open Content, Shared Previously

Figure 4.2 “Woman Prison Jail Free Stock Photograph” by Matthew Henry is in the public domain.

Figure 4.3. Julia Tutwiler Prison Wetumpka Alabama.JPG by SaveRivers is licensed under CC BY-SA 3.0

All Rights Reserved Content

Figure 4.4. “Toronto police officer and homeless man in 1995” by Ivaan Kotulsky, City of Toronto Archives, is licensed under CC BY 4.0.