Despite popular belief, the absence of a strong link between mental illness and violence has been well studied and established. In summary, in a small subset of patients, mental illness provides a minor increase in the risk of committing violence.1
Dr. Nicolas Badre
In part as a result of this research, police departments across the country have established programs and protocols to divert patients with mental illness out of the legal system and into mental hospitals. Instead of accepting the common refrain that mental illness is the explanation and best predictor of all atrocious behaviors, police departments have correctly referred patients with mental illness to mental hospitals. We commend those initiatives and encourage their adoption in all locales. Yet, to safeguard such programs, we would like to warn of a potential pitfall and offer possible remedies.
Having worked in both correctional and clinical settings, we are saddened by the similar nature of the work with respect to the management of mental illness. It should defy logic to assume the need for mental health care in our jails is in any way comparable to the one in mental hospitals. However, we have grown accustomed to seeing large numbers of our most vulnerable patients with severe mental illness accumulating in our jails and correctional facilities, which often are the largest employers of mental health clinicians. The reasons correctional institutions have become so reliant on psychiatric clinicians are vast and complex. Incarceration is tremendously destabilizing and can lead to the onset or relapse of mental illness – even in the most resilient patients. In addition, mental illness is undertreated in our communities yet inescapable in the confined settings of our jails. Furthermore, our mass incarceration problems have resulted in the most disenfranchised populations, including our patients with mental illness, becoming the targets of policies criminalizing poverty.2
To prevent furthering the process by which our correctional facilities have become the new asylums,3 law enforcement agencies have enacted a vast array of initiatives. Some include the placement of mental health staff within emergency response teams. Some include training police officers in how to talk to patients with mental illness as well as how to deescalate mental health crises. Most of the initiatives have one common goal: diverting patients with mental illness who are better treated in mental hospitals from going to jail. However, herein lies the problem: If mental illness is an explanation for only a small subset of criminal behavior, why is there a large need to divert patients with mental illness from jails to mental hospitals?
Over the past few years, psychiatrists in emergency departments have noted a concerning trend: an increase in referrals to mental hospitals by law enforcement for what appears to be a crime with only a vague or obscure link to mental illness. Most psychiatrists who regularly work in emergency departments will witness many examples. Some might be fairly benign: “They were going to arrest me for trespassing; I was yelling at a coffee shop. But when I told them that I had run out of meds, they brought me here instead.”
Dr. David Lehman
However, some stories are more chilling, including the case of an older male who had made threats while shooting his gun in the air and was brought to the emergency department because, as the police officer told us, “I think that he is just depressed; you guys can keep him safe till he is better.”
We applaud society’s desire to reduce the criminalization of mental illness. We think that psychiatry should be deeply involved in the attempts to resolve this problem. Furthermore, we are cognizant that the number of patients with mental illness unnecessarily imprisoned as a result of prosecutorial zealousness is a larger problem than criminals inappropriately brought to mental hospitals. However, we also are aware of the limitation of psychiatric hospitals in solving nonpsychiatric problems.
Recent studies have demonstrated the need to examine criminogenic needs before psychiatric ones when attempting to reduce recidivism in all offenders, including those with mental illnesses.4 The emphasis on addressing psychiatric needs over criminogenic ones is misguided and not based on evidence. Yet, we appreciate the complexity of those questions and of individual cases.
Substance use disorders are emblematic of this problem. Psychiatry has now communicated the position that substance use disorders are mental illness and not a moral failing. However, are the crimes committed by individuals with substance use disorders, whether in a state of intoxication or driven by the cycles of addiction, the blameless result of mental illness? The legal system struggles with this question, trying to determine when addiction-related crimes should be referred to a diversion program or treated as a straightforward criminal prosecution. Those who favor diversion for addiction can point out that many criminal acts are associated with mitigating factors that are no less valid than is addiction.
However, those mitigating factors, such as poverty, childhood deprivation, or a violence-infused sociological milieu, cannot be found in the Diagnostic and Statistical Manual of Mental Disorders. As such, if those factors alone were considered, no diversion would be offered by the courts. There also can be unforeseen consequences to this bias for diversion or criminal prosecution. Violent outbursts are a recognized part of PTSD in veterans. Psychiatrists who work at Veterans Affairs can be faced with the diagnosis of PTSD being used as an excuse for violent behavior, which may, at some level be valid, but which can be dangerous in that labeling a patient with that diagnosis might lower the barriers to violent behavior by providing a ready-made explanation already internalized by the patient through unspoken, sociocultural norms.
With the awareness of the complex nature of the intersectionality of mental illness and criminality, we recommend improvements to current diversion programs. As diversion programs rightfully continue to expand across the country, we likely will see an increase in the number of referrals by police officers to our emergency departments. Some of the referrals will be considered “inappropriate” after thorough and thoughtful clinical evaluation by emergency psychiatrists. The inappropriateness might be secondary to an absence of active symptoms, an absence of correlation between the illness and the offense, or a more urgent criminogenic need.
When faced with someone who will not benefit from diversion to a psychiatric emergency department, psychiatrists should have the tools to revert the person back into the legal system. Those tools could come in many forms – law enforcement liaison, prosecution liaison, or simply the presence of officers who are mandated to wait for the approval of the clinician prior to dismissing legal charges. Whatever the solution might be for any particular locale, policy makers should not wait for adverse events to realize the potential pitfalls of the important work being done in developing our country’s diversion programs.
References
1. Swanson JW et al. Mental illness and reduction of gun violence and suicide: Bringing epidemiologic research to policy. Ann Epidemiol. 2015 May;25(5):366-76.
2. Ehrenreich B. “How America criminalized poverty.” The Guardian. 2011 Aug 10.
3. Roth A. “Prisons are the new asylums.” The Atlantic. 2018 April.
4. Latessa EJ et al. “What works (and doesn’t) in reducing recidivism.” New York: Routledge, 2015.
Dr. Badre is a forensic psychiatrist in San Diego and an expert in correctional mental health. He holds teaching positions at the University of California, San Diego, and the University of San Diego. Dr. Badre can be reached at his website, BadreMD.com. Dr. Lehman is an associate professor of psychiatry at the University of California, San Diego. He is codirector of all acute and intensive psychiatric treatment at the Veterans Affairs Medical Center in San Diego, where he practices clinical psychiatry. He also is the course director for the UCSD third-year medical student psychiatry clerkship.