Senate votes again on mentally insane but guilty

SENATE AGAIN PASSES “GUILTY BUT MENTALLY ILL” BILL
Andrea Yates, Albert Fentress Cases Cited
The New York State Senate today passed legislation (S.1822), sponsored by Senator Frank Padavan (R-C, Bellerose), that would allow juries to find defendants “guilty but mentally ill” in cases where they believe the defendant may have been mentally ill at the time of the crime, but should still be held responsible for his or her actions.

“The Andrea Yates case in Texas highlights the need for another option for jurors other than simply guilty or innocent. Often, juries are reluctant to find defendants ‘not guilty by reason of mental illness,’ because they are afraid those defendants will not be held responsible and will go free after only a brief stay in a psychiatric hospital,” said Senator Padavan. “These men and women are found guilty and serve time in prison without receiving the psychiatric treatment they so desperately need.”
A Texas jury last week found Andrea Yates guilty in the drowning deaths of her five children and recommended life in prison, rather than the death penalty. Jurors said they believed that Yates was mentally ill, but that she knew the difference between right and wrong.

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“By creating a verdict of ‘guilty but mentally ill,’ a jury would be able to establish that a defendant’s mental illness is great enough to require treatment, but not so great as to relieve him or her of guilt for a crime,” said Senate Majority Leader Joseph L. Bruno. “This will keep dangerous criminals, like Albert Fentress, off the streets, while giving people with real mental defects the treatment they deserve.”
Albert Fentress, who spent the last 20 years in a psychiatric institution after torturing, sexually assaulting, killing and cannibalizing a Poughkeepsie teenager, recently petitioned the court for his freedom. The petition was only withdrawn by Fentress’ lawyers last December when a man stepped forward and was prepared to testify that Fentress had molested him just weeks before the murder, in opposition to Fentress’ claims that the assault and murder were a one-time aberration as well as his course of psychiatric treatment.

Under the provisions of the bill, a jury would be required to find that the defendant was suffering from mental disease or defect and the defendant was guilty of a crime. The plea of guilty but mentally ill could only be accepted with a prior hearing on the issue of mental illness.

Upon reaching a verdict or accepting this plea, the court would sentence the defendant for their crime pursuant to the law upon any defendant convicted of the same crime. The defendant would then be remanded to a designated psychiatric center or correctional facility with a mental health unit. Should the mental illness abate, the defendant would then remain in prison for the duration of their sentence. Nineteen states have already enacted laws to allow a “guilty but mentally ill” verdict. In addition, three states have eliminated the insanity defense all together.

“The Senate has taken the lead in passing this bill several times. I urge the Assembly to pass it and help ensure that our criminal justice system protects the public and gives mentally ill criminals the treatment they need and deserve,” said Senator Padavan.

The following are examples of murderers who are free after pleading not guilty by reason of insanity:
– Reuben Harris, who was found not guilty by reason of insanity in 1966, even though he admitted he knew it was wrong to push a 63 year old woman in the path of an oncoming subway train.

– April Dell’Olio, who was released in 1993 from the Rochester Psychiatric Center where she had been sent after being found not criminally responsible in the stabbing death of her boyfriend, David Eccleston of Chenango County.

– Ricardo Caputo, who killed four women in the 1970’s and a fifth, a psychiatrist, at the psychiatric facility to which he was sent after being declared unfit to stand trial. He subsequently fled the U.S., returning in 1995 to kill again.
If a person gets a gun and ammunition, climbs behind the wheel of a car, then drives from place to place shooting selected victims based on ethnicity, doesn’t that show he had intent to kill — even if he suffers from mental illness?
Not necessarily. Under Pennsylvania’s criminal code, the scenario may not fit the legal definition of criminal intent.
Persuading a jury to make that determination, however, is extremely difficult, and in practical terms, few such defendants are found not guilty by reason of insanity. Still, a distinction does exist between the meaning of “intent” inside and outside a courtroom.
“The ability to do simple or rote tasks like stopping at a traffic light, does not necessarily translate into the ability to form specific, legal intent to kill,” said Rob Dunham, a federal defender in Philadelphia who specializes in post-conviction appeals of death penalty cases.
One example would be David Berkowitz, or “Son of Sam,” who believed he was receiving messages from a dog who ordered him to kill.
“He was perfectly capable of driving and formulating plans for carrying out a murder,” Dunham said, but that didn’t make him capable of legal intent.
“If your mental illness is such that you can’t conform your conduct to the law or appreciate the wrongfulness of your conduct, it doesn’t matter that your mind is able to take the steps required to kill somebody.”
A jury that finds a defendant incapable of forming intent may find him guilty of a reduced charge such as third-degree murder or voluntary manslaughter. But mental illness is always a tough sell in the courtroom, which is one reason lawyers rarely employ it.
An eight-state study reported in the Bulletin of the American Academy of Psychiatry in 1991 showed that the insanity defense was used in fewer than 1 percent of the cases of a representative sampling of the state courts. Only about a quarter of those insanity pleas were successful, even though 90 percent of defendants who made the pleas were diagnosed with a mental illness.
In 80 percent of the cases in which a defendant is found not guilty by reason of insanity, it’s because the prosecution and defense have agreed on the plea before trial, according to the American Psychiatric Association.
“The vast majority of people with a mental illness would be judged ‘sane’ if current legal tests for insanity were applied to them,” the psychiatric association notes in its insanity defense fact sheet. “A mental illness may explain a person’s behavior. It seldom excuses it.”
Dunham calls mental heath “one of the most complicated areas of criminal law, poorly understood not just by the public but by most defense lawyers as well.”
The public will be hearing plenty about mental illness and the law in coming months, as prosecutors and defense attorneys gear up to tackle two high-profile cases. One involves Richard Baumhammers, the white Mt. Lebanon lawyer with a history of mental illness who is accused of killing five people and wounding one in a shooting spree targeting ethnic minorities. The other involves Ronald Taylor, a black man with a history of mental problems who is accused of killing three white men and injuring two others in Wilkinsburg two months ago. Here are some of the legal terms, definitions and procedures that could come into play.
This involves a defendant’s capacity to understand the charges and the legal process, as well as assist counsel in preparing a defense.
The courts are prone to find competency, Dunham said, adding, “Most defense lawyers are not very well schooled in presenting those issues.”
Theodore Kaczynski, the Unabomber, was found competent to stand trial, but Dunham characterized him as “objectively, utterly incapable of participating in his defense.”
Part of Kaczynski’s mental illness was the inability to recognize that he had it, Dunham said. Thus, he would not allow his lawyers to plead insanity. He was found competent to stand trial, fired his attorney, eventually pleaded guilty with counsel and was sentenced to life in prison. Now he’s challenging his guilty plea as having been coerced.
After the Wilkinsburg shootings, Taylor was found competent to stand trial by a Mayview State Hospital psychiatrist. But two other psychiatrists found otherwise, prompting Common Pleas Judge Jeffrey A. Manning to rule that Taylor was incompetent. Manning ordered him returned to Mayview for treatment until he is able to understand his predicament and help his lawyers in his defense.
Mentally ill. Under the Pennsylvania criminal code, this term applies to someone whose “disease or defect” leaves him unable either to understand his conduct is wrong or to conform it to the law.
Legal insanity. This means that at the time of the act, the defendant was laboring under “such a defect of reason, from disease of the mind, as not to know the nature and quality of what he was doing” or to realize it was wrong.
A person found not guilty by reason of insanity will be sent to a mental hospital until such time, if any, he is no longer considered a danger. One famous example is John W. Hinckley Jr., who shot President Reagan. He has been at St. Elizabeth’s Hospital since 1982.
According to the psychiatric association, people who are found not guilty by reason of insanity are held, on average, as long as or longer than those found guilty and sent to prison for similar crimes.
Diminished capacity. This is not technically a defense but, in first-degree murder cases, the defense can contend that the state hasn’t proven the deliberation and premeditation element of first-degree murder because the defendant doesn’t have the mental capacity to carry out a plan or design.
Guilty but mentally ill. This applies to a defendant who was mentally ill but not legally insane when he committed the offense.
According to the state code, a person who waives his right to a trial may be found guilty but mentally ill. However, in order to accept the plea, the judge must examine all reports and hold a hearing on the sole issue of mental illness. If the judge then rejects the plea, the defendant is still entitled to a jury trial, or a trial before a different judge.
This verdict can be rendered if the defense raises a reasonable doubt about the defendant’s ability to premeditate, act with malice or form criminal intent.
A defendant found guilty but mentally ill will serve out his sentence in a prison or hospital.
One example was Joel T. Sherako of Natrona Heights, who pleaded guilty but mentally ill to third-degree murder in the multiple-stabbing of his grandfather in 1998. Common Pleas Judge David Cashman sentenced him to 20 to 40 years in a prison with a mental health unit, where he was to be monitored on a regular basis.
“He is a very sick man,” Cashman said after sentencing Sherako, who had a history of schizophrenia.

An obvious question is whether effective treatment costs less than incarceration. In 1996, the cost of incarcerating an individual in the New York City jail system for one year was approximately $64,000.23 The comparable cost of a year in state prison was $32,000.24 This is equal to $175 per day to keep someone in jail and $88 per day in prison. These figures are for the average inmate, however, and people with mental illness are not average inmates; inmates with mental illness require far more than their “share” of jail and prison resources, in the form of treatment, suicide prevention observation and crisis intervention. As a result, inmates with mental illness substantially inflate average incarceration costs.
In comparing the costs of diversion to those of incarceration, it is important to remember that incarcerating a person with mental illness does not “save” the cost of providing health and mental health care to the individual. Health services provided in jail or prison are limited but costly. For example, New York City pays more than $115 million a year to provide health and mental health services to jail inmates.25
Another important element of any comparison of the costs of diversion with those of not diverting people with mental illness is the costs of processing the case. Long before a person with mental illness is sentenced to incarceration, taxpayers begin paying the costs of the police who arrest and process the person; the court pens where the person is held; the defense attorney who represents the person; the Assistant District Attorney (ADA) who prosecutes the person; the judges the person appears before, as well as their staff and court officers; the rent, maintenance and overhead of the courthouse; the jail where the person is detained; transportation to and from the jail, et cetera. Diverting a person with mental illness out of the criminal justice system at an early stage, for example prior to arrest or at arraignment, saves not only the cost of incarceration, but many of these costs as well.
Finally, any cost comparison is incomplete if it does not consider the future fiscal consequences of the decision to divert or not divert a person with mental illness from the criminal justice system into treatment. Many of the people with mental illness in New York’s criminal justice system are caught in a “revolving door” that shuffles them repeatedly through hospitals, jails and shelters at an enormous cost to taxpayers. One authoritative estimate places the annual cost of serving a seriously mentally ill homeless person caught in the revolving door of repeated hospitalizations in New York City at about $70,000.26 An individual passing repeatedly through hospitals and the criminal justice system may cost even more. If diversion from the criminal justice system into community mental health services creates an opportunity to engage the individual and provide services that will stop the revolving door and prevent future hospitalizations and arrests, and the other costs of crime, for example, injury to victims and property damage, then diversion has the potential to save a great deal of money in the long run.
It is difficult to quantify the costs of treating a person with mental illness in the community because the individual may use a variety of mental health services. The question of how much mental health services cost, and how this cost compares to that of incarceration, has not been widely studied in the past; currently, a number of jurisdictions have begun to research the comparative costs of community treatment and incarceration.27
New York State is home to a large and complex prison system composed of 69 facilities scattered throughout the state, holding about 70,000 inmates. Although prisons are distributed statewide, with relatively few located in the New York City area, 70% of state prisoners come from New York City.
Although a higher proportion of New York City jail inmates are seriously mentally ill than state prisoners, the prison system is also, for many New Yorkers with mental illness, the psychiatric hospital of last resort. Last year, New York State prisons treated 6,000 inmates, or 8.7% of the state prison population, for serious psychiatric disorders.71 This figure is remarkable when compared to the fact that the entire state has only 5,800 adult patients in public psychiatric hospitals.72 A 1987 study of the New York prison system found that 15% of inmates suffered from a significant or severe psychiatric disability.73 In a system with approximately 70,000 inmates, this means that at any given time there are about 10,500 state prisoners with significant psychiatric service needs.
Approximately 1,500 to 2,000 state prisoners with mental illness are released to New York City each year,79 and many of these people have no access to mental health services following their release. They leave prison without employment or benefits or insurance and, very likely, without anywhere to live. The Department of Correctional Services gives releasees $40, a bus ticket home, and a list of parole conditions. OMH has a policy of providing all seriously mentally ill releasees with a two week supply of medication plus a prescription for an additional two weeks, but it is not clear that all prisoners who need medications following release are included by this policy, and even those who are will have a four-week gap between when they run out of medication and when they receive the Medicaid benefits they need to fill a prescription. For most prisoners with mental illness, this is the extent of the discharge planning they receive.
Some prisoners, particularly those receiving intensive mental health services, do receive discharge planning before they are released. OMH has a discharge planner at each satellite unit and the NYC-LINK program has four transition support counselors working with inmates leaving state prison. These services are located in Level I and Level II facilities, however, and do not reach anywhere near all the inmates who need them. Some people with serious mental illness are able to function better in a highly structured environment than in an unstructured one. The extreme regimentation of prison, while certainly not therapeutic, may actually help some inmates with mental illness to maintain a higher level of functioning than they would be able to manage in the community, thus masking their great need for discharge planning and support following release. For example, some inmates with serious mental illness are able to function in Level III or Level IV facilities as long as they get psychotropic medications. When they near release, however, they are unlikely to be the recipients of scarce discharge planning resources, because those resources are concentrated in Level I and Level II facilities.
As a result, advocates in New York City frequently encounter parolees who have been taking powerful psychotropic medications, such as Thorazine, Haldol or Lithium, for years while incarcerated, but who are released to the city shelter system without access to medication and benefits, and thus, no way to continue treatment.
Even for those inmates who receive discharge planning, there are crucial gaps in the continuum of care. For prisoners returning to New York City, a wide variety of community resources is available, including supportive housing and intensive social service programs. Unfortunately, OMH discharge planners do not seem to have much success accessing these resources for prisoners nearing release. Discharge planners are handicapped by the great distance between the facility holding the prisoner and the community he will return to. Community mental health service providers are reluctant to accept clients who do not have benefits already in place, and discharge planners at faraway facilities have a difficult time developing the personal relationships with program staff which often help smooth over such obstacles. As a result, for state prisoners who receive discharge planning, the discharge plan is often no different from that of other inmates — release to one of New York City’s Department of Homeless Services shelters.
Upon entering the shelter system after incarceration, the mentally ill releasee must spend up to three months being assessed in a general population intake shelter with few or no mental health services. No information is exchanged between the prison system and the shelter system, so if the releasee is not obviously mentally ill and does not volunteer that he is mentally ill, he will not receive mental health services. Often no one is available to assist the person with mental illness in accessing benefits, insurance and treatment. For a person with mental illness recently released from the controlled environment of a prison, city intake shelters can be chaotic and frightening places.
State prisoners usually serve indeterminate sentences, i.e., two to six years, or seven to 14 years.80 Inmates released prior to serving their maximum sentence are supervised by parole until that maximum date arrives. The purpose of parole is to monitor the ex-prisoner’s conduct in the community and ensure the person remains law-abiding. Parole officers have the power to impose any number of conditions on an ex-prisoner, such as requiring that the parolee receive psychiatric treatment or not use drugs or alcohol. For ex-prisoners with mental illness, a parole officer could be a valuable resource for help in securing benefits, housing and treatment. OMH has made efforts to train parole officers about mental health issues, but parole caseloads are high and few officers have the time or expertise to help parolees reinstate their benefits and obtain mental health services.
Because their parole conditions generally require them to get mental health treatment and to remain in the shelter, people with mental illness recently released from prison are in an even worse situation than those released from jail. When they decompensate because they have not received mental health services, or when they leave the shelter because their mental state is too fragile for such a difficult environment, they have violated parole and are often sent back to prison shortly thereafter. People with mental illness are particularly likely to find themselves in punitive or administrative segregation due to behavior that is symptomatic of their illness.83 For example, studies in Ohio in the early 1990s found that hundreds of inmates had been placed in disciplinary cells for no reason other than mental illness.84 “Acting out” psychotic behavior and even suicide attempts by inmates with mental illness are sometimes treated as discipline problems; several days after his death, one inmate in a California prison received a disciplinary write-up for committing suicide.85
The conditions in punitive and administrative segregation create great psychological stress and can cause symptoms of mental illness to appear even in inmates with no prior psychiatric problems. Segregated inmates are also at risk for suicide. A recent study examined nine suicides that occurred within 24 months at an unnamed large metropolitan jail; the author found that of the nine suicides, eight were segregated from the general population of the jail at the time of their death.86
The dangers of segregation have been recognized by courts in many prisoners’ rights cases. For example, in 1995 a federal court held that, “Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances.”87 Another federal court, presented with allegations regarding the misuse of administrative segregation in New York State prisons held that, “A conclusion …that prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science.”88
Too often, psychotropic medication is the only form of treatment available to prisoners with mental illness confined in punitive or administrative segregation units. Even though the Department of Correctional Services requires that a mental health counselor make daily rounds in special housing (segregation) units, actual contact with individual prisoners, in the form of conversation or counseling, is infrequent. The cumulative effect of isolation, reduced supportive services and sensory deprivation will typically leave the inmate with mental illness functioning at a lower level than before incarceration.
While incarcerated, people with mental illness lose many of the community contacts that are essential to their success following release. It is difficult for even the most supportive family members or friends to maintain contact with an incarcerated person. Rikers Island, where the vast majority of city jail inmates are housed, is very inconvenient to visit. A trip to Rikers is likely to take an entire day; when the visitor finally arrives, the inmate may have been taken to court for the day or transferred to another facility. Visiting state prisoners also poses challenges. Most state prisons are located hours from New York City, with some as far away as the Canadian border. To reach these facilities, families take buses from Manhattan on Friday night, spend Saturday at the prison, then Saturday night on the bus returning to the city. Under these difficult circumstances, as years of incarceration go by, a prisoner’s connections with family and friends often wither and die. When a released prisoner returns to the community, with neither discharge planning, transitional services, nor the support of family and friends, he is likely to reoffend or violate parole, and be returned to prison.
Disconnection from community mental health services
Another vital source of support for people with mental illness is community mental health services. New York City is home to a broad spectrum of mental health services, ranging from simple outpatient clinics to 24-hour supportive residences. Many people with mental illness who are arrested have some connection with a community mental health service provider prior to incarceration. These people are likely to be receiving treatment, including psychiatric medication, which is disrupted when they are arrested and incarcerated. Staff at these programs often wish to maintain contact with the client to ensure that the client is getting appropriate mental health services or to offer support to the person following release. But a number of barriers make it difficult for community mental health providers to maintain contact with incarcerated clients.
When jail-based mental health professionals evaluate a newly arrested defendant at intake, it is often as if the patient has never before received mental health services. Members of the jail’s mental health staff interview the patient and make informed guesses about the person’s diagnosis and which medications may be helpful; no system exists to facilitate or even encourage the exchange of information between community treatment providers and jail staff. Having to “reinvent the wheel” with each incoming patient is frustratingly inefficient and clinically unsound. Many inmates have a psychiatrist or case manager in the community who can tell the workers in jail, for example, that the patient’s last diagnosis was schizoaffective disorder and that he has had bad side effect reactions to Haldol and Mellaril and Lithium and Zoloft, but recently has been doing well on a dose of 15 mg. of Stelazine and 1200 mg. of Depakote at night plus 1 mg. of Cogentin two times a day. As any community mental health worker can attest, it can be exceedingly difficult for an outsider to locate a client in the city’s criminal justice system. The process of finding out which jail an individual is in is a complicated on requiring multiple phone calls. Once an inmate is located, it is difficult to even find the names and numbers of whom to talk to in the individual jails, much less get information regarding an inmate’s treatment status. Community mental health workers who manage to contact a facility where a client is being held often find that no one staff person is responsible for gathering or relaying information about what medication the client has been taking or what diagnoses have been made. Defense attorneys, who could act as liaisons between a community program and the jail, often do not see this as part of their job or understand the advantages of involving a community mental health worker in their client’s defense. Finally, when an inmate with a mental illness goes to court or is released it is rare that anyone will notify his community worker — although it might be useful for the worker to come to court and essential for the worker to know when the client is being released and returning to the community program. All of these barriers lessen the effectiveness of community mental health programs. By necessitating the duplication of each others’ work, these barriers also waste the resources of both community and jail-based mental health programs. They also jeopardize the mental health of inmate patients by interrupting their continuum of care. Incarceration costs inmates their homes; many mentally ill people are homeless at the time of their arrest, but far more are homeless by the time they leave jail or prison. Even people detained for only a few weeks may be evicted during their incarceration; those who are incarcerated for a year or more will inevitably leave prison homeless unless they have family or friends who will take them in. Homelessness is a problem for everyone leaving jail or prison, but people with mental illness are worse equipped than most to take on New York City’s daunting housing market or to navigate the city’s shelter system. Stable and supportive housing is an essential key to successful reintegration into the community for ex-offenders with mental illness.89 Most city jail inmates with mental illness depend on Social Security or Public Assistance benefits for income, and Medicaid for insurance. The longer the period of incarceration, the more likely it is that these benefits will be terminated; even a short incarceration may lead to loss of benefits. For example, under New York City’s Work Experience Program (WEP), Public Assistance recipients are required to report to work assignments in order to maintain their benefits. Missing even a single day of work without a documented excuse leads to loss of Public Assistance, Food Stamps and Medicaid.90 Additionally, a graduated series of sanctions that require waiting periods of up to 180 days before the former recipient may reapply are imposed as penalties for failure to comply with WEP requirements. Therefore, as a result of these policies, a person with a mental illness who is arrested for a misdemeanor, such as jumping a subway turnstile, and spends a day or two in the system prior to arraignment can lose his benefits, insurance, access to mental health treatment and housing. People incarcerated for months or years always lose their benefits, and they cannot reapply for benefits prior to release. On the outside, the application process is bewildering even for people who are not dealing with mental illness and the upheaval of having recently left jail or prison. For example, to apply for Public Assistance, Food Stamps and Medicaid, an applicant must first figure out which Income Support Center to go to. The closest Income Support Center is not necessarily the right one; Income Support Centers are down-sizing and merging, and Income Support Centers’ overworked staff sometimes tell new applicants that the Center is not taking any more applications. Once the appropriate center is located, the applicant must arrive before 9 a.m., complete a complicated application form, present identification and documentation of rent expenses and/or lack of cooking facilities, and be interviewed by a caseworker.
The applicant will then be directed to the Eligibility Verification Review office in Brooklyn Heights for a painstaking interview intended to detect fraud. Then, Eligibility Verification Review will send the Front End Detection System workers, who carry badges and announce themselves as “the FEDS,”91 to visit the applicant’s house and verify residence. If, after three visits, the FEDS have not found the applicant at home, the case will be closed.
Under the new welfare-to-work initiatives, many Income Support Centers have become Job Centers. An applicant who goes to a Job Center will be turned away the first time and sent to look for a job or other resources.92 Once applicants return to the center and prove that they have been actively seeking work, cannot find work and have no other resources, they are permitted to apply for benefits. They must comply with finger-imaging in order to begin the process. Next they are sent to a center where they must report promptly five days a week and spend the day looking for a job for 50 days (35 if they have children to take care of) before they will receive benefits. If a caseworker believes the applicant has a substance abuse problem, the applicant must undergo substance abuse assessment at a center in Long Island City. Applicants who indicate that physical or mental health problems limit their ability to work must report for examination at Health Service Systems in midtown Manhattan.
The burden on city shelters: New York City’s Department of Homeless Services (DHS) is the shelter provider for up to 7,584 single adults on any given night. By default, DHS shelters have become the “discharge plan” for thousands of homeless mentally ill ex-offenders. A recent survey by the Coalition for the Homeless found that one-third of a sample of men at the Atlantic Avenue Armory had gone directly to the shelter from prison.93 Obviously, adequate discharge planning for the mentally ill, including housing referral, would relieve the shelter system of a great burden. Short of finding housing for every person in need, however, easier ways exist to create some continuum of care for ex-offenders with mental illness going to DHS shelters.
Currently, even when mental health workers in jails and prisons know that a soon-to-be-released inmate with mental illness is going to a city shelter, no mechanism exists to convey treatment information or to make a formal referral to that shelter. No one at the shelter is notified that the client will be arriving, and no mental health information is sent to the shelter prior to the client’s release. During intake into the shelter system, each person is asked questions about psychiatric history. But those who are not obviously ill, if they withhold information about their psychiatric history and do not identify themselves as needing psychiatric services, will be put in a general population shelter and will not receive mental health services.
Many of these shelter clients, having been released from jail or prison with little or no medication, soon decompensate. They proceed to disrupt the shelter or endanger themselves until they are hospitalized or rearrested. New York City’s shelters are not merely full of people with mental illness who recently left jail or prison; they are full of acutely psychotic people who recently left jail or prison. People with mental illness entering the criminal justice system have complex service needs that incarceration does little to alleviate. In fact, by the time most people with mental illness leave the criminal justice system, their problems have been exacerbated.
People with mental illnesses have difficulty protecting themselves while incarcerated. Jails and prisons are often harsh, dangerous environments for inmates, and are especially so for the mentally ill. Common symptoms of mental illness include bizarre and disorganized behavior; these behaviors make mentally ill prisoners vulnerable. Bizarre behavior often annoys correction staff and other inmates and leads to victimization. Disorganization makes prisoners with mental illness easy prey for aggressive fellow prisoners. Finally, untreated mental illness may make inmates’ behavior erratic, alarming others and at times provoking violent responses from guards and other inmates.
Like all prisoners, inmates with mental illness learn institutional behaviors that help them cope with incarceration but that compromise their successful transition back to the community. Some of these behaviors may include aggressiveness and intimidation of others or, conversely, extreme passivity, manipulative behavior and reluctance to discuss problems with (or “rat” to) authority figures.81 These behaviors create barriers to engagement in mental health services and treatment. Former prisoners may associate the structure of mental health treatment facilities, such as hospitals and supportive residences, with prison, and behave accordingly toward staff and fellow patients.
Inmates with mental illness may be punished for disruptive behavior in ways that exacerbate their illnesses. The standard punishment for disobeying prison or jail rules is “punitive segregation” — locking inmates in small single (or occasionally double) cells for 23 hours a day. Better known as solitary confinement, the punishment prevents contact with the general population, prohibits participation in programs or prison work, and often denies the inmate access to reading materials or hygiene products. A person with mental illness who has not violated rules, but whose presence in general population is deemed by correction officials to “pose a threat to the safety and security of the facility,”82 will be sentenced to administrative segregation. Despite the kinder-sounding name, administrative segregation is just as isolating as punitive segregation and often as restrictive in terms of movement and privileges. New York correction officials have been known to sentence inmates to punitive or administrative segregation for years at a time.
People with mental illness are particularly likely to find themselves in punitive or administrative segregation due to behavior that is symptomatic of their illness.83 For example, studies in Ohio in the early 1990s found that hundreds of inmates had been placed in disciplinary cells for no reason other than mental illness.84 “Acting out” psychotic behavior and even suicide attempts by inmates with mental illness are sometimes treated as discipline problems; several days after his death, one inmate in a California prison received a disciplinary write-up for committing suicide.85
The conditions in punitive and administrative segregation create great psychological stress and can cause symptoms of mental illness to appear even in inmates with no prior psychiatric problems. Segregated inmates are also at risk for suicide. A recent study examined nine suicides that occurred within 24 months at an unnamed large metropolitan jail; the author found that of the nine suicides, eight were segregated from the general population of the jail at the time of their death.86
The dangers of segregation have been recognized by courts in many prisoners’ rights cases. For example, in 1995 a federal court held that, “Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances.”87 Another federal court, presented with allegations regarding the misuse of administrative segregation in New York State prisons held that, “A conclusion …that prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science.”88
Too often, psychotropic medication is the only form of treatment available to prisoners with mental illness confined in punitive or administrative segregation units. Even though the Department of Correctional Services requires that a mental health counselor make daily rounds in special housing (segregation) units, actual contact with individual prisoners, in the form of conversation or counseling, is infrequent. The cumulative effect of isolation, reduced supportive services and sensory deprivation will typically leave the inmate with mental illness functioning at a lower level than before incarceration
People with mental illness in the criminal justice system are a large and growing population with enormous, complex needs. Instead of treating them, we prosecute them. We must reverse this trend now not only because it is the right and humanitarian thing to do, but also because our current practices spin people ever faster through the revolving door — from the community to jail to the community to the hospital, out again and then back to jail — and needlessly waste precious taxpayer dollars. We need to stop serving this population reluctantly and haphazardly, in precincts, court pens, emergency rooms, jails and prisons, and offer them, instead, comprehensive community-based services that will stop the revolving door.
The solutions to these problems are clear. They are not necessarily expensive or difficult to implement. Many merely require a recognition of the inefficiencies of the current system, the programs and services that are available, and a desire to integrate our criminal justice and mental health systems in sensible ways. We need mechanisms to divert people with mental illness at every stage of the criminal justice system. We need ATI and enhanced community mental health programs that can accommodate people with mental illness diverted from the criminal justice system. We need discharge planning for all jail and prison inmates with mental illness and programs that will assist people as they return to the community.
People with mental illness caught up in the criminal justice system are part of our communities. Our present system is failing to retrieve these many desperate lives and failing equally to spend available money judiciously. Decency and fiscal responsibility call for the changes outlined here. New York City and State could become leaders in addressing this growing national problem and assisting society’s most vulnerable citizens. It is our hope that this report and these recommendations will persuade policymakers to follow this sensible and humane path
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Nusrat Ahmad: Pioneer of PakistanAs I walked up to the future interior designer of the Ahmad family, I wondered the…

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