By JOE MARINELLO
Copyright 2004, Men Stopping Violence Inc.

The Prevalence of Offenders with Mental Disorders

The recent surveys completed by the Bureau of Justice Statistics show a growing population of mentally disordered offenders in the correctional field. For example, at midyear 1998, a quarter million of mentally disordered offenders were incarcerated in the nation’s prisons and jails. About 547,800 probationers said they had had a mental condition or had stayed overnight in a mental hospital at some point in their lives. The same trend continued in the year 2000. At midyear 2000, on average, 1 in 10 state inmates were receiving psychotropic medications. In five states (Hawaii, Maine, Montana, Nebraska, and Oregon) nearly 20% of inmates received psychotropic medications. At least one in eight state inmates were involved in mental health therapy or counseling.

Who are the Mentally Disordered Offenders in Corrections?

The phrase mentally disordered offenders has been used to describe four categories of individuals in the criminal justice system: (1) not guilty by reason of insanity, (NGRI); namely, the person’s mental disorder at the time of his or her offense renders him or her criminally not responsible for the offense. (2) incompetent to stand trial (IST); (3) mentally disordered sex offender; and (4) mentally disordered inmate.

How Offenders with Mental Disorders End up in Corrections

The issue of mental disorder for an offender may arise at any point in the criminal process, from arrest, trial, to sentencing, during incarceration, and in community corrections. The movement of offenders with mental disorders through the criminal justice system may start when a person is arrested for a crime and is charged and arraigned. If the defendant seems mentally disordered, the court orders an evaluation of competence to stand trial. If the defendant is found to be incompetent to stand trial, such as being unable to understand the legal process or unable to assist a lawyer in the preparation of a defense, he or she will then be ordered to be treated as competent and the trial begins. If the defendant is found not guilty by reason of insanity, he or she is committed to a secure hospital administered by the State Department of Health and Social Services. If the defendant is found guilty, he or she is sent to corrections. The state prison system typically screens inmates for mental disorders at a reception/diagnostic center prior to placement in a state facility.

Assessment and Treatment

Mental health services for offenders either in custody or in the community can be placed largely into the following categories: screening, evaluation, psychiatric treatment, rehabilitation, case management, medical treatments, and special treatment (e.g., substance abuse treatment, sex offender treatment programs). When offenders with mental disorders serve their times in the community however, additional issues, such as housing, public assistance, education and employment, may arise.

The typical assessment tool used by the mental health professionals in corrections involves The Diagnostic and Statistical Manual of Mental Disorders IV, or DSM-IV, compiled by the American Psychiatric Association. It is a guidebook for the mental health professional (MHP) to measure major clinical disorders, such as schizophrenia, anxiety, mood disorders, and personality disorders. It also helps the MHP to record a client’s functions in other areas, including his or her general medical conditions, psychosocial problems, education, employment, housing, economic problems, problems with access to health care services, interaction with the legal system, and global assessment of functioning.

Because this population includes a diverse group with a wide range of treatment needs, in addition to active psychotic symptoms, their clinical problems include aggression and problems of institutional management, criminal predilection, skill deficits, substance abuse, estrangement from family and friends, and other serious health conditions, such as HIV/AIDS, tuberculosis, and hepatitis. Incarceration conditions, such as overcrowding-produced stress, also cause mental disorders in corrections by aggravating the existing mental disorders or developing new ones. Therefore, the function of treatment includes both the reduction of risk of violence as well as the alleviation of the mental disorders by employing psychotropic medication, individual psychotherapy, group psychotherapy, acute hospitalization, substance abuse treatment, and case management addressing other needs areas.

The Dual Status of Mentally Disordered Offenders

Because mentally disordered offenders overlap with both offender and mentally disordered populations, how to interpret the relations between the two aspects of the offender population exemplifies major issues and conflicts in legal decisions, staff interactions, and treatment.

History of the Law

The evolving legal milieu related to mentally disordered offenders can be categorized into three stages: pre-civil rights movement, the civil rights movement, and 1980’s to the present.

At the stage of pre-civil rights movement, individuals with mental disorders could be taken into custody on the arresting officer’s judgement. The mental health system had a comparable ability to cast a wide net, with broad civil commitment criteria and few procedural protections. Treatment staff had great control over admission and release decisions. Offenders with mental disorders had virtually no voice of their own.

During the civil rights movement (the early 1960s to about the 1980s), a series of landmark legal cases reaffirmed individual constitutional rights that limited governmental authority, placing restrictions on using the mental health system to remove offenders with mental disorders involuntarily from the community.

These legal cases at this stage were based on the premises that under the equal protection of the law, a prison inmate should be given the same procedural protections as any other individual being civilly committed. Additionally, the judges or juries, rather than clinicians, should be primarily responsible for the determining whether offenders should enter the mental health system. Furthermore, the least restrictive treatment alternative should be employed.

From the 1980s to 1990s, however, judicial attitudes toward offenders with mental disorders changed. Courts abandoned rehabilitation as the primary purpose of criminal incarceration, adopted a just desserts theory, and became more reluctant to interfere with the administration of large state institutions, including mental hospitals. The courts retreated from earlier assertions that all psychiatric patients have the same rights, permitting greater restrictions on the release of offenders with mental disorders, with the need to protect the community taking priority over the liberty interests of the offender. Offenders with mental disorders may be denied the least restrictive alternative, with the burden placed on them to show an absence of dangerousness.

The Current Law

The federal constitutional obligation to provide mental health care to inmates suffering serious medical or mental health conditions results from a combination of judicial interpretation of the Eighth Amendment and the due process clause of the Fourth Amendment. In spite of many changes in the legal circumstance, the premises of the 1960s and 1970s do not appear to have been totally abandoned. The current legal context reflects an attempt to balance two type of interest: community protection and the constitutional rights of mentally disordered offenders.

For example, the Deshaney principle (Deschaney v. Winnebago County Department of Social Services, 1989) maintained the government’s obligation to provide health care. A state has a duty to provide necessary services to and to protect from injury, certain classes of persons in custody once they enter into a “special relationship” with the state.

In Estelle v. Gamble (1976), the Supreme Court held that reasonable correctional staff must be deliberately indifferent to the serious medical needs of inmates before Eighth Amendment liability may apply.

The Supreme Court, in Washington. Harper (1990), ruled that although inmates have a protected constitutional interest in avoiding forced dispensation of psychotropic drugs, this interest must be balanced against the state’s interests in prison safety and security. In a recent decision (Kansas v. Crane, 2002), the Supreme Court ruled that for states to incarcerate sex offenders after they have served their prison time, the states must show that these inmates have both a mental disorder and “serious difficulty” in controlling their behavior.

Ethical and Professional Conflicts for the Mental Health Professional in Corrections

There are unique ethical and professional conflicts and dilemmas for the MHP (e.g., psychologists, social workers, psychiatrists, correctional mental health counselors, and other therapists) in corrections.

First, MHPs have dual roles (both as a treatment staff and as an enforcer of Department of Corrections [DOC] policies). They are compelled to address the needs of the institution as primary and are considered correctional officers first and foremost, and expected to engage in custody-oriented activities (e.g., assisting an evening count, search for contraband of inmates’ property, pat search of all inmates). This requirement undermines the traditional therapeutic goals and relationship between the therapist and the individual inmate, compromising the therapist’s credibility and efficacy.

Second, the issue of informed consent and confidentiality, which is crucial, is not an issue for correctional administrators.

Third, the conflicts involve how to interpret inmate disruptive behavior. While the custody staff tends to ignore, dismiss, misidentify, or punish problematic behavior, the health professionals tend to see such behavior as a product of mental illness or a reflection of a psychotic episode.

According to Weinberger and Sreenivasan (1994), these conflicts reflect the prevailing ideology of the correctional administration that de-emphasizes treatment and empathizes security and custodial concerns.

Some maintain that the conflicts involve the interface of mental health, law, and corrections. The law is based on a strict definition of right and wrong and on absolute judgements of guilt, with an emphasis on incapacitation and social control goals. On the other hand, the goal of mental health is based on medicine and view that proper treatment will restore the patient to a basic, good adaptation state. The medical position or treatment model is concerned with the offender as an individual and the ability to treat that individual.

Mentally Disordered Offenders Interact with Multiple Systems

Considerable research has been conducted to evaluate the correlation between mental disorder and violence, which has been the subject of political and scientific controversy for decades. Although there appeared to be a grater-than-chance- relationship between mental disorder and violent behavior, mental disorders make only a trivial contribution to the overall level of violence in society. It can be argued, however, that in order to understand the issue of mentally disordered offenders in corrections, make effective interventions, and develop appropriate policies, we need to go beyond the mental disorder-violence theme by understanding the four following issues:

First, the changing legal context has contributed to the growing problems of mentally disordered offenders. Recent changes in the law and courtroom proceedings make it more difficult to divert offenders with mental disorders into non-correctional treatment programs. Many of the patients formerly taken care of in hospitals are now housed in prisons, because there is an increase in arrests related to drug offenses, and punishments for these offenses are harsher and less flexible (Kupers, 1999; Sowers et al., 1999).

Second, social policies, such as that of de-institutionalization, which caused the release of thousand of mentally ill people from psychiatric facilities to the community, have contributed to the high prevalence of mental disorders within correctional facilities (Conly,1999; Kupers, 1999). This otherwise well intended policy has exacerbated conditions for the mentally disordered and contributed to their increased involvement in the criminal justice system, because it coincides with a lack of adequate social services, including cuts in public assistance, declines in the availability of low-income housing, and limited availability of mental health care in the community.

Third, the issue of mentally disordered offenders in corrections should be examined in the cultural and gender contexts of the offender population.

According to the Bureau of Justice Statistics (2001a, 2001c), the general offender population in correctional facilities is represented by a disproportionate number of African Americans. More than a third of probationers, two out of five parolees (i.e., 9.7 percent) are African Americans between the ages of 25 ands 29 years. By the end of the year 2000, we saw a 6.6 percent of women incarcerated with 22 percent of these women on probation and 12 percent parolees.

Although the plight of mentally disordered female prisoners is no better than that of male counterparts, harsher sentences, especially related to drugs, cause overcrowding in women’s prisons (Kupers, 1999). Studies have shown that females in corrections have psychological needs and mental health problems that are different from those of men. Female offenders not only were more likely to suffer physical and sexual abuse as children but also are more concerned with interpersonal relationships than male offenders. Human connections are extremely important in the psychological development and functioning of women. Women’s involvement’s with crimes and abuse of illegal drugs are often initiated or aggravated by their failed attempts to connect with others.

Fourth, understanding the interpersonal cognitions of mentally disordered offenders is necessary for effective treatment.

Mental disorders are not just biological issues. Although biological therapies such as medication may eliminate or alleviate symptoms, they do not address psychosocial problems or the mental issues of a client (Maxmen & Ward, 1995). The psychosocial problems of the offender population entail counseling interventions to focus on changing offenders’ interpersonal cognitions or understandings about relationships between the self and others, rather than on changing a negative concept of the self.

Focusing on the client’s interpersonal cognition is important because it has been well documented that dysfunctional social relationships, which prevent individuals from achieving positively valued goals or avoiding negative or adverse stimuli or situations, can lead to crime (see Agnew, 1999; Mazerolle & Maahs, 2000). In addition, clinical observations reveal that offenders use invalid methods to understand or deal with conflicts, such as applying violence or intimidation to get what they want, imposing their desires or commands on others or situations without consideration of reactions of the other or of the circumstances, not because they have misconceptions about their selves but because they misunderstand others (Sun, 2001). On the other hand, building, rebuilding, and strengthening social relationships serve as a buffer against recidivism (Bazemore et al., 2000). All negative social environments and dysfunctional social relations are mediated by offender’s misunderstanding of their interpersonal experience.

Studies show that offenders with mental disorders often engage in criminal activities as a way to cope with their interpersonal conflicts and abusive experiences (e.g., Falshaw & Browne, 1997; Gladwell, 1998). Clinical observations reveal that when clients cannot understand or make sense of their frustrations in interpersonal relationships, they often engage in criminal activities (e.g., abusing drugs and alcohol, engaging in gang activities, shoplifting, and running away) as a way to alleviate their emotional pains. Their criminal activities, in turn aggravated their mental conditions by putting themselves in dysfunctional environments (Sun, 2001).