Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill
David B. Kopel
Independence Institute; Denver University - Sturm College of Law
Clayton E. Cramer
College of Western Idaho
August 24, 2015
Howard Law Journal, 2015, Vol. 58 No. 3, pp. 715-78
U Denver Legal Studies Research Paper No. 15-05
How to reduce gun violence, while respecting civil rights, including the Second Amendment? One such means is to provide much more help to people who suffer from severe mental illness. The biggest violence-reductive effect would be in diminishing the number of crimes against the mentally ill, who are disproportionately victimized.
Only a small minority of seriously mentally people commit violent crimes; but people with serious mentally illness people are significantly more likely to commit violent crimes than are people who are not seriously mentally ill. However, closer examination shows that seriously mental illness as a crime risk is mainly when that illness is accompanied by other risk factors, such as alcoholism, or unemployment. So helping seriously mental ill people improve their lives — such as by holding a steady job — will also have large crime-reducing effects. Helping people with untreated serious mental illness is a particularly relevant to reducing homicide and even more so for reducing mass attacks against strangers.
Reducing violence by and against persons with the severe mental illness does not require reducing the due process rights of anyone. As with severe physical illness, treatment provided by charitable or government programs can often help a severely ill person constructively participate in society.
Part I of this Article provides the definitions for some mental illnesses, as well as estimates of the numbers of people in the United States who suffer from these illnesses.
Part II examines the data about the relationship between severe mental illness and violent crime. Severe mental illness does raise the odds that a person will perpetrate a violent crime. But most often, the increased risk is not from the direct effect of the illness itself (such as hallucinations or delusions) but rather from other factors — such as developing a substance abuse problem, or being victimized — for which the seriously mental ill can be at particularly high risk. As Part II explains, seriously mentally ill people are much more likely to be crime victims than to be crime perpetrators, and the large majority of people who are seriously mentally ill never perpetrate violent crimes.
Part III examines the data on serious mental illness and homicide, especially mass homicide. At this extreme end of the criminality spectrum, the association between untreated severe mental illness and mass murder is overwhelming. The fraction of perpetrators who are severely mentally is grossly disproportionate to the small percentage of the population with severe mental illness.
Part IV explains current statutory and case law about when a person be deprived of the constitutional rights to arms, based on alleged mental illness. The federal Gun Control Act of 1968 imposes a lifetime firearms prohibition for any person who has been adjudicated mentally ill. More recently, due process protections have been somewhat improved, especially for persons who had a problem decades ago, and who have fully recovered.
Part V details the depressing results of the de-institutionalization movement of the latter part of the twentieth century. Today, prisons and jails house far more seriously mentally ill people than do mental institutions.
Part VI describes the social science research showing that broader laws on civil commitment have a large effect in reducing homicides. Part VI also explains that the number of available mental health beds (for either voluntary or involuntary treatment) is grossly insufficient. Fixing the problem will require a great deal of spending; the spending would be cost-effective in the long run, due to reduced crime and other maladies. Early detection and treatment often makes a huge difference.
Part VII explains the history of constitutional standards regarding civil commitment, and recent statutory reforms in Virginia and Wisconsin. We argue that states which currently require “imminent” danger for a mental health commitment should remove the imminence requirement, but should not weaken the due process requirements for short-term or long-term commitments.
Part VIII describes the mental health issues and the commitment laws which could have been used for the perpetrators of four recent, notorious mass murders: at the Washington Navy Yard, Tucson, the Aurora theater, and Newtown. In at least two of the cases, existing state laws could have authorized a commitment, but the people who knew about the danger failed to act.
Part IX summarizes state experiences with a relatively new form of commitment: involuntary outpatient commitment (IOC). Rather than being held in a mental institution, a person may be ordered by a court to undergo outpatient treatment. For some mentally ill persons, IOC works well, and is a less restrictive alternative to inpatient commitment.
Number of Pages in PDF File: 64
Keywords: mental health, schizophrenia, crime, gun violence
JEL Classification: I10, K14, I38
Date posted: February 15, 2015 ; Last revised: December 17, 2015
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