Abstract

http://ssrn.com/abstract=663882
 
 

Footnotes (359)



 


 



Re-arranging Deck Chairs on the Titanic: Why the Incarceration of Individuals with Serious Mental Illness Violates Public Health, Ethical, and Constitutional Principles and Therefore Cannot be Made Right by Piecemeal Changes to the Insanity Defense


Jennifer Bard


Texas Tech University School of Law


Houston Journal of Health Law and Policy, Vol. 5, No. 1, 2005

Abstract:     
The author argues that the problem of adjudicating the mentally ill who commit crimes is too large a societal issue to be resolved by refining the insanity defense. Since this is a threat to the public's health, it is fair to describe the current situation as a public health crisis. First, by not providing adequate mental health resources we create conditions in which people with mental illness find themselves in situations where due to their illness they have the opportunity to commit criminal acts which are causally related to the impairment of their thought process. Second, when people with mental illness are convicted of crimes and placed in ordinary prisons the conditions under which they are confined are inappropriate settings to meet their basic health care needs. Third, by not addressing the issue of how to adjudicate mentally ill people who commit crimes, society itself is sick because it is acting against normative standards of fairness in assessing responsibility and caring for the ill. Fourth, confinement in a regular prison is inappropriate and harmful to people with mental illness and may well violate their Eighth Amendment rights to be free of "cruel and unusual punishment." Finally, the presence of so many people with mental illness in prison calls into question the ethical and moral basis for society's assigning criminal responsibility to people with mental illness. Thus, the problem of adjudicating mentally ill people who violate society's criminal laws should be approached as a public health problem. This would reduce the danger to society from people who commit crimes while impaired by mental illness by developing a global plan to address mental health needs both before and after a crime has been committed. In order to do that, we must as a society come to a consensus of how we want to assign criminal responsibility and what our goals are in establishing consequences for people found guilty of crimes.

The author explores the history and development of the insanity defense, including recent developments in such high profile cases as Andrea Yates and Deanna Laney; the Guilty but Mentally Ill verdict; the Mental Health Courts; the problem of mental illness and incarceration of the mentally ill in the United States, including the lack of appropriate health care and treatment for the mentally ill; the correlation between deinstutionalization and increased incarceration rates of the mentally ill; society's perception of how mental illness affects behavior; and the purposes of incarceration of the mentally ill, including retribution, deterrence, and rehabilitation. The author concludes that until society reaches a consensus about what we hope to achieve from our criminal justice system and what we believe about mental illness, we cannot develop a rational method to handle the societal problem of crimes the mentally ill commit. Instead, we must make great efforts to view crimes the mentally ill commit as a public health rather than a moral problem. However we choose to define mental illness, we must recognize its prevalence and severity. We must not revert to a society which imprisons the mentally ill, (by either the criminal or civil justice system) without the greatest attempts at fairness and greatest efforts at treatment. Consequently, piece-meal changes to the insanity defense are not the solution to dealing with crimes committed by individuals who are mentally ill.

Number of Pages in PDF File: 76

Keywords: Mental illness, insanity defense, insanity, prison, public health, insurance, mental, health, mentally ill, insane, Andrea Yates, crime, violence, jail, criminal, Eighth Amendment, cruel and unusual, Guilty but Mentally Ill, mental health courts, mental health, incarceration, deinstutionalization

Accepted Paper Series





Download This Paper

Date posted: February 8, 2005  

Suggested Citation

Bard, Jennifer, Re-arranging Deck Chairs on the Titanic: Why the Incarceration of Individuals with Serious Mental Illness Violates Public Health, Ethical, and Constitutional Principles and Therefore Cannot be Made Right by Piecemeal Changes to the Insanity Defense. Houston Journal of Health Law and Policy, Vol. 5, No. 1, 2005. Available at SSRN: http://ssrn.com/abstract=663882

Contact Information

Jennifer S. Bard (Contact Author)
Texas Tech University School of Law ( email )
1802 Hartford
Lubbock, TX 79409
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,999
Downloads: 157
Download Rank: 113,201
Footnotes:  359

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.282 seconds