Download this Paper Open PDF in Browser

Retributive Justifications for Jail Diversion of Individuals with Mental Disorder

31 Pages Posted: 22 Sep 2017 Last revised: 18 Oct 2017

E. Lea Johnston

University of Florida - Levin College of Law

Date Written: September 20, 2017

Abstract

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses. These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services. Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial. This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice. Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert. Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders. The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

Keywords: criminal justice, incarceration, jail, diversion, mental illness, mental health court

Suggested Citation

Johnston, E. Lea, Retributive Justifications for Jail Diversion of Individuals with Mental Disorder (September 20, 2017). 35 Behav. Sci. & Law (2017, Forthcoming); University of Florida Levin College of Law Research Paper No. 17-24. Available at SSRN: https://ssrn.com/abstract=3040122

E. Lea Johnston (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

Paper statistics

Downloads
30
Abstract Views
112