The Volokh Conspiracy

To what did Professor Harcout attribute for the precipitous drop in incarceration and institutionalization that seemed to occur in the late 60s?

Patrick, there's no precipitous drop in incarceration in the late 1960s, on that graph. Prison rate is the dotted line at the bottom.

So, just guessing, social reforms and changes in attitudes about personal liberty and responsibility in the 70s caused deinstitutionalization of crazies who, within the next 10 to 15 years, went on to commit large numbers of crimes and were subsequently imprisoned? So it was a question of preventative vs punitive deprivation of liberty?

As I understand it, the mass de-institutionalization was a combination of (1) massive budget cuts and (2) rising liberty concerns and some glamorization of mental illness. At least in California.

Anderson,

You are correct; I read the graph wrong. Thanks for the assist.

A little bit of googling found another interesting graph which shows what happened during 1970-1980 (where the graph dips).

As I understand it, the mass de-institutionalization was a combination of (1) massive budget cuts and (2) rising liberty concerns and some glamorization of mental illness. At least in California.

A bit sadder than that. The same bunch of legislators responsible for California's Lanterman-Petris-Short Act of 1967 had already made a major reform in how California handled the severely mentally retarded. Reform was needed in that area; but they seem to have gotten arrogant, assuming that they knew how to fix the problem of psychotics. They didn't.

Costs were an issue. But across America, there was both a glamorization of mental illness as eccentricity, and an increasing belief that community mental health treatment was the best way to help the mentally ill. People suffering from deep depression? Sure. Many bipolars? Sure. Some schizophrenics who didn't have violent tendencies? Great idea. But as with so many things, the real world is filled with people that don't fit into neat little theories.

The ACLU made a conscious decision to abolish involuntary commitment. (Or at least, the attorney leading the effort later admitted that was the real goal.) They did not quite succeed--but they got darn close to it.

Psychiatry, with the introduction of chlorpromazine in the 1950s, became overly optimistic about their ability to cure people. They went through a similar phase of the "cult of curability" in the 1830s.

The notion that a significant number of people who are or have been incarcerated in "mental institutions" don't also, or more appropriately, belong in prison, seems stunningly naive.

Naive? Huh? Our law has distinguished between those responsible for their actions, and those who are not, since at least the 14th century.

You also are failing to see several important points:

1. A person who, in 1960, was found not guilty by reason of insanity, or incompetent to stand trial, for a crime like murder, was likely to be caged for many years. The cage might have padded walls, but he was still caged.

2. A fair number of people who commit really serious crimes, usually don't start there. In 1960, a mentally ill person who had engaged in random acts of violence stood a good chance of being institutionalized before they had escalated to the most serious crimes.

Let me give you an example. Many years ago, there was a guy camping outside of town. He started showing up to evening services at our church. The pastor talked to him, and realized that there was something wrong with the guy. He asked me to talk to him.

This guy (whose name, I think, was John) had very, very confused, disconnected thinking. He spun a tale of a vast government conspiracy to take away his kids. Then he handed me documents that showed how mentally ill he was--because he didn't realize what he showed me.

John's wife had already been institutionalized for mental illness after abusing their two kids. John's parental rights had been permanently removed by a county over in the Central Valley because, according to these documents that John showed me, he had been showing pornographic movies to the 3 and 5 year old, then molesting them.

So why was John not in prison? My guess is that some prosecutor didn't want to put the 3 and 5 year old through the trauma of having to testify against their mentally ill father. Instead, he was just wandering loosely, getting a big disability check every month. In 1960, John would have been institutionalized, no question, without having to put the kids through the trauma of a trial.

Our law has distinguished between those responsible for their actions, and those who are not, since at least the 14th century.

Not really. The legal system does a horrible job of separating people whose treatable but serious mental illness led them to commit a crime and the just plain evil.

I didn't say that the system works perfectly, but the notion of not being responsible for one's actions, either because of mental illness or retardation, goes back to the 14th century.

The requirement for NGRI is quite a bit more severe than what most people assume.

There were a lot of abuses in the mental illness commitment in the 1960's. The system was broken. It needed a fix. Maybe not the fix it got, but it did need a fix.

That's what I had assumed when I started my research. The problem is: I'm having trouble finding much evidence of this. I found a case in Minnesota in the mid-1960s where a 16 year old college student was hospitalized overnight because she had decided to drop out of school without talking to her parents (who were in Canada). The college, operating in loco parentis, decided that she was crazy. She was there overnight before being released.

In 1963, the ACLU's representative before Congressional hearings about DC's mental health system expressed concern about the dangers of improper commitment--but was unable to give a single example of someone improperly committed in DC. I'm sure if there were many examples from elsewhere, she would have pointed that out.

I've talked to psychiatric nurses who worked in the California system before Lanterman-Petris-Short--which was supposed to deal with such abuses--and they were unaware of anyone who was improperly committed.

I've seen the claim that Southern civil rights activists in the 1960s were hospitalized for being insane. This appears in an Atlantic Monthly article from 1970 that I have not yet retrieved. I'll be curious to see the evidence.

The well known cases, such as Donaldson v. O'Connor and Schmidt v. Lessard? These are more indicative of ACLU's campaign to destroy the public mental health system than anything else. Lessard had made a suicide attempt. Complain if you want that the system needed a more due process respectful system, but she was hardly a healthy person who was railroaded.

Ditto for Donaldson v. O'Connor. The patient may not have been imminently dangerous, but the symptoms he described--and that even his ACLU attorney Bruce Ennis described--clearly shows paranoia:

The visit, their first in many years, was pleasant, and nothing unusual happened for several months. Then, in late November, Donaldson began to feel drowsy, and he mentioned to his father that someone, perhaps one of the neighbors, might be putting something in his food. When asked why he even suspected such an unlikely thing, Donaldson told his parents of a similar episode that had happened to him three years earlier, while he was living in Lynnwood, California, a suburb of Los Angeles. Donaldson had eaten regularly in the same Lynnwood diner. One day, shortly after lunch, he began to feel peculiar, and he went to a physician recommended by his landlady. The physician took a urine sample and sent it to a laboratory. The lab report, which Donaldson still has, confirmed the presence of a large amount of codeine, a sedative, in his urine. Donaldson had not been taking any cough syrup, which sometimes contains codeine, or any other medication (he was a follower of the Christian Science faith), so he must reasoned that the codeine must have been placed in his food, either on purpose or by accident.

What is startling is how many of the examples that Ennis describes in his Prisoners of Psychiatry were--even with the one-sided data that Ennis provides--pretty clearly people that were mentally ill. For example, a guy who was calling up the Secretary of Defense and making threats against him--and leaving his name and number.

George P. Metesky, hospitalized for planting bombs. Metesky confessed to having planted the bombs. Ennis did not claim that Metesky wasn’t the bomber; “there was little evidence against him other than what he himself had supplied.” Subsequent U.S. Supreme Court decisions had made that evidence inadmissible in court, and so Ennis thought it likely that demanding Metesky be given a chance at trial would lead to Metesky’s release. Ennis was quite clear, “I do not know if he was guilty. I never asked, and he never told me.” But it would appear that the principle was more important to Ennis than public safety. Ennis suspects that a bomb threat that caused evacuation of the federal courthouse a few weeks before Metesky’s suit was decided might have caused a federal judge to rule against putting Metesky on trial.

Ennis’ account of the von Wolfersdorf case could be interpreted as an innocent man confined to a mental hospital without reason for twenty years. The district attorney, however, maintained into the 1970s that von Wolfersdorf had feigned insanity to prevent being tried and executed. Joseph Louis Paonessa, the person who identified von Wolfersdorf as his conspirator in the murder, was found competent to stand trial, and he was executed in 1953. Von Wolfersdorf, if he was, in fact, sane, gamed the system to avoid trial--then decided, many years later, that he wanted to go free.

We'll try to do better.

Hey, I've spent the last year or two reading up on the subject. I'm not surprised that I know more about it than the average person.

The system works far less than perfectly. It works abysmally. I have seen far too many unquestionably and seriously mentally ill clients get very long prison terms for crimes that they unquestionably would not have committed but for their mental illnesses. As I said above, jury nullification and legal-fiction plea bargains are pretty much the only reasons why anyone is found NGRI.

Without question. Although there are plenty of people who don't even get to trial here in Idaho, because they are found incompetent to stand trial.

Jails and prisons are filled with huge numbers of people that really belong in mental hospitals. I've read that the LA County Jail is the country's biggest mental health facility. (On side note, three-strikes laws are especially harmful to the chronically mentally ill, who sometimes commit large numbers of comparatively minor crimes.)

You are right about LA County Jail being the nation's largest mental hospital. In Sonoma County, the only psychiatric facility in the county is about to close, and the Sheriff is upset because the county jail is going to become the mental hospital, instead.

However: three strikes requires all three crimes be FELONIES. I don't usually think of felonies as being "comparative minor crimes."

If we, as a society, failed to protect mentally ill people when we should have by forcing them into mental hospitals (as Clayton Cramer says we should have), we should at least have the decency to send them to the hospital instead of prison when their mental illness leads them into the criminal justice system.

Agreed. From what I have read, mental hospitalization would be cheaper, too. Of course, waiting until a mentally ill person commits murder to do anything about the situation is a horrible mistake.

Although there are plenty of people who don't even get to trial here in Idaho, because they are found incompetent to stand trial.

"Plenty"? How many? I only rarely see it because the standard is so hard to meet. Severely mentally ill people whose judgment is almost gone can be found competent. Plus, all that happens when someone is declared incompetent is that they are given special school to teach them about the legal process, then they are put on trial.

And, of course, competency and NGRI are two very different concepts. Competency goes to your current ability to understand the legal process and to assist counsel. NGRI (under current law) goes to your ability to understand right from wrong at the time of the crime.

However: three strikes requires all three crimes be FELONIES. I don't usually think of felonies as being "comparative minor crimes."

Not really. There's been a significant bracket creep in criminal penalties. Many minor offenses are felonies. Steal something valued far enough into the three digits, felony. Steal something minor from an attached garage, burglary. Even a hint of a threat of violence can turn a misdemeanor theft into a felony robbery. Pick up a stick during a fight, felony assault. Small amounts of cocaine or prescription drugs quickly get you into felony territory. Give a joint to a friend, you are a felonious drug trafficker.

Those are just the examples I can come up with quickly off the top of my head without looking at my statute book.

Agreed. From what I have read, mental hospitalization would be cheaper, too. Of course, waiting until a mentally ill person commits murder to do anything about the situation is a horrible mistake.

I've had a couple murder cases where my client had a clear history of mental illness, but for the most part, it's "minor" stuff, like I mentioned above. There are usually plenty of opportunities for the criminal justice system to get the mentally ill the help they need.