Unjust Punishment: The Impact of Incarceration on Mental Health
Sadly, a defining feature of our nation is its legacy of punishing rather than humanely caring for people with mental illness. Yet, the solutions needed to break this legacy already exist. It is well past time to pledge ourselves to implementing these solutions so we can meaningfully care for rather than punish people with mental illness.
As far back as the late 1700s, people with mental illness frequently ended up in poorhouses or jails – much like today. In the 1840s, reformer Dorothy Dix, appalled by the conditions people with mental illness faced in jails, embarked on a campaign urging state legislatures to build publicly funded state hospitals to offer people with mental illness both treatment and more humane conditions. Dix’s vision of treating people with mental illness in state hospitals rather than warehousing them in jails was only partially realized – dozens of state mental hospitals were built, but most were not adequately resourced, and while some provided treatment, others merely warehoused people in conditions no better than jails or prisons.
By the 1950s, the number of people with mental illness in state mental hospitals had peaked. But a series of exposés, such as a 1946 Life magazine article by Albert Q. Maisel, led to growing public awareness of the poor conditions and lack of treatment in these facilities. In his article, Maisel described the conditions he observed: “We feed thousands a starvation diet. . . . We jam-pack men, women, and sometimes even children, into hundred-year-old firetraps in wards so crowded that the floor cannot be seen between the rickety cots. . . . Hundreds – of my own knowledge and sight – spend twenty-four hours a day in stark and filthy nakedness.”
Media exposés like Maisel’s prompted various social movements – including the civil rights movement, the community mental health movement, the evidence-based practice movement and the recovery movement – to coalesce around the goal of deinstitutionalization in favor of community-based treatment as a more humane way to care for people with mental illness. In 1999, in Olmstead v. L.C., the U.S. Supreme Court held that failing to care for people with mental illness in the “least restrictive” environment violated the American with Disabilities Act, cementing the concept that people with mental illness should, whenever possible, receive care in the community rather than an institution.
Three significant changes further accelerated the deinstitutionalization movement in the 1960s. The first was the FDA approval of the drug Thorazine to control the symptoms of psychosis, fostering the belief that we could medicate our way out of mental illness and render inpatient treatment unnecessary. Second was the 1963 enactment of the federal Mental Retardation Facilities and Community Health Centers Construction Act, which allotted money to the states to build community-based care centers to treat people with mental illness and developmental disabilities. But while state legislators pointed to this federal legislation as justification to close state hospitals, “[m]any of the new community care centers either never materialized or ended up serving populations with less severe forms of mental illness or with other disabilities, rather than those with serious mental illness.” The year 1965 ushered in the third significant change: the creation of the Medicaid program, which funded health care for low-income people, but which made states rather than the federal government responsible for funding long-term inpatient mental health care. The lack of federal funding for inpatient mental health treatment encouraged states to move people out of institutions to outpatient care so that federal dollars would cover at least some of the cost.
In terms of closing state hospitals and reducing the number of people confined to mental health institutions, the deinstitutionalization movement was an overwhelming success, and “between 1950 and 2000 the number of people with serious mental illness living in psychiatric institutions dropped from almost half a million people to about fifty thousand,” while the number of beds in state and county psychiatric hospitals declined by more than 90%. But the vision of a network of community care centers that would provide meaningful treatment for people with mental illness was never adequately funded and thus never fully realized. Because of the limited availability of treatment options, many people with mental illness do not receive the care they need. Of the “14 million or so people who experience the most debilitating mental health conditions, roughly one-third don’t receive treatment,” often because they cannot connect with the services they need, they lack insurance, or the services are not available. The result is that people with serious mental illness “have been consigned to lives of profound instability” and, lacking proper care in the community, they often cycle through homeless shelters and periods of incarceration.
America Has Made Mental Illness a Crime
In the last quarter of the 20th century, the dramatic reduction of inpatient mental health care was accompanied by an equally dramatic increase in criminalization and incarceration. In 1973, the United States incarcerated adults at a rate of 161 per 100,000 adults; by 2007, this rate had quintupled to 767 per 100,000. In absolute terms, “the growth in the size of the penal population has been extraordinary; in 2012, the total of 2.23 million people held in U.S. prisons and jails was nearly seven times the number in 1972.” This increase in incarceration was historically unprecedented, occurring after decades of relatively stable rates of incarceration. But four decades of “tough on crime” rhetoric led to harsher sentencing policies and the criminalization of more conduct, including drug use and possession and “quality of life” crimes, which in turn led to the U.S.’s overreliance on arrest and incarceration. Today, “[p]olicing, arrest, and criminal punishment have become the default response not only to violence and other harms, but also to poverty, mental health crisis, drug use and addiction, HIV and other health conditions, and school discipline.”
Our nation’s overreliance on arrest and incarceration, combined with the failure to provide meaningful treatment options for people with mental illness, has resulted in far too many people with mental illness being ensnared in our criminal legal system. As Alisa Roth states in her seminal book, “Insane: America’s Criminal Treatment of Mental Illness,” America has made mental illness a crime.
The statistics are stark:
- People with mental illness in the U.S. are 10 times more likely to be incarcerated than they are to be hospitalized.
- More than 70% of people in U.S. jails and prisons have at least one diagnosed mental illness or substance use disorder or both, and up to a third of incarcerated people have a serious mental illness.
- The problem is most acute for women who are incarcerated; a 2017 study found that 20% of women in jail and 30% in prisons had experienced “serious psychological distress” in the month before the survey, compared to only 14% of jailed men and 26% of imprisoned men.
- The crisis is worsening. In 2010, approximately 30% of people jailed at Rikers Island had a mental illness; by 2017, it had risen to 40%.
The “tough on crime” rhetoric that fueled mass incarceration also fostered a belief that rehabilitation does not work, often leaving punishment as the primary focus of our criminal legal system. As our jails and prisons filled, the will for a fiscal investment in rehabilitation and treatment programs waned, as did the will to fund mental health care both in and out of prison.
Our Prison System Harshly Punishes People With Mental Illness
By incarcerating so many people with mental illness, “we have re-created much of the same dysfunction that pervaded the asylums of the nineteenth and twentieth centuries and the very abuses we sought to end by shutting them down.” To best explain this, this article draws on the expertise of three people with deep experience in New York’s carceral system: Tyrell Muhammad, Sharon White-Harrigan and Jack Beck. Muhammad, White-Harrigan and Beck all agree that our prison system is – by design – ill-equipped to humanely care for people with mental illness and that it instead systematically and harshly punishes such individuals.
Jack Beck notes that security is the core mission and concern of prison staff, and thus prisons prioritize custody and control, leaving no room for mental health considerations. Effective mental health treatment focuses on empowering people, but prisons systematically strip people of their humanity, autonomy, and agency. Any deviation from prison rules or norms is met with harsh punishment. Correctional staff do not view behaviors symptomatic of a mental illness through a therapeutic lens but instead through the custody and control lens, and prison staff respond to such behaviors punitively instead of therapeutically. Prisons make no special accommodations for a person’s mental illness; such persons are expected to adhere to the same rules as everyone else, even when their mental illness impairs their ability to do so. Indeed, when people with mental illness violate prison rules, their behavior is viewed as volitional and manipulative, even when it is clearly connected to their mental illness.
Sharon White-Harrigan views the failure to humanely care for people with mental illness through a trauma-informed care lens, which shifts the focus from “What’s wrong with you?” to “What happened to you?” She notes that prison staff focus exclusively on the crime the person committed – i.e., what is wrong with the person – with no regard to what happened to them and the trauma they may have experienced that contributed to their criminal legal system involvement. As a licensed social worker with expertise in trauma, she understands the sheer impossibility of delivering effective treatment and care without learning of a person’s history and their experiences of trauma, whether it’s the trauma associated with abuse or violence, or institutional and cultural trauma, such as poverty and racism. She also emphasizes that prison staff are not adequately trained in identifying and appropriately responding to mental health issues or experiences of trauma. Indeed, just the opposite, and she recounts how when she was imprisoned, guards would compound people’s trauma by using denigrating language and insults – typically in a random manner and with no apparent reason other than a bald assertion of control.
Tyrell Muhammad similarly describes the denigrating and needlessly harsh way correctional staff treat incarcerated people, noting that when he was imprisoned, guards frequently called him the n-word and then expected him to “tolerate and accept it.” He believes that “just a little bit of decency, understanding, and patience would go a long way in improving conditions for people with mental health issues.” But in a system that prioritizes control and punishment, these attributes are lacking.
He agrees with White-Harrigan that prisons fail to keep abreast of the treatment strategies like trauma-informed care that have proven most effective, but instead still rely on arcane and punitive ways to address mental health issues. He also agrees that prison staff are not trained to recognize or manage behaviors that are symptomatic of a mental health condition. Punishment is the primary response to a person acting out, even if mentally ill. Muhammad also notes that the physical conditions of confinement – a drab and depressing atmosphere, institutional olive green paint and outdated facilities in disrepair – foster mental illness and impair meaningful treatment.
Beck, White-Harrigan and Muhammad all report that mental health treatment is typically limited to use of medication, with little to no therapy to accompany a medication regime. And even when people receive mental health medication, it is often not well-monitored or managed and, thus, not as effective as it should be. Additionally, there is virtually no discharge planning for people with mental illness, who are often released from incarceration with no meaningful bridge to mental health services.
Both Muhammad and Beck emphasize that there are prison-based programs for people with mental illness that on paper are designed to be therapeutic and rehabilitative, but in practice fall short of these goals and are either underutilized or ineffectively utilized. Their observations are corroborated by a series of articles in New York Focus highlighting the failure of the New York State Department of Corrections and Community Supervision (DOCCS) to meaningfully implement legislation – the landmark Humane Alternatives to Long-Term (HALT) Solitary Confinement Act – designed to reduce the number of people with mental illness confined to solitary confinement.
The result is a system that harshly punishes people because of their mental illness, subjecting them to disciplinary measures, such as loss of privileges, “keep-lock” and solitary confinement, at disturbingly high rates. The problems conforming to rules and protocols – and their perceived danger – also results in people with mental illness typically serving longer sentences.
Beck and Muhammad emphasize that the overreliance on solitary confinement in particular is a significant failure of our prison system. Muhammad spent over seven of his 27 prison years in solitary confinement, which he describes as soul-crushing and destabilizing for even the most mentally resilient person. As he recounts: “You don’t even know when you lose your mind, when the reality of your circumstances becomes something of a fantasy world. . . . You are battling yourself for your sanity, and it’s a hell of a battle.” His experience is corroborated by years of research. Indeed, it is “well-documented that solitary results in people experiencing psychosis, severe anxiety, panic, paranoia, despair, depression, memory and concentration loss, and exacerbation and creation of other mental health challenges.”
Despite the adverse impact that solitary has on people’s well-being, New York’s prisons continue to subject people with mental illness to solitary confinement at disproportionately high rates. As of 2017, approximately 28% of all people in solitary confinement in New York prisons had a recognized mental health diagnosis. In response to legislation enacted in 2008, DOCCS created Residential Mental Health Treatment Units to divert people diagnosed with a serious mental illness from solitary confinement to a more therapeutic environment focusing on treatment rather than punishment. But the goals of these units have not been realized, and instead residents of the units are disciplined at much higher rates than others in prison and often with “outrageously long sentences to solitary confinement” for conduct that is a symptom of their mental illness. As one report concluded: Residential Mental Health Treatment Units “have been operating in a punitive, abusive, and racially biased manner.”
The impact of solitary confinement is devastating, causing high rates of suicide, suicide attempts and self-harm. The suicide rate in New York’s prisons is now at historically high levels, and often higher than the national prison suicide rate. And there is a clear link between suicide and solitary – over a five-year period, the rates of suicide, suicide attempts and self-harm (often in the form of self-mutilation, or “cutting”) were significantly higher for people in solitary then the regular prison population. As one report concluded: “Data provided by DOCCS and other state agencies clearly shows a high number of suicides, suicide attempts, and other forms of self-harm in New York prisons, and an undeniable nexus between these desperate actions and the use of solitary confinement.”
In terms of affirmatively inflicting harm on incarcerated people, New York State’s largest jail, Rikers Island, is at a crisis point. Between Jan. 1, 2022 and Nov. 4, 2022, 18 people have died at Rikers, the largest annual number since 2013, when the jail’s population was double what it is now. Of these, 12 were confirmed or suspected suicide or overdose deaths, and seven of these 12 had a known mental health history. Though worse than ever, this problem was predictable, as it has long been known that self-harm is a problem at Rikers, particularly among people with mental illness and those confined to solitary. Moreover, as Kalief Browder’s story reveals, these numbers do not capture all the harm that Rikers inflicts on people, and countless people endure or succumb to this harm after being released.
Toward More Humane Care for People with Mental Illness
America must develop a commitment to humanely care for, rather than criminalize, people with mental illness. Doing so requires us to address two questions: who are we incarcerating and how are we incarcerating them? With regard to who we incarcerate, we need to implement a range of reforms to dramatically reduce the number of people with mental illness we confine to jails and prisons, including, for example, reforms aimed at decriminalizing conduct that is often a function of mental illness, such as substance abuse, homelessness, and vagrancy; diverting people from the criminal legal system before charges are filed, at the point of police contact; and for people who are charged, diverting them from prison and jail in favor of treatment options. For the latter, a promising reform is the Treatment Not Jails Act, which would expand Criminal Procedure Law Article 216 to allow treatment courts to accept people with mental health issues, significantly enhancing the availability of therapeutic, rather than punitive, sentencing options for people convicted of a crime whose mental illness contributed to their criminal legal system involvement.
For the second question – how we incarcerate – we need to reject the notion that rehabilitation does not work and shift the focus of our prisons and jails from punishment to rehabilitation and treatment. We must also hold jails and prisons accountable for their treatment of incarcerated people by, among other things, requiring accurate reporting and rejecting practices that are not evidence-based, such as solitary confinement. A starting point is acknowledging the failure to fully implement the 2008 SHU exclusion legislation and the 2021 HALT legislation and requiring DOCCS to meaningfully implement these critically important reforms.
Finally, and perhaps most important, we must recognize that the solution to caring for people with mental illness before they become ensnared in the criminal legal system – a network of community mental health centers with a single point of entry – has existed for decades but has never been adequately funded. It is time to commit the fiscal resources necessary to break the cycle of failure that has plagued our nation and to meaningfully care for the most vulnerable amongst us.
Patricia Warth is the director of the New York State Office of Indigent Legal Services (ILS). She has been with ILS since August 2015, originally serving as chief attorney for the Hurrell-Harring Settlement Implementation Unit and then as counsel until her nomination as director in June 2021. She previously worked for the New York State Capital Defender Office, as managing attorney of Prisoner’s Legal Services of New York in Buffalo, and as director of Justice Strategies at the Center for Community Alternatives.
 Alisa Roth, Insane: America’s Criminal Treatment of Mental Illness 81 (2018).
 Id. at 83–84.
 Id. at 84 (quoting Gerald Grob, The Mad Among Us: A History of the Care of America’s Mentally Ill 24 (1994)).
 Id. at 85.
 Albert Q. Maisel, Most U.S. Mental Hospitals Are a Shame and a Disgrace, Life, 1946, available at https://mn.gov/mnddc/parallels2/prologue/6a-bedlam/bedlam-life1946.pdf.
 Johnathon H. Duff, In Focus: Psychiatric Institutionalization and Deinstitutionalization, Congressional Research Service, 1 (June 26, 2018).
 527 U.S. 581 (1999).
 Roth, supra note 1, at 89.
 Id. at 88.
 The Institutions for Mental Diseases exclusion states that Medicaid will not cover care for any patient under 65 in an “institution of mental disease,” defined as a “hospital, nursing facility, or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, treatment, or care for persons with mental diseases, including medical attention, nursing care, and related services.” See https://www.sssa.gov/OP_Homes/ssact/title19/1905.htm.
 Roth, supra note 1, at 92.
 Duff, supra note 6, at 1.
 Editorial Board, The Solution to America’s Mental Health Crisis Already Exists, N.Y. Times, Oct. 4, 2022, https://www.nytimes.com/2022/10/04/opinion/us-mental-health-community-centers.html.
 National Research Council 2014, The Growth of Incarceration in the United States: Exploring Causes and Consequences, Washington, DC: The National Academies Press, https://doi.org/10.17226/18613, at 33, 35–36.
 Id. at 36.
 Andrea J. Ritchie and Beth E. Ritchie, The Crisis of Criminalization: A Call for a Comprehensive Philanthropic Response, Barnard Center for Research on Women at 3 (2017), https://bcrw.barnard.edu/wp-content/nfs/reports/NFS9-Challenging-Criminalization-Funding-Perspectives.pdf.
 See also Jamie Fellner, A Corrections Quandary: Mental Illness and Prison Rules, Harvard Civil Rights-Civil Liberties Law Review 41, No.2, 391, 394 (“The nation’s aggressive and punitive anti-crime policies, including its “war on drugs,” have also contributed to the number of mentally ill in prison . . . Persons with mental illness are among the masses swept behind bars.”).
 National Judicial Task Force To Examine State Courts’ Response to Mental Illness, State Courts Leading Change: Report and Recommendations, Oct. 2022, at 9.
 Jennifer Bronson and Marcus Berzofsky, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011–12, US Bureau of Justice Statistics, June 2017.
 Roth, supra note 1, at 92.
 See, for example, David Garland, The Culture of Control: Crime and Social Order in Contemporary Society, 9 (2011).
 The most recent example of this is New York City’s focus on enhancing policing while cutting services for people with mental illness. See Jeffery C. Mays, Adams’s Efforts To Address Mental Health Crisis Fall Short, N.Y. Times, Nov. 18, 2022, https://www.nytimes.com/2022/11/18/nyregion/mental-illness-crime-nyc.html. See also Roth, supra note 1, at 94 (noting that in the wake of the 2008 financial crisis, states cut $4.25 billion in mental health services from their budgets).
 Roth, supra note 1, at 8.
 Tyrell Muhammad is a senior advocate for the Correctional Association of New York (CANY), working on CANY’s prison monitoring program. He is also a founding member of the New York chapter of the Campaign for Alternatives to Isolated Confinement and the Release of Aging People from Prison campaign. His work is informed by his life experience of serving almost 27 years in prison, where he earned a BA from Syracuse University and a master’s degree from the New York Theological Seminary.
 Sharon White-Harrigan is the executive director of the Women’s Community Justice Association, a gender-specific, trauma-informed, advocacy-for-justice agency that amplifies the voices of women who are experts by virtue of their life experiences. Prior to this, she was a program director of a temporary residence for formerly incarcerated women at the Women’s Prison Association. In her work and advocacy, she draws upon her experiences as a licensed social worker, domestic violence survivor and 11 years of incarceration.
 Jack Beck has over three decades of experience representing people in New York’s prisons and investigating prison conditions, having worked as a senior supervising attorney at the Prisoners’ Right Project of the Legal Aid Society and then as director of the Prison Visiting Project at the Correctional Association of New York.
 Homer Venters, former chief medical officer at Rikers Island, describes prisons and jails as “paramilitary structures” with which local officials and leaders are loathe to interfere, thus allowing these institutions to escape accountability and engage in practices, like solitary confinement, that are not evidence-based and inflict harm on incarcerated people. He emphasizes that this paramilitary structure is directly at odds with how effective health care systems run. See Matt Watkins, Jail-Attributable Deaths, New Thinking podcast, https://www.courtinnovation.org/publications/homer-venters.
 Id. at 394.
 See also Fellner, supra note 20, at 394.
 See Chris Gelardi, New York’s Prison Chief Ordered Guards To Illegally Shackle People to Desks, New York Focus, Nov. 7, 2022; Gelardi, Lesser Infractions Aren’t Supposed To Land You in Solitary Confinement: They Do Anyway, New York Focus, Oct. 24, 2022; Gelardi, Solitary by Another Name: How State Prisons Are Using ‘Therapeutic’ Units to Evade Reforms, New York Focus, Oct. 5, 2022; Gelardi, Prisons Are Illegally Throwing People With Disabilities Into Solitary Confinement, New York Focus, Sept. 26, 2022; and Gelardi, and Emily Brown, State Prisons Are Routinely Violating New York’s Solitary Confinement Law, New York Focus, Sept. 12, 2022. This series of articles can be found at https://www.nysfocus.com/tag/halt-implementation/. See also Report on Behalf of the #HALTSolitary and MHASC Campaigns, Punishment of People with Serious Mental Illness in New York State Prisons, May 2022, available at https://drive.google.com/file/d/16yzZ-LJ8-JwVBvG3ptPlfu6kUfJw01CL/view.
 See, for example, Fellner, supra note 20, at 396. See also Paula M. Ditton, Special Report: Mental Health and Treatment of Inmates and Probationers, Bureau of Justice Statistics at 9 (July 1999), https://bjs.ojp.gov/content/pub/pdf/mhtip.pdf.
 Id. at 8.
 See Marshall Project, We Are Witness: Tyrell Muhammad, https://www.themarshallproject.org/witnesses?page=tyrrell.
 Punishment of People Serious Mental Illness in New York State Prisons, supra note 34, at 1.
 See Correctional Association of New York, Fact Sheet: Solitary Confinement in New York’s Prisons (2018), https://static1.squarespace.com/static/5b2c07e2a9e02851fb387477/t/5c5b0007f4e1fc1092af0b30/1549467656168/CANY+Fact+Sheet+-+Solitary+.pdf. CANY defines those with a recognized mental illness as those on the caseload of the Office of Mental Health (OMH), which provides mental health services to people incarcerated in New York’s prisons. Notably, in 2017, the percentage of people in solitary confinement (28%) was higher than the percent in New York’s prisons overall (21%), which means people with mental illness end up in solitary confinement at higher rates.
 Punishment of People Serious Mental Illness in New York State Prisons, supra note 34, at 1.
 Id. at 3.
 The Walls Are Closing in on Me: Suicide and Self-Harm in New York State’s Solitary Confinement Units, 2015-2019, A Report of the #HALTsolitary Campaign (May 2020), available at http://nycaic.org/wp-content/uploads/2020/05/The-Walls-Are-Closing-In-On-Me_For-Distribution.pdf.
 Jan Ranson and Jonah E. Bromwich, Tracking Deaths in New York City’s Jail System in 2022, N.Y. Times, Nov. 4, 2022, https://www.nytimes.com/article/rikers-deaths-jail.html.
 See e.g., Fatos Kaba, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, Am. J. Public Health 442 (March 2014) (finding a high incident of self-harm among people confined to solitary in Rikers).
 Mr. Browder was jailed at Rikers for three years pre-trial until the charges against him were dismissed. During that time he was subjected to multiple beatings and confined to solitary for long periods of time, during which he frequently attempted to commit suicide. Not long after he was released, he did, in fact, commit suicide. See Jennifer Gonnerman, Kalief Browder, 1993–2015, The New Yorker, June 7, 2015, https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015.
 The Treatment Not Jails Act has been introduced as Bill S.2881B/A.8524.
 See Homer Venters, supra note 31 (noting that because of the “paramilitary” structure of prisons and jails, local leaders do not hold them accountable for using evidence-based practices or for accurately reporting information).
 See The Solution to America’s Mental Health Crisis Already Exists, supra note 14.