By John Weston Parry, J.D.
Humans are composed of more than flesh and bone….[M]ental health, just as much as
physical health, is a mainstay of life. (John F. Kennedy)
Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and he had to. (Joseph Heller, Catch-22)
Perhaps no aspect of post-modern life captures the awful effects of a catch-22 more completely than our nation’s commitment to provide care and treatment to persons with legally significant mental disabilities. Initially, they are expected to somehow navigate a poorly designed patchwork of publicly funded options few of which are adequate. Available services only cover a minority of individuals in need who happen to qualify, more by good circumstance or good fortune than anything else. Hundreds of thousands of Americans are perceived to be dangerous because they have a mental disorder, condition or aberration, which requires care, treatment, and other essential social services that are unavailable in the community or while in government custody.
State and federal governments through their omissions and neglect—and even intentionally—deny children, adults, veterans, and frail Americans with mental disabilities, who are in their custody, of needed care, treatment, and other services. Those deprivations result in these individuals being kept indefinitely—sometimes for the rest of their lives—in unconscionable conditions of confinement, particularly in prisons, jails, juvenile detention facilities, mental institutions, and nursing homes. In each of these coercive settings, powerful, excessively-dosed antipsychotic medications—often with unpleasant, incapacitating, or even deadly side-effects—become substitutes for humane holistic care, including properly dosed and prescribed medications.
At the same time, typically those people with mental disabilities who need special care and treatment or other forms of public assistance to live in their communities are denied such services. As a result, they are forced into more expensive and coercive government-run custodial care settings or, more commonly, our inhumane criminal justice system. Ultimately, these policies harm the basic fabric of our society, but most of all they devastate people with serious mental disabilities, including a large cohort of veterans who have incurred combat-related injuries and impairments.
How this catch-22 developed and now operates in this country and why it may become much worse—given the current fiscal crisis—is covered in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), Chapter 6 “Dangerousness and the Unconscionable Failure to Provide Care and Treatment to Persons with Serious Mental Disabilities.” Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. Excerpts are in bold with italics. There also is a separate essay on this site entitled “Soldiers and Veterans With Mental Disabilities Deemed to Be Dangerous,” which examines the problems faced by that particular population.
The Scope of the Problem
[T]he United States has rarely...been adequately committed to providing care, treatment, and rehabilitation for persons with serious mental disabilities.... In recent decades, we have not even made a good faith effort…. Even worse… is the care and treatment of inmates and other detainees [with mental disabilities] in our criminal and juvenile justice systems….[T]hese failures... have been transformed into powerful ...legal justifications for involuntarily confining or otherwise coercively treating and intrusively managing the lives of persons diagnosed with or identified as having mental disabilities.
Most programs that are in place to address the needs of—and perceived problems created by—persons with serious mental disabilities are either in shambles or resemble the custodial warehousing that we supposedly did away with during the 1970’s. Those programs that work well are so under-funded and so far and few between only a small percent of those in need are being served adequately. For the vast majority of persons with serious mental disabilities who require governmental assistance, rights deprivations, neglect and abuse, expensive coercive custodial care, and excessively-dosed and carelessly prescribed antipsychotic medications have become commonplace.
In both our civil mental health and criminal justice systems, people with mental disabilities are being mistreated or not treated at all—young and old, civilians and soldiers. People with serious mental disabilities, even those with access to private wealth tend to be underserved, abused, and neglected. Most of them are—or soon will become—poor, indigent, and under- or unemployed with little hope of being able to provide for themselves. Once they are officially identified as having antisocial or criminal-like traits, which may range from nuisance behaviors to violent crimes, they can—and often do—lose their fundamental rights, including their liberty and on occasion even their lives through the death penalty, which unfairly targets people with mental disabilities.
Civil Mental Health Systems
Our civil mental health systems—excluding the Veterans Administration, which is addressed in another essay on this site—are loosely divided into three types of care and treatment settings that separately target adults, children, and frail Americans. As bad as the situation is for adults with mental disabilities, it is even worse for dependent children and frail Americans who have these impairments. The conditions of custody may not be as bad as the inhumane warehousing of so-called patients in large, isolated state institutions forty or fifty years ago or what inmates with mental disabilities receive in our criminal justice system today, but it is far worse than any civilized nation should tolerate. The common denominators in these civil governmental settings are coercive custodial care—or custodial care without the informed consent—excessive medication, and frequent abuse and neglect.
Arguably, the least bad settings are those for non-elderly adults with mental disorders, which are characterized by a revolving door that shuffles patients in and out of coercive care situations, for as long as the law allows them to be in custody, in order to administer psychotropic drugs to stabilize what are perceived to be dangerous-like symptoms. While this temporary coercive care is often provided by reasonably competent mental health professionals and is likely to be accompanied by other essential social services—such as food, shelter, and health care—usually it fails to fully resolve the problems that these patients face, particularly after they are dumped back into their communities without the essential social services they need to thrive.
In too many instances even this temporary care is inhumane. Ultimately, for all those who are forcibly returned for more coercive care because their perceived dangerous-like symptoms have only been temporarily stabilized, bad things tend to happen. The likelihood increases substantially that sooner or later they will be forced into the criminal justice system or encounter or precipitate what is viewed as a harmful event, which could have been avoided—or at least minimized—if they had received adequate care and services in their communities to begin with.
Today, involuntary civil mental patients are more likely to spend days or weeks or sometimes months in smaller facilities and receive ... excessively-dosed antipsychotic medications, to stabilize them so they may be released as no longer legally dangerous. Many also receive coercive outpatient care in the community that is accompanied by various restrictions that no American would want to endure. Some of the worst rehabilitation and treatment deficiencies have involved patients who revolve in and out of involuntary or coercive ...commitment situations onto the streets, boarding homes, flop houses, and other substandard housing.
Those few consensual care and treatment alternatives that do exist have been or are being cut back due to budget deficits and reprioritizing of limited dollars. Similar problems exist for those adults and juveniles with drug and alcohol addictions who are lucky enough to avoid jail or prison. They too receive coercive revolving door care and treatment, which is becoming less available as programs are dismantled. Without public funds and resources to support ... treatment, rehabilitation, and living needs in the community.... the criminal justice system has become the primary governmental mechanism for confining and controlling adults with mental disabilities when they are deemed dangerous, antisocial, and/or not worth helping.
It often has been said that a civilized society should be judged by how its children are treated. On many measures we fail miserably. This is particularly true for minors who have mental disabilities or will encounter serious emotional difficulties because they have been or are being abused and neglected. Too many kids in this country are permanently harmed because they fall through the gaping holes left by our laisez-faire approach to social services and education when parents or guardians renege on their financial and moral responsibilities, or traumatize, abuse, or neglect their own children. Many of the worst traumas imaginable are not experienced by soldiers in combat, but rather by our children, sometimes starting in utero or when they are infants. In fact, even more children are severely traumatized than soldiers, which is a disturbing and catastrophic reality that we mostly ignore.
[M]any children are incarcerated in juvenile detention centers ... because they are awaiting mental health and related services.... They are dumped into prison-like facilities where their troubles intensify and multiply. Others are left to fend for themselves or escape the abuse and neglect of their parents or guardians. Mental health and related insurance, prevention programs, and public education targeted at saving and rehabilitating our children also are largely unavailable to these children at risk. The juvenile justice system, like the prison system for adults, has become the default solution for minors with mental disabilities who act out or have nowhere else to go.
What the Joint Commission of Mental Health of Children opined back in 1969 remains largely true today and probably is growing worse due to fiscal belt-tightening: “there is not a single community in this country which provides an acceptable standard of care for its mentally ill children.” The “poor quality and intrusiveness” of mental health care, treatment, and habilitation for “troubled and troubling youth” … has been especially disturbing. Many become “wards of the state”...because less intrusive alternatives are unavailable, unaffordable, or simply not offered.” This huge hole in the social safety net has been properly termed “a national crisis,” and has only been getting worse. The situation is no better and sometimes worse for those with intellectual and developmental disabilities.
The foster care solution has been equally troublesome, resulting in kids being moved into institutional like settings where they are at much higher risk for mental disorders and being over-medicated.... The reality has been—and continues to worsen—that the care for most children with serious mental disabilities in our society has been poor or nonexistent, especially those kids whose conditions have developed or been accelerated due to trauma, abuse, and neglect.
Older and Frail Adults with Mental Disabilities
Many older Americans with mental impairments and younger, frail adults with mental, intellectual, and developmental disabilities are being `dumped' into nursing homes and similar [adult care] facilities inappropriately. Members of these populations are at even higher risk because they are dependent on the good will of others to see to their basic needs. While, legally, none of the coercive admissions ...are considered to be involuntary ...generally [these patients] do not or cannot provide informed consent....Most of them are institutionalized and coercively administered ...powerful behavior-stabilizing medications ...with the understanding that overmedication will make them easier to manage and help to fill empty beds. Making matters worse, these nursing and adult care facilities generally are not equipped or staffed to handle residents with serious mental disorders or other similar special needs, yet like the criminal and juvenile justice systems, these facilities have become default placements except they “serve” those who are older or frail and have a mental disability.
This type of dumping has drawn criticisms from the nursing home and adult care facility operators, not necessarily to protect the welfare of residents who have untreated or undertreated mental disorders, but rather the presumed danger that [they]... might pose to other residents. The response has not been to improve community-based care or even to send these residents to psychiatric facilities. The most cost-effective way for nursing homes to deal with this perceived danger is to heavily medicate those residents who become disruptive or are thought likely to become disruptive or to force them to go to some other inappropriate setting.
Numerous lawsuits have been filed in order to remove people with these special needs from nursing homes and adult care facilities and into integrated community settings. These suits have been largely successful as a legal matter because the violations of the Americans with Disabilities Act have been so blatant. Still, the overall social effects of these victories have been incremental at best. Those facilities that have been sued represent only the tip of the iceberg ….nationwide. Moreover, there are few adequate community-based alternatives to properly place these individuals in when the courts rule in their favor. In that respect this situation is reminiscent of deinstitutionalization during the 1970’s.
The Criminal Justice System
As bad as civil care has been for persons with mental disabilities, the worst places are found inside the criminal justice system where therapeutic jurisprudence, including humane care, treatment and rehabilitation, continues to be viewed as an affront to those who favor punishment, retribution, and community safety over other equally and arguably more important social values. [I]n the late 1970's, our nation began rejecting … the policy of trying to provide humane care, treatment, and rehabilitation…. [W]e created highly secure, punitive, and inhumane environments to keep inmates behind bars for as long as an increasingly flexible Constitution would permit. This cynical and unforgiving philosophy increasingly is being viewed as “a disastrous failure.” For inmates with mental disabilities, who are particularly vulnerable to abuse and neglect, this anti-therapeutic mind set has been enhanced because of the widespread belief that [these individuals] are inherently dangerous.
Once individuals with mental disabilities are thrust into this hostile and uncaring criminal justice environment, the ability of others to look after them and try to ensure their welfare is badly compromised. The awful institutional milieus responsible for deplorable conditions and … abuses that affect all prisoners are especially devastating for those with mental disabilities...who are likely to be more vulnerable and thus victims of overcrowded, unsanitary conditions. Moreover, no prisoners suffer more from prolonged isolation than those with mental disabilities whose conditions are allowed to fester with almost no human contact, exercise, or humane care and treatment.
Even if deliberate abuse and neglect is curtailed, which apparently does not happen often, the convenience of staff and the security of the environment takes precedence over minimal standards of decency. The inmates’ presumed dangerousness due to their mental disabilities is used to justify incarcerating [them] indefinitely and depriving them of humane treatment and rehabilitation. Furthermore, there are few if any avenues to pursue relief, assuming that these inmates can even find competent legal representation, which is a rarity. The U.S. Supreme Court has ruled that because of their presumed dangerousness, it is acceptable for correction officials to deny persons with mental disabilities release when overcrowding and other conditions of confinement become constitutionally intolerable. Instead, other prisoners must be set free in order to relieve the overcrowding. This is true even though it is the inmates with mental disabilities who are suffering more than any other prisoners and whose mental and physical conditions are most likely to deteriorate by remaining imprisoned. When measured against the aspirations of therapeutic jurisprudence, this is the `perfect storm' of counterproductive and destructive policies and practices.
For the rapidly increasing population of inmates who, based on their presumed dangerousness, have been quasi-civilly committed to secure detention facilities within our corrections systems, ostensibly to receive specialized care and treatment, the institutional conditions are equally disturbing. Withholding or ignoring rehabilitation and treatment to further punish offenders and ensure that they are never released...remains a prominent… characteristic of our modern corrections systems.
As a general rule, inmates have no effective legal means available to them when promises of care and treatment are broken, even when such care becomes obviously inhumane. The futility in trying to enforce such promises has been demonstrated time and time again and continues to become even more difficult as courts and legislatures invent spurious justifications for their inhumane actions.
The following examples illustrate how unjust and inhumane these governmental actions and policies in the criminal and juvenile justice systems can be, yet we continue to allow them to be used, but only against adults and children with mental disabilities.
· Guilty but mentally ill verdicts, which—despite being opposed by the American Bar Association, the American Psychiatric Association, and the American Psychological Association—typically allow those who receive such contrived sentences to be deprived of needed treatment due to the lack of resources for all prisoners. These GBMI inmates can even be executed despite—and sometimes because—of their mental conditions.
· Incompetent defendants and inmates with mental disabilities charged with capital crimes may be compelled to take antipsychotic drugs so that they can be tried and executed, but subsequently they have no meaningful right to humane care and treatment while they wait for their death sentences to be carried out.
· Offenders with mental disabilities typically do not receive adequate and inhumane mental health care, treatment, and habilitation while in government custody, even when the absence of such care and treatment created the conditions that necessitated their incarceration. Thereafter, absence of needed mental health care and treatment is likely to be used as a justification for mandating that these individuals spend more time in prison and endure longer and more intrusive conditions of release than other offenders who have committed comparable crimes.
· As discussed earlier, many juveniles and younger children who have serious mental disabilities are confined in juvenile detention centers and other inappropriate settings because no suitable placements exist for them in their communities. If they become juvenile offenders, they may be tried and incarcerated as adults should they are viewed as being potentially dangerous based on subjective predictions that they are not likely to benefit from humane care and treatment.
Ultimately, the so-called right/entitlement to care and treatment for adults and children with mental disabilities is little more than a hollow promise that only is likely to be implemented in coercive civil custodial care settings where excessively-dosed antipsychotic drugs may be administered, typically for the convenience of staff. Yet, unless the need for care and treatment can be established, the constitutional justification for indefinitely incarcerating these individuals in the criminal justice system, increasingly for the rest of their lives, will be lacking. Unfortunately, the right/entitlement to care and treatment only exists in the courtroom as a justification for their initial incarceration. Once these people are confined in correctional facilities, which generally are inhumane, that right all but disappears. This legal fiction is a bait and switch, which typically results in a catch-22 that is nearly impossible for the affected individuals to remedy.