Congress has always had its nose in the business of mental health, alternately responding and ignoring the issue with little success.  Over all, politicians have had little real concern about the equitable treatment of individuals suffering from mental health issues, often preferring incarceration to treatment.


Since the 19th century, Congress has provided for the civil commitment of federal inmates who were found to be mentally ill. However, through the early part of the 20th century, these civil commitments applied almost exclusively to pretrial detainees. Legal scholars questioned whether under the then existing statutory scheme federal authorities had the authority to civilly commit inmates who had been convicted and who had completely served their prison sentences.


Civil Commitment


This changed in 1949 when Congress enacted Sections 4244 through 4247 of Title 18 of the United States Code.


Under Section 4246, the Government may file a petition seeking the civil commitment of an inmate about to be released from prison on the grounds that he is mentally ill and dangerous. The appropriate federal district court must conduct a hearing, and upon a finding by clear and convincing evidence that the inmate is mentally ill and dangerous, can order the inmate into the custody of the U.S. Attorney General for hospitalization and treatment in a suitable facility.


Under the “clear and convincing evidence” standard, the court must find that the inmate is presently suffering from a mental disease or defect and that is release from custody would pose a “substantial risk” to others or a serious damage to the property of another.


Court Proceedings Perfunctory


On August 12, 2015, the Eighth Circuit Court of Appeals in United States v. Pettaway reversed a civil commitment order because of the “perfunctory nature” in which that order was issued. The appeals court stated that


“… we express no opinion as to the appropriateness of Pettaway’s commitment, but conclude that the commitment order must do more than recite Pettaway’s mental diagnosis and the opinions of mental health professionals that Pettaway’s unconditional release would create the relevant risk of dangerousness. We also note that the district court heard contrary evidence in the form of testimony from Pettaway. At the hearing, Pettaway testified that he does not believe he suffers from a mental illness, that he takes his prescribed medications and would continue to do so, and that if released, he would not be a danger to any other person or property because he had ‘stopped doing that.’ The court must give some indication as to what information in the record it relied upon—such as Pettaway’s behavioral or psychological history, results of formalized assessments, recent observations, treatment notes, or interview impressions of mental health professionals; or its impression of Pettaway’s own testimony—in reaching its conclusion.”


The Pettaway decision, and the very existence of Section 4246, illustrates the dilemma of how to deal inmates suffering from mental health issues in the nation’s criminal justice system. The horrific spate of recent movie theater shootings, and the never-ending occurrence of repeated criminal conduct by mentally ill former inmates, has prompted some media pundits and law enforcement experts to question why mentally ill individuals are allowed to walk around in a free, open society.


Prisons Warehousing Mentally Ill


According to a 2014 Prison Policy Initiative report, there are more than 214,000 inmates in 102 federal prisons in this country. That same year the American Psychological Association (APA) reported that 45 percent of these inmates informed prison mental health officials that they had “mental health concerns.”


Each year approximately 680,000 inmates are released from federal and state prisons, most are literally dumped into the streets. Many have serious mental health issues.


With no money, no job, and often no place to live, experts report that as many as two-thirds of all these released inmates will be rearrested in three years. For the mentally ill, their release cuts off access to medication and the scarce mental health treatment programs available in in the federal prison system. Once released, they have no choice but to return to impoverished and disenfranchised neighborhoods where crime is an almost natural response for survival.


The APA report said that over the past four decades the “get tough on crime” approach had packed U.S. prisons with individuals with serious mental health problems. The president and leaders of both political parties in Congress have recently joined the chorus for criminal justice reforms. It is estimated that half of all inmates in this country suffer from a mental disease or defect.


Traditional penal “rehabilitation” programs (vocational training, GEDs, college degrees, and positive behavior) do not apply to individuals with serious mental health problems. These inmates require specialized medication and treatment programs that are not available in the nation’s prison system (especially at the state level), much less in the impoverished and disenfranchised communities they return to in the free world.


Reform Needed


We are not mental health professionals. We are criminal defense lawyers who all too often witness the role mental illness plays in our criminal justice system. We do not have a solution to the mental health crisis now afflicting the nation’s prison system. What we do know is this: prisons are bastions of violence, physical and sexual abuse, corruption, physical and mental disabilities; and are so geared to militarized supervision that individual rehabilitation and mental health treatment are sacrificed in the name of “internal security.”


What we also know is this: roughly half of all the 680,000 inmates released from the nation’s prison system each year have a serious mental health problem. How many pose a legitimate threat to life or property, we do not know. It could be anywhere from 5,000 to 25,000.


Incarceration of Mentally Ill


June Tangney, PhD, a psychology professor at George Mason University who studies offender rehabilitation, had this to say in the APA report:


“Our incarceration is very costly with relatively few benefits and a lot of deleterious effects on our economy and our families and on the fabric of our communities … Being the country with the highest incarceration rate in the world is really something we need to take a second look at. It’s not that we have more criminals than the rest of the world, we’re just doing different things with them.”


The problem is even worse than Professor Tangney surmises, according to Tiffany Townsend, PhD, senior director of ethnic minority affairs in the American Association’s Public Interest Directorate. “People of color are more likely to suffer disparities in mental health treatment in general, which results in their being ‘more likely to be ushered into the criminal justice system,’ Townsend said in the APA report. ‘The rise in incarceration transformed not only the criminal justice system, but also U.S. race relations and the institutional landscape of urban poverty.’”


Crime Rate Drops, Incarceration Rate Increases


The tragedy is that while the nation’s crime rate, especially in violent crimes, has steadfastly decreased over the last two decades, the rate of incarceration has exploded. Mental health, not crime, is likely the reason. Today we have more mentally ill people in prison than we have hospitalized in mental health treatment facilities, according to the Treatment Advocacy Center of the National Sheriffs’ Association. Latest estimates from the United States’ Substance Abuse and Mental Health Services Administration say that 25 percent of the nation’s homeless population has serious mental disorders, many of whom will get ensnared in the criminal justice system for relatively minor social misbehavior.


Civil Commitment Not the Answer


The one thing we are convinced of is this: civil commitment is not the answer to the mental health crisis facing the nation’s criminal justice system. Jessie Pettaway is an anomaly. Why the U.S. Justice Department selected him for civil commitment was not made clear by the Eighth Circuit. What is patently clear is that neither federal nor state governments have the resources to target every mentally ill inmate about to be released from prison for civil commitment. There are not enough medical treatment facilities in either the prison system or the free world to accommodate the thousands of inmates who pose a real risk to themselves and others upon release from prison. A robust diagnosis and treatment program while incarcerated, followed by a humane follow-up program, is necessary to help the mentally ill escape the rotating doors of the prison system.


Until we get this right, the Jessie Pettaways will continue to get selectively targeted by the Government for civil commitment and too often ushered into indefinite incarceration in a treatment facility in a “perfunctory” manner by the courts.  The vast majority of mentally ill inmates will continue to go untreated, released into society more sick than they were when they entered.


This approach certainly does not serve the interests of justice.