Criminalization of “mental illness”. What does this mean?

10/10/18 Update:  Subsequent to the creation of this page, this site has eliminated the term ‘mental illness’ to the extent that is possible without sacrificing clarity.  The title of this page remains unchanged because criminalization of mental illness is an expression that is commonly used in societal discourse and it is this specific expression that is evaluated on this page.  The content below, however, has been updated to replace SMI .  Titles  or excerpts from external content are unaltered.

Advocates and social policy critics are using this expression liberally these days, in some sense, in a philosophical way.

Criminalization in the philosophical sense can be articulated as follows:

Too many thousands of people with “mental illness” are not getting the medical help that they need. The consequence of this lack of medical treatment is that people are committing criminal offenses. If this population were getting the medical care and other supports that they need, they would not be engaging in the behaviors that lead to arrest, prosecution, conviction, and punishment in the form of incarceration.

More often than not, this type of advocacy does not directly critique the criminal justice system. It also does not question the justice of punishing someone who was so-called “psychotic” when a crime was committed.  So what is the solution set for “criminalization” within this mode of advocacy?

Increase treatment beds, remove barriers to treatment, and increase funding for treatment. Implement AOT for people who lack awareness of their illness. Improve all aspects of care delivery, coordination of services, and supportive housing. Connect people to all of these services in order to curtail engagement with the criminal justice system.

  • Improve “mental health” services for the inmate population, eliminate solitary confinement, coordinate care upon release to reduce recidivism.
  • Compassionate treatment of people who commit crimes. Proliferate “mental health” courts and promote diversion of people who commit non-violent crimes through various diversion models. Expand use of felony mental health courts for some (non-violent) crimes.
  • Promote training programs for law enforcement to reduce arrests that channel people into the criminal justice system.
  • A subset of advocates call for reduction of stigma – believing that stigma is a hindrance to willing engagement with treatment (which does not reckon with the fact that anosognosia plays the predominant role in disengagement with pharmaceutical treatment).

“STEPPING UP” MODELED INITIATIVES LEAVE THE MOST TRAGICALLY ILL BEHIND TO BE UNJUSTLY PUNISHED.  Stepping Up Initiative of the Council of State Governments (CSG Justice Center)


Due Justice Project attaches an explicit meaning to the term criminalization of  “mental illness”

Unjust conviction and punishment, and in many cases, unjust prosecution. The basis of the injustice is not about lack of compassionate treatment or failure of the mental health system to keep people out of jails and prisons. The basis of injustice is the essential nature of the neurologic symptomology of the neurologic disorders that are conconceptualized as “mental illness”.

The complex of symptoms that disorder the state of waking consciousness – causing neurological (vs psychological) detachment from reality, incapacity to self-audit, self-regulate, and incapacity to conform behaviors to the requirements of the law.  Anosognosia figures prominently in behaviors that get people with serious so-called mental illness.  Anosognosia is often described by advocates as a person not knowing they are sick.  That is an empty and meaningless description of this neurological state in the context of neurobehavioral illness.  As this neurological symptom relates to unlawful behaviors, the substantive meaning of anosognosia is that the person is cognitively blind to the fact that their mentation (in part the precursor to motor behaviors) and behaviors (which can automatisms, grave neurologic phenomenon like command hallucinations – which are profoundly misunderstood by the criminal justice system, and the complex neuro-mechanics of volition and motor activities) are disordered and unlawful.  Even an act such as calling the police on oneself after an act of violence is committed is not evidence of knowing right from wrong within the state of being neurologically detached from reality.

Neurobehavioral symptoms such as those associated with the “schizophrenia” and bipolar are neurologic, not behavioral, psychological, or emotional disturbances (which involve choice) and are not subject to remediation by correctional control or psychological interventions – neurogenic dysmentation (so-called psychosis) is not just a criminogenic factor.  The medical profession bears responsibility for allowing the pernicious psychologization of neurologic disorders as a legacy of deranged psychological ideas rooted in the psychoanalytical movement.   Psychologization and odd orthodoxies such as biopsychosocial have put people at risk of being “treated” with psychotherapies which are inappropriate “treatments” for persons diagnosed with so-called schizophrenia or bipolar, and as a consequence, the ensuing risk of engagement with the criminal justice system.

Advocates decry the criminalization of “mental illness” but this is a misstatement of the problem.  The criminal justice system does not criminalize “mental illness”.  In fact, it has spent decades dissociating “mental illness” from unlawful behaviors in general and violence in particular.  This dissociation is made explicit in the vile GBMI verdict – a verdict that conveys the judgement that “mental illness” had nothing to do with the crime.  It is not the “mental illness” that is being punished. 

The solution to criminalization:

  • First of all, do not let the perfect be the enemy of the good – actively advocate for all measures in the solution set above but do not cooperate with the philosophical definition.
  • Educate the populace to reduce widespread misunderstanding of these brain function disorders.  This re-education mission is exceedingly difficult because psychologization of neurobehavioral symptoms is so deeply rooted in the consciousness of the populace.  The medical professions are criminally negligent (justly so given the carnage of death, homelessness, and suffering due to warped social policies premised upon misunderstanding of these neurologic disorders) for failing to push back against psychologization and failing to educate law students (as an interdisciplinary approach to education) about the implication of the symptoms upon behaviors.
  • Reform the laws and the mechanics of due process that directly lead to unjust conviction and punishment.  This reformation cannot be realized until re-education reaches critical mass.
  • The medical profession must cease conferring the credential of forensic psychiatrist.
  • Psychologists (both forensic and others)- who are not medical doctors, should have no involvement in the evaluation or “treatment” of people who are suspected of having impaired brain health.  There should be Brain Health Evaluations, not Mental Health Evaluations for those who have been charged with crimes.

Paradigm Shift:  The Criminal Justice System Needs To Hold The “Mental Health” System Accountable.

10/10/18  Update: DJP’s position is that the mental health system is not the proper domain for the treatment and management of illnesses such as “schizophrenia”, bipolar, and major “depression”.  This position is explained on other pages of this site, however, for the sake of argument in the context of this topic, the MH system describes the current infrastructure that encompasses clinical institutions, practitioners, and government agencies that have regulatory oversight.  The idea of parity, moreover, is a flawed construct because neurological illnesses should not be managed in the “mental health” system.  That system might be useful only for wraparound services and targeted social services.  People with brain function disorders should not be in the same segregated system (segregated from the medical health system) where people with mental health issues are served.  This is the long legacy of the split between psychiatry and neurology and the negligence of the medical profession that left people with this class of illness captive of psychotherapists and all manner of practitioners of pseudoscience and psychology in general.

-Where it is appropriate – Stop Prosecuting
-Stop Ignoring the medicolegal implications of incompetency to stand trial
-Stop De Facto Banning Insanity in the courtroom
-Stop Punishing and Incarcerating people who were neurologically detached from reality (so-called psychotic) when they committed crimes.

State and federal governments have a civic and moral responsibility to provide comprehensive care, case management, and dignified institutional care where appropriate for people with serious brain function disorders.  The criminal justice system needs to prevail upon government to allow the “mental health” system (unfortunately named as such but this is the reality that we have to deal with) to take jurisdiction over persons with this class of brain function disorders who are charged with crimes.

Legislators have violated the public trust by abandoning the most vulnerable people in society; those who are deprived of the neural capacity to conform their behaviors to the law due to serious neurobehavioral disorders.  There are laws that undergird the criminal justice system in the disposition of people with these disorders.  Legislators are responsible for the drafting and passage of these laws.  Legislators are responsible for closing state hospitals and not replacing lost housing (those hospitals provided 24/7 supported housing, not just treatment “beds”) with appropriate institutional are in the community.  What they have done is reprehensible.  There are people living in the “community” that are too gravely ill to be living at home with families or independently.  Because of these misguided deinstitutionalization policies there is an epidemic of these vulnerable persons being killed by police officers or becoming engaged with the criminal justice system.

The following is an excerpt from a paper titled “Some Perspectives on Criminalization” …written by H. Richard Lamb, MD, and Linda E. Weinberger, PhD

The paper does not characterize criminalization in the explicit way that Due Justice Project defines it, as unjust conviction and punishment, however, it is a superb commentary that sheds some light on facets of the pernicious dissociation of neurobehavioral disorders (which should be reclassified as ideopathic encephalopathies) from criminal behaviors. There are vested interests who have been funding research studies that seek to excuse the criminal justice system from charges of unjust criminalization.

Perspectives on Criminalization

Excerpt from Emphasizing Antisocial Characteristics and De-emphasizing the Role of Serious Mental Illness

…The connection between deinstitutionalization and criminalization has also been blurred by a tendency of some professionals to attribute criminal acts by most persons with SNI primarily to criminal characteristics, rather than their not having received appropriate community psychiatric treatment. It is now being said that while there are incarcerated individuals who may have serious neuropsychiatric illness, a large proportion of them are in correctional facilities primarily because they also have criminogenic relationships, antisocial attitudes, and a lack of problem solving and self-control skills that contribute to their criminal behavior. Consequently, a primary intervention suggested to reduce recidivism is to focus on the antisocial cognitions of these persons.