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 with SNI. 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 SNI 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. 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 healthcare services for the inmate population, eliminate solitary confinement, coordinate care upon release to reduce recidivism.
  • Compassionate treatment of people with SNI 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).


Due Justice Project attaches an explicit meaning to the term criminalization in the context of SNI:

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 is the medical science of illnesses that disorder waking consciousness – causing neurological (rather than psychological) detachment from reality, incapacity to self-audit, self-regulate, and incapacity to conform behaviors to the requirements of the law.  Psychosis-spectrum disorders are not behavioral, psychological, or emotional disturbances (which involve choice) and are not subject to remediation by correctional control or psychological interventions – psychosis is not just a criminogenic factor.

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 SMI.
  • Reform the laws and the mechanics of due process that directly lead to unjust conviction and punishment.

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 SNI.  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.

-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 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 in the community where appropriate for people with serious neuropsychiatric illness. The criminal justice system needs to prevail upon government to allow the mental health system to take taking jurisdiction over persons with SNI 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 neuropsychiatric /neurocognitive disorders.  There are laws that undergird the criminal justice system in the disposition of people with SNI.  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 residential care in the community.  What they have done is reprehensible.

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 neuropsychiatric illness 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.