The Criminalization of Mental Illness: A Matter of Human Rights

by Judge Ginger Lerner-Wren who created first Mental Health Court to decriminalize mentally ill

Huffington Post Blog, 5/26/2015

Judge Ginger Lerner-Wren Broward County Court Judge, 17th Jud. Circt.

Judge Ginger Lerner-Wren Broward County Court Judge, 17th Judicial Circuit

It proved to be a bittersweet Mental Health Awareness Month this May 2015. As mental health advocates posted articles and assembled educational community forums, Human Rights Watch shocked America with the truth. A 127-page investigative report describes a criminal justice system in America and its use of excessive force, even systemically brutal and malicious. The report, “Callous and Cruel: Use of Force Against Inmates With Mental Disabilities in US Jails and Prisons,” charges in no uncertain terms that, “Jails and prisons staff throughout the United States have used unnecessary, excessive and even malicious force against prisoners with mental disabilities.”

According to Jamie Fellner, U.S. program senior advisor at Human Rights Watch and author of the report, “Force is used against prisoners even when, because of their illness, they cannot understand or comply with staff orders.” The report is essentially a compilation of the multitude of individual cases and class actions, Justice Department investigations and interviews with over 100 correction officials and use of force experts. The report includes the death of Damen Rainey, a 50-year-old inmate who was locked in a shower, which according to the Miami Herald, “had been converted to a torture chamber at Dade County Correctional Institution.” Additional alleged atrocities uncovered by The Herald describe a pervasive culture of mental and physical abuse, which includes a starvation squad, racial beatings, sexual assaults and threats of retaliation if complaints were filed. The Department of Justice and FBI are investigating.

One can understand why Broward’s pioneering Mental Health Court was established as a human rights model. With the release of this latest Human Rights Watch report, it is more than fair to say that all mental health courts should embrace a human rights framework. So what does that mean? It means that although, for example the U.S. has not ratified the U.N. Convention on the Rights of Persons with Disabilities those fidelities can become aspirational values and embedded within the court process. That dignity is promoted and due process and equal rights under the law protected. It means that individual substantive constitutional rights are preserved and all statutory entitlements and legal protections against abuse, neglect and harm are advanced. Further, a human rights orientation respects individual choice and ensures these principles of dignity and self-determination are braided through all operational and procedural constructs of the court process. More importantly, there is authenticity and urgency to the court’s therapeutic mission of diversion from the criminal justice system to community based system of care. Of course, public safety and victim’s rights are paramount judicial considerations which must be balanced.

America stands at a crossroads. As the Human Rights Watch report informs us, jails and prisons are unsuitable substitutes for psychiatric hospitals or residential programs. They can be dangerous and potentially deadly. In America, hundreds of thousands of people with serious mental illness are being housed in our nation’s jails and prisons. Many due to untreated mental illness, stigma and severely underfunded and fragmented state-wide systems of behavioral health care.

It is true, prison guards and jail correction officers are not trained social workers or mental health practitioners. The use of excessive force and other abusive practices must be investigated and perpetrators held accountable. The criminalization of people with serious mental illness has been a source of epic human suffering, victimization and economic loss. It is worthy to note that Florida, the 3rd largest state, has defiantly rejected Medicaid expansion funds and stands at 49th funded in the United States. The correlation between failed governmental policies of deinstitutionalization and the resulting criminalization of people with mental illness is well settled.

It is beyond time to reject criminalization as an acceptable substitute for the funding and development of qualitative and recovery focused community based systems of care. It is time to recognize that America’s human stain — is one of basic human rights.