Author: Nina Fainman-Adelman

Involuntary Hospitalization or Incarceration: Why Our Choices Are So Limited

A severe mental illness can be a death
sentence, but not for the reasons you might think. Individuals living in the
United States with untreated mental illness are 16 times more likely to be
killed during a police encounter than any other civilian approached or stopped
by law enforcement. The reality is,
police officers are often the “first responders” to individuals with severe
mental illness–answering calls about “disturbances”, suicidal ideation, or
crimes committed– but are ill-prepared for dealing with these complex psychiatric cases.

According to the Treatment Advocacy
Reports, 1 in 5 inmates in America have a serious mental illness; even more
have diagnosable mental illness. First
responders (including police) are reluctantly taking over the role many believe
that should involve psychiatrists or other mental health professionals. The
justice system in turn is tasked with solving the social problems that occur as
a consequence of a severe mental illness. It is abundantly clear that prison is
not the answer for solving serious
mental health issues. Rather, reports compiled by organizations such as the WHO show that incarceration will only
exacerbate these problems. Still, law enforcement see few options apart from
arrest and/or incarceration when dealing with mentally ill individuals; when
they are tasked with balancing individual well-being against public safety.

The alternative to incarceration is
involuntary hospitalization. The misconception held by some mental health and
legal professionals is that involuntary hospitalization can be the best thing
for people with severe mental illness; and protects those with severe mental
illnesses from ending up in the justice system. However, there is
inconclusive evidence of the effectiveness of involuntary hospitalization.
Ironically, one of the reasons why there is an overrepresentation of persons
with serious mental illness in the justice system is because of deinstitutionalization. Following the arrival
of antipsychotics in the 1950s, the public view became that it was not
necessary to detain individuals with mental illness since treatment of psychiatric
symptoms was available. By the 1990s the number of psychiatric inpatients had
been reduced from 550,000 in 1950
to 30,000. Nonetheless, the issue became that individuals with serious mental
illness, who were disproportionately homeless or extremely low-income, could
not afford access to these new treatments. As a result, the number of
individuals with untreated serious mental illness within the prison population increased.

At the end of what seems to be a very
complex issue is a very simple solution. The medical profession has reached a
point where effective treatments are available for
individuals with mental illness. Medical facilities provide access to mental
health professionals beyond psychiatrists; facilities have social workers,
counsellors, psychologists, occupational therapists, even specialists with specific training to treat addiction.
The only remaining issue is funding. How can those who need access to mental
health services get that access when the cost is so high? Well, recent research
has shown that publicly funding psychiatric medication may save taxpayers money. A Desmarais study
recently found that people who receive less mental health services
unsurprisingly incurred higher criminal justice costs, which averaged $95,000 per person. In
comparison, the study showed that people who received more mental health
services had lower arrest rates bringing the criminal justice costs down to
$68,000 per person

The answer is to
provide better access to mental health services for people who need it the
most. Simply pushing mental health issues away has caused these issues to be
dealt with in inappropriate, and often detrimental, ways that are not only
unhelpful but economically burdensome to society. Our choice
does not need to be between involuntary and incarceration as the means to
combating serious mental illness.

Maryland wants to Decriminalize Suicide.

The issue of suicide as a felony has resurfaced. This time, however, the discussion isn’t centered around physician-assisted suicide. Instead, the focus is the criminality of attempted suicide. In February 2019, a 56-year-old man in Maryland plead guilty to a count of “attempted suicide” and was sentenced to a three-year suspended jail sentence, and two years of probation (Washington Post, 2019). Oddly enough, this is only one of ten attempted suicides that have been prosecuted in Maryland in the past five years (Washington Post, 2019).   

Suicide as a
criminal offense dates back to 13th-century English common law,
where suicide was considered a crime against “God and the King” (Washington
Post, 2019). Early common law held suicide as punishable by ignominious burial
on the highway, and by forfeiture of goods and chattels (Markson, 1969). This
common law rule was initiated after America declared its Independence from Britain
in 1776. However, many states eliminated the common law by total reliance on
statutory law, whereby suicide was ignored and the common law against suicide
was made ineffective (Wright, 1975). Still, several states maintained the
common law principle that suicide was, in fact, a crime (Wright, 1975).

State courts continued
to be confronted with this issue, and faced with the question of how suicide
should be dealt with in the law. Many states have refrained from
decriminalization based on the opinion that criminalization will deter suicide
attempts, or at least provide grounds for involuntary hospitalization or

This debate has
spanned from 13th-century common law all the way to 2019, where Del.
David Moon (D-Montgomery) recently passed a bill to decriminalize the act in
Maryland (Washington Post, 2019). Moon highlighted that one of the reasons
prosecutors still resort to using this dated law is to get people into
involuntary hospitalization and treatment. His bill received criticism from
lawmakers who feared this would garner support to legalizing physician-assisted
suicide; however, suicide prevention groups vocalized their support, noting it
may help shift the discourse to prevention and de-stigmatization rather than
punishment. After much debate, Moon’s bill decriminalizing attempted suicide in
Maryland was passed in April, 2019. This ruling may re-ignite conversations in
states like Virginia, where attempts to decriminalize attempted suicide have

This discussion
goes beyond the specific issue of decriminalization of suicide attempts, and
raises important questions about how the justice system should deal with mental
illness. Moon notes that “if we keep enabling the law enforcement function to
take over the public health function, we are never going to fix [these mental
health issues]” (Washington Post, 2019). Suicide is currently the 10th
leading cause of death in the United States, and is continuously on the rise
(National Institute for Mental Health, 2019). Is the best way to combat this
public health issue to criminalize the act? While it is undisputed that suicide
prevention and deterrence is of the utmost importance, it is questionable how
continued criminalization of attempt will achieve this. If anything, it may
incentivize attempters to use more lethal means to ensure they do not survive
and be faced with criminal charges. Even more, this may actually prevent people
with suicidal ideation from getting help on their own volition for fear of
criminal repercussions. As we become more aware of mental illness as a public
health concern, it is important to explore even the most well-meaning efforts
for prevention under a critical eye, and assess the consequences of dealing
with mental illness through the criminal justice system.