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Troubling questions on the border between the prison and hospital

Jonathan Simon, professor of law | June 17, 2011

Deborah Sontag’s outstanding feature on the murder of a psychiatric facility worker by a schizophrenic patient with a history of violence is a great overview of one of the most complicated corners of our domestic security governance problem. As recently as the 1970s there were still far more people in mental hospitals than there were in the nation’s prisons (read Bernard Harcourt’s article on this). The situation today is vastly different, with the prison system bigger by a factor of nearly 10. Of course most of the residents of mental hospitals then and now have nothing to do with crimes, let alone violent crime. But for a small portion of people with serious mental illness, perhaps less than one percent, a history of violence tinged psychotic ideation, and actual violence, is a strong predictor of future violence (but only if the person is untreated). Meanwhile a shockingly high level, perhaps 20 to 30 percent, of our inflated prison population suffers from a major mental illness.

Twenty seven year old Deshawn James, accused of murdering 25 year old Stephanie Moulton in a Massachusetts “group home,” came from a strong church background and gave little indication of being headed for trouble, before symptoms of schizophrenia emerged in late adolescence. Since then James has been in both prison and in group homes. At least according to his mother, James responded well to medication. But like many people with serious mental illness, he went off his medication with frequency. Massachusetts current regime, although better than most nationally, is under going both budget cuts and a philosophy shift toward ending state oversight for patients.

The murder trial is on hold for now since James, who was clearly psychotic at the time of his arrest, was found incompetent to stand trial, which means he will continue to be held and treated in a secured hospital for at least a few months with the aim of resuming the proceedings if treatment makes it possible for him to assist in his own defense (if not he may be committed under civil powers). The civil suit, being brought by Stephanie Moulton’s mother, is proceeding. The case is likely to put the group home operators on trial for failing to identify the level of risk posed by James (because of his criminal record) and the light staffing.

The primary response to the risks posed by someone like Deshawn James over the last thirty years has been criminal prosecution and incarceration. His trajectory underscores some of the ways that approach fails. Someone whose violence is triggered by psychotic ideation is not likely to be deterred by prison, and years of stable behavior cannot preclude a resumption of violence if the psychosis resumes. At the same time, the tens of thousands of California prisoners with serious mental illness were revealed by the Brown v. Plata case to be utterly failed by the prison mental health system which leaves them to decline into deeper illness frequently in overcrowded and degrading conditions sure to exacerbate their paranoia.

As we think about rebalancing our approach to public safety, people like Deshawn James, and the much larger population of prisoners with serious mental illness who have no history of violence, should be a prime focus of reform efforts. We must be able to do abetter than a system that manages on its penal side to be both ineffective and unsustainably expensive, while on its civil side weak and inconsistent.

Following Brown v. Plata, California and other states should clearly seek to divert almost all their prisoners with a serious mental illness to a hospital setting. Prisons are not suitable places for people with serious mental illness and their presence their creates unacceptable risks both to them and others. These hospitals could be specialized prisons, but in the great many cases where it is apparent that untreated mental illness was the primary cause of the crime, states should ultimately clear their criminal record in favor of a long term mental health treatment plan, enforceable by a mental health court with long term jurisdiction and the power to order involuntary commitment to a secured hospital setting.

State mental health powers ought to be concentrated in specialized courts that are expert both at therapeutic jurisprudence and identifying evidence tested risk factors that require tighter supervision. Currently, the power to forcibly treat and if necessary confine to a closed treatment hospital, is limited to episodes where the person poses a clear and imminent risk, and then only within strict time limits. Laws should be changed to give courts long term powers over adults with serious mental illnesses who have ever met the criteria for emergency hospitalization and forced treatment. Serious mental illness is a chronic disease. While treatments are effective in preventing the most alarming and dangerous symptoms of disease, they do not “cure” people, and ultimately long term management of their condition is a personal and social value that deserves to be honored.

The courts that exercise this power must be infused with a commitment to human rights and to protect the dignity of both people with mental illness, and potential victims of people whose serious mental illness makes them prone to violence. Honoring the first means always using the least restrictive alternative and directly respecting the autonomy and preferences of people with mental illness who are under the court’s jurisdiction. Honoring the second means taking maximum advantage of known risk factors to closely supervise and when necessary confine individuals prone to violent behavior when their symptoms worsen and or when they seek to self medicate with drugs like speed and cocaine.

Existing institutions like the Behavioral and Mental Health Court of San Francisco provide a good model for a court that can do both. Its work should be overseen by a human rights agency, perhaps modeled on the European Committee for the Prevention of Torture (read my previous post on the CPT and prisons).

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “Troubling questions on the border between the prison and hospital

  1. Forced pharmacological treatment, and even less invasive abuse is at the very least a strong, cruel, negative placebo. That it has spawned an industry, including of overpaid undeserving ‘abusive pharmacology delivery’ people with de jure extra judicial powers does not speak well for Berkeley and its faux freedoms. The origin of this abusive system was likely in the prison/military complex–although it may be seen to have origins in the practice of slavery. Abusers hide their delivery in plain site, a single dose can be administered against an uncomprehending victim while passing on the sidewalk (pretty common) and given cover by third parties making outrageous comments, loud noises, or any other form of acting out. Practitioners are frequently recruited from the pool of victims. Drawing from populations with high percentages of trans people may be a coincidence, although the perpetuation of a public myth regarding medical treatment occurs in both populations.

    The majority of victims will accrue a ‘history of violence’ over time, judicial means of resistance being regularly denied by judges who have no interest in the science behind medical cruelty. The victim is rewarded by being complicit in his/her own victimization. Cafes in Berkeley are filled with people who no longer resist, or do so to become victims of their families and ‘the community. The accusation that someone ‘went crazy because they went off their meds’ is a common slur in Berkeley. Their will be no viewable medical record for the victim, out of a sense of macabre propriety, the abuse will typically be kept private from the victim. Cajoling interlopers will insist that nothing was done, that nothing happened without permission, that it was/is done in accord with the scientific and legal protocols for abuse. The victim will be encouraged to remain within the medical gulag archipelago. Without housing, meaningful labor, or means of support, (rights awarded to nobody) the sting of the iinjections, the pointless prescriptions, the endless battles with the accommodationist medical class, the victim is maintained in a perpetual state of victimhood until early death, typically by about twenty years.

  2. One major solution has proven to be greater use of Assisted Outpatient Treatment (Laura’s Law in CA; Kendra’s Law in NY). Research shows AOT reduces arrest for violence crime by 8 fold. It also reduces incarceration, hospitalization, suicide, homelessness etc. in the exact population you describe: those with a history of violence who are untreated. Unfortunately, these seriously mentally ill individuals are sent to the end of the line rather than the front because no one wants to serve the high needs of these individuals. Learn more at

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