Prisons of the mind: social value and economic inefficiency in the criminal justice response to mental illness.

• Author: Pustilnik, Amanda C.

Can constructs of social meaning lead to actual criminal confinement? (1) Can the intangible value ascribed to the maintenance of certain social norms lead to radically inefficient choices about resource allocation? The disproportionate criminal confinement of people with severe mental illnesses (2) relative to non-mentally ill individuals, adjusting for differences in lawbreaking conduct between the two groups, suggests that social meanings related to mental illness can create legal and physical walls around this disfavored group. Responding to problems of mental illness principally through the criminal system imposes billions of dollars in costs annually on the public, (3) above any offsetting benefit in public safety and deterrence, and imposes terrible human costs on people who suffer from these illnesses. (4)

Yet, the criminal confinement regime may create intangible social value by reinforcing norms related to personal responsibility, based on the current and historical social meaning of mental illness. And social meaning, according to legal scholars working in expressive or New Chicago School law and economics, is an essential term in the economic analysis of law. (5) Reform efforts aimed at replacing the current punitive paradigm with a medical or therapeutic model founder because they fail to account for the social meanings that maintain the punitive paradigm and for the social value it creates. Understanding the social meanings of mental illness and how they intersect with the norm-enforcing role of the criminal law can lead to normatively literate reform proposals, liberating tremendous economic and human value.

It is beyond cavil that the criminal justice system functions as the United States' default asylum system. For every one person treated for a psychiatric illness in a hospital, about five people with such conditions are treated, or confined without treatment, in penal facilities. Many people with mental illnesses confined in prisons and jails have committed no offense at all or merely a public order infraction: statistics show that between 30 and 40 percent of mentally ill individuals in the jails of certain states had no criminal charges pending against them, while jails report frequently holding people with mental illnesses simply because there is no other place to put them. Criminal confinement principally or exclusively because of mental illness affects U.S. children as well.

The confinement of adults and children with mental illnesses in penal facilities comes at an extraordinarily high cost to the U.S. economy. The direct costs include the costs of involvement in the criminal justice system from arrest through incarceration and release, while the indirect costs include lost productivity resulting from untreated or undertreated mental illness and from incarceration, as well as the lost productivity of the family members or other intimates who provide unpaid care for a person with a mental illness. Economists and legal scholars have not attempted to calculate the total direct and indirect cost to the economy of a public order response to mental illness. This Article attempts to estimate from existing data sources the direct cost of the public order response. It also separates out the costs attributable to the use of the criminal system for nonviolent and nonoffending people with mental illnesses from those attributable to violent offenders.

Yet, to say something is costly says nothing about its worth. Even a massive expenditure can be valuable if the benefits are similarly great. In classical economic terms, incarceration expenditures can be considered net positive, and rational, if the value they produce in the form of deterrence and public safety exceeds the costs. Yet, a substantial portion of the costs incurred as a result of the public order response to people with mental illnesses produces no deterrence or public safety benefits. General deterrence (the notion that potential lawbreakers are dissuaded from their intended crime when they see others have been locked up for the same thing) and specific deterrence (the prevention of a particular person committing his or her intended crime) certainly cannot be promoted by incarcerating people who have not committed a crime. Similarly, public safety is not advanced by confining people who are nonoffending or whose offenses of conviction are nonviolent. Even as to violent mentally ill lawbreakers, public safety may be better served by detention in secure hospitals, as many prison systems transfer their violent mentally ill inmates to hospitals in any event. (6) The lack of value in the criminal response to mental illness is further thrown into relief by various states' pilot programs offering less expensive, more effective non-criminal alternatives. Yet, these programs are perpetually starved of funding.

This presents a stark conundrum: why do governmental units choose to spend billions of dollars a year to concentrate people with serious illnesses in a system designed to punish intentional lawbreaking, when doing so matches neither the putative purposes of that system nor most effectively addresses the issues posed by that population? This set of contradictions is all the more puzzling for the extent to which it is generally not remarked upon or challenged. For if there is serious discussion in the academy at all about the truly vast interrelationship of mental illness and the criminal justice system, it centers on the interesting but empirically trivial insanity defense, (7) which is supposed to exclude people with mental illnesses from criminal punishment under certain circumstances, not on the paradoxes of why the criminal system is in fact the system of choice for dealing with people with these illnesses. (8)

This Article suggests that the tremendous economic and human costs of the public order response to mental illness not only are unquestioned by scholars but are actively embraced lawmakers and voters because of the prevailing social meaning of mental illness. The New Chicago School of law and economics posits that social meaning (which is what an "act, omission, or status means to a community of interpreters" (9)) creates social value, and that social value is an essential term in the economic analysis of law. This Article contends that the social meanings of mental illness at play in U.S. culture are the "moral/punitive" model, which is dominant, and the "medical/therapeutic," which is subordinate.

Under the moral/punitive model, mental illness is conceived of as a failure of responsibility, not as a set of medical conditions that require and respond to treatment. Social value is created through a criminal justice response to mental illness because, under current ways of thinking about mental illness, the punishment of people with mental illnesses is believed to reinforce the core norm of individual responsibility. Punishment of people with mental illnesses dovetails with our beliefs about the appropriate role of the criminal system in punishing culpable failures of responsibility and of prison as the place for people who violate not only the law but core social norms.

Support for this claim is abundant: the notion that mental illness should not be treated but policed as a failure of responsibility, and that this response reinforces the norm of individual responsibility, finds expression in legal scholarship, among mock and actual juries, in legislation and in the statements of lawmakers. The unacceptability of hospital-based confinement as a potential "alternative sanction" also attests to the primacy of the moral/punitive model over the medical/therapeutic. Further, the contrast between the criminal disposition of people with mental illnesses and the excuse of "temporary insanity" highlights the role that the specific social meaning of mental illness plays in relation to the norm of individual responsibility. This defense applies only to non-mentally ill actors who break the law as a result of certain "provocative" circumstances (originally, catching a spouse in adultery, although the circumstances deemed sufficiently provocative are historically and culturally contingent). This shows that the law excuses lapses that are construed as virtuous but not those that are seen as culpable, or simply alien.

Like mental illness, the institution of prison also has a particular social meaning. An extensive body of scholarship on the history of the prison suggests that prison not only confines but signifies society's disgust toward those who transgress against valued norms, including against the norm of individual responsibility. This meaning of the prison in addition to confinement (for secure hospitals can also confine) points to utility created by the incarceration even of nonviolent and nonoffending people with mental illnesses--so long as mental illness is conceived of under a moral/punitive paradigm. But if mental illness were conceived of under a medical/therapeutic model, the confluence between the meanings of mental illness and of prison would disappear. This would liberate tremendous economic and human value and require the location of people with mental illnesses in a different, treatment-based system.

My argument proceeds in four parts. Part I introduces New Chicago School scholarship and the rise of the importance of social meaning in the economic analysis of law. It then posits the existence of some positive social value created by the public order response to mental illness that accounts for the resilience of that regime.

Part II presents the use of corrections facilities as confinement centers for people with mental illnesses, the tremendous associated costs, and the absence of offsetting gains in deterrence or public safety. Part II.A presents statistics from the state and federal prison systems, including jails and juvenile corrections facilities, to show that the criminal justice system in fact serves as...