Introduction 685 I. Current State of Affairs 696 II. Therapeutic Jurisprudence 701 A. What Is Therapeutic Jurisprudence? 701 B. Therapeutic Jurisprudence Implications of Police Decision-Making 703 III. Therapeutic Jurisprudence, Policing, and the Significance of Counsel 704 Conclusion 709 INTRODUCTION
It is a truism that the nation's largest urban jails are also the largest mental health facilities in the nation. (1) Most of the predictable solutions that are offered to curb the influx of individuals with mental illness into jails, especially those that urge the loosening of civil commitment standards and the return to large psychiatric institutions, (2) are dreary at best, unconstitutional at heart, and mean-spirited at worst. (3) Deinstitutionalization is seen as the enemy, (4) and as the raison d'etre for the current state of affairs. (5) One of the authors (MLP) has written about this previously, rejecting this argument, and endorsing instead the views of Professor Samuel Bagenstos:
To be sure, we could solve the problem of homelessness among people with psychiatric disabilities by simply institutionalizing them for the long term. But other policies could solve that problem just as well--notably supportive housing, in which individuals obtain tenancy in apartments linked with supportive services. And yet, as homelessness was increasing in the 1980s, the federal and state governments were cutting Supplemental Security Income (SSI) and housing assistance--the very programs that could pay for community-based housing for people with psychiatric disabilities. The indictment of deinstitutionalization, as opposed to the failure to invest in community-based services and supports, does not rest on an empirical determination of what happened in the world so much as on a normative premise that institutionalization is preferable to community-based housing and supports. Given the undoubted harms of long-term institutionalization for people with psychiatric disabilities, and the viability of evidence-based community services... there is no good reason to prefer institutionalization as the solution to the homelessness problem among people with psychiatric disabilities. However, we pay remarkably little attention to one of the primary causes of this reality: the decision-making processes "on the street" by police officers who choose to apprehend and arrest certain cohorts of persons with mental disabilities, often for what are characterized as "nuisance crimes," (7) rather than working with them and seeking other, treatment-oriented alternatives. Such arrests fail to protect public safety when "mental illness at the root of a criminal act is exacerbated by a system designed for punishment, not treatment," (8) and may "exacerbate or construct mental illness." (9) Professor Amanda Geller and her colleagues make the latter point clearly: "[t]he criminal justice system has been recognized increasingly as a threat to physical and mental health." (10)
Inappropriate arrests are caused by a variety of barriers to effective police response, including a lack of training and misconceptions of mental illness by the public and by police officers making the arrests. (11) In the vast majority of jurisdictions, police departments do not provide any clear guidelines for interacting with persons with mental illness; as a result of this, "the police officer is left to his or her own devices to resolve the situation." (12) This becomes all the more important because of the substantial discretion police officers typically have in the handling of certain misdemeanor cases, such as failing to obey an officer or creating a public nuisance. (13) Dispositional decision-making often depends on such variables as the "publicness" of the behavior, whether the offender is a "known neighborhood character," and whether the individual behaved problematically during the interaction. (14)
There is robust, valid and reliable literature demonstrating that certain methods of training programs designed for police officers--the "Memphis model" of crisis intervention training (CIT) is the most well-known (15)--have resulted in dramatic reductions of arrests for such nuisance crimes and have avoided contributing to the over-incarceration of this population. (16) In the Memphis model, each shift, patrol area, or precinct is equipped with at least one officer who is a member of the crisis intervention team. Each member of the CIT unit undergoes extensive training in identifying symptoms of mental disturbances, utilizing non-violent interventions, de-escalation techniques, and utilizing all available community options. (17) Critical elements that lead to CIT program effectiveness generally include intensive training (standard training lasts forty hours), voluntary participation, involvement of police dispatchers in training, twenty-four hour a day availability of trained officers, and assignment of a lead officer with crisis intervention training on every team responding on all mental health calls. (18) A study by Jennifer Teller and her colleagues has concluded that such training "has led to increased transport of persons who are experiencing a mental illness crisis to emergency evaluation and treatment facilities, and transport is more likely to be on a voluntary basis compared with [that by] officers who have not participated in the training." (19)
Of course, for such programs to be implemented successfully, police officers have to be "knowledgeable about the nature of mental illness, de-escalating crisis situations, and providing options for mental health treatment alternatives to incarceration that are available in the community." (20) Yet, these approaches are far from widespread, so far appearing in only a handful of cities with any consistency, and as a result, populations of persons with mental disabilities in urban jails like Rikers Island continue to skyrocket. (22)
Unfortunately, courts have not been supportive of arguments that such programs are required. In one case, a district court in Montana ruled that a local police chiefs failure to provide sufficient crisis intervention training, and to have procedures in place to ensure that an officer trained in crisis intervention techniques was present on the scene, did not result in police officers' alleged use of excessive force on the arrestee, nor did it deprive the arrestee of his right to medical treatment after arrest, based on a failure-to-train claim under 42 U.S.C. [section] 1983. (23) In another case, the Eighth Circuit ruled that an arrestee was not denied reasonable accommodations in violation of the Americans with Disabilities Act (ADA) by police failure to use their crisis intervention training after an incident in which officers received information that the arrestee had assaulted his mother and where they had observed his "aggressive and irrational behavior," and subsequently repeatedly used a stun gun against the arrestee, who went into cardiac arrest and died. (24)
Courts have also been reluctant to allow plaintiffs to rely on the Americans with Disabilities Act (ADA) in other civil litigation seeking damages for improper arrests of persons with mental disabilities. (25) However, recently, the Supreme Court dismissed, as improvidently granted, a writ of certiorari on the question of whether the ADA required that law enforcement officers provide accommodations to a suspect with mental illness being brought into custody in a case in which public entity defendants conceded that the ADA may require officers to provide accommodations in such situations. (26) This decision, according to Professor Paul Appelbaum, "left open a window of opportunity during which the ADA can be leveraged to improve how police officers deal with persons with mental illness." (27) Yet, it is far too early to draw any conclusions as to whether this will happen, or what the ultimate result of this decision will be on "on the ground" police/suspect encounters.
We also know that there is powerful, valid, and reliable research that calls into question the entire criminalization-as-a-result-of-deinstitutionalization hypothesis, (28) a hypothesis that has never been rigorously tested. (29) In their review of this literature, John Junginger and his colleagues clearly state:
Unless it can be shown that factors unique to serious mental illness are specifically associated with behavior leading to arrest and incarceration, the criminalization hypothesis should be reconsidered in favor of more powerful risk factors for crime than are inherent in social settings occupied by persons with severe mental illness--risk factors such as unemployment, poverty, homelessness, and substance abuse. (30) In an earlier article, one of the co-authors (MLP) raised a full range of factors that are ignored in the political discourse over this issue, noting:
* "[W]hile the proportion of [persons with serious mental illness] in psychiatric institutions fell by 23 percent, the percentage of incarcerated [persons with serious mental illness] increased only 4 percent in the last half of the last century;" (31)
* "[M]any persons with mental illness are brought to jails rather than mental hospitals in the first place because of how much more time-consuming mental hospital "drop offs" are and for a variety of other reasons;" (32)
* "[T]he evidence is crystal-clear that 'people with mental illness 'engage in offending and other forms of deviant behavior not because they have a mental disorder but because they are poor," and that the strongest risk factors for violence 'are shared by those with and without mental illness;'" (33)
* "[W]e know little about the true prevalence of mental illness among offenders throughout all stages of the criminal justice system, or about the extent to which the needs of mentally ill offenders are going unmet;" (34)
* "[T]here is similarly substantial valid and reliable evidence that, if proper screening and...