Criminalization of the Mentally Ill

The criminalization of the mentally ill has been a long issue, spanning decades, that began with the deinstitutionalization of the mentally ill and the shutting down of the psychiatric hospitals that were in place to treat them specifically.

Slowly, those with a mental illness began to be diverted into a new system, the criminal justice system and were re-institutionalized again through prisons, facing the same abuse and overcrowding that they were supposed to be freed from through deinstitutionalization. Those services and community supports that were supposed to materialize after deinstitutionalization, never did and now the mentally ill face barriers such as homelessness, lack of access to medical services and long term gainful employment.

To decriminalize the mentally ill we must focus on diversion, prevention and training. Police officers and the corrections systems need to be revamped, as to better deal with those mental illnesses and further focus on diversion tactics. They also need to be trained in the recognition of the signs and symptoms of mental illness as well as proper treatment and preventative measures that will further help us to decriminalize the mentally ill. We also need to focus in on services within the corrections system itself as well, as so many of those who have a mental illness end up there.

Increased access to medical services and more nurses and doctors as well, would allow for a more likely outcome towards being treated and preventing re-offending. Mental health courts have been greatly expanded as well, as the need and demand are high for better ways of treating those people with a mental illness and getting at the root causes of their criminal offences, rather than having them go through the same cycle repeatedly. Mental health courts are one good step towards helping those with mental illnesses tackle the complex issues that are present, when it comes to their mental illnesses and their symptoms. Overall, if we want to decriminalize the mentally ill we must look to better improve our mental health care system, bridge the gaps between the criminal justice system and community support and provide those with mental illnesses better access to the resources and services they need to become fully functioning members of society.


Institutionalization begins with the notion to institutionalize people, not in prisons, but rather in asylums, that would specifically help, house and treat those people with mental illnesses. The first asylum came into place when a royal commission was created in New Brunswick in 1836, that created the first asylum or psychiatric hospital, specifically for treating and housing the mentally ill. These asylums were meant to be a place where the mentally ill had the support, care and comfort that they needed, as well as the hope for their life improving. However, most of those psychiatric hospitals that had begun to be created in large numbers, slowly began to become very overcrowded and institutional and began to be full of abuse, just like the prisons they were meant to replace.

However, by the 1950s and 1960s, when medications that could improve and control the symptoms of mental illness began to be released, more people with mental illnesses began to be released into the community, thus deinstitutionalizing the mentally ill. Deinstitutionalization started out as a very good idea, the idea that people with mental illnesses could happily live within their community and have access to all the support and services they needed to function within society, it was indeed a happy prospect from the former institutionalization and abuse . The discovery of psychotropic medications that could turn those who previously could not function in society into functioning members of society, was also a factor in deinstitutionalizing the mentally ill. However, for those people in BC, deinstitutionalization has lead into shortages in housing and support, thus community services and support that are needed for those who are mentally ill are just not there.

Issues also arise around the legal safeguards of the rights of the mentally ill as well, as deinstitutionalization occurred, the mentally ill were given more right’s, thus resulting in shorter periods of stay, which also had the consequence of them not getting the full treatment they needed. This became what is known as the “revolving door phenomenon” in which the mentally ill would be able to leave, before getting the treatment they needed to become a functioning member of society again and before they could gain true insight into their own mental illness. The devaluing of the mentally ill also occurred, as hospitals shifted their priorities and felt pressures to quickly move people in and out of hospitals because of the lack of beds, again this leads to those with mental illnesses, to not receive the treatment they need.

In the early 1960s the average hospital stay was 6 months, whereas by the early 1990s it was reduced to 15 days

This shows just how much of a reduction in time the treatment these mentally ill people get and that 15 days is not sufficient time to properly diagnose or treat a person who is have issues related to their mental illness.

Institutionalized through Prisons

Deinstitutionalization was not only a way to move towards a more caring and supportive way of treating the mentally ill, but the costs associated with it were much less and it was intended to save money in the long term.  However, as deinstitutionalization lead into the institutionalization into prisons, the costs of course soared, as the cost of having just one prisoner for a year costs approximately $100,000. Those who were mentally ill were intended to have the support within the community and have access to the services they needed, however what ended up happening, was the reduction of beds in hospitals and a trend towards arresting and keeping the mentally ill in prisons. This trend began in the early 1970s and as more and more people were imprisoned, prison overpopulation began to become the norm, as the mentally ill began to be overwhelmingly housed there as well.

The criminalization of the mentally ill became the norm, mainly due to lack of funding and support, which meant fewer beds as psychiatric hospitals decreased. This lack of beds basically means that those who do have a mental illness get filtered right into the criminal justice system, as it is cheaper and easier. They thus have to make a choice at the hospital when beds are lacking and when it comes to picking those who may be troublesome and those who are not it is easy to see what choices will be made, and those who are troublesome will eventually commit some criminal offense that will just land them right back into the criminal justice system.

The Vancouver Police department deals with over 49% of cases with people who have some type of mental illness, thus the need is there to put in infrastructure to help these people, not imprison them.

According to the Correctional Investigators Report, federal prisons have the highest concentration of people with mental illnesses, then anywhere else and are they much more common in prison than in the community itself.

In prison, those who have a mental illness are very much so, more vulnerable than those without a mental illness, as they are more prone to violence and intimidation by other inmates and thus they are much more likely to be victimized. The problems linked to the lack of medical services for all of the prisoners, lead to self-injury and suicide, as early intervention is not readily available. The limited resources that are available to those who are mentally ill, is highly problematic as they are forced to prioritize and treat those who have severe mental illness symptoms, rather than focusing on prevention and treatment of all.

This can also be associated with correctional officers not properly recognizing certain mental illness symptoms and responding in what may not be the most appropriate ways, such as segregation, or restraining the offender, rather than the treatment they most likely need. Something like segregation of an inmate with a mental illness, can very much so worsen their condition and even cause damage that could possibly be irreversible, thus the importance of recognizing the signs and symptoms of mental illness.  By segregating those offenders with a mental illness and isolating them rather than treating them, can very much be counterproductive to helping them become functioning members of society, as it can just further aggravate them. Most of those people with a preexisting mental condition are more likely to end up in segregation, because of safety concerning them self-harming themselves, or being a victim. Thus, the person with a mental illness finds themselves deteriorating even more, when prison itself is already not the kind of place that is conducive to getting better. Again, proper training is needed for correctional officers as well, as the mentally ill within prisons is so highly prevalent.

Factors: How the Mentally Ill become Criminalized

Many of those people who have mental illnesses and become criminalized are so, due to several factors. Firstly, they find themselves without the support needed to overcome and manage their illness, things such as housing, long term employment and services to access to help them with their mental illness. Those who have been incarcerated and attempt to seek medical services may be refused those services because of what is called the “Forensic Label”. Which involves the hospital staff feeling that the person is a criminal, as they have committed a criminal offence and thus it’s not a matter for the hospital, rather for the law and the person is denied treatment because of it. Those who have a mental illness, also may have an addiction problem as well and having both an addiction and a mental illness are much harder to treat, than just a mental illness. This can lead to problems to proper treatments or any treatments at all, as the person may be highly difficult to deal with. There may also be issues surrounding knowledge and cross training around mental health, between medical professionals and law enforcement that can lead to the deterioration of the person who is mentally ill, as the sufficient knowledge required is not there to intervene early.

There are also issues surrounding the timing involved with dealing with someone who has a mental illness, such as processing, which is believed to be faster within the criminal justice system, then would be through hospitalization. Because it is easier to simply to incarcerate a person who has a mental illness, something called “Mercy Booking” has now become all too common, this is where a police officer will simply arrest a person who is mentally ill, to keep them safe and to prevent them from harming themselves or others.However, we cannot assume that all police officers do simply arrest a person because they are mentally ill, many other factors can be involved, all around the behavior of that person, including resisting arrest, drugs or alcohol use and how serious the offence they are committing or have committed as well.

Decriminalizing the Mentally Ill

Law enforcement needs better training in recognizing those persons who have a mental illness and they also need better training in being able to properly handle that person. So instead of simply arresting them or sending them to jail, recognizing that the person needs help and sending them to a hospital, or a place for treatment instead. Techniques in training, should involve things like de-escalation and being able to recognize those persons who are mentally ill as well. Another issue is that that police officers do not have much choice or alternatives, as in they do have a choice to take someone to the hospital that they think needs help, however they must stay there with the person the entire time which may take hours. Then that person may not even be admitted after being examined and that leads to a lot of frustration on the police officers wasted time, when they could have been somewhere else dealing with other calls in that time. As Cst. Stetzel pointed out, it is highly frustrating when you are in that situation where you must prioritize your time and that sometimes it is just so much faster and easier to divert them to the criminal justice system and respond to other calls, rather than continue dealing with that one situation. One solution to this issue noted by Richard D. Schneider (A Justice of the Ontario Court of Justice); was to have specially designed facilities, so that if a police officer recognizes someone whose main issue is related to their mental illness, they can quickly drop that person off to that facility and a quick book through allows for that officer to resume their duties as efficiently as possible, so as to not consume as much time and money. Thus, by providing a good alternative for police officers, we are reducing that demand that is currently being placed on forensic services and allowing for a new way to deal with and help those with a mental illness.

The courts and correctional services also need to be able to better recognize mental illness and give those people appropriate treatment, not only in jail, but directing them to places where they can continue treatment after being released as well. There needs to be a fix to our current mental health care system and making sure our criminal justice system can handle those persons with mental illnesses that come into that system. By firstly focusing on fixing our mental health care system, we can also effectively address the issues and the chances that someone with a mental illness will enter the criminal justice system. So, fixing the problems at the root causes, rather than just narrowly focusing on the criminal justice system and trying to deal with the problems after the person is incarcerated, rather we want to get them before they ever even get to that point. We also need to focus on serious issues that the mentally ill must face on a daily basis, such as homelessness, unreliable employment, lack of services, all of which when addressed can significantly help to decriminalize the mentally ill. By bringing this support we can reduce these risk factors, giving them stable shelter and access to mental health workers who can help them and effectively keep them off the streets and ensure they are healthy, as well as increase their quality of life. Many of those people who are homeless as well as mentally ill and getting arrested quite often, do not usually have identification and by connecting those people with programs that can help them get their identification, get them access to the services they need and help them have proper shelter, can go a very long way in ensuring that the person is diverted away from the criminal justice system.  Decriminalizing the mentally ill is a highly complex problem, and through changes within the mental health care system and the criminal justice system, as well as partnering with community support, we can help bring about the change that is needed to help these people and solve the issues that deinstitutionalization has brought upon them.

The emergence of mental health courts has led to a movement towards a specialized court, that can help those with mental illnesses specifically. There has been a substantial growth in Canada of the number of mental health courts, and moving towards the trend to try to move away from diverting the mentally ill to the criminal justice system and diverting them towards treatment and access to services that they need. These courts also allow us to see the root causes of why a certain person with a mental illness has come into contact with the criminal justice system and how we can specifically help them, as to avoid coming into that system again. However, these courts also came out of a need that came about from the lack of our civil mental health care system to support these people, in the ways that they need. We also cannot simply rely on these courts to deal with the mentally ill, we need to work on improving our mental health care system, so that the mentally ill do not have to enter the criminal justice system at all. Rather they have the support and access to medical services they need, to be able to get treatment and become functioning members of society once again.


Some of the recommendations for decriminalizing the mentally ill include, improving the access to resources in correctional facilities, in order for those who are mentally ill, to get the help they need to deal with their illness and its symptoms The need to have an actual review of what deinstitutionalization has done to the mentally ill and require governments to take action to reverse the trends that have occurred insofar. Funding is also an issue, as funding for community resources and services for the mentally ill are very much underfunded and lacking, thus funding needs more attention as well. Much more training is needed as well, for law enforcement and those who work in correctional facilities, in order to better deal with the mentally ill. A review of criminal legislation is needed as well, in order to see how the effects are on the mentally ill and if those effects are actually impacting the mentally ill in negative or counterproductive ways.

We also have a need to have more diversion programs that actually do divert the mentally ill away from the criminal justice system and back into the mental health care system for treatment. Mental health courts need to intervene at multiple points and not simply narrow their focus to diversion, because diversion is an outcome focus and someone with a mental illness needs help at all points of the process.

Someone with a mental illness needs help at all points of the process

For entrance requirements a recommendation is that we do not have any type of requirements, such as entering a guilty plea, because this is the opposite of what we want to achieve when it comes to the decriminalization of the mentally ill. Diversion programs should be done so on a voluntary basis, as anyone who doesn’t want to participate would not necessarily achieve anything in such a program if they have no will to change. The duration of a diversion program cannot be explicitly stated, as it is quite different from person to person and how much time a person will need will vary greatly. The expectations for a diversion program should be stated to the mentally ill person, so they have a clear view of what they are going to be participating in. Mental health courts can also only be as successful as what services and resources are available to the person within its community and community support, without which diversion programs could not have success. There shouldn’t be any type of criminal penalties either for not completing or complying with the diversion program, as forcing a person with a mental illness to do something, is highly unethical and will not help them or anyone else. Lastly a person with a mental illness who completes such a diversion program shouldn’t have to be released back into the community, to not have any type of support or resources, this is again pointless and unless they have such support, the diversion program in reality will do very little for them.

Some of the recommendations that would be helpful to put into place into prisons to help the mentally ill are, limiting segregation times for those who have a mental illness. Or even completely eradicating segregation for those prisoners, who have an existing medical condition that will likely be more aggravated or worsened by isolation. Limiting the use of restraints against the mentally ill and having more advocates or persons who are trained in mental health on site. Also moving towards having more medical services within prison institutes, such as more doctors or more nurses on site all day and at any time to provide care for those with a mental illness. Investing in programs that will allow for the person to become better and foster a better environment such as putting more funding into recreation, work programs and having more family visits.

The deinstitutionalization of the mentally ill from psychiatric hospitals to the community, was a good movement towards freeing the mentally ill. However, re-institutionalized the mentally ill through a different system, prisons. The movement away from hospitals to prisons, has led to the effective criminalization of the mentally ill, that does not allow us to get at the root causes that need to be addressed to help the mentally ill. The mentally ill have also been criminalized by being given the forensic label, in which hospitals consider them criminals, thus then assumed to be the problem of the criminal justice system, not the mental health care system. We need to overcome barriers such as homelessness, lack of medical services and access to long term employment as well as shelter, to help those with mental illnesses to be able to fully reintegrate back into the community with full community support. We need to work towards decriminalization through better training of police officers, better programs put into place into correctional facilities, better access to medical services within correctional facilities and working towards having more doctors and nurses available within prisons. For the future, we need more of a focus on mental health courts, diversion programs to divert the mentally ill away from the criminal justice system and increasing funding within prisons as well. The problems created by the deinstitutionalization of the mentally ill will need to be addressed in several ways and the complexity of the issue means there is no one way to simply address it. We must mainly focus on providing those community supports that were supposed to be in place when deinstitutionalization first happened, as well as providing a better mental health care system, in order to keep the mentally ill from being re-institutionalized into prisons and move towards the decriminalization of the mentally ill.