CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 13, 2017

Weinstein & Perlin on Mental Disabilities and the Jail-to-Hospital-to-Street Cycle

Naomi Weinstein and Michael L. Perlin (New York State Unified Court System - Mental Hygiene Legal Service and New York Law School) has posted 'Who's Pretending to Care for Him?' How the Endless Jail-to-Hospital-to-Street-Repeat Cycle Deprives Persons with Mental Disabilities the Right to Continuity of Care on SSRN. Here is the abstract:
There is a well-documented “shuttle process” by which individuals committed to psychiatric institutions (having been charged with minor “nuisance”-type criminal offenses) are often stabilized, returned to jail to await trial, and then returned to the hospital following relapse. This shuttling or cycling is bad for many reasons, not least of which is the way that it deprives the cohort of individuals at risk from any meaningful continuity of care. Continuity of care is crucial in order to reduce the rate of incarceration and institutionalization for persons with mental illness. Without this continuity, it is far less likely that any therapeutic intervention will have any long-lasting ameliorative effect.

In this paper, we will argue that the current system – in addition to being utterly counter-productive (and in many ways, destructive) – also violates the constitutional right to treatment, and the statutory right to non-discrimination as provided in domestic (the Americans with Disabilities Act) and international (the Convention on the Rights of Persons with Disabilities) human rights law. This also violates every precept of therapeutic jurisprudence; in this context, we argue that it is necessary for lawyers to integrate these teachings – focusing on the prerequisites of “voice, validation and voluntariness” – in their representation of this population in the hopes that the current system can be ameliorated. 

In conclusion, we will offer some solutions as to how continuity of care can be improved through mental health courts, programs that support diversion away from incarceration to treatment at an early process in a criminal proceeding, proper mental health screening, expanded access to mental health treatment and better re-entry services, and training for all persons interacting with someone with mental illness.

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