Sunday, May 10, 2020
The criminal justice system’s treatment of mentally ill offenders is woefully inadequate and alarmingly ineffective. Indeed, the treatment of such offenders – from arrest to conviction – often exacerbates their psychiatric disorders and enhances the likelihood that they will re-offend – or die while trying to reintegrate into society.
Below is a summary of various aspects of the criminal justice system that highlight the inadequate treatment provided to mentally-ill defendants.
I. Before trial
First, criminal defendants with mental illnesses, such as schizophrenia, bipolar disorder, and major depression, often languish for many months in state prisons while awaiting trial. During this time, many mentally ill defendants, some of whom have been declared incompetent to stand trial, fail to receive adequate psychiatric care and often receive little to no counseling or other support services. As a result, their mental health frequently deteriorates substantially while awaiting trial in overcrowded and underfunded prisons, or in psychiatric hospitals where the primary, if not exclusive, objective is to restore the defendant to a minimum level of competence. The deleterious effects of these substandard and, in some cases, inhumane conditions are debilitating and long-lasting.
II. During trial
At a criminal trial, mentally-ill defendants often find it difficult, if not impossible, to demonstrate that their respective mental illnesses were a substantial or proximate cause of a crime's commission and that, accordingly, they are less culpable (or not responsible at all). Although defendants may plead the insanity defense, this defense is only used in approximately one-percent of cases and is unsuccessful in approximately seventy-five percent of those cases. The reason is that most jurisdictions follow the M'Naghten rule, which requires a showing that a defendant was mentally ill or impaired at the time of the crime’s commission and that the defendant did not appreciate the wrongfulness of his or her conduct (i.e., could not distinguish between right and wrong).
The latter prong of the M’Naghten test makes it extremely difficult for defendants to prove insanity. Simply put, a mentally ill defendant may technically or abstractly understand that particular conduct is unlawful but, due to the deleterious effects of mental illness (e.g., impulse control, irrationality, delusions), the defendant may lack the intentionality necessary to comport with the law.
III. Incarceration after conviction
Many mentally-ill defendants are found guilty and sentenced to lengthy periods of incarceration in an environment that is highly likely to exacerbate, rather than ameliorate, their respective mental illnesses. Specifically, being confined for prolonged periods of time without meaningful social interaction, receiving insufficient psychiatric care and evaluation, and having little to no support services (e.g., counseling, cognitive behavioral therapy) all but guarantee that mentally-ill inmates will deteriorate, if not decompensate, while incarcerated. The result is that, upon release, mentally-ill defendants struggle to reintegrate into society and achieve emotional and financial stability.
IV. Inadequate post-release support
Upon release, mentally ill defendants often receive insufficient mental health treatment. Although mental health courts in some states have improved the type and quality of care provided to some defendants, particularly those convicted of minor crimes, many defendants with mental health issues who have deteriorated substantially while incarcerated receive substandard care upon release.
Indeed, courts are often reticent to approve a post-release in-patient treatment program for mentally-ill defendants. Thus, these defendants, some of whom are suffering from severe mental health issues, typically receive only out-patient care, and the compliance rates for these defendants vary substantially. Furthermore, the outpatient care that mentally ill defendants receive is often woefully inadequate, consisting of only periodic psychiatric assessments, including regarding the efficacy of medication, and only a modest degree of individualized counseling at state-run hospitals of dubious quality. Moreover, in some cases, the implementation of an outpatient program is delayed upon release, which leaves mentally ill defendants without any care whatsoever for days, if not weeks.
V. The results – recidivism and suicide
Not surprisingly, upon release, and lacking adequate mental health support, a substantial portion of mentally ill defendants fail to successfully reintegrate into society:
Once in jail, many individuals don't receive the treatment they need and end up getting worse, not better. They stay longer than their counterparts without mental illness. They are at risk of victimization and often their mental health conditions get worse. After leaving jail, many no longer have access to needed healthcare and benefits … Many individuals, especially without access to mental health services and supports, wind up homeless, in emergency rooms and often re-arrested. At least 83% of jail inmates with a mental illness did not have access to needed treatment.
And in some instances, these defendants commit suicide. This was precisely the result that occurred when my brother, Marc Lamparello, committed suicide three weeks ago by jumping off the Verrazano Bridge in New York.
On April 17, 2019, Marc, who had previously been diagnosed as schizophrenic, was arrested and charged with attempted arson after entering St. Patrick's Cathedral in New York City with four gallons of gasoline. For the next year, Marc spent most of his time at Riker's Island prison in New York, with an intermittent stay at a psychiatric hospital in New York before he was transferred back to Riker’s Island while he awaited trial.
During his time at Riker's Island, including in the last five months, Marc received psychiatric medication but was provided with no therapy or other support services whatsoever. Incarcerated in an overcrowded and underfunded prison, Marc’s condition continuously deteriorated while it took the state criminal court months to approve a plea bargain and effectuate his release. As part of his release, Marc was required to immediately undergo intensive outpatient therapy – five times per week for six hours per day. And by the time of his release in mid-March, Marc's condition had deteriorated so substantially that immediate and sustained treatment was necessary to save his life.
But that never happened. For thirty days, Marc did not receive any treatment whatsoever. At first, Marc’s caseworker and psychiatric hospital explained that, due to coronavirus concerns, Marc had to quarantine for fourteen days. Subsequently – and without explanation – Marc was dropped from the treatment program.
Only days later, on April 10, 2020, Marc attempted to jump off of the George Washington Bridge in New York City. His life was saved when law enforcement officers rescued him before he could jump. In the next few days, Marc’s family implored doctors at the psychiatric hospital to which he was admitted to enroll Marc in the hospital’s in-patient program. They declined.
Instead, the hospital released Marc only five days later.
Two days after his release, Marc jumped off of the Verrazano Bridge in New York and died. Marc's death highlights the woefully inadequate treatment that he received during and after incarceration. In short, the manner in which Marc was treated during and after incarceration was disgraceful.
This is not to say, of course, that incarceration is neither necessary nor desirable for many defendants, including those with mental illnesses, particularly those convicted of violent crimes. It is to say, however, that the criminal justice system's approach to treating mentally ill defendants is glaringly inadequate. Given this fact, scholars, practitioners, and public policy experts should continue to emphasize before courts and legislatures the need to reform the criminal justice system’s substandard treatment of mentally ill defendants.
The current paradigm is fundamentally unjust.
*This post is dedicated to my younger brother Marc Lamparello, who died on April 17, 2020, at the age of 38. Rest in peace, Marc.
 See The Sentencing Project, Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription, available at: https://www.sentencingproject.org/wp-content/uploads/2016/01/Mentally-Ill-Offenders-in-the-Criminal-Justice-System.pdf
 See Paul Tullis, When Mental Illness Becomes a Jail Sentence (Dec. 2019), available at: https://www.theatlantic.com/politics/archive/2019/12/when-mental-illness-becomes-jail-sentence/603154/
 See Natalie Jacewicz, 'Guilty But Mentally Ill' Doesn't Protect Against Harsh Sentences (Aug. 2016), available at: https://www.npr.org/sections/health-shots/2016/08/02/486632201/guilty-but-mentally-ill-doesnt-protect-against-harsh-sentences
 See Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (Oct. 2003), available at: https://www.hrw.org/report/2003/10/21/ill-equipped/us-prisons-and-offenders-mental-illness
 See Jo Sahlin, The Prison Problem: Recidivism Rates and Mental Health (May 2018), available at: https://www.goodtherapy.org/blog/prison-problem-recidivism-rates-mental-health-0520187
 See generally, Released inmates need programs to meet basic mental health needs, study shows (Jan. 2014), available at: https://www.sciencedaily.com/releases/2014/01/140106103737.htm
 National Institute of Mental Health, Jailing People with Mental Illness, available at: https://nami.org/Advocacy/Policy-Priorities/Divert-from-Justice-Involvement/Jailing-People-with-Mental-Illness
 See Jan Ransom, An Arrest at St. Patrick's, a Struggle for Help, Then a Suicide (April 30, 2020), available at: https://www.nytimes.com/2020/04/30/nyregion/marc-lamparello-suicide-st-patricks-arson.html