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How the 21st Century Cures Act Can Mitigate the Ever Growing Problem of Mass Incarceration

Published online by Cambridge University Press:  06 January 2021

Jennifer S. Bard
Jennifer S. Bard*
Affiliation:
Penn State Law and Medical School and University of Cincinnati College of Law and the University of Cincinnati College of Medicine, Department of Internal Medicine
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By the time this article is published, our collective memory of the school shooting in Parkland, Florida could have faded or, even worse, been superseded by another mass shooting. Although details are still sparse, the perpetrator appears to be a 19-year-old man with a well-documented history of behavior disturbing enough to invoke referrals to mental health treatment, but not so disturbing as to warrant either commitment or even arrest. Unfortunately, the picture presented is one most familiar in the public imagination of how people with mental illness interact with the criminal justice system. In actuality, the violence of the perpetrator's crime makes him very untypical of the vast majority of people with mental illness who are no more likely to be violent than any other member of the general public.

This Article will first describe the current situation in which people with mental illness have become part of the growing mass incarceration problem in the United States.

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Articles
Information
American Journal of Law & Medicine , Volume 44 , Issue 2-3: Symposium - The 21st Century Cures Act: A Cure for the 21st Century? , May 2018 , pp. 387 - 402
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2018

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References

1 See German Lopez & Jen Kirby, Marjory Stoneman Douglas High School Shooting in Florida; What We Know, Vox (Feb. 16, 2018), https://www.vox.com/policy-and-politics/2018/2/14/17013596/parkland-florida-high-school-shooting [https://perma.cc/8XJH-3X9C]; Jugal K. Patel, After Sandy Hook, More Than 400 People Have Been Shot in over 200 School Shootings, N.Y. Times (Feb. 15, 2018), https://www.nytimes.com/interactive/2018/02/15/us/school-shootings-sandy-hook-parkland.html.

2 See DCF Releases Records on Parkland School Shooting Suspect Nikolas Cruz, ABC Action News (Feb. 20, 2018), https://www.abcactionnews.com/news/state/dcf-releases-records-on-parkland-school-shooting-suspect-nikolas-cruz [https://perma.cc/9RHA-BYKJ]; Dean Balsamini, School Shooter's Brother Committed to Mental Facility, N.Y. Post (Feb. 17, 2018), https://nypost.com/2018/02/17/school-shooters-brother-committed-to-mental-facility/ [https://perma.cc/5RFX-G7Y2].

3 See NAMI Statement on the Parkland School Shooting, Nat'l All. Mental Illness (Feb. 16, 2018), https://www.nami.org/Press-Media/Press-Releases/2017/NAMI-Statement-on-the-Parkland-School-Shooting [https://perma.cc/B3BH-GC3P] (“While the relationship between mental illness and gun violence is very low, we need reasonable options, including making it possible for law enforcement to act on credible community and family concerns in circumstances where people are at high-risk.”).

4 James L. Knoll IV & George D. Annas, Mass Shootings and Mental Illness, in Gun Violence and Mental Illness 96 (2016); Press Release, Am. Psychological Ass'n, Statement of APA President in Response to Florida High School Shooting (Feb. 16, 2018), http://www.apa.org/news/press/releases/2018/02/florida-shooting.aspx (stating, “While law enforcement is still piecing together the shooter's motives, some public figures and news reports are focusing on his mental health. It is important to remember that only a very small percentage of violent acts are committed by people who are diagnosed with, or in treatment for, mental illness. Framing the conversation about gun violence in the context of mental illness does a disservice to the victims of violence and unfairly stigmatizes the many others with mental illness. More important, it does not direct us to appropriate solutions to this public health crisis.”).

5 See Laura Sullivan, Nation's Jails Struggle with Mentally Ill Prisoners, NPR (Sept. 4, 2011), https://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-mentally-ill-prisoners [https://perma.cc/2RHD-UJKH]. Sheriff Greg Hamilton, Travis County, Texas, stated on NPR's broadcast All Things Considered that one in four people incarcerated in the Travis County Jail has a mental illness. Sheriff Hamilton highlighted the lack of follow-up, stating that, after incarcerated individuals with mental illnesses leave the Travis County Jail, “because of the lack of resources, sometimes it's hard for them to go into a facility to replenish their meds or to see a psychiatrist. So after a while, these individuals go right back into that psychotic behavior. And it seems to me that we have criminalized being mentally ill.” Id.

6 Doris J. James & Lauren E. Glaze, U.S. Dep't of Justice, Bureau of Justice Statistics Special Report: Mental Health Problems of Prison and Jail Inmates 1 (Dec. 14, 2006), https://www.bjs.gov/content/pub/pdf/mhppji.pdf.

7 Renée Binder, Working to Decriminalize Mental Illness, Am. Psychiatric Ass'n (Oct. 30, 2015), https://www.psychiatry.org/news-room/apa-blogs/apa-blog/2015/10/working-to-decriminalize-mental-illness [https://perma.cc/2RBN-2LQP].

8 James & Glaze, supra note 6, at 1.

9 See generally Famy, Chris et al., Mental Illness in Adults with Fetal Alcohol Syndrome or Fetal Alcohol Effects, 155 Am. J. Psychiatry 552, 553-54 (1998)CrossRefGoogle ScholarPubMed; Fast, Diane K. & Conry, Julianne, The Challenge of Fetal Alcohol Syndrome in the Criminal Legal System, 9 Addiction Bio. 161, 163 (2004)Google ScholarPubMed.

10 NAMI Warns Senate about Criminalization of Mental Illness; Supports Cornyn Bill, Nat'l All. Mental Illnesses (Feb. 10, 2016) http://www.namihelps.org/legislative-update.html.

11 See Constantine, Robert J., The Impact of Mental Health Services on Arrests of Offenders with a Serious Mental Illness, 36 Law & Hum. Behav. 170, 175 (2012)CrossRefGoogle ScholarPubMed (“The receipt of outpatient services [by people with mental illness] … is associated with modest reductions in the likelihood of arrest in [the time period closest to when the treatment occurred].”).

12 Conor Freidersdorf, Enforcing the Law is Inherently Violent, The Atlantic (June 27, 2016), https://www.theatlantic.com/politics/archive/2016/06/enforcing-the-law-is-inherently-violent/488828/?utm_source=yahoo [https://perma.cc/TY6G-C9FA].

13 Peterson, Jillian K., How Often and How Consistently Do Symptoms Directly Precede Criminal Behavior Among Offenders with Mental Illness?, 38 Law & Hum. Behav. 439, 445-46 (2014)CrossRefGoogle ScholarPubMed.

14 See Black & African American Communities and Mental Health, Mental Health Am., http://www.mentalhealthamerica.net/african-american-mental-health [https://perma.cc/8PG6-9N6D]; see generally Dignity & Power Now, Impact of Disproportionate Incarceration of and Violence Against Black People with Mental Health Conditions in the World's Largest Jail System (2014), http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17740_E.pdf.

15 See Thompson, Melissa, Race, Gender, and the Social Construction of Mental Illness in the Criminal Justice System, 53 Soc. Perspectives 99, 102 (2010)Google Scholar (explaining that while it may seem that African Americans are disproportionately diagnosed with mental illnesses in the United States, the relevant factor is social class).

16 Id. at 100 (“There is robust evidence that African Americans are less likely than non-African Americans to receive a psychiatric evaluation to determine mental state at the time of the offense. This would appear to support the contention that stereotypes of ‘normal’ or typical offenders affect criminal justice decision-making. If criminal justice decision-makers expect African Americans to be criminals, these decision-makers will not seek alternative (including psychiatric) explanations that might mitigate responsibility.”).

17 John Sullivan et al., Number of Fatal Shootings by Police Is Nearly Identical to Last Year, The Washington Post (July 1, 2017), https://www.washingtonpost.com/investigations/number-of-fatal-shootings-by-police-is-nearly-identical-to-last-year/2017/07/01/98726cc6-5b5f-11e7-9fc6-c7ef4bc58d13_story.html?noredirect=on&utm_term=.ec2827108817; Pete Earley, One in Four Fatal Police Shootings Involve Individuals with a Mental Illness, Pete Earley (Jan. 9, 2018), http://www.peteearley.com/2018/01/09/one-in-four-fatal-police-shootings-involve-individual-with-a-mental-illness [https://perma.cc/HCG5-WXJ6] (“Particularly striking is how often mental-health issues play a role in police shootings. In 2017, 236 people—nearly 1 in 4 of those killed—were reported to have been experiencing some form of mental distress at the time of their encounter with police.”).

18 See Montgomery, Ann E., Rethinking Homelessness Prevention Among Persons with Serious Mental Illness, 7 Soc. Issues & Pol'y Rev. 58, 68 (2013)Google Scholar.

19 Id. at 62 (“Serious mental illness is neither sufficient nor necessary for homelessness; rather, the susceptibility of homelessness among persons with serious mental illness is more often explained by the socioeconomic deprivations that often accompany living with serious mental illness, rather than the psychiatric morbidity itself.”).

20 Greenberg, Greg A. & Rosenheck, Robert A., Jail Incarceration, Homelessness, and Mental Health: A National Study, 59 Psychiatric Servs. 170, 170 (2008)CrossRefGoogle ScholarPubMed.

21 The Basic Facts About Homelessness: New York City, Coal. for Homelessness (2016), http://www.coalitionforthehomeless.org/basic-facts-about-homelessness-new-york-city/ [https://perma.cc/L2P4-YZCZ].

22 Id.

23 Serious Mental Illness and Homelessness, Treatment Advocacy Ctr. (Sept. 2016), http://www.treatmentadvocacycenter.org/evidence-and-research/learn-more-about/3629-serious-mental-illness-and-homelessness [https://perma.cc/2HFG-BF6A].

24 See, e.g., Testa, Megan & West, Sara G., Civil Commitment in the United States, 7 Psychiatry 30, 33 (2010)Google ScholarPubMed (“Since the tightening of criteria for involuntary psychiatric hospitalization, the United States has seen a trend of persons with mental illness being marginalized to unsafe and inappropriate settings. Since deinstitutionalization, there has been a tremendous increase in America's population of people with mental illness who are living on the streets. The latest estimates by the United States' Substance Abuse and Mental Health Services Administration reveal that up to 25 percent of our country's homeless population is made up of individuals with mental disorders, despite the fact that only approximately six percent of the general population suffers from mental illness.”).

25 Vulnerable to Hate: A Survey of Hate Crimes & Violence Committed Against Homeless People in 2013, Nat'l Coal. for the Homeless (June 2014), http://nationalhomeless.org/wp-content/uploads/2014/06/Hate-Crimes-2013-FINAL.pdf.

26 See Hate Crimes and Violence Against People Experiencing Homelessness, Nat'l Coal. for Homeless (2012), http://www.nationalhomeless.org/factsheets/Hatecrimes.pdf.

27 Casey Page, Homeless Man Arrested; Trespassing at Wal-Mart; Assault Reported, Mont. Standard (Dec. 5, 2017), http://mtstandard.com/news/local/police-blotter-homeless-man-arrested-trespassing-at-walmart-assault-reported/article_5f763751-68d9-5b4f-98c9-3dd72481bf25.html [https://perma.cc/27RV-D3UJ].

28 DiPietro, Barbara & Klingenmaier, Lisa, Achieving Public Health Goals Through Medicaid Expansion: Opportunities in Criminal Justice, Homelessness, and Behavioral Health with the Patient Protection and Affordable Care Act, 103 Am. J. Pub. Health 23, 26 (2013)CrossRefGoogle ScholarPubMed (“[H]omelessness can lead to incarceration, and incarceration can lead to homelessness.”).

29 Roy Walmsley, Int'l Ctr. for Prison Studies, World Prison Population List 22 (10th ed. 2015), http://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_10.pdf.

30 Inimai M. Chettiar, A National Agenda to Reduce Mass Incarceration, Brennan Ctr. for Just. (Apr. 27, 2015), https://www.brennancenter.org/analysis/national-agenda-reduce-mass-incarceration [https://perma.cc/4JSQ-RTJ4].

31 Mental Health Court, Nat'l All. Mental Illness Sacramento http://www.namisacramento.org/advocacy/mental_health_court.html [https://perma.cc/RD4J-WT4W]; Ana Swanson, A Shocking Number of Mentally Ill Americans End Up in Prison Instead of Treatment, The Washington Post: Wonkblog (Apr. 30, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/04/30/a-shocking-number-of-mentally-ill-americans-end-up-in-prisons-instead-of-psychiatric-hospitals/?utm_term=.d459d07a2eea [https://perma.cc/87ZCU5WZ].

32 Raphael, Steven & Stoll, Michael A., Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J. Legal Stud. 187, 219 (2013)CrossRefGoogle Scholar (“[D]einstitutionalization is not the smoking gun behind the tremendous growth in incarceration rates. While a significant contributor, mental health policy is of second order importance when compared with the contribution by shifts in sentencing policy occurring in most states.”).

33 Id.

34 E. Fuller Torrey, Criminalization of Individuals with Severe Psychiatric Disorders, Mental Illness Pol'y Org., https://mentalillnesspolicy.org/consequences/criminalization.html [https://perma.cc/5SUC-NV4W].

35 See, e.g., Raphael & Stoll, supra note 32 at 188 (“In fact, as of midcentury, the number of mental hospital inpatients per 100,000 U.S. residents greatly exceeded the prison incarceration rate.”).

36 Steven Raphael & Michael Stoll, Why Are So Many in Prison 122 (2013).

37 Allison, Stephen et al., Mass Incarceration and Severe Mental Illness in the USA, 390 Lancet 25, 25 (2017)CrossRefGoogle ScholarPubMed, (stating that “Bed counts in psychiatric wards in the USA are now far below the numbers required for treatment of serious mental illnesses (12 available per 100000 population vs 50 needed per 100000 population). In effect, mass incarceration has become the perceived default option for long-term care of serious mental illnesses in the USA, partly because it is less expensive for US states than providing a full range of community programmes, supported accommodation, and rehabilitation beds.”).

38 Bagaric, Mirko et al., Principled Strategy for Addressing the Incarceration Crisis: Redefining Excessive Imprisonment as a Human Rights Abuse, 38 Cardozo L. Rev. 1663, 1667 (2017)Google Scholar (arguing that a prison sentence is no different than China's “one-child” law).

39 Id. at 1702.

40 Id. at 1703.

41 Id. (“[I]n the two weeks following release, ex-prisoners are more than twelve times more likely to die than people in the general population.” (citing Nat'l Res. Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences 226 (Jeremy Travis et al. eds., 2014))).

42 Id.

43 See Michael Luo, Felons Finding It Easy to Regain Gun Rights, N.Y. Times (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html (explaining that even though some states provide residents with a relatively easy way to restore their second amendment rights, the right to bear arms is nonetheless automatically withheld upon a felony conviction).

44 Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness 1 (2003), https://www.hrw.org/reports/2003/usa1003/usa1003.pdf (“Somewhere between two and three hundred thousand men and women in U.S. prisons suffer from mental disorders, including such serious illnesses as schizophrenia, bipolar disorder, and major depression. An estimated seventy thousand are psychotic on any given day. Yet across the nation, many prison mental health services are woefully deficient, crippled by understaffing, insufficient facilities, and limited programs. All too often seriously ill prisoners receive little or no meaningful treatment. They are neglected, accused of malingering, treated as disciplinary problems.”).

45 Council State Gov'ts Justice Ctr., Improving Outcomes for People with Mental Illnesses Involved with New York City's Criminal Court and Correction Systems 3 (2012), https://csgjusticecenter.org/wp-content/uploads/2013/05/VER4Fact-Sheet-NYC.pdf.

46 Joshua Manson, New Report Documents Devastating Effects of Solitary Confinement on Mental Illness, Solitary Watch (Sept. 9, 2016), http://solitarywatch.com/2016/09/09/new-report-documents-devastating-effects-of-solitary-confinement-on-mental-illness/ [https://perma.cc/GRJ5-8JN7].

47 Human Rights Watch, Callous and Cruel: Use of Force Against Inmates with Mental Disabilities in U.S. Jails and Prisons 2 (2018), https://www.hrw.org/report/2015/05/12/callous-and-cruel/use-force-against-inmates-mental-disabilities-us-jails-and [https://perma.cc/2FUP-CLGK] (“Prison is challenging for everyone, but prisoners with mental disabilities may struggle more than others to adjust to the extraordinary stresses of incarceration, to follow the rules governing every aspect of life, and to respond promptly to staff orders. In the trenchant words of Professor Hans Toch, people with mental health problems behind bars can be ‘disturbed and disruptive,’ ‘very troubled and extremely troublesome.’”).

48 See Criminalization of Mental Illness, Cook County Sheriff's Office (July 17, 2017), https://www.cookcountysheriff.org/criminilization-of-mental-illness/ [https://perma.cc/9SQ5-YAPG]; see also Torrey et al., supra note 36 at 4 (“Jail becomes a default mental-health facility because there are no resources to provide care.”).

49 Substance Abuse & Mental Health Servs. Admin., Screening and Assessment of Co-occurring Disorders in the Justice System 5-6 (2015), https://store.samhsa.gov/shin/content//SMA15-4930/SMA15-4930.pdf (“Studies indicate that 60-87 percent of justice involved individuals who have severe mental disorders also have co-occurring substance use disorders); Dual Diagnosis, Nat'l All. on Mental Illness (Aug. 2017), https://www.nami.org/Learn-More/Mental-Health-Conditions/Related-Conditions/Dual-Diagnosis [https://perma.cc/M5EH-475X].

50 Sarah Varney, By the Numbers: Mental Illness Behind Bars, Kaiser Health News (May 15, 2014), https://khn.org/news/by-the-numbers-mental-illness-jail/ [https://perma.cc/G6J3-8FCB].

51 Mental and Substance Use Disorders, SAMHSA, https://www.samhsa.gov/disorders#co-occurring [https://perma.cc/G2L8-ZGCF] (last updated Sept. 20, 2017); see Ctr. for Behavioral Health Statistics & Quality, Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health 32-33 (2015), www.samhsa.gov/data/sites/default/files/NSDUH-FRR1-2014/NSDUH-FRR1-2014.pdf. An estimated 43.6 million (18.1%) Americans, aged 18 or older, experienced some form of mental illness in 2014. Ctr. for Behavioral Health Statistics & Quality, supra note 51, at 24. Moreover, in 2014, 20.2 million adults (8.4%) had a substance use disorder. Id. Of those, “7.9 million people had both a mental disorder and a substance use disorder, also known as co-occurring mental and substance use disorders.” Id.

52 Substance Abuse & Mental Health Servs. Admin., supra note 49, at 8 (“People in the justice system who have CODs are also significantly more likely than those in the general population to have other major health disorders, such as HIV/AIDS, diabetes, Hepatitis C, and tuberculosis (TB), creating unique challenges and opportunities for involvement in specialized services and in treatment programs for CODs.”).

53 See generally The 21st Century Cures Act Reforms to the Mental Health System: Part 3, Hall Render Blog (Mar. 13, 2017), http://www.hallrender.com/2017/03/13/21st-century-cures-act-reforms-mental-health-system-part-3/ [https://perma.cc/774D-53UA].

54 The bill passed in the House of Representatives by a vote of 392-26 and in the Senate by a vote of 94-5. Final Vote Results for Roll Call 592, Office of the Clerk: U.S. House of Representatives, http://clerk.house.gov/evs/2016/roll592.xml [https://perma.cc/7BG5-F8K7]; Roll Call Vote 114th Congress - 2nd Session, U.S. Senate, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=2&vote=00157 [https://perma.cc/HH3H-5GRQ]; see Jennifer Steinhauer & Robert Pear, Sweeping Health Measure, Backed by Obama, Passes Senate, N.Y. Times (Dec. 7, 2016), https://www.nytimes.com/2016/12/07/us/politics/21st-century-cures-act-senate.html.

55 Senator Susan M. Collins, Floor Statement on 21st Century Cures Act (Dec. 5, 2015), https://www.collins.senate.gov/sites/default/files/Sen.%20Collins%27%2021st%20Century%20Cures%20Act%20Statement.pdf; see Press Release, Susan Collins, U.S. Senator, Senate Passes 21st Century Cures Act with 5 Provisions Authored by Senator Collins (Dec. 7, 2016), https://www.collins.senate.gov/newsroom/senate-passes-21st-century-cures-act-5-provisions-authored-senator-collins [https://perma.cc/J63V-SJYK].

56 U.S. Senate Approves 21st Century Cures Act, Council of State Gov'ts Justice Ctr. (Dec. 7, 2016), https://csgjusticecenter.org/jc/five-things-to-know-about-the-21st-century-cures-act/ [https://perma.cc/27FL-X67Y].

57 Id.

58 Mental Health and Safe Communities Act of 2015, S. 2002, 114th Cong. (2015). Later enacted as part of the 21st Century Cures Act.

59 House Passes Cornyn-Backed Mental Health Reforms, John Cornyn: U.S. Senator for Tex. (Nov. 30, 2016), https://www.cornyn.senate.gov/content/house-passes-cornyn-backed-mental-health-reforms [https://perma.cc/3MWW-ASQD].

60 U.S. Senate Approves 21st Century Cures Act, supra note 56.

61 See id.; Jason B. Caron et al., 21 st Century Cures: Tackling the Growing Problem of Mental Health and Substance Use Disorders, McDermott Will & Emery (Dec. 14, 2016) https://www.mwe.com/en/thought-leadership/publications/2016/12/21st-century-cures-tackling-mental-health; Council on Mentally Ill Offenders, 21st Century Cures Act Fact Sheet, Cal. Dep't Corrections & Rehabilitation, http://www.cdcr.ca.gov/COMIO/docs/02022017meeting/21st%20Century%20Cures%20Act%20Text%20Box.pdf.

62 U.S. Senate Approves 21st Century Cures Act, supra note 56.

63 Id.

64 Yucel Ors & Stephanie Martinez-Ruckman, Two Reasons Why the 21st Century Cures Act is Good for Cities, Nat'l League of Cities (Dec. 7, 2016), http://www.nlc.org/article/two-reasons-why-the-21st-century-cures-act-is-good-for-cities [https://perma.cc/4CLV-7XAZ].

65 Mentally Ill Offender Treatment and Crime Reduction Act of 2004, Pub. L. No. 108-414, 118 Stat. 2327.

66 21st Century Cures Act, Pub. L. No. 114-255, §§ 14018, 130 Stat. 1033, 1307 (2016).

67 Mentally Ill Offender Treatment and Crime Reduction Act § 2991.

68 Second Chance Act Grant Program, Council of State Gov'ts: Nat'l Reentry Resource Ctr., https://csgjusticecenter.org/nrrc/projects/second-chance-act/ [https://perma.cc/5L2Q-FCEQ].

69 Id.

70 21st Century Cures Act § 14003.

71 Angelia Davis, Pilot Mental Health Court Pursued for SC, Greenville News (Apr. 10, 2017, 1:02 PM), https://www.greenvilleonline.com/story/news/local/2017/04/10/pilot-mental-health-court-pursued-sc/99731730/ [https://perma.cc/XQ7L-36F5].

72 Id.

73 U.S. Senate Approves 21st Century Cures Act, supra note 56.

74 Expansion of the National Law Enforcement-Mental Health Learning Site Program, Council State Gov'ts: Justice Ctr., https://csgjusticecenter.org/law-enforcement/announcements/expansion-of-the-national-law-enforcement-mental-health-learning-site-program/ [https://perma.cc/3WNW-LZW9].

75 Law Enforcement Mental Health Learning Sites, Council State Gov'ts: Justice Ctr., https://csgjusticecenter.org/law-enforcement/projects/mental-health-learning-sites/ [https://perma.cc/LRR5-8ATK].

76 U.S. Senate Approves 21st Century Cures Act, supra note 56.

77 Id.

78 21st Century Cures Act, Pub. L. No. 114-255, §§ 14024-25, 130 Stat. 1310 (2016).

79 Id. § 6031.

80 See Interdepartmental Serious Mental Illness Coordinating Comm., The Way Forward: Federal Action for a System That Works for All People Living with SMI and SED and Their Families and Caregivers 3 (Dec. 13, 2017), https://store.samhsa.gov/shin/content/PEP17-ISMICC-RTC/PEP17-ISMICC-RTC.pdf.

81 Id. at 93-101.

82 Id. at 3.

83 Id. at 2.

84 Focus 4 of the Interdepartmental Serious Mental Illness Coordinating Committee (“ISMICC”) is to: “Support interventions to correspond to all stages of justice involvement. Consider all points included in the sequential intercept model. Develop an integrated crisis response system to divert people with SMI and SED from the justice system. Prepare and train all first responders on how to work with people with SMI and SED. Establish and incentivize best practices for competency restoration that use community based evaluation and services. Develop and sustain therapeutic justice dockets in federal, state, and local courts for any person with SMI or SED who becomes involved in the justice system. Require universal screening for mental illnesses, substance use disorders, and other behavioral health needs of every person booked into jail. Strictly limit or eliminate the use of solitary confinement, seclusion, restraint, or other forms of restrictive housing for people with SMI and SED. Reduce barriers that impede immediate access to treatment and recovery services upon release from correctional facilities. Build on efforts under the Mentally Ill Offender Treatment and Crime Reduction Act, the 21st Century Cures Act, and other federal programs to reduce incarceration of people with mental illness and co-occurring substance use disorders.” Id. at 7.

85 Id.

86 Joyce Frieden, Serious Mental Illness Committee Has Its Work Cut Out – Challenges in Collecting Data, Improving Diagnosis Highlighted, Medpage Today: Psychiatry (Sept. 1, 2017), https://www.medpagetoday.com/psychiatry/generalpsychiatry/67678 [https://perma.cc/VB7D-ZK6P].

87 Interdepartmental Serious Mental Illness Coordinating Comm., supra note 80.

88 Morse, Stephen J., Mental Disorder and Criminal Law, 100 J. Crim. L. & Criminology 885, 889 (2011)Google Scholar (“Despite the astonishing recent advances in the brain sciences and the drumbeat of claims that mental disorder is a brain disease, we still have very little understanding of the causation of mental disorder and few measures of it that do not require substantial amounts of subjective judgment by either the subject providing a self-report or the external diagnostician. There are no physical tests, including brain scans, that can accurately diagnose mental disorders.”).

89 Five Major Mental Disorders Share Genetic Roots: Overlap Blurs Diagnostic Categories, Nat'l Inst. of Mental Health (Mar. 1, 2013), https://www.nimh.nih.gov/news/science-news/2013/five-major-mental-disorders-share-genetic-roots.shtml [https://perma.cc/4VUX-3R3Q]; see Baune, Bernhard T., Association of Polygenic Score for Schizophrenia and HLA Antigen and Inflammation Genes With Response to Lithium in Bipolar Affective Disorder, 75 JAMA Psychiatry 65 (2018)Google Scholar (identifying a genetic variation among people with bipolar disorder that made lithium treatment less effective).

90 See, e.g., Gross, Nicole R. & Morgan, Robert D., Understanding Persons with Mental Illness Who Are and Are Not Criminal Justice Involved: A Comparison of Criminal Thinking and Psychiatric Symptoms, 37 Law & Hum. Behav. 175, 175-86 (2013)CrossRefGoogle Scholar (reporting the results of a study examining the differences between people with mental illness who were involved with the criminal justice system and those who were not).

91 Morgan, Robert D., Treating Offenders with Mental Illness: A Research Synthesis, 36 Law & Hum. Behav. 37, 38, 46 (2012)Google ScholarPubMed (quoting Rice, Marnie E. & Harris, Grant T., The Treatment of Mentally Disordered Offenders, 3 Psychol., Pub. Pol'y, & L. 126, 164 (1997)Google Scholar).

92 Snyder, Howard N., Nothing Works, Something Works — But Still Few Proven Programs, 69 Corrections Today 6, 6 (2007)Google Scholar; see Morgan et al., supra note 91, at 38.

93 D.J. Jaffe, The Way Forward on Federal Mental Health Policy, Nat'l Review (Dec. 18, 2017), http://www.nationalreview.com/article/454702/federal-agencys-report-problem-serious-mental-illness-good-start [https://perma.cc/DSR4-C976] (“The federally funded Protection and Advocacy (PAIMI) Program and the Department of Justice's Civil Rights of Institutionalized Persons Act (CRIPA) program are two programs that should be reined in. These laws make it difficult to reduce homelessness, arrest, and incarceration. When doctors, parents, police and judges determine that someone needs civil commitment, federally funded PAIMI lawyers rush in to overturn that decision by arguing that being psychotic is a civil right that must be protected, rather than an illness that ought to be treated. And it is hard to hospitalize those who need hospitalization when federal CRIPA lawyers busy themselves suing states to force the release of patients.”).

94 Steven Ross Johnson, Funding Barriers Threaten 21st Century Cures Act's Success in Treating Mental Health, Modern Healthcare (Dec. 13, 2017), http://www.modernhealthcare.com/article/20171213/NEWS/171219952 [https://perma.cc/KK77-HCU4].

95 Elyn R. Saks, Diary of a High-Functioning Person with Schizophrenia, Sci. Am. (Dec. 29, 2009), https://www.scientificamerican.com/article/diary-of-a-high-function/ [https://perma.cc/QRS2-7FXD].

96 Elyn Saks, The Consent Dilemma, Politico (Aug. 9, 2017), https://www.politico.com/agenda/story/2017/08/09/drug-treatment-mental-illness-000491 [https://perma.cc/68UA-5ZC8].