Mentally ill individuals are generally over-represented in the criminal justice system. This phenomenon has been characterised as the ‘criminalisation of the mentally ill‘. What this means is that a legal response has taken precedence over a medical response to behaviours related to mental illnesses. As such, criminal lawyers are able to help these people reduce their sentence if they are diagnosed with a mental illness.

The length of time to resolve these cases, according to Toronto Defence Lawyers, depends on several factors:

• The seriousness of the charge(s)
• Number of charges
• Whether you are charged alone or with co-accused
• The number of legal issues
  
• The number of witnesses that will be required to testify at trial

It is a generally accepted fact that the mentally ill do not belong in prison, but complex structural factors have contributed to the pervasive warehousing of the mentally ill in prisons. 

How deinstitutionalisation drove the mentally ill into the criminal justice system  

The criminalisation of mental illness began through the deinstitutionalisation of psychiatric facilities in the 1950s. This government held that mental hospitals were repressive in nature and mandated a shift in the caring of individuals from an institutional setting to a community-based one. 

The goals of this movement included the following: 

• To release individuals from psychiatric hospitals and train them to self-regulate and self-medicate;
• To transfer individuals to community-based care centres and locally-run facilities; and
• To reduce the cost of long-term institutionalisation. 

Reintegrating these individuals into the community required a careful amount of support and supervision upon release to ensure that the newly released patients were receiving proper medical care and taking their medication in a timely manner. 

Unfortunately, this never materialised in the decades following the deinstitutionalisation process. A lack of funding and a lack of comprehensive community support led prisons and jails to quickly become replacements for psychiatric facilities. 

The inadequate community support led many newly released mentally ill patients to become homeless. With the increased release of mentally ill patients, inadequate community care treatment, and increased level of homelessness came an unexpected turn towards the criminal justice system. 

Often, people with mental illnesses exhibit disruptive behaviours as a symptom of their illness. The police typically respond to these situations by arresting the individual instead of referring them to appropriate treatment centres.

As soon as these individuals are arrested, detained, and convicted even once, they are likely to be repeatedly cycled through the criminal justice system. This is only one of the factors leading to an increase in the criminalisation of mental illnesses. 

Factors contributing to the disproportionate incarceration of persons with mental illnesses

There are several structural factors that have contributed to the over-representation of mentally ill persons in prison:

• Lack of sufficient community support. Individuals with mental illnesses struggle to find steady housing, employment and mental health services. Because of their condition, they also have a hard time maintaining consistent contact with friends, relatives, and treatment providers.
• High rate of substance abuse. Many people with mental illnesses have co-occurring substance use disorders, i.e. a mental illness and substance use disorder. It is difficult to treat co-occurring disorders rather than either mental illness or substance abuse alone. There is also a lack of treatment programs that address co-occurring disorders despite the growing demand.
• Stigma of being labelled a criminal. Sometimes, treatment is denied to persons who have committed a criminal offence or have been previously incarcerated. The staff at treatment facilities may consider the person too dangerous or disruptive for treatment even if the offence for which they were arrested or convicted was non-violent in nature.
• Problems with treatment. Some individuals with mental illnesses may try numerous treatment plans without success. Others may refuse treatment because they are in denial, dislike the medication’s side-effects, or the symptoms of the illness itself prevents them from seeking help. The pressures to find housing and income can also interfere with the ability to maintain steady treatment.
• Lack of timely access to treatment. Long wait lists have inhibited individuals from successfully managing their mental illnesses. Ease of access to treatment facilities would facilitate early intervention and diagnosis which would divert these individuals away from the criminal justice system.
• Lack of cross-trained staff. Although there is a surge in the arrest and detention of mentally ill individuals, criminal justice professionals are still ill-equipped when it comes to responding to disturbances caused by an individual suffering from mental illnesses. This lack of understanding about the systemic issues around the criminalisation of the mentally ill is contributing to their over-representation in the criminal justice system as well as within the crisis intervention.
• Administrative segregation. Administrative segregation or solitary confinement is an extreme measure used for most dangerous and uncontrollable incarcerated individuals. However, it is used more often than not, especially in Ontario. 

Often, those suffering from mental illnesses have a harder time adjusting to incarceration. They may engage in disruptive behaviour to which the correctional authorities respond with disciplinary measures such as solitary confinement. When individuals with pre-existing mental illnesses are placed in solitary confinement, their symptoms are dramatically worsened. 

The conditions of solitary confinement have been noted to lead to depression, anxiety, paranoia, delusions, and psychosis. These symptoms worsen among those suffering from mental illnesses.

The Ashley Smith case was a prime example of how the correctional system collectively failed to provide an identified mentally ill, high risk, high needs inmate with appropriate care, treatment and support. Despite being on suicide watch, Ashley Smith died by self-inflicted strangulation while the guards watched her on a monitor for 45 minutes before intervening. 

Recently, the Ontario Superior Court of Justice ruled that Correctional Services of Canada violated Sections 7 and 12 of the Canadian Charter of Rights and Freedoms, which protect against arbitrary state actions and cruel and unusual punishment, for placing mentally ill inmates in solitary confinement causing them to experience hallucinations, paranoia, self-inflicted abuse, and suicidal ideations. This decision further ruled that inmates with mental illnesses will no longer be placed in solitary confinement except in exceptional circumstances. 

The government has also proposed to introduce Bill C-83, a legislation aimed at rectifying these breaches. The legislation is said to introduce a new oversight mechanism and give segregated inmates at least four hours out of their cells every day. 

What needs to change

• Police. The police need to be better trained to recognise the symptoms of mental illnesses. They also need to have the capacity to refer the individuals they encounter to mental health services instead of the criminal justice system.
• Courts and corrections. Like police officers, the courts and corrections also need to be trained and educated on the complexities of how to interact with mentally ill offenders. Corrections services need to develop stronger screening systems to detect mental illnesses in its early stages before deterioration. Additionally, corrections services need to provide strong in-custody treatment with pre- and post-release care planning, support, and follow-up.
• Community. Most importantly, it is paramount that people with mental illness have strong support in the community in terms of housing, income, job skill development, and especially timely access to treatment within the mental health system.

Dennis Relojo-Howell is the founder of Psychreg.