Speech to the National Association of State Forensic Mental Health Directors

The Mentally Ill Offender: Viewing Crime
and Justice Through a Different Lens

INTRODUCTION

Thank you for the kind invitation to address this conference of the National Association of State Mental Health Forensic Directors. Several months ago, I readily accepted Judy Cox's invitation to speak to you. At the time, it seemed like a pretty straightforward proposition -- I enjoy opportunities to speak with people who represent different professions engaged in thinking about the challenges of crime and justice -- and Judy said I should accept the invitation and I trust Judy's judgment. I admit, however, that as the day of your conference approached, I began to feel some trepidation about the assignment of addressing a conference of State Mental Health Forensic Directors. In many ways, the issues you deal with in your daily professional lives represent the cutting edge issues in criminal justice -- the increased numbers of mentally ill defendants coming through our criminal justice system; the hardening of public attitudes toward people who violate the law -- particularly violent offenders, but also those who violate minor, quality of life ordinances; the decreases in public resources for treatment, training and health services; the public attitude that the criminal law should be used to solve social problems that are perhaps better defined as public health or mental health problems. These are difficult and challenging issues.

So, I speak to you today fully acknowledging that you are on the front lines of our shifting attitudes regarding crime and justice and that you stand at the unique and revealing crossroads between our criminal justice system and our mental health system. My sense is that you probably detect -- earlier and more accurately -- some of the winds of change in our society's approach to criminal justice issues -- so, in many ways, I feel that the larger community of criminal justice professionals should be asking you what you see -- what are the fault lines that run beneath our perpetual efforts to achieve both safety and justice? How are the most vulnerable of us faring today in a harsher world that too infrequently recognizes human frailty? How well are we allocating scarce resources to those who bear the triple burden of being mentally ill, drug or alcohol dependent, and arrested for violating the criminal law? You have much to tell us about these fault lines. Your conference agenda can be seen as a view from the ramparts -- how to reintegrate sex offenders -- managed care and forensic services -- managing clients with personality disorders -- you have my admiration for tackling such difficult issues with such an interdisciplinary approach.

My hope this morning is that I can offer a different perspective on these issues. I certainly cannot pretend to have expertise in mental health issues. Instead, I hope to offer a bird's eye view of some of the major undercurrents influencing our approach to crime and justice issues today -- and then to pose some questions about how these might affect our approach to the important issue of our treatment of the mentally ill in the criminal justice system.

DUAL APPROACH TO CRIME

Over the past three years, as Director of the National Institute of Justice, I have been privileged to travel the country, to talk to lots of people and to learn from their experiences. During this time, I have been struck by the fact that we are both optimistic and pessimistic about crime. We are pleased with the reductions in crime rates in some of our major cities; heartened by the successes of community policing; encouraged by the growing acceptance of drug courts and drug treatment in the criminal justice system; and inspired by communities that are fighting back against crime and drug abuse. At the same time, we have enacted three-strikes laws in almost half our states; seem unable to slow down the growth of imprisonment; see a third to a half of young African-American males under criminal justice supervision; hear dire predictions of a future generation of "super-predators"; and seem unable to create a world where gun violence is a rare story on the evening news.

So I have developed a theory to explain this seeming contradiction between our optimism and our pessimism -- and I'd like to test it out on you. I believe that we are witnessing today the maturation of two very different approaches to crime and that we are engaged in a debate about which approach holds the greater promise for our future. One approach I will call the "problem-solving approach"; the second I will call the "rule-enforcing approach." These are not mutually exclusive approaches -- indeed, both have coexisted in our criminal justice galaxy for generations. Still, I think we are seeing each of them today in an advanced state of development so that the contrast between their basic principles seems starker than ever before. And, if we view these two approaches through your lens -- and ask how each would respond to the mentally ill defendant -- we can see how different they are.

Problem-Solving Approach

Let's look at the first approach, the "problem-solving approach". Interestingly, it is our colleagues in the policing profession who are leading the way here. The community policing movement is defining a new direction for policing and other criminal justice professions as well. A little over twenty years ago, the policing profession was shaken to its foundations by a series of research studies that challenged the basic assumptions of modern policing. These studies found that random police patrol -- the bedrock operating method of American police departments -- did not reduce crime, did not increase crime-solving rates, and did not reduce levels of fear among the citizens.1 Think of the impact of these findings. If establishing a 911 system, supporting a fleet of patrol cars staff by police officers racing to respond to crime emergencies, did not reduce crime or increase apprehension rates or even make people feel safer, then why should a police department be organized that way? Through a series of experiments, and pathbreaking work by academics such as George Kelling2 and Herman Goldstein,3 policing began to discover -- or, more accurately, rediscover -- its first principles: namely, that a close working relationship with the community served by the police was essential for good policing, and that relationship would be most productive if the police and the community were engaged in a process of jointly identifying the crime problems facing the community, jointly designing strategies, and jointly evaluating the effectiveness of those strategies. The philosophy of community policing was born and it is changing the face of police departments around the country.

At the core of this new philosophy is a new operating strategy called "problem-solving". Just the terminology itself is a radical departure from traditional policing. Is crime a problem for the police to solve? What about other problems identified by the community -- Disorder? Fear? Unsanitary street conditions? Aren't the police merely supposed to arrest people who violate the law? Tellingly, some advocates of this new philosophy, such as George Kelling of Rutgers, make a special point to call it the "policing profession," not the "law enforcement profession", to make the point that policing is a broader function in society, and that enforcement of the laws is but one component of a problem-solving strategy.4

If it is radical to think of "problem-solving" as the operating strategy, what are we to make of the notion that the community is part of the process of defining the problem and designing and assessing the solutions? According to the traditional professional view -- the one that created that memorable line on TV, "Just the facts, ma'am" -- the community has little role to play in police work beyond reporting crimes, providing intelligence, and serving on juries. Now, under the new philosophy, the community is literally and figuratively "at the table" -- engaged with the police in defining priorities, bringing intelligence and resources to the task, and holding police accountable for results. When fully realized, the philosophy of community policing will bring about fundamental changes in the role of the police in our democracy precisely because it is premised on a different relationship between the police and the community.

Interestingly, the "problem-solving" methodology is now spreading to other components of the criminal justice system. Across the country, we are witnessing a number of prosecutors' offices that are engaged in what they call "community prosecution" -- in which they assign prosecutors to work in neighborhood offices, attending community meetings to learn of the crime problems from the community perspective, serving as legal counsel to that community in designing strategies to address those problems, mixing traditional criminal remedies with civil or regulatory remedies to produce a much more varied set of legal responses to crime.5

We are also witnessing some fascinating innovations in judicial practice as courts adopt "problem-solving" methodologies. Drug courts are properly understood as "problem-solving" courts. They view the defendant before the court as someone possessing a drug problem -- and start with the radical notion that it is the court's responsibility to work with the defendant -- and treatment providers -- to solve that problem. Traditional adversarial practices fall by the wayside as judge, prosecutor, public defender, and treatment provider work as a team to help the offender move toward a drug free life. These treatment courts base their practices on research about relapse and treatment readiness, not traditional legal principles of deterrence and punishment. Other courts are adopting problem-solving methodologies as they handle specialized dockets in domestic violence, child abuse, juvenile gun possession or driving while intoxicated.6 These courts are willing to measure their productivity not by disposition rates and number of days to decision, but by the reduction in criminal activity or substance abuse.

The problem-solving methodology is finding interesting manifestations in other components of the criminal justice system. Increasingly, probation and corrections agencies are engaging the community in their processes, and some are exploring the application of restorative justice principles to their system of sanctions. In New York City, the Harlem Neighborhood Defender Service has experimented with locating criminal defense services in the community, with a problem-solving, client-based approach to their work, with fascinating results.7

Some observers, most notably Attorney General Janet Reno, look at this creative ferment within the criminal justice system and see the beginnings of a "community justice" movement in which the criminal justice process is opened up to constructive partnership with the community, and the agencies of the system are held accountable for solving the problems that are presented to them.8 This is a very different vision from that set forth by the President's Commission on Law Enforcement and Criminal Justice thirty years ago -- an assembly-line criminal justice system in which cases are moved as if by conveyor belt from one agency to the next -- the police arrest, prosecutors charge, defense counsel defends, courts adjudicate and corrections agencies detain and supervise.9

Although the specific applications of the "problem-solving approach" may differ from policing to prosecution to probation, there are common distinguishing characteristics. This approach embodies that quintessential American trait, optimism. People who sit at the problem-solving table -- community members and criminal justice professionals alike -- believe that problems can be solved, even some of the most difficult ones. Second, it is very results oriented: has the problem been solved? Have the number of 911 calls at a violent household been reduced? Does the defendant show progress in drug treatment? Has the crack house been closed? Third, it unleashes creative energy: once thinking outside the box is encouraged, the ideas start to flow. Finally, and very importantly, this approach encourages -- indeed, depends upon -- the exercise of substantial discretion at the lowest levels in the organization. Beat officers are empowered to make important decisions. Neighborhood prosecutors are encouraged to design new strategies. Drug court judges are authorized to experiment with different combinations of sanctions and treatment. The rigid hierarchies of command and control are set aside; discretion and risk-taking are encouraged.10

Rule-Enforcing Approach

The other trend we are seeing in our country today is the approach we can call "rule-enforcing". As with the evolution toward community policing, which I believe can be traced to research conducted twenty years ago, this approach also finds its roots in ground-breaking research and academic writing. A little over twenty years ago, a group of legal scholars developed a body of literature expressing concern about disparities in sentencing.11 They discovered that there were significant numbers of instances where like cases were not treated alike -- where two similar cases, involving similar defendants, with similar criminal records, received widely disparate sentences. In some instances, these disparities appeared to run along racial lines. At the same time, the sentencing practices of the Nation were critiqued because they failed to live up to the ideal of "just desserts" -- the notion that the same crime would receive the same punishment.12

The remedy proposed to cure these ills was to limit judicial discretion. Legislatures, responding to public concerns about crime, radically changed the rules of the system. In state after state, indeterminate sentencing schemes were replaced by determinate sentencing schemes. Parole was abolished or significantly constrained. And, in the most advanced embodiment of the impulse to limit judicial discretion, some states enacted sentencing guidelines to limit judicial discretion by allowing judges to sentence offenders within a narrow range of possible sentences, a range principally determined by merely two factors, the severity of the charge and the length of the defendant's criminal history.13

This significant reduction in judicial discretion at sentencing was fueled, as well, by two other research insights that were quite powerful at the time. The first was the notion that "nothing works" -- indeed, Robert Martinson's often-cited article, "What Works? -- Questions and Answers about Prison Reform,"14 a paper reviewing the most effective means of rehabilitating prison inmates, found that "with few and isolated exceptions, rehabilitative efforts have had no appreciable effect on recidivism," a conclusion that was widely interpreted in scholarly and policy communities as "nothing works." The notion that offenders could not be rehabilitated certainly supported the drive to keep them in prison longer. The second research insight supporting the "rule-enforcing" approach was the concept of the "career criminal"15 -- the idea that a small number of offenders were responsible for large percentages of crime and that identifying them and keeping them in prison longer would significantly reduce crime in America. In fact, the RAND corporation put out a study in 1982 projecting that doubling imprisonment time for robbery would yield a 20% reduction in robberies committed.16 The advocates for greater imprisonment had found another important argument for their case.

In more recent years, the "rule-enforcement" approach has taken new directions. At the lower end, mandatory minimum sentences have become a frequent legislative response to crime. In the category of "quality of life" offenses, jurisdictions have declared "zero tolerance" for minor violations of the law. At the upper end, three-strikes legislation has been enacted in 24 states.17 Forty-three states now have laws requiring registration of sex offenders released to the community18; in 32 states, notification of the community is also required.19 Lifetime parole for sex offenders is gaining popularity. And, as you will be discussing at your conference, the recent Supreme Court decision Kansas v. Hendricks20 held that sex offenders may be detained in mental institutions even after completion of a criminal sentence, opening up yet another avenue for a punitive response to this type of offense. Our prison and jail population is now over 1.6 million21 -- more than five times the 1980 level of approximately 300,00022 -- and our probation and parole population together is now over 3.8 million,23 nearly triple the 1.3 million on probation and parole in 1980.24

The "rule-enforcing" approach to crime is obviously quite different from the "problem-solving" approach. It views crime not as a problem to be solved, but as a set of rules to be enforced -- and enforced strictly and evenly. Rather than encouraging discretion and risk-taking, the "rule-enforcing" approach severely restricts discretion -- and attempts to limit the possibility of "error" -- the possibility that an offender might re-offend -- by limiting his freedom, in prison if necessary. Finally, the "rule-enforcing" approach to crime is not grounded in optimism about human nature or about the possibility that concerted effort can make things better; rather, this approach seeks to control crime principally through punishment and incapacitation.

Dual Approach and Mental Health Services

These two world views are engaged in uneasy co-existence in our country today. Some of us see only one; some see only the other. Talk to a European observer of our crime policy -- someone who sees only the prison numbers and the death penalty and the three-strikes laws -- and try to explain to him or her that American urban communities are feeling hopeful about crime. On the other hand, talk to a young beat officer in an American city who is making a tangible difference in his or her beat and try to explain why we are creating geriatric prisons but not investing in after school programs for at-risk kids. It is difficult to create a sustained conversation across this divide. While it is unrealistic and unnecessary to attempt to reconcile these two views, we do need to create a greater level of understanding and awareness about these two approaches to crime.

There is perhaps no better magnifying glass to help us see the tensions between these world views than the issue of the mentally ill in the criminal justice system. Let's look at both ends of the spectrum of criminal severity. At the high end, we are witnessing a rapidly changing approach to the issue of sex offenders. The "rule-enforcing" world view is fundamentally changing the terms of policy debate. Over the past few years, the issue of sex offenders in the community has been cast as an issue of community notification and registration -- creating new rules and enforcing them. Now, as I mentioned, with the recent Supreme Court decision, the policy debate may shift again and legislatures may require either life-time parole or life-time incarceration after a finding of mental illness. Missing from this debate has been a discussion of risk management, risk reduction, effective treatment, and enforcement of conditions of release. I am pleased to say that the National Institute of Justice has sponsored a number of studies and demonstration projects that test different methods for managing sex offenders in the community, including lie detector tests,25 but I fear that, unless we engage the issue quickly, these research results will not find a hospitable policy climate.

I do not want to leave the impression that only the rule-enforcement approach poses policy dilemmas. At the lower end of the criminal severity spectrum, new policing approaches to "quality of life" offenses carry grave risk that justice will not be served. As I mentioned a moment ago, the "problem-solving" methodology raises serious issues about the "problems" that are appropriate for police attention. In essence, the definition of "police work" has expanded and changed, as the police are asked to take on new problems. If you talk with police executives and officers alike, they frequently voice legitimate concerns over the phenomenon of "mission creep" -- not knowing where the police function stops and other social functions take over. The issue of the homeless mentally ill who populate our city streets poses this dilemma. To what extent should the police accede to the community's desire that "something be done" about these people? Should we encourage result-oriented policing in these cases? What is the result the police can achieve? Is harassment acceptable? What other options are there? How do we restrict an officer's discretion in handling cases such as these? How do we guide an officer's discretion? Why do we look to the police and the criminal justice system to take the lead in the problem-solving effort? How do we construct measures of public accountability?

CHALLENGE TO MENTAL HEALTH SERVICE PROVIDERS

I hope to encourage you to think through some of these problems on behalf of the larger criminal justice system, because, as I stated at the outset, I think you experience cutting edge issues that have larger significance for all of us. I would like to challenge you to think about the following specific issues and to consider contacting me and my colleagues at the National Institute of Justice to identify areas of common interest.

First, I think we need to understand much better than we do now, why the criminal justice system is witnessing an increase in mentally ill defendants. There is a consensus in the literature -- and I'm sure in your experience -- that there is an increase -- but there is no consensus as to the reasons for the increase. If, for example, the increase is attributable to different policing strategies, then the "problem-solving" approach of community policing can allow for a discussion of whether this strategy is actually effective and, if not, what alternatives there might be. If the increase is due to public pressure, real or perceived, upon the police, then the mental health professionals should find a place at that table to talk about different responses. NIJ has funded some work on this topic -- particularly the police response to the mentally ill26 -- but I fear we too often view the phenomenon only from a criminal justice, not a mental health, perspective.

Second, I think we need to ask what role the criminal justice system should play in providing mental health services. This is obviously not a new question for this gathering -- but I respectfully suggest that the changes we are seeing in problem-solving courts -- the drug courts, community courts, domestic violence courts -- present a opening for a new dialogue regarding mental illness and mental health services. I suspect that most criminal justice professionals are as uninformed as I am about the scope of the phenomenon. The numbers are staggering: of the ten million people arrested and admitted to jail each year, 13%, or 1.3 million people suffer from severe mental disabilities;27 less than 2% in the general population.28 According to another study, approximately 685,000 inmates in detention have serious mental illnesses.29 The Los Angeles County jail system -- where 16% of the inmates require mental health services on a daily basis -- is de facto the largest mental institution in the country.30 At the same time, according to an NIJ survey, sixty-four percent of jail administrators31 -- and eighty-two percent of probation and parole agency directors32 -- indicated the need for improved medical services for the mentally ill offender. And more than one-fifth of jails have no access to any mental health services at all.33 Have we done enough to educate criminal justice professionals about the substantial overlap between the mentally ill and the criminal justice system and the inadequacy of services? I suspect the answer is no, by a long shot, and I would be interested in ways to encourage that discussion.

In short, we need to open up an interdisciplinary, interagency dialogue on this issue, and I would be pleased to commit the support of the National Institute of Justice to this challenge. We have published a number of reports on these topics, and have highlighted successful programs such as the National GAINS Center and police approaches to mentally ill offenders. We have a major study underway with the National Commission on Correctional Health Care that will look at health and mental health issues.34 But I suspect that a lot more can be done to engage the "problem-solving" spirit around this compelling problem. If we were to design a model criminal justice system from a mental health perspective, what would it look like? Who would champion it? How would we measure its effectiveness? How would it change the delivery of mental health services? How would it change criminal justice outcomes?

Finally, I think you and your colleagues can help the country to think honestly and constructively about the relationship between mental disorder and violence. On the one hand, we have to stress that only a small fraction of the violence in American society can be attributed to the mentally ill. On the other hand, however, we have to acknowledge that there is an increased risk for violence among individuals with mental illness compared to the general population.35 These facts call for enhancing the individualization of justice -- for increases in discretion at all levels of the criminal justice system to respond appropriately to differences between the mentally ill and the general defendant population. These cases do not fit neatly into the two-dimensional boxes of sentencing grids. Nor do these aberrational cases translate into broad policy changes in sentencing schemes. They require the best thinking that your profession can bring to the problem solving table.

CONCLUSION

Much is riding on your success in this regard. As a country, we need to reconcile our desire to punish anti-social behavior with our desire to create safe communities and dispense justice. Your invitation to speak with you today has provided me the occasion to recognize that the cases you deal with -- the mentally ill offenders -- represent the true test of our capability to reconcile those competing goals. I thank you for that, I thank you for inviting me, and I wish you a successful conference.