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Mercy, Especially for the Mentally Ill

In his essay for Solutions: American Leaders Speak Out on Criminal Justice, Bryan Stevenson calls on Americans to embrace the challenge of creating a fairer, more merciful criminal justice system with better tools for helping the mentally ill.

April 28, 2015

Mass incarceration, in my judgment, has fundamentally changed our world. This country is very different today than it was 40 years ago. In 1972, there were 300,000 people in jails and prisons. Today, there are 2.3 million. The United States now has the highest rate of incarceration in the world.

In poor communities, in communities of color there is this despair. There is this hopelessness that is being shaped by these outcomes. One out of three black boys born in the 21st century will be incarcerated at some point in their lives. In urban communities across this country — Los Angeles, Philadelphia, Baltimore, Washington — 50 to 60 percent of all young men of color are in jail or prison or on probation or parole. Our system is not just being shaped in these ways that seem to be distorting around race, they are also distorted by poverty. We have a system of justice in this country that treats you much better if you are rich and guilty than if you are poor and innocent. Wealth, not culpability, shapes outcomes.

The politics of fear and anger have made us believe that these are problems that are not our problems. We have been disconnected. Incarceration became the answer to everything — health care problems like drug addiction, poverty that had led someone to write a bad check, child behavioral disorders, managing the mentally disabled poor, even immigration issues generated responses from legislators that involved sending people to prison.

For decades, I have worked in a broken system of justice. My clients were broken by mental illness, poverty, and racism. They were torn apart by disease, drugs and alcohol, pride, fear, and anger. In their broken state, they were judged and condemned by people whose commitment to fairness had been broken by cynicism, hopelessness, and prejudice. We are supposed to sentence people fairly after fully considering their life circumstances, but instead we exploit the inability of the poor to get the legal assistance they need — all so we can kill them with less resistance.

We need to find ways to embrace these challenges, these problems, the suffering. Because ultimately, our humanity depends on everyone’s humanity. We have a choice. We can embrace our humanness, which means embracing our broken natures and the compassion that remains our best hope for healing. Or we can deny our brokenness, forswear compassion, and as a result, deny our own humanity.

I am encouraged by the fact that nationwide the rate of mass incarceration has finally slowed. For the first time in close to 40 years, the United States saw the first decline in its prison population.

Our criminal justice system must change. Fear and anger are a threat to justice; they can infect a community, a state, or a nation and make us blind, irrational, and dangerous. Mass imprisonment has littered the national landscape with carceral monuments of reckless and excessive punishment and ravaged communities with our hopeless willingness to condemn and discard the most vulnerable among us.

But simply punishing the broken — walking away from them or hiding them from sight — only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity. Each of us is more than the worst thing we have ever done. I am more than broken. In fact there is a strength, a power even, in understanding brokenness because embracing our brokenness creates a need and desire for mercy, and perhaps a corresponding need to show mercy.

When you experience mercy, you learn things that are hard to learn otherwise. You see things you can’t otherwise see; you hear things you can’t otherwise hear. You recognize the humanity that resides in each of us. All of a sudden, I felt stronger. I began thinking about what would happen if we all just acknowledged our brokenness, if we owned up to our weakness, our deficits, our biases, our fears. Maybe if we did, we wouldn’t want to kill the broken among us who have killed others. Maybe we would look harder for solutions to caring for the disabled, the abused, the neglected, and the traumatized. I had a notion that if we acknowledged our brokenness, we could no longer take pride in mass incarceration, in executing people, in our deliberate indifference to the most vulnerable. Mercy is most empowering, liberating, and transformative when it is directed at the undeserving. The people who haven’t earned it, who haven’t even sought it, they are the most meaningful recipients of our compassion.

How can mercy translate into practical changes in our criminal justice system? The ways are countless. At every juncture, decision makers can be more compassionate. Police can presume innocence in interactions with individuals. Judges and prosecutors can recommend less punitive sentencing for defendants. Corrections officers can treat inmates with humility. One powerful way to exercise mercy: change how we treat the mentally ill. And, make how we treat the most vulnerable among us just.

America’s prisons have become warehouses for the mentally ill. Mass incarceration has been largely fueled by misguided drug policy and excessive sentencing. But the internment of hundreds of thousands of poor and mentally ill people has been a driving force in achieving our record levels of imprisonment. It has created unprecedented problems.

For over a century, institutional care for Americans suffering from serious mental illness shifted between prisons and hospitals set up to manage people with mental illness. In the late nineteenth century, the numbers of incarcerated people with serious mental illness declined dramatically, while public and private mental health facilities emerged to provide care to the mentally distressed.

By the middle of the 20th century, abuses within mental institutions generated a lot of attention, and involuntary confinement of people became a significant problem. Families, teachers, and courts were sending thousands to institutions for eccentricities that were less attributable to acute mental illness than resistance to social, cultural, or sexual norms. People who were gay, resisted gender norms, or engaged in interracial dating often found themselves involuntarily committed.

In the 1960s and 1970s, laws were enacted to make involuntary commitment much more difficult. Deinstitutionalization became the objective in many states. Legal rulings empowered people with developmental disabilities to refuse treatment and created rights for the mentally disabled that made forced institutionalization much less common. By the 1990s, several states had a deinstitutionalization rate of over 95 percent. In 1955, there was one psychiatric bed for every 300 Americans; 50 years later, it was one bed for every 3,000.

While these reforms were desperately needed, deinstitutionalization intersected with the spread of mass imprisonment policies — expanding criminal statutes and harsh sentencing — to disastrous effect. The “free world” became perilous for deinstitutionalized poor people suffering from mental disabilities. The inability of many disabled, low-income people to receive treatment or necessary medication dramatically increased their likelihood of a police encounter that would result in jail or prison time. Jail and prison became the state’s strategy for dealing with a health crisis created by drug use and dependency. A flood of mentally ill people headed to prison for minor offenses and drug crimes or simply for behaviors their communities were unwilling to tolerate.

Today, more than 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Nearly one in five prison and jail inmates has a serious mental illness. In fact, there are more than 10 times the number of seriously mentally ill individuals in jail or prison than in hospitals. And prison is a terrible place for someone with a mental illness or a neurological disorder that prison guards are not trained to understand.

Most overcrowded prisons do not have the capacity to provide care and treatment for the mentally ill. The lack of treatment makes compliance with the myriad rules that define prison life impossible for many disabled people. Other prisoners exploit or react violently to the behavioral symptoms of the mentally ill. Frustrated prison staff frequently subject them to abusive punishment, solitary confinement, or the most extreme forms of available detention. Many judges, prosecutors, and defense lawyers do a poor job of recognizing the special needs of the mentally disabled, which leads to wrongful convictions, lengthier prison terms, and high rates of recidivism.

There are hundreds of ways we accommodate physical disabilities — or at least understand them. We get angry when people fail to recognize the need for thoughtful and compassionate assistance when it comes to the physically disabled, but because mental disabilities aren’t visible in the same way, we tend to be dismissive of the needs of the disabled and quick to judge their deficits and failures. Brutally murdering someone would of course require the state to hold that person accountable and to protect the public. But to completely disregard a person’s disability would be unfair in evaluating what degree of culpability to assign and what sentence to impose.

We can take steps to accommodate mental disabilities both inside and outside of the criminal justice system. People suffering from mental health issues should be treated with compassion and mercy. Reforms must focus at the root of the problem, and learn from history. In the past, the mentally ill were institutionalized in separate institutions with their own problems. The intention of deinstitutionalization was not to subject the mentally ill to incarceration in prisons where corrections officers have no relevant training and they would be subject to conditions that would exacerbate their disabilities. Instead, the intention was to provide services outside the institutional setting, accessible clinics with helpful resources to treat mental illness and address issues without incapacitation. Providing these services requires mercy, but also money. Funds directed to mental health social services in communities can control problems without institutionalization. Inside the system, mental health courts can redirect individuals to treatment instead of prison, to effectively address problems outside of traditional criminal justice.

Ultimately, you judge the character of a society, not by how they treat their rich and the powerful and the privileged, but by how they treat the poor, the condemned, the incarcerated. Because it’s in that nexus that we actually begin to understand truly profound things about who we are, about human rights and basic dignity. All of our survival is tied to the survival of everyone.

Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.