\\server05\productn\H\HHL\5-1\HHL101.txt unknown Seq: 1 4-MAY-05 12:06 5 HOUS. J. HEALTH L. & POL’Y 1–73 1 R Copyright 2005 Jennifer S. Bard, Houston Journal of Health Law & Policy ISSN 1534-7907 RE-ARRANGING DECK CHAIRS ON THE TITANIC: WHY THE INCARCERATION OF INDIVIDUALS WITH SERIOUS MENTAL ILLNESS VIOLATES PUBLIC HEALTH, ETHICAL, AND CONSTITUTIONAL PRINCIPLES AND THEREFORE CANNOT BE MADE RIGHT BY PIECEMEAL CHANGES TO THE INSANITY DEFENSE Jennifer S. Bard* Anyone who has spent any time in the criminal justice system—as a defense lawyer, as a district attorney, or as a judge—knows that our treatment of criminal defendants with mental disabilities has been, forever, a scandal. Such defendants receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes * Associate Professor of Law, Texas Tech University School of Law, Lubbock Texas; J.D., Yale Law School, 1987; M.P.H., University of Connecticut, 1997; A.B., Wellesley College, 1983. This work grew out of an invitation to give the second Nordenberg Lecture at the University of Pittsburgh Law School in October 2002, where I had the honor of Chancellor Nordenberg’s presence at the lecture. I very much appreciate the questions and comments following the lecture, which informed this article. Thank you also to Professor Elyn Saks, Orrin B. Evans Professor of Law, Psychiatry and Behavioral Sciences, University of South- ern California Law School, who read a late draft and made many helpful comments; Donna Vickers of the University of Texas Medical Branch; and to my primary research assistant at Texas Tech Law School, Kristi Ward ’05, for her invaluable contributions to the project. In addition, Emily Newell ’04, Shaun Hunley ’05, Yolanda Sewell ’05, and Rachel Khirallah ’05 all provided substantial research help at critical times. I am especially grate- ful to my students at the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston, Texas: Alison Rutledge, John Caskey, Amy McGuire, Berna- dette McKinney, and Jason Morrow, with whom I discussed these issues; and to William J. Winslade, Ph.D., J.D., who provided me with much insight about the insanity defense. I also thank Dr. Howard Zonana, Professor of Medicine and Law at Yale Medical and Law Schools. My role models in this work are my mother, Dr. Barbara T. Bard, and Dr. Dorothy Otnow Lewis—for their groundbreaking research on death row inmates that has already done so much to bring to the legal system an understanding of the serious mental illness and neurological damage of those we imprison. Finally, I thank my brother Eli Bard for his constant help and encouragement. All the errors and mistakes in this piece are mine, de- spite the best efforts of those who have tried to assist me. \\server05\productn\H\HHL\5-1\HHL101.txt unknown Seq: 2 4-MAY-05 12:06 2HOUS. J. HEALTH L. & POL’Y (many of which they did not commit) . We further know that the one question on which we obsessively focus—the scope and role of the insanity defense—is virtually irrelevant to this entire conversation.1 “On any given day, at least 284,000 schizophrenic and manic depressive individuals are incarcerated, and 547,800 are on proba- tion . [W]e have unfortunately come to accept incarceration and homelessness as part of life for the most vulnerable population among us.”2 “[S]he knew exactly what she was doing, and she knew it was wrong,” said a juror, explaining why she rejected Andrea Yates’ in- sanity defense.3 INTRODUCTION The decision by a Texas jury to find Andrea Pia Yates—the woman who drowned her five children because she believed she was saving them from God’s judgment—guilty of murder, rather than not guilty by reason of insanity, has unleashed a torrent of calls to revise the insanity defense to avoid further such perceived injus- tices. In this Article, I will argue that the problem of adjudicating mentally ill criminals is too large a societal issue to be resolved by merely refining the insanity defense to include provisions for wo- men suffering from post-partum depression who kill their children. Instead, I propose that the mass closing of institutions for the men- tally ill over the past thirty years—without creating adequate outpa- tient mental health treatment—has resulted in a new problem only tangentially related to the high-profile cases which have until now driven the study of the insanity defense. This population of individ- uals who have difficulty conforming their behavior to societal norms would previously have been committed to mental hospitals. Now, they end up incarcerated as criminals. Without addressing, or at least considering, the lack of available mental health care, laws 1 Michael L. Perlin, “Life Is in Mirrors, Death Disappears”: Giving Life to Atkins, 33 N.M. L. REV. 315, 315 (2003) [hereinafter Perlin, Mirrors]. 2 The Impact of the Mentally Ill on the Criminal Justice System: Hearing Before the House Judiciary Subcomm. on Crime, 106th Cong. (2000) (testimony of Congressman Ted Strickland). 3 ASSOC. PRESS, 4 Yates Jurors: Confession, Photos Key to Verdict, WASH. POST, Mar. 18, 2002, at A18, available at LEXIS, News Library, Wpost File [hereinafter AP, Yates Jurors]. As of the publication of this article, the Texas First Court of Appeals in Houston has overturned Andrea Yates’ conviction based on false testimony from a psychiatric expert for the prose- cution. Yates v. State, Nos. 01-02-00462-CR, 01-02-00463-CR, 2005 Tex. App. LEXIS 81 (Tex. App. Jan. 6, 2005). The fact of the verdict is relevant to this article, whether or not the conviction is eventually sustained on appeal. \\server05\productn\H\HHL\5-1\HHL101.txt unknown Seq: 3 4-MAY-05 12:06 RE-ARRANGING DECK CHAIRS ON THE TITANIC 3 concerning the criminal responsibility of the mentally ill cannot be considered fair. It is stating the obvious to say that the nation’s health care sys- tem is inadequate to meet the needs of people with mental illness. This threatens the health of both people with mental illness and people who may become victims of crime committed by the men- tally ill. It is, therefore, accurate to describe the current situation as a public health crisis. Doing so, however, raises the question of what public health is. The World Health Organization (“WHO”) defines “health” as “a state of complete physical, mental and social well- being and not merely the absence of disease or infirmity.”4 Building on the WHO definition, the Institute of Medicine defines public health as “what we, as a society, do collectively to assure the condi- tions for people to be healthy.”5 I contend that assigning full crimi- nal responsibility to people with diagnosable serious mental illness substantially impairs the public’s health. By not providing adequate mental health resources, we create conditions in which people with mental illness find themselves in situations where, due to their illness, they have the opportunity to commit criminal acts that are causally related to the impairment of their thought processes. Further, I contend that when people with mental illness are convicted of crimes and placed in ordinary pris- ons, the conditions under which they are confined constitute delib- erate indifference to their basic health care needs. I will further explain how the crowding, regimentation, and lack of mental health services in prisons all contribute to making prison an unsuitable place for the mentally ill. Third, I propose that by not addressing the issue of how to adjudicate mentally ill people who commit crimes, society itself is sick, because it is acting against normative standards of fairness in assessing responsibility and caring for the ill. Fourth, I argue that confinement in regular prisons is inappropriate—i.e., harmful—to people with mental illness and may well violate their Eighth Amendment right to be free of “cruel and unusual punish- ment.”6 Moreover, confinement without treatment is against soci- ety’s interest, because a large number of prisoners are eventually released and returned to society.7 Finally, I contend that the pres- 4 Constitution of the World Health Organization pmbl., opened for signature July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 185. 5 INST. OF MED., THE FUTURE OF PUBLIC HEALTH 19 (1988). 6 U.S. CONST. amend. VIII. 7 National Institute of Corrections, Data on Prison Populations (2004), at http://www.nicic. org/downloads/other/ocjtp_db_prisons.aspx (last visited Mar. 2, 2005) (on file with \\server05\productn\H\HHL\5-1\HHL101.txt unknown Seq: 4 4-MAY-05 12:06 4HOUS. J. HEALTH L. & POL’Y ence of so many people with mental illness in prison calls into ques- tion the ethical and moral basis for society’s assigning criminal responsibility to people with mental illness. In reviewing the reasons for the insanity defense, Professor Stephen Morse writes that “the moral basis of the insanity defense is that there is no just punishment without desert and no desert with- out responsibility.”8 He goes on to define responsibility as being “based on minimal cognitive and volitional competence.”9 “Thus,” he concludes, “an actor who lacks such competence is not responsi- ble, does not deserve punishment, and cannot justly be punished.”10 Recent changes in society, which have resulted in a lack of health care for people whose thought processes are impaired, only high- light what has always been true: There is a large, unexplored area between individuals who are fully responsible for their actions and those who bear no responsibility at all.