Disability Law Commons^™

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

Committed To Commitment: The Problem With Washington State’S Involuntary Treatment Act, Hannah Garland

Washington Law Review

Washington State utilizes the Involuntary Treatment Act (ITA) to civilly commit individuals experiencing behavioral health crises. Although civil commitment involves stripping away fundamental rights, it receives less attention than criminal incarceration. The ITA is meant to protect not just the general community, but also the rights of people with behavioral health disorders who utilize the ITA system. Yet, its implementation tells a different story. Individuals in King County are detained and committed repeatedly, without receiving consistent care. Furthermore, the ITA disproportionately impacts unhoused individuals and Black individuals. As the ITA continues to grow both in utilization and expense, other community-based …

Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt

Faculty Scholarship

There is significant overlap between the group of people who experience trauma, including domestic or intimate partner violence, and those who are hospitalized for severe mental illness. In recent years there has been a growing awareness in the mental health treatment community of the prevalence of trauma among individuals with behavioral health problems. Despite the strong evidence of elevated rates of exposure to domestic or intimate partner violence among individuals experiencing mental illness (including depression, anxiety, and posttraumatic stress disorder), mental health professionals often do not effectively address this co-occurring factor in assessing and treating their clients or patients. The …

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

The Deliberate Indifference Standard: A Broken Promise To Protect And Serve The Mentally Ill, Katherine R. Carroll

Touro Law Review

No abstract provided.

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, …

The Victimization Of The Misconceived: The Mentally Ill In The Criminal Justice System, Margarita Trejo

Themis: Research Journal of Justice Studies and Forensic Science

It is unfortunate to say that the number of people who suffer from a serious mental illness has been drastically increasing in the criminal justice system since the late 1960s. This drastic change has captivated the minds of the public, forced them to develop a fallacious stereotype, and labeled the mentally ill population as wrongdoers. This image, however, is inaccurate. In reality, these people are the victims of a broken system. This paper establishes the victimization that a person with a serious mental illness experiences as they are processed through the criminal justice system. The following elaborates how victimization is …

Higher Education Institutions' Treatment Of Students Deemed A "Direct Threat" To Themselves And The Ada, Dana Martin

Northwestern Journal of Law & Social Policy

As the rates of mental illness among college students continues to rise, colleges and universities are faced with new challenges in appropriately accommodating their students who struggle with these conditions. Unfortunately, misunderstanding and stigmatization of mental illness coupled with the fear of being the site of the next on-campus violent tragedy often leads schools to act adversely to the best interest of the student exhibiting at-risk behavior. This Note examines recent actions taken by schools against students demonstrating suicidal behavior in the context of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

Assumed Sane, Fatma Marouf

Scholarly Works

In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Mental Illness In The Library: Ten Tips To Better Serve Patrons, Nick Harrell, Cindy Guyer

Publications

No abstract provided.

I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson

Pepperdine Law Review

No abstract provided.

Childhood, Interrupted: Encouraging The De-Institutionalization Of Utah's State Hospital, Sara Montoya

Utah OnLaw: The Utah Law Review Online Supplement

While boasting a culture that is rich in family and community values, Utah ought to be leading the way in developing and implementing a comprehensive and efficient system of care that protects children and families by placing tools within the home and the community to strengthen these core units of Utah society. Further, with the Utah State Hospital at the end of its physical lifespan, and a crippled economy requiring more budget pinching than ever, the timing is particularly conducive to taking these crucial steps forward. With these litigation tools, an advocacy group or family might be able to successfully …

The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

Articles

The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …

Jamming The Revolving Door: Legislative Setbacks For Mental Health Court Systems In Virginia, Sheila Moheb

Law Student Publications

Part II of this comment will discuss the existing issues that effectuate the tension between the criminal justice system and mentally ill offenders, which provides important context to the debate surrounding the establishment of MHCs. Part III will examine the recent federal support for alternative approaches to handling mentally ill offenders and the different operational tactics implemented by existing MHC programs. Finally, Part IV will study the launch of Virginia’s first MHC in Norfolk, while exploring the latest legislative defeat in Virginia, Senate Bill 158 of the 2010 General Assembly, which sought to establish MHCs statewide.

The Criminalization Of Mental Illness: How Theoretical Failures Create Real Problems In The Criminal Justice System, Georgia L. Sims

Vanderbilt Law Review

When Andrea Yates drowned her five children, she believed she was preventing Satan from infiltrating their souls. Rusty Yates blamed both the mental health system and the criminal justice system for his wife's actions and also for her initial conviction. Andrea Yates suffered from post-partum depression and psychosis; had attempted suicide twice; had been hospitalized on several occasions for psychiatric treatment; and was found not guilty by reason of insanity in her 2006 retrial.' Although Yates likely will spend the rest of her life in a mental institution, she will receive mental health treatment throughout her time at the facility. …

One Step Closer To Mental Health Parity, Lorraine Schmall

Nevada Law Journal

No abstract provided.

Tolling For The Luckless, The Abandoned And Forsaked: Community Safety, Therapeutic Jurisprudence And International Human Rights Law As Applied To Prisoners And Detainees, Michael L. Perlin, Astrid Birgden

Articles & Chapters

There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing theextent to which the legal system serves therapeutic or anti therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. Human rights are based on legal, social, and moral rules. The paper will propose that human rights principles can add to the normative base of therapeutic jurisprudence, and in turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights. As duty bearers, forensic …

Application Of The Insanity Defense To Postpartum Disorder-Driven Infanticide In The United States: A Look Toward The Enactment Of An Infanticide Act, April J. Walker

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Bates And Olmstead: Court-Initiated Strategies To Implement Community Inclusion Of Persons With Psychiatric And Other Long-Term Disabilities, Theresa A. Laurie

Maine Policy Review

In this commentary, Theresa Laurie discusses the impact of the Bates and Olmstead court decisions regarding the rights of the disabled, and their applicability to people with psychiatric and other long-term disabilities. She notes that Maine will have to make policy adjustments in order to redefine program objectives based on these court decisions.

Crazy (Mental Illness Under The Ada), Jane Byeff Korn

University of Michigan Journal of Law Reform

This Article examines how people with mental disabilities and mental illnesses have been treated under the Americans with Disabilities Act. Part I addresses the history of mental illness. It argues that while beliefs about the causes and content of mental illness have vacillated over time, the mentally ill have received consistently poor treatment throughout human history. Part II addresses present problems with the definition of mental illness, including how mental illness and mental disability are defined under the Americans with Disabilities Act.

Part III discusses the problems faced by people with mental illness today. The author argues the current state …

Giving A Voice To The Silent Mentally Ill Client: An Empirical Study Of The Role Of Counsel In The Civil Commitment Hearing, Donald H. Stone

All Faculty Scholarship

In the civil commitment arena, where a mentally ill person is allegedly a danger to the life or safety of themselves or of others and in need of in-patient care or treatment, there are two groups assigned to protect the people: one, the hospital presenter, who is responsible for investigating and presenting evidence and testimony at a hearing to secure admission to a psychiatric facility as an involuntary patient, the other, the lawyer, who represents and defends the allegedly mentally ill person from such involuntary civil commitment confinement. These are their stories.

The attorney representing a mentally ill client at …

Eradicating Discrimination Among Individuals With Disabilities: Parity In Employer-Provided, Long-Term Disability Benefit Plans, Andrea K. Short

Washington and Lee Law Review

No abstract provided.

Constitutional Protection For Conversations Between Therapists And Clients, Paul E. Salamanca

Law Faculty Scholarly Articles

People have long perceived a connection between mental and even physical illness and physical anguish. Yet, modern culture tends to view both types of illness from an increasingly medical perspective, seeking a genetic or environmental explanation. In most cases, this “medical model” is probably the best approach, even if it is imperfect. First, the purely medical explanation may be accurate. Second, even if it is not accurate, treating the symptoms of a disease with a spiritual source is probably easier than treating the source itself. Ultimately, however, we must take note that disease is often not the result of genetics …

Make Promises By The Hour: Sex, Drugs, The Ada, And Psychiatric Hospitalization, Michael L. Perlin

Articles & Chapters

No abstract provided.

Unpacking The Myths: The Symbolism Mythology Of Insanity Defense Jurisprudence, Michael L. Perlin

Articles & Chapters

The insanity defense has been the subject of great controversy. A review of the jurisprudential debate, infamous cases, judicial and legislative decision-making, media coverage, as well as public attitudes, when read in light of scientific and empirical research, reveals a gaping disparity between what we know and how we think about the mentally ill and the insanity defense. The Author argues that this disparity is the result of several operational myths about the mentally ill and the insanity defense. In this Article, the Author focuses on the role of psychiatry, psychology, and mental illness in the law, specifically addressing how …