MALIGNANT CRIMINALIZATION: FROM HYPOTHESIS TO THEORY

To the Editor:

In the June issue of Psychiatric Services, Junginger and colleagues (1)
examined a "literal and popular interpretation of the criminalization
hypothesis" regarding overrepresentation of persons with mental illness in
jails and prisons. They found that substance abuse was "a significantly
more likely causal factor for criminal offending than serious mental
illness." We appreciate this thoughtful research and wonder about
unspecified drug-related offenses, such as positive urine toxicology and
simple drug possession, that may be included under "parole violations" and
"vice crimes" in Table 1 of the article. The numbers could be informative.

As the authors recognize, there are various interpretations of the
"criminalization hypothesis." A mental health systems perspective may see
"correctional placement" substituting for housing, supported employment, or
integrated treatment. From an expanded perspective, the sixfold increase in
the use of U.S. jails and prisons since the early 1970s makes this country
the world leader in per capita incarcerationwith rates five to ten times
those of comparable industrialized nations (2,3). It would be surprising if
this trend spared persons with mental illness and did not have a
disproportionate impact on those with co-occurring disorders.

Overutilization of the correctional system is driven by the drug war, with
American incarcerations for drug offenses exceeding incarcerations for all
offenses combined in the European Union, which has 100 million more people
than the United States (4). Incarcerations for nonviolent drug convictions
have risen faster than incarcerations for any other major crime category,
accounting for more than half of new prison sentences between 1985 and
2000. The drug war purportedly targets high-level suppliers, not vulnerable
self-medicating individuals, but data suggest otherwise. Cannabis accounts
for half of all drug arrests nationwide, with nearly 90 percent for simple
possession (4).

The President's New Freedom Commission on Mental Health encourages a broad
look at systems and views mental health needs partly in the context of a
health care system that leaves 45 million Americans uninsured. The
Commission champions integration, benchmarking, and best practices. Global
benchmarking distinguishes the United States not for its successful
management of substance use but as an extreme outlier in the use of
incarceration. Unmet mental health needs are shaped by a broader national
health care crisis, and criminal justice involvement by persons with mental
illness is embedded in a broader American criminalizing trajectory.

We theorize that criminalization has become malignant, with uncontrolled
growth depleting resources and consuming individuals, communities, and
service systems. This view poses research questions: What are the index
offenses, earliest offenses, and intervening records of mental health
consumers who receive criminal justice attention? How has drug law shaped
their course? Were the arrestees in the Junginger study adversely affected?
When in their offense career were they affected?

Our theory predicts that, absent major drug policy reform, mental health
transformation will be harder, costlier, less effective, and less
sustainable than the New Freedom vision entails. Psychiatric jail diversion
measures, while heroic, lack the scope to address broad policy parameters
that have criminalizing impacts that extend to persons with psychiatric
vulnerability.

Immediate intervention could address "low-hanging fruit." Conservative
estimates endorsed by 500 economists project savings from the
decriminalization of cannabis of $7.7 billion annually, or when taxed and
regulated up to $13.9 billion (5). The latter figure is half the budget of
the National Institutes of Health or the Veterans Affairs health care
system and triple the combined budgets of the Substance Abuse and Mental
Health Services Administration and the National Institute of Mental Health.
A broader paradigm shiftformer Baltimore Mayor Kurt Schmoke's "public
health war on drugs"could multiply that total fivefold, equaling all U.S.
mental health expenditures. The substantial health care reinvestment would
benefit everyone, including persons with mental illness and substance use
disorders.

Christopher G. Fichtner, M.D. and James L. Cavanaugh, Jr., M.D.

Footnotes
Dr. Fichtner is associate professor of clinical psychiatry at the
University of Chicago. Dr. Cavanaugh is chairman of the board and president
of the Isaac Ray Center and professor of psychiatry and director of the
Section on Psychiatry and the Law at Rush University College of Medicine,
Chicago.

References

(1) Junginger J, Claypoole K, Laygo R, et al: Effects of serious mental
illness and substance abuse on criminal offenses. Psychiatric Services
57:879882,2006

(2) Harrison PM, Beck AJ: Prison and Jail Inmates at Midyear 2005.
Washington, DC, US Department of Justice, Bureau of Justice Statistics, May
2006. Available at http://www.ojp.usdoj.gov/bjs/abstract/pjim05.htm

(3) Mauer M: Race to Incarcerate: The Sentencing Project (revised and
updated ed). New York, New Press, 2006

(4) Kane JL: Policy is not a synonym for justice, in The New Prohibition:
Voices of Dissent Challenge the Drug War. Edited by Masters B. St Louis,
Accurate Press, 2004

(5) Miron JA: The Budgetary Implications of Marijuana Prohibition.
Washington, DC, Marijuana Policy Project, Jun 2005. Available at
http://www.prohibitioncosts.org.