dissertation, Uncategorized

The criminal justice system doesn’t effectively deal with criminals with mental health issues.

Advanced Higher Modern Studies Dissertation

Iona Lily Nicol

Total word count: 4,634

Introduction

In the UK it has been reported by the Ministry of Justice that 49% of female inmates and 23% of male inmates were diagnosed as suffering from anxiety and depression[1]. Moreover, 46% of female inmates and 21% of male inmates have reportedly attempted suicide at some point in their lives[2]. Therefore, the continuous argument premising the effectiveness of the Criminal Justice System in regards to dealing with offenders with mental health issues permeates through into society.

This inability has been noticed and discussed by many; Nick Cohen, for example, claiming that “The NHS can’t cope with societies mentally ill, so the crisis is hidden behind bars[3].” Indeed, there is a crisis behind bars. The lack of rehabilitation schemes within prisons means that mental health issues often go untreated, despite the fact that the NHS is now fully responsible for prison health care in England and Wales[4]. This leads to offenders with mental health problems, such as bipolar disorder, to be at a much higher risk of reoffending; often with a much more dangerous crime. A study by Fazel discovered that 42% of male prisoners were diagnosed with at least one psychiatric disorder before their initial release from incarceration[5]. A further 25% were then convicted of violent crimes in the average 3.2-year follow-up of their first release[6].

To ascertain whether the Criminal Justice System does or does not effectively deal with criminals with mental health problems, certain areas and issues must first be identified. Aim one will examine and determine whether there is a clear link between mental health and criminal behaviour in order to allow a full and comprehensive conclusion to be brought about the main hypothesis and to provide crucial context to my following aims. Aim two will follow on from the information provided in aim one to examine how criminals with mental health issues are dealt with in terms of sentencing, and also if there are alternatives in place of prison. My final aim will explore how prisons deal with and treat those with mental health problems behind bars, therefore enabling me to reach a full conclusion to my hypothesis of the criminal justice system not effectively dealing with criminals with mental health issues.

Aim One- I aim to find out if there is a link between mental health and criminal behaviour.

 

“The link between mental illness and crime is well known.”- General Synod, 13 Feb 2008.[7]

The idea that there is a link between violence and mental health is widespread, and further popularised by pop-culture and the media, often with narratives resting on, the more often than not, heinous criminal activities of those of the “mentally unstable”[8]. Over 70% of those asked in a survey I conducted believed that those with mental illnesses were likely to commit violent crimes such as murder and rape; with one participant stating, “I think sometimes people with mental health issues can act irrationally and out of character, often causing them to have outbursts of a strong emotion, which could lead to illegal activities..[9]” However, this issue is majorly complex and deserves an in-depth answer in order to explain why and how the two are associated.

Mental health problems can affect anyone, particularly those who have experienced significant trauma at a young age. Maltreatment repeatedly causes harmful long-term consequences, often in the form of mental health problems[10]. Most of those who experience child abuse will live a life of profound difficulties. When the neglect begins- many are abused physically, mentally or have inadequate parents and some may be removed into care at a young age. This can possibly then lead to the children being poorly educated. This then prompts them to face difficulties in adult life such as finding housing and work. Many of these children develop the likes of Post Traumatic Stress Disorder, depression and anxiety, and this has been expressed through a plethora of studies such as the one exampled in Healthland. Of 200 participants aged 18 to 25, of which most were middle class and well-educated, 53% had suffered depression and 40% had either full or partial PTSD due to either mild or serious childhood neglect.[11]. Moreover, approximately 80% of 21-year olds who were abused or neglected as a child met criteria for at least one psychological disorder[12]; making easy tasks such as forming meaningful relationships with others difficult, and more often than not, led them to become involved in substance abuse. Additionally, childhood neglect has been repeatedly proven to be the aggressor behind young people’s crimes. Indeed, children who have experienced neglect or abuse are 59% more likely to be arrested as a juvenile, 30% more likely to commit violence and 28% more likely to be arrested as an adult[13]. Thus, revealing a perspicuous link between mental health and crime.

Yet despite a link between crime and childhood neglect, an analysis of 500 homicide cases in England and Wales in the mid-1990’s found that over two-fifths of offenders had a record of mental health issues at some point during their lifetime without having faced childhood neglect. Some 14% had symptoms of mental illness at the time of their offence; a further 8% had contact with mental health services within a year of their offence.[14]

Turning the common sense assumption on its head, Jill Peay asks ‘Does crime cause mental disorder?’ She suggests that there is evidence to show that those who are mentally disordered are more likely to be victims of crime than the perpetrators, and are more likely to be vulnerable and easily manipulated. She details a survey overseen by Mind (a mental health charity), which reports that 70% of those with mental health problems have reported being victimised within the past two years[15]. For instance, a recent report details the sickening case in which a severely mentally disabled boy was kidnapped, beaten and held captive by 4 teenagers, who then live streamed themselves attacking the man in January of 2017[16].

Peay further suggests that although crime can be provoked by mental health illnesses, the number of offenders who commit crime due to their mental illness is only a tiny proportion compared to those who are mentally well. As illustrated in the British Crime Survey in 2007, 22% of 304 respondents with mental health issues, reported having been physically assaulted, compared with fewer than 4% reporting violence, with or without physical injury.[17] Similarly, although only a small qualitative study of the experiences of 25 people with schizophrenia, the work of Tony Colombo gives critical insight into the experience of victimisation. Almost two-thirds of his respondents reported being victimised seriously during the previous year. Furthermore, these incidents of victimisation included both physical and sexual assaults, together with more routine verbal threats and general bullying. Nine of the aggressors were further identified as ‘friends’ or relatives, with only 4 of the sample 25 incidents being attributed to a total stranger. In turn, these incidents led to extremely negative consequences, including depression, alienation, and most notably, aggression. The consequence of the perpetrator often holding an ongoing relationship with the victim increases the probability of the perpetuation of such incidents.[18]

It is evidently clear that a correlation exists between mental health and criminal behaviour. However, the common sense assumption has been turned on its head. While those who commit crime due to their mental illness exist, the number of those people is minute compared to those who are mentally well. Moreover, the case of mental health and crime is such that, the crime is more likely to be against the mentally ill individual, rather than the mentally ill individual being the perpetrator.

 

 

 

 Aim 2- I aim to find out how criminals with mental illnesses are dealt with when it comes to sentencing and if there are effective alternatives to prison.

 

When it comes to sentencing those who commit due to poor mental health, the question of whether they should be sentenced to rehabilitation facilities or prison often permeates through into society. In England and Wales offenders are dealt with under two different courts; the Magistrates where a bench of magistrates will hear and decide on the punishment of minor crimes, and the Crown Court where more serious cases are dealt with using greater power in terms of sentencing. However, despite a large number of cases being dealt with by both courts, only a small sum of these cases will entail offenders with some sort of mental disorder[19].

Specific rules and general principles in England and Wales show that regarding mental health, where possible, offenders should be diverted from the judicial and penal systems and that those subject to criminal proceedings have the same rights to psychiatric assessment and treatment as other citizens. However, unless sufficient evidence is provided to the court, an offender will be treated as if they do not have mental health issues; such evidence should be presented in the previously mentioned psychiatric report[20]. Moreover, diversions can take place at different points during legal processes. The first point at which an offender may be diverted is when the decision is initially made to pursue a prosecution. There is then, at any stage during legal proceedings, the possibility of a remand to hospital for assessment or immediate treatment. Later, the court may decide to apply for a ‘hospital order’ to direct an offender to psychiatric treatment if the offender is deemed to be a danger to others. To do this, the magistrate must receive and view evidence from a minimum of two registered medical practitioners that the offender is suffering from a mental health issue, and be satisfied that a hospital order is an appropriate method of dealing with the case.[21] Therefore, this ensures that an offender cannot then attempt to void their sentencing by pleading mental instability, as many previously have.

The Crown Court holds great power in regards to sentencing. To begin, a judge will decide if someone is unfit to plead. This can be determined by the offender understanding court procedures after having them explained. If they do not, they may be determined as unfit to plead[22]. If the judge determined the offender fit to plead, the court will hold a ‘trial of facts’ in which the truth of the allegations against the defendant, as opposed to their innocence or guilt of committing a crime is determined. If they proceed with this, the court has three options; to order an ‘absolute discharge’; a ‘supervision order’; of a hospital order, with or without a restriction order attached[23]. All three are in place to ensure that the offender is provided with the rehabilitation and support they need, rather than being incarcerated with limited help.

Furthermore, the Criminal Procedure Act of 1964 and amendments to the Criminal Procedure Act 1991 allow the Crown Court to make provision for those who are unfit to plead or found not guilty by reason of insanity during the time of the offence[24]. The provisions allow an offender to be remanded for a report of their mental health condition. This provision, moreover, allows the court to make a hospital order on someone who has been found guilty of a crime that would normally be punishable by a prison sentence if evidence of mental disorder is found[25].  Although, the court still has the power to deal with an offender in whatever way they deem fit, indeed allowing the court to impose an appropriate ‘disposal[26]. However, other than what has already been described, there are few circumstances that allow mental health to be used as a defence.

Following criminal proceedings, it is then asked whether it is appropriate for mentally ill offenders to be housed in prisons or alternative treatment facilities; a question that is severely complex and continuous. The role played by psychiatric and hospital reports in determining this is incredibly important. Mentally ill offenders simply cannot be marginalised into one group as the severity of their illness may vary from each person. Therefore, this means it is incredibly difficult for Courts and the Criminal Justice System to determine how and when an offender should be sentenced, “The law operates on the premise that if an individual were to intentionally harm another person, then that should be punished using a just deserts model of retribution[27].”

Additionally, they are to be segregated from the rest of society in order to protect its citizens from harm. Hence, the law functions based on such factors as the protection of society, retribution, rehabilitation, deterrence, and reparation. Punishment for severe and violent crimes such as rape and murder, therefore call for offenders to be housed in high-security prisons and must be incarcerated for a large amount of time. Although, these sentences are often a central cause of concern of Human Right Campaigners due to their lack of rehabilitation and deterrence in terms of recidivism and reparation.

Consequentially, for those in England and Wales, Grendon Prison was opened as a unique and revolutionary experimental psychological treatment facility for offenders whose mental health disorder did not qualify them for transfer to a secure hospital under the 1959 Mental Health Act. Grendon is known as a category B prison and can be depicted as a multi-functional establishment which accommodates three adult treatment wards which work together to provide therapeutic communities for those housed within the prison. It offers a highly structured form of rehabilitation and as explained by Professor David Wilson it is a “24-hour, seven-days-a-week, 52-weeks-a-year commitment to analysing your behaviour in the context of a prison to try and gain insight and understanding into why you ended up in that prison.[28]” The prison is considered unique as inmates volunteer to be transferred there, they have full control over the running of their daily lives, and they can be voted out of the community at any time by their peers. Furthermore, in terms of recidivism, it has been reported that those who stay at Grendon for more than 18 months only have a 20% chance of reoffending, compared with 50% of those serving time in conventional prisons[29].

After an inspection of the prison in 2009 by the then Chief Inspector of Prisons, Dame Anne Owers only reaffirmed Grendon’s remarkable achievements with working with some of the systems ‘most dangerous and deadly prisoners[30]’. Another report found that fewer staff and groups cancelled on a regular basis and residents spent less time in their cells than that of a conventional prison[31]. This shows that the rehabilitative method of incarceration is more fulfilling for both the staff and the inmates. However, despite the government’s claims of commitment to a ‘rehabilitation revolution’, funding for Grendon is continuously being cut[32]. Yet, regardless of the numerous cases of criminals benefitting from the therapeutic nature of the prison, it remains the only prison in Europe to operate wholly as a therapeutic community[33].

On the other hand, there are highly secure psychiatric hospitals that house criminals with severe mental illness such as bipolar disorder who have been convicted of committing crimes a serious as murder or are being assessed as being unfit to plead or stand trial in court; Broadmoor Hospital is an example of this. Housing only males, Broadmoor is well known in England for housing some of the most mentally ill and disturbed patients in its history. Most of Broadmoor’s patients suffer from severe mental illness; often having a severe personality disorder. However, the likes of Broadmoor are only suitable for those with severe mental illness and as mental illness within offenders varies, many will be sentenced to prison instead of a treatment facility[34].

To conclude, it is clear that there are very little care and rehabilitation given by the prison system. The lack of widespread rehabilitation programmes at the front end of the criminal justice system means that more people with mental health illnesses are entering prison than ever before. Roughly 50% will re-enter prison within three years of their initial release; often known as ‘recycling[35]’. This can often be attributed to the inadequate treatment and lack of community rehabilitation provided by prisons; highlighting the crucial and extremely inadequate running of the UK prison system.

 Aim 3- I aim to find out how prisons deal with offenders with mental health issues.

It is estimated that around 70% of prisoners in the UK suffer from two or more mental health conditions[36]. In fact, the Chief Inspector of Prisons estimated that in 2007 41% of those held in prison health care centres should have been housed in secure NHS accommodation[37]. Moreover, 49% of women and 23% of male prisoners in a Ministry of Justice study were assessed as suffering from depression and anxiety[38]. While this issue may go unnoticed by many, it is clear that the mental health of prisoners is a very significant stand alone issue for the criminal justice system.

A report published in 2009 by the Prison Reform Trust found that over 50% of the 41 prison boards revealed that they “frequently saw prisoners who were too ill to be in prison[39].” Moreover, they discussed that they have to use disproportionate resources in order to deal with those who suffer from mental health issues and subsequently cut funding to other areas such as education and training that allow prisoners to return to society with ease. Furthermore, mentally ill prisoners often arrive at prison without adequate information on their condition and their needs and thus do not receive the correct care. Therefore, it has been argued that prisoners with serious mental health conditions cause a disruption to normal prison life; leading some to question why such people are inmates rather than patients[40].

The answer is apparent in whether these illnesses are evident before sentencing, or as a result of incarceration. The Independent reported that the number of self-harm incidents in prison rose sharply in 2015 according to figures released by the Ministry of Justice. There were a total of 257 prisoner deaths compared with 153 in 2006; partly due to the steady increase of suicides as 89 of the deaths were self-inflicted[41].Moreover, a year pervious there were over 30,000 reported incidents of self-harm, up 24% from 2013[42]. Furthermore, it found that around 40% of prisoners who killed themselves in 2015 were on remand at the time of their deaths, despite the fact that people on remand only make up around 15% of the overall prison population at any one time[43]. Evidently, the stress and pressure of the justice process and transfer to prison has a pronounced and negative effect on the mental health of offenders; most notably within the first few months of being incarcerated. However, there are still clearly a small number of offenders whose mental health conditions begun prior to being imprisoned.

A report conducted by the Prison Ombudsman found that mental health services need severe improvement and that there was an extreme lack of appropriate training for prison staff and also a lack of high-quality mental health assessments[44]. It is crystal clear that the criminal justice and prison system is under severe pressure, thus failing to deliver high-quality support and health care. Resulting in why it may not come as a shock that the reoffending rate for those with mental health issues is sky high. With figures showing that almost 60% of prisoners on short term sentences re-offend within a year[45].

The government asked Lord Bradley to look into diverting people with mental health issues away from the criminal justice system. From his findings The Bradley Report was published in 2009[46]It presented a comprehensive plan to improve the treatment for offenders with mental health and learning difficulties, and subsequently reduce recidivism by ending the ‘revolving door’ to custody for mentally ill offenders; insisting that the government implement elements of the report immediately. In the report, many recommendations were given. Firstly, the Governments were to establish mental health and criminal justice teams to ensure the correct mental health support and services are available[47]. Secondly, it called for the reduction of time taken to process and produce psychiatric reports claiming that 14 days should be a maximum waiting time for courts on mental health[48]. It had heard that delays in producing such reports for the court lead vulnerable people to be jailed unnecessarily. Thirdly, it called for the restriction of the use of Anti-social Behavior Orders on people with mental health problems as mental illness can make it much more difficult to comply with ASBO’s[49]. The review refers to the Home Office evidence that 60% of those issued an ASBO had a mitigating factor such as mental distress or addiction. Lastly, and most importantly, it called for adequate community alternatives to prison for offenders with mental health conditions wherever appropriate[50]. Again, it provided evidence that 2000 prison places per year could be saved if a proportion of eligible, short term prisoners who committed offences while suffering mental health problems were given community sentences[51].

Since the report, the Government has taken a number of aspects into consideration and look particularly towards preventing those with mental health problems from even entering the criminal justice system. Early intervention and prevention has been argued to “start in the cradle” and thus, has been found to be considerably beneficial in preventing or mitigating severe behavioral and mental health problems among children at risk of later offending. Moreover, a significant and successful barrier has been lifted in allowing criminals to integrate back into society with ease; with a requirement for housing expertise in liaison and diversion services[52]. However, as highlighted by a report detailing the successes and failures of The Bradley Report, there are still many elements of the prison system to work on. For example, the report suggests that elements such as the development of an operation model for prison mental health care, and the assurance of efficient transfer to and from secure mental healthcare should be taken into further consideration[53].

Overall, it is evident that there is little to no programs or rehabilitation methods put in place in prison to deal with those with mental health disorders. Despite prison health care being in the hands of the NHS, it’s funding and expertise is severely lacking; there is much-needed room for improvement. Although the Bradley Report has been successful in implementing and improving some areas of prison care and rehabilitation, it is clear that it still lacks some consideration towards improving mental health care.

Conclusion

From the issues above, we can ascertain that the Criminal Justice System in the UK does not adequately deal with criminals who have mental health issues. The rates of mental health issues in prisons are continuously higher than that of the general population. In terms of the correlation between mental health and criminal behaviour, it was discussed in aim one that those with mental health illnesses are more likely to be the victims of crime; in most cases this is true. However, despite this, the percentage of prison inmates with at least one mental health issue is sky high, proving that the Prison System has done very little in terms of rehabilitating criminals.

Secondly, in regards to how criminals with mental health issues are sentenced and the possible alternatives to prison, it was found that very few alternatives exist; often only being for those with extreme conditions, thus meaning that most went to prison. Moreover, during criminal proceedings, while there is some leeway in allowing those with mental health to be sentenced accordingly, it is more often than not up to the court to ultimately decide the sentence and whether or not to issue a psychiatric report.

Although some effort is being made to change and increase rehabilitation schemes for those with mental health it was clear that prisons did very little in a bid to help those who were incarcerated with mental health issues, despite being run by the NHS. Despite this, however, there was still a lot of work to do and The Bradley Report in no way solved the issue of mental health in prisons.

Thus, in answering the initial question, the Criminal Justice System does not effectively deal with those with mental health issues. While we must accept that while there is room for improvement, it is not possible for the Criminal Justice System to be without faults, no matter how minor or major.

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