THE COLLEGES OF LAW BLOG

Mental health justice in the criminal justice system

Adjunct faculty member Robert Sanger, Esq., believes that legal professionals should be trained to react to people with mental health issues with more understanding. This would have positive effects on many levels including the use of treatment modalities rather than incarceration. People should not be prosecuted and locked up simply “because you’ve got nothing else to do with them.” Find out how his own experience in the legal field made him reach this decision.


President Donald Trump has reportedly commented that “prison should not be a substitute for treatment” and declared that his administration would combat mental illness. No matter which side of the political aisle you’re on, it’s difficult to dispute the growing number of people with mental health conditions who have been forced to enter the prison system instead of getting proper counseling and treatment.

According to the National Alliance on Mental Illness, one in five people in jails and prisons in the United States live with a mental illness. About 70 percent of youth in the juvenile justice system also have a mental health condition. And Robert Sanger, Esq., adjunct faculty at the Colleges of Law, has strong opinions about this trend.

“Santa Barbara is a small community,” says Sanger, who has been a private defense lawyer in the criminal justice system for approximately 43 years. “Out of about a thousand people in the jail for the county, the commander told me there are 36 people who should not be there. He felt that they should be treated either in a mental health facility or treated through mental health services on an outpatient basis. Thirty-six people who are taking up 36 beds, and they shouldn’t be there! And he was a high-ranking sheriff’s officer. Oddly enough, that wasn’t shocking to me. What was interesting is he actually quantified it and gave us an actual number of the people that he thought should not be there at all.”

Jobs instead of jails

Sanger also believes that the criminal justice system may be unfairly imprisoning those who would be better treated within a more productive atmosphere.

“Systemically, think about mass incarceration and how stupid it is, how bad it’s gotten,” Sanger says. “Think about an individual. If we send him to prison, he comes out worse. Everybody is resentful. His family’s not happy. He’s going to be unemployable. It’s going to make the world worse. If we can get him into continuous treatment and give him probation and let him work, he will be a productive member of society and he’s not as likely to reoffend.”

The Red Hook Community Justice Center based out of Brooklyn, New York, is one of many examples where “taking low-level crime seriously can help to deter more serious criminal behavior.” The Center focuses on offenders with misdemeanors, summons for non-traffic violations, and juvenile delinquency cases that originate in Red Hook and various surrounding cities. Classes taught in the course include anger management, life skills, and conflict resolution. From this program alone, 20 percent of juveniles were less likely to be rearrested within the next two years compared to their counterparts who weren’t in the program. The program is also tax efficient for taxpayers and reduced local arrests.

Even a massive metropolis such as New York City has managed to cut its prison population in half (less than 10,000 for the first time in two decades) by creating programs to reduce recidivism and taking a firmer stance against overcrowding. This is noteworthy in the criminal justice system.

Needed mental health education in the criminal justice system

In order for the criminal justice system and mental health education to work together effectively, Sanger says that training must happen from all parties involved.

“For instance, if police officers see a person acting out as dangerous or a ‘bad guy’, they will react with potential force,” he says. “However, if they identify that this person might suffer from a disability, they might take that into account. In addition, if a person is judged simply by conventional behavioral expectations, particular behaviors might be taken to indicate a lack of personage. Unusual behaviors may be treated as forfeiting the right to be different and still be respected for individual qualities. Like other stereotypes, an insensitive view of people who are different may result in missed opportunities to treat the subject as an individual either because of or in spite of their disabilities.”

One of the most common and problematic stereotypes is sanism. Intersectionalities: A Global Journal of Social Work Analysis, Research, Polity, and Practice describes sanism as “an oppression. It makes normal the practice of discrimination, rejection, silencing, exclusion, low expectations, incarceration, and other forms of violence against people who are othered through mental ‘illness’ diagnosis, history, or even suspicion.”

“Sanism, like racism, can be dealt with through education and awareness,” Sanger says. “In criminal defense, we attempt to educate defense lawyers to be sensitive to the individual. Don’t ignore potential cognitive or behavioral impairments nor allow them to define the person to the exclusion of appreciating their individual personalities. There are efforts made by probation officers, social workers and, recently, police agencies to understand these same issues as well. It will take a lot more education and public awareness to support it.”

Sanism can even affect the group homes that are supposed to help younger offenders. Sanger points out how some group homes will use the police as a go-to for even the most minor offense as opposed to other group homes that will encourage their staff to resolve behavioral issues on a case-by-case basis.

“People with mental health issues are not necessarily more prone to be violent, but they also may decompensate and become uncooperative,” Sanger says. “There are many situations that can be handled through patience and short- and long-term strategies rather than dealing with them abruptly. Handling instances abruptly can often escalate behavior. Even if calling the police is not the immediate response, escalation can lead to a situation where that seems to be the only response. Technically, unconsented touching can be a battery. Also, the possession of anything that looks blunt and heavy or sharp, for instance, can elevate an attempted battery to an assault with a deadly weapon. A swing and a miss, or something perceived to be a swing, could be interpreted as an assault with intention to commit great bodily harm, another felony.

“The further problem is that, even if the person is clearly acting out and not really a felon, once the police are called, they may feel compelled to arrest the person on a felony. Resisting arrest can be charged as a felony in California, PC 69. Many jurisdictions have overcrowded jails and are not able to accept people charged with misdemeanors into custody. They cite and release them. Civil laws prohibit evicting a resident of any home without process and at least 30 days’ notice. Therefore, if the police want to keep someone in custody until they calm down—often to get back on their meds—they do a ‘mercy booking’ on a felony.”

Instead of the “mercy booking,” Sanger recommends that legal professionals use all possible resources before making a decision that could have a lasting impact on someone with a mental illness for years to come. And in the case of punishment for adults, not properly identifying mental health issues can be a life or death situation, specifically for those who have an intellectual disability (formerly mental retardation).

“One well-known example of that is Atkins v. Virginia, in which the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment,” Sanger says. “Too many times, people have not been properly evaluated because their lawyers never thought to do so—even though their clients should not be eligible for execution. Other times, manipulation of the system by prosecution ‘experts’ has resulted in false denials of Atkins relief. In the recent case of Moore v. Texas, the conservative Chief Justice and the U.S. Supreme Court agreed that the completely unscientific ‘Briseno factors’ (used to decide whether a person has a mental illness or not) were not a proper basis for finding someone who otherwise would be found intellectually disabled to be executed.”

When psychology meets law

“A real mutual understanding of law and psychology is something both lawyers and psychologists should attempt to cultivate both in graduate studies and in professional life,” Sanger says. “I was fortunate to be able to take a class at the Neuropsychiatric Institute at UCLA Medical School while I was a law student at the UCLA School of Law in 1972. I have carried that training with me through my career and hopefully built upon that early learning. I think that collaboration between law and psychology to promote understanding—not to promote adversarial prowess—will benefit both professions and, ultimately, justice.”