Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Reducing Mass Incarceration: One Missing Piece In Our Ongoing Deficit Debates
Bernard E. Harcourt
In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions in question were asylums, but the numbers were staggeringly large, in fact comparable to today’s level of mass incarceration in prisons. President Kennedy’s message to Congress was powerfully simple:
If we launch a broad new mental health program now, it will be possible within a decade or two to reduce the number of patients now under custodial care by 50 percent or more. Many more mentally ill can be helped to remain in their homes without hardship to themselves or their families. Those who are hospitalized can be helped to return to their own communities... Central to a new mental health program is comprehensive community care. Merely pouring Federal funds into a continuation of the outmoded type of institutional care which now prevails would make little difference.
President Kennedy’s aspiration of a 50 percent drop underestimated the massive deinstitutionalization that followed. It was the result, to be sure, of a larger set of societal changes, including the reorganization of the psychiatric profession, new medications, shifting views on mental illness, the aftershock of World War II, changing state policies, and fiscal crises—not just ambitious federal intervention.
But even though the historical record is complex, one simple fact remains: This country has deinstitutionalized before. As we think about mass incarceration today and how to reduce our prison populations and our national budget deficits, it would be useful to draw insights from that experience. It is especially timely because of the ongoing national debate over the fiscal budget and the need to find areas to cut government spending.
What then can we learn from deinstitutionalization in the 1960s that could help us decarcerate in a successful manner? The place to begin is with the three factors that most influenced deinstitutionalization: first, the development of federal social welfare programs (such as Medicaid and Medicare) that created financial incentives for states to channel care for the mentally ill from state mental hospitals to community-based outpatient facilities; second, the development and use of psychiatric medicines as treatment for even severe mental illness that not only allowed patients to live on their own, but transformed the way we thought about mental illness; and third, the increased understanding and sympathy for persons with mental illness resulting from changed perceptions catalyzed in part by World War II, impact litigation, and critical attention to the plight of patients in documentaries and films like Titicut Follies and One Flew Over the Cuckoo’s Nest. I trace the historical background of these developments in greater detail in a draft I posted on SSRN.
These factors suggest several avenues for change today. First, federal leadership should be encouraged to create funding incentives for diversionary and reentry programs and other ways of reintegrating offenders (or avoiding incarceration from the outset) that would give states a financial motive to move prisoners out of the penitentiary and into community-based facilities and programs. The key here is to give states an economic and fiscal incentive to move convicts out of state prisons and into non-custodial programs on the model of Medicaid reimbursement for outpatient community mental health treatment.
The immediate reaction, naturally, is that President Obama is already having enough difficulties with his newly proposed federal budget and that this would only make matters worse. But that ignores the fact that these prison costs are being born by the states today, and they too have mounting deficits. Reducing prison incarceration and replacing with non-custodial programs would reduce the overall costs. Federal leadership in this area would involve a smarter reallocation and redistribution of costs, which, on a well thought-out basis, would reduce, not increase, the overall aggregated national budget associated with corrections.
Second, regarding the use of prescribed medications, there is a real need for improved psychiatric care and treatment of prison inmates. The proportion of prisoners with mental health difficulties far exceeds the professional and institutional capacities of departments of correction in most states. More than 60 percent of inmates across the country report mental health problems within the past year; only a small fraction get help. Providing better mental health treatment in corrections is an absolute must.
In addition, the increased use of prescribed medications for aggressive behavior, on a voluntary basis, to address problems of conduct disorder will in many cases be an appropriate alternative to incarceration. Diversionary programs modeled on outpatient mental health clinics and involving the administration of prescribed medications already exist, especially for youth, and could be developed further and expanded.
Two other ideas in the same vein. The increased use of GPS monitoring and other biometric monitoring could serve as substitutes to incarceration as well. Electronic bracelets, telephone monitoring, and other forms of home supervision are an attractive alternative for certain types of offenders. Moreover, a move toward the legalization or medicalization of lesser controlled substances would also have a direct impact on reducing our prison populations, not only because of decriminalization but also by eliminating the drug trade and its attendant violence.
Third, high-profile impact litigation regarding prison conditions, the paucity of mental health treatment, and prison overcrowding, as well as documentaries of prison life along the lines of Frederick Wiseman’s 1967 film, Titicut Follies, should form part of a larger strategy to shift the public perception of those persons incarcerated. Increased public awareness of the reality of prison life would contribute to greater willingness to support federal policies aimed at helping reduce our prison populations. In the words of Justice Sonia Sotomayor at the oral argument on the California prison overcrowding case, “When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you're going to deliver care that is going to be adequate?”
All of these approaches may well involve Faustian bargains, and the dangers associated with each are apparent. 1960s deinstitutionalization had its own dark sides, including the increased racial imbalance of the mental hospital population as the asylums were being emptied, as well as the problem of transinstitutionalization. Some solutions, such as the use of risk assessment, may actually worsen the problems of race. It would be absolutely crucial, in any effort to reduce mass incarceration, to avoid both the further racialization of the prison population and the transinstitutionalization of prisoners into other equally problematic institutions, such as homeless shelters or the kind of large mental institutions depicted, precisely, in documentaries like Titicut Follies.
President Kennedy's call for action to deinstitutionalize mental health patients was a milestone in our history. Would it ever be possible to hear a President of the United States say something similar about mass incarceration today? I do not know the answer to this question, but am certain that it will not be possible to make much headway in reducing mass incarceration without the kind of political investment and will that President John F. Kennedy expressed in 1963. Posted
by Bernard E. Harcourt [link]