Abstract

Excerpted From: Corinna Barrett Lain, The Road to Hell Is Paved with Good Intentions: Deinstitutionalization and Mass Incarceration Nation, 65 William and Mary Law Review 893 (March, 2024) (299 Footnotes) (Full Document)

Jeffrey Bellin's Mass Incarceration Nation makes an important contribution to the current conversation about mass incarceration and the harms of the carceral state. Bellin offers a fresh, nuanced take on the issue, drawing from his experience as a former prosecutor and engaging readers with witty prose that drives his points home. “'Lock them up’ is not just an applause line at political campaign rallies,” he writes in one of my favorite passages, “[i]t has become our country's unofficial motto.”

The core of Bellin's contribution is a recognition that mass incarceration is the result of two distinct forces--one vertical, one horizontal. The vertical force is the increase in sentencing severity; over time, those who violated the criminal law faced increasingly steep sentences for the same criminal conduct. ut equally, if not more impactful is what Bellin calls the “horizontal expansion of the criminal law's footprint.” Bellin shows (quite persuasively, I might add) that starting in the 1970s, the crimes for which people were incarcerated expanded beyond the most serious offenses--murder, rape, robbery, and the like--to include prohibitions that served other, more policy-based goals. “Criminal laws had become, at best, a policy tool that politicians used to discourage behaviors, like drug use or drunk driving or possessing weapons,” Bellin writes. “At worst,” he adds, “these laws were toxic vectors for bias and discrimination.” If only we could get back to where we once were.

Bellin tells the story of an incarceration rate in the early 1970s that was low and unremarkable, followed by a temporary spike in crime. This spike, Bellin explains, created a punitivism that far outsized the crime problem itself and made the criminal law the lever that politicians pulled to solve society's most vexing problems. And all this is true.

But separate and apart from these events was another set of events in the 1970s--a series of developments outside the criminal law that fed people into the criminal legal system--and it complicates the story that Mass Incarceration Nation tells. Bellin is right that politicians turned to the criminal law in the 1970s to solve society's most vexing problems. But the developments I have in mind foisted onto the criminal legal system a vexing problem that politicians never intended our jails and prisons to solve: what to do with people suffering from severe mental illness.

By “severe mental illness,” I mean a clinically recognized severe mental illness according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The DSM-5 is the gold standard for defining mental disorders, and it defines severe mental illness as a “clinically significant disturbance ... in the psychological, biological, or developmental processes underlying mental functioning” that results in a “comparatively severe impairment” that is persistent over time. The list of disorders recognized as severe mental illnesses in the DSM-5 includes schizophrenia, psychotic disorders, bipolar disorder, and major depression. By definition, these are people whose mental illness severely impairs their ability to be functioning members of society. In 2021, this cohort was estimated to be 5.5 percent of the adult population in the United States--just over 14 million people.

This symposium contribution offers an addendum--a “yes, and” with a “yes, but”--to the tale that Mass Incarceration Nation tells. I agree that incarceration in this country ballooned in the 1970s because we added to the vertical and horizontal footprint of the law. But I argue that incarceration in this country also swelled because we deinstitutionalized people with severe mental illness and then did not fund the community services that were supposed to serve this fragile population, resulting in their re-institutionalization through the criminal justice system.

To be clear, my claim is not that deinstitutionalization itself was bad, or that the plight of those who suffer from severe mental illness is the only reason (or even the main reason) for the soaring incarceration rates of the 1970s. My claim is that our failure to care for this underserved population played its own role in our mass incarceration crisis, feeding not only our jails and prisons but also fears about crime and the punitivism that came with it. In short, the story of mass incarceration is not just a story about what we did with the criminal law in the 1970s. It is also a story about what we did not do elsewhere and what happened as a result.

All this is to say that I largely agree with Bellin's account, and applaud it. We have been talking about mass incarceration for over a decade, and no one has made the contribution he has; no one has looked at the problem through such a nuanced lens. I would simply offer that we can, and should, nuance the discussion even further by recognizing that our failure to serve the needs of those who suffer from severe mental illness has itself contributed to mass incarceration in important and underappreciated ways.

To make my point, Part I begins with a brief history of deinstitutionalization, explaining what was driving it, when it happened, and how it worked. Part II details what happened next: large segments of the severely mentally ill population ended up on the streets, and from there, in our nation's jails and prisons, which today stand as the largest in-patient facilities for severely mentally ill people in virtually every state. Part III comes back into conversation with Mass Incarceration Nation, explaining how the account I offer adds to some of the points that Bellin makes while complicating others. In the end, mass incarceration and our mental health crisis are interconnected problems with an interconnected past. Only by recognizing them as such can we move to a more just, humane, and equitable future.

[. . .]

It has been said that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization is Exhibit A for that proposition being true. Bellin looks to the past to fix the future, and I agree that we should. Acknowledging our past--what we did and did not do, and how that turned out--is key to understanding the proper path forward. In this symposium contribution, I have endeavored to show that mental health and mass incarceration are not separate crises, but rather interconnected problems with an interconnected past that require an interconnected solution. Recognizing them as such is the best chance we have at moving toward a more just, humane, and equitable future--a future that takes the “mass” out of mass incarceration.

S.D. Roberts and Sandra Moore Professor of Law, University of Richmond School of Law.