The criminal justice system, the mental health system, and the preventive state

Eric S. Janus


Eric S. Janus is Interim Dean and President, William Mitchell College of Law, St. Paul, MN. He received his J.D. cum laude from Harvard Law School in 1973, and his B.A. magna cum laude from Carleton College in 1968. His recent publications have focused on sex offender policy and the relationship of science and law. They include Failure to Protect: Amercan Sexual Predator Laws and the Rise of the Preventive State (Cornell University Press 2006). He served as co-counsel in extended litigation challenging the constitutionality of Minnesota’s Sexually Dangerous Person civil commitment law.


For years, the criminal justice system and the mental health system have functioned as roughly complementary partners in the state’s social control function. In a division of tasks with roots in formal law and informal practice, the criminal justice system has occupied the primary role for social control, while the mental health system serves as a secondary function, a “diversion” from the criminal justice system for individuals exhibiting antisocial behavior, who are “too sick to deserve punishment.” At its core, this division was accomplished through the formal doctrines defining incompetency and insanity, transferring control of individuals with serious mental impairments from the criminal justice to the mental health system. But informal practice, diversion often reached a broader group of impaired individuals, not formally “insane” or “incompetent,” but suffering from mental impairments that seemed clearly associated with their antisocial behavior. The division between the two systems has never been hermetic, and some individuals have, over time, been subjected to both systems sequentially. Still, historically, the two systems were in rough equilibrium. 

Beginning in the 1970s, the balance began to change. Abandoning the rehabilitation ideal, the criminal justice system moved to a more frankly punitive “just deserts” model, focused more on punishing and incapacitating, and less on addressing the root causes of criminal behavior. In part, the shift was manifested in the further cabining of an already crabbed notion that mental illness (like other individuating features) might be relevant to excusing or mitigating punishment. Mental illness came to be associated with increased violence and risk, and correctional systems developed highly repressive “super-max” prisons, many of whose denizens were mentally ill.

At the same time, the mental health system was itself undergoing important changes. Under the dual influences of newly developed pharmacological treatments for mental illness and the civil rights revolution, deinstitutionalization drastically reduced the populations of state mental hospitals. Unfortunately, community-based services for people with mental impairments did not grow apace, and many chronically mentally ill people were left without adequate services.

Perhaps in response to these developments, at least some of the responsibility for dealing with persons with chronic mental illness shifted to the criminal justice system. 

[E]xperts believe that the proportion of prison inmates with mental illness is increasing. Nineteen of thirty-one states responding to a 1998 survey reported disproportionate increase in their seriously mentally ill population during the previous five years . . . [and] there is a consensus in corrections that the numbers also reflect a real change in the rate at which the mentally ill are being sent to prison.” 

Citing the changes in the mental health system as causes, an article in Psychiatric Services in 1998 reported that the proportion of jail and prison inmates suffering from “severe mental illness” could be as high as fifteen percent, and that “a greater proportion of mentally ill persons are arrestedcompared with the general population.”

Over time, policymakers have tweaked the basic division of labor between the criminal and mental health systems. Various initiatives sought to loosen the criteria for civil commitment. Often, these initiatives were grounded in a parens patriae theory, making the argument that the civil rights/due process changes tightening civil commitment laws were cruelly allowing severely mentally ill people to “die with their rights on.” But often enough, the impetus for the change was a police power-public protection rationale, such as that underlying “Kendra’s Law” in New York.. Laws like Kendra’s law reflect a more explicit partnership between the criminal justice system and the mental health system. This partnership is also reflected in the advent of Mental Health Courts. These initiatives attempt to coordinate mental health services with a “problem solving” approach that heavily involves a judge-defendant relationship in an attempt to address mental health issues that underlie criminal behavior. These initiatives deploy the tools of mental health treatment and the coercive power of the criminal law interactively.

Beginning in the early 1990s, a separate but equally fundamental shift again displaced the boundaries separating the criminal and mental health paradigms for social control. If the first shift had the effect of criminalizing lots of what used to be considered the proper territory for the mental health system, this second shift worked in the opposite direction – recruiting the mental health mechanisms of law and psychiatry to control phenomena that were (and remain) squarely in the sphere of criminal law.  

This development began almost simultaneously in Minnesota and Washington State in 1989 with the publication of reports by two state task forces. Both groups recommended the use of civil commitment – known in Minnesota as the psychopathic personality statute - to retain control over sex offenders at the ends of their prison terms. The Minnesota Task Force put it like this: 


Even if statutory maximum sentences are imposed for sex offenders, there will come a time when they must be released from prison. The Task Force believes that there are a limited number of the most dangerous sex predators who should never be released to the community. The psychopathic personality statute is the only method currently available to maintain an indeterminate hold on a sex offender.

These so-called “sexually violent predator” (SVP) laws have now spread to nineteen states and the federal government. These nineteen states are currently holding roughly 2700 “sexually violent predators.” From this group, only around 250 have ever been fully discharged, and only around another 150 have been conditionally, or transitionally released. While Washington has civilly committed over 150 ‘sexually violent predators’ over roughly fifteen years, Washington has discharged only four individuals, and allowed only twelve to be conditionally released. In contrast, Minnesota has civilly committed nearly 350 “sexually violent predators” during the same time period without releasing a single individual.

SVP laws lock people up because of their “risk” of committing a crime in the future. They are a form of “preventive detention,” and thus appear, on the surface, to violate prime principles of American jurisprudenceAsJustice Jackson held in Williamson v. United States

Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.

Despite such misgivings, the constitutionality of SVP laws has been upheld, largely because these laws adopt the form of civil commitment laws, in which the deprivation of liberty is tied to mental disorder and dangerousness. The mental disorders common to sex offenders differ materially from those that are the traditional targets of civil commitment. Instead of targeting psychotic disorders that characterize incompetency, SVP laws target disorders that have as their defining essence antisocial behaviors. In short, SVP laws authorize the deprivation of liberty based on risk.


This is a fundamental conceptual shift. The criminal law bases its social control on guilt. Guilt is an individual characteristic, and is backward - looking. Risk, in contrast, is forward - looking and group- based. The consequences of this shift are profound. I end this short essay with a description of a few of the consequences:


·                     While guilt is a bi-modal quality (one is either guilty or not), risk is a continuous variable. All human beings pose some risk of bad behavior, and none (given the inherent unknowability of the future) possesses 100% risk. Thus, unlike guilt, risk offers no bright-line thresholds for social intervention.


·                     Social scientists are hard at work developing “actuarial” instruments for measuring the risk of sexual violence associated with various personal “profiles.”   With the increased availability of such tools, political pressure will increase to make full use of such data to protect the public. When tragedies occur (as they inevitably will), officials who ignored available risk-data will be held accountable. This dynamic will push our society more and more to reliance on “risk” as a basis for social control.


·                     Thus, we will see risk-based approaches spread. In the sex offender area, the spread is already robust, with widespread adoption by states of community notification regimes and, more recently, residential restrictions for sex offenders and electronic monitoring (GPS) requirements. Outside of the sexual violence area, we know that the federal government uses risk-based “scoring” methods to classify air travelers arriving from abroad. Pressure will grow to transfer the legal models and risk-assessment technology to other areas of social concern. Already in California, Governor Schwarzenegger is seeking to “treat gang leaders like high risk sex offenders.” In rhetoric echoing the early days of SVP laws, Schwarzenegger seeks to extend preventive technologies to the “worst of the worst” gang leaders.


·                     Switching from guilt to risk as the prime organizing principle for social intervention introduces confusing moral signals. Guilt is transparently a moral concept; through it, our society expresses its condemnation of antisocial behaviors. But risk is ostensibly a morally neutral term; risk purports to a natural quality, a “fact” about a person, rather than a moral judgment about a person.    Risk-based thinking is highly utilitarian, encouraging us to find what works to deal with the risk. In risk-based thinking, the moral message (this behavior is bad) tends to get lost.


·                     Risk- based interventions, by their own logic, need broad-based screening surveillance, to facilitate the early identification of individuals whose personality makeup carries the risk of future harm. Since risk is broader than, and may precede harmful action, the surveillance must sweep broadly if it is to capture significant risk.


·                     Influenced by risk-based thinking, public policy discussions naturally gravitate toward addressing the “most dangerous” or the “worst of the worst.” Two somewhat contradictory consequences flow from this frame. First, the risk-thresholds for inclusion in these categories drift downward. As policymakers discover the obvious fact that interventions aimed only at the “most dangerous” allow (by definition) substantial risk to be unaddressed, they naturally seek to include greater and greater bands of risk in the “most dangerous” label. Second, the focus on the “worst of the worst” throws the most common forms of risk into the shadows. This is because most of the sexual violence against women and children is committed by acquaintances and intimates - individuals who do not fall into the “worst of the worst” category. 


·                     Many of the risk-based interventions rely on strategies of exclusion – they are based on the notion that we can identify persons who are risky, and protect ourselves from them by locking them away, or prohibiting them from living near us, or somehow making their presence in our proximity obvious (through pink license plates or internet postings). These strategies go counter to current theories that inmates being released from prison, need to be successfully reintegrated into society.

Millard v. Harris, 406 F.2d 964, 969 (D.C. Cir. 1968). 

See David Lovell, Kristin CloyesCloys, David Allen & Lorna Rhodes, Who Lives in Super-maximum Custody? A Washington State Study, 64 Fed.. Probation 33, 35 (2000) (noting that a “disproportionate number of super-maximum custody prisoners have problems coping with prison due to mental illness, brain damage, or other factors; that needed treatment is not provided] in such settings; and that vulnerable inmates are further damaged by sensory deprivation and other disorientating features of the environment”).

See generally, John Q. LaFond, Mary L. Durham, Back to the asylum : the future of mental health law and policy in the United States (Oxford University Press 1992).

              Thanks to former student Josie S. Mines, whose work in the Scholarship for Equal Justice class several years ago expertly explored the plight of mentally ill prisoners in the criminal justice system.

Jamie Fellner, A Corrections Quandary: Mental Illness and Prison Rules,41 Harv. C.R.-C.L. L. Rev. 393 (2006).

H. Richard Lamb, M.D. & Linda E. Weinberger, Ph.D., Persons With Severe Mental Illness in Jails and Prisons: A Review, 49 Psychiatric Services 483, 483-92 (1998).

See Darold A. Treffert, Dying With Their Rights On, 130 Am. J. Psychiatric Rev. 1041 (1973).

See N.Y. Legis. 408 at § 2 (1999).

See Bruce J. Winnick & Susan Stefan, A Dialogue ongenerally America’s Law Enforcement and Mental Health Courts, 11 Psychol.Project Act, Pub. Pol’y & L. 507 (2005).No. 106-515, 114 Stat. 2399 (2000); see also Bureau of Justice Assistance, (last visited Sept. 3, 2007).

Attorney General Task Force on the Prevention of Violence Against Women, Final Report 22 (Feb. 15, 1989).

See Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times, Mar. 4, 2007, § 1, at 1.


184 F.2d 280, 283, 95 L. Ed. 1379 (2d2nd Cir. 1950) (Jackson, J., while sitting as Circuit Justice).

 Eric S. Janus, Sexually violent predator laws: psychiatry in service to a morally dubious enterprise, 364 THE LANCET s1 at 50 (2004).

   Eric S. Janus, Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State (Cornell University Press 2006).

Press Release, Office of the Governor, Governor Schwarzenegger Announces Initiative to Combat Gang Violence (May 25, 2007),

Speeches, Office of the Governor, Governor Schwarzenegger Announces Initiative to Combat Gang Violence (May 25, 2007),

Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community. 


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