Letter

Malignant Criminalization: From Hypothesis to Theory

To the Editor: In the June issue of Psychiatric Services, Junginger and colleagues ( 1 ) examined a "literal and popular interpretation of the criminalization hypothesis" regarding overrepresentation of persons with mental illness in jails and prisons. They found that substance abuse was "a significantly more likely causal factor for criminal offending than serious mental illness." We appreciate this thoughtful research and wonder about unspecified drug-related offenses, such as positive urine toxicology and simple drug possession, that may be included under "parole violations" and "vice crimes" in Table 1 of the article. The numbers could be informative.

As the authors recognize, there are various interpretations of the "criminalization hypothesis." A mental health systems perspective may see "correctional placement" substituting for housing, supported employment, or integrated treatment. From an expanded perspective, the sixfold increase in the use of U.S. jails and prisons since the early 1970s makes this country the world leader in per capita incarceration—with rates five to ten times those of comparable industrialized nations ( 2 , 3 ). It would be surprising if this trend spared persons with mental illness and did not have a disproportionate impact on those with co-occurring disorders.

Overutilization of the correctional system is driven by the drug war, with American incarcerations for drug offenses exceeding incarcerations for all offenses combined in the European Union, which has 100 million more people than the United States ( 4 ). Incarcerations for nonviolent drug convictions have risen faster than incarcerations for any other major crime category, accounting for more than half of new prison sentences between 1985 and 2000. The drug war purportedly targets high-level suppliers, not vulnerable self-medicating individuals, but data suggest otherwise. Cannabis accounts for half of all drug arrests nationwide, with nearly 90 percent for simple possession ( 4 ).

The President's New Freedom Commission on Mental Health encourages a broad look at systems and views mental health needs partly in the context of a health care system that leaves 45 million Americans uninsured. The Commission champions integration, benchmarking, and best practices. Global benchmarking distinguishes the United States not for its successful management of substance use but as an extreme outlier in the use of incarceration. Unmet mental health needs are shaped by a broader national health care crisis, and criminal justice involvement by persons with mental illness is embedded in a broader American criminalizing trajectory.

We theorize that criminalization has become malignant, with uncontrolled growth depleting resources and consuming individuals, communities, and service systems. This view poses research questions: What are the index offenses, earliest offenses, and intervening records of mental health consumers who receive criminal justice attention? How has drug law shaped their course? Were the arrestees in the Junginger study adversely affected? When in their offense career were they affected?

Our theory predicts that, absent major drug policy reform, mental health transformation will be harder, costlier, less effective, and less sustainable than the New Freedom vision entails. Psychiatric jail diversion measures, while heroic, lack the scope to address broad policy parameters that have criminalizing impacts that extend to persons with psychiatric vulnerability.

Immediate intervention could address "low-hanging fruit." Conservative estimates endorsed by 500 economists project savings from the decriminalization of cannabis of $7.7 billion annually, or when taxed and regulated up to $13.9 billion ( 5 ). The latter figure is half the budget of the National Institutes of Health or the Veterans Affairs health care system and triple the combined budgets of the Substance Abuse and Mental Health Services Administration and the National Institute of Mental Health. A broader paradigm shift—former Baltimore Mayor Kurt Schmoke's "public health war on drugs"—could multiply that total fivefold, equaling all U.S. mental health expenditures. The substantial health care reinvestment would benefit everyone, including persons with mental illness and substance use disorders.