The Legislature is sending mixed signals on mental health and incarceration

The connection between mental health and Oklahoma’s sky-high incarceration rate isn’t lost on Oklahoma lawmakers. As Sen. A.J. Griffin recently said, “We spend less money on mental health services, and we have a very high frequency of mental health patients in our corrections systems. It’s backward. It’s much more expensive to incarcerate them than to treat them.”

This year, at least one proposal by the Legislature could begin to shift Oklahoma in a better direction. The House and Senate both passed versions of a bill that would expand the ability of a court to require a person to undergo mental health treatment. However, another proposal moving through the Legislature could create a new way to incarcerate Oklahomans with a mental illness, even as budget cuts to mental health make desperately needed treatment even more inaccessible.

First, the sign of hope: HB 1697 by Rep. Lee Denney (R-Cushing) and Sen. AJ Griffin (R-Guthrie) allows courts to order treatment for “assisted outpatients” — adults with mental illness who are determined to be at risk of violent behavior and have a history of noncompliance with their treatment. The bill was championed by Cathy Costello, whose husband, former Oklahoma Labor Commissioner Mark Costello, was killed by their son after a long struggle with mental illness. The bill is meant to create a legal tool to keep patients who refuse their medications from becoming more serious threats to themselves and those around them. The Senate amended the bill after it was passed by the House, so now either the House can accept the Senate version or it will have to go to conference committee.

This is an important move toward recognizing the pervasive but complicated role that mental illness plays in the criminal justice system. Untreated mental illness is a major reason that people with mental illness are filling our prisons and jails. One out of every 5 Oklahomans experiences mental illness in a given year, while nearly three in five of those in Oklahoma prisons have a history or current symptoms of mental illness.

It’s important to note that this does not mean that having a mental illness is likely to cause a person to commit crime; indeed, people with mental illnesses are much more likely to be victims than perpetrators of crime.

While HB 1697 is an important step in the right direction, another bill would go the other way towards further criminalization of mental illness. SB 1214 removes the “not guilty by reason of insanity” defense and in its place creates two new possible verdicts for criminal defendants with serious mental health issues: “not guilty by reason of mental illness” and “guilty but with mental defect.” The author of the bill, Sen. Ron Sharp (R-Shawnee), argued that “the law needs to be modified to take into account those who suffer from a mental illness but are still mentally capable of understanding their actions. They need to be held accountable.” A verdict of “guilty with mental defect” would be functionally equivalent to a guilty verdict; the sentencing guidelines are the same for both.

[pullquote]“Untreated mental illness is a major reason that people with mental illness are filling our prisons and jails. One out of every five Oklahomans experiences mental illness in a given year, while nearly three in five of those in Oklahoma prisons have a history or current symptoms of mental illness.”[/pullquote]

Despite being a mainstay in popular culture portrayals of criminal trials, the insanity defense is rarely used in real life. Only 1 percent of felony cases involve an insanity defense, and even then, it’s successful only 26 percent of the time. But although it would have a small effect overall, the addition of a “guilty with mental defect” verdict could have a significant impact on a small number of cases involving defendants with serious mental illnesses. Georgia, for example, added a “guilty but mentally ill” verdict in 1982. Afterward, those pleading insanity were convicted more often, and those found “guilty but mentally ill” received harsher punishments than those simply found guilty. SB 1214 passed the Senate and is scheduled to be heard this afternoon in the House Judiciary and Civil Procedure Committee.

Passing HB 1697 would show that the state wants to improve its response to Oklahomans with serious mental illnesses; passing SB 1214 would show that it wants to send even more to prison. Meanwhile, the budget of the Oklahoma Department of Mental Health and Substance Abuse Services has been cut more than $22 million this year, taking away treatment from thousands of Oklahomans. With a $1.3 billion budget shortfall on the horizon for next fiscal year, the cuts are likely to go deeper, jeopardizing services for thousands more.

There’s no escaping the hard fact that Oklahoman’s mental health crisis will not be addressed until we provide robust funding for treatment. Like so many other priorities, mental health is likely to be a a crisis ignored until the state gets its financial house in order.