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Reducing Mass Incarceration: Lessons from the
Deinstitutionalization of Mental Hospitals in the
1960s
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 at issue were state hospitals and asylums for the mentally ill, and the
number of such persons in custody was staggeringly large, in fact comparable to
contemporary levels of mass incarceration in prisons and jails. President
Kennedy's message to Congress-the first and perhaps only presidential message
to Congress that dealt exclusively with the issue of institutionalization in this
country-proposed replacing state mental hospitals with community mental health
centers, a program ultimately enacted by Congress in 1963 under the Community
Mental Health Centers Act. President Kennedy's message to Congress was
straightforward:
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% drop, it turns out, underestimated the

extent of deinstitutionalization that would take place. The passage of the
Community Mental Health Centers Act in 1963 would be followed by the largest
* Professor and Chair, Department of Political Science, and Julius Kreeger Professor of Law,
University of Chicago. I am deeply grateful to Carol Steiker for organizing and hosting this
remarkable symposium, to Charles Ogletree for commenting on a draft of this essay at the
symposium, to Marie Gottschalk, Philip Heymann, Mark Kleiman, Adriaan Lanni, Anne Parsons,
Louis Michael Seidman, Jeannie Suk, and Andrew Taslitz for extremely helpful comments and
discussion on the draft, and to Chris Berk and Alyssa Kate Ogawa for extraordinary research
assistance.
I William Gronfein, Incentives and Intentions in Mental Health Policy: A Comparison of
Medicaid and Community Mental Health Programs, 26 J. HEALTH & Soc. BEHAV. 192, 196 (1985)
[hereinafter Incentives] (quoting HENRY FOLEY & STEVEN SHARFSTEIN, MADNESS AND GOVERNMENT
166 (1983)).
53
54 OHIOSTATE JOURNAL OF CRIMINAL LAW [Vol 9:1
institutional migration that has ever occurred in this country. During the period
1965 to 1975, the inpatient population in state and county mental hospitals would
plummet a stunning 59.3%.2 The mean decrease per year over that period would
reach almost 9%. During the next five years, from 1975 to 1980, the drop in
inpatient populations would continue, down another 28.9%.4 All in all, from 1955
to 1980, the number of persons institutionalized in mental health facilities declined
by 75%.
Truth be told, deinstitutionalization had begun earlier, with an early onset
drop of about 15% over the period 1955 to 1965. Moreover, the most reliable
research attributes the sharp declines over the period 1955 to 1980 to several larger
factors, not merely the passage in 1963 of the Community Mental Health Centers
Act, nor the rapid accomplishment of fully funded community mental health
centers by 1965. A far larger set of societal changes were at play, including the
reorganization of the psychiatric profession, shifting views on mental illness,
changes in care and treatment, the aftershock of World War II, changing state
policies, fiscal crises, and ambitious federal interventions. 6 If one were to narrow
these factors down, based on the leading social scientific evidence, three would
stand out: first, the development and use of psychiatric medicines as treatment for
even severe mental illness; second, the development of federal social welfare
programs (such as Medicaid and Medicare) that created financial incentives to
channel care for the mentally ill to alternative settings; and, third, changing societal
perceptions of mental illness, coupled with public awareness of the problems and
abuses endemic to the system of institutionalized care that resulted in political and
legal challenges regarding the care and status of the mentally ill.
But even though the historical record is complex, one simple fact remains:
this country has deinstitutionalizedbefore. As we think about mass incarceration
today and how to reduce our prison populations, it is useful to recall some lessons
from that history. What, if anything, can we learn from deinstitutionalization in
the 1960s? More precisely, might any of the forces that helped set off and shape
2 Id at 196.
3 8.59% to be exact. Id.
4 id.
Id. at 192.
6 Gerald Grob explores these factors and more in remarkable detail in his lengthy and
masterful work, FROM ASYLUM TO COMMUNITY: MENTAL HEALTH POLICY IN MODERN AMERICA
(1991) [hereinafter ASYLUM]. Other important contributions include, among others, PAUL LERMAN,
DEINSTITUTIONALIZATION AND THE WELFARE STATE (1982) (exploring the shifts in the welfare state);
ANDREW SCULL, DECARCERATION: COMMUNITY TREATMENT AND THE DEvIANT-A RADICAL VIEW
(1977) (exploring the fiscal crisis effects); Incentives, supra note 1 (exploring the role of Medicaid
and Medicare and larger government interventions); William Gronfein, PsychotropicDrugs and the
Origins ofDeinstitutionalization,32 Soc. PROBS. 437, 439 (1985) (exploring the role of medication);
Joseph Morrissey, Deinstitutionalizingthe Mentally Ill: Processes, Outcomes, and New Directions,in
6 DEVIANCE AND MENTAL ILLNESS (Walter R. Gove ed., 1982) (exploring professional reorganization
and rivalries).
2011] REDUCING MASS INCARCERATION 55
deinstitutionalization in the 1950s contribute to a reduction of our prison

population today? Alternatively, are there aspects to be avoided from our earlier
experience with deinstitutionalization or ways to decarcerate in a more successful
manner today? These are the questions that motivate this essay.
Oddly, relatively little has been written on the parallel between mental
hospital deinstitutionalization and the contemporary problem of mass
incarceration. Early on, there were some writings in the late 1970s on
decarceration tied to the prison abolition movement that explored the problem
through the lens of mental health deinstitutionalization, but for the most part,
those interventions were not lasting. A number of scholars at the time predicted
that prison decarceration would follow in the footsteps of the deinstitutionalization
of mental hospitals (David Rothman was probably the best example of this), but
they were proven wrong.8 More recently, there has been empirical and theoretical
work drawing parallels between the levels of mental health institutionalization in
the mid-twentieth century and prison incarceration today,9 though that research has
not drawn parallels regarding deinstitutionalization. Some researchers, such as
Marie Gottschalk, have begun to mention deinstitutionalization in the context of
the current economic crisis and its impact on mass incarceration,' 0 and several
younger scholars, especially Anne Parsons, a history graduate student at the
University of Illinois at Chicago, and Liat Ben-Moshe, a sociology graduate
student at Syracuse University, have ongoing doctoral research on the relationship
between mental health and criminality, or hospitals and prisons in the late
twentieth century. Ben-Moshe, for instance, is using the idea of
deinstitutionalization activism as a model for prison abolition." But all in all,
Some examples of this include SCULL, supra note 6 (viewing both the prison and the
asylum as tools to manage capitalism's "junk populations," and exploring both deinstitutionalization
and decarceration as responses to capitalist crisis, from a Marxist surplus labor analysis perspective);
Benjamin Frank, The American Prison: The End of an Era, FED. PROBATION, Sept. 1979, at 3
(comparing different potential advocacies in response to the demise of the rehabilitative ideal, and
specifically contrasting prison abolition to deinstitutionalization).
8 DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE
NEw REPUBLIC 295 (1971); ROBERT SOMMER, THE END OF IMPRISONMENT v-viii (1976).
Bernard E. Harcourt, An InstitutionalizationEffect: The Impact of Mental Hospitalization
and Imprisonment on Homicide in the United States, 1934-2001, 40 J. LEGAL STUD. 39 (2011)
[hereinafter Institutionalization Effect]; Bernard E. Harcourt, From the Asylum to the Prison:
Rethinking the IncarcerationRevolution, 84 TEX. L. REV. 1751 (2006) [hereinafter Rethinking]; see
also Steve Raphael, The Deinstitutionalizationof the Mentally Ill and Growth in the US. Prison
Populations: 1971-1996 (Sept. 2000) (unpublished manuscript), available at http://ist-
socrates.berkeley.edul-raphael/raphael2000.pdf.
10 Marie Gottschalk, Cell Blocks & Red Ink: Mass Incarceration, The Great Recession &
Penal Reform, DAEDALUS, Summer 2010, at 62. Gottschalk discusses deinstitutionalization and
argues that it involved a complex set of factors including political leadership, psychiatric profession
changes, media and litigation, which represented a larger context that cannot be reduced to economic
crisis. Id. at 67-69.
" Liat Ben-Moshe, a sociology graduate student at Syracuse University, has an unpublished
dissertation from 2010 with a very promising title, Genealogies of Resistance to Incarceration:
56 OHIO STATE JOURNAL OF CRIANAL LAW [Vol 9:1
there is still relatively little in terms of sustained discussion of the parallels to be

drawn or lessons to be learned from deinstitutionalization, making this a ripe topic
for preliminary analysis and for further research. This essay should be understood
as the former: some preliminary thoughts on the lessons and pitfalls to be learned
from deinstitutionalization in the 1960s.
The essay will take a twofold approach. After tracing some of the historical
background in Part I, the essay will explore; in Part 1I, the three leading factors that
were instrumental in bringing about deinstitutionalization in the 1960s, in an effort
to discern whether there might be any useful parallels in the contemporary effort to
reduce prison populations. Along this first line of inquiry, I will suggest several
possible avenues worth further consideration-all the while recognizing that there
are clear dangers associated with each.
First, with regard to the use of prescribed medications and other biological
interventions, there is certainly room for greater and 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. Naturally, this would involve transinstitutionalization,
rather than decarceration, but it is unquestionably necessary today. Moreover, it
might also be worth considering, very cautiously, the increased use of medications
for aggressive behavior, on a voluntary basis, as an alternative to incarceration.
Diversionary programs modeled on outpatient mental health clinics and involving
the administration of prescribed medications already exist and could possibly be
developed further and expanded. In a similar vein, the increased use of GPS
monitoring and other biometric devices could serve as a substitute to incarceration.
Finally, on the topic of controlled substances, a move toward the legalization of
marijuana and other lesser drugs would also have a direct impact on reducing our
prison populations.
Second, federal and state leadership could be encouraged to create federal
funding incentives for diversionary programs, 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
outpatient programs. The key variable here is to give states an economic and fiscal
incentive to move convicts out of state prisons and into non-custodial programs (or
to circumvent the correctional facilities from the outset) on the model of Medicaid
reimbursement for outpatient community mental health treatment.
Third, high-profile litigation of prison conditions, of the paucity of mental
health treatment, and of 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.
Abolition Politics within Deinstitutionalization and Anti-Prison Activism in the U.S., 1950-present
(on file with author). It appears that Ben-Moshe is indeed using the idea of deinstitutionalization
activism as a model for prison abolition.
12 TITICUT FOLLIES (Zipporah Films
1992).
2011]) REDUCING MASS INCARCERATION 57
Increased public awareness of the reality of prison life could contribute to greater
willingness to support federal policies aimed at helping reduce our prison
populations.
All of these ideas may well involve Faustian bargains, and the dangers
associated with each are apparent; but, given our previous experience with
deinstitutionalization, there is no reason to believe that it will be possible to reduce
prison populations without getting our hands dirty.
In Part III, the essay then addresses, even more directly, the darker sides of
deinstitutionalization, in an effort to identify mistakes from the past and pitfalls to
avoid. Here, the two major areas of concern are the increased racialization of the
mental hospital population that accompanied deinstitutionalization in the 1960s, as
well as the problem of transinstitutionalization that has been already identified. 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.'3
Two caveats before I begin. First, in this essay, I set aside the questions
whether to decarcerate and by how much. I recognize well that those are important
preliminary questions that would need to be addressed fully and frankly. However,
they would call for a far lengthier treatment than I could possibly give them in this
article. Accordingly, I address here only the question of how to decarcerate--or,
more precisely, what lessons to learn and pitfalls to avoid from our previous
experience with deinstitutionalization. Second, I also set aside larger social
theoretic questions about the possibility of genuine deinstitutionalization. The
classic texts of social theory from the mid-to-late twentieth century told a relatively
consistent story of the rise and fall of discrete institutions, and of the remarkable
continuity of confinement and social exclusion-from the lazar houses for lepers
on the outskirts of Medieval cities, to the establishment in the seventeenth century
of the H6pital G6n6ral in Paris.14 There may be, in fact, no true escape from our
levels of institutionalization, and the apparent transfer from mental hospitals to
prisons may be another indicator of that ominous fact. But in this essay, I will set
aside that darker interpretation and, again, focus on how we might try to
decarcerate.
3 Id.
14 See generally Rethinking, supra note 9; the specific reference here, of course, is to
MICHAEL FOUCAULT, MADNESS AND CIVILIZATION: A HISTORY OF INSANITY IN THE AGE OF REASON
(Richard Howard trans., Vintage Books 1988) (1961).
58 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 9:1
I. HISTORICAL BACKGROUND
This is not the first time that the United States has faced mass
institutionalization. As I have demonstrated elsewhere, the level of incarceration
in the United States today matches the level of total institutionalization (in mental
hospitals and prisons) in the 1930s, 1940s, and 1950s.15 For those who have not
seen the graph before, it can be somewhat striking:
Figure 1: Rates of Institutionalization in Mental Institutions and State and

Federal Prisons (per 100,000 adults)"
so-0'_O
8- o -- - - ........
-- .* - ... .....
----- - .....- .....--
- ...-- -* -"'- 1
700.00
- ---
600.00 -.
....
.. ......
.............
........................
.........................
.......................
500.00 ..
-..
...
....
.I.
........... ......... ...............
400.00 ......
- ....... .....
..................... .......
......
300.00 .......................
I............. I...................
............ I................................
200.00 I.....................................
................ -_-- ...................
..............
............... .......
.....
...
..................
.....
... ..........
. . .............
. . ......
...
......
.
-*
100.00 ... ............ n. -
0.0 rR - o t tg.. .AII.ie t i o in
-- P, ison Rate -- All Mental Hospital Rate - Aggregated InSt~tUtionalization Rate
15 BERNARD E. HARCOURT, THE ILLUSION OF FREE MARKETS: PUNISHMENT AND THE MYTH OF
NATURAL ORDER 221-31 (2011) [hereinafter ILLUSION]; InstitutionalizationEffect, supra note 9, at
41; Rethinking, supra note 9, at 1776.
16 Data collected from InstitutionalizationEffect, supra note 9,
at 42.
In fact, even if we include the jail population, the contrast remains

remarkable. Here is the same graph, including the rate ofjail incarceration:
Figure 2: Rates of Institutionalization in the United States (including jail

populations)"
1000.00
900.00
800.00
700.00
600.00
900.00
400.00
0000
200.00
-
........ . ............
I.......
........ ...... .............
100.00
0, 0 ..........
--- *Prison and Jail Rate - -MenLal liospital Rate - Arcgated institutionalization
As these figures demonstrate, the earlier period of mass institutionalization

was followed by a dramatic reduction in mental hospital populations in the 1960s
and 1970s, what we usually refer to as "deinstitutionalization." 18 The amount of
deinstitutionalization was remarkable, whether one focuses on state and county
mental hospitals alone or on the larger set of institutions for persons with mental
health problems (including institutions for persons with mental retardation, VA
mental health units, and private mental hospitals), as demonstrated in Figure 3.
1 Data collected from InstitutionalizationEffect, supra note 9, at 43.

18 The term "deinstitutionalization" is used in the research literature to refer to both the
declining inpatient population in mental institutions and the social and political policies that led to the
declines in populations. William Gronfein separates the two concepts into "operational
deinstitutionalization," the actual reductions in inpatient populations, and "policy
deinstitutionalization," what he refers to as "the programs, policies, laws, and judicial decisions
which have such reductions as their aim." Gronfein, supra note 6, at 439. For the purposes of this
article, the term "deinstitutionalization" is used primarily to refer to the decline in patient populations
and the use of large-scale, state-run psychiatric facilities for treatment of the mentally ill (what
Gronfein refers to as "operational deinstitutionalization").
Figure 3: Different Rates of Institutionalization in Mental Institutions in the

United States (per 100,000 adults)19
500.00
400.00 .......--
200.00........... .......
....
...
....
...
a Al Mental Hospitals E State, Counly and City Mental I c0spitals
Although the asylum and the penitentiary were both born in the early
nineteenth century in the United States, their growth trajectories differed
significantly over the twentieth century-resulting in these divergent growth
curves. In The Discovery of the Asylum, David Rothman penned what is still
considered the master narrative of the birth of these institutions, not only the
emergence of "penitentiaries for the criminal" and "asylums for the insane," but
also "almshouses for the poor, orphan asylums for homeless children, and
reformatories for delinquents."2 0 There were, to be sure, antecedents.21 On the
Continent, there were penal institutions as far back as the early 1600s: the
Amsterdam rasphuis, the zuchthaus in Hamburg, and spinhouses for women, for
19 Data collected from InstitutionalizationEffect, supra note 9, at 53.

20 ROTHMAN, supra note 8, at xiii. See REBECCA M. MCLENNAN, THE CRISIS OF
IMPRISONMENT 7 (2008).
21 See FOUCAULT, supra note 14, at 5 (on lazar houses for lepers on the outskirts of Medieval
cities and the seventeenth century Hpital Gn6ral in Paris); ADAM JAY HIRSCH, THE RISE OF THE
PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY AMERICA 6-8 (1992) (discussing eighteenth-
century Massachusetts penal institutions); MICHAEL IGNATIEFF, A JUST MEASURE OF PAIN: THE
PENITENTIARY INTHE INDUSTRIAL REVOLUTION, 1750-1850, at 11-14 (1978) (describing houses of
correction and the Amsterdam Rasphouse); PIETER SPIERENBURG, THE PRISON EXPERIENCE:
DISCIPLINARY INSTITUTIONS AND THEIR INMATES IN EARLY MODERN EUROPE 12-38 (1991)
[hereinafter THE PRISON EXPERIENCE]; Pieter Spierenburg, Punishment, Power, and History, 28 Soc.
SCI. HIsT. 607 (2004).
instance, 22 as well as the famous H~pital G6n6ral in Paris established in 1656 by

Louis XIV. 23 In the immediate post-Revolutionary period, several states
experimented with houses of repentance and a penitential system of punishment.
But there was, nevertheless, in Rothman's words, a "revolution in social practice"
in the early 1800s that produced both the asylum and the penitentiary, among other
institutions.24
In colonial America, care for dependent persons, such as the severely
25
mentally ill, had fallen predominantly on family members or the local parish.
With time, local governments began to assume responsibility for the care of the
mentally ill under a system of "poor laws." 26 The mentally ill were housed in
almshouses, poorhouses, or jails, alongside other persons under supervision or
dependency.27 These facilities served largely an incapacitative function, and little
28
effort was made to treat or provide medical care to those confined. The Eastern
Lunatic Asylum, the first psychiatric hospital in America, opened in 1773, and by
1816 two psychiatric hospitals were operating in the United States. 29 Due in part
to the efforts of reformers, the number of hospitals devoted to the treatment of
mental illness began to grow at about that time. By 1861, there were four dozen
public psychiatric hospitals;30 by 1880, seventy-five public psychiatric hospitals
housed 41,000 patients. 31 These hospitals were small in comparison to the mega-
institutions they would become; the largest hospital, Willard Psychiatric Hospital
for the Insane, housed only 1513 patients in residence.32 It was, however, during
this period that a more medicalized notion of mental illness began to prevail, in
tandem with a wave of social reform in the United States. Reformers, such as
Dorothy Dix and Reverend Louis Dwight, called for the placement of the mentally
ill in public psychiatric facilities as "rightly organized Hospitals, adapted to the
special care of the peculiar malady of the Insane." 3
22 THE OXFORD HISTORY OF THE PRISON 68 (Norval Morris & David Rothman eds., 1995); see
also THE PRISON EXPERIENCE, supra note 21, at 24.
23 FOUCAULT, supra note 14, at 37.
24 ROTHMAN, supra note 8, at xiii.
25 DONNA R. KEMP, MENTAL HEALTH IN AMERICA 2 (2007).
26 GERALD N. GROB, MENTAL INSTITUTIONS IN AMERICA: SOCIAL POLICY TO 1875, at 33
(1973).
27 GERALD N. GROB & HOWARD H. GOLDMAN, THE DILEMMA OF FEDERAL MENTAL HEALTH
POLICY: RADICAL REFORM OR INCREMENTAL CHANGE? 2-3 (2006).
28 GROB, MENTAL INSTITUTIONS, supra note 26, at 33-34.
29 E. FULLER TORREY, OUT OF THE SHADOWS: CONFRONTING AMERICA'S MENTAL ILLNESS
CRISIS 81 (1997). Eastern Lunatic Asylum only had 20 beds and was not operating at full capacity
until 1800.
3o See generally ROTHMAN, supra note 8, at 130-54.
31 TORREY, supra note 29, at 27. The total population of the United States at the time was
fifty million people.
32 See generally ROTHMAN, supra note 8, at 130-54.
3 GROB & GOLDMAN, supra note 27.
62 OHIO STATE JOURNAL OF CRIMNAL LAW [Vol 9: 1
On the penitentiary side, a few key dates signal the contemporary emergence
of the penitentiary. Construction on Auburn's famous cell-house began in 1819
and was completed in 1821 .34 The Auburn model-the penitentiary system of
daytime labor in collectivity, but in silence, followed by isolation in single-man
cells-proved popular, and led to a massive spree of prison construction during the
1820s and 1830s, which served as the foundation for our current prison system.
Sing-Sing opened in 1825, Connecticut started building Wethersfield in 1827, and
Massachusetts reorganized its prison at Charlestown in 1829, followed by Indiana,
Wisconsin, and Minnesota in the 1840s. 3 5 Between 1825 and 1850, Auburn-type
state prisons were built in Maine, Maryland, New Hampshire, Vermont,
Massachusetts, Connecticut, New York, the District of Columbia, Virginia,
Tennessee, Louisiana, Missouri, Illinois, and Ohio. In addition, Rhode Island,
New Jersey, Georgia, and Kentucky built prisons on the solitary labor model, and
Pennsylvania, which had invented the system of daytime solitary labor, also
constructed the Eastern State Penitentiary in the hopes of rejuvenating its model
for others to use.
"In all, one can properly label the Jacksonian years 'the age of the asylum,"'
Rothman observes.3 8 On this point, the historians of the penitentiary agree. Adam
Hirsch, in The Rise of the Penitentiary, similarly states "The penitentiary had its
heyday in the United States in the 1830s. Facilities proliferated, the literature
39
thrived, and visitors traveled great distances to view American prisons in action."
Rebecca McLennan, in her 2008 book, Making of the American Penal State, also
traces the penitentiary system to "the age of Jackson."A' Even Pieter Spierenburg,
a historian of the early modem period who prefers to rewind the historical clock to
the 1600s, admits that in the United States a "relatively condensed transition" to
the penitentiary model occurred in the 1820s "due to the particular circumstances
of its development." 4' Penal institutions became, in Rothman's words, places of
"first resort, the preferred solution to the problems of poverty, crime, delinquency,
and insanity."42 In The Illusion of Free Markets: Punishment and the Myth of
34 See generally ROTHMAN, supra note 8, at 79.

1s Id. at 81.
6 MCLENNAN, supra note 20, at 63; see generally LAWRENCE M. FRIEDMAN, CRIME AND
PUNISHMENT IN AMERICAN HISTORY 77-82 (1993).
See MCLENNAN, supra note 20, at 63; ROTHMAN, supra note 8, at 79-81; see generally
FRIEDMAN, supra note 36, at 78-82 (1993).
38 ROTHMAN, supra note 8, at xiv.
39 HIRSCH, supra note 21, at 112.

40 McLENNAN, supra note 20, at 54; see also JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL
PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 173-76 (2008).
41 THE PRISON EXPERIENCE, supra note 21, at
3.
42 ROTHMAN, supra note 8, at xiii.
Natural Order, I offer some insights into why the age of the asylum was born
during the Market Revolution, but will move along faster here.43
The subsequent growth curves of the two institutions, however, differed
markedly. On the penitentiary side, the population remained relatively constant
after the initial burst. Official national prison data only exist for the period
beginning in 1850." Prior to that, we have local data, predominantly the product
of the Prison Discipline Society of Boston and the Prison Association of New
York, both privately organized associations intended to monitor the growth of
prisons. These sources reveal that, at the birth of the penitentiary, state prison
populations and rates grew enormously, leadin to high national counts beginning
in 1850 and reaching a high point in 1870. 5 From the high point in 1870,
however, prison rates in the United States would essentially remain relatively
stable, with some fluctuations, until the prison explosion in the 1970s. Figure 4
charts the growth of the prison population over this period.
Figure 4: Prison Rate in State and Federal Prisons from 1850 to 2008 (per
100,000 persons). 4 6
800
1U
600
500
0
A1 300
200
100
o0ag8 so o 194o
J.23 So 980 000
43 ILLUSION, supra note 15, at 208-20.

4 MARGARET WERNER CAHALAN, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED
STATES, 1850-1984, at 1-27 (1986).
45 ILLUSION, supra note 15, at 218.
46 Data derived from id. at 200, 218.
In contrast, the population in psychiatric institutions experienced a period of

rapid growth toward the end of the nineteenth century and into the first half of the
twentieth. From 1880 to 1955, the number of patients residing in psychiatric
facilities rose from about 41,000 to over half a million.47 This represented a
thirteen-fold increase in the inpatient population, while the total population of the
United States grew a little more than threefold.48 The size of the facilities
themselves also grew dramatically. For example, New York's Rockland State
Hospital housed over 9000 patients, and over 14,000 patients lived in Pilgrim State
Hospital.49 Commentators have proposed several explanations for this rise in
institutional population. One study lists seven factors contributing to the
population growth in institutions, including importantly, "(4) public and
professional confidence in, and willingness to utilize, mental hospitals; (5) a
broader conception of mental illness; (6) an increasingly long duration of stay [for
mental illness recovery]; and (7) decreased tolerance for deviant behavior and
perhaps higher rates of mental illness."5 0
Others have pointed to institutionalization as a response to "the lack of
effective and lasting treatments for serious mental illness, and the pressure brought
to bear by families and communities who wanted a safe shelter for seriously
disturbed members."5 1 Others, such as Thomas Szasz and Thomas Scheff, view
the rise in institutionalized population more skeptically, specifically as "a form of
social labeling [designed to] suppress nonconformist behavior." 52
As Figure 3 shows, after peaking in 1955, inpatient populations in mental
hospitals began to show a striking and steady downward trend. In 1955, more than
558,000 patients resided in public mental hospitals; by 2000, this population had
fallen to 55,000.5 The average size of the state hospital had fallen from over 2000
residents to less than 500.54
47 TORREY, supra note 29, at 82

4 Id. See also Incentives, supra note 1, at 194.
49 TORREY, supra note 29, at 82.
so George W. Dowdall, Mental Hospitals and Deinstitutionalization,in HANDBOOK OF THE
SOCIoLOGY OF MENTAL HEALTH 519, 521 (Carol S. Aneshensel & Jo C. Phelan eds., 1999). It is
worth noting that this study took place after World War II, as the war itself greatly impacted
subsequent mental health policy.
51 Incentives, supra note 1, at 194.
52 GROB & GOLDMAN, supra note 27, at 53; see generally THOMAS J. SCHEFF, BEING
MENTALLY ILL: A SOCIOLOGICAL THEORY (1966); THOMAS SzAsz, THE MYTH OF MENTAL ILLNESS
(1961).
53 GROB & GOLDMAN, supranote 27, at 15.
54 Dowdall, supra note 50, at 525.
II. EXPLORING THE MAJOR FORCES THAT CONTRIBUTED TO

DEINSTITUTIONALIZATION
What explains that remarkable drop in the number and rate of mental patients,
and could there be any parallel forces at play today in the prison context? The first
task of this essay is to address this question-to analyze the stunning decrease in
mental hospital populations and the forces that brought it about, in order to explore
whether the factors that influenced deinstitutionalization in the 1960s could
possibly relate to our current situation of mass incarceration. I will proceed in two
steps, focusing first on the 1960s and then analyzing possible implications for our
contemporary situation.
A. The Major FactorsInfluencing Deinstitutionalizationin the 1960s
The most reliable social scientific research converges on three major social
and political forces that contributed to deinstitutionalization during the 1950s,
1960s, and 1970s: technological advancements in drug therapy for treatment of
mental illness, economic incentives to shift care for the mentally ill to community-
based outpatient facilities, and changing societal attitudes regarding mental illness.
I will address each of these in turn, in order to then explore whether they point to
useful directions today.
1. Drugs and the Development of Psychiatric Medication
Prior to the development of psychiatric drug therapy, the most widely used
treatments for mental illness included electroconvulsive therapy, insulin coma
therapy, and lobotomy." These treatments had significant side effects, including
brain damage, and were provided on an inpatient basis. Treatment for the mentally
ill underwent rapid change in the 1950s, however, with the introduction of
psychiatric medication. In 1954, chlorpromazine, marketed under the trade name
Thorazine, became the first widely available antipsychotic medication.5 6 Though
originally developed to sedate patients undergoing surgery, chlorpromazine had
tranquilizing effects that led to its use in treating mental illness. By 1956, over two
million patients had been prescribed chlorpromazine" and at least thirty-seven
states were using chlorpromazine or a similar antipsychotic medication in their
state mental hospitals.
The early adoption of chlorpromazine was due, in part, to extensive marketing
and lobbying efforts by Smith, Kline and French Labs (the manufacturer of
5s Gronfein, supra note 6, at 444.

56 See TORREY, supra note 29, at 99.
58 Gronfein, supra note 6, at 441.

66 OHIO STATE JOURNAL OF CRIMTNAL LAW [Vol 9:1
Thorazine) for the use of the drug in psychiatric facilities." For the institutions,
the new drug therapy was extremely attractive because it "appeared to offer a
solution to one of the problems which perennially plagued the state hospitals: the
maintenance of order."60 The rise in patient populations in state hospitals had left
the facilities with chronic scarcity in human and physical resources, and the use of
medication allowed the hospitals to manage more patients with less staff-and
even to allow some patients to manage their own severe psychotic symptoms. 61
Drug therapy also offered a treatment for mental illness that could be provided on
an outpatient basis.
Although several scholars have noted that the introduction and use of the
drugs did not itself cause a significant reduction in patient population,62 the
availability of the psychiatric medication had a significant impact on public
perception and public policy as well. Tangible medicalization, in the form of a
pill, promoted the mentally ill "to the status of patients in the eyes of many
members of the public."63 As some researchers have noted, "tranquilizing drugs
affected the climate of opinion in mental health care in a way that carried beyond
their value as medical applications."6 "[M]ental health professionals began to
advocate community care, in part, because the introduction of psychotropic
medications contributed significantly to [the] systematic management of many
severely psychotic patients and made discharging them back to the community
possible."
Policymakers also looked to psychiatric medicine to move institutionalized
patients, no longer considered incurable or untreatable, back into the community.
Thus, the move away from institutionalized mental healthcare was heavily
influenced by the development of psychiatric medication, not only because it
allowed outpatient care for mental illness, but also because it changed public and
political sentiment regarding the mentally ill. As Gronfein writes, "testimony from
a number of sources does indicate that the advent of psychotropic medications was
linked to the emergence of a new philosophy regarding what was possible and
desirable in the provision of mental health care for the seriously mentally ill." 66
'6 Id. at 441-42.

6S Id. at 442.
6M See DAVID A. ROCHEFORT, FROM POORHOUSES To HOMELESSNESS: POLICY ANALYSIS AND
MENTAL HEALTH CARE 51 (1st ed. 1993). Previous treatments, like electroconvulsive therapy, could
only be provided on an inpatient basis.
62 Gronfein, supra note 6, at 448; TORREY, supra note 29, at 99-100.
6 ROCHEFORT, supra note 61, at 39.

6 Id. at 38.
65 Id.
66 Gronfein, supra note 6, at 450.

2. Financial Incentives: Federal Programs and Cost-Shifting Incentives
A second major contributing factor to deinstitutionalization was federal

initiatives beginning in the early 1960s. In 1963, President Kennedy proposed the
Community Mental Health Centers Act with the idea of creating community-based
mental health centers to provide comprehensive mental health care.67
Interestingly, President Kennedy attributed the plan to "the new drugs acquired and
developed in recent years which make it possible for most of the mentally ill to be
successfully and quickly treated in their own communities and returned to a useful
place in society." The effect of the legislation would be to shift funding from the
states to the federal government.
The passage in 1965 of Medicaid 69 and Medicare70 reinforced this trend. In
order to take advantage of federal Medicaid funding, states had incentives to move
patients out of state mental hospitals and into other institutions that were
subsidized with federal money.7' These programs purposefully excluded payments
to "institutions for the treatment of mental diseases" because the programs were
72
not designed to supplant state control and financing of psychiatric facilities. As a
result, states began moving patients out of state mental hospitals and into nursing
homes or psychiatric wards of general hospitals that were heavily subsidized with
federal money. Other federal programs, such as Supplemental Security Income
(SSI), provided direct benefits to the mentally ill in the community. As some
scholars have noted, "state incentives for cost-shifting to the federal government
reside almost exclusively in the discharge of patients from state hospitals, who
then become eligible for SSI, Medicaid, food stamps, and other federal benefits."
In short, the expansion of federal social welfare programs contributed to
deinstitutionalization by creating financial incentives for states to change the locus
of care of the mentally ill away from state institutions.74 The empirical evidence
bears this out. Statistical analyses confirm that "states with greater Medicaid
67 BERNARD L. BLOOM, COMMUNITY MENTAL HEALTH: A GENERAL INTRODUCTION 20 (2d

ed.
1984).
68 Gronfein, supra note 6, at
450.
69 Medicaid provides selected health care to the indigent, regardless of age, and is funded
jointly by contributions from federal and state governments. See Incentives, supra note 1, at 200.
70 Medicare is a federally funded and administered health-insurance program that provides
selected health care to "all persons over 65 who are eligible for Social Security benefits, regardless of
income." Id.
7' Id. (citing United States Senate Subcommittee on Long-Term Care).
73 Id.
74 As a historical side note, some have theorized that institutionalization of the mentally ill in
state psychiatric facilities was also driven by cost-shifting incentives. State-run institutions emerged
as a replacement to locally funded workhouses and almshouses, thus shifting the cost of care for the
mentally ill from local to state governments. GROB, supra note 26, at 1-35 (1972).
68 OHIOSTATE JOURNAL OFCRIMTNAL LAW [Vol 9:1
involvement [showed] larger inpatient declines over the same period."7 5 Much of
this was, naturally, transinstitutionalization, especially into nursing homes, which I
discuss later; but it did facilitate deinstitutionalization.
3. Changing Social Attitudes towards Mental Illness
Together, these trends helped reshape social and cultural perceptions of

mental illness. Psychiatric medication and growing knowledge about the
biochemical causes of mental illness contributed to raising understanding and
sympathy for the mentally ill, and offered proof that not all mental illness was
incurable. These changing perceptions were in part catalyzed by World War II-
in several ways. First, approximately 12% of those drafted between 1942 and
1945 were found unfit to serve for psychiatric or neurological reasons.76
Additionally, 37% of soldiers discharged during the war for disability were
discharged for mental illness." The pervasiveness of mental illness among
enlisted men, a sympathetic group in the eyes of the general public, helped reduce
stigma against the mentally ill, while also raising awareness of the prevalence of
mental illness in the general population.
World War II also had the indirect effect of raising public awareness about the
treatment of the mentally ill in state institutions. During the war, conscientious
objectors, in lieu of military service, worked as attendants in mental hospitals that
had been left understaffed by the war efforts. Exposed to the neglect, abuse, and
deficiencies in care for the mentally ill, many tried to reform the treatment of the
mentally ill, often acting as whistleblowers and raising public awareness of the
conditions in those institutions.7 8 In the fall of 1943, for example, the Cleveland
Press published a series of articles about inhumane conditions within Cleveland
State Hospital, based on the account of the conscientious objectors serving in the
hospital.79 The expos6 ultimately led to a grand jury investigation and the firing of
the hospital's superintendent.
Other critical accounts of the conditions in institutions also received
significant public attention. A series of articles published in Reader's Digest
described "hundreds of naked mental patients herded into huge, barn-like, filth-
infested wards, in all degrees of deterioration, untended and untreated, stripped of
every vestige of human decency, many in stages of semistarvation." 80 Life

76 ROCHEFORT, supra note 61, at 34; see ASYLUM, supra note 6, at 5-23.
77 Id.
78 See generally ALEX SAREYAN, THE TURNING POINT: How MEN OF CONSCIENCE BROUGHT
ABOUT MAJOR CHANGE IN THE CARE OF AMERICA'S MENTALLY ILL (1994) (discussing how WWII
conscientious objectors played a significant role in exposing the poor treatment of institutionalized
patients).
79 Id. at 65-7 1.
80 JOSEPH HALPERN ET AL., THE MYTHS OF DEINSTITUTIONALIZATION: POLICIES FOR THE

MENTALLY DISABLED 3 (1980).
Magazine published Bedlam 1946, an expos6 that had graphic and disturbing
photos accompanying the description of the poor treatment of mentally ill
patients.8 ' As Nina Ridenour observed, "These two articles, appearing in two of
the magazines with the widest circulation in the United States, triggered a volcano
of expos6s and feature articles in other magazines and the daily press which
continued for several years."82 Personal accounts of institutionalized life from
former patients and attendants, such as Mary Jane Ward's The Snake Pit, Sylvia
Plath's The Bell Jar,and Ken Kesey's One Flew Over the Cuckoo's Nest, as well
as documentary films such as Frederick Wiseman's 1967 Titicut Follies, gave
devastating insight into institutional life. Attention from the popular media seems
to have had an effect; survey data from the period confirms a positive shift in
public opinion "in terms of better public understanding of mental illness and
greater tolerance or acceptance of the mentally ill."8 3 The increased acceptance
and understanding of the mentally ill, coupled with vivid depictions of abuse in
institutions, sparked public outcry against institutional psychiatric care.
Reviled in the popular press, mental institutions also received criticism in
intellectual circles. Some, such as Thomas Szasz in his influential book The Myth
of Mental Illness,84 suggested that mental illness was a social construct used to
control and limit deviancy in the population.8 5 Other influential works, such as
Alfred Stanton and Morris Schwartz's The Mental Hospital8 6 and Erving
Goffman's Asylums,8 7 suggested that institutionalization itself worsened mental
illness. Still other critical works, such as David Rothman's The Discovery of the
Asylum, 8 8 Michel Foucault's Madness and Civilization,8 9 and Gerald Grob's The
State and the Mentally Ill,90 raised questions about the continuity of confinement
across different realms, especially the asylum and the prison. Rising sentiment
against the use of institutions for psychiatric treatment, buttressed by knowledge of
the poor conditions within institutions, engendered a reform movement for
81 NINA RIDENOUR, MENTAL HEALTH IN THE UNITED STATES: A FIFTY-YEAR HISTORY
106
(1961).
82 Id. at 107.
83 ROCHEFORT, supra note 61, at 52 (quoting a 1960s U.S. Department
of Health, Education,
and Welfare publication).
8 SZASZ, supra note 52 (arguing against modem psychiatry and denying the existence of
mental illness).
85 See generally GERALD N. GROB, MENTAL ILLNESS AND AMERICAN SOCIETY, 1875-1940,
at
15(1983).
86 ALFRED STANTON & MORRIS SCHWARTZ, THE MENTAL HOSPITAL: A STUDY
OF
INSTITUTIONAL PARTICIPATION IN PSYCHIATRIC ILLNESS AND TREATMENT (1954).
87 ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATIONS OF MENTAL
PATIENTS AND
OTHER INMATES (1961).
88 ROTHMAN, supra note
8.
89 FOUCAULT, supra note 14.
9 GERALD N. GROB, THE STATE AND THE MENTALLY ILL: A HISTORY OF WORCESTER STATE
HOSPITAL IN MASSACHUSETTS, 1830-1920 (1966).
70 OHIO STATE JOURNAL OFCRIMINAL LAW [Vol 9: 1
community mental health, an alternative approach that favored a more

decentralized, short-term, treatment-oriented system of mental health care services
over long-term custodial care in institutions.91 These cultural shifts, both in public
understanding of mental illness and in perception of institutionalized treatment of
the mentally ill, contributed to the depopulation trend in institutions.
In concert with changing social perceptions of the mentally ill and mental
health care, developments within the law regarding confinement and treatment of
the mentally ill accelerated the trend of deinstitutionalization. With the political
backdrop of the civil liberties movement, advocates for the mentally ill viewed
institutionalized care not as an asylum to protect the mentally ill, but as an
intrusion on the liberty and autonomy of the mentally ill, and they sought legal
92
reforms restricting involuntary psychiatric treatment. Similar to the NAACP's
strategy to end school segregation, advocates for the mentally ill used litigation to
chip away at the legal foundations of institutional psychiatric care by challenging
the procedures governing commitment and treatment.
Advocates first pushed for heightened procedural due process protections with
regard to involuntary commitment. A heightened standard for commitment would
have had direct and dramatic effects on the institutionalized population, because
the most common path to admission to mental hospitals was involuntary
commitment throughout the early part of the twentieth century and well into the
1960s.93 In fact, in 1939, for instance, about 90% of all admissions were
involuntary commitments. 94 In O'Connor v. Donaldson, the Supreme Court held
that the state could not "constitutionally confine without more a nondangerous
individual who is capable of surviving safely in freedom by himself or with the
95
help of willing and responsible family members or friends." Other cases that
followed, such as Addington v. Texas (requiring "clear and convincing" evidence if
a proceeding may result in indefinite confinement), imposed further due process
96
requirements on involuntary commitment procedures.
Advocates then sought to exert pressure on institutions to release patients
through the establishment of minimally adequate standards of care, or "right to
treatment." In 1972, the Fifth Circuit in Wyatt v. Stickney, finding the treatment of
patients in Alabama unconstitutional, held that the Constitution guarantees a right
97
to treatment and habilitation for civilly committed persons in state institutions.
91 See BLooM, supra note 67, at 22.

92 See, e.g., TORREY, supra note 29, at 142; Stephen T. Morse, A Preferencefor Liberty: The
Case Against Involuntary Commitment of the Mentally Disordered, 70 CAL. L. REv. 54, 54-55
(1982).
94 Id.
9s O'Connor v. Donaldson, 422 U.S. 563, 575 (1975).
96 Stephen Rachlin, The Influence of Law on Deinstitutionalization, in
DEINSTITUrIONALIZATION 41, 46-51 (Leona L. Bachrach ed., 1983).
9 Wyatt v. Stickney, 344 F. Supp. 373, 374 (M. D. Ala. 1972).
Because the state was unable to meet the judicially-mandated standards of

minimally required care, thousands of patients were released. 98 The remedy-
depopulation-was an intentional outcome; a right to treatment that set an
unattainable standard of care was seen, by advocates, as the best way to
deinstitutionalize thousands of people.99 These decisions, which heightened the
procedures required for commitment and the standards of care for the committed,
"exerted continuing pressure on state hospital physicians and administrators to
discharge existing patients and to reject new ones.""o
There were, in sum, a number of interwoven factors that converged in the
period following World War II that would, together, shift public policy away from
mental institutionalization and help contribute to the massive deinstitutionalization
that took place during the period 1955 to 1980. Though I have focused on the
three leading factors identified in the research literature, other forces were also at
play. Gerald Grob, the leading scholar on the topic, summarizes the wider
landscape as follows:
First, the experience of World War II appeared to demonstrate the

efficacy of community and outpatient treatment of disturbed persons.
Second, a shift in psychiatric thinking fostered receptivity toward a
psychodynamic and psychoanalytic model that emphasized life
experiences and the role of socioenvironmental factors. Third, the belief
that early intervention in the community would be effective in preventing
subsequent hospitalization became popular, a belief fostered by
psychiatrists and other mental health professionals identified with a
public health orientation. Fourth, a pervasive faith developed that
psychiatry was able to identify (and presumably ameliorate) those social
and environmental conditions that played an important role in the
etiology of mental illnesses. Fifth, the introduction of psychological and
biological therapies (including, but not limited to, psychotropic drugs)
held out the promise of a more normal existence for individuals outside
mental hospitals. Finally, an enhanced social welfare role for the federal
government not only began to diminish the authority of state
governments but also hastened the transition from an institutionally
based to a community-oriented policy.10

9 See id.
'" Id. at 145.
101ASYLUM, supra note 6, at 4.
72 OHIO STATE JOURNAL OF CRIMNAL LAW [Vol 9:1
B. DrawingParallelswith the CurrentSituation ofMass Incarceration
I will turn, now, to our current situation, in order to explore whether these
factors resonate in today's context and whether they might conceivably point us in
useful directions to help alleviate the problem of mass incarceration.
1. Prescribed Drugs and Other Biological Interventions
On the question of prescription drugs and mental health treatment, two things
are quite clear. First, the condition of mentally ill prisoners in state correctional
systems and county jails is of increasing concern nationwide. The stories of
individual inmates are horrifying. A prison inmate in Jackson, Michigan-who
authorities described as "floridly psychotic"-died in his segregation cell, naked,
shackled to a concrete slab, lying in his own urine, scheduled for a mental health
transfer that never happened.102 Another inmate, schizophrenic, gouged his eyes
out after waiting weeks for transfer to a mental hospital in Clearwater, Florida. 103
Meanwhile, the head of Florida's social services was forced to resign abruptly in
2006 after being fined $80,000 and facing criminal contempt charges for failing to
transfer severely mentally ill jail inmates to state hospitals.'1" Given the paucity of
mental health care for prisoners, it is difficult to get a good sense of how many
inmates have serious mental health conditions. What we know is that, at the turn
of the twentieth century, there was a high level of diagnosed mentally ill offenders
in prisons and jails in the United States-283,800 in 1998, representing 16% of jail
and state prison inmates. 105 We also know that, according to a study released by
the Justice Department in September 2006, 56% of inmates in state prisons and
64% of inmates across the country reported mental health problems within the past
year;' 0 6 much of this is associated with depression, and that depression may be
caused by the institutionalization itself. Ultimately, it is extremely hard to quantify
correctly the number of detained inmates who need, but are not receiving, mental
health care and medication. But there is no question that the number is very high
and that treatment and medication could be substitutes for continued detention in
many cases, which would naturally help alleviate mass incarceration.
t02 Libby Sander, Inmate's Death in Solitary Cell Prompts Judge to Ban Restraints, N.Y. TIMES,
Nov. 15, 2006, http://www.nytimes.com/2006/11/11/us/15prison.html?_r-2&pagewanted=print.
103 Abby Goodnough, Officials Clash Over Mentally Ill In FloridaJails, N.Y. TIMES (Nov. 15,
2006), http://query.nytimes.com/gst/fullpage.htmlres-9EO4E5DA173EF936A25752CIA9609C8B63&
pagewanted=all.
'" Alisa Ulferts, Head of DCF is Fined $80,000, ST. PETERSBURG TIMES (Dec. 1, 2006),
http://www.sptimes.com/2006/12/01/news.pflTampabay/Head-ofDCFisfined_.shtml.
1e5 PAULA M. DrrroN, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: MENTAL HEALTH AND
THE TREATMENT OF INMATES AND PROBATIONERS 3 (1999), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf.
106 Erik Eckholm, Inmates Report Mental Illness at High Levels, N.Y. TIMES (Sept. 7,
2006),
http://www.nytimes.com/2006/09/07/us/07prisons.btml.
Second, it is clear that the use of prescribed medication in the United States
has increased markedly since the 1950s. Today, according to data from the
Department of Health and Human Services, about half of all Americans take at
least one prescription drug, with about one in six Americans taking three or more
medications.10 7 The United States may well be one of the most medicated nations
in the world today. Now, to be sure, the overall rise in the use of prescription
medications coincided with the sharp increase in the prison population over the
past forty years. So, more drugs are certainly not, or at least, not necessarily a
panacea. However, there is no way of knowing, without further research, whether
the populations at risk of incarceration are among those who have experienced
increased use of prescription drugs, nor whether the increased use of prescription
medication actually dampened prison growth. If indeed the correlation between
medication and prison population operates through criminogenic behavior-in
other words, if we assume a direct crime and punishment nexus, which is a
relatively simplistic assumption-we still do not know whether the increased use
of medication over the last fifty years actually dampened prison growth or had no
effect, given the simultaneity problem: it is entirely possible that the prison
population could have risen even more if there had been less generalized use of
prescribed medication.
One question to pose, then, very cautiously, is whether the enhanced use of
medications might contribute to deinstitutionalization of our prisons. There are
reasons to think that it might. The use of psychotropic drugs to treat violent and
antisocial behavior has become commonplace both in and outside of the prison
contexto 0 -and it is not immediately apparent that increased, voluntary
medicalization would be morally, ethically, or politically worse than forcible
detention in prison. This raises complex questions about prisoners and consent-
questions that I explore elsewhere.' 09 But the alternatives are not without their
own problems-moral, ethical, and political. Perhaps it is, in the end, a Faustian
bargain, but one worth considering.
107 See NAT'L CTR. FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH
& HUMAN SERV., HEALTH,
UNITED STATES, 2009, available at http://www.cdc.gov/nchs/data/hus/hus09.pdf#executivesummary;see
also Denise Danor, Study: Americans on Chronic Medicines, ABC7.coM (May 14, 2008),
http://abclocal.go.com/kabc/story?section=news/health&id=6143292; David Olmos, Prescription Drug
Use Rose to Include Half of American in 2008, BLOOMBERG (Sept. 2, 2010),
http://www.bloomberg.com/news/2010-09-02/prescription-drug-use-rose-to-include-half-of-americans-in-
2008-u-s-says.html. For a fascinating discussion of the implications and outsourcing of pharmaceutical
trials, see Kaushik Sunder Rajan, Biocapital: Indian Clinical Trials and Surplus Health, NEW LEFT
REVIEW, http://www.forliberation.org/site/archive/issue0807/articleO2O8O7.htm (last visited Apr. 19,
2011).
108 See generally Tony Butler, Reducing Impulsivity in Repeat Violent Offenders: An Open
Label Trial of a Selective Serotonin Reuptake Inhibitor, 44 AUSTL. & N.Z. J. PSYCHIATRY 1137
(2010); Eric Silver et al., The Relationship Between Mental Health Problems and Violence Among
CriminalOffenders, 35 CRIM. JUST. & BEHAV. 405 (2008).
109 Bernard E. Harcourt, Making Willing Bodies: The University of Chicago Human
Experiments at Stateville Penitentiary,Soc. RES.: AN INT'L Q., Summer 2011, at 443.
74 OHIO STATE JOURNAL OF CRIM7NAL LAW [Vol 9: 1
The concerns here are legion, though. There are a number of populations that
are today being targeted for increased pharmaceutical interventions. The first
involves sexual offenders. There has been a lot of research investigating the
possibility and effectiveness of biological interventions, including testosterone-
lowering hormonal treatments, with an eye to reducing sexual offender recidivism.
Pharmacologically-based treatment options have been developed in an effort to
chemically alter sexual drives and offending behavior. Some of the
pharmacological developments in this area include the development of selective
serotonin re-uptake inhibitors (SSRIs), which are also used as anti-depressants for
the treatment of anxiety and other personality disorders; psychostimulants;
hormonal treatment experiments; and antiandrogen treatment (GnRHs), which are
hormone receptor antagonist compounds that help prevent or inhibit the biologic
effects of male sexual hormones.o
A second targeted population is juvenile offenders.'" In this context, there
has been a lot of research focused on "conduct disorder" and the development of
antimanic medications for certain forms of hyperactivity disorders, as well as the
use of psychological assessments like the MSYSI-2 and MAYSI-2 to identify
potential juvenile offenders and then find diversionary programs for them. These
diversionary programs often involve outpatient programs that incorporate the use
of medication. An example is the 2009 winner of the Harvard Kennedy School
Innovations in American Government Award: the Wraparound Milwaukee
program. The program, an outpatient managed care program that is operated by
the Milwaukee County Behavioral Health Division, is designed to provide
individualized care to youths with mental health and emotional needs.l 2
A third targeted population is associated with the outpatient treatment of drug
addiction. For non-violent drug offenders, there are now well-established
outpatient treatments using methadone, buprenorphine, lofexidine, and naltrexone;
as well as diversionary programs and various outpatient care programs." 3
110 One of the leading researchers here is Martin Kafka. See generally Peter Briken & Martin
P. Kafka, PharmacologicalTreatmentsfor ParaphilicPatients and Sexual Offenders, 20 CURRENT
OPINION IN PSYCHIATRY 609 (2007).
1 See generally Jean Decety et al., Atypical Empathic Responses in Adolescents with
Aggressive Conduct Disorder: A Functional MR! Investigation, 80 BIOLOGICAL PSYCHOL. 203
(2008); Christopher A. Mallett et al., Predicting Juvenile Delinquency: The Nexus of Childhood
Maltreatment,Depressionand BipolarDisorder, 19 CRIM. BEHAV. & MENTAL HEALTH 235 (2009).
112 Milwaukee County Behavioral Health Division, WraparoundMilwaukee 2009 Innovations
in American Government Award Winner, CouNTY OF MILWAUKEE,

http://county.milwaukee.gov/WraparoundMilwaukee/WraparoundAward.htm (last visited Oct. 8,
2011).
"1 See generally Michelle A. Lang & Belenko Steven, PredictingRetention in a Residential
Drug Treatment Alternative to Prison Program, 19 J. SUBSTANCE ABUSE TREATMENT 145 (2000);
Jason Lutz, What works in drug addiction?, 9 ADVANCES INPSYCHIATRIC TREATMENT 280, 280-88
(2003); Steven S. Martin et al., Three-Year Outcomes of Therapeutic Community Treatment for
Drug-Involved Offenders in Delaware: From Prison to Work Release to Aftercare, 79 PRISON J. 294
(1999).
The model throughout these specific interventions, it seems, is to identify

physiological or biological causes of violent behavior and to use medication to
modify those causal agents. This approach can be seen at work, for example, in
the research of Jean Decety, a psychologist at the University of Chicago. His
research focuses on adolescents with "conduct disorder" or "CD," a mental
disorder defined by "a longstanding pattern of violations of rules and laws" and
characterized by symptoms such as "physical aggression, manipulative lying, theft,
forced sex, bullying, running away from home overnight, and destruction of
property.""l 4 Decety and his colleagues explore the neural responses of
adolescents to empathy-eliciting and sympathy-eliciting stimuli, such as the sight
of someone in pain (the image of someone having their fingers stuck in a car door,
for instance). The idea is to see whether painful situations trigger different activity
in the brain. Using neuro-imaging, their studies try to differentiate between brain
activity in juveniles with conduct disorder versus those without conduct disorder.
The goal, ultimately, is to identify different neural pathways, in order to then
explore possible treatment addressed to those brain activities. As Decety writes,
"Biological studies of CD should lead to new approaches to its treatment, both by
understanding the mechanisms underpinning CD and by matching treatments to
specific deficits in different individuals with this heterogeneous disorder."'' 5 Or,
in other words, to identify and treat brain pathways in order to alter behavior.
I have deep reservations about many of these specific interventions on both
political and ethical grounds. The more general idea of encouraging voluntary and
consensual use of antipsychotic drugs is somewhat less troubling than these
biological "solutions" to criminal offending-and may help to decarcerate.
Thinking more broadly, though, two other related possibilities come to mind.
First, the gradual legalization or medicalization of marijuana is likely to have, or
eventually may have, dramatic effects on reported crime levels both through
decriminalization and also by eliminating the drug trade and its attendant violence.
This is especially true on the border with Mexico where the marijuana drug trade is
wreaking havoc. If marijuana and other lesser controlled substances are eventually
legalized, this would surely have a significant effect on reducing the incarcerated
population. Second, functional substitutes to incarceration, such as GPS
monitoring and other forms of home surveillance and detention, can be thought of
as an alternative form of medicalization-as something like prescription drugs that
act as an alternative to incarceration. These developments as well should be
considered as substitutes to the prison.
A great danger in this approach is the potential racialization of psychological
diagnoses of deviance-a danger made vivid by our past experience with
schizophrenia, as demonstrated brilliantly by Jonathan Metzl in his book, The
Protest Psychosis: How Schizophrenia Became a Black Disease (2010). In his
research at lonia State Hospital in Michigan, Metzl recounts the shocking story of
114 Decety et al., supra note 111, at 203.

" Id.
76 OHIO STATE JOURNAL OF CRIAINAL LAW [Vol 9: 1
how schizophrenia as a diagnosis became overwhelmingly applied to

institutionalized African-Americans, and how the experience there mirrored the
national conversation that increasingly linked blackness to madness. Like the
prison itself-as I discuss later-mental illness, especially related to violence,
became increasingly racialized during the second half of the twentieth century, and
this would be something important to guard against.
2. The Great Recession of 2008
The second factor to consider involves ways of restructuring federal

reimbursement programs to make it more attractive to states to decarcerate,
especially during these times of economic crises. Would it be possible to imagine,
in our hard economic times, a federal initiative aimed at diverting fiscal resources
toward programs that promote alternatives to incarceration? Is there anyone in a
position of leadership at the federal or state level who would be willing to take on
this issue, as President Kennedy did in 1963? President Barack Obama certainly
embraced health care as a major policy reform during his first two years in office,
despite the Great Recession of 2008; and he had to deal with a massive Republican
backlash to his health care reforms during the next two years. Is it even
conceivable that mass incarceration could be placed on President Obama's agenda
or on that of any future President? It may be difficult to imagine, I confess, but a
positive answer to these questions seems almost essential to making any headway
in reducing mass incarceration.
In contrast to prescription drugs, there have been some writings on the issue
of the relationship between the 2008 fiscal crisis and mass incarceration." 6 Some
researchers, such as Kara Gotsch of the Sentencing Project, argue that the financial
crisis has already triggered a new climate of bipartisanship on punishment."'
Gotsch suggests that we are today in a unique political climate (embodied, for
instance, by the passage of the Second Chance Act under President George W.
Bush)-a climate substantially different from the era of President Clinton's
Omnibus Crime Bill. In her view, the fiscal crisis is already leading to
bipartisanship around sentencing policy and prison reform. (Recent policy
research has looked at the changes at the state level in response to the fiscal
crisis' 1 8 and the impact of financial crisis on corrections spending,l 9 but the
findings are not especially encouraging.)
116 See generally 6 THE CARCERAL NOTEBOOKS (2010), available at

www.thecarceral.org/journal-vol6.html.
117 Incidentally, this issue of THE AMERICAN PROSPECT is entirely dedicated to mass
incarceration and has a number of interesting contributions. Kara Gotsch, Bipartisan Justice, AM.
PROSPECT A22-A23 (Dec. 6, 2010), available at
http://prospect.org/cs/articles?article bipartisanjustice#.
118 NICOLE D. PORTER, SENTENCING PROJECT, THE STATE OF SENTENCING 2009:
DEVELOPMENTS IN POLICY AND PRACTICE, (2010), available at
http://www.sentencingproject.org/doc/publications/s-ssr2009Update.pdf.
20 11] REDUCING MASS INCARCERATION 77
Others contend that the current economic crisis alone will have little effect.
In her 2010 Daedalus article Cell Blocks & Red Ink,120 Gottschalk argues that
economic troubles are not necessarily a catalyst for decarceration: "Mounting
fiscal pressures on their own will not spur communities, states, and the federal
government to empty jails and prisons."'21 In fact, she argues, it may be the
inverse. "If history is any guide, rising public anxiety in the face of persistent
economic distress and growing economic inequalities may, in fact, ignite support
for more punitive penal policies." 22 Economic hard times (for a variety of
reasons) are more likely to stoke the fire of public punitiveness-as we saw at the
time of the Great Depression and the New Deal.123 Going forward, Gottschalk
argues, advocates of decarceration will need to avoid framing the issue primarily
as an economic one.124
Chris Berk at the University of Chicago has a working-paper titled Investment
Talk. Comments on the Use of the Language of Finance in Prison Reform
Advocacy, which focuses on what he calls "an emerging discourse in prison reform
circles," or "investment talk," that uses the language and concepts of investment
and finance to argue for large-scale prison reform.125 Berk is skeptical of this new
discourse and suggests that it may undermine prison reform advocacy because,
first, it takes the interpretation of social cost to be given, rather than politically
contested, and second, it empowers a particular set of experts and knowledge,
consolidating the logic of neoliberal penality.126 Consequently, Berk argues,
investment talk does not necessarily imply, as some advocates suggest, more
limited, community-controlled punishment practices.
Still others, such as Jonathan Simon and myself, have drawn parallels
between the prison boom and the housing bubble.127 Simon argues, in his Daedalus
" CHRISTINE S. SCorr-HAYWARD, VERA INST. JUSTICE THE FISCAL CRISIS IN CORRECTIONS:
RETHINKING POLICIES AND PRACTICES (July 29, 2009), available at http://www.vera.org/files/The-
fiscal-crisis-in-correctionsJuly-2009.pdf.
120 Gottschalk, supra note 10, at 62-73. The original formulation of Gottschalk's argument
traces to her earlier book, where she argued that financial crisis does not necessarily mean that Left
and Right will end up reaching across the aisle or that the results will be a reduction in punishment.
See MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS 240-45 (2006).
121 Gottschalk, supra note 10, at 62.
122 Id. at 63.
123 Id. at 64.
124 Id. at 70.
125 Chris Berk, Investment Talk: Comments on the Use of the Language of Finance
in Prison
Reform Advocacy, 6 THE CARCERAL NOTEBOOKS 115 (2010), available at
http://www.thecarceral.org/cn6_Berkqpdf.
126 Id.
127 ILLUSION, supra note 15, at 238-39; Jonathan Simon, Clearing the
'Troubled Assets' of
America's Punishment Bubble, DAEDALUS, Summer 2010, at 91-101.
78 OHIOSTATE JOURNAL OF CRIMNAL LAW [Vol 9: 1
article Clearing the 'Troubled Assets' ofAmerica's Punishment Bubble,128 that the
mass incarceration crisis can be mapped onto the housing crisis, suggesting that the
analogy may reveal potential remedies to the current crisis. "For the prisons
themselves," Simon suggests, "we need a conversion program similar to the plan
developed to handle former military installations closed down as a result of
Congress's base-closing commission in the 1990s."129 Keally McBride has also
been writing in this vein on the California crisis.'30 In The Illusion of Free
Markets, I suggest that the growth of prisons has, in fact, resembled the "bubble
economies" that we witnessed over the past few decades-the "dot-com bubble" of
the late 1990s and the "real estate bubble" of the late 2000s."' Prison building (a
form of real estate, sadly) exploded in the 1990s, generating a remarkable outburst
of expenditures, jobs, and debt. It is possible to think of the growth of the prison
sector as resembling, in many ways, the growth of the real estate sector: fueled by
irresponsible lending or borrowing, growing beyond future capacity, resting on
speculation, and producing huge indebtedness.
The Great Recession of 2008 has certainly put severe pressure on the "prison
bubble"-if that is a fair term-as many states find themselves unable to service
the debt associated with prison building or carry the expenses associated with
massive prison populations. This has been nowhere more clear than in Arizona
where, in early 2009, the state legislators began discussing the idea of converting
the entire state-run prison system into a privately run corporation to counteract the
$3.3 billion revenue shortfall expected that year.' 32 Some legislators predicted that
this change could save the state approximately $40 million annually,'3 3 whereas
others hoped that this could reduce the budget shortfall by $100 million. 3 4 The
plan to privatize the whole sector has gone forward, though it would only add to
Arizona's already-significant reliance on private prisons: to date, nearly 30% of the
state's prisoners are held in privately run facilities.' 35 It is, of course, unclear what
will ultimately happen with the prison sector, whether it would ever "pop,"
whether it will be fully privatized, and whether it will continue to grow.
128 Id. at 91-101. Simon has also posted a blog on this topic: Jonathan Simon, Punishment,
States, and the Governance of Crime: Looking for the Future of Mass Incarceration in the Sunbelt,
GOVERNING THROUGH CRIME (Nov. 19, 2010), http://governingthroughcrime.blogspot.com/.
129 Simon, supra note 127, at
97.
130 Keally McBride, California Penalty: The End/Price of the Neoliberal
Exception, 6 THE
CARCERAL NOTEBOOKS 131 (2010), availableat http://www.thecarceral.org/cn6_McBride.pdf.
131 ILLUSION, supra note 15,
at 238.
132 Private prisons offer potential for state savings, YUMA SUN (May 25, 2009),
http://www.yumasun.com/opinion/state-50322-potential-balance.html.
133Id.
134 Jennifer Steinhauser, Arizona May Put State Prisons in Private Hands, N.Y. TIMES, Oct.
24, 2009, at At, availableat http://www.nytimes.com/2009/10/24/us/24prison.html.
135 Id.
But it is unlikely that the economic crisis will have much of an effect on
prison populations without federal or state leadership. This is, I believe, a lesson
from deinstitutionalization, and in this regard I agree with Marie Gottschalk, who
writes (correctly I believe) that "[t]he deinstitutionalization case demonstrates the
enormous importance of the political context for the development and
implementation of successful federal and state policies to drastically shrink state
institutions . . . . [L]eadership at the federal level was critical to enacting
change."l 36 The real question, then, is whether there could possibly be funding
mechanisms put in place that could migrate the financial burden of incarceration in
such a way as to promote, ultimately, alternatives to incarceration. This was the
model of 1960s deinstitutionalization: shifting the funding burden to the federal
government as a way to incentivize the states to move patients into other facilities
closer to the community and closer to home. Could this be encouraged today?
Some point to the Justice Reinvestment movement as a way to address this
question. "Justice Reinvestment," a project of the Council of State Governments
Justice Center, is, in its own words, "a data-driven approach to reduce corrections
spending and reinvest savings in strategies that can decrease crime and strengthen
neighborhoods."'" The project is intended to be evidence-driven and to discover
cost-effective ways of keeping society safe. The mantra is evidence, cost-effective
policies, and measured performance-as evidenced by its three-prong approach:
1. Analyze data and develop policy options. Justice Center experts

analyze crime, arrest, conviction, jail, prison, and probation and
parole supervision data provided by state and local agencies; map
specific neighborhoods where large numbers of people under criminal
justice supervision live and cross-reference this information with
reports of criminal activity and the need for various services
(including substance abuse and mental health treatment programs)
and resources (such as unemployment or food stamp benefits); and
assess available services critical to reducing recidivism. Using that
state-specific information, the Justice Center develops practical, data-
driven, and consensus-based policies that reduce spending on
corrections to reinvest in strategies that can improve public safety.' 38
2. Adopt new policies and put reinvestment strategies into place. Once
government officials enact the policy options, they must take steps to
verify that the policies are adopted effectively. The Justice Center
assists jurisdictions with translating the new policies into practice,
and ensuring related programs and system investments achieve
136 Gottschalk, supra note 10, at 68.
m3 Background, THE COUNCIL OF STATE GOVERNMENTS JUSTICE CENTER,

http://www.justicecenter.csg.org/about-us/background (last visited Oct. 8, 2011).
138 Strategy, JUSTICE REINVESTMENT, http://justicereinvestnent.org/strategy (last visited
Oct. 8,
2011).
projected outcomes. This assistance includes developing

implementation plans with state and local officials and keeping
policymakers apprised through frequent progress reports and
39
testimony to relevant legislative committees.
3. Measure performance. Finally, the Justice Center ensures that elected
officials receive brief, user-friendly, and up-to-date information that
explains the impact of enacted policies on jail and prison populations,
and on rates of reincarceration and criminal activity. Typically, this
includes a "dashboard" of multiple indicators that make it easy for
policymakers to track-in real time-the changes in various
components of the criminal justice system. 140
According to the Justice Reinvestment project, this is precisely the approach

that led, for instance, to the investment of $241 million by the Texas legislature in
2007 "to expand the capacity of substance abuse and mental health treatment and
diversion programs, and to ensure that the release of low-risk individuals is not
delayed due to lack of in-prison and community-based treatment programs" and to
the investment of $7.9 million in Kansas "to expand treatment programs and
strengthen probation and parole."141
It might be possible to tap into this logic to promote federal or state leadership
as a cost-effective way around mass incarceration. On the other hand, of course,
this entire approach could simply be a lot of technocratic nonsense-a lot of
politics masquerading as economistic, cost-efficiency language. And the entire
cottage industry of reentry and diversionary programs may well be a grand
42
illusion, or, in Loic Wacquant's terms, a lot of "myth and ceremony."l The
question, ultimately, may be whether the public economy of reentry is more or less
favorable than that of mass incarceration. Once again, these avenues may involve
a devil's pact. What is clear, though, is that federal or state leadership will be
necessary to make this pact work-should we go down that path.
3. The Social Construction of the Convict
The third question is whether we could imagine, at some point, that the public
imagination of the "convict" could ever be reshaped. This is not simply a matter of
changing social meaning. It involves complicated processes of identification.
Although exceedingly complex, here too there may be something fruitful. The
place to look may be the recent litigation of California prison overcrowding at the
United States Supreme Court-a high-profile media and cultural event that may
139Id.
140 Id.
141 See COUNCIL OF STATE GOVERNMENTS, supra note 137.
142 See Loic Wacquant, PrisonerRe-entry as Myth and Ceremony, 34 DIALECT. ANTHROPOL.
605 (2010).
signal wider appreciation for the prison conditions facing convicted inmates. An
analysis of the rhetoric and surrounding media coverage of the oral argument
before the Supreme Court possibly indicates a growing awareness of overcrowding
in prisons and the resulting poor conditions. The case may serve as an illustration
of how to mobilize greater attention on the problems associated with mass
incarceration. 143
The California prison overcrowding case, Schwarzenegger v. Plata or now
Brown v. Plata,'" was argued at the U.S. Supreme Court on November 30, 2010,
on the question of the authority of the federal courts to issue and fashion remedies
to rectify unconstitutionally poor conditions within prisons, pursuant to the Prison
Litigation Reform Act, 18 U.S.C. § 3626 ("PLRA"). The Supreme Court litigation
arose out of two separate class action lawsuits, Plata v. Schwarzeneggerl45 and
Coleman v. Schwarzenegger,146 filed on behalf of prisoners incarcerated in
California State prisons. In both cases, the prisoners successfully claimed that
poor medical and mental health care provided by the California Department of
Corrections and Rehabilitation ("CDCR") violated their constitutional rights. 147 At
issue before the Supreme Court was the remedy fashioned by the courts to correct
the constitutional violation. More specifically, a three-judge panel in the
consolidated cases had ordered that California create and file a population
reduction plan that would, in no more than two years reduce the population of the
CDCR's adult institutions to 137.5% of their combined design capacity. The
appeal to the Supreme Court concerned the scope of this remedial order.
The cases have a complicated procedural history and have been winding their
way through the federal courts since the early 1990s. The first case, the
Colemanl48 case initiated in 1990, was a class-action lawsuit filed on behalf of
143 This article was written several months before the Supreme
Court issued its opinion in
Brown v. Plata, 131 S. Ct. 1910, on May 23, 2011, and was past final edits before the release of the
opinion. It is interesting to note, though, that Justice Kennedy's opinion for the majority included
two photographs of gymnasium-style prison conditions with concentrated inmates, as well as an
image of the "telephone-booth-sized cages without toilets" that are used for suicidal inmates. In
addition, the New York Times, the following day had front-page coverage of the decision including
another large, color photograph of the prison overcrowding. See Adam Liptak, Justices, 5-4, Tell
California to Cut Prison Crowding, N.Y. TIMES, May 24, 2011, at Al, available at
http://www.nytimes.com/2011/05/24/us/24scotus.html?pagewanted=all. This is further evidence that
the imagery of prison overcrowding and mass incarceration may be increasingly permeating the
public imagination.
14 The case has since been re-captioned to Brown et al. v. Plata,No. 09-1233 (May 23, 2011).
145 Plata v. Schwarzenegger, No. 3:01-CV-01351-TEH (N.D. Cal. Apr. 5, 2001).
146 Originally filed as Coleman v. Wilson, No. CV-00520-TEH (E.D. Cal. Apr. 23, 1990).
147 Coleman specifically addresses the lack of mental healthcare facilities
while Plata
addresses medical facilities generally. See Three-Judge Court Opinion and Order, Coleman v.
Schwarzenegger, No. 2:90-CV-0520 LKK JFM; Plata v. Schwarzenegger, No. 3:01-CV-01351- THE
(Aug. 4, 2009), available at http://www.caed.uscourts.gov/caed/Documents/90cv520ol08O4.pdf
[hereinafter Opinion and Order].
148 Coleman v. Wilson, 912 F. Supp. 1282
(E.D. Cal. 1995).
82 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 9: 1
California inmates with serious mental disorders. The Coleman plaintiffs raised
claims based on inadequate mental health care provided to California prisoners. In
1995, following a full trial in front of a Magistrate Judge, the District Court found
that the mental health care provided to California's inmates was constitutionally
inadequate, and that the State did not provide "basic, essentially common sense,
49
components of a minimally adequate prison mental health care delivery system."l
Based on these findings, the Coleman court entered an order requiring defendants
to develop plans to remedy the constitutional violations under the supervision of a
special master.so The Special Master supervised over a decade of remedial
efforts. By 2006, when the District Court judge granted the Coleman plaintiffs'
motion for a hearing before a three-judge panel, the court had issued over 70
orders in the Coleman case.'
Platav. Schwarzenegger, filed in 2001, was a class action lawsuit claiming
that the delivery of medical care in the California State penal system was
constitutionally inadequate. The parties in Plata (who had been informally
negotiating since 1999) negotiated a stipulation for injunctive relief in 2002.152
After three years of reports of the State's noncompliance with the agreement
(October 2005), the Plata court appointed a receiver to oversee the CDCR and
53
bring its management of inmate healthcare into constitutional compliance.' The
receiver was granted broad authority to develop and implement a system of
54
medical care delivery that met constitutional standards "as soon as practicable."l
In the meantime, on October 4, 2006, then-Governor Schwarzenegger
declared a state of emergency, stating that the overcrowding in prisons posed a
substantial risk to the health and safety of workers and inmates in California
prisons, and that immediate action was required to prevent death and harm caused
by severe overcrowding. 5 5 Following the Governor's declaration of the state of
emergency, both the plaintiffs in the Plata and Coleman cases filed motions to
convene a three-judge panel under PLRA to consider whether a Prison Release
Order should be considered, and the motions were granted. The cases were
consolidated, and heard before a three-judge panel to assess whether a Prison
Release Order was an appropriate remedy under the PLRA. Following an
extensive evidentiary hearing, the panel determined that overcrowding in state
149 Specific deficiencies cited by the court included delays in treatment, which worsened and
exacerbated illness, improper screening, improper medication management, poor record keeping and
chronic understaffing. Opinion and Order, supra note 143, at 25.
Iso Coleman, 912 F. Supp. at 1298.
'1 Opinion and Order, supra note 147, at 27.
152Id. at .
153 See id. at 20. The Plata court considered the appointment of a Receiver "a drastic measure"
but blamed "the State's abdication of responsibility," and stating that the court had "no choice but to
step in to fill the void." Id.
154 id.
"' See id. at 43.
penal facilities was the primary cause of the constitutionally inadequate provision
of medical and mental health care. The panel ordered California to create and
file a population reduction plan that will in no more than two years reduce the
population of the CDCR's adult institutions to 137.5% of their combined design
capacity.157
In the appeal before the Supreme Court, the State of California challenged the
three-judge order mandating that the State reduce the population of the prisons to
137.5% of their designed capacity within two years.' 5 8 The three-judge panel chose
this cap based on expert testimony and evidence presented during the hearing. The
plaintiffs had requested a 130% design capacity cap, and supported the request
with expert testimony, which included reports from the Gubernatorial Strike Team
tasked with addressing the Prison Overcrowding State of Emergency and the
Bureau of Prisons.' 59 Both reports set population management goals to cap inmate
populations at 130% design capacity. The State argued that these population goals
were "desirable," but not constitutionally required.160 Other expert testimony,
including a 2004 Corrections Independent Review Panel (prepared by a group of
experienced California prison wardens) suggested that "a system operating at
145% design capacity could 'support full inmate programming in a safe and secure
environment. "1 6 ' However, testimony regarding this report showed that adequate
medical and mental health facilities were not accounted for in preparing the report;
the court therefore reasoned that capping the population at 145% capacity would
not be enough to provide adequate care. Thus the judicial panel credited the
evidence supporting the 145% estimate "to the extent that it suggests that the limit
on California's prison population should be somewhat higher than 130% but lower
than 145%.",162 Given conflicting evidence, the panel ordered a population cap of
137.5% design capacity, which was "a population reduction halfway between the
cap requested by plaintiffs and the wardens' estimate of the California prison
116 Id. at 52.

'1 Id. at 183.
158 The challenge rests in part on the language of the PLRA, which states that a court
cannot
issue a prisoner release order unless "(i) a court has previously entered an order for less intrusive
relief that has failed to remedy the deprivation .... ; and (ii) the defendant has had a reasonable
amount of time to comply with the previous court orders." 18. U.S.C. 3226 (a) (3) (A). California
argues in part that it has not had a reasonable amount of time to remedy the violations. Brief of Plata
Appellees at i, Schwarzenegger v. Plata, 130 S. Ct. 3413 (2010) (No. 09-1233), 2010 WL 4641625 at
*25.
1 Opinion and Order, supra note 147, at 124.
16o Id. at 130.
16'The Judicial Panel notes, with some frustration, that the State did not propose an alternative
population cap that would fix the Constitutional violation. Id. at 128.
162 Additionally, the Panel found the evidence supporting the adequacy of care at 145%
capacity to be "far less persuasive." Id. at 130.
84 OHIOSTATE JOURNAL OFCRIMNAL LAW [Vol 9: 1
system's maximum operable capacity absent consideration of the need for medical
and mental health care."' 63
I realize these are a lot of details, but this litigation at the Supreme Court and
the struggle over 130%, 137.5%, or 145% overpopulations are very significant
because together, they signal a greater awareness of the plight of prisoners and of
their conditions of incarceration. The rhetoric at the oral argument and the media
coverage of the Supreme Court case seem to indicate a growing and wider
awareness of overcrowding in prisons and the resulting poor conditions, as well as
a growing concern for the best way to allocate public resources to address these
problems. Concern for the welfare of prisoners was evident in several questions
asked by the Justices. Justice Sonia Sotomayor openly asked the State to address
the human costs of overcrowding: "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?"'
Justice Stephen Breyer also called attention to the poor conditions-which he later
called "a big human rights problem" 65-stating that "it's obvious . . . . [y]ou
cannot have mental health facilities that will stop people from killing themselves
and you cannot have medical facilities that will stop staph and tubercular infection
in conditions like this." 1 66
Other questions indicated a fear of the consequences of the population cap,
reflecting the debates over the proper treatment of the mentally ill (isolated in
asylums or integrated into communities). But unlike the mental health debates, in
the prison context confinement itself is a part of punishment, and supposedly an
immediate deterrent to further crime. This consequentialist argument was reflected
in questions by Justice Samuel Alito' 67 and Chief Justice John Roberts, whose
questions emphasized the high recidivism rate of parolees,168 when addressing
whether the three-judge panel's order gave appropriate consideration to
community safety, in adherence with PLRA.
The oral arguments also indicated a growing frustration and exhaustion with
the public consequences of a large prison population. Justice Alito questioned the
appropriateness of a mandated prison cap, but Justices Breyer, Ginsburg and
Kennedy each emphasized the failure of previous attempts to improve conditions.
Throughout the argument, references were made to the failure to secure funding to
improve prison conditions to a constitutionally adequate state.
163 Id.
16 Transcript of Oral Argument at 15, Schwarzeneggerv. Plata, 131 S. Ct. 631 (No. 09-1233),
9
available at http://www.supremecourt.gov/oral-arguments/argument-transcripts/0 -1233.pdf.
165 Id. at 27.
'" Id. at 20.

161 Id. at 47 ("[If I were a citizen of California, I would be concerned about the release of
40,000 prisoners").
161 Id. at 66-67.
201 11] REDUCING MASS INCARCERATION 85
Media coverage of the case seems to indicate a growing public sentiment

against mass incarceration. 69 Many editorials, with titles such as The Crime of
Punishment and Overcrowding in PrisonsPut Us All at Risk, supported upholding
the three-judge panel's decision capping the prison population. Even articles that
focused more on the oral argument (and less on advocacy) seemed to note the
skepticism members of the Court showed for the State's arguments.170
This kind of high-profile litigation may well help to shift popular views about
prisons and prison conditions. Along with documentary films in the vein of Titicut
Follies, it is possible to imagine these legal and cultural interventions having an
effect on public perception that could ultimately reduce prison populations. It is
true that, while public sentiment may be more sympathetic to the more egregious
examples of horrific conditions in prisons, it seems unlikely that prisoners will
ever be able to evoke the same amount of sympathy as the mentally ill. In contrast
to mental patients, prisoners tend to be viewed as deserving of their punishment.
The question, though, is whether they will continue to be viewed as deserving of
the excessive forms of punishment associated with these overcrowded and
unsanitary prisons and jails.
III. THE PITFALLS OF DEINSTITUTIONALIZATION: WHAT TO AvOID?
A second large area to consider involves the pitfalls associated with

deinstitutionalization in the 1960s. The dangers here are even more
straightforward. Two leap to mind: the increased racialization of the institutions as
they were deinstitutionalized, and second, the transinstitutionalization that
occurred in the wake of deinstitutionalization.
A. Racializationof the InstitutionalizedPopulation
Deinstitutionalization in the 1960s and 1970s drew heavily on predictions of

future dangerousness. The difficulty here is that the use of risk assessment tools
169 See, e.g., Robert Barnes, High CourtHears CaliforniaPrisonCase, WASH. POST, Dec. 1, 2010,
at A2; Jimmy Bierman & Jamie Dorenbaum, Editorial, Viewpoints: 'Three Strikes Law' is a Human
Travesty, SACRAMENTO BEE, Dec. 17, 2010, at A19; The Crime ofPunishment, N.Y. TIMES, Dec. 6, 2010,
at A26; Michael Doyle, CaliforniaPrison Ruling Expected to Be Split: Supreme Court Dividedon How to
Fix Crowding, THE FRESNO BEE., Dec. 1, 2010, at Al; David Fathi, Bulging Prisons Put Us At Risk,
CONTRA COSTA TIMES, Dec. 4, 2010, at A8; High Court to Look at Calif Prison Crowding, THE
ASSOCIATED PRESS, Nov. 30, 2010, available at 2010 WLNR 23811684; Adam Liptak, Justices Hear
Arguments on CaliforniaPrison Crowding,N.Y. TIMEs, Dec. 1, 2010, at A16; Warren Richey, California,
at Supreme Court, Fights Judicial Order on Prison Overcrowding, CHRISTIAN Sci. MONITOR (Nov. 30,
2010), http://www.csmonitor.com/USA/Justice/2010/l130/Califomia-at-Supreme-Court-fights-judicial-
order-on-prison-overcrowding; Prison Ruling Stirs Up California, WALL ST. J. (Nov. 29, 2010),
http://online.wsj.com/article/SB10001424052748703785704575642940131431372.html.
170 Bob Egelko, State Arguments Draw Skepticism from High Court, S.F. CHRON., Dec. 1,
2010 at Cl; David G. Savage, State Prison Case Falls on Dubious Ears; High Court Appears Likely
to Back Ruling OrderingCalifornia to Free 40,000 Inmates, L.A. TIMES, Dec. 1, 2010, at AAl.
typically has the effect of sorting based on race and increasing the racial
disproportion within our "dangerous" populations. This was certainly the case
with regard to mental hospitals. It is also likely to happen with prisons if we rely
too heavily on risk assessment.
The turn to dangerousness had a distinctly disproportionate effect on African-
American populations: the proportion of minorities in mental hospitals increased
significantly during the process of deinstitutionalization. From 1968 to 1978, for
instance, there was a significant demographic shift among mental hospital
admittees. In a 1984 study, Henry Steadman, John Monahan, and their colleagues
tested the degree of reciprocity between the mental health and prison systems in
the wake of state mental hospital deinstitutionalization using a randomly selected
sample of 3897 male prisoners and 2376 adult male admittees to state mental
hospitals from six different states."' Their research revealed that the proportion of
non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in
1978: "Across the six states studied ... [t]he percentage of whites among admitted
patients also decreased, from 81.7% in 1968 to 68.3% in 1978."l72 This is
demonstrated in the following graph, which charts the shift documented by
Steadman, Monahan, and their colleagues:
Figure 5: Admissions to mental facilities by Race
o.8
J Non-White
4 Whit White
0.2/Wht
o Non-White
1968
1978
The track record is damning: mental hospitals were deinstitutionalized by

focusing on dangerousness and the result was a sharp increase in the black
representation in asylums and mental institutions. I have written at greater length
171 Henry J. Steadman et al., The Impact of State Mental Hospital Deinstitutionalizationon
UnitedStates PrisonPopulations, 1968-1978, 75 J. CiuM. L. & CRIMINOLOGY 474, 478 (1984).
.7.Id. at 479. Note that there was a similar, though less stark shift in prison admissions:
"Across the six states .... [t]he percentage of whites among prison admittees was also relatively
stable, decreasing only from 57.6% in 1968 to 52.3% in 1978." Id.
about this in an essay, Risk as a Proxy for Race, and Michelle Alexander has
forcefully drawn the devastating consequences for African-American communities
and American politics in her book The New Jim Crow: Mass Incarcerationin the
Age of Colorblindness (2010) and in her contribution to this symposium. It is
absolutely crucial that, in any effort to reduce mass incarceration, this pitfall be
avoided.
B. Transinstitutionalization
The other danger to avoid is transinstitutionalization. This unquestionably

happened with the mentally ill, as they were not only transferred to nursing homes,
but eventually became a much larger segment of the prison population. William
Gronfein has documented the transinstitutionalization of older mental patients
from hospitals to nursing homes in the 1970s. Gronfein emphasized that the
overall institutionalized population did not decrease over the 1960s, but in fact rose
slightly from 1035 per 100,000 general population in 1960 to 1046 per 100,000 in
1970. Yet, during this period, the proportion of the institutionalized population in
nursing and old age homes increased from 19% in 1950 to 25% in 1960, and
reached 44% by 1970.173 As Gronfein explained, "The total number of nursing
care and related homes rose from 16,701 in 1963 to 22,558 in 1971, an increase of
35.1%, while the number of beds available in such homes rose from 568,560 to
1,235,405, an increase of 117.3%."174 In Gronfein's view, this was the product of
Medicare and Medicaid, which encouraged the substitution of one institution
(nursing care) for another (mental hospitals).
In addition, we have all witnessed the transinstitutionalization of mental
health patients into prisons and jails. In his paper, The Deinstitutionalizationof the
Mentally Ill and Growth in the U.S. Prison Populations: 1971 to 1996,175 Steven
Raphael explores the relationship between mental hospitalization and prison
populations using state-level data for the period 1971 to 1996, and finds that
deinstitutionalization from 1971 to 1996 probably resulted in between 48,000 and
148,000 additional state prisoners in 1996, which, according to Raphael, "accounts
for 4.5 to 14% of the total prison population for this year and for roughly 28 to
86% of prison inmates suffering from mental illness."' 7 6 What we also know is
that, at the close of the twentieth century, there was a high level of mentally ill
offenders in prisons and jails in the United States-283,800 in 1998-representing
16% ofjail and state prison inmates. 77

174 id.
175 Steven Raphael, The Deinstitutionalization of the Mentally Ill and Growth in the U.S.
Prison Populations: 1971 to 1996 (September 2000) (unpublished manuscript, on file with the
Goldman School of Public Policy at University of California, Berkeley).
176 Id. at 12.
17 DrrroN, supra note 105.
88 OHIO STATE JOURNAL OF CRIANAL LAW [Vol 9: 1
There is a significant risk that any decarceration will simply produce new
populations for other institutions, whether homeless shelters, inpatient treatment
facilities, or other locked-down facilities. This is certainly what happened last
time. The question is, can it be avoided this time?
IV. CONCLUSION
Would it ever be possible to listen to a President of the United States declare

to Congress:
If we launch a broad new program now, it will be possible within a

decade or two to reduce the number of prisoners now under custodial
detention by 50 percent or more. Many more inmates can be helped to
remain in their homes without hardship to themselves or their families.
Those who are incarcerated can be helped to return to their own
communities . . . . Central to a new program is comprehensive
community services. Merely pouring Federal funds into a continuation
of the outmoded type of institutional detention which now prevails would
make little difference.17 8
I do not know the answer to this question, and my task has not been to predict
or to speculate, but rather to sketch, preliminarily, some lessons from our past
experience of deinstitutionalization. Whether I, personally, am optimistic or
pessimistic should be of no concern to you. One of the important lessons that
should be of concern, though, is that it may 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. If we are indeed to work
toward decreased prison populations, the task ahead will be to maximize the silver
linings of 1960s deinstitutionalization while avoiding the glaring pitfalls-or, at
the very least, to further study the lessons from deinstitutionalization.
178 President Kennedy's statement to Congress, slightly modified. Incentives, supra note 1, at
196.

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

If we launch a broad new mental health program now, it will be possible

President Kennedy's aspiration of a 50% drop, it turns out, underestimated the

deinstitutionalization in the 1950s contribute to a reduction of our prison

there is still relatively little in terms of sustained discussion of the parallels to be

Figure 1: Rates of Institutionalization in Mental Institutions and State and

100.00 ... ............ n. -

0.0 rR - o t tg.. .AII.ie t i o in

-- P, ison Rate -- All Mental Hospital Rate - Aggregated InSt~tUtionalization Rate

In fact, even if we include the jail population, the contrast remains

Figure 2: Rates of Institutionalization in the United States (including jail

As these figures demonstrate, the earlier period of mass institutionalization

1 Data collected from InstitutionalizationEffect, supra note 9, at 43.

Figure 3: Different Rates of Institutionalization in Mental Institutions in the

a Al Mental Hospitals E State, Counly and City Mental I c0spitals

19 Data collected from InstitutionalizationEffect, supra note 9, at 53.

instance, 22 as well as the famous H~pital G6n6ral in Paris established in 1656 by

34 See generally ROTHMAN, supra note 8, at 79.

39 HIRSCH, supra note 21, at 112.

43 ILLUSION, supra note 15, at 208-20.

In contrast, the population in psychiatric institutions experienced a period of

47 TORREY, supra note 29, at 82

II. EXPLORING THE MAJOR FORCES THAT CONTRIBUTED TO

A. The Major FactorsInfluencing Deinstitutionalizationin the 1960s

1. Drugs and the Development of Psychiatric Medication

5s Gronfein, supra note 6, at 444.

58 Gronfein, supra note 6, at 441.

'6 Id. at 441-42.

6 ROCHEFORT, supra note 61, at 39.

66 Gronfein, supra note 6, at 450.

2. Financial Incentives: Federal Programs and Cost-Shifting Incentives

A second major contributing factor to deinstitutionalization was federal

67 BERNARD L. BLOOM, COMMUNITY MENTAL HEALTH: A GENERAL INTRODUCTION 20 (2d

3. Changing Social Attitudes towards Mental Illness

Together, these trends helped reshape social and cultural perceptions of

7 Incentives, supra note 1, at 201.

80 JOSEPH HALPERN ET AL., THE MYTHS OF DEINSTITUTIONALIZATION: POLICIES FOR THE

community mental health, an alternative approach that favored a more

91 See BLooM, supra note 67, at 22.

Because the state was unable to meet the judicially-mandated standards of

First, the experience of World War II appeared to demonstrate the

98 TORREY, supra note 29, at 144.

B. DrawingParallelswith the CurrentSituation ofMass Incarceration

1. Prescribed Drugs and Other Biological Interventions

in American Government Award Winner, CouNTY OF MILWAUKEE,

The model throughout these specific interventions, it seems, is to identify

114 Decety et al., supra note 111, at 203.

how schizophrenia as a diagnosis became overwhelmingly applied to

2. The Great Recession of 2008

The second factor to consider involves ways of restructuring federal