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10.  Criminal Justice and Forensic Issues

10.1 Ultimate Responsibility of Mental Health Systems

Mental health systems have ultimate responsibility for treating all people with severe mental illness.  A substantial number of people with severe mental illness require twenty-four hour, seven days per week structured care, either for long or short periods of time.  It is never appropriate to allow the care of such persons to be shifted to the criminal justice system.

10.2 Therapeutic Jurisprudence

NAMI endorses the principal of therapeutic jurisprudence, which emphasizes that the law should be used, whenever possible, to promote the mental and physical well being of the people it affects.  For example, in a system characterized by therapeutic jurisprudence, people with serious mental illnesses charged with non-violent crimes are diverted into programs designed to address their treatment and service needs, rather than incarcerated. Individuals with serious mental illnesses convicted of serious crimes are provided with humane and appropriate treatment while incarcerated. And, these individuals are provided with appropriate linkages to needed services and support  s upon discharge to enable them to successfully reenter their comm  unities.

10.3 Collaboration 

NAMI believes that state and local mental health authorities must work  closely in conjunction with state and local correctional and law enforcement agencies to develop strategies and programs for compassionate intervention by law enforcement, jail diversion, treatment of individuals with serious mental illnesses who are incarcerated, and discharge planning and comm  unity reintegration services for individuals with serious mental illnesses released from correctional facilities.

(10.3.1)       NAMI believes that at least 25% of law enforcement first responders in each jurisdiction should be trained for a minimum of 40 hours consistent with model standards for police crisis intervention training in order to better assure safety, appropriate de-escalation, less lethal consequences and opportunities for treatment.

10.4 Boot Cam  ps

Youth with serious mental illnesses should never be placed in boot camps, “scared straight” or similar programs that use punishment as the primary source of behavior change. There is sufficient evidence that these programs are non-therapeutic and cause harm. In some cases, placement in boot camps has led to the unnecessary and tragic deaths of these youths.

10.5 Right to Treatment (Regardless of Criminal Status)

(10.5.1)       Humane and effective treatment for serious mental illnesses while in  correctional settings is the constitutional right of inmates with severe mental illnesses.  NAMI strongly urges the enactment of state statutes expanding treatment programs within prison and jail settings,  including first line access to new generation medications whenever clinically indicated.

(10.5.2)      NAMI endorses state laws and policies establishing systems of community treatment for offenders with serious mental illnesses who are released on parole and/or are in the comm  unity on probation or parole status.

10.6  Sexual Assaults and Victimization in Jails and Prisons

(10.6.1)     NAMI abhors the sexual victimization of juveniles and adults living with mental illness in correctional facilities.  Studies show that inmates diagnosed with mental illness are significantly more likely to be sexually victimized than other inmates.  Rapes and sexual assaults have devastating consequences for victims in correctional facilities and have been shown to increase anxiety, suicidal ideation and post-traumatic stress disorder among those who are victims.  They have also been linked to poor mental health and health outcomes and increased risk of sexually transmitted diseases.

(10.6.2)      NAMI calls for aggressive enforcement of the Prison Rape Elimination Act (PREA) of 2003 and urges the federal government, states, counties and local communities to adopt and implement national standards for the prevention, detection and punishment of rapes in correctional settings.  National standards should be applied to all correctional settings, including local jails, state and federal prisons, lock-up facilities, community corrections and juvenile justice facilities.   The implementation of PREA should never be used as a justification for placing vulnerable individuals in solitary confinement or other forms of administrative segregation.   

10.7 Jail Diversion

(10.7.1)     NAMI believes that persons who have comm  itted offenses due to states of mind or behavior caused by a serious mental illness do not belong in penal or correctional institutions.  Such persons require treatment, not punishment.  A prison or jail is never an optimal therapeutic setting.

(10.7.2)     NAMI support  s a variety of approaches to diverting individuals from unnecessary incarceration into appropriate treatment, including pre-booking (police-based) diversion, post-booking (court-based) diversion, alternative sentencing programs, and post-adjudication diversion (conditional release).

10.8 Violence and Guns

(10.8.1)      NAMI recognizes that when dangerous or violent acts are committed by persons with serious mental illnesses, it is too often the result of neglect or ineffective treatment. Mental health authorities must implement and sustain policies, practices and programs that provide access to early diagnosis, crisis intervention, appropriate treatment (including integrated treatment when there is co-occurring substance abuse) and support that saves lives. NAMI strongly advocates that people with mental illnesses not be stigmatized and subjected to discrimination by being labeled “criminal” or “violent.” There is very rarely correlation between mental illness and violent behavior and mental illness must not be confused with sociopathic behavior.

(10.8.2)      NAMI recognizes that epidemic gun violence is a public health crisis that extenuates risks of lethal harm by others, self-harm and harm to others for people with mental illnesses. Gun violence is overwhelmingly committed by people without mental illness. NAMI believes that firearms and ammunition should not be easier to obtain than mental health care. NAMI supports reasonable, effective, consistently and fairly applied firearms regulation and safety as well as widespread availability of mental health crisis intervention, assistance and appropriate treatment. In the absence of demonstrated risk, people should not be treated differently with respect to firearms regulation because of their lived experience with mental illness.

10.9  Death Penalty  

NAMI opposes the death penalty for persons with serious mental illnesses.

(10.9.1)    NAMI urges jurisdictions that impose capital punishment not to execute persons with mental disabilities under the following circumstances: 

(10.9.1.1)  Defendants shall not be sentenced to death or executed if they  have a persistent mental disability, with onset before the offense, characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in their conceptual, social, and practical adaptive skills.   

(10.9.1.2)  Defendants shall not be sentenced to death or executed if, at the time of theiroffense, they had a severe mental disorder or disability that significantly impaired their capacity
(a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. 
 A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability, for purposes of this provision.

(10.9.1.3)   Sentences of death shall be reduced to lesser punishment if prisoners under such sentences are found at any time subsequent to sentencing to have a mental disorder or disability that significantly impairs their ability

(a) to understand and appreciate the nature of the punishment or its purpose, (b) to understand and communicate information relating the death sentence and any proceedings brought to set it aside, or (c) to make rational choices about such proceedings.

10.10     Insanity Defense  

NAMI supports the retention of the “insanity defense” and favors the two-prong (“ALI”)[2] test that includes the volitional as well as the cognitive standard.

(10.10.1)   “Guilty but Mentally Ill”

NAMI opposes “guilty but mentally ill” statutes as presently applied because they are used to punish rather than to treat persons with serious mental illnesses who have comm  itted crimes as a consequence of their serious mental illnesses.

(10.10.2)   “Guilty except for insanity” and other alternative terminology for the insanity defense

NAMI support  s systems that provide comprehensive, long-term care  and supervision to individuals who are found “not guilty by reason  of insanity”, “guilty except for insanity”, and any other similar    terminology used in state statutes [3]

(10.10.3)    “Informing Juries about the Consequences of Insanity Verdicts”

NAMI believes that juries in cases where the insanity defense is at  issue should be informed about the likely consequences of an insanity verdict to enable them to make a fair decision.



[2]  The “ALI  test” refers to the rule for insanity adopted in Section 4.01(1) of the American Law Institute'’ Model Penal Code.  The Code states that “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (or alternatively, wrongfulness) of his conduct (cognitive standard) or to conform his conduct to the requirements of law (volitional standard).”

[3] States currently apply three different terms to verdicts incorporating a formal finding or acknowledgement of mental illness. 

“Not guilty by reason of insanity” is the traditional term used when a person is determined as not criminally responsible due to mental illness.   Individuals found “not guilty by reason of insanity” are typically sentenced to secure psychiatric treatment facilities instead of prison.

“Guilty but mentally ill” (GBMI) statutes have been adopted in the criminal codes of a number of states.   These statutes currently function very similarly to “guilty” verdicts.   An individual found GBMI could be sentenced to life in prison or even to death.   Additionally, a verdict of GBMI does not guarantee psychiatric treatment.

“Guilty except for insanity” statutes have been adopted in several states such as Oregon and Arizonaas substitutes for “not guilty by reason of insanity.”  These states have developed effective systems for providing long-term treatment and supervision to individuals who are found “guilty except for insanity.”


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