Dyanoosh Youssefi Headshot

Should the Mentally Ill Be Put in Jail?

Posted: Updated:

Say one thing, do the opposite. That sums up the Canadian government's approach to the treatment of the mentally ill in the criminal justice system.

"(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities." Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012. He made this sweeping and dramatic claim in the wake of the release of the Ashley Smith videos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews's comments might give an observer hope -- hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012. In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be "not criminally responsible," or NCR, by the courts if this person was unable to "appreciate the nature and quality of his actions" at the time of the offence. (Section 16 of the Criminal Code of Canada)

People who are found NCR receive an indefinite sentence. Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment. A panel of experts then annually reviews the inmate's progress to determine if her mental illness is under control, and if it is safe to release her. (Criminal Code of Canada, s. 672.81)

Blog continues below slideshow...

Close
15 Things Critics Fear In The Tory Crime Bil
of
Share
Tweet
Advertisement
Share this
close
Current Slide

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe. As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions. That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems. Despite that, it will not be the worst offender for putting the mentally-ill in jail. A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed "Truth in Sentencing Act" of 2009, which restricted a judge's ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction. Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons. The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year. Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person's mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health. The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40 per cent of the incarcerated population suffers from a mental disorder [LINK]. These health problems cannot and will not be remedied in jail. On the contrary, the mental health of these people will often be more acute than before they entered state custody. But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that's where they're going.

There is little to no logical connection between the government's words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.

But I won't recommend jail.