Part II: The Consequences of Deinstutionalizing the Severely Mentally Ill

Report Gun Rights

Part II: The Consequences of Deinstutionalizing the Severely Mentally Ill

February 5, 2019 About an hour read Download Report

Authors: John Malcolm and Amy Swearer


This is Part II of a three-part series exploring the intersections of mental illness, violence, and firearms. As the nation sits in the midst of a serious discussion about gun violence in general, and mass shootings in particular, we must ensure that policy decisions regarding Second Amendment rights reflect an accurate understanding of the role mental illness does and does not play in gun violence, as well as an accurate understanding of why the United States is suffering from a crisis of untreated serious mental illness.

Key Takeaways

To combat the effects of deinstitutionalization, states should ensure that first responders are properly trained for interacting with mentally ill individuals.

States should provide adequate psychiatric beds so that individuals in the midst of mental health crises have access to appropriate treatment facilities.

States must also strengthen the involuntary civil commitment and mandatory outpatient treatment laws without neglecting due process.

Beginning in the 1970s, several significant catalysts combined to lead the United States toward the mass-scale deinstitutionalization of the nation’s seriously mentally ill, removing tens of thousands of individuals from long-term, in-patient psychiatric care without adequate alternatives in place. This well-intentioned but poorly planned policy shift has had disastrous consequences for both the mentally ill and the communities ill-prepared to care for them, and likely played a significant role in subsequent increases in violent crime.

As a result of deinstitutionalization, jails and prisons around the country are full of mentally ill individuals perpetually “reinstitutionalized” as the result of their lack of treatment. There are simply not enough psychiatric hospital beds of last resort, leading to a vicious cycle of mental health crises and emergency short-term care that continually burdens community health and safety infrastructures without solving the underlying problem. The longer individuals with mental health problems wait for treatment, the more likely it is that a mental health crisis will develop, and the individual will need more intensive treatment for a longer period of time—a situation in which both the mentally ill individual and the community ultimately lose.

To combat this growing problem and to ensure the safety of their communities, states should provide adequate numbers of public psychiatric beds and strengthen their mental health commitment laws while still affording necessary due-process protections. Further, states should more efficiently utilize their existing mental health commitment laws and infrastructure.

It is imperative that we understand how the mass deinstitutionalization of the severally mentally ill helped create the situation we now find ourselves in as a nation. Mental illness is too often not adequately treated, with devastating results—not just for those suffering from mental illness, but for the communities trying desperately to deal with the fallout. Individuals with severe mental illness are, as a result of deinstitutionalization, increasingly herded into state prisons and local jails, where they are less likely to receive treatment and more likely to be victims of violent crime and abuse.

The lack of necessary beds of last resort or any viable alternatives increases the risk of violent and fatal encounters between the severely mentally ill and law enforcement—and is associated with an overall increase in violent crime. Particularly with regard to gun violence, states can counteract the consequences of deinstitutionalization by providing adequate numbers of public psychiatric beds and strengthening their involuntary civil commitment and mandatory outpatient treatment laws without neglecting due-process protections.

I. Deinstitutionalization May Have Played a Significant Role in the Dramatic Increase in Violent Crime Rates During the 1970s and 1980s.

Before public psychiatric hospitals were in common use, America’s mentally ill generally remained in their family’s homes and were cared for by family members or friends, and their seemingly strange behaviors were often simply tolerated by their communities.REF When these individuals either became too disruptive or had no one to look after their well-being, they were often confined to jails or “poorhouses.”REF

Beginning in the early- to mid-19th century, advocates for better treatment of the mentally ill, such as Dorothea Dix, began a quite successful lobbying campaign to persuade state governments to fund the building of 32 state psychiatric hospitals. While Dix attempted to persuade the federal government to use the proceeds from federal land sales to support state psychiatric institutes, President Franklin Pierce vetoed Congress’s 1854 bill on the matter, calling it contrary to the Constitution and to the general idea that states—not the federal government—were responsible for their mentally ill citizens.REF Indeed, until 1945, the care of mentally ill individuals was exclusively the responsibility of state and local governments.REF

As a result of deinstitutionalization, jails and prisons around the country are full of mentally ill individuals perpetually “reinstitutionalized” as the result of their lack of treatment.

The goal of these hospitals was to remove from families the burden of caring for mentally ill individuals and allow those individuals to live in safe conditions where they could be treated by professional staff. Many of these facilities were originally developed around the “Kirkbride Plan,” which focused on providing care for relatively small numbers of patients (no more than 250) in buildings designed to promote fresh air, privacy, and comfort—often in relatively secluded locations outside of crowded urban areas.REF

By 1870, state taxpayer-funded “asylums” were considered critical to the well-being of poorer mentally ill individuals who could not afford the care provided by private hospitals, and nearly every state had one or more asylums available for public psychiatric care.REF Economic considerations sometimes led to funding cuts or increased numbers of patients beyond the intended capacity, and by the end of the 19th century, physicians increasingly began opening small, private asylums for wealthy patrons.REF But by the 1950s, there were well over one-half million patients in state-funded mental hospitals.REF

There were several significant catalysts that eventually led to deinstitutionalization on a mass scale and the shuttering of many of these facilities.REF First, there was a growing public awareness of truly horrific conditions that existed in some large state psychiatric hospitals, including overcrowding, abuse, and poor—and sometimes a complete lack of— actual psychiatric treatment.REF Exposés such as Life Magazine’s “Bedlam 1946” and Albert Deutch’s The Shame of the States provided blistering criticisms of the shocking conditions at individual hospitals.REF

Second, general liberalization trends that promoted community-based treatment centers coincided with the development of anti-psychotic medications that led many professionals to reconsider the possibility of managing mental illness outside of institutional settings.REF The 1955 development of the so-called wonder drug chlorpromazine in particular showed incredible promise for increasing the reliability of outpatient treatment.REF These trends toward community treatment and outpatient medication management were officially endorsed as national policy by the Community Mental Health Act of 1963, in which the federal government committed itself to the establishment of and funding for community-based mental health services.REF

Third, when Medicaid was established in 1965, it de facto encouraged states toward deinstitutionalization by incentivizing them to eliminate state psychiatric beds: States were prohibited from using Medicaid dollars to cover the care of mentally ill adults in inpatient psychiatric settings, and in turn were also promised more federal dollars for each patient transferred to outpatient settings.REF It became financially beneficial for states to have as few public psychiatric beds as possible and instead to rely on outpatient treatment, leading many states to alter how they provided mental health services in order to maximize their receipt of federal dollars, instead of basing their treatment decisions solely on the needs of their citizens.REF

Finally, federal courts cemented this trend toward deinstitutionalization by fundamentally altering the legal standards for civil commitments, making it much more difficult for the government to impose treatment on mentally ill individuals. From the opening of state asylums in the mid-18th century until the 1970s, courts considered involuntary mental health commitments to be part of the state’s parens patriae power,REF and states could commit to mental institutions any person simply by showing the person suffered from mental illness and had a “need for treatment.”REF

Beginning in the 1970s, the Supreme Court—in tandem with other changes in social sciences regarding the mentally ill—delivered a series of opinions that greatly affected the ability of states to maintain custodial supervision of even the most clearly mentally ill individuals. In 1975, in O’Connor v. Donaldson,REF the Court determined that, in order to involuntarily commit a person to a mental health treatment facility, the state must prove not just that the individual suffers from a mental illness and is in need of treatment, but that the individual poses a risk of danger to himself or others as a result of his or her mental illness and is incapable of surviving safely by himself or with the assistance of capable and willing friends or family members.REF

Courts have recognized that individual liberty interests must be balanced against the state’s interest in providing care to its citizens and protecting the community from dangerous individuals.

The Court did not clarify the standard by which the state must prove dangerousness until 1979, when it held in Addington v. TexasREF that the State must prove the element of dangerousness by clear and convincing evidence.REF This standard sets a higher bar than that of “preponderance of the evidence,” which was the standard used by many states at the time, making it significantly more difficult for states to ensure that individuals who might reasonably pose a danger to themselves or others received adequate treatment.

Courts have also made it easier for people to refuse treatment.REF The common law reflects a right to be free from unwarranted personal contact, and this has evolved into a general right of patients to refuse medical treatment “however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as incompetency.”REF Courts have found that this right applies even to individuals who are mentally ill, and that even patients involuntarily committed to mental institutions are not necessarily incompetent or incapable of giving informed consent to medical treatment.

Despite the recognition of the right of mentally ill individuals to refuse medical treatment, courts have recognized that their liberty interests must be balanced against the state’s interest in providing care to its citizens and protecting the community from dangerous individuals. Further, the procedures for determining whether a mentally ill individual can be forcibly medicated must satisfy the Fourteenth Amendment’s procedural protections. For example, in the 1990 decision in Washington v. Harper, the Supreme Court held that the state can treat a seriously mentally ill inmate against his will only if it first proves he is gravely disabled or dangerous to himself or others, the treatment is in his medical interest, and sufficient due-process protections exist in the diagnosis and treatment decisions.REF

II. Deinstitutionalization Is Still Occurring Today, and Its Effects Are Devastating.

Despite the best of intentions by those pushing deinstitutionalization, the movement has been called “the largest failed social experiment in twentieth-century America.”REF States began a large-scale reduction of the number of inpatient psychiatric beds, but on the whole failed to establish or fund an adequate network of community care centers or outpatient treatment facilities to fill the void left by the closing of state mental institutions.

Between 1955 and 2016, the United States experienced a 95 percent decrease in the number of available public psychiatric beds.REF The average among 34 Organization for Economic Co-operation and Development (OECD)REF countries is 68 psychiatric beds per 100,000 people, while the United States’ average of 25 beds per 100,000 people places us near dead last.REF That was in 2011. Between 2010 and 2016, another 6,000 state hospital beds were eliminated in the U.S., while the population increased by 14 million.REF

The dramatic reduction in available beds has been compounded by equally dramatic reductions in state mental health spending. Between fiscal years 2009 and 2012, states cut a cumulative $4.35 billion from their mental health budgets.REF There are far too few psychiatric beds of last resort to adequately treat mentally ill individuals, and there is too little coercive power to force treatment upon seriously mentally ill individuals until they are actively dangerous—at which point, it may be too late.

The Devastating Results of Continued Deinstitutionalization. This decades-long trend toward closing down public psychiatric hospitals without first having in place—or even later building—an effective and sufficient network of alternatives has been devastating to both the severely mentally ill and to the communities to which they have been returned.REF Many of the severely mentally ill simply refused to accept voluntary treatment once they were released from inpatient care, and “deinstitutionalization returned them not so much to the community, as to park benches, the lobbies of public buildings, and alleys.”REF Chronic homelessness, a concept scarcely heard of prior to deinstitutionalization, was thrust into the national spotlight in the late 1980s in large part because of the ever increasing numbers of seriously mentally ill individuals with nowhere else to go.REF

Further, in a shameful twist, many seriously mentally ill individuals have been reinstitutionalized, but this time into prisons, not treatment facilities. America’s jails and prisons have become its new psychiatric facilities, to the detriment of taxpayers and the seriously mentally ill, who are given less-than-adequate care as a result.REF

The bare statistics on the prevalence of serious mental illness in state and federal inmates underscore the significance of the problem. According to a Bureau of Justice Statistics report based on survey information during the 2011–2012 fiscal year, 37 percent of state and federal prisoners, and 44 percent of jail inmates had been told in the past by a mental health practitioner that they had a mental health disorder.REF

The number of inmates exhibiting symptoms of mental illness is likely much higher than the number of inmates who had actually received a diagnosis.

A similar 2006 survey by the Bureau of Justice Statistics indicates that the number of inmates exhibiting symptoms of mental illness is likely much higher than the number of inmates who had actually received a diagnosis: 43 percent of state prisoners and 54 percent of jail inmates reported symptoms meeting the criteria for mania in the last 12 months, while 15 percent and 24 percent, respectively, reported that they had exhibited symptoms meeting the criteria for a psychotic disorder in the last 12 months.REF A 2016 report by the Treatment Advocacy Center found that 44 states and the District of Columbia have higher populations of mentally ill individuals in their jails and prisons than they do in their public psychiatric facilities.REF

The financial costs of this influx of mentally ill inmates are staggering, as mentally ill inmates cost jails and prisons considerably more money to house than do non–mentally ill inmates.REF And because most jails and prisons are not designed to adequately treat serious mental illness, inmates with serious mental illness stay incarcerated for a far longer average number of days than do inmates without mental illness.REF This is, in part, because seriously mentally ill inmates often rack up new charges while in prison or on parole.REF They are also victimized at far higher rates than non–mentally ill prisoners.REF

State psychiatric hospitals traditionally played roles rarely duplicated elsewhere in the mental health system, including housing and treating pretrial detainees in need of being restored to competency, defendants being evaluated for insanity defenses, and convicted inmates in need of intensive psychiatric care. As the number of hospital beds continues to shrink, inmates requiring psychiatric evaluation or treatment are increasingly monopolizing public psychiatric beds, causing lengthy waitlists for many non-violent individuals in the midst of mental health crises. These non-violent, non-criminal (but seriously mentally ill) individuals are left to overcrowded emergency rooms.REF

In some areas of the country, hospital emergency rooms have been forced to compensate for the lack of mental health beds by becoming de facto psychiatric units, with individuals suffering from acute psychiatric crises being boarded for days—sometimes weeks—in the emergency department instead of in a proper psychiatric facility.REF This, in turn, exacerbates the problem: Seriously mentally ill individuals who could otherwise have received proper and continuing treatment are increasingly discharged to their homes instead of hospital beds, only to be returned to the emergency department at the onset of another mental health crisis.REF These individuals often return in the midst of even worse psychiatric crises, requiring even longer periods of time to stabilize for discharge. The longer stays in the emergency department substantially affect the flow of other non-psychiatric emergency patients.REF

Not only have our penal institutions been turned into de facto psychiatric care facilities—diverting scarce resources and creating a dangerous environment for prison personnel and other inmates—but the burden of dealing with the mental health crises of individuals released into the community has increasingly fallen upon law enforcement officers instead of mental health professionals. Millions of man-hours are lost every year from traditional law enforcement duties as officers often find themselves dedicating their shifts to mental health–related tasks such as transporting mentally ill individuals.REF

The burden of dealing with the mental health crises of individuals released into the community has increasingly fallen upon law enforcement officers instead of mental health professionals.

In 2009, North Carolina officials estimated that law enforcement in this state alone spent 228,000 hours on these non-traditional policing jobs. Anecdotes from individual police departments about the dramatically increasing number of mental health–related service calls abound,REF including from Tucson, Arizona, where in 2013 police averaged more mental illness–related calls per day than calls regarding stolen cars or burglaries.REF Nationwide, a steadily increasing number of state and local law enforcement agencies are offering (in many cases, mandating) specialized mental health training for their officers.REF They are also generally playing an increased role in the provision of psychiatric services traditionally assumed by health-specific agencies, often hiring mental health professionals or social workers to help manage the case loads of seriously mentally ill individuals who regularly come into contact with officers.REF

The increased contact between untreated, seriously mentally ill individuals and law enforcement officers is detrimental to both the officers—who, even with training, are far from mental health professionals—and the mentally ill individuals. The majority of the 107 individuals tasered by Sheriff’s deputies in Ventura County, California, in 2007 were mentally ill, while in Santa Clara County, California, 10 of the 22 officer-related shootings from 2004 to 2009 involved mentally ill individuals.REF

Similarly, according to various studies, individuals with mental illness accounted for a disproportionate number of police-involved shootings in Portland, Oregon, between 2009 and 2012,REF New Hampshire in 2011,REF Maine between 2000 and 2012,REF and Albuquerque, New Mexico, between 2010 and 2012.REF Some studies suggest that as many as one-third of all shootings by law enforcement officers are the result of victims attempting “suicide-by-cop.”REF According to one 2012 analysis, at least half of all physical attacks on police officers are by individuals suffering from mental illness, many of whom are untreated.REF

According to several prominent criminologists, mass-scale deinstitutionalization of the mentally ill better explains the sharp increases in violent crime during the 1980s and 1990s than any other factor—including the availability of firearms or differences in gun control laws.

According to several prominent sociologists and criminologists, the mass-scale deinstitutionalization of the mentally ill—without adequate alternative mental health services in place—better explains the sharp increases in violent crime during the 1980s and 1990s than any other factor, including the availability of firearms or differences in gun control laws.REF Further, the equally sharp and prolonged decrease in violent crime that occurred over the past three decades can be explained at least in part by the “incarceration revolution,” which has resulted in large percentages of the mentally ill population being “reinstitutionalized” in jails and prisons rather than in mental health facilities.REF

In fact, studies have shown that if the population of mentally ill prisoners is included with mental hospital inmates, there is “an astonishingly strong negative correlation between the institutionalization rate, and the murder rate”REF (meaning the higher the institutionalization rate, the lower the murder rate).REF This pattern is consistent with a 2006 study of 81 American cities, which reported a statistically significant correlation between the number of public psychiatric beds available in a city and that city’s rate of violent crimes such as murder, robbery, assault, and rape.REF

A 2011 study of various states similarly concluded that having fewer public psychiatric beds was statistically associated with increased rates of homicide,REF while a 2012 study found an inverse relationship between state hospital expenditures per capita and rates of aggravated assault, and between the loss of public psychiatric beds and violent crime.REF

III. States Should Provide Adequate Numbers of Public Psychiatric Beds and Strengthen Their Involuntary Civil Commitment and Mandatory Outpatient Treatment Laws Without Neglecting Due Process.

Recent studies have produced strong evidence that the strictness of a state’s mental health and civil-commitment laws (i.e., how hard a state’s law makes it to order those with untreated mental illness to submit to outpatient or inpatient treatment) is substantially related to that state’s murder rate.REF In fact, according to one recent study, over 25 percent of state-to-state variations in murder rates can be explained solely by differences in their civil-commitment laws: States that make it easier to treat mentally ill individuals tend to have lower murder rates as a result.REF Currently, Supreme Court precedent requires that the state prove by clear and convincing evidence that a person is both mentally ill and dangerous. These terms, however, have not been defined, allowing states significant leeway in determining the language of their civil-commitment statutes.

The states that give officials the weakest power to involuntarily commit citizens are those that require a showing of danger that is imminent or likely to occur in the near future. Other states eliminate the imminence requirement and instead focus on whether the risk of danger is substantial. Still a third subset of states has removed any time frame, requiring only that the person pose a threat of harm to self or others. There are, finally, a number of states that provide additional grounds for civil commitment unrelated to dangerousness—grave disability and risk of future deterioration. These additions allow for persons with mental illness to be involuntarily committed to mental health treatment if they are unable to provide for their basic physical needs or will otherwise, without treatment, deteriorate to the point of presenting a risk of harm or of being in grave disability.REF These broadened standards allow the state’s parens patriae authority to be used for civil commitment before an individual poses a direct danger.

Strengthening the ability of law enforcement officers to involuntary detain an individual suffering from a mental health crisis on an emergency basis could, like gun-violence restraining orders and better reporting to the FBI’s National Instant Criminal Background Check System, have realistically prevented a significant number of mass public killings. Consider the case of Aaron Alexis. In the month prior to committing a mass shooting in the Navy Yard area of Washington, D.C., Alexis told Newport, Rhode Island, police that he heard voices speaking to him through the walls of his hotel room and felt a machine sending vibrations into his body.REF Alexis was convinced that others in the hotel wanted to harm him or use the vibrations to control him.REF Officers were apparently so concerned with his mental stability that they asked him to discuss his own mental health history and that of his family members.REF It is unclear whether officers were aware of the man’s long history of unhinged and violent behavior, including violent behaviors with firearms.

According to one recent study, over 25 percent of state-to-state variations in murder rates can be explained solely by differences in their civil-commitment laws.

Under Rhode Island’s emergency-mental-health-commitment statute, however, the officers felt there was little they could do, and they eventually left Alexis at the hotel.REF The language of the state statute limited temporary involuntary commitments to situations when a person “is in need of immediate care and treatment” because leaving him or her at large “would create an imminent likelihood of serious harm by reason of mental disability.” Had Rhode Island utilized the less restrictive language of ArizonaREF (which does not necessitate an “imminent” likelihood of serious harm and provides for civil commitment on the basis of “grave disability” or deterioration without hospitalization), Alexis could have been temporarily detained for a mental health evaluation, which would almost certainly have resulted in the determination that he needed court-ordered mental health treatment.REF This, in turn, would have both prevented Alexis from legally purchasing the firearm he used to kill nine people and greatly benefited the life of a mentally ill young man. Instead, the incident report was merely forwarded to Navy officials, who, it appears, did not follow up.REF

States should also ensure they are effectively utilizing the mental health–commitment procedures they have on the books already, as this, too, could have prevented a number of acts of mass public violence. Perhaps the most stunning example of the failure to adequately use the mental health–commitment system is that of the Parkland, Florida, school shooting in 2018. There, Nikolas Cruz showed signs of a troubled mental state for nearly two years prior to committing a horrific act of violence. Focusing on mental health history alone—though there were certainly concerning threats of violence and even criminal actions—it is unconscionable that Cruz managed to avoid court-ordered mental health treatment.

School and county mental health officials were alerted after a five-day period in 2016 in which Cruz posted social media threats directed at himself and others, was found to be cutting himself, and drank gasoline in a possible suicide attempt.REF The school initiated a “threat assessment” and the Florida Department of Children and Families opened an investigation. At least two guidance counselors and a sheriff’s deputy concluded that Cruz should be referred for an involuntary psychiatric hold for further assessment and that his home should be searched for weapons.REF For reasons that remain unclear, the deputy later changed his mind and both school and county officials ultimately recommended against seeking a civil commitment.REF

Within the next year, Cruz was also removed from the school, at least in part, because of inappropriate stalking behaviors toward an ex-girlfriend that progressed to a physical altercation with her new boyfriend.REF In the months prior to the shooting, Cruz called 9-1-1 on himself after a violent encounter with his foster family, and he described punching walls and being unable to cope with his mother’s recent death.REF Even more concerning is the fact that these incidents occurred during the same period that the Broward County Sheriff’s Department received 18 calls for service directly related to Cruz, five of which included specific concerns about his access to weapons given his mental state.REF Taken together with the previous concerns in 2016, there was ample evidence that Cruz was in desperate need of psychiatric care and that, had he been placed under a psychiatric hold, he would have been adjudicated mentally defective, ordered to treatment, and prohibited from purchasing or possessing firearms.

Unfortunately, Parkland was but the latest in a long line of failures by numerous officials in several states to take the appropriate legal actions regarding a known and dangerously mentally ill individual. James Holmes, perpetrator of the 2012 movie theater shooting in Aurora, Colorado, had met with at least three mental health professionals at the University of Colorado prior to his act of violence.REF At least one of those professionals was so concerned about Holmes’ mental state and reports of homicidal thoughts that she reported her concerns to the campus Behavioral Evaluation and Threat Assessment (BETA) team and discussed her concerns with a campus police officer.REF

However, when officers asked if the psychiatrist wanted to place Holmes under a 72-hour psychiatric hold, she declined, apparently in part because Holmes was withdrawing from the University and the BETA team would soon lack jurisdiction.REF Unfortunately, had the psychiatrist requested the psychiatric hold, it appears likely that doctors would have seen the significant evidence that Holmes was in a state of severe and potentially dangerous mental instability and would have begun the process of seeking a long-term mental health commitment.REF Similar failures occurred in the cases of, among others, Jared Loughner, Seung-Hui Cho, Travis Reinking, and Eliot Rodger.REF

If states are to effectively utilize their own mental health–commitment procedures, they need to ensure that they have adequate numbers of public psychiatric beds to accommodate individuals ordered to treatment or otherwise seeking treatment. Currently, health policy experts generally place the minimum number of inpatient beds necessary to adequately meet the needs of a state’s population at between 40 to 60 beds per 100,000 people.REF On average, states provide roughly 11.7 beds per 100,000 people—woefully inadequate by most estimations.REF In the first quarter of 2016, the latest date for which reporting is available, only two states maintained more than 20 beds per 100,000 people, while four states maintain fewer than five beds per 100,000 people.REF

This inadequate ratio of psychiatric beds causes serious problems for both the mental health and criminal justice systems. Numerous studies show that longer periods between the onset of symptoms and the initiation of treatment are associated with poorer prognoses and worse overall outcomes.REF It should absolutely worry us that, currently, estimates of the average duration of untreated psychosis range from 61 to 166 weeks.REF As the number of inmates in need of forensic beds increases, the number of beds available for long-term treatment required by non-criminal mentally ill individuals decreases, leaving many individuals in serious need of treatment on long waiting lists, allowing them to grow sicker—and in some cases, violent—before beds open up.REF This can have catastrophic results, as shown by the 2007 case of David Logsdon. Logsdon had been committed to a mental hospital in 2005 for suicidal actions but was released after just six hours because of a shortage of beds in Missouri’s public psychiatric hospitals.REF He did not receive any more mental health treatment, and his condition deteriorated to the point that he killed his neighbor, then used her rifle to shoot randomly at people in a crowded mall parking lot.REF Two people were killed in the parking lot and another seven were wounded before a police sharpshooter ended the would-be massacre.REF

Unfortunately, Parkland was but the latest in a long line of failures by numerous officials in several states to take the appropriate legal actions regarding a known and dangerously mentally ill individual.

Congress can help move this process along by revising the “Institutions for Mental Disease (IMD) Exclusion” provision of the Social Security Act, which largely prohibits Medicaid from reimbursing states for adults with mental illness between the ages of 22 and 64 who receive long-term care in a psychiatric hospital or facility with more than 16 beds.REF In 2016, the effects of the IMD Exclusion were limited by legislation that allowed “Medicaid-managed care organizations” to provide IMD coverage for an enrollee up to 15 days per month—still well under the normal length of stay for many inpatient facilities.REF Revisions to the IMD Exclusion should discourage states from closing long-term-care facilities while still ensuring that states do not exploit the availability of federal resources to shift state costs to the federal government.

Even when the resources are not available to immediately increase the number of beds, states are not without options for facilitating the process of getting the severely mentally ill to the first available psychiatric beds. In 2014, Virginia established a registry of available beds in public and private psychiatric clinics to help law enforcement and mental health officials find placements for individuals requiring temporary detentions as the result of a serious mental illness.REF Moreover, while the up-front costs of providing adequate numbers of public psychiatric beds and strengthening a commitment to providing appropriate mental health treatment may seem daunting, they pale in comparison to the long-term costs of shifting the burden of housing and treatment to the criminal justice system,REF not to mention the human and economic costs associated with crimes committed by these individuals.

States that do not have Assisted Outpatient Treatment should consider establishing legal frameworks for this intermediate step between voluntary treatment and inpatient commitment.

Finally, states that do not have or otherwise under-utilize Assisted Outpatient Treatment (AOT) should consider establishing legal frameworks for this intermediate step between voluntary treatment and inpatient commitment. AOT laws vary by state, but generally allow judges to, after due-process hearings, order individuals with serious, untreated mental illness who meet specific, narrow criteria to participate in mandated, monitored mental health treatment while still living in the community. This has proven to be a very effective option when implemented properly.REF Like the measures outlined above, the long-term economic benefits of more fully utilizing AOT far outweigh any up-front costs.


Deinstitutionalization started with the best of intentions, but its disastrous consequences continue to put lives in danger and devastate communities. While individuals with milder forms of mental illness can and often do thrive outside of mental institutions, there are, quite simply, too few beds of last resort for individuals with severe mental illness who suffer in the aftermath of deinstitutionalization. They are too often reinstitutionalized in the nation’s jails and prisons, where they are more likely to be victimized or to have their mental states further deteriorate.

Further, enforcement of current mental health mechanisms is often too lax and allows individuals who are known to be dangerous to themselves or others to access firearms legally by failing to properly disqualify them from purchasing those firearms through legal means. This has been a primary factor in many otherwise preventable mass public shootings. In order to help combat the effects of deinstitutionalization, states should:

  • Ensure that law enforcement officers and other first responders are properly trained in best practices for interacting with mentally ill individuals;
  • Invest in adequate treatment programs for prisoners with mental health issues;
  • Provide adequate numbers of public psychiatric beds so that individuals in the midst of mental health crises have ready access to appropriate treatment facilities; and
  • Strengthen involuntary civil commitment and mandatory outpatient treatment laws without neglecting due process.

John G. Malcolm is Vice President of the Institute for Constitutional Government, Director of the Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at The Heritage Foundation. Amy Swearer is a Legal Policy Analyst in the Meese Center.


John Malcolm
John Malcolm

Vice President, Institute for Constitutional Government

Amy Swearer

Visiting Legal Fellow, Meese Center for Legal and Judicial Studies