In 2017, Stanford Law School’s Justice Advocacy Project studied the long-running problem of mental illness among prison inmates in California. Using data provided by the California Department of Corrections and Rehabilitation (CDCR), the Justice Advocacy Project studied the continuing trend, concluding that the problem is getting worse.  According to the CDCR, at the beginning of this century, less than 15% of California’s prisoners were receiving treatment for a “serious mental disorder,” now that number tops 30%.  The most dramatic increases have occurred in the last five years. A “serious mental disorder” are DSM Axis I diagnoses such as schizophrenia, psychotic disorder or bipolar disorder.

Ironically, it might be the recent criminal justice reforms that is one of the driving forces behind this increase in mentally ill prisonersexpressed as a percentage of all prisoners. The reforms, such as the Public Safety Realignment Actand the Public Safety and Rehabilitation Act (Prop 57), are directed at reducing the prison populations by rewarding good behavior in prison and the reforms assess suitable candidates for early release. But for the mentally ill prisoner, prison conditions often exacerbate his or her illness with the end result that the prisoner’s behavior deteriorates. Even the Supreme Court observed that the conditions in California prisons can worsen prisoner’s mental illnesses and cause the development of overt symptoms. (Brown v. Plata(2011) 563 U.S. 493.)  The mentally ill prisoner may for example, have a psychotic episode, attempt suicide, or lash out, all of which will end in conduct violations and sanctions meaning a loss of custody credits; these credits reduce the time the prisoner must serve.

At the same time, CDCR has a psychiatric staffing shortage, with many positions left unfilled. Governor Jerry Brown’s new state budge has earmarked $117 million to address mental health programs and services for mentally ill prisoners. But Senator Jim Beall (San Jose) doesn’t believe more money is the answer. He is pushing for reforms that would keep the mentally ill out of the prison system. His proposed legislation would require the courts to consider a defendant’s mental illness in sentencing decisions and give the courts discretion to order some defendants to treatment. Senator Beall believes that mental health professions, law enforcement, social workers, and the courts need to work together to address this growing problem.

Perhaps the Dutch model would be a better solution. In the Netherlands, mentally ill prisoners are streamlined into facilities that are separate from the general prison population. Under Dutch law, a person can be judged responsible for a crime on a sort of sliding scale. Those adjudged least culpable for their crime are those for whom mental illness played a role in the crime. I am simplifying the rather complex justice system administered in that country but for the purposes here, the important point is that mentally ill prisoners are placed in a separate prison facility where the system addresses the conduct of the mentally ill prisoner, which would otherwise be considered misconduct in a general prison population. Furthermore, the Dutch solution addressed the fact that mentally ill prisoners are often vulnerable in the general prison population. With the approach taken by the Netherlands, the mentally ill prisoner is better protected from harm inflicted by other prisoners and from self-harm. While all mentally ill prisoners in the Netherlands receive psychiatric care, for many it is the first time to receive such care. Researchers have noted that the Dutch system has proved to be “a pragmatic and successful way of reducing reoffending of high-risk offenders in the Netherlands.”

The rising mentally ill prison population is a problem society must address. If we don’t, we risk an ever-increasing criminal class of incarcerated individuals that commit crimes not because of mens rea (intention to commit a crime) but because of mental illness.

Orange County criminal defense attorney William Weinberg is a strong advocate for his clients. He has been defending individuals prosecuted by the state for 25 years. He is available for a complimentary consultation about your matter. You may reach him at his Irvine office by phone at 949-474-8008 or by email at