Some Presenting Problems

Part One of the From Hospital Beds and Back Wards to Prison Cells and Solitary Confinement series

New Jersey’s de facto mental health system has failed us. It must stop using prisons to punish the mentally ill and guarantee treatment for all who need it.


Because of the inter-dependence of the entities in the de facto mental health system, incremental legislative steps cannot effect meaningful change.

The de facto mental health system includes the traditional system of public and private psychiatric hospitals, community mental health agencies, “correctional facilities” (jails and prisons), substance abuse programs, and shelters — to which persons with mental illness have been dispersed since the eras of deinstitutionalization and “redirections.”

The state’s mental health authority has only rarely been given the responsibility and power to affect treatment throughout this expanded de facto system. Nevertheless, each part of the traditional system of hospitals and community agencies is significantly affected by the repeated return of persons dispersed to and then returning from the larger system. Legislative initiatives must respond to this reality or consign the traditional system to continue facing unplanned-for admissions — which far exceed its capacity — as well as the abandonment of people who used to suffer in back wards, then back alleys, and now prison cells.


In the traditional mental health system, shortages of community services result in the hospitalization of patients who do not need institutionalization or long-term treatment. State psychiatric hospitals, as the default placement of last resort in this system, face misallocation of their scarce resources and chronic overcrowding. Facing uncontrollable pressures for admissions, both hospital and community providers have narrowed admissions criteria and imposed waiting lists on people with acute illness. They have also reduced the intensity and breadth of their services, and succumbed to pressures for the premature discharge of people lacking sufficient community support and unprepared for greater independence.

These strategies, of course, have predictably failed to alter the problems in the traditional mental health system. They have had no discernible effect on waiting lists, hospital overcrowding, inadequate treatment in overburdened agencies and facilities, and unacceptably high rates of re-hospitalization. Instead, they have accelerated the movement of people with mental illness into the prison system and new patterns of recycling patients through hospitals, correctional facilities and the street.

Jails and prisons, now inappropriately confining people with mental illness in punitive settings, are also negatively affected by the increased incarceration of people with mental illness moving through their sector of the expanded de facto mental health system. People living (confined) and working in those institutions also suffer from the presence of people who should never be confined in prison cells.

These problems are generated by a combination of insufficient resources, and the flawed boundaries and relationships between each of the entities in the de facto system. The contours of this system are governed and affected by criminal procedures, standards for criminal system “responsibility” and diversion, parole laws and practices, commitment laws, and the absence of sensible mechanisms for transfers between mental health and penal institutions.

A Comprehensive Legislative Approach to These Problems

A number of states, including New Jersey, have adopted legislation authorizing the involuntary psychiatric treatment of people in the community before they become so ill and dangerous that they meet the standard for involuntary hospitalization, or are incarcerated for committing criminal offenses. However, the New Jersey law, like most others, suffers from a narrow focus which ignores the dynamics of the larger de facto mental health system.

This paper argues for a more comprehensive approach, which more carefully balances the interests affected by involuntary community treatment and also addresses the movement of people with mental illness throughout the de facto system. A draft bill, entitled the Need for Treatment bill was developed several years ago in association with NAMI NJ, but ignored by the legislature, in preference to the “quick fix” that was adopted.

A Need for Treatment Bill: Objectives

  1. to ensure the provision of treatment to all persons who are in need of treatment for a mental illness, wherever they are located in the de facto mental health system, or in the community;
  2. to ensure access to timely treatment, by providing legal authorization for involuntary community treatment, under carefully defined conditions and with multiple provisions to constrain the resulting expansion of state power;
  3. to treat persons who have a mental illness in the mental health system, rather than in the prison system;
  4. to protect the rights of people with mental illness, wherever they are being treated, and require advocacy as well as clinical services in all treatment settings;
  5. to improve the quality of treatment, by engaging and empowering persons with mental illness and their families.

Strategies for Change

The relationships between the presenting problems in the de facto mental health system are complex. Statewide efforts and commitments are required to move to a rational, humane, clinically appropriate, and cost-effective system of care, including:

  • changes in the law governing voluntary and involuntary mental health treatment
  • consultation, cooperation and coordination among the state agencies which provide treatment or regulate treatment providers, and
  • the commitment of “stakeholders” in the system and leaders in the executive and legislative branches of government

Because of the inter-dependence of the entities in the de facto mental health system, incremental legislative steps cannot affect meaningful change. There must be legislative authority to implement a comprehensive vision and plan, pursuant to which interim programmatic steps can be taken. Until persons with mental illness can access timely, comprehensive, high-quality treatment and related services, in each treatment setting of the de facto mental health system, and until the state adopts a comprehensive approach to the dynamics of patient movement within the system, incremental legislative efforts will simply move one set of presenting problems from one part of the system to another.


The From Hospital Beds and Back Wards to Prison Cells and Solitary Confinement Series

Part One: Some Presenting Problems
Part Two: Analysis and Strategies
Part Three:
The Revolving Doors

In the second part of this three-part series (“Analysis and Strategies: the Need For Treatment Bill”), Jean Ross, Esq. describes mental health treatment in prison and jails, explains the impact of the “dangerousness” requirement for involuntary hospitalizations, and suggests better standards and procedures for involuntary psychiatric treatment.


JEAN ROSS is a volunteer prisoners’ rights attorney based in Princeton, New Jersey. She has spent most of her expansive career working with and on behalf of people confined in the only two public institutions that have the legal authority to confine people involuntarily — prisons and psychiatric hospitals. Before retiring, Jean was a public defender within Division of Mental Health and Guardianship Advocacy where she provided pro bono representation to psychiatric hospital patients. Since ‘retiring’, Jean has been a tireless advocate, activist, organizer, and leader on behalf of prisoners and their loved ones. She is “one of New Jersey’s most stalwart warriors against prisoner abuse.” She is a Board Member for the Center for Action Research and Director of the Prison Initiative Project.


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Community Legal & Advocacy Services Project

Based in Princeton, New Jersey, CLASP is a grassroots volunteer project that conducts pro bono impact litigation on behalf of prisoners fighting to end mass incarceration.