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The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the criminal trial process. It was never an attractive option for a criminal defense lawyer to put forth a lack of responsibility defense or to raise the question of her client’s mental status at time of trial. A number of events in the past three decades, however, have made these options even less attractive – the narrowing of the insanity defense in many jurisdictions; the Supreme Court’s decision in Jones v. United States, sanctioning periods of confinement following insanity acquittals longer (often far longer) than the maximum sentence for the underlying crime; the states’ continued failure to adequately implement Jackson v. Indiana; the greater use of involuntary anti-psychotic medication as a means of seeking to restore incompetent defendants’ competency to stand trial. As a result, there is much less of an incentive for lawyers to explore these options as, realistically, their clients will most likely be incarcerated for far less time if there is no court decision on competency or sanity.

This paper discusses: (1) why the common wisdom is wrong, (2) why and how the universe of mental status/defense has shrunk so markedly, (3) how therapeutic jurisprudence should be pursued as potentially remediating influences on the current state of affairs, and (4) why it is crucial that lawyers be trained in the intricacies of this complex area of law and policy.