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  • Introduction: The Criminalization of Mental Illness

    The fact that the incarceration rate in the United States is one of the highest in the world, certainly in the industrialized world, draws a great deal of attention from criminal justice reformers. What lurks beneath this data point is something far more troubling. The three largest psychiatric facilities in the country are not mental health treatment facilities, halfway houses, community mental health centers, or outpatient hospitals. No, they are the county jail systems of Los Angeles County and Cook County, as well as that found on Rikers Island in New York City. This last facility, which provides treatment to tens of thousands of individuals with psychiatric disabilities every year, has been at the center of litigation that has now spanned over fifteen years. That lawsuit, Brad H. v. The City of New York, claims that Rikers Island, because of the extensive treatment it provides to those incarcerated there (under the City’s constitutional obligations), is, for all intents and purposes, a mental health facility. As such, it has obligations under state law to provide what is known as discharge planning services: the provision of assistance to individuals leaving an inpatient facility to ensure that those individuals can continue their treatment upon release.

  • Comment: Educating Society about the Prevalence of Suicide and Mental Illness to Stimulate Broader Mental Health Care Reform

    This article will use the recent discovery of biomarkers that can potentially detect suicide risk as a catalyst to discuss how this type of development in the detection of mental illness can revolutionize mental health care if used in collaboration with other changes in mental health treatment. First, this article discusses the importance of reducing the stigma associated with mental illness and suicide. Second, it explains how suicide biomarkers were identified and how such a finding can profoundly impact the traditional understanding and approach to suicide identification and treatment. Third, it analyzes how to use suicide biomarker screening to identify individuals who may be at risk of committing or attempting suicide. Fourth, the focus of this article shifts to the particularly high suicide risk among teenagers, which leads into a discussion about how to develop and implement a constitutionally valid suicide biomarker screening program through the public school system. Finally, this article emphasizes the need to develop new treatment programs that can be used in collaboration with genetic testing methods, including suicide biomarker screening; such programs will be critical in actually reducing the stigma and improving the treatment of mental illnesses. Hopefully, these combined efforts to reform mental health care will enhance members of the general public’s ability to identify individuals who may benefit from treatment, and encourage more people to acknowledge their own risk and to pursue newly enhanced treatment options.

  • Enforced Medication in Jails and Prisons: The New Asylums

    For those who are severely psychotic and refusing antipsychotic medication, it is proposed, and in some correctional systems practiced, to administer enforced medication in non- medical correctional facilities (NMCF), thereby obviating the need for hospitalization. This would provide those most severely disturbed inmates with the antipsychotic medicine that they need but deprive them of the level and quality of mental health services that is afforded to non-incarcerated individuals with the same mental conditions. Enforced medication in jails and prisons ensures these facilities will devolve into society’s “new asylums[.]” This article notes that even the “Joint Report” recently published by the Treatment Advocacy Center and the National Sheriff’s Center promotes enforced medication without hospitalization, in effect contributing to the devolution of jails and prisons into the “new asylums[,]” and providing an excusing and convenient alternative to the continuing withdrawal of appropriate mental health services for those with the greatest need. The remedy proposed here for this harmful trend is to ensure that individuals in need of enforced medication will have this service provided in the appropriate place, i.e., in a mental hospital.

  • Keeping the Mentally Ill Out of Jail: Sheriffs as Litigants

    In March 2014, Congress convened a hearing titled “Where Have All the Patients Gone? Examining the Psychiatric Bed Shortage.” Cook County Sheriff Tom Dart testified “[s]ince becoming Sheriff in 2006, I have seen an explosion in the percentage of seriously mentally ill individuals housed in the jail.” “I usually have about 3,500 mentally ill in my jail in a day.” In 2011, Sheriff Dart had announced that he had considered filing a lawsuit against the state for failing to provide services to prevent people with serious mental health problems from ending up in his jail. The purpose of this paper is to develop a litigation strategy that will help Sheriffs accomplish that goal.

  • Recent Advances in the Empirical Evidence Surrounding Mental Health Laws and Crime

    In this article, I explore the three most important legal changes to the mental health system and how these laws have affected violence and crime.

  • Fear, Hype, and Stereotypes: Dangers of Overselling the Amber Alert Program

    The issue of child safety must not be taken lightly, and the intentions of the AMBER Alert program are noble, yet the program remains woefully ineffective. The danger in overselling the AMBER program is threefold. First, as a byproduct of Crime Control Theater, parents are mistakenly allowed to assume that the government is taking care of the problem of child abduction, and, in the event of a stranger abducting their child, that an AMBER Alert will quickly and effortlessly return their child unharmed. Secondly, through the construction and maintenance of crime myths, public discourse is warped in such a way as to obfuscate the very real issue of familial abductions that constitute the vast majority of child kidnappings. Finally, by perpetuating the stereotype of strangers as a constant threat to children’s wellbeing and safety, programs such as AMBER Alert are unintentionally contributing to a heightened climate of fear, leading the American public to believe that danger is ever-present, which encourages paranoia, disillusionment, and a willful lack of faith in society as a whole. Preventing the overselling of programs like AMBER Alert is essential if society wishes to engage in effective and reasonable crime control; attempting to legitimize these programs with claims that exaggerate their purported efficacy can only hinder progress, and will ultimately fail to serve the interests of justice. Accountability from elected officials must be demanded by the American people if the undeniable truth surrounding the nature of child abductions is ever going to be understood and addressed.

  • Extending the Logic of the Juvenile Justice System to a Separate Justice System for Mentally Ill Offenders

    In this paper, I will begin by briefly visiting the history of the juvenile justice system, and discussing some of the reasons for its foundation, focusing on the personality characteristics of juveniles that helped propel the reform. Next, I will explain how empirical research in the 20th century has provided psychological and neuroscientific evidence to support the behavioral observations that served as the basis of legal reform for juveniles, and how these findings (along with the original observations) are still used to support the notion that adolescents are fundamentally different from adults and should thus be legally treated as such. Then, I will examine the reasons why a similar system has not been implemented for individuals with severe mental illness who enter the justice system. I will delve into the difficulty of diagnosing mental illness, as well as the stigma that still accompanies the label, and how these two issues hinder reform. I will also discuss the lack of understanding of mental illness and the biology behind the disorders, which contributes to the problem of stigma. I will then borrow from the logic of the juvenile justice system to argue for a separate justice system for severely mentally ill offenders. This last section will discuss the characteristics of severely mentally ill offenders that deem them as significantly different from healthy offenders, using recent evidence to support a biological foundation for neurological dysfunction that support classic behavioral observations. Further, I will touch upon the detrimental effects that incarceration has on the mentally ill mind. Lastly, from a practical standpoint, I will argue that the criminal justice system does itself no favors with its current methods as the methods do not reduce recidivism since incarceration is not a cure.

  • Imprisonment of the Mentally Ill: A Call for Diversion to the Community Mental Health System

    This article will discuss historical factors that have led to the criminalization of mental illness and the current day state of U.S. correctional facilities as modern day asylums. Alternative models for adjudication of law-breaking individuals with mental illness will be presented, and recommendations will be made for reforms of the medical, legal, and criminal justice systems to address the societal problem of imprisonment of the mentally ill.

  • “You Might Have Drugs at Your Command”: Reconsidering the Forced Drugging of Incompetent Pre-Trial Detainees from the Perspectives of International Human Rights and Income Inequality

    The title of this paper draws on Bob Dylan’s song Gotta Serve Somebody, from Slow Train Coming, the first album of his gospel/born again period. The lyric I am using comes from this verse: You might be a rock ‘n’ roll addict prancing on the stage You might have drugs at your command, women in a cage You may be a businessman or some high-degree thief They may call you Doctor or they may call you Chief But you’re gonna have to serve somebody, yes indeed You’re gonna have to serve somebody Well, it may be the devil or it may be the Lord But you’re gonna have to serve somebody According to Michael Gray, one of the most prominent of Dylan scholars, the song urges that “moral shiftiness be renounced in favour of clear-sightedness about a clear and unavoidable choice.” Defendants who are incompetent to stand trial often are deprived of their rights to make such “clear” choices, though the consequences are often “unavoidable.”

  • Fully Loaded: An Alternative View of the Gun Control Debate

    Gun control is the regulation of the sale and use of firearms, such as handguns and rifles. Considering that over one-third of Americans possess a firearm, the enforcement of different types of gun ownership requirements and regulations have caused great debate. In 2012, 58% of Americans favored the passage of stronger gun control laws regarding the sale of firearms. In addition, more than 50% of Americans are dissatisfied with the overall state of gun control laws and policies in the nation. Approximately 24% of Americans in 2011 considered stricter gun control laws to be the most important avenue to prevent the reoccurrence of mass shootings in the United States. However, in the same Gallup poll, 15% of Americans believed that better mental health screening and support would be more effective in preventing mass shootings in the country. Other possible options to reduce gun violence in the United States include: enhanced education on gun violence and the proper use of guns, more extensive background checks, stricter security measures at public gatherings, a ban on handguns and bullets, better parenting, better enforcement of existing gun laws, less media coverage of shootings, better cooperation between political parties, and a crack-down on illegal immigration. The issue is complicated as a result of the use of guns by law enforcement agencies, to apprehend criminals and to protect the public against crime, and by private citizens, as a means of self-defense for themselves and their property. While Americans generally agree that something needs to be done in response to the growing gun violence, many “disagree—often passionately—on exactly what to do and how to do it.” Part II examines the nation’s history of gun use and gun laws from the period commencing in the pre-Revolutionary days to the present. Specific to this discussion will be an analysis of the development and understanding of the role and composition of the American militia in relation to the individual right to keep and bear arms for the purpose of self-defense under the Second Amendment. Part III evaluates the Supreme Court’s interpretation of the Second Amendment. Furthermore, and more importantly, Part III evaluates the extent of the right to keep and bear arms as addressed in the Supreme Court’s decision in United States v. Cruikshank to its most recent decision in McDonald v. Chicago. Finally, Part IV considers the current issues and ideological differences surrounding the gun control debate as a result of the ambiguity and lack of decisiveness on the part of the Supreme Court. Moreover, it discusses the implications of the gun control debate on the constitutionality of current state laws, particularly, the NY SAFE Act.

  • The Domestic use of Drones and the Fourth Amendment

    The tension between national security and personal privacy interests is not new, especially in light of the explosion of surveillance technology in recent decades. Yet, the question still remains unanswered: what is the proper balance between the necessity of the government to keep people safe, and the need to preserve an individual’s fundamental right to privacy? In this comment, I will argue that the domestic use of UAVs needs to be integrated into our national security system if the government is to keep pace with the intensifying range of formidable civil and criminal issues afflicting the nation. In order to integrate these aircraft systems into our national airspace while simultaneously safeguarding the protections afforded by the Fourth Amendment, I endorse the view that the states must serve as the “beacon[s] of protection” for their citizens by shaping their individual constitutions to address current privacy concerns. I support this proposition by endorsing the view that three distinct benefits arise when the states are forced to be their own gatekeepers: first, diverging state interpretations of current privacy laws are likely to influence reform at the national level; second, inconsistent interpretations among the states will underscore the instability of the current law and help remove the arbitrariness and vagueness of the law as it currently stands; and third, state constitutions provide a greater source of protection to larger numbers of people. Ultimately, this comment supports the unprecedented advantages that are anticipated to accompany the assimilation of UAVs into the national airspace system, and it concludes that any privacy concerns related to their use are best left to be dealt with by the individual states. Thus, Part I will discuss the historical background of UAVs, Part II will discuss the current use of drones both abroad and at home, Part III will address current Fourth Amendment jurisprudence, and Part IV will discuss the need for states to serve as independent guideposts for their constituents.

  • Ending the “Drone War” or Expanding it? Assessing the Legal Authority for Continued U.S. Military Operation Against Al-Qaida after Afghanistan

    Either way, if the United States withdraws from Afghanistan in 2016, as President Obama has pledged it will, there is a legitimate question as to whether the United States may lawfully continue its war against Al-Qaida , or whether the war against Al-Qaida , always a contested concept in and of itself, is inexorably tied to the war in Afghanistan. And if a conflict against Al-Qaida may continue after the close of the conventional conflict in Afghanistan, questions remain regarding whether Al-Qaida affiliates, associated forces, and “successors” may be part of the continuing conflict and where that conflict may take place. The answers to these questions are fraught with significant operational effects—consider, for example, the effects on detention authority at Guantanamo Bay (GTMO) or drone strikes in Pakistan or Yemen—each based on the existence of an armed conflict with Al-Qaida and conducted under the law of war. This article addresses each of these issues in turn.

  • Drones at Home: The Debate Over Unmanned Aircraft in State Legislatures

    In this article I examine a policy debate over whether and how to regulate one surveillance technology—unmanned aircraft. The terms unmanned aircraft, also called Unmanned Aerial Vehicles, or drones, refer to any kind of aircraft that operate without a pilot on board. The concept is not new—unmanned aircrafts, defined broadly, have existed for about as long as manned aircraft. However the pace of change of technologies that enable unmanned aircraft are accelerating rapidly.Already used overseas and in limited numbers in the United States, it is becoming increasingly obvious that unmanned aircraft are going to be a significant presence in American airspace. They are likely to perform many kinds of tasks, including tasks related to law enforcement.

  • Operationalizing use of Drones Against Non-State Terrorists Under the International Law of Self-Defense

    As the war in Afghanistan dies down, some within the Government of the United States and lawyers within the U.S. Armed Forces will most likely reconsider whether a law of war paradigm would be relevant with respect to future drone targetings of members of al Qaeda, its associates, and other non-state terrorist groups that operate in Afghanistan and in other parts of the world. With respect to an alternative legal basis for drone targetings under the international law of self-defense, they will also most likely reconsider how the international law of self-defense should be implemented in case of non-state terrorist attacks emanating from within a foreign state. In particular, detailed attention is likely to continue regarding who and what can be targeted in response to new and ongoing terroristic non-state actor armed attacks on U.S. embassies, U.S. military and other U.S. nationals abroad and across our borders and what criteria and features of context should be considered when making a targeting decision. This article addresses whether the laws of war apply to use of measures of armed force against members of al Qaeda, the propriety of self-defense targetings of non-state actors in a foreign state, who and what can be targeted under the law of self-defense, criteria for operationalizing choice with respect to when and how to target, and certain future types of drones that might be utilized. Also addressed are reasons why human rights law and the U.S. Constitution do not prohibit legitimate self-defense targetings. A final section addresses limitations that exist under a law enforcement paradigm and why measures of self and collective self-defense are not simplistically measures of domestic law enforcement.

  • The Covert use of Drones: How Secrecy Undermines Oversight and Accountability

    Under the Obama Administration, the number of drone strikes has sharply increased, prompting criticism and concern. As one commentator has noted, “[u]nder Obama, drone strikes have become too frequent, too unilateral, and too much associated with the heavy-handed use of American power.” Many scholars have focused on the legal issues arising from the use of drones, analyzing their legality under applicable law of self-defense, as well as under international humanitarian law and international human rights law. This Article will highlight another problematic aspect of the current American use of drones, which is secrecy. As will be argued below, because a large number of lethal strikes are conducted by covert C.I.A. operations, it is impossible to determine whether most strikes comply with relevant legal provisions of both domestic and international law. Section II will examine the so-called “problem of secrecy,” by describing the current C.I.A. unwillingness to release records and documents pertaining to targeted killings conducted through drone strikes, and by asking questions about the utility of such secrecy in a democratic society. Section III will then focus on all the relevant legal issues related to the use of drones, including the relevant domestic legal authority to conduct targeted killings, associated international law issues, as well as the definition of the battlefield and an examination of the legality of different types of strikes. This Article will conclude that while it is possible that drone strikes may be legal under relevant domestic and international law, this conclusion cannot be reached because of secrecy. Secrecy, as perpetuated through the C.I.A.’s refusal to publicly discuss the drone program and to provide relevant guidelines, policy, and legal rationales toward the use of drones, has disabled all of us from reaching appropriate legal, moral, and humanitarian judgment about the legality of drone strikes. This Article will argue that any use of lethal force by the United States, including the use of drones to conduct targeted killings, must be properly legally justified, and that such legal justifications should become a part of public discourse.