DRAFT: 1/21/2011
© Bernard E. Harcourt

REDUCING MASS INCARCERATION:
LESSONS

FROM THE

DEINSTITUTIONALIZATION

OF

MENTAL HOSPITALS

IN THE

1960S.

Bernard E. Harcourt1

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce
by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill,
and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass
incarceration in prisons and jails. President Kennedy’s message to Congress—the first and perhaps only presidential
message to Congress that dealt exclusively with the issue of institutionalization in this country—proposed replacing state
mental hospitals with community mental health centers, a program ultimately enacted by Congress in 1963 under the
Community Mental Health Centers Act. President Kennedy’s message to Congress was straightforward:
If we launch a broad new mental health program now, it will be possible within a decade or two to reduce
the number of patients now under custodial care by 50 percent or more. Many more mentally ill can be helped
to remain in their homes without hardship to themselves or their families. Those who are hospitalized can be
helped to return to their own communities... Central to a new mental health program is comprehensive
community care. Merely pouring Federal funds into a continuation of the outmoded type of institutional care
which now prevails would make little difference.2
President Kennedy’s aspiration of a 50 percent drop, it turns out, underestimated the extent of
deinstitutionalization that would take place. The passage of the Community Mental Health Centers Act in 1963 would be
followed by the largest institutional migration that has ever occurred in this country. During the period 1965 to 1975, the
inpatient population in state and county mental hospitals would plummet a stunning 59.3 percent.3 The mean decrease per
year over that period would reach almost 9 percent.4 During the next five years, from 1975 to 1980, the drop in
inpatient populations would continue, down another 28.9 percent.5 All in all, from 1955 to 1980, the number of persons
institutionalized in mental health facilities declined by 75 percent.6
Truth be told, deinstitutionalization had begun earlier, in about 1955, with an early onset drop of about 15
percent over the period 1955 to 1965. Moreover, the most reliable research attributes the sharp declines over the period
                                                            
1

Professor and Chair, Department of Political Science, and Julius Kreeger Professor of Law, University of Chicago.
I am deeply grateful to Carol Steiker for organizing and hosting this remarkable symposium, to Charles Ogletree for
commenting on a draft of this essay at the symposium, to Philip Heymann, Mark Kleinman, Adriaan Lanni, Louis
Michael Seidman, Jeannie Suk, and Andrew Taslitz for extremely helpful comments and discussion on the draft, and
to Chris Berk and Alyssa Kate Ogawa for extraordinary research assistance.
2
Quoted in William Gronfein, “Incentives and Intentions in Mental Health Policy: A Comparison of Medicaid and
Community Mental Health Programs,” 26 J Health & Social Behavior 3, 192-206 (1985), at p. 196; see also Henry
Foley and Steven Sharfstein, Madness and Government, Wash D.C.: American Psychiatric Association (1983), at
page 166.
3
Gronfein, “Incentives and Intentions,” 1985 at p. 196 (Table 1).
4
8.59 percent to be exact. Id.
5
Id.
6
Id. at 192.

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1955 to 1980 to several larger factors, not merely the passage in 1963 of the Community Mental Health Centers Act,
nor the rapid accomplishment of fully funded community mental health centers by 1965. A far larger set of societal
changes were at play, including the reorganization of the psychiatric profession, shifting views on mental illness, care and
treatment, the aftershock of World War II, changing state policies, fiscal crises, and ambitious federal interventions.7 If one
were to narrow these factors down, based on the leading social scientific evidence, three would stand out: first, the
development and use of psychiatric medicines as treatment for even severe mental illness; second, the development of
federal social welfare programs (such as Medicaid and Medicare) that created financial incentives to channel care for the
mentally ill to alternative settings; and, third, changing societal perceptions of mental illness, coupled with public awareness
of the problems and abuses endemic to the system of institutionalized care, that resulted in political and legal challenges
regarding the care and status of the mentally ill.
But even though the historical record is complex, one simple fact remains: This country has deinstitutionalized
before. As we think about mass incarceration today and how to reduce our prison populations, it is useful to recall some
lessons from that history. What, if anything, can
any of the forces that helped set off and shape
population today? Alternatively, are there aspects
ways to decarcerate in a more successful manner

we learn from deinstitutionalization in the 1960s? More precisely, might
deinstitutionalization in the 1950s contribute to a reduction of our prison
to be avoided from our earlier experience with deinstitutionalization or
today? These are the questions that motivate this essay.

Oddly, relatively little has been written on the parallel between mental hospital deinstitutionalization and the
contemporary problem of mass incarceration. Early on, there were some writings in the late 1970s on decarceration tied
to the prison abolition movement that explored the problem through the lens of mental health deinstitutionalization,8 but for
the most part, those interventions were not lasting. A number of scholars at the time predicted that prison decarceration
would follow in the footsteps of the deinstitutionalization of mental hospitals (David Rothman was probably the best
example of this), but they were proven wrong. More recently, there has been empirical and theoretical work drawing
parallels between the levels of mental health institutionalization in the mid-twentieth century and prison incarceration today,9
                                                            
7

Gerald Grob explores these and more factors in remarkable detail in his lengthy and masterful work, From Asylum
to Community: Mental Health Policy in Modern America, Princeton University Press 1991. Other important
contributions include, among others, William Gronfein, “Incentives and Intentions,” 1985 (exploring the role of
Medicaid and Medicare, and larger government interventions); William Gronfein, Psychotropic Drugs and the
Origins of Deinstitutionalization, 32 Social Problems 5, 439 (1985) (exploring the role of medication); Joseph
Morrissey, “Deinstitutionalizing the Mentally Ill: Processes, Outcomes, and New Directions,” 147-76, in Walter
Gove, ed., Deviance and Mental Illness, Beverly Hills: Sage Publications 1982 (exploring professional
reorganization and rivalries); Paul Lerman, Deinstitutionalization and the Welfare State, New Brunswick: Rutgers
University Press 1982 (exploring the shifts in the welfare states); Andrew Scull, Decarceration: Community
Treatment and the Deviant--A Radical View, Englewood Cliffs, NJ: Prentice-Hall 1977 (exploring the fiscal crisis
effects).
8
Some examples of this include Andrew Scull, Decarceration: Community Treatment and the Deviant--A Radical
View (1977) (viewing both the prison and the asylum as tools to manage capitalism’s “junk populations,” and
exploring both deinstitutionalization and decarceration as responses to capitalist crisis, from a Marxist surplus labor
analysis perspective); Benjamin Frank, The American Prison: The End of an Era (1979) (comparing different
potential advocacies in response to the demise of the rehabilitative ideal, and specifically contrasting prison
abolition to deinstitutionalization on page 80).
9
Bernard E. Harcourt, “From the Asylum to the Prison: Rethinking the Incarceration Revolution,” 84 Texas Law
Review 1751 - 1786 (2006), and Bernard E. Harcourt, “An Institutionalization Effect: The Impact of Mental
Hospitalization and Imprisonment on Homicide in the United States, 1934 – 2001,” forthcoming in Journal of Legal
Studies (January 2011). See also Steven Raphael, “The Deinstitutionalization of the Mentally Ill and Growth in the
U.S. Prison Populations: 1971 to 1996” (Sept. 2000) (unpublished manuscript), available at http://istsocrates.berkeley.edu/~raphael/raphael2000.pdf.

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Harcourt:  Lessons from Deinstitutionalization 

 

though that research has not drawn parallels regarding de-institutionalization. Some researchers, such as Marie Gottschalk,
have begun to mention deinstitutionalization in the context of the current economic crisis and its impact on mass
incarceration,10 and several younger scholars, especially Anne Parsons, a history graduate student at the University of
Illinois at Chicago and Liat Ben-Moshe, a sociology graduate student at Syracuse University, have ongoing doctoral
research on the relationship between mental health and criminality, or hospitals and prisons in the late twentieth century.
Ben-Moshe, for instance, is using the idea of deinstitutionalization activism as a model for prison abolition.11 But all in all,
there is still relatively little in terms of sustained discussion of the parallels to be drawn or lessons to be learned from
deinstitutionalization, making this a ripe topic for preliminary analysis and for further research. This essay should be
understood as the former: some preliminary thoughts on the lessons and pitfalls to be learned from deinstitutionalization in
the 1960s.
The essay will take a two-fold approach. After tracing some of the historical background in Part I, the essay
will explore first, in Part II, the three leading factors that were instrumental in bringing about deinstitutionalization in the
1960s, in an effort to discern whether there might be any useful parallels in the contemporary effort to reduce prison
populations. Along this first line of inquiry, I will suggest several possible avenues worth further consideration—all the while
recognizing that there are clear dangers associated with each.
First, with regard to the use of prescribed medications and other biological interventions, there is certainly room
for greater and improved psychiatric care and treatment of prison inmates. The proportion of prisoners with mental health
difficulties far exceeds the professional and institutional capacities of departments of correction in most states. Naturally,
this would involve transinstitutionalization, rather than decarceration; but it is unquestionably necessary today. Moreover, it
might also be worth considering the potential increased use of prescribed medications for aggressive behavior, on a
voluntary basis, to address problems of conduct disorders as an alternative to incarceration. Diversionary programs modeled
on outpatient mental health clinics and involving the administration of prescribed medications already exist, especially for
youth, and could be developed further and expanded. In a similar vein, the increased use of GPS monitoring and other
biometric devices could serve as a substitute to incarceration. Finally, on the topic of controlled substances, a move
toward the legalization of marijuana and other lesser drugs would also have a direct impact on reducing our prison
populations.
Second, federal leadership could be encouraged to create federal funding incentives for diversionary programs,
reentry programs, and other ways of reintegrating offenders (or avoiding incarceration from the outset) that would give
states a financial motive to move prisoners out of the penitentiary and into outpatient programs. The key variable here is
to give states an economic and fiscal incentive to move convicts out of state prisons and into non-custodial programs (or
to circumvent the correctional facilities from the outset) on the model of Medicaid reimbursement for outpatient community
mental health treatment.
Third, high-profile litigation of prison conditions, of the paucity of mental health treatment, and of prison
overcrowding, as well as documentaries of prison life along the lines of Frederick Wiseman’s 1967 film, Titicut Follies,
                                                            
10

Marie Gottschalk, , “Cell Blocks & Red Ink: Mass Incarceration, The Great Recession & Penal Reform,”
Daedalus 139(3): 62-73 (2010). At pages 67-69 of her essay, Gottschalk discusses deinstitutionalization and argues
that it involved a complex set of factors including political leadership, psychiatric profession changes, media and
litigation, which represented a larger context that cannot be reduced to economic crisis.
11
Liat Ben-Moshe, a sociology graduate student at Syracuse University, has a conference paper from 2010 with a
very promising title, “Genealogies of Resistance to Incarceration: Abolition politics in anti-prison and deinstitutionalization activism in the U.S., 1950-present.” It appears that Ben-Moshe is indeed using the idea of
deinstitutionalization activism as a model for prison abolition.

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should form part of a larger strategy to shift the public perception of those persons incarcerated. Increased public
awareness of the reality of prison life could contribute to greater willingness to support federal policies aimed at helping
reduce our prison populations. All of these ideas may well involve Faustian bargains, and the dangers associated with
each are apparent; but given our previous experience with deinstitutionalization, there is no reason to believe that it is
possible to reduce prison populations without getting our hands dirty.
In Part III, the essay then addresses, even more directly, the darker sides of deinstitutionalization, in an effort
to identify mistakes from the past and pitfalls to avoid. Here, the two major areas of concern are the increased
racialization of the mental hospital population that accompanied deinstitutionalization in the 1960s, as well as the problem
of transinstitutionalization that has been already identified. It would be absolutely crucial, in any effort to reduce mass
incarceration, to avoid both the further racialization of the prison population and the transinstitutionalization of prisoners into
other equally problematic institutions, such as homeless shelters or the kind of large mental institutions depicted, precisely,
in documentaries like Titicut Follies.
Two caveats before I begin. First, in this essay, I set aside the questions whether to decarcerate and by how
much. I recognize well that those are important preliminary questions that would need to be addressed fully and frankly.
However, they would call for a far lengthier treatment than I could possibly give them in this article. Accordingly, I
address here only the question of how to decarcerate—or, more precisely, what lessons to learn and pitfalls to avoid from
our previous experience with deinstitutionalization. Second, I also set aside larger social theoretic questions about the
possibility of genuine deinstitutionalization. The classic texts of social theory from the mid to late-twentieth century told a
relatively consistent story of the rise and fall of discrete institutions, and of the remarkable continuity of confinement and
social exclusion—from the lazar houses for lepers on the outskirts of Medieval cities, to the Ships of Fools navigating
down rivers of Renaissance Europe, to the establishment in the seventeenth century of the Hôpital Général in Paris.12
There may be, in fact, no true escape from our levels of institutionalization, and the apparent transfer from mental
hospitals to prisons may be another indicator of that ominous fact. But in this essay, I will set aside that darker
interpretation and, again, focus on how we might try to decarcerate.
I.

Historical Background

This is not the first time that the United States faces mass institutionalization. As I have demonstrated
elsewhere, the level of incarceration in the United States today matches the level of total institutionalization (in mental
hospitals and prisons) in the 1930s, 40s and 50s.13 For those who have not seen the graph before, it can be somewhat
striking:

                                                            
12

See generally Bernard E. Harcourt, “From the Asylum to the Prison: Rethinking the Incarceration Revolution,” 84
Texas Law Review 1751 - 1786 (2006); the specific reference here, of course, is to Michel Foucault, Madness and
Civilization (Richard Howard trans., Vintage Books 1988) (1961).
13
Harcourt, “From the Asylum to the Prison,” 2006; Bernard E. Harcourt, “An Institutionalization Effect: The
Impact of Mental Hospitalization and Imprisonment on Homicide in the United States, 1934 – 2001,” forthcoming
in Journal of Legal Studies (January 2011); Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the
Myth of Natural Order, Cambridge: Harvard University Press 2011, p. 221-231.

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Figure 1: Rates of Institutionalization in Mental Institutions and State and Federal Prisons (per 100,000 adults)
In fact, even if we include the jail population, the contrast remains remarkable. Here is the same graph,
including the rate of jail incarceration:

Figure 2: Rates of Institutionalization in the United States (including jail populations)

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Harcourt:  Lessons from Deinstitutionalization 

 

As this figure demonstrates, the earlier period of mass institutionalization was followed by a dramatic reduction in
mental hospital populations in the 1960s and 70s, what we usually refer to as “deinstitutionalization.” 14 The amount of
deinstitutionalization was remarkable, whether one focuses on state and county mental hospitals alone or on the larger set
of institutions for persons with mental health problems (including institutions for persons with mental retardation, VA mental
health units, and private mental hospitals), as demonstrated in Figure 3.

Figure 3: Different Rates of Institutionalization in Mental Institutions in the United States
(per 100,000 adults)
Although the asylum and the penitentiary were both born in the early nineteenth-century in the United States,
their growth trajectories differed significantly over the twentieth century—resulting in these divergent growth curves. In The
Discovery of the Asylum, David Rothman penned what is still considered the master narrative of the birth of these
institutions, specifically not only the emergence of “penitentiaries for the criminal” and “asylums for the insane,” but also
“almshouses for the poor, orphan asylums for homeless children, and reformatories for delinquents.”15 There were, to be
sure, antecedents.16 On the Continent, there were penal institutions as far back as the early 1600s (the Amsterdam
                                                            
14

The term “deinstitutionalization” is used in the research literature to refer to both the declining inpatient
population in mental institutions and the social and political policies that led to the declines in populations. William
Gronfein separates the two concepts into “operational deinstitutionalization,” the actual reductions in inpatient
populations, and “policy deinstitutionalization,” what he refers to as “the programs, policies, laws, and judicial
decisions which had such reductions as their aims.” William Gronfein, “Psychotropic Drugs and the Origins of
Deinstitutionalization,” 32 Social Problems 5, 439 (1985). For the purposes of this article, the term
“deinstitutionalization” is used primarily to refer to the decline in patient populations and the use of large-scale,
state-run psychiatric facilities for treatment of the mentally ill (what Gronfein refers to as “operational
deinstitutionalization”).
15
David Rothman, The Discovery of the Asylum, 1971 at xiii. Rebecca McLennan, in her 2008 book, similarly refers
to Rothman’s account as the “master narrative,” see McLennan, The Crisis of Imprisonment: Protest, Politics, and
the Making of the American Penal State, 1776-1941. Cambridge: Cambridge University Press 2008, at p. 7.
16
See Pieter Spierenburg, The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern
Europe. New Brunswick: Rutgers University Press, 1991, at p. 3-4 and Spierenburg, “Punishment, Power, and
History” Social Science History, Vol. 28, No. 4 (winter 2004), p. 607-636, at p. 616; Michel Foucault, Madness and

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rasphuys, the zuchthaus in Hamburg, and spinhouses for women, for instance),17 as well as the famous Hôpital Général
in Paris established in 1656 by Louis XIV;18 and in the immediate post-Revolutionary period, several states experimented
with houses of repentance and a penitential system of punishment. But there was, nevertheless, in Rothman’s words, a
“revolution in social practice” in the early 1800s that produced both the asylum and the penitentiary, among other
institutions.19
In colonial America, care for dependent persons, such as the severely mentally ill, had fallen predominantly on
family members or the local parish.20 With time, local governments began to assume responsibility for the care of the
mentally ill under a system of “poor laws.”21 The mentally ill were housed in almshouses, poorhouses, or jails, alongside
other persons under supervision or dependency.22 These facilities served largely an incapacitative function, and little effort
was made to treat or provide medical care to those confined.23 The Eastern Lunatic Asylum, the first psychiatric hospital
in America, opened in 1773, and by 1816, two psychiatric hospitals were operating in United States.24 Due in part to
efforts of reformers, the number of hospitals devoted to the treatment of mental illness began to grow at about that time.
By 1861, there were forty-eight public psychiatric hospitals25; by 1880, seventy-five public psychiatric hospitals housed
41,000 patients.26 These hospitals were small in comparison to the mega-institutions they would become; the largest
hospital, Willard Psychiatric Hospital for the Insane, housed only 1,513 patients in residence.27 It was, however, during this
period that a more medicalized notion of mental illness began to prevail, in tandem with a wave of social reform in the
United States. Reformers, such as Dorothy Dix and Reverend Louis Dwight, called for the placement of the mentally ill in
public psychiatric facilities, “rightly organized Hospitals, adapted to the special care of the peculiar malady of the Insane.”28
On the penitentiary side, a few key dates signal the contemporary emergence of the penitentiary. Construction
on Auburn’s famous cell-house began in 1819 and was completed in 1821. The Auburn model—the penitentiary system of
daytime labor in collectivity, but in silence, followed by isolation in single-man cells—proved popular, and led to a massive
spree of prison construction during the 1820s and 1830s, and the foundation for our current prison system. Sing-Sing
opened in 1825, Connecticut started building Wethersfield in 1827, Massachusetts reorganized its prison at Charlestown in
                                                                                                                                                                                                
Civilization. Richard Howard, trans. New York: Vintage Books,1988 at p. 5 (originally published in French in 1961)
(on lazar houses for lepers on the outskirts of Medieval cities and the seventeenth century Hôpital Général in Paris);
Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850. New York:
Pantheon Books, 1978, at p. 11-14 (houses of correction and the Amsterdam Rasphouse); Adam Jay Hirsch, The
Rise of the Penitentiary: Prisons and Punishment in Early America. New Haven: Yale University Press, 1992, at p.
6-8 (discussing eighteenth century Massachusetts penal institutions).
17
Norval Morris and David Rothman, The Oxford History of the Prison: The Practice of Punishment in Western
Society. New York: Oxford University Press, 1995, at p. 68 (Spierenburg); see generally Spierenburg, The Prison
Experience, 1991, at 24.
18
Foucault, Madness and Civilization, 1988, p.37.
19
Rothman, Discovery of the Asylum, 1971, p. xiii.
20
Donna R. Kemp, Mental Health in America 2 (2007).
21
22

Gerald N. Grob, Mental Institutions in America 33 (1973).
Gerald N. Grob & Howard H. Goldman, The Dilemma of Mental Health Care Policy 3 (2006).

23

Gerald N. Grob, Mental Institutions in America 34 (1973).
E. Fuller Torrey, Out of the Shadows: Confronting America’s Mental Illness Crisis 81 (1997). Eastern Lunatic
Asylum only had 20 beds, and was not operating at full capacity until 1800.
25
Id. at 27.
26
Id. at 82. The total population of the United States at the time was 50 million people.
27
E. Fuller Torrey, Out of the Shadows 27 (1997)
28
Gerald N. Grob & Howard H. Goldman, The Dilemma of Mental Health Care Policy 3 (2006).
24

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1829, followed by Indiana, Wisconsin, and Minnesota in the 1840s.29 “Between 1825 and 1850, state prisons of the
Auburn type were built in Maine, Maryland, New Hampshire, Vermont, Massachusetts, Connecticut, New York, the District
of Columbia, Virginia, Tennessee, Louisiana, Missouri, Illinois, and Ohio.”30 In addition, Rhode Island, New Jersey, Georgia
and Kentucky built prisons on the solitary labor model, and Pennsylvania, which had invented the system of day-time
solitary labor, also constructed the Eastern State Penitentiary in the hopes of rejuvenating its model for others to use.31
“In all, one can properly label the Jacksonian years ‘the age of the asylum,’” Rothman observes.32 On this point,
the historians of the penitentiary agree. Adam Hirsch, in The Rise of the Penitentiary (1992), similarly states that “The
penitentiary had its heyday in the United States in the 1830s. Facilities proliferated, the literature thrived, and visitors
traveled great distances to view American prisons in action.”33 Rebecca McLennan, in her 2008 book on the Making of
the American Penal State, also traces the penitentiary system to “the age of Jackson.”34 Even Pieter Spierenburg, a
historian of the early modern period who prefers to rewind the historical clock to the 1600s, admits that in the United
States a “relatively condensed transition” to the penitentiary model occurred in the 1820s “due to the particular
circumstances of its development.”35 Penal institutions became, in Rothman’s words, places of “first resort, the preferred
solution to the problems of poverty, crime, delinquency, and insanity.”36 In The Illusion of Free Markets: Punishment and
the Myth of Natural Order, I offer some insights into why the age of the asylum was born during the Market Revolution,
but will move along faster here.37
The subsequent growth curves of the two institutions, however, differed markedly. On the penitentiary side, the
population remained relatively constant after the initial discovery. Official national prison data only exist for the period
beginning in 1850;38 prior to that, we have local data, predominantly the product of the Prison Discipline Society of
Boston and the Prison Association of New York, both privately-organized associations intended to monitor the growth of
prisons. These sources reveal that, at the birth of the penitentiary during the first half of the nineteenth century, state
prison populations and rates grew enormously, leading to the high national counts beginning in 1850 and reaching a high
point in 1870. From the high point in 1870, however, prison rates in the United States would essentially remain relatively
stable, with some fluctuations, until the prison explosion in the 1970s. Figure 4 charts the growth of the prison population
over this period.

                                                            
29

Rothman, Discovery of the Asylum, 1971, p. 81.
McLennan 2008:63; see generally Lawrence M. Friedman, Crime and Punishment in American History. New
York: Basic Books, 1993, p. 77-82.
31
Id.
32
Rothman 1971:xiv.
33
Hirsch 1992:112.
34
McLennan 2008:54. See also James Q. Whitman, Harsh Justice. New York: Oxford University Press, 2008, p.
173-76.
35
Spierenburg 1991:3.
36
Rothman 1971:xiii.
37
Harcourt, Illusion of Free Markets, 2011, p. 208-220.
38
Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850-1984. Rockville, MD:
Westat, Inc, 1986, p. 1-28.
30

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Figure 4: Prison Rate in State and Federal Prisons from 1850 to 2008 (per 100,000 persons).

In contrast, the population in psychiatric institutions experienced a period of rapid growth toward the end of the
nineteenth century and into the first half of the twentieth. From 1880 to 1955, the number of patients residing in
psychiatric facilities rose from about 41,000 to over half a million. This represented a thirteen-fold increase in the inpatient
population, while the total population of the United States grew a little more than threefold.39 The size of the facilities
themselves also grew dramatically. For example, New York’s Rockland State Hospital housed over 9,000 patients, and over
14,000 patients lived in Pilgrim State Hospital.40 Commentators have proposed several explanations for this rise in
institutional population. One study listed seven factors contributing to the population growth in institutions: “(l) general
population growth; (2) the aging of the general population; (3) the constant pressures of overcrowding and need exceeding
capacity; (4) public and professional confidence in, and willingness to utilize, mental hospitals; (5) a broader conception of
mental illness; (6) an increasingly long duration of stay for mental illness recovery; and (7) decreased tolerance for
deviant behavior and perhaps higher rates of mental illness.”41 Others have pointed to institutionalization as a response to
“the lack of effective and lasting treatments for serious mental illness, and the pressure brought to bear by families and
communities who wanted a safe shelter for seriously disturbed members.” 42 Others, such as Thomas Szasz and Thomas

                                                            
39

E. Fuller Torrey, Out of the Shadows 82 (1997); see also Gronfein, “Incentives and Intentions,” 1985, 194.
Torrey, Out of the Shadows, 1997, at 82.
41
George W. Dowdall, “Mental Hospitals and Deinstitutionalization,” in Handbook of the Sociology of Mental
Health 520, 520-521 (Carol S. Aneshenel & Jo C. Phelan eds., 1999). It is worth noting that this study took place
after World War II, as the war itself greatly impacted subsequent mental health policy.
42
William Gronfein, “Incentives and Intentions”, 1985, p. 194.
40

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Scheff, view the rise in institutionalized population more skeptically, viewing the rise in the population of the “mentally ill”
as “a form of social labeling [designed to] suppress nonconformist behavior.”43
As figure 3 shows, after peaking in 1955, inpatient populations in mental hospital began to show a striking and
steady downward trend. In 1955, more than 558,000 patients resided in public mental hospitals; by 2000, this population
had fallen to 55,000.44 The average size of the state hospital had fallen from over 2,000 residents to less than 500.45
II. Exploring the Major Forces That Contributed to Deinstitutionalization
What explains that remarkable drop in the number and rate of mental patients, and could there be any parallel
forces at play today in the prison context? The first task of this essay is to address this question—to analyze the
stunning decrease in mental hospital populations and the forces that brought it about, in order to explore whether the
factors that influenced deinstitutionalization in the 1960s could possibly relate to our current situation of mass incarceration.
I will proceed in two steps, focusing first on the 1960s and then analyzing possible implications for our contemporary
situation.
A. The Major Factors Influencing Deinstitutionalization in the 1960s.
The most reliable social scientific research converges on three major social and political forces that contributed
to deinstitutionalization during the 1950s, 60s and 70s: technological advancements in drug therapy for treatment of mental
illness, economic incentives to shift care for the mentally ill to community-based outpatient facilities, and changing societal
attitudes regarding mental illness. I will address each of these in turn, in order to then explore whether they point to
useful directions today.
a. Drugs and the Development of Psychiatric Medication
Prior to the development of psychiatric drug therapy, the most widely used treatments for mental illness included
electroconvulsive therapy, insulin coma therapy, and lobotomy.46 These treatments had significant side effects, including brain
damage, and were provided on an inpatient basis. Treatment for the mentally ill underwent rapid change in the 1950s,
however, with the introduction of psychiatric medication. In 1954, chloropromazine, marketed under the trade name
Thorazine, became the first widely available antipsychotic medication.47 Though originally developed to sedate patients
undergoing surgery, chlorpromazine had tranquilizing effects that led to its administration for mental illness. By 1956, over

                                                            
43

Gerald N. Grob & Howard H. Goldman, The Dilemma of Mental Health Care Policy 52-53 (2006); Thomas
Szasz, The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (1961); Thomas J. Scheff, Being
Mentally Ill: A Sociological Theory (1966).
44

Id. at 15.
Dowdall, “Mental Hospitals and Deinstitutionalization,” in Handbook of the Sociology of Mental Health 520, 526
(Carol S. Aneshenel & Jo C. Phelan eds., 1999).

45

46

William Gronfein, “Psychotropic Drugs and the Origins of Deinstitutionalization,” 1985, p. 444.

47

E. Fuller Torrey, “Out of the Shadows,” 1997, p. 99.

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two million patients had been prescribed chloropromazine48 and at least 37 states were using chlorpromazine or a similar
antipsychotic medication in their state mental hospitals.49
The early adoption of chloropromazine was due, in part, to extensive marketing and lobbying efforts by Smith,
Kline and French Labs (the manufacturer of Thorazine) for the use of the drug in psychiatric facilities.50 For the
institutions, the new drug therapy was extremely attractive because it “appeared to offer a solution to one of the
problems that had perennially plagued the state hospital: the maintenance of order.”51 The rise in patient populations in
state hospitals had left the facilities with chronic scarcity in human and physical resources, and the use of medication
allowed the hospitals to manage more patients with less staff—and even to allow some patients to manage their own
severe psychotic symptoms.52 Drug therapy also offered a treatment for mental illness that could be provided on an outpatient basis.
Although several scholars have noted that the introduction and use of the drugs did not itself cause a
significant reduction in patient population,53 the availability of the psychiatric medication had a significant impact on public
perception and public policy as well. Tangible medicalization, in the form of a pill, promoted the mentally ill “to the status
of patients in the eyes of many members of the public.”54 As some researchers have noted, “tranquilizing drugs affected
the climate of opinion in mental health care in a way that carried beyond their value as medical applications.”55 “[M]ental
health professionals began to advocate community care, in part, because the introduction of psychotropic medications
contributed significantly to the systematic management of many severely psychotic patients and made discharging them
back to the community possible.”56
Policy makers also looked to psychiatric medicine to move institutionalized patients, no longer considered
incurable or untreatable, back into the community. Thus, the move away from institutionalized mental healthcare was
heavily influenced by the development of psychiatric medication, not only because it allowed out-patient care for mental
illness but also because it changed public and political sentiment regarding the mentally ill. As Gronfein writes, “testimony
from a number of sources does indicate that the advent of psychotropic medications was linked to the emergence of a
new philosophy regarding what was possible and desirable in the provision of mental health care for the seriously
mentally ill.”57
b. Financial Incentives: Federal programs and cost-shifting incentives
A second major contributing factor to deinstitutionalization was federal initiative and interventions beginning in the
early 1960s. In 1963, President Kennedy proposed the Community Mental Health Centers Act with the idea of creating
                                                            
48
49

Id.
Gronfein, “Psychotropic Drugs and the Origins of Deinstitutionalization,”, 1985, p. 441.

50

Id. at 441-42.
Id. at 442.
52
David A. Rochecroft, From Poorhouses to Homelessness: Policy Analysis and Mental Health Care 215 (1983).
Previous treatments, like electroconvulsive therapy, could only be provided on an inpatient basis.
51

53

Gronfein, “Psychotropic Drugs and the Origins of Deinstitutionalization,” 1985, p. 448; Torrey, Out of the
Shadows, 1997, p. 99-100.
54
Rochecroft, Poorhouses, p. 39; Roberts, 1967, p. 25.
55
Rochecroft, From Poorhouses to Homelessness, 1983, p. 38
56
Id.
57
Gronfein, “Psychotropic Drugs,” 1985, p. 450.

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community-based mental health centers to provide comprehensive mental health care.58 Interestingly, President Kennedy
attributed the plan to “the new drugs acquired and developed in recent years which make it possible for most of the
mentally ill to be successfully and quickly treated in their own communities and returned to a useful place in society.”59
The effect of the legislation would be to shift funding from the states to the federal government.
The passage in 1965 of Medicaid60 and Medicare61 reinforced this trend. In order to take advantage of federal
Medicaid funding, states had incentives to move patients out of state mental hospitals and into other institutions that were
subsidized with federal money.62 These programs purposefully excluded payments to “institutions for the treatment of mental
disease” because the programs were not designed to supplant state control and financing of psychiatric facilities.63 As a
result, states began moving patients out of state mental hospitals and into nursing homes, or psychiatric wards of general
hospitals that were heavily subsidized with federal money. Other federal programs, such as Supplemental Security Income
(SSI), provided direct benefits to the mentally ill in the community. As some scholars have noted, “State incentives for
cost-shifting to the federal government reside almost exclusively in the discharge of patients from state hospitals, who then
become eligible for SSI, Medicaid, food stamps and other federal benefits.”64
In short, the expansion of federal social welfare programs contributed to deinstitutionalization by creating financial
incentives for states to change the locus of care of the mentally ill away from state institutions.65 The empirical evidence
bears this out. Statistical analyses confirm that “states with greater Medicaid involvement showed larger inpatient declines
over the same period.”66 Much of this was, naturally, transinstitutionalization, especially into nursing homes, which I discuss
later; but it did facilitate deinstitutionalization.
c.

Changing Social Attitudes towards Mental Illness

Together, these trends helped reshape social and cultural perceptions of mental illness. Psychiatric medication and
growing knowledge about the biochemical causes of mental illness contributed to raising understanding and sympathy for
the mentally ill, and offered proof that not all mental illness was incurable. These changing perceptions were in part
catalyzed by World War II—in several ways. First, approximately 12 percent of those drafted between 1942 and 1945 were
found unfit to serve for psychiatric or neurological reasons.67 Additionally, 37 percent of soldiers discharged during the war
                                                            
58
59

Bernard L. Bloom, Community Mental Health 20 (2d ed.1984).
Gronfein, “Psychotropic Drugs,” 1985, p. 450.

60

Medicaid provides selected health care to the indigent, regardless of age, and is funded jointly by contributions
from federal and state governments.
61
Medicare is a federally funded and administered health-insurance program that provides selected health care to
“all persons over age 65 who are eligible for Social Security benefits, regardless of income.” Gronfein, “Incentives
and Intentions,” 1985, p. 200.
62
Gronfein, “Incentives and Intentions,” (citing United States Senate Subcommittee on Long-Term Care)
63

Torrey, Out of the Shadows, 1997, p. 102.
Id.
65
As a historical side note, some have theorized that institutionalization of the mentally ill in state psychiatric
facilities was also driven by cost-shifting incentives. State-run institutions emerged as a replacement to locally
funded workhouses and almshouses, thus shifting the cost of care for the mentally ill from local to state
governments. Gerald N. Grob, Mental Institutions in America 1-35 (1973).
64

66
67

Gronfein 201
Rochecroft, From Poorhouses to Homelessness, 1983, p. 34.

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for disability were discharged for mental illness.68 The pervasiveness of mental illness among enlisted men, a sympathetic
group in the eyes of the general public, helped reduce stigma against the mentally ill, while also raising awareness of
the prevalence of mental illness in the general population.
World War II also had the indirect effect of raising public awareness about the treatment of the mentally ill in
state institutions. During the war, conscientious objectors, in lieu of military service, worked as attendants in mental
hospitals that had been left understaffed by the war efforts. Exposed to the neglect, abuse, and deficiencies in care for
the mentally ill, many tried to reform the treatment of the mentally ill, often acting as whistleblowers and raising public
awareness of the conditions in those institutions.69 In the fall of 1943, for example, the Cleveland Press published a
series of articles about inhumane conditions within Cleveland State Hospital, based on the account of the conscientious
objectors serving in the hospital.70 The exposé ultimately led to a grand jury investigation, and the firing of the hospital’s
superintendent.
Other critical accounts of the conditions in institutions also received significant public attention. A series of
articles published in Reader’s Digest described “hundreds of naked mental patients herded into huge, barn like, filthinfested wards, in all degrees of deterioration, untended and untreated, stripped of every vestige of human decency, many
in stages of semi-starvation.”71 Life Magazine published “Bedlam 1946,” an exposé that had graphic and disturbing photos
accompanying the description of the poor treatment of mentally ill patients.72 “These two articles, appearing in two of the
magazines with the widest circulation in the United States, triggered a volcano of exposes and feature articles in other
magazines and the daily press which continued for several years.”73 Personal accounts of institutionalized life from former
patients and attendants, such as Mary Jane Ward’s The Snake Pit, Sylvia Plath’s The Bell Jar, and Ken Kesey’s One
Flew Over the Cuckoo’s Nest, as well as documentary films such as Frederick Wiseman’s 1967 Titicut Follies, gave
devastating insight into institutional life. Attention from the popular media seems to have had an effect; survey data from
the period confirms a positive shift in public opinion “in terms of better public understanding of mental illness and greater
tolerance or acceptance of the mentally ill.”74 And the increased acceptance and understanding of the mentally ill, coupled
with vivid depictions of abuse in institutions, sparked public outcry against institutional psychiatric care.
Reviled in the popular press, mental institutions also received criticism in intellectual circles. Some, such as
Thomas Szasz in his influential book The Myth of Mental Illness,75 suggested that mental illness was a social construct
used to control and limit deviancy in the population.76 Other influential works, such as Alfred Stanton and Morris
Schwartz’s The Mental Hospital and Erving Goffman’s Asylums, suggested that institutionalization itself worsened mental
illness. Still other critical works, such as David Rothman’s The Discovery of the Asylum,77 Michel Foucault’s Madness and
                                                            
68

Id.
See generally, Alex Sareyan, The Turning Point (1994) (discussing how WWII conscientious objectors played a
significant role in exposing the poor treatment of institutionalized patients).
70
Alex Sareyan, The Turning Point 65-71 (1994).
71
Joseph Halpern et al., The Myths of Deinstitutionalization: Policies for the Mentally Disabled 3 (1980).
72
Gerald N. Grob & Howard H. Goldman, The Dilemma of Mental Health Care Policy 3 (2006).
69

73
74

Nina Ridenour, Mental Health in the United States: A Fifty-year History 107 (1961).
Rochecroft, From Poorhouses to Homelessness, 1983, p. 52.

75

Thomas Szasz, The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (1961) (arguing against
modern psychiatry and denying the existence of mental illness).

76

See generally Gerald N. Grob, Mental Illness and American Society 1875-1940 15 (1983).
77. David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (1971).

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Civilization,78 and Gerald Grob’s The State and the Mentally Ill,79 raised questions about the continuity of confinement
across different realms, especially the asylum and the prison. Rising sentiment against the use of institutions for
psychiatric treatment, buttressed by knowledge of the poor conditions within institutions, engendered a reform movement for
community mental health, an alternative approach that favored “a more decentralized, short-term, treatment-oriented system
of mental health care services” over “long-term custodial care” in institutions.80 These cultural shifts, both in public
understanding of mental illness, and in perception of institutionalized treatment of the mentally ill, contributed to the
depopulation trend in institutions.
In concert with changing social perceptions of the mentally ill and mental health care, developments within the
law regarding confinement and treatment of the mentally ill accelerated the trend of deinstitutionalization. With the political
backdrop of the Civil liberties movement, advocates for the mentally ill viewed institutionalized care not as an asylum to
protect the mentally ill, but as an intrusion on the liberty and autonomy of the mentally ill, and they sought legal reforms
restricting involuntary psychiatric treatment.81 Similar to the NAACP’s strategy to end school segregation, advocates for the
mentally ill used litigation to chip away at the legal foundations of institutional psychiatric care by challenging the
procedures governing commitment and treatment.
Advocates first pushed for heightened procedural due process protections with regard to involuntary commitment.
A heightened standard for commitment would have had direct and dramatic effects on the institutionalized population,
because the most common path to admission to mental hospitals was involuntary commitment throughout the early part of
the twentieth century and well into the 1960s. 82 In fact, in 1939, for instance, about 90 percent of all admissions were
involuntary commitments.83 In O’Connor v. Donaldson, the Supreme Court held that the state could not “constitutionally
confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help
of willing and responsible family members or friends.”84 Other cases that followed, such as Addington v. Texas (requiring
“clear and convincing” evidence if a proceeding may result in indefinite confinement), imposed further due process
requirements on involuntary commitment procedures.85
Advocates then sought to exert pressure on institutions to release patients through the establishment of minimally
adequate standards of care, or “right to treatment.” In 1972, the Fifth Circuit in Wyatt v. Stickney, finding the treatment of
patients in Alabama unconstitutional, held that the constitution guarantees a right to treatment and habilitation for civilly
committed persons in state institutions.86 Because the state was unable to meet the judicially-mandated standards of
minimally required care, thousands of patients were released.87 The remedy, depopulation, was an intentional outcome; a
                                                            
78. Michel Foucault, Madness and Civilization (Richard Howard trans., Vintage Books 1988) (1961).
79. Gerald N. Grob, The State and the Mentally Ill: A History of Worcester State Hospital in Massachusetts 1830–
1920 (1966).
80

Bernard L. Bloom, Community Mental Health 20 (2d ed.1984).
See, for example, Stephen T. Morse, A Preference for Liberty: The Case against Involuntary Commitment of the
Mentally Disordered, 70 Cal. L. Rev. 54 (1982); Torrey, Out of the Shadows, 1997, p. 142.

81

82

William Gronfein, “Incentives and Intentions,” 1985, p. 194.

83

Id.
422 U.S. 563, 575 (1975).
85
Stephen Rachlin, “The Influence of Law on Deinstitutionalization,” in Deinstitutionalization 41, 46-51 (Leona L.
Barasch ed., 1983).
86
344 F. Supp. 373 (M. D. Ala 1972).
87
Torrey, Out of the Shadows, 1997, p. 144.
84

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right to treatment that set an unattainable standard of care was seen, by advocates, as “the best way to deinstitutionalize
thousands of people.”88 These decisions, which heightened the procedures required for commitment and the standards of
care for the committed “exerted continuing pressure on state hospital physicians and administrators to discharge existing
patients and reject new ones.”89
There were, in sum, a number of interwoven factors that converged
would, together, shift public policy away from mental institutionalization
deinstitutionalization that took place during the period 1955 to 1980. Though I
identified in the research literature, other forces were also at play. Gerald
summarizes the wider landscape as follows:

in the period following World War II that
and help contribute to the massive
have focused on the three leading factors
Grob, the leading scholar on the topic,

First, the experience of World War II appeared to demonstrate the efficacy of community and outpatient
treatment of disturbed persons. Second, a shift in psychiatric thinking fostered receptivity toward a psychodynamic
and psychoanalytic model that emphasized life experiences and the role of socioenvironmental factors. Third, the
belief that early intervention in the community would be effective in preventing subsequent hospitalization became
popular, a belief fostered by psychiatrists and other mental health professionals identified with a public health
orientation. Fourth, a pervasive faith developed that psychiatry was able to identify (and presumably ameliorate)
those social and environmental conditions that played an important role in the etiology of mental illnesses. Fifth,
the introduction of psychological and biological therapies (including, but not limited to, psychotropic drugs) held
out the promise of a more normal existence for individuals outside mental hospitals. Finally, an enhanced social
welfare role for the federal government not only began to diminish the authority of state governments but also
hastened the transition from an institutionally based to a community-oriented policy.90
B. Drawing Parallels with the Current Situation of Mass Incarceration
I will turn, now, to our current situation, in order to explore whether these factors resonate in today’s context
and whether they might conceivably point us in useful directions to help alleviate the problem of mass incarceration.
a. Prescribed Drugs and Other Biological Interventions
On the question of prescription drugs and mental health treatment, two things are quite clear: First, the
condition of mentally ill prisoners in state correctional systems and county jails is of increasing concern nationwide. The
stories of individual inmates are horrifying. A prison inmate in Jackson, Michigan—who authorities described as “floridly
psychotic”—died in his segregation cell, naked, shackled to a concrete slab, lying in his own urine, scheduled for a mental
health transfer that never happened.91 Another inmate, schizophrenic, gouged his eyes out after waiting weeks for transfer
to a mental hospital in Clearwater, Florida.92 Meanwhile, the head of Florida’s social services was forced to resign abruptly
in 2006 after being fined $80,000 and facing criminal contempt charges for failing to transfer severely mentally ill jail
inmates to state hospitals.93 Given the paucity of mental health care for prisoners, it is difficult to get a good sense of
how many inmates have serious mental health conditions. What we know is that, at the turn of the twentieth century,
                                                            
88
89

Id. at 144 n13.
Id. at p. 145.

90

Grob, From Asylum to Community, 1991, at page 4.
Libby Sander, “Inmate’s Death in Solitary Cell Prompts Judge to Ban Restraints,” New York Times, November 15,
2006.
92
Abby Goodnough, “Officials Clash Over Mentally Ill in Florida Jails,” New York Times, November 15, 2006.
93
Alisa Ulferts, “Head of DCF is fined $80,000,” New York Times, December 1, 2006.
91

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there was a high level of diagnosed mentally ill offenders in prisons and jails in the United States—283,800 in 1998—
representing 16% of jail and state prison inmates.94 We also know that, according to a study released by the Justice
Department in September 2006, 56 percent of inmates in state prisons and 64 percent of inmates across the country
reported mental health problems within the past year;95 much of this is associated with depression, and that depression
may be cause by the institutionalization itself. Ultimately, it is extremely hard to quantify correctly the number of detained
inmates who need, but are not receiving mental health care and medication. But there is no question that the number is
very high and that treatment and medication could substitute for continued detention in many cases, which would naturally
help alleviate mass incarceration.
The second thing that is clear is that the use of prescribed medication in the United States has increased
markedly since the 1950s. Today, according to data from the Department of Health and Human Services, about half of
all Americans take at least one prescription drug, with about one in six Americans taking three or more medications.96 It
is probably fair to say that the United States is one of the most medicated nations in the world today. Now, to be
sure, the overall rise in the use of prescription medications coincided with the sharp increase in the prison population
over the past forty years. So, more drugs are not necessarily a panacea. However, there is no way of knowing, without
further research, whether the populations at risk of incarceration are among those who have experienced increased use of
prescription drugs, nor whether the increased use of prescription medication actually dampened prison growth. If indeed the
correlation between medication and prison population operates through criminogenic behavior—in other words, if we assume
a direct crime and punishment nexus, which is a relatively simplistic assumption—we still do not know whether the
increased use of medication over the last 50 years actually dampened prison growth or had no effect, given the
simultaneity problem: it is entirely possible that the prison population could have risen even more if there had been less
generalized use of prescribed medication.
One question to pose, then, is whether the enhanced use of medications might contribute to deinstitutionalization
of our prisons? There are reasons to think that it might. The use of Thorazine to treat violent and anti-social behavior
has become commonplace both in and outside of the prison context97—and it is not immediately apparent that increased,
voluntary medicalization would be morally, ethically, or politically worse than forcible detention in prison. This raises

                                                            
94

Paula M. Ditton, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Mental Health and the
Treatment of Inmates and Probationers 3 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf.
95

Erik Eckholm, “Inmates Report Mental Illness at High Levels,” New York Times, September 7, 2006.
See Health, United States, 2004, Report of the US Department of Health and Human Services, updated at
http://www.cdc.gov/nchs/data/hus/hus09.pdf#executivesummary. See also ABC News Report here:
http://abclocal.go.com/kabc/story?section=news/health&id=6143292
;
Bloomberg
Report
here:
http://www.bloomberg.com/news/2010-09-02/prescription-drug-use-rose-to-include-half-of-americans-in-2008-u-ssays.html. For a fascinating discussion of the implications and outsourcing of pharmaceutical trials, see Kaushik
Sunder Rajan’s article in the New Left Review titled “Biocapital: Indian Clinical Trials and Surplus Health” available
here: http://www.forliberation.org/site/archive/issue0807/article020807.htm.
97
See generally Eric Silver, Richard B. Felson, and Matthew Vaneseltine, “The Relationship between Mental Health
Problems and Violence among Criminal Offenders,” Criminal Justice and Behavior 35, no. 4 (2008): 405-26; Tony
Butler, Peter W. Schofield, David Greenberg, Stephen H. Allnutt, Devon Indig, Vaughan Carr, Catherine D'Este,
Philip B. Mitchell, Lee Knight, and Andrew Ellis, “Reducing Impulsivity in Repeat Violent Offenders: An Open
Label Trial of a Selective Serotonin Reuptake Inhibitor,” Australian and New Zealand Journal of Psychiatry 44, no.
12 (2010): 1137-43.
96

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complex questions about prisoners and consent—questions that I explore elsewhere.98 But the alternatives are not without
their own problems—moral, ethical, and political. Perhaps it is, in the end, a Faustian bargain, but one worth taking.
There are a number of other discrete populations that could be, and in fact today are being targeted for
increased pharmaceutical interventions. The first involves sexual offenders. There has been a lot of research investigating
the possibility and effectiveness of biological interventions, including testosterone-lowering hormonal treatments, with an eye
to reducing sexual offender recidivism. Pharmacologically-based treatment options have been developed in an effort to
chemically alter sexual drives and offending behavior. Some of the pharmacological developments in this area include the
development of selective serotonin re-uptake inhibitors (SSRIs), which are also used as anti-depressants for the treatment
of anxiety and other personality disorders; psychostimulants; hormonal treatment experiments; and antiandrogen treatment
(GnRHs), which are hormone receptor antagonist compounds that help prevent or inhibit the biologic effects of male sexual
hormones.99
A second target population is juvenile offenders.100 In this context, there has a been a lot of research focused
on “conduct disorder” and the development of antimanic medications for certain forms of hyperactivity disorders, as well as
the use of psychological assessments like the MSYSI-2 and MAYSI-2 to identify potential juvenile offenders and then find
diversionary programs for them. These diversionary programs often involve outpatient programs that incorporate the use of
medication. A good example is the WrapAround Milwaukee program, winner in 2009 of the Harvard JFK School
Innovations in American Government award, an outpatient managed care program that is operated by the Milwaukee
County Behavioral Health Division and that is designed to provide individualized care to youths with mental health and
emotional needs.101 A third targeted population involves the outpatient treatment of drug addiction. For non-violent drug
offenders, there are now well-established outpatient treatments using methadone, buprenorphine, lofexidine, and naltrexone;
as well as diversionary programs and various outpatient care programs.102
The model throughout these various developments, essentially, is to identify physiological or biological causes of
violent behavior and to use medication to modify those causal agents. This approach can be seen at work, for example,
in the research of Jean Decety, a psychologist at the University of Chicago. His research focuses on adolescents with
“conduct disorder” or “CD,” a mental disorder defined by “a longstanding pattern of violations of rules and laws” and
characterized by symptoms such as “physical aggression, manipulative lying, theft, forced sex, bullying, running away from
                                                            
98

Bernard E. Harcourt, “Making Willing Bodies: Manufacturing Consent Among Prisoners and Soldiers, Creating
Human Subjects, Patriots, and Citizens,” work-in-progress paper to be presented at the New School Conference on
The Body and the State on February 11, 2011.
99
One of the leading researchers here is Martin Kafka. See generally Peer Briken and Martin P. Kafka,
“Pharmacological Treatments for Paraphilic Patients and Sexual Offenders,” Current Opinion in Psychiatry 20, no.
6 (2007): 609-13.
100
See generally Christopher A. Mallett, Patricia Stoddard Dare, and Mamadou M. Seck, “Predicting Juvenile
Delinquency: The Nexus of Childhood Maltreatment, Depression and Bipolar Disorder,” Criminal Behaviour and
Mental Health 19, no. 4 (2009): 235-46; Jean Decety, Kalina J. Michalska, Yuko Akitsuki, and Benjamin B. Lahey,
“Atypical Empathic Responses in Adolescents with Aggressive Conduct Disorder: A Functional MRI
Investigation,” Biological Psychology 80, no. 2 (2009): 203-11.
101
See http://county.milwaukee.gov/WraparoundMilwaukee/WraparoundAward.htm
102
See generally Steven S. Martin, Clifford A. Butzin, Christine A. Saum, and James A. Inciardi, “Three-Year
Outcomes of Therapeutic Community Treatment for Drug-Involved Offenders in Delaware: From Prison to Work
Release to Aftercare,” The Prison Journal 79, no. 3 (1999): 294-320; Michelle A. Lang and Belenko Steven,
“Predicting Retention in a Residential Drug Treatment Alternative to Prison Program,” Journal of substance abuse
treatment 19, no. 2 (2000): 145-60; Jason Luty, “What Works in Drug Addiction?” Adv Psychiatr Treat 9, no. 4
(2003): 280-88.

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home overnight, and destruction of property.”103 Decety and his colleagues explore the neural responses of adolescents to
empathy-eliciting and sympathy-eliciting stimuli, such as the sight of someone in pain (the image of someone having their
fingers stuck in a car door, for instance). The idea is to see whether painful situations trigger different activity in the
brain. Using neuro-imaging, their studies try to differentiate between brain activity in juveniles with conduct disorder versus
those without conduct disorder. The goal, ultimately, is to identify different neural pathways, in order to then explore
possible treatment addressed to those brain activities. As Decety writes, “Biological studies of CD should lead to new
approaches to its treatment, both by understanding the mechanisms underpinning CD and by matching treatments to
specific deficits in different individuals with this heterogeneous disorder.”104 Or, in other words, to identify and treat brain
pathways in order to alter behavior.
Thinking more broadly, two other related possibilities come to mind. First, the gradual legalization or
medicalization of marijuana is likely to have, or eventually may have dramatic effects on reported crime levels both
through decriminalization and also by eliminating the drug trade and its attendant violence. This is especially true on the
border area with Mexico where the marijuana drug trade is wreaking havoc. If marijuana and other lesser controlled
substances are eventually legalized, this would surely have a significant effect on reducing the incarcerated population.
Second, functional substitutes to incarceration, such as GPS monitoring and other forms of home surveillance and
detention, can be thought of as an alternative form of medicalization—as something like prescription drugs that acts as an
alternative to incarceration. These developments as well should be considered as substitutes to the prison.
A great danger in this approach is the potential racialization of psychological diagnoses of deviance—a danger
made vivid by our past experience with schizophrenia, as demonstrated brilliantly by Jonathan Metzl in his book, The
Protest Psychosis: How Schizophrenia Became a Black Disease (2010). In his research at Ionia State Hospital in
Michigan, Metzl recounts the shocking story of how schizophrenia, as a diagnosis, became overwhelmingly applied to
institutionalized African-American, and how the experience there mirrored the national conversation that increasingly linked
blackness to madness. Like the prison itself—as I discuss later—mental illness, especially related to violence, became
increasingly racialized during the second half of the twentieth century, and this would be something important to guard
against.
b. The Great Recession of 2008
The second factor to consider involves ways of restructuring federal reimbursement programs to make it more
attractive to states to decarcerate, especially during these times of economic crises. Would it be possible to imagine, in
our hard economic times, a federal initiative aimed at diverting fiscal resources toward programs that promote alternatives
to incarceration? Is there anyone in a position of leadership at the federal level who would be willing to take on this
issue, as President Kennedy did in 1963? President Barack Obama certainly embraced health care as a major policy
reform during his first two years in office, despite the Great Recession of 2008; and he had to deal with a massive
Republican backlash to his health care reforms during the next two years. Is it even conceivable that mass incarceration
could be placed on President Obama’s agenda or on that of any future President? It may be difficult to imagine, I
confess, but a positive answer to these questions seems almost essential to making any headway in reducing mass
incarceration.

                                                            
103
104

Decety et al., “Atypical Empathic Responses,” 2009, p. 203.
Id.

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In contrast to prescription drugs, there have been some writings on the issue of the relationship between the
2008 fiscal crisis and mass incarceration.105 Some researchers, such as Kara Gotsch of the Sentencing Project, argue that
the financial crisis has already triggered a new climate of bipartisanship on punishment.106 Gotsch suggests that we are
today in a unique political climate (embodied, for instance, by the passage of Second Chance Act under President George
W. Bush), a climate substantially different from the era of President Clinton’s Omnibus Crime Bill. On her view, the fiscal
crisis is already leading to bipartisanship around sentencing policy and prison reform. Recent policy research has looked at
the changes at the state level in response to the fiscal crisis107 and the impact of financial crisis on corrections
spending,108 but the findings are not especially encouraging.
Others contend that the current economic crisis alone will have little effect. In her 2010 Daedalus article “Cell
Blocks & Red Ink,”109 Gottschalk argues that economic troubles are not necessarily a catalyst for decarceration: “Mounting
fiscal pressures on their own will not spur communities, states, and the federal government to empty jails and prisons;”110
in fact, she argues, it may be the inverse. “If history is any guide, rising public anxiety in the face of persistent
economic distress and growing economic inequalities may, in fact, ignite support for more punitive penal policies.”111
Economic hard times (for a variety of reasons) are more likely to stoke the fire of public punitiveness—as we saw at the
time of the Great Depression and the New Deal.112 Going forward, Gottschalk argues, advocates of decraceration will need
to avoid framing the issue primarily as an economic one.113
Chris Berk at the University of Chicago has a working-paper titled “Investment Talk: Comments on the Use of
the Language of Finance in Prison Reform Advocacy,” which focuses on what he calls “an emerging discourse in prison
reform circles,” or “investment talk,” that uses the language and concepts of investment and finance to argue for largescale prison reform. Berk is skeptical of this new discourse and suggests that it may undermine prison reform advocacy
because, first, it takes the interpretation of social cost to be given, rather than politically contested, and second, it
empowers a particular set of experts and knowledge, consolidating the logic of “neoliberal penality.” Consequently, Berk
argues, investment talk does not necessarily imply, as some advocates suggest, more limited, community-controlled
punishment practices.

                                                            
105

Andrew Dilts is preparing a collection of essays on the topic of crisis and contemporary criminal justice to be
published in the Carceral Notebooks.
106
Kara Gotsch, “Bipartisan Justice.” The American Prospect (Dec. 2010): A22-23. Incidentally, that issue of The
American Prospect is entirely dedicated to mass incarceration and has a number of interesting contributions. See
http://www.prospect.org/cs/special_report
107
Nicole D. Porter, “The State of Sentencing 2009: Developments in Policy and Practice,” The Sentencing Project,
available here: http://sentencingproject.org/doc/publications/s_ssr2009Update.pdf
108
Christine S. Scott-Hayward, “The Fiscal Crisis in Corrections: Rethinking Policies and Practices, July 2009
(updated),
Vera
Institute
of
Justice,
available
here:
http://www.pewcenteronthestates.org/uploadedFiles/Vera_state_budgets.pdf?n=5515
109
Marie Gottschalk, “Cell Blocks & Red Ink: Mass Incarceration, The Great Recession & Penal Reform,”
Daedalus 139(3): 62-73 (2010). The original formulation of Gottschalk’s argument traces to her earlier book, where
she argued that financial crisis does not necessarily mean that Left and Right will end up reaching across the aisle or
that the results will be a reduction in punishment. See Marie Gottschalk, Marie, The Prison and the Gallows
(Cambridge: Cambridge University Press 2006): 240-245.
110
Gottschalk, “Cell blocks & red ink,” p. 62.
111
Id. at 63.
112
Id. at 64.
113
Id. at 70.

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Still others, such as Jonathan Simon and myself, have drawn parallels between the prison boom and the
housing bubble.114 Simon argues, in his Daedelus article “Clearing the ‘troubled assets’ of America’s punishment bubble,”115
that the mass incarceration crisis can be mapped onto the housing crisis, suggesting that the analogy to the housing
market can reveal potential remedies to the current crisis. “For the prisons themselves,” Simon suggests, “we need a
conversion program similar to the plan developed to handle former military installations closed down as a result of
Congress’s base-closing commission in the 1990s.”116 Keally McBride has also been writing in this vein on the California
crisis.117 In The Illusion of Free Markets, I suggest that the growth of prisons has, in fact, resembled the “bubble
economies” that we witnessed over the past few decades—the “dot-com bubble” of the late 1990s and the “real estate
bubble” of the late 2000s. Prison building (a form of real estate, sadly) exploded in the 1990s, generating a remarkable
outburst of expenditures, jobs, and debt. It is possible to think of the growth of the prison sector as resembling, in many
ways, the growth of the real estate sector: fueled by irresponsible lending or borrowing, growing beyond future capacity,
resting on speculative prices.
The Great Recession of 2008 has certainly put severe pressure on the “prison bubble”—if that is a fair term—as
many states find themselves unable to service the debt associated with prison building or carry the expenses associated
with massive prison populations. This has been nowhere more clear than in Arizona where, in early 2009, the state
legislators began discussing the idea of converting the entire state-run prison system into a privately run corporation to
counteract the $3.3 billion revenue shortfall expected that year.118 Some legislators predicted that this change could save
the state approximately $40 million annually,119 whereas others hoped that this could reduce the budget shortfall by $100
million.120 The plan to privatize the whole sector has gone forward, though it would only add to Arizona’s alreadysignificant reliance on private prisons: to date, nearly 30 percent of the state’s prisoners are held in privately run
facilities.121 It is, of course, unclear what will ultimately happen with the prison sector, whether it would ever “pop,”
whether it will be fully privatized, and whether it will subside.
But it is unlikely that the economic crisis will have much of an effect on prison populations without federal
leadership. This is, I believe, a lesson from deinstitutionalization, and, in this regard, I agree with Marie Gottschalk, who
writes, correctly I believe, that “[t]he deinstitutionalization case demonstrates the enormous importance of the political
context for the development and implementation of successful federal and state policies to drastically shrink state
institutions…. [L]eadership at the federal level was critical to enacting change.”122The real question, then, is whether there
could possibly be federal funding mechanisms put in place that could migrate the financial burden of incarceration to the
federal government in such a way as to promote, ultimately, alternatives to incarceration? This was the model of 1960s
deinstitutionalization: shifting the funding burden to the federal government as a way to incentivize the states to move
patients into other facilities closer to the community and closer to home. How could this be encouraged today?
                                                            
114

Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order, at 238-239;
Jonathan Simon, “Clearing the 'troubled assets' of America's punishment bubble,” Daedalus 139(3): 91-101 (2010).
115
Daedalus, Summer 2010, p. 91-101. Simon has also blog posted on this topic here:
http://governingthroughcrime.blogspot.com/search?q=great+recession .
116
Simon, “Clearing,” 2010, at 97.
117
Need to get this from Keally.
118
Private Prisons Offer Potential for State Savings (May 25, 2009), available at
http://www.yumasun.com/opinion/state-50322-potential-balance.html.
119
Id.
120
Jennifer Steinhauer, Arizona May Put State Prisons in Private Hands (Oct. 23, 2009), available at
http://www.nytimes.com/2009/10/24/us/24prison.html.
121
122

Steinhauer, Arizona May Put State Prisons in Private Hands.
Gottschalk, “Cell Blocks & Red Ink,” 2010, p. 68.

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Some point to the Justice Reinvestment movement as being a way to address this question. “Justice
Reinvestment,” a project of the Council of State Governments Justice Center, is, in its own words, “a data-driven
approach to reduce corrections spending and reinvest savings in strategies that can decrease crime and strengthen
neighborhoods.”123 The project is intended to be evidence-driven and to discover cost-effective ways of keeping society
safe. The mantra is evidence, cost-effective policies, and measured performance—as evidenced by its three-prong approach:
1. Analyze data and develop policy options.
Justice Center experts analyze crime, arrest, conviction, jail, prison, and probation and parole supervision
data provided by state and local agencies; map specific neighborhoods where large numbers of people under
criminal justice supervision live and cross-reference this information with reports of criminal activity and the need
for various services (including substance abuse and mental health treatment programs) and resources (such as
unemployment or food stamp benefits); and assess available services critical to reducing recidivism. Using that
state-specific information, the Justice Center develops practical, data-driven, and consensus-based policies that
reduce spending on corrections to reinvest in strategies that can improve public safety.
2. Adopt new policies and put reinvestment strategies into place.
Once government officials enact the policy options, they must take steps to verify that the policies are
adopted effectively. The Justice Center assists jurisdictions with translating the new policies into practice, and
ensuring related programs and system investments achieve projected outcomes. This assistance includes
developing implementation plans with state and local officials and keeping policymakers apprised through frequent
progress reports and testimony to relevant legislative committees.
3. Measure performance.
Finally, the Justice Center ensures that elected officials receive brief, user-friendly, and up-to-date
information that explains the impact of enacted policies on jail and prison populations, and on rates of
reincarceration and criminal activity. Typically, this includes a “dashboard” of multiple indicators that make it easy
for policymakers to track—in real time—the changes in various components of the criminal justice system.
According to the Justice Reinvestment project, this is precisely the approach that led, for instance,
investment of $241 million by the Texas legislature in 2007 “to expand the capacity of substance abuse and
health treatment and diversion programs, and to ensure that the release of low-risk individuals is not delayed due
of in-prison and community-based treatment programs” and to the investment of $7.9 million in Kansas “to
treatment programs and strengthen probation and parole.”124

to the
mental
to lack
expand

It might be possible to tap into this current and logic to promote federal leadership as a cost-effective way
around mass incarceration. On the other hand, of course, this entire approach could simply be a lot of technocratic
nonsense—a lot of politics masquerading as economistic, cost-efficiency language. And the entire cottage industry of reentry
and diversionary programs may well be a grand illusion, or, in Loïc Wacquant’s terms, a lot of “myth and ritual.”125 The
question, ultimately, may be whether the public economy of reentry is more or less favorable than that of mass
                                                            
123

See http://www.justicereinvestment.org/
See Justice Reinvestment Overview pdf document downloadable at http://www.justicereinvestment.org/
125
See new paper by Loïc Wacquant on reentry programs.
124

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incarceration. Once again, these avenues may involve a devil’s pact. What is clear, though, is that federal leadership will
be necessary to make this pact work.

c.

The Social Construction of the Convict

The third question is whether we could imagine, at some point, that the public imagination of the “convict”
would ever be reshaped? This is not simply a matter of changing social meaning. It involves complicated processes of
identification. Although exceedingly complex, here too there may be something fruitful. And the place to look may be the
recent litigation of California prison overcrowding at the United States Supreme Court—a high-profile media and cultural
event that may signal wider appreciation for the prison conditions facing convicted inmates. An analysis of the rhetoric
and surrounding media coverage of the oral argument before the Supreme Court indicates, possibly, a growing awareness
of overcrowding in prisons and the resulting poor conditions. The case may serve as an illustration of how to mobilize
greater attention on the problems associated with mass incarceration.
The California prison overcrowding case, Schwarzenegger v. Plata or now Brown v. Plata126 was argued at the
U.S. Supreme Court on November 30, 2010, on the question of the authority of the federal courts to issue and fashion
remedies to rectify unconstitutionally poor conditions within prisons, pursuant to the Prison Litigation Reform Act, 18 U.S.C.
§ 3626 (“PLRA”). The Supreme Court litigation arose out of two separate class action lawsuits, Plata v. Schwarzenegger127
and Coleman v. Schwarzenegger,128 filed on behalf of prisoners incarcerated in California State prisons. In both cases, the
prisoners successfully claimed that poor medical and mental health care provided by the California Department of
Corrections and Rehabilitation (“CDCR”) violated their constitutional rights.129 At issue at the Supreme Court was the
remedy fashioned by the courts to correct the constitutional violation. More specifically, a three-judge panel in the
consolidated cases had ordered that California create and file “a population reduction plan that will in no more than two
years reduce the population of the CDCR’s adult institutions to 137.5% of their combined design capacity.” The appeal to
the Supreme Court concerned the scope of this remedial order.
The cases have a complicated procedural history that had been winding its way through the federal courts since
the early 1990s. The first case, the Coleman130 case initiated in 1990, was a class-action lawsuit filed on behalf of
California inmates with serious mental disorders. The Coleman plaintiffs raised claims based on inadequate mental health
care provided to California prisoners. In 1995, following a full trial in front of a Magistrate Judge, the District Court found
that the mental health care provided to California’s inmates was constitutionally inadequate, and that the State did not
provide “basic, essentially common sense, components of a minimally adequate prison mental health care delivery
system.”131 Based on these findings, the Coleman court entered an order requiring defendants to develop plans to remedy
the constitutional violations under the supervision of a special master. The Special Master supervised over a decade of
remedial efforts. By 2006, when the District Court judge granted the Coleman plaintiffs’ motion for a hearing before a
three-judge panel, the court had issued over 70 orders in the Coleman case.
                                                            
126

The case has since been recaptioned to Brown et al. v. Plata et al., Supreme Court Docket No. 09-1233.
Plata v. Schwarzenegger, 3:01-cv-01351-TEH (N.D. Cal. 2001).
128
Coleman v. Schwarzenegger, 2:90-cv-00520-LKK-JFM (E.D. Cal. 1990)
129
Coleman specifically addresses the lack of mental healthcare facilities; while Plata addresses medical facilities
generally.
130
Coleman v. Schwarzenegger, 2:90-cv-00520-LKK-JFM (E.D. Cal. 1990)
131
Specific deficiencies cited by the court included delays in treatment, which worsened and exacerbated illness,
improper screening, improper medication management, poor record keeping and chronic understaffing.
127

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Plata v. Schwarzenegger132, filed in 2001, was a class action lawsuit claiming that the delivery of medical care
in the California State penal system was constitutionally inadequate. The parties in Plata (who had been informally
negotiating since 1999)133 negotiated a stipulation for injunctive relief in 2002.134 After three years of reports of the State’s
noncompliance with the agreement (October 2005), the Plata court appointed a receiver to oversee the CDCR and bring
its management of inmate healthcare into constitutional compliance.135 The receiver was granted broad authority to develop
and implement a system of medical care delivery that met constitutional standards “as soon as practicable.”136
In the mean time, on October 14, 2006, then-governor Schwarzenegger declared a state of emergency, stating
that the overcrowding in prisons posed a substantial risk to the health and safety of workers and inmates in California
prisons, and that immediate action was required to prevent death and harm caused by severe overcrowding. Following the
governor’s declaration of the state of emergency, both the plaintiffs in the Plata and Coleman cases filed motions to
convene a three-judge panel under PLRA to consider whether a Prison Release Order should be considered, and the
motions were granted. The cases were consolidated, and heard before a three-judge panel to assess whether a Prison
Release Order was an appropriate remedy under the PLRA. Following an extensive evidentiary hearing, the panel
determined that overcrowding in state penal facilities was the primary cause of the constitutionally inadequate provision of
medical and mental health care. The panel ordered California to create and file “a population reduction plan that will in
no more than two years reduce the population of the CDCR’s adult institutions to 137.5% of their combined design
capacity.”137
In the appeal before the Supreme Court, the State of California challenged the three-judge order mandating that
the State reduce the population of the prisons to 137.5% of their designed capacity within two years.138 The three judge
panel chose this cap based on expert testimony and evidence presented during the hearing. The plaintiffs had requested
a 130% design capacity cap, and supported the request with expert testimony, which included reports from the
Gubernatorial Strike Team tasked with addressing the Prison Overcrowding State of Emergency and the Bureau of Prisons.
Both reports set population management goals to cap inmate populations at 130% design capacity. The State argued that
these population goals were “desirable,” but not constitutionally required. Other expert testimony, including a 2004
Corrections Independent Review Panel (prepared by a group of experienced California prison wardens) suggested that “a
system operating at 145% design capacity could support full inmate programming in a safe, secure environment.”139
However, testimony regarding this report showed that adequate medical and mental health facilities were not accounted for
in preparing the report; the court therefore reasoned that capping the population at 145% capacity would not be enough
to provide adequate care. Thus the judicial panel credited the evidence supporting the 145% estimate “to the extent that
                                                            
132

Plata v. Schwarzenegger, 3:01-cv-01351-TEH (N.D. Cal. 2001).
Order and Opinion, 2009 WL 24308420, *3 (N.D. Cal., E.D. Cal. 2009).
134
Id.
135
Id. at *10. The Plata court considered the appointment of a Receiver “a drastic measure” but blamed “the State’s
abdication of responsibility,” and stating that the court had “no choice but to step in to fill the void.” Id.
136
Id. at *11.
137
Order and Opinion, 2009 WL 24308420, *82 (N.D. Cal., E.D. Cal. 2009).
138
The challenge rests in part on the language of the PLRA, which states that a court cannot issue a prisoner release
order unless “( i) a court has previously entered an order for less intrusive relief that has failed to remedy the
deprivation....; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.”
18. U.S.C. 3226 (a) (3) (A). California argues in part that t has not had a reasonable amount of time to remedy the
violations.
139
The Judicial Panel notes, with some frustration, that the State did not propose an alternative population cap that
would fix the Constitutional violation. Id.
133

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it suggests that the limit on California’s prison population should be somewhat higher than 130% but lower than 145%.”140
Given conflicting evidence, the panel ordered a population cap of 137.5% design capacity, “a population reduction halfway
between the cap requested by plaintiffs and the wardens’ estimate of the California prison system’s maximum operable
capacity absent consideration of the need for medical and mental health care.”141
I realize these are a lot of details, but this litigation at the Supreme Court and the struggle over 130, 137.5 or
145 percent overpopulations are very significant because together, they signal a greater awareness of the plight of
prisoners and of their conditions of incarceration. The rhetoric at the oral argument and the media coverage of the
Supreme Court case seem to indicate a growing and wider awareness of overcrowding in prisons and the resulting poor
conditions, as well as a growing concern for the best way to allocate public resources to address these problems.
Concern for the welfare of prisoners was evident in several questions asked by the justices. Justice Sonia Sotomayor
openly asked the State to address the human costs of overcrowding: “When are you going to avoid the needless deaths
that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in
a dazed state? When are you going to get to a point where you're going to deliver care that is going to be
adequate?”142 Justice Stephen Breyer also called attention to the poor conditions—which he later called “a big human rights
problem”143—stating that “It’s obvious… you cannot have mental health facilities that will stop people from killing themselves
and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this.”144
Other questions indicated a fear of the consequences of the population cap, reflecting the debates over the
proper treatment of the mentally ill (isolated in asylums or integrated into communities). But unlike the mental health
debates, in the prison context confinement itself is a part of punishment, and supposedly an immediate deterrent to further
crime. This consequentialist argument was reflected in questions by Justice Samuel Alito (“[I]f I were a citizen of
California, I would be concerned about the release of 40,000 prisoners”)145 and Chief Justice John Roberts, whose
questions emphasized the high recidivism rate of parolees146, when addressing whether the three-judge panel’s order gave
appropriate consideration to community safety, in adherence with PLRA.
The oral arguments also indicated a growing frustration and exhaustion with the public consequences of a large
prison population. Justice Alito questioned the appropriateness of a mandated prison cap, but Justices Breyer, Ginsburg
and Kennedy each emphasized the failure of previous attempts to improve conditions. Throughout the argument, references
were made to the failure to secure funding to improve prison conditions to a constitutionally adequate state.
Media coverage of the case seems to indicate a growing public sentiment against mass incarceration.147 Many
editorials, with titles such as the “Crime of Punishment” and “Overcrowding in Prisons Put Us All At Risk,” supported
                                                            
140

Additionally, the Panel found the evidence supporting the adequacy of care at 145% capacity to be “far less
persuasive.” Id. at *83.
141
Id.
142
Transcript of Oral Argument at 15, Schwarzenegger v. Plata, No. 09-1233 (November 30, 2010).
143
Id. at 27.
144
Id. at 20.
145
Id. at 48.
146
Id. at 67.
147
See, e.g., The Crime of Punishment:[Editorial], New York Times. (Late Edition (east Coast)). New York, N.Y.:
Dec 6, 2010. p. A.26; David Fathi , Bulging Prisons Put Us At Risk, Contra Costa Times, Walnut Creek, Calif.: Dec
4, 2010. p. A.8; Justices Debate Prison Lawsuit: Justices question if rights of inmates outweigh state's interest in
managing own penal system, Contra Costa Times, Walnut Creek, Calif.: Dec 1, 2010. p. A.11; Adam Liptak,
Justices Hear Arguments on California Prison Crowding, New York Times. (Late Edition (east Coast)). New York,
N.Y.: Dec 1, 2010. p. A.16; Jimmy Bierman and Jaime Dorenbaum, “’Three strikes’ law is a human travesty,” The

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upholding the three-judge panel’s decision capping the prison population. Even articles that focused more on the oral
argument (and less on advocacy) seemed to note the skepticism members of the Court showed for the State’s
arguments.148
This kind of high-profile litigation may well help to shift popular views about prisons and prison conditions. Along
with documentary films in the vein of Titicut Follies, it is possible to imagine these legal and cultural interventions having
an effect on public perception that could ultimately reduce prison populations. It’s true that, while public sentiment may be
more sympathetic to the more egregious examples of horrific conditions in prisons, it seems unlikely that prisoners will
ever be able to evoke the same amount of sympathy as the mentally ill. In contrast to mental patients, prisoners tend to
be viewed as deserving of their punishment. The question, though, is whether they will continue to be viewed as
deserving of the excessive forms of punishment associated with these overcrowded and unsanitary prisons and jails.
III. The Pitfalls of Deinstitutionalization: What to Avoid?
A second large area to consider is whether there are glaring pitfalls to avoid from the experience with
deinstitutionalization in the 1960s. The dangers here are even more straightforward. Two leap to mind: the increased
racialization of the institutions as they were deinstitutionalized, and, second, the transinstitutionalization that occurred in the
wake of deinstitutionalization.
A. Racialization of the Hospital Population
Deinstitutionalization in the 1960sand 1970s drew heavily on predictions of dangerousness. The trouble is that the
use of risk assessment tools typically has the effect of sorting on race and increasing the racial disproportion within our
“dangerous” populations. This was certainly the case with regard to mental hospitals. It is also likely to happen with
prisons if we rely too heavily on risk assessment.
The turn to dangerousness had a distinctly disproportionate effect on African-American populations: the proportion
of minorities in mental hospitals increased significantly during the process of deinstitutionalization. From 1968 to 1978, for
instance, there was a significant demographic shift among mental hospital admittees. In a 1984 study, Henry Steadman,
John Monahan, and their colleagues tested the degree of reciprocity between the mental health and prison systems in the
wake of state mental hospital deinstitutionalization, using a randomly selected sample of 3,897 male prisoners and 2,376
adult male admittees to state mental hospitals from six different states.149 What their research revealed is that the
proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978: “Across the six
                                                                                                                                                                                                
Sacramento Bee, Sacramento, Calif., Dec 17, 2010, p. A.19; Michael Doyle , Calif. prison ruling expected to be split
Supreme Court divided on how to fix crowding, The Fresno Bee. Fresno, Calif.: Dec 1, 2010. p. A.1; Robert Barnes,
High court hears California prisons case, The Washington Post. Washington, D.C.: Dec 1, 2010. p. A.2; High Court
to look at Calif. prison crowding, The Associated Press, Charleston Daily Mail. Charleston, W.V.: Nov 30, 2010. p.
A.10; Warren Richey, California, at Supreme Court, fights judicial order on prison overcrowding, The Christian
Science Monitor. Boston, Mass.: Nov 30, 2010; Prison Ruling Stirs Up California, Wall Street Journal (Online),
New York, N.Y.: Nov 29, 2010; Joanna Chung and Bobby White, Court to Hear Prison-Crowding Case, Wall Street
Journal (Eastern Edition), New York, N.Y.: Nov 29, 2010. p. A.4.
148
David G. Savage, “State prison case falls on dubious ears; High court appears likely to back ruling ordering
California to free 40,000 inmates,” Los Angeles Times. Los Angeles, Calif., Dec 1, 2010. p. AA.1; Bob Egelko,
“State arguments draw skepticism from high court,” San Francisco Chronicle, San Francisco, Calif., Dec 1, 2010. p.
C.1.
149

Henry J. Steadman et al., “The Impact of State Mental Hospital Deinstitutionalization on United States Prison
Populations, 1968–1978,” 75 J. Crim. L. & Criminology 474, 478 (1984).

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states studied, the … percentage of whites among admitted patients also decreased, from 81.7% in 1968 to 68.3% in
1978.”150
This is demonstrated in the following graph which charts the shift documented by Steadman, Monohan and their
colleagues:

Figure 5: Admissions to mental facilities by Race
The track record is damning: mental hospitals were deinstitutionalized by focusing on dangerousness and the
result was a sharp increase in the black representation in asylums and mental institutions. I have written at greater length
about this in an essay, “Risk as a Proxy for Race,” forthcoming in Criminology and Public Policy; and Michelle Alexander
has forcefully drawn the devastating consequences for communities and American politics in her book The New Jim Crow:
Mass Incarceration in the Age of Colorblindness (2010) and in her contribution to this symposium. It is absolutely crucial
that in any effort to reduce mass incarceration, this pitfall be avoided.
B. Transinstitutionalization
The other danger to avoid is transinstitutionalization. This unquestionably happened with the mentally ill, as they
were not only transferred to nursing homes, but eventually became a much larger segment of the prison population.
William Gronfein has documented the transinstitutionalization of older mental patients from hospitals to nursing homes in
the 1970s. Gronfein emphasizes that the overall institutionalized population did not decrease over the 1960s, in fact rising
slightly from 1,035 per 100,000 general population in 1960 to 1,046 per 100,000 in 1970. Yet, during this period, the
proportion of the institutionalized population in nursing and old age homes increased from 19% in 1950 to 25% in 1960,
and reached 44% by 1970.151 “The total number of nursing care and related homes rose from 16,701 in 1963 to 22,558
in 1971, an increase of 35.1%, while the number of beds available in such homes rose from 568,560 to 1,235,405, an
                                                            
150. Steadman et al. 1984:479. Note that there was a similar, though less stark shift in prison admissions: “Across
the six states, the … percentage of whites among prison admittees was also relatively stable, decreasing only from
57.6% in 1968 to 52.3% in 1978.” Id.
151

Gronfein, “Incentives and Intentions,” 1985, p. 200.

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increase of 117.3%.”152 In Gronfein’s view, this was the product of Medicare and Medicaid, which encouraged the
substitution of one institution (nursing care) for another (mental hospitals).
In addition, we have all witnessed the transintitutionalization of mental health patients into prisons and jails. In
his paper, The Deinstitutionalization of the Mentally Ill and Growth in the U.S. Prison Populations: 1971 to 1996,153 Steven
Raphael explores the relationship between mental hospitalization and prison populations using state-level data for the period
1971 to 1996, and finds that deinstitutionalization from 1971 to 1996 probably resulted in between 48,000 and 148,000
additional state prisoners in 1996, which, according to Raphael, “accounts for 4.5 to 14 percent of the total prison
population for this year and for roughly 28 to 86 percent of prison inmates suffering from mental illness.”154 What we also
know is that, at the close of the twentieth century, there was a high level of mentally ill offenders in prisons and jails
in the United States—283,800 in 1998—representing 16% of jail and state prison inmates.155
If there is to be decarceration, there is a significant risk that it will simply produce new populations for other
institutions, whether homeless shelters, inpatient treatment facilities, or other locked-down facilities. This is, indeed, what
happened last time. The question would be, can it be avoided this time?
IV. Conclusion
Would it ever be possible to hear a President of the United States declare to Congress:
If we launch a broad new program now, it will be possible within a decade or two to reduce the
number of prisoners now under custodial care by 50 percent or more. Many more inmates can be helped to
remain in their homes without hardship to themselves or their families. Those who are incarcerated can be
helped to return to their own communities... Central to a new program is comprehensive community care. Merely
pouring Federal funds into a continuation of the outmoded type of institutional care which now prevails would
make little difference.156
I do not know the answer to this question, and my task has not been to predict or to speculate, but rather to
sketch, preliminarily, some lessons from our past experience of deinstitutionalization. Whether I, personally, am optimistic or
pessimistic should be of no concern to you. one of the most important lessons from all this, though, is that it may not
be possible to make much headway in reducing mass incarceration without the kind of political investment, context, and
will that President John F. Kennedy expressed in 1963. If we are indeed to work toward decreased prison populations,
the task ahead will be to maximize some of the silver linings of 1960s deinstitutionalization while avoiding the glaring
pitfalls—or at least, to further study these lessons from deinstitutionalization.
                                                            
152

Id.
Steven Raphael, “The Deinstitutionalization of the Mentally Ill and Growth in the U.S. Prison Populations: 1971
to
1996”
(Sept.
2000)
(unpublished
manuscript),
available
at
http://istsocrates.berkeley.edu/~raphael/raphael2000.pdf (finding that mental hospitalization rates have significant negative
effects on prison incarceration rates).
153

154

Id. at 12.

155

Paula M. Ditton, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Mental Health and the
Treatment of Inmates and Probationers 3 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf.

156

President Kennedy’s statement to Congress, slightly modified, quoted in Gronfein, “Incentives and Intentions,”
1985, at p. 196.

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