Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury,
Medicine Hat, Lethbridge, Grand Prairie, and Turner Valley.

Disclaimer inspired by Lady Whistledown from the Netflix Series Bridgerton: 

“Dear Readers,

It has come to my attention that the following discourse shall delve into the delicate subject of the intersection of mental health and criminal justice. Thus, I must implore you, should you find yourself in need, to seek counsel of a professional in this most personal of matters. Remember, it is of utmost importance to tend to one’s own well-being. When needed, let your quill idle for a brief moment;  respite is necessary from time to time to replenish one’s ink, spirit, and regain a measure of one’s wit.”

Tracing the Ties: A Journey Through Time

Mental health has long been a hush-hush topic due to lack of knowledge. Now sprinkle in involvement with the criminal justice system, and we have hit the gold mine of brushing things under the rug. Consequently, individuals with mental health disorders, who are in dire need of rehabilitation and treatment, are funneled through a system focused on punitive measures. Thank you to the scientists, neuroscientists, psychiatrist, psychologist and everyone who has conducted, is conducting, and will continue to conduct research uncovering the mysteries of the brain. Their work helps us understand how we function and learn about mental health, including the correlation between mental health and criminal behaviour. The presence of individuals with metal health disorders in the criminal justice system has been rightly described as a global pandemic, highlighting the urgent need for change. 

In the 1950s and 60s, individuals residing in Ontario who found themselves entangled with the criminal justice system were often placed in detention facilities within mental hospitals. This was due to psychiatric disorders in need of careful observation, care, and treatment. Then swooped in the 1967 Ontario Mental Health Act, allowing for the involuntary admission of individuals due to the severity of their mental disorder allocating necessary hospitalisation as they were posed a risk to themselves and society. A mandatory one-month stay was the ticket issued. Not exactly a five-star retreat, but the medical professionals and policymakers believed this is the best resolution with the knowledge present at the time.  

However, the treatment for mental health involved lobotomy surgery and electroconvulsive therapy—a rather extreme approach. Fortunately, by the late 50s, there was a shift towards a more psychopharmacological approach, favouring medicine over lobotomies and shock therapy. It’s safe to say that today’s treatments focus more on researching underlying causes and truly addressing mental health. Perhaps there’s a correlation from the 1880s, when individuals with mental health issues were often placed in jails and mental hospitals, reflecting society that struggled to provide proper care and, frankly, didn’t see them as fully human—out of sight, out of mind. These historical practices highlight a significant link between those navigating the criminal justice system and individuals grappling with mental health disorders. Those who commit crimes are immediately labeled as criminals, locked aways and forgotten. There’s little curiosity about their humane treatment or programs to support their reintegration as law-abiding citizens after their sentences. Instead, they’re stigmatised as perpetual offenders, akin to the old adage “once a cheater, always a cheater.” While societal persp0ectives may have evolved somewhat, remnants of these views linger. 

Back to the law I suppose… In 1978 an amendment required that a person must have threatened or attempted to cause bodily harm to themselves, behaved violently towards another, or caused another to fear bodily harm from them to be involuntarily admitted.  The problem with this amendment is that, more often than not, society tends to perceive someone as dangerous when they’re not. Think of the Birmingham 6, the Memphis 3, and the uncle and nephew of the docuseries “Making a Murderer.” Not only that, but if we continue to hospitalise people involuntary, it can lead to a shortage of beds those voluntarily seek help. This means hospitals might turn people away, and without proper care, these individuals could end up entangled with the criminal justice system.

The Supreme Court of Canada barged into the discussion made a landmark decision in 1991, leading to Bill C-30, and Act to amend the Criminal Code (Mental Disorder), for Part XX.1 on February 05, 1992. This amendment provided a comprehensive procedural code for dealing with mentally disordered accused individuals. The most significant change shifted the basis from indefinite custody until recovery to maintaining custody only as long as the accused poses a threat to public safety. This helps alleviate the fear that once you’re in “Her Majesty’s pleasure,” your stay could be lengthy and never-ending. 

The Ongoing Odyssey: Confronting Today’s Mental Health Challenges

Sit back and grab a cup of tea because this may take a while. The current challenges to mental health within the criminal justice system are numerous and complex. From social stigma and insufficient resources to the lack of access to adequate care, navigating the mental health landscape within this system is no easy feat. 

There has been a paradigm shift due to advancements in psychology, neuroscience, and social understanding. This revelation led to the understanding that mental health can significantly influence an individual’s ability to make rational decisions and control their actions, blurring the lines between culpability and responsibility in criminal conduct. This field encompasses mental health treatment availability, legal procedures, and societal attitudes towards mental illness. Unfortunately, some individuals with mental health disorders face discrimination even among their families and social circles. 

Mental health and the criminal justice system intersect in complex and profound ways. Globally, there have been a notable increase in the number of mentally ill individuals within the criminal justice system. Canadian rates of prevalence of mental health problems and mental illness in correctional contexts are comparable to the rates in the Unites States, the United Kingdom, Australia, and New Zealand. So before you comment about the examples of certain cases are American remember this is a worldwide epidemic. This issue has garnered attention from mental health professionals, law enforcement officials, and policymakers who are concerned about both the rising numbers of mentally ill individuals in custody and the quality of treatment they receive. Police officers, often the first responders to individuals in crisis, play a crucial role in deciding who gets arrested, who receives medical services, and who gets released. Thus, highlighting the critical responsibility police officers are bestowed upon at the intersection of mental health and public safety. 

Time to crack open the dictionary and attempt to define mental health. Mental health encompasses emotional, psychological, and social well-being, enabling an individual to handle life’s challenges, work effectively, and contribute to their community. On the other hand, mental illness involves substantial disruptions in thoughts, emotions, and behaviours, resulting in impaired functioning and distress. It is important to recognize that having a mental health condition does not inherently predispose someone to criminal behaviour. However, certain mental illnesses can affect judgment, impulse control, and awareness of consequences, which may increase the risk of engaging in unlawful activities.

Clearly defining mental health and mental illness helps us grasp the complexity of these concepts in the context of criminal law. This understanding is crucial for legal professionals, mental health practitioners, and policymakers to work together in developing a criminal justice system that is equitable and responsive to the mental health needs of individuals.

Common Mental Health Disorders in Criminal Cases

Several mental health disorders can greatly influence an individual’s behaviour, cognition, and emotional regulation, potentially steering them toward criminal activities. Here are some of the most common.

• Antisocial Personality Disorder (ASPD): Those with ASPD often show a blatant disregard for others’ rights and feelings, lack empathy, and engage in impulsive and reckless behaviours. Criminal activities may be committed without any sense of remorse or guilt, and they struggle to follow social norms and rules. Individuals later diagnosed with ASPD Ted Bundy, Jeffrey Dahmer, and John Wayne Gacy.
• Substance Use Disorder (SUD): Substance abuse can impair judgment, lower inhibitions, and provoke aggressive behaviour, increasing the likelihood of criminal conduct, especially in drug-related offenses or crimes committed under the influence.
• Mood Disorders: Disorders like depression and bipolar disorder are common among offenders. These conditions can lead to severe emotional instability, driving individuals to illegal activities to cope with their pain or act impulsively during manic episodes. Two serial killers that come to mind who suffered from bipolar disorder are; Anthony Hardy (Camden Ripper), and Marjorie Diehl-Armstrong. In contrast, creative geniuses who had bipolar disorder were Ernest Hemingway, Beethoven, Virginia Woolf, and Vincent Van Gogh.  
• Psychotic Disorders: Conditions such as schizophrenia and delusional disorder can feature in criminal cases. Untreated symptoms like hallucinations and delusions can cause erratic behaviour, heightening the risk of criminal involvement. The individual that comes to mind is Vince Li who suffers from schizophrenia beheaded Tim McLean on the greyhound bus, when Vince Li snapped out of the episode he found himself holding a head and consuming the flesh. 
• Post-Traumatic Stress Disorder (PTSD): PTSD is often seen in individuals who have experienced trauma, such as military veterans or survivors of violent crimes. It can cause hyper-vigilance, emotional numbing, and flashbacks, impairing their ability to manage stress and potentially leading to criminal behaviour. The infamous Mendez brothers was later revealed of potential PTSD, stemming from years of abuse they endured since adolescence. 

It’s crucial to remember that having a mental health disorder does not inherently mean a person will engage in criminal activity. Each case is unique and influenced by a multitude of factors.

Mental Health Defences in Criminal Law

In the realm of criminal law, mental health defences stand as pivotal arguments asserting that a defendant’s mental state during an offence should mitigate their criminal responsibility or exempt them from liability altogether. These defences acknowledge that severe mental disorders can impair an individual’s capacity to comprehend the wrongfulness of their actions or to control their behaviour effectively.

The insanity defence, perhaps the most notorious and debated of these, has ancient roots in societies grappling with the complexities of mental illness and criminal accountability. To succeed with this defence, defendants must convincingly demonstrate that they were suffering from a severe mental disorder at the time of the crime. This burden often rests squarely on the defendant’s shoulders, requiring clear and compelling evidence of their mental state during the commission of the offence.

Despite its legal framework, the insanity defence is fraught with controversy and scrutiny from the public, who often question its potential for misuse as an excuse for criminal behaviour. Those found not guilty by reason of insanity face varying outcomes—some endure indefinite institutionalization, while others undergo treatment with the possibility of eventual release contingent upon their rehabilitation progress.

Another significant mental health defence, diminished capacity, revolves around a defendant’s mental state hindering their ability to form the required mental intent for a specific crime. For instance, in cases of murder, a defendant might argue that their mental illness prevented them from harbouring the intent to kill, potentially leading to a reduced charge or sentence rather than a complete defence like insanity.

Volitional impairment delves into a defendant’s control over their actions due to mental health issues, invoking the concept of “irresistible impulse.” Here, defendants assert that despite understanding their actions’ nature, they were unable to restrain their behaviour due to mental illness-induced impulsivity or diminished self-control.

Both defences necessitate expert testimony from mental health professionals to elucidate the defendant’s mental state at the time of the offence. Successfully asserting these defences hinges on a thorough examination of the defendant’s mental health condition in relation to the alleged criminal conduct. Furthermore, societal perceptions of mental health and its correlation with criminal behaviour can significantly influence the outcome of these defences in court.

Competency to Stand Trial and Mental State at the Time of the Offence

Competency to stand trial, also known as fitness to stand trial, refers to a defendant’s mental ability to comprehend and actively participate in the legal proceedings against them. It’s a cornerstone of criminal law, ensuring that individuals must possess the mental competence to face trial and potential criminal penalties. To determine this, mental health professionals conduct competency evaluations, assessing the defendant’s cognitive and psychological capacities to assist in their defence and understand the charges brought against them.

If a defendant is deemed incompetent to stand trial, legal proceedings may be halted temporarily until they receive adequate mental health treatment to restore their competency. This process aims to safeguard the defendant’s right to a fair trial and prevent unjust convictions of individuals who may not be mentally capable of defending themselves effectively.

In contrast, the mental state at the time of the offence refers to the defendant’s mental condition during the commission of the alleged crime. It encompasses their ability to form the necessary intent or meet the mental requirements for a specific criminal offence. Evaluating the defendant’s mental state at the time of the offence is crucial in determining their culpability and considering defences such as insanity or diminished capacity.

Effective legal representation in these matters requires deep knowledge of both mental health issues and criminal law. Competent legal professionals advocate vigorously for their clients, ensuring that mental health concerns are given due consideration in court proceedings. Moreover, society must move beyond superficial social media posts about mental health and address the stigma that often surrounds mental illness, especially within the criminal justice system. There’s much work ahead to achieve real progress in this area.

By fostering a deeper understanding of how mental health intersects with criminal behaviour, we have the potential to mitigate criminal offences rooted in untreated mental illness. This calls for collaboration among policymakers, legal experts, and mental health professionals to develop compassionate and effective approaches within the criminal justice system.

Why Address Mental Health Within Criminal Justice System 

The overrepresentation of individuals with mental health disorders in incarceration emphasises the need for early intervention and diversion programs to address the root causes of criminal behaviour. Take, for example, Jeffrey Dahmer, who, in interviews, spoke about his feelings of a lack of love and his controlling nature, not wanting people to leave. Addressing mental health in the criminal justice system in of paramount importance, as it not only affects the well-being of individuals but also has broader implications for public safety and societal cohesion. The recognition and treatment of mental health issues within the criminal justice system play a vital role in ensuring a fair and equitable approach of justice. This includes reducing recidivism, ensuring fairness in legal proceedings, promoting public safety, diversion from the criminal justice system, cost savings and humanitarian considerations. 

Reducing Recidivism: Providing appropriate mental health interventions and support during and after incarceration can significantly reduce recidivism. This means identifying the root causes of criminal behaviour and implementing treatments that help individuals build a toolkit to prevent certain behaviours. For example, someone with borderline personality disorder, who may experience intense emotional fluctuations, can benefit from education about their condition. They can fill their toolkit with emotional regulation techniques, interpersonal skills, and distress tolerance strategies. If needed, medication can also be an option. Instead of resorting to physical violence, someone who gets angry quickly can use new skills to manage their emotions.

Ensuring Fairness in Legal Proceedings: Ensuring that those suffering from mental health conditions can understand the charges against them and effectively participate in their defence is crucial. Failure to ensure that a defendant is fit to stand trial may lead to a miscarriage of justice and compromise the principles of due process. By considering mental health factors and providing appropriate accommodations, the criminal justice system can ensure fairness and equity for all individuals involved.

Promoting Public Safety: Individuals with untreated mental health disorders may be more vulnerable to engaging in dangerous or violent behaviours, both within and outside the criminal justice system. Addressing mental health issues and providing easy access to treatment can mitigate the risk of harm to both the individual and the community.

Diversion from the Criminal Justice System: Diversion programs that steer individuals towards treatment and support services, rather than incarceration, can be more effective in addressing the root causes of their actions and promoting rehabilitation.

Cost Savings: Providing mental health treatment and support services can lead to cost savings for the criminal justice system and society at large. Incarcerating individuals with mental health disorders without addressing their underlying issues can lead to a cycle of repeated arrests and incarcerations, which can be financially burdensome. Investing in mental health programs can lead to better outcomes and reduce long-term costs associated with criminal justice involvement. However, psychology and mental health programs are effective only when individuals are willing to participate and engage in the material to better themselves.

Humanitarian Considerations: Individuals with mental health disorders deserve to be treated with dignity and compassion, regardless of their involvement with the criminal justice system. By addressing mental health concerns and providing appropriate care, society can uphold principles of human rights and promote a more compassionate approach to criminal justice.

Case Studies Highlighting Systemic Issues 

Sometimes, society encounters individuals like Edmund Kemper, who was incarcerated for the murder of his grandparents and later released. After his release, Kemper began murdering young girls and women, including his mother and her best friend. He believed that killing his mother would solve his problems, but when it didn’t, he called the police, admitting that he would continue to kill if not caught.

In contrast, there are individuals like Brian Dorsey, who was executed by the state of Missouri in April 2024. Before his execution, an appeal was made to commute his death sentence to life in prison. In 2006, Dorsey was charged with the double first-degree murder of his cousin Sarah and her husband Benjamin. On December 23, 2006, he called his cousin for help, explaining that he had a severe drug addiction, was an alcoholic, and was struggling with mental health issues. He claimed that two drug dealers were in his apartment and threatening to kill him unless he paid them. Sarah and her husband went to help, and the drug dealers left. Sarah then brought Dorsey home with them to care for him. Later that night, after Sarah and Benjamin went to sleep, Dorsey entered their room with a shotgun and shot them at close range.

Dorsey’s appeal was based on two main arguments:

1. His rehabilitation over the past 18 years had been astonishing. Over 70 correctional officers testified that he was not the same person who had entered prison. He had sobered up and received treatment for his severe depression and suicidal ideations. The officers suggested that the culture Dorsey fostered in prison was positive and non-hostile, describing him as kind and remorseful. Dorsey himself requested a life sentence instead of the death penalty.
2. He had ineffective counsel representation. Unable to hire a private lawyer, Dorsey received inadequate representation from two public defenders who were paid only $12,000 for a lengthy trial, equating to about $3.30 per hour for hundreds to thousands of hours of work. They did not go to trial and convinced Dorsey to plead guilty. A former Missouri Supreme Court Justice, now an advocate for Dorsey, argued that the low payment to his counsel was a failing of the legal system. 

Despite this, the Governor of Missouri did not commute his sentence, and Dorsey was executed within the first quarter of 2024. 

Still not convinced why mental health intersects with  the criminal justice system. In May 2023, a man named Sheldon Johnson was released from prison after decades of incarceration for homicide, robberies, and other charges. Sheldon had been behind bars since June 8, 1999. He was considered a success story of rehabilitation, having navigated the criminal justice system from a young age. Upon his release, Sheldon worked with Queens Defenders of New York, and organisation providing defense counsel for those who cannot afford a lawyer. He became a renowned advocate on rehabilitation and appeared on the Joe Rogan podcast. There, he described himself to be a product of intergenerational incarceration, facing social and economic challenges. He shared stories of his father being incarcerated when he was a young kid, his grandfather also imprisoned, and his great grandfather enduring slavery. Sheldon revealed that he had been sent to psychiatric facilities as a child for behavioral issues, where he learned behaviours later deemed criminal. He never returned to school and turned to selling drugs to survive and became a high-ranking member of the gang Bloods. 

Sheldon’s story reinforces the concept that punitive punishment works. Everyone rejoice and take an exhale because it works… right? Well fast forward to early 2024, Sheldon was arrested once again for homicide, manslaughter, dismembering a body, and criminal possession of a weapon. Unfortunately, Sheldon is back in jail and it highlights the systemic flaws within our criminal justice system. It remains heavily focused on punitive punishment rather than restorative justice, revealing a dire need for systemic reform.  

Part 1 is about diving into the challenges that the criminal justice system is facing. Now it’s time to pause and reflect. When we deep dive into research of the past and continue to ask WHY, we can come close to the root cause and find solutions. According to Salma Hayek, our mistakes are the most powerful tools because from our mistakes we learn and grow, and they help us think outside of the box. Sometimes those mistakes lead to a revelation. So, pause and be uncomfortable in stillness, reflecting upon what you just read. 

In the comments, share any “eureka” moments you have about the intersection of mental health and the criminal justice system. Until Part 2, potential resolutions, let’s be like the meme of the dog sitting in a café while the café is on fire,, saying, “this is fine.”