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Mental Health and ‘Punishment’ versus ‘Treatment’ May 16, 2016

If you think about it, we also have two parallel prison systems, one under criminal law, the other under civil law.  We worry a lot about ‘incarceration’ and the ‘mental health’ of prisoners.  Yes we have too many people in prison, even under the criminal law.  But we have two systems of incarceration, a criminal one and a civil one!  The civil one, of course, is ‘insanity’ or ‘mental health’.  After a period in which the second was abused, drastic reforms were made in the ‘70s that may have gone too far and given us some of our homeless problem. They blame Reagan, but at the time many on the left were supportive of these reforms as well.  But the civil track still exists.  In fact, some sex offenders in the ‘criminally insane’ institutions come to the end of their criminal sentence, and are handed over to the civil arm, and stay in the same institution!

There seems to be a distinction in the status of prisoners and mental patients.  Criminal prisoners have very few ‘rights’, to be sure, only ‘privileges’, but they may access attorneys and are regarded as adults being punished.  Mental patients are legally something like underage children; their ‘will’ or ‘choice’ has no rights, only their best interest as defined by their guardian.  And their return to adulthood is defined, often, by the will of that guardian.  Nevertheless, it cannot be denied that both systems are sort of parallel universes, with ‘incarceration’ and sometimes ‘probation’ having their civil mental health counterparts.

C.S. Lewis, in an essay called “The Humanitarian Theory of Punishment,” in God in the Dock, naturally did not theorize about American law, but he did declare that the concept of desert and punishment could not be separated from that of justice; if the purpose of the law is only to deter crime, protect the public, and ‘cure’ people, not administer justice, when the name ‘punishment’ is taken away, the thing itself can become infinite.  Criminal penalties, unless one is executed or subject to ‘life imprisonment without possibility of parole’ are finite [‘life imprisonment without possibility of parole’ is considered more Christianly humane nowadays, for reasons I cannot see in Scripture or in the history of the faith].  ‘Treatment’ or ‘curing’ can be infinite.  And ‘deterrence’ can work even if the person being made an example of has not actually committed the crime.  So the concept of deserved guilt and punishment actually serves to strengthen justice and limit the power of the state.

Mental health laws have been reformed, maybe a little too much given the fact that many of the permanently homeless are mentally ill, but they have been used to find ways to incarcerate people without the protections of the criminal law, also.  As a matter of fact, it can safely be said that we have two incarceration systems in this country; the criminal law system, known as the prisons, and the civil law system, known as ‘state hospitals’ or ‘psychiatric wards.’

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