55 years in prison for e-mails and phone calls?

David Gibberman | Attorney

The criminalization of mental illness — i.e., the imprisonment of individuals with a mental illness for behavior that is a symptom of their illness — is a damaging, and increasing trend. Daniel Jason is just one of tens of thousands of individuals trapped by it.

Handsome, with an athletic build but a gaze that can make him appear lost, Daniel has Asperger Syndrome. A developmental disorder (on the autism spectrum), Asperger Syndrome makes it difficult for Daniel to communicate and socialize normally with others. Individuals with Asperger Syndrome want to form strong and loving relationships with others but don’t know how to do so. Their focus on something can become obsessive.

Those with Asperger Syndrome usually have normal or above average intelligence. In December 2005, Daniel graduated early from the University of Iowa with a Bachelor’s Degree in finance. The next year he entered the university’s graduate school of business. Daniel took $2,000 of his bar mitzvah money and made $120,000 by trading options online.

Unfortunately, Daniel’s first time dating did not go well. In late December 2005 or early January 2006, after about 11 months of dating, his girlfriend, a fellow student, ended their relationship. In emails, phone calls, and text messages, Daniel alternated between begging his ex-girlfriend to get back together and threatening to reveal personal secrets if she didn’t.

Arrested on March 30, 2007 for violating a protective order that his ex-girlfriend obtained against him, Daniel has spent most of his time since then in prison, even though he hasn’t committed any violent crimes.

On May 29, 2008, after unsuccessfully representing himself at trial, Daniel was sentenced to five years in prison for violating the protective order and two years for witness tampering. On December 1, 2010, Daniel was sentenced to 27 months in prison and three years of supervised release for mailing a threatening communication to his lawyer from prison.

On November 5, 2012, Daniel was charged with one count of stalking while restricted by a protective order (he sent several email and Facebook messages to his ex-girlfriend) and two counts of extortion (in two voicemail messages left at his ex-girlfriend’s place of employment, he threatened to disclose “embarrassing information” about her). If convicted at his trial, scheduled to begin October 22, Daniel can be sentenced to up to 55 years in prison. Prosecutors offered a 10-year sentence if Daniel agreed to plead guilty but have withdrawn their offer.

Joseph Jason, Daniel’s father and President of a NAMI (National Alliance on Mental Illness) affiliate for the Barrington, Illinois area, has been desperately trying to convince Iowa prosecutors to treat Daniel’s illness instead of imprisoning him. Joseph has organized a petition drive at change.org.

Dorothea Dix has been celebrated for her crusade in the mid-1800s to move individuals with a mental illness from jails and prisons to mental hospitals so that they could be treated, instead of punished, for their illness. Ironically, we’ve been moving back to the pre-Dix days. A 2010 study by the Treatment Advocacy Center found that more than three times as many individuals with a serious mental illness are in jails and prisons than in hospitals. Many have been charged with no crime or charged with a misdemeanor or minor felony related to symptoms of their untreated mental illness.

How have we reached this point? Since the mid-1950s, the confluence of horror stories about the treatment of patients in mental hospitals, new medications to help sick individuals, efforts by civil libertarians to “liberate” patients, and the federal takeover of mental illness treatment have emptied state mental hospitals. It hasn’t helped that the Institution for Mental Diseases (IMD) exclusion (42 U.S.C. §1396d(a)) prohibits Medicaid from reimbursing states for care provided in psychiatric hospitals to individuals who are 21 or older but younger than 65.

Most individuals with a mental illness receive proper treatment and function successfully in society. However, we’ve left others, many so severely ill that they don’t even know that they’re ill, to fend for themselves. Their home has become America’s streets, jails, and prisons.

What goals of punishment are served by keeping Daniel in jail? Deterrence? That hasn’t worked so far. Rehabilitation? Daniel can be treated to improve his ability to interact with others and not be obsessed with his ex-girlfriend. But he’s not getting that treatment in prison and can be better treated elsewhere. Retribution? How can Daniel be considered morally responsible for his misconduct? Containment? Yes, Daniel’s offending behavior can be reduced by keeping him in prison. But prison costs substantially more than other facilities that can protect society equally well from Daniel’s misdeeds and help make him a functioning member of our community.

Many cities and counties have established mental health courts, which deal only with arrested individuals who have a mental illness. Such courts can provide the proper treatment and support needed to help those brought before them. They’ve been found to improve public safety, improve the quality of life for those they deal with, and save a significant amount of money compared to the cost of the regular criminal justice system.

We wouldn’t punish someone with Alzheimer’s Disease for damaging property. We shouldn’t punish Daniel for doing what his illness compels him to do.

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