The indigenous inhabitants of the Australian continent arrived approximately 65,000 years ago. Issues of mental illness and criminal responsibility prior to European arrival are not well known by current professionals. The continent is now home to the Commonwealth of Australia, a parliamentary democracy, established in 1901 following land claims by Britain that began in 1788. The Commonwealth is a federation of six states and two territories that were originally colonies of Britain. The first British colony in Sydney, New South Wales was a penal settlement, which perhaps set the tone for development of forensic mental health services across the country as developing as an offshoot from prison services. Forensic mental health services have been reviewed before, and more recent developments are covered.

Secure settings are, in fact, queer spaces. This is not simply because LGBTQ+ people are found, disproportionately at that, in these settings. (“LGBTQ+” herein refers to people who are lesbian, gay, bisexual, transgender, queer, questioning, Two Spirit, and asexual.) Rather, these spaces are implicitly and explicitly domains for non-normative cultures, behaviors, as well as identities. Often that means various antisocial behaviors, those who have committed crimes, or those who live with severe mental illnesses; or a combination therein. In this review, while those may be operative, the case of those who hold minoritized sexualities and genders will be centralized and examined. It can be that LGBTQ+ people are in secure settings because they have committed crimes and/or live with severe and persistent mental illnesses. However, there are also structural and social forces that contribute to their disproportionate presence in these settings specifically due to existing as a person with a minoritized sexuality or gender, regardless of criminality or mental health.

Recent information indicates that the number of forensic patients in state hospitals has been increasing, largely driven by an increase in patients referred as incompetent to stand trial (IST). The surge in referrals for the evaluation and restoration of patients found IST is taxing state hospital systems, as well as the jails that must care for these patients when state hospitals are unable to accommodate the increased referrals. Many state mental health authorities are facing litigation pressure to admit IST patients more quickly, raising concerns about overcrowding and reinstitutionalization. Little is known about these national trends of increasing IST populations, and even less is known about what is driving them. This survey was intended to broaden the understanding of IST population trends on a national level.

California has the largest population of mentally ill defendants nationwide, and on June 27, 2018, the governor signed into law Assembly Bill 1810 that offered every county the opportunity to establish diversion program procedures (Section 15), and opened program access to all mental health diagnoses excluding antisocial personality disorder, borderline personality disorder, and pedophilia. This measure thus reflects the increasing nationwide interest in channeling seriously mentally ill individuals away from traditional legal processes into pre-trial diversion programs. On an individual level the goal is to provide treatment for mental health conditions, decrease the legal burden and consequences of arrest, and facilitate integration with community support structures.

Beginning in the 1960s, a steady decline in the number of inpatient psychiatric beds has occurred across the United States, primarily as a result of stricter civil commitment criteria and a societal movement toward deinstitutionalization. Concomitant with this decrease in psychiatric beds has been a steady increase in the number of mentally ill individuals who are arrested and processed through the criminal justice system as defendants. One consequence of this has been an explosion in the number of defendants who are referred for evaluations of their present mental state – adjudicative competence – and who are subsequently found incompetent and ordered to complete a period of competency restoration. This explosion has resulted in forensic mental health systems that are overwhelmed by the demand for services and that are unable to meet the needs of these defendants in a timely manner. Defendants with mental health concerns are spending an inordinate amount of time incarcerated while waiting for their competency-related services, resulting in what we refer to as criminalization of individuals with mental illness. In many states, lawsuits have been brought by defendants who have had their liberties restricted as a result of lengthy confinements in jail awaiting forensic services. The stress on state-wide forensic systems has become so widespread that we have nearly reached the level of a national crisis. Many states and national organizations are currently attempting to study these issues and develop creative strategies for relieving this near-national overburdening of forensic mental health systems.

The United States prison population, including both federal and state prisons and county and city jails, was 2,162,400 inmates as of December 31, 2016.1 The percentage of jail and prison inmates assumed to be seriously mentally ill (as defined in various studies as schizophrenia, schizophrenia spectrum disorder, schizoaffective disorder, bipolar disorder, brief psychotic disorder, delusional disorder, and psychotic disorder, not otherwise specified) has generally been estimated at about 16%.2 Using these numbers (2,162,400 × 16%) yields an estimate of 345,984 incarcerated persons with serious mental illness (SMI) in jails, and state and federal prisons. The actual number may be somewhat higher or lower, depending on the accuracy of the percentage.

Amongst those with mental illness and a history of contact with the criminal justice system (CJS), “forensic patients,” constitute a small but significant subgroup. They typically have severe mental illnesses and have been charged with serious violent offences. As a group, they characteristically have complex mental health and other needs, and concern about their risk of reoffending is a key consideration for those tasked with oversight of their treatment and detention. As a result, forensic patients often spend long periods in secure mental health facilities and are often subject to high levels of supervision once judged to be safe to return to the community.

Efforts are underway across the United States to reduce the population of individuals in our jails and prisons, such as through mental health diversion programs. Mental health diversion programs are now among the most common interventions for individuals with mental health problems who come into contact with the criminal justice system. Briefly, these programs divert individuals with mental health problems from traditional case processing into community-based behavioral health treatment and alternative case processing.

The relationship between criminogenic risk and mental illness in justice-involved persons with mental illness (PMI) is complex and poorly understood. As previously noted, the general public is misinformed on the nature of this relationship, erroneously believing that mental illness causes violence and crime. This perception is compounded by news reports immediately speculating about mental illness in response to sensationalized criminal acts such as mass shootings, as well as in popular and social media. Of greater concern, however, is when clinicians, administrators, and policymakers are also misinformed. Criminal risk includes static (e.g. age, gender) and dynamic (e.g. antisocial attitudes, substance misuse) factors that place an individual at greater risk of involvement in crime.

Noncustodial sentences are the commonest type of court sanction in many countries. Offender management and rehabilitation programmes aim to prevent recidivism and the further criminalization of individuals receiving community sentences. Although the ultimate goal of these programmes is to ensure public safety and to ease the economic burden on justice systems, they assume different rates of repeat criminal behaviours and employ different approaches. The criminogenic needs of individuals (the characteristics of an individual that directly relate to the likelihood of recidivism) are typically broken down into static (nonmodifiable) and dynamic (modifiable) risk factors. Static risk factors are unchanging characteristics of an individual and include gender, age, and prior criminal history.

Institutional violence and associated risk factors within state hospitals have largely remained unexamined in the literature in spite of high violence prevalence rates: almost one-third (31.4%) of state hospital inpatients will engage in a violent assault during their hospitalization course. This dearth of research is particularly true for state hospital inpatients adjudicated not guilty by reason of insanity (NGRI). An NGRI status indicates that an individual has been evaluated and deemed guilty of a criminal act but, due to mental disease or defect, was incapable of either knowing or understanding the nature of their act or was incapable of distinguishing between right and wrong at the time of their crime.

For the first time in nearly four decades, the incarcerated population in the United States has begun to level off and decline, suggesting that mass incarceration has reached a tipping point. Additionally, there is growing empirical evidence that incarceration does not meet its stated goals of increasing public safety and rehabilitating individuals; in most cases, incarceration does just the opposite. Incarceration is also not applied evenly, as people of color and people with behavioral health disorders are grossly over-represented in jails and prisons.

There is a wide-ranging belief that people with severe mental illnesses (SMI) are violent or dangerous. Most patients with schizophrenia are not chronically aggressive or violent; among patients with schizophrenia, there is a small increase in violence and violent offending on average compared with general population standards in the USA and Europe. However, violence on the part of people with SMI has several features that differentiate it from violence in the general population. First, it is less likely to be motivated by financial reasons. Second, it can be unpredictable and directed toward strangers. Not being financially motivated, it is more challenging for the general public to avoid.

Known predictors of violence include patients with co-morbid substance use disorders (SUDs) and nonadherence with prescribed treatments, those with co-morbid personality disorders, and those with frequent relapses/arrests/civil commitments.

For a very long time, mental illness was viewed not as a disease, but as a manifestation of evil spirits. Confusion and apprehension have been the legacy view of mental illness, even as far back as ancient Greece. In 380 B.C., Socrates wrote in The Republic that “The offspring of the inferior…will be put away in some mysterious, unknown place, as they should be.” During the middle ages, an obsession with evil in the form of witches became prominent. The official practice guidelines for detecting evil and witches, the Malleus Maleficarum (1486), assisted inquisitors in finding evil lurking amidst women, the socially disenfranchised and those suffering from mental illness. In 1494, theologian Sebastian Brant wrote The Ship of Fools, which detailed the phenomenon of sending away persons with mental illness aboard cargo ships through the canals of Europe and overseas.

According to the US Supreme Court, all individuals charged with a crime must be competent to stand trial (CST). As defined in Dusky v. US, competency requires that defendants have the ability to consult with their attorney with a reasonable degree of rationality and possess a rational as well as factual understanding of the legal proceedings. The precise number of CST evaluations conducted each year is unknown. The oft-reported figure of 60,000 provided by Bonnie and Grisso is an estimate based on the number of felony indictments coupled with the estimated percentage of referrals for competency evaluations made by the courts in the 1990s. Later work has suggested a much higher number.

The criminalization of persons suffering from a mental illness continues to be a urgent public health concern, a resource-draining criminal justice problem, and an overarching societal issue, not only in the state of California, but also across the United States and the world. With the advent of deinstitutionalization, which was codified by the Lanterman-Petris-Short Act (Cal. Welf and Inst. Code, sec. 5000 et seq.) in 1967 in the State of California and subsequent legislations across the nation, states could no longer simply lock a person with mental illness away in a mental health facility or sanitarium, which violated their constitutional right to due process. The intent of the Lanterman– Petris–Short Act was to move away from the numerous state-run institutions and create a community-based treatment model, providing mental health services in least restrictive environments.

Every day, in every community in the United States, law enforcement agencies, courts, and correctional institutions are witness to a parade of misery brought on by untreated or under-treated mental illnesses. According to the most recent prevalence estimates, roughly 16.9% of jail detainees (14.5% of men and 31.0% of women) experience SMI. Considering that in 2018 law enforcement nationwide made an estimated 10.3 million arrests, this suggests that more than 1.7 million involved people with SMIs. It is estimated that three-quarters of these individuals also experience co-occurring substance use disorders, which increases the likelihood of becoming involved in the justice system. On any given day, approximately 380,000 people with mental illnesses are incarcerated in jails and prisons across the United States.