Sentencing Mentally Disordered Offenders

AuthorRichard D Schneider
Sentencing Mentally Disordered
Richard D Schneider
Poor mental health or diagnosed psychological disorders play an
important role in the origin of criminal behaviour. Evidence for this
assertion comes from studies of prisoners or oenders more generally.
Although it is hard to establish the true prevalence of the problem, the
United States Bureau of Justice Statistics estimated that nearly half of
all US prisoners suered from mental health problems. e percent-
age of individuals self-reporting mental health issues entering federal
institutions in Canada has doubled since . In Canada, roughly
two-thirds of individuals entering federal correctional institutions are
Doris J James & Lauren E Glaze, Mental Health Problems of Prison and Jail Inmates
(Washington, DC: US Department of Justice, ), online: Oce of Justice Programs For a review of the US statistics, see
Christine M Sarteschi, Mentally Ill Oenders Involved with the U.S. Criminal Justice
System: A Synthesis () Sage Open , online:
Howard Sapers, Annual Report of the Oce of the Correctional Investigator,
– (Ottawa: OCI, ), online:
274 |   
identied for mental health follow-up. Depending upon how mental
disorder is dened, prevalence among inmates ranges from  to 
percent. Rates of mental ill-health are almost as high in the popula-
tion of oenders serving sentences in the community. Mental disorders
can trigger oending and may be exacerbated by certain sentencing
options, particularly imprisonment.
“Mentally disordered accused” are sometimes referred to as if they com-
prise a homogeneous population, but that is not the case. Many dif-
ferent types of “mental disorder” have been recognized by Canadian
courts in recent years, likely reecting increased social acceptance of
mental illness. While “mental disorder” is dened in the Criminal Code
as a “disease of the mind, this term has, in turn, been broadly dened
by the Supreme Court of Canada as “embrac[ing] any illness, disor-
der or abnormal condition which impairs the human mind and its
functioning.” It thus includes a spectrum of mental disorders ranging
from psychoses, to intellectual decit, to brain injury, to fetal alco-
hol spectrum disorders. Subsequent to various reports of the Mental
Health Commission of Canada, there has been increasing recogni-
tion that the incidence of mental health problems is much higher in
individuals who come into contact with the criminal justice system.
A signicant proportion of these people enter the system because of
their mental health issues (or their frequent correlates of homelessness
and substance abuse). For many other accused, depression and other
psychological disorders contribute to their oending or play a role in
reoending following conviction.
Howard Sapers, Annual Report of the Oce of the Correctional Investigator,
– (Ottawa: OCI, ), online:
RSC , c C-, s  [Criminal Code].
Cooper v R, []  SCR  at .
See, for example, Kent Roach & Andrea Bailey, “The Relevance of Fetal Alcohol
Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing” ()
 University of British Columbia Review .

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