When the State of Arkansas announced that it intended to execute eight death-row inmates in eleven days, the story became national news.  What was apparently lost in the story is that more than half of these death-row inmates were likely suffering from serious mental illnesses that gave rise to the criminal acts for which they were to be executed.  The question that we need to be asking is whether the public-safety (or moral/punitive) response to mental illness, which is evident in its extreme form in these Arkansas cases, is truly serving our interests.

Neuroscience, genetics and psychiatry have greatly expanded our understanding of mental illnesses in the past twenty years, and they give us many reasons to re-think our punitive approach to persons who are suffering from these illnesses.  Neuroscience tells us that some people have more free will than others, and that some people have more self-control than others; these findings are linked to structural elements of the brain.  Genetics tells us that certain mental illnesses may be coded in our DNA.  Psychiatry has developed new therapies that enable the vast majority of persons with mental illnesses to lead productive, satisfying, and relatively stable lives.

Despite these developments, too many among us cannot seem to let go of our punitive response to mental illness. As the branch of mathematics known as game theory shows, the desire to punish is overwhelming, even when punishment is irrational and economically burdensome.  When an antisocial act occurs, especially one that is also horrific, our attention shifts from science to our own (often flawed) intuitions about human nature.  We embrace the idea that mental illness is a failure of will or a defect of character — that a mentally ill person’s antisocial behavior manifests a failure of personal responsibility.

We punish those who, in our view, have shown a failure of personal responsibility.  (Too many of us attribute great value to personal responsibility whenever we find it lacking in others. It is overlooked, however, when we engage in inconsiderate or unethical behavior as commuters or airline passengers, and in either scenario, we blame our lapses on others or on the environment.  But I digress . . .)  In a punishment regime, we heap condemnation on the offender for the violation.  In effect, our prison systems are managed by Departments of Condemnation.


Much has been written, in the past several years, about the crisis of mass incarceration in the United States.  The National Academy of Sciences published a report entitled “The Growth of Incarceration in the United States” in 2014. (The report is available at for free download in PDF format.) Here is a table from the report:

Punishing Post Table

The report also indicates that an estimated fifty-six (56%) percent of state prison inmates and sixty-four (64%) percent of persons held in jails suffer from mental illness.  The prison system has become the safety net – or the “default” destination – for mentally ill persons who are not receiving adequate or effective treatment. We need to do better.

Of course, doing better inevitably raises fiscal concerns.  In light of recent data, we ought to be asking how the monetary and social costs of incarcerating persons with mental illness compare against the projected costs and potential benefits of providing adequate and effective treatment that would enable mentally-ill persons (a) to lead productive lives and (b) to avoid entanglements with the criminal justice system.

In “The Growth of Incarceration in the United States” at pages 314 – 315, the National Academy of Sciences frames the fiscal problem as follows:

The corrections system and the public safety system more broadly (that is, police, prosecutors, and the courts) command a larger share of government budgets than was the case 30 years ago. Budgetary allocations for corrections have outpaced budget increases for nearly all other key government services (often by wide margins), including education, transportation, and public assistance. Today, state spending on corrections is the third highest category of general fund expenditures in most states, ranked behind Medicaid and education.  Corrections budgets have skyrocketed at a time when spending for other key social services and government programs has slowed or contracted. As a result, the criminal justice system increasingly is the main provider of health care, substance abuse treatment, mental health services, job training, education, and other critical social and economic supports for the most disadvantaged groups in U.S. society.

Between 1972 and 2010, public expenditures for building and operating the country’s prisons and jails increased sharply, keeping pace with the increase in the number of people held in those facilities.  (footnotes and citations omitted)


It is time to acknowledge the extraordinary costs and inefficiencies inherent in our use of the justice system to address mental illness.  It is time to move mentally ill persons from prisons to treatment facilities and to shift expenditures accordingly.  It is time to elevate the recovery, restoration and re-integration of mentally ill persons over the societal impulse to punish, so that more of our people can lead productive lives, for their benefit and for the benefit of all of us.


Fixing Obamacare

A week ago, Paul Ryan, Speaker of the House, withdrew the American Health Care Act from consideration in the House of Representatives, without a vote.  The Speaker, among others, had counted heads, and he knew that the AHCA would be defeated.  For now, at least, Obamacare lives on.

Earlier this week, Mr. Ryan was interviewed by Norah O’Donnell of CBS News.  During that interview, he continued to bang the drum for repeal and replacement of Obamacare.  He expressed his desire to “get to yes” on some version of the American Health Care Act, implying that he would be interested in substantive, interest-based negotiations.  (“Getting to YES” is the title of a book on interest-based negotiation by the late Roger Fisher, director of the Harvard Negotiation Project.)

When asked whether he would consider working with Democrats to amend the elements of Obamacare that he and his fellow Republicans view as problematic, he dismissed the idea of an amended Obamacare as not “conservative enough” for many Republicans.  So much for being open to interest-based negotiation.

Mr. Ryan then reached for a standard Republican catchphrase (in discussions of health care, but not abortion), stating that Americans need a new health care law that allows for more freedom of choice.

The Problem

When Obamacare was implemented, many low-income Americans were able to get health insurance for the first time in ten or twenty years.  Some of them had received no preventive care for decades and were in very poor health.  Their care was, and continues to be, expensive.

Congress anticipated the high costs associated with providing care to this group.  To address these costs, various provisions in Obamacare (e.g., Section 1402) provided that the Secretary of Health and Human Services would reimburse a health insurer when payouts for treatment made coverage a losing business proposition for the insurer, due to the relatively low premiums paid for that coverage.

For several years, Republicans on Capitol Hill have attempted, repeatedly, to blow up Obamacare by interfering with this reimbursement scheme. For example:

  • In September of 2013, Senator Ted Cruz filibustered to shut down the federal government over a funding re-authorization, asserting that President Obama would not cooperate with Republican efforts to de-fund Obamacare.
  • In the 2013 – 2014 budget, the House would not authorize an appropriation for these reimbursements; in 2014, House Republicans sued the Obama Administration and obtained a court order that prohibited the Secretary of Health and Human Services from reimbursing insurers, since the reimbursement funds had not been specifically appropriated by Congress. The case is still pending.
  • In 2015, health insurers seeking reimbursement for extraordinary losses incurred in specific geographic areas during the first several years of the exchanges were thwarted by a provision that Senator Marco Rubio proposed for inclusion in an appropriations bill.

These maneuvers are obviously not about freedom of choice; they are about money.  In purely political terms, they are also about breaking Obamacare, so that lawmakers can label the current system as irretrievably broken and swirling in a “death spiral” – such a “disaster” that the only reasonable solution is repeal and replacement.  The vague assertions about freedom allow the players to pretend that they are defending what we value most, rather than quibbling about money.

Freedom is not the Solution

In the health care system, there is one group of Americans who would obviously benefit, at least in the short term, from more freedom of choice.  That group is the young and healthy people who do not like paying their premiums and deductibles for routine wellness exams.

If we allow this group the freedom to go without health insurance coverage, we all lose, for two reasons.  First, premiums rise for those with health insurance, as explained in a previous post.  Second, in twenty years, this group of voluntary free-riders will be the next group that, due to a lack of preventive care over the long term, will need expensive care for diabetes, heart disease, various cancers and so on.

Obamacare was enacted with three objectives in mind: (1) insure more Americans; (2) improve the efficiency of health care; and (3) reduce health care costs.  The law has been reasonably successful in meeting the first two objectives.  Sooner or later, Congress will need to tackle costs.

It is time for some substantive, interest-based negotiations concerning health care on Capitol Hill, with or without Mr. Ryan.