Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness


This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this apparently expensive and inefficient regime. Thus, to change this regime, the specific social meanings that maintain it — that is, those social meanings that relate mental illness to culpable moral failing and, hence, punishment — must be put into contest. Alternatively, different ways of satisfying the same set of preferences may be offered. The (often instrumental) incarceration of non-violent and non-offending adults and children with mental illnesses, which produces no benefit in public safety or deterrence, demonstrates the pivotal role of social meaning in the economic analysis of law, and indicates that economic analyses that fail to account for intangible social value will generate uncompelling, and ultimately unsuccessful, policy prescriptions.


Criminal Law | Criminal Procedure | Law and Economics | Law and Society

Date of this Version

August 2005