Overincarceration of People with Mental Illness:
Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization
Editor’s Note: The following is Part 3 in a series, “Overincarceration of People with Mental Illness,” a report released in June 2015. The full report is available at http://rightoncrime.com/2015/06/overincarceration-of-people-with-mental-illness/. Parts 1 and 2 ran in our March and April issues, respectively. This installment concludes the series.
By Kate Murphy and Christi Barr
Center for Effective Justice
Texas Public Policy Foundation
Room for Improvement: Analysis and Recommendations
The over-arching policy concern here is that the criminal justice system is not designed to be a mental health provider, but it is being forced to be one. The constitution properly puts limits on when government can take away a person’s liberty. When looking at limitations on liberty in the criminal justice and mental health systems, law enforcement can only detain a person if there is probable cause that person has committed a crime or if the officer has reason to believe that person poses a substantial risk of harm to self or others. Outside of these two scenarios, the government lacks authority to force an unwilling people to change their conduct.
Law enforcement is traditionally trained to respond to a public safety threat and to end the threat by incarcerating the person posing that threat. After a person is arrested and incarcerated, he or she cannot be released without judicial approval. And prosecutors cannot require offenders to act in a certain way unless that requirement is connected to adjudication of a crime. Finally, conditions of release that only require that a person participate in mental health services, may be inadequate especially when considering the problem that demand for such services exceeds supply. These structured rules and procedures generally do not work well with a person who cannot follow rules because of a mental illness.
The most significant barrier to resolving the problems associated with coordinating criminal justice and mental health resources is that the state controls and funds most public mental health services, but local governments are where the individual decisions are made about how to address offenders with mental illness. The problem is not simply that there are too many persons with mental illness in the criminal justice system. The larger, systemic problem is the lack of coordination between the local government that provides criminal justice and law enforcement services and the state government that provides mental health services. One result of the lack of coordination is that local governments are forced to create new mental health diversion programs.
Local governments are generally in a better position than the state to provide mental health services aimed at prevention. Efficient, effective provision of mental health services will reduce demand on the criminal justice system from people with mental illness. Ultimately, Texas should begin to transition to a new system that delegates the provision of mental health services to local governments that are better able to address their unique needs in both areas.
But until our system is improved, jails will continue to be required to pick up the slack where community-based treatment is lacking. Much of the analysis and many of the recommendations below are designed to deal with this as we work to fully address the more substantial problem.
Offenders with mental illness are often arrested for low-level offenses like trespass, loitering, disorderly conduct, or other quality of life or victimless crimes. Although disruptive, these types of offenses rarely pose a threat to public safety. Creating an alternative to jail for these crimes may create a more just result. The Legislature could make some of these offenses cite-and-summons offenses that come with a treatment referral. At the court appearance, offenders could, with the victim’s consent, have this type of case adjudicated through victim-offender mediation rather than incarceration or a fine. This would allow individuals to still be held accountable for their actions while reducing unnecessary incarceration.
The most common way police come into contact with a person with mental illness is by responding to a request for service from a call to the department. These calls are handled by 911 dispatchers. The dispatcher must gather information about the event that precipitated the call. Where resources are available, dispatchers should receive training on how to determine whether mental illness is a factor in a particular call and use that information to inform the appropriate responder.
These responders might be Crisis Intervention Teams (CIT) or Mobile Crisis Units (MCU). Police might encounter people with mental illness who are victims of crime, a witness to crime, subjects of a nuisance call, possible offenders, or a danger to themselves or others. Officers must be able to recognize the potential role of mental illness in an incident and know how to respond accordingly to keep themselves, the person with mental illness, and any nearby bystanders safe during their interaction. Communities can decide the best ways to accomplish this. Crisis Intervention Teams are local law enforcement officers who receive specialized training on how to respond to calls where mental illness is a factor.122 Officers with CIT training learn how to de-escalate crises and collaborate with local mental health providers who offer alternatives to incarceration.123 Some CIT officers even pre-emptively visit cyclical offenders with mental illness to encourage continued stability.124
MCUs are comprised of civilians who are licensed mental health professionals who can respond to calls about low-level offenses when it would not jeopardize their safety.125 They usually work with law enforcement as secondary responders. These teams can be especially effective in rural communities with a low prevalence of mental health calls that have workforce shortages and limited providers because they can meet the person in crisis where they are and possibly treat that person on-scene.
This prevents the need for transportation or creating a crisis center in an area where it cannot be sustained. This model would be most effective in remote areas of the state where several small counties can use one MCU. Another option that is more viable in remote, rural communities is telemedicine. Telemedicine is new technology that allows patients to seek services from providers who are too far away to easily access.
When CITs or MCUs assess a situation, they have to decide the most appropriate disposition. A responder may choose to disengage with suspects who are not dangerous and have not committed a serious crime. If a responder chooses to disengage, the responder can still make referrals to appropriate mental health services. But if a responder decides a person needs more immediate assistance, the responder’s next steps will often depend on what mental health resources are available in or near the community. To assist responders in navigating the ever-changing mental health care landscape, some communities establish drop-off or receiving centers who can quickly process, screen, and assess suspects with mental illness. These centers are more effective in urban areas with large populations that can justify the investment and sustain the necessary workforce.
If interaction with responders results in arrest, arrestees may be released on bail or bond within 48 hours when they have their first appearance before a judge or magistrate. Article 17.032 of the Texas Code of Criminal Procedures outlines the process for magistrates to determine whether an individual with mental illness must be released on a personal recognizance bond. When appropriate community-based services are available, and treatment is recommended by a mental health expert, Texas requires nonviolent offenders with a mental illness to be released on a personal recognizance bond with treatment required as a condition of release – unless good cause is shown otherwise. Under other circumstances, the magistrate has the discretion about whether to allow release on personal recognizance.126 Although several counties in Texas are working hard to address the issues plaguing the criminal justice system that relate to mental illness, Article 16.22 and Article 17.032 are not operating as harmoniously as they could. The Texas Commission on Jail Standards (TCJS) should review jails, sheriffs, and magistrates to make sure they are complying with the requirements set out in Article 16.22 and Article 17.032. Local magistrates should ask whether a mental health screening was conducted at intake, and if the mental health screening required a full assessment. The magistrate should then seek counsel from the Local Mental Health Authority about whether the community has appropriate treatment services available.
Correction officers lack mental health training and expertise, which would help them care for inmates with mental illness. The TCJS conducted a mental health study in 2001 to analyze the process for determining the mental health status of inmates in county jail and screening methods that county jails use to determine mental health status.127 This study identified six focus areas: (1) improvements to the mental health screening process, (2) collaboration and coordination between the criminal justice and mental health system, (3) access to medical and psychiatric information, (4) adherence to statutory mandates, (5) linkages to psychiatric treatment, and (6) best practices for timely identification and continuity of care.128 During the last 10 years, the Texas Legislature has passed laws and the TCJS has enacted rules to address these areas, but much improvement is still needed. Many of the problems related to mental illness in the criminal justice system relate to who has or should have responsibility for people with mental illness who have come into the state’s custody.
Following are recommendations that address each of these areas of concern. The state and local governments should coordinate better to build mental health treatment capacity where necessary to prevent public safety concerns arising from mental illness.
The state could reallocate corrections funding or funding for state mental health hospitals to provide funding for pretrial diversion programs designed by local communities. In a pretrial diversion program, there are certain established criteria or risk assessments that determine whether or not a defendant is eligible to participate.129 These criteria can include having a prior criminal history, a history of substance abuse or mental illness, victim approval, and others.130 The goal of this is to be able to connect defendants to these programs as fast as possible in order to maximize positive results.131 Once somebody is determined to be eligible, they will receive supervision and services that can vary according to the individual’s needs. Most commonly, programs will include urinalysis, restitutions, community service and counseling.132 The programs will also include substance use and mental health services when needed to help reduce risk of future re-arrest.133 If an individual successfully completes all program requirements, usually within a certain time frame, then the original criminal charges are dismissed.134
In cases of noncompliance, many programs institute sanctions that will modify the conditions of the program rather than kicking out the participant. These can include increasing service hours, drug testing, counseling services, imposing short-term jail placements, or giving written or verbal warnings.135 Although some programs have shown decreased recidivism, some programs have failed to gather data regarding recidivism.136 However, pretrial diversion programs appear to lead to positive outcomes for participants, including less time incarcerated, avoidance of criminal convictions, and improved substance use and mental health outcomes.137 Counties that have implemented diversion program have decreased criminal justice costs as these programs keep people from being incarcerated, reducing overcrowding in jails and prisons.138 The programs are also time-effective for courts as they improve processing because diverting offenders prevents court dockets from getting too large.139
The Department of State Health Services (DSHS) should also have a forensic director in place to ensure proper allocation and maximum utility of community resources. A person in this position would be able to coordinate existing state and local resources to expeditiously move people out of an institutional setting as appropriate. Another way to ensure best use of community resources is to educate the judiciary and attorneys on alternatives to incarceration.140 Judges and attorneys may be unaware or skeptical of community services that can appropriately treat some forensic cases, leading them to rely solely on jails and state hospitals. Coupled with a comprehensive record of available local alternatives, this education could encourage better use of community resources. Additionally, the criminal justice system should coordinate follow-up services for offenders with mental illness who are known to be repeat offenders. Linking these people to follow-up services should reduce the risk of recidivism and help break the cycle they are caught in. Relevant mental health information should be gathered early enough to inform judicial and prosecutorial decisions regarding release or diversion.
Intake at the jail is an important piece of this puzzle. This part of the process is the easiest point to gather necessary information. Defendants who are not released at their initial court appearance are booked into jail until bail is posted or the case is adjudicated. For people with mental illness, incarceration increases the risk of decompensation.
Decompensation is the failure to effectively cope with psychological challenges in response to stress, resulting in behavioral problems. To avoid decompensation and ensure the best possible administration of justice, local jail inmates with mental illness should be identified, receive mental health treatment, and have assistance planning for re-entry all starting at intake. Corrections should identify and divert people with mental illness before formal charges are brought. Ideally, this identification will occur before magistration. Screening, assessment and a confidential records check on state mental health databases should be conducted at intake by a mental health professional when possible. This review should inform law enforcement and judicial decision-making about whether an offender could be more appropriately placed in an alternative treatment setting. Early screening and assessment can help determine the most cost-effective and appropriate intervention for those who come in contact with the criminal justice system. Pre-emptive diversion from jail to treatment can increase the likelihood of positive changes in behavior, which will likely reduce recidivism. Further, mental health diversion will alleviate the burden on court dockets, jail capacity, and state hospitals by eliminating wasteful use of those resources on people whose problems would be better addressed elsewhere.
As part of screening, it is important to facilitate information sharing, such as mental health history, between the mental health and criminal justice system.141 In addition to access to mental health history, screening should use a standardized screening instrument and be conducted under the direction of a qualified mental health professional.142 To expand capability for in-house assessments, policymakers have several options, including expanding the scope of practice to allow psychiatry students or nurse practitioners who specialize in psychiatry to conduct assessments.143 Policymakers could also allow jails to employ telepsychiatry to access psychiatrists from a remote location. Following assessment, jails should work with mental health service providers to determine whether certain people with mental illness would be eligible for diversion from the criminal justice system.144 For those with mental illness who remain in jail, the jail should be capable of providing immediate crisis services and short-term treatment.145 Jail staff should be trained to recognize crisis situations.146 To help prevent crises, detainees should be able to continue using the medication prescribed to them before entering jail.147
Intake should ask about prescription information and get access to medical records that indicate the inmates’ medication regimens so they can try to accommodate this important need. Continuous care is an important piece of keeping people from reoffending. Along with continuing medication, the state should allow counties to suspend rather than terminate Medicaid benefits for inmates.148 Benefits may be terminated regardless of whether the person is actually convicted of a crime and sentenced to jail.
People may be released from jail with very little notice, not leaving time to reinstate benefits. Reinstatement of Medicaid benefits is a time-consuming and expensive process; reinstating Medicaid can take 14 to 45 days depending on the state.149 The concern here is during this lapse, untreated individuals will be unable to maintain stability and will be treated in emergency rooms, end up on the streets, or wind up back in jail; each of these places a huge burden on local governments.
Recommendations for the State Legislature
- Decriminalize behaviors commonly associated with symptoms of mental illness like criminal trespass and disorderly conduct by making them non-jailable requiring violators to seek treatment or prove some other appropriate remuneration such as victim-offender mediation.
- Reallocate corrections funding to assist with initial funding for community-designed mental health diversion programs.
- Instead of funding more state mental health hospital beds, provide funding to communities in the form of a block grant giving them the flexibility to build capacity to serve those who perpetually cycle through state institutions like jails and mental health hospitals more effectively according to each community’s unique needs.
- Require DSHS to work with the Court of Criminal Appeals to develop training to inform the judiciary about alternatives to inpatient mental health treatment.
- Create a forensic director position at DSHS to ensure proper allocation of existing community resources and coordination among the mental health and criminal justice systems. The forensic director can also help monitor local compliance with state law.
Recommendations for Local Governments and Communities
- Encourage alternatives to jail when appropriate.
- Encourage collaboration between community behavioral health service providers and local jails.
- Be proactive about “frequent flyers” by implementing case management for repeat offenders with mental illness.
- Reallocate funding to expand community-based alternatives to incarceration that are more effective including the following possibilities:
- 911 Dispatcher Training
- Crisis Intervention Teams
- Mobile Crisis Units
- Pre-booking diversion programs
- Post-booking diversion programs
- Reallocate funding to improve processing and treatment as follows:
- Use new technology like telepsychiatry to facilitate faster and more accurate screenings and assessments in corrections facilities.
- Implement more efficient data tracking systems to improve coordination and transparency regarding people with mental illness in local jails.
- Require mental health screening and assessment prior to magistration to inform judicial decisions about release on low bail or personal bond and prosecutorial decisions about eligibility for pretrial diversion programs.
Texas needs to change its public mental health system. The state has been struggling to provide efficient, effective mental health services. The state should delegate its responsibility to provide mental health services to local governments that are already making decisions about how to address people with mental illness in the criminal justice system. This would facilitate better coordination between law enforcement and mental health providers because they would be working through the same level of government.
Although many local governments across Texas have found innovative solutions to problems the state has created for them, local governments have essentially become Sisyphus, trying to push the rock up the hill just to watch it roll down again. If local governments could design tailored community behavioral health services, the programs they have already instituted to deal with the problems the state has thrust upon them might be even more effective. Band-Aid “fixes” will not solve the problems plaguing these two expansive state systems.
The mental health system in Texas is in need of true redesign if the criminal justice system is going to see real improvement in this area. Over the last decade, Texas has been getting “Right on Crime;” it’s time for Texas to take that a step further and start getting right on mental health care, too.
The full footnotes are available at http://rightoncrime.com/2015/06/overincarceration-of-people-with-mental-illness/.