Position Statement 52: In Support of Maximum Diversion of Persons with Serious Mental Illness from the Criminal Justice System

Statement of Policy

Mental Health America (MHA) supports maximum diversion from the criminal justice system for all persons accused of crimes for whom mental health or substance use treatment is a reasonable alternative to confinement or other criminal sanctions. MHA urges the utilization of outreach programs and other preventative initiatives before interaction with the criminal system occurs. When such interaction does occur, MHA endorses the use of diversion programs at the earliest possible phase of the criminal process, preferably before booking or arraignment. Conversely, MHA supports minimizing the use or threat of use of criminal sanctions to compel mental health treatment. These principles apply with equal force to adults and juveniles.

MHA supports the long-term goal of integrating persons living with mental and substance use conditions into a culturally competent community-based mental health care system focused on consumer empowerment, quality of life, proper treatment and recovery. Over the past two decades, criminal justice diversion programs have emerged as a viable and humane alternative to the criminalization and inappropriate criminal detention of individuals with mental and substance use conditions. Diversion programs benefit the diverted persons, the criminal justice system and the community.

• Criminal behavior, including violent behavior, is overwhelmingly caused by complex factors other than mental health conditions.
• However, many persons with mental health conditions commit crimes because of our failure as a society (due to lack of funding and other resources) to provide them with appropriate and timely services. Thus, one of the most effective “diversion” strategies that any jurisdiction can employ is to ensure that persons with mental health conditions receive treatment before they interact with any part of the criminal justice system. To divert people to treatment, we must first fix our broken mental health care system.
• Additionally, it is crucial that programs designed to divert persons with mental health conditions from the criminal justice system do not divert resources from the already under-funded mental health system. Simply put, no one should have to commit a crime in order to receive mental health services.
• Another critical issue for individuals with a mental or substance use condition is that of coercion. MHA is wary of the expanded use of the criminal justice system as a substitute for voluntary community-based treatment.[3]
• Avoidance of the coercion inherent in criminal justice surveillance is at the core of the diversion movement, in all of its phases.
• MHA encourages local and state affiliates, consumers, stakeholders, and other advocates to support the development of diversion strategies that promote police officer training, community engagement, and early intervention in an effort to keep persons with mental and substance use conditions out of the criminal justice system.

Background

On any given day, over two million people can be found incarcerated in U.S. prisons or jails. [3]  Mental illness among today’s prisoners is pervasive, with 64% of jail inmates, 54% of state prisoners and 45% of federal prisoners reporting mental health concerns. [4]  37% of state and federal prisoners and 44% of jail inmates have been told by a mental health professional that they had a mental health disorder. [5] Further, more than half of the people in state prisons (53%) and two thirds in local jails (68%) have substance use disorders. These conditions often co-occur; among people with mental health problems in state prisons and local jails, 74% of person in state prisons and 76% or person in local jails also have substance use disorders. [6]

Racial and ethnic minorities have less access to mental health services and are more likely to receive poor quality care when treated. [7] Persons of color are disproportionately represented in both adult and juvenile justice systems. While there are few, if any, differences in the nature and scope of crimes committed by persons of color, their rates of arrest, prosecution, and incarceration, as well as the length of sentences, are substantially higher than the Caucasian population. [8]

Mental health problems among the population of persons in the nation’s jails and prisons are serious and growing. The Los Angeles County Jail, Cook County Jail in Chicago and New York City’s Riker’s Island “each hold more people with mental illness on any given day than any hospital in the United States.” [9] In 2015, Cook County Jail in Chicago was described as “America’s largest mental hospital” where an estimated one in three inmates has some form of mental illness. [10] In an era of deinstitutionalization, jails and prisons have become de facto mental health treatment facilities.

People with mental and substance use conditions in jails and prisons have complex and challenging needs.  Mental health services in prisons and jails are often inadequate. Persons with mental illnesses are frequently victims of crimes within prisons. The environment in prisons and jails worsens many mental health conditions. Left untreated, persons with serious mental health conditions who are incarcerated for minor crimes may commit additional crimes which may result in extended prison time. These problems can lead to a cycle of suffering, violence and wasted criminal justice resources. [11] 

The extraordinary human and financial costs to the criminal justice system argue strongly that effective diversion may produce better results at a lower cost. Community-based programs for people with mental illness and substance use conditions are an effective way to reduce incarceration and resulting costs and harms.

Call to Action

The increasing number of persons with mental health and substance use conditions stuck in the criminal justice system has enormous fiscal, public safety, health and human costs. Diverting individuals with mental and substance use conditions away from jails and prisons and toward more appropriate and culturally competent community-based mental health care has emerged as an important component of national, state and local strategies to provide more effective mental health care.  Such diversion also enhances public safety by making jail and prison space available for violent offenders.  Diversion programs provide judges and prosecutors with alternatives to incarceration. Diversion programs in communities across the country have been helpful in providing appropriate services to individuals with mental health issues.

Mental Health America recognizes that the development of diversion programs involves negotiation between the mental health system, law enforcement officers, public defenders, prosecutors, court personnel and others in the criminal justice system. Each community must reach consensus on the appropriate type of diversion program to be initiated, since the community is being asked to jeopardize its short-term safety for effective treatment.

Mental Health America supports diversion at the earliest possible point. This includes providing mental health services to at-risk individuals and communities through approachable and convenient avenues. By making these services available before individuals make contact with the criminal justice system, criminalization of individuals with mental health and substance use conditions can be reduced. While there are many terms for and types of this sort of intervention, we will refer to them generally as “Mental Health Programs and Services.”

Mental Health Programs and Services

There are a wide variety of outreach programs throughout the nation. These programs aim to identify and treat mental health conditions at the earliest possible point with many of the programs focusing on populations which may otherwise be unlikely to receive any such treatment.

Many mental health programs link mental health services with students attending pre-school through college, These programs focus on identifying children and young adults with mental health needs and providing effective and timely services. [12] Such efforts allow for outreach to individuals who, left untreated, may face serious mental health conditions which may lead to interaction with the criminal justice system.

Other mental health programs aim to create “one-stop shop” care centers which provide comprehensive treatment including but not limited to chemical dependency treatment, primary care screening, and mobile mental-health crisis response. [13] By cutting down on fragmentation of care, such programs provide mental health treatment that is more comprehensive and easier for individuals to navigate. [14] These mental health programs and services strive to both prevent and treat mental health conditions.  These goals are in accordance with MHA’s support for diversion at the earliest possible opportunity.

Homelessness and housing insecurity, unemployment and under-employment and other aspects of poverty both exacerbate mental health conditions and increase the likelihood of involvement in the criminal justice system. [15] Mental health advocates must work with others to support coordinated efforts to address these risk factors.

Mental Health America recognizes that treatment and prevention are important and necessary but that some individuals will still face the criminal justice system. The Sequential Intercept Model has gained wide acceptance in the criminal justice and behavioral health field as a mechanism for decriminalizing persons with serious mental health conditions. The Sequential Intercept Model envisions a series of points of interception at which intervention can be made to prevent individuals from entering or penetrating deeper into the criminal justice system. Ideally, most people will be intercepted at early points, with decreasing numbers at subsequent points. [16] Some of these “points” can be identified via two major kinds of jail diversion programs: pre-arrest and post-arrest.

Pre-Arrest (“Pre-Booking”) Diversion Strategies

Pre-arrest strategies typically focus on the law enforcement officers who are often the first point of contact with persons in crisis with mental or substance use conditions. Since their initial interactions with persons with mental or substance use conditions are so critical to determining the situation’s outcome (i.e., whether or not an individual is to be jailed), pre-arrest jail diversion strategies rely heavily on helping police become knowledgeable about  the nature of mental and substance use conditions, including providing officers with tools to de-escalate crisis situations and information regarding options for treatment as an alternative to incarceration that are available in the community.

Examples of pre-arrest strategies include: police training to recognize the signs of mental illness and substance use; deployment of a mobile crisis response team that provides assistance and support to police and the individual; and transportation to treatment rather than jail.  One of the nationally-recognized and widely-used models for police training and intervention is called the Memphis Crisis Intervention Team or CIT [17]. Cultural competency training is a critical component; such training seeks to avoid the unequal treatment that comes from stereotyping racial and cultural groups. A comparison of three police-based diversion models found the Memphis CIT program to have high utilization by patrol officers, rapid response time, frequent referrals to treatment, and the lowest arrest rate. [18]

Many persons in crisis have no need of police involvement.  Thus, communities should create systems which train “911" operators to identify those persons in crisis whose needs do not require law enforcement intervention.  Communities should employ trained mental health professionals and peers to respond to such individuals.  This alternative will help reduce the stigma often associated with the presence of the police and with transportation to mental health services by uniformed law enforcement personnel in police vehicles.

Post-Arrest (“Post-Booking”) Diversion Strategies

Post-booking diversion programs are the more common type of jail diversion program in the United States. After formal charges have been filed, post-booking programs screen individuals to determine the presence of mental or substance use conditions.  These programs involve prosecutors, defense lawyers attorneys, courts and mental health providers in a deliberative process aimed at disposing of the case without additional jail time; and linking the individual with mental health treatment. General jail diversion programs not focused primarily on mental health care and treatment can be helpful guides in developing and implementing mental health-focused strategies. [19] Such services may include transitional housing, court liaisons and prescription medication.

Mental health courts are an example of a post-booking jail diversion program. Mental health courts have been effective at diverting persons charged with non-violent crimes away from jail or prison to community mental health services. [20] 

Some jurisdictions have also found it to be effective to divert all persons charged with misdemeanors for whom there is bona fide issue concerning the defendant’s fitness to stand trial.  Determining whether a defendant is fit to stand trial and restoring her or him to fitness is an expensive process that often results in confinement for longer than the defendant would have been confined if convicted.  Moreover the defendant may not be referred to appropriate services upon release.  Thus, referral to community services in lieu of the fitness process may be the more efficient and result in less loss of liberty for the defendant and reduced recidivism. [21]

Diversion Works

Studies show that diversion of persons with mental and substance use conditions accused of misdemeanor crimes into appropriate, community-based mental health treatment programs allows for better long-term results for offenders. [22]  Such programs reduce arrests, jail days, hospital stays and total criminal justice expenditures. [23] Beyond the benefits to individuals with mental health conditions, diversion programs also benefit the criminal justice system, allowing it to focus on more serious offenders. Such programs are cost-effective; they save courts time, keep dockets from becoming too large, and reduce prison overcrowding. Additional costs are saved when those with mental illnesses are removed from prisons and provided with appropriate treatment instead. [24]

Dismissal of Charges

Mental Health America believes that successfully completed pre-booking and/or post-booking diversion programs should provide for dismissal of criminal charges. In the case of post-booking diversion, jeopardy of re-involvement in the criminal justice system should be limited in accordance with the criminal justice standards in that jurisdiction. As a guideline, conditions of deferred prosecution, deferred sentence or probation ordinarily should not exceed one year. By avoiding the stigma attached to a criminal sentence, individuals are better able to succeed in society: employment opportunities are more prevalent, completed applications for public benefits are increased in number, and homelessness levels are decreased. [25]

Implementing Effective Diversion Strategies

Timely and accurate mental health screening and evaluation is the single most critical element in a successful diversion program. More treatment resources are desperately needed. Communities must develop services that meet the needs of mental health and substance use consumers. In addition to significant increases in public investment, services must be integrated across public and private agencies. Individual treatment plans should be focused on consumer recovery and choice and should include: mental and physical healthcare, case management, appropriate housing, supportive education, integrated substance abuse treatment, and psychosocial services, in the least restrictive environment possible.

Coalitions

Diversion programs also require the development of community coalitions, including but not limited to partnerships between criminal justice, mental health and substance abuse treatment agencies.  Judicial leadership has been particularly instrumental in creating and expanding criminal justice diversion programs across the country, helping to increase public support and funding for alternatives to incarceration.  Criminal justice and corrections agencies should be encouraged to develop new sources of funding to expand diversion programs. Coalitions should also be reflective of the diverse make-up of the community. Joint mobile outreach services such as crisis intervention teams are a key element in successful partnering between mental health, substance abuse treatment and law enforcement agencies, with effective diversion to an appropriate treatment plan the critical measure of success. Consumers of mental health and substance abuse services and family members affected by mental illness or substance use need to be included in such coalitions to assure that the real barriers to effective mental health and substance abuse treatment in that community are addressed.

These community coalitions need to reach out to all criminal justice system personnel to ensure that comprehensive culturally competent training is provided at all levels to deal with issues of mental illness and substance use, wherever and whenever they occur. Mental health associations should reach out to or create such coalitions whenever possible. Effective diversion from the earliest point of contact with the criminal justice system of a person with a serious mental illness or serious emotional disorder should be a centerpiece of all mental health planning, with the aim of promoting recovery from mental illness and as an end to all unnecessary use of criminal sanctions.

Effective Period

The Mental Health America (MHA) Board of Directors approved this policy on September 8, 2018. It is reviewed as required by the Mental Health America (MHA) Public Policy Committee.

Expiration: December 31, 2023