By Amber Widgery
For people in the midst of a mental health crisis, the criminal justice system and jail are all too often the first or only available response—but not necessarily the best. Legislators play a critical role in changing the way we think about and use jails in America. State law can dictate both the policy and the resources necessary to effect change, and legislators are community leaders who can convene necessary stakeholders to advance new approaches for handling individuals with mental illness on both the state and local levels.
Statewide support for system-level changes can alter how we respond to mental illness in our communities, reduce the number of people who come into contact with the criminal justice system, and maintain public safety. For those with mental illness who are appropriate for entry into the justice system, access to appropriate treatment can be provided or increased.
This report examines ways in which states can support diverting appropriate individuals with mental illness away from the criminal justice system entirely. Most experts and policymakers agree that the justice system is generally not the best intervention for those accused of low-level offenses, and that community-based services may be better suited to breaking the cycle of justice system involvement. This report also identifies correctional interventions for those for whom community-based services are not appropriate. These interventions can hold offenders accountable while also connecting them to treatment and services that are designed to reduce recidivism.
A movement in the 1950s to “deinstitutionalize” mental illness drastically decreased the availability of state hospital beds for people with mental illness.1 The intent was to treat individuals instead in a community-based setting, a policy change that was appealing for both fiscal and civil rights purposes.2 Unfortunately, community-based treatment capacity was not developed as planned, and now local jails largely serve as de facto mental health institutions.
Today, a person who is experiencing a mental health crisis is more likely to encounter law enforcement than receive the medical assistance they need.3 Jail populations currently reflect this reality. Rates of serious mental illness in jails are four to six times higher than in the general population.4 The most recent studies estimate that about 2 million people with serious mental illness are admitted to local jails annually.5 A recent survey showed that in 44 of the 50 states, a prison or jail holds more individuals with mental illness than the largest remaining state psychiatric hospital.6
The use of the justice system to address the mentally ill has contributed to significant growth in overall jail populations. At least 700,000 people were held in local jails each day in 2015.7 By contrast, that number in 1970 was just 157,000.8 Our jails have grown significantly over the past several decades and according to the Vera Institute of Justice, nearly 11 million people are admitted to the country’s more than 3,000 jails each year.9
The Sequential Intercept Model (SIM)10 is a framework communities can use to evaluate various systems and existing resources to organize targeted strategies that assist justice-involved individuals with behavioral health disorders. The tool helps to methodically evaluate a system and determine how those with mental and substance use disorders flow from the community into the criminal justice system and eventually return to the community. The SIM tool identifies opportunities–or intercept points (0 through 5)–where justice-involved individuals can be linked to services, rerouted from the justice system, or prevented from entering the justice system altogether. The model can help policymakers determine available resources, identify gaps in services, and develop policy and service changes.
While community and crisis services have traditionally been part of the SIM mapping process, Intercept 0 was formally integrated into the model in 2017. Intercept 0 includes both crisis response and law enforcement strategies that can reroute individuals prior to entry into the justice system. There are many types of crisis care services11 that can assist individuals who have mental health needs; however, it is critical that communities are aware of these resources. This includes law enforcement officers, who are often the first point of contact for people experiencing a mental health crisis even when no criminal act has occurred.
Legislation and state funding have supported community mental health services to various extents over the years. Most recently, states are starting to look at how those community-based services can be better used by improving coordination with the criminal justice system and ensuring that individuals avoid the criminal justice system, if appropriate.
In 2017, the Colorado legislature acted to ensure that people in mental health crisis avoid the justice system if appropriate. Senate Bill 20712 removed language from statute that allowed, at any time for any reason, an individual confined on an emergency 72-hour mental health hold to be detained in a jail, lockup or other facility used to confine persons charged with or convicted of a crime.
The goal of the legislation is to end the use of jails and correctional facilities as a placement option for people under emergency mental health holds who are not charged with a crime. To ensure these changes would take place, the bill appropriated funds to enhance Colorado’s existing coordinated behavioral health crisis response system. The enhanced statewide framework strengthens community partnerships and provides first responders with a variety of options to address behavioral health crises in a way that meets the needs of an individual in a clinically appropriate setting.
There is significant overlap between Intercept 0 and Intercept 1, because diversions and services under Intercept 0 can be initiated by the community or through the assistance of law enforcement over the course of their interactions with the community. Intercept 1, however, focuses more fully on law enforcement, and opportunities for officers to connect individuals with appropriate community-based services and reroute them away from the justice system altogether prior to arrest.
States have acted to assist law enforcement personnel in recognizing people with behavioral health issues, and in some instances, have also provided the framework for non-traditional law enforcement response procedures.
At least 27 states and the District of Columbia have laws requiring officers to be trained to respond to mental health, substance use and behavioral disorder issues.These laws specify which officers are to be trained, which entity is responsible for conducting the training, whether funding is provided, and whether the training is mandatory. This kind of training can increase officers’ understanding of mental health issues generally, but can also be used to increase awareness of available community-based services.
Additionally, at least 12 states have enacted legislation creating requirements and/or guidelines for establishing Crisis Intervention Team (CIT) training.13 Generally, these teams are formal partnerships among police departments and mental health providers that train responding personnel to identify and assess crisis situations, de-escalate crisis situations if necessary, link individuals to services, and divert them from the criminal justice system when appropriate.
Intercept 2 includes policies that connect people to services or divert them away from the traditional criminal justice process after arrest, from the point of arrest and booking through initial court appearances.
In 2017, Arkansas enacted Senate Bill 136,18 which authorized and established the framework for operating crisis stabilization units (CSUs) across the state. The units are clinical facilities that provide short-term stays for people in need of assessment and treatment services for behavioral health conditions. Individuals can be referred to a CSU by a law enforcement officer who arrested the individual for a nonviolent offense. The facilities are also available to receive people referred by community mental health centers, an Intercept 0 intervention.
The intent in creating the units was to improve outcomes for those with behavioral health issues who would otherwise end up in jails or emergency rooms, which are ill-equipped to provide this kind of assistance.19 The first CSU opened in Sebastian County in March of 2018.20 As the three other CSU’s open, they are expected to help alleviate jail overcrowding, assist first responders and improve the odds that those who need help can find it.21
State and local action supporting immediate law enforcement led diversion options, like the legislation in Arkansas, is expected to continue expanding, but screening for mental illness, at or after booking, can also be a critical step to connect an individual to services. Those connections are often made by court-ordered conditions of pretrial release or pretrial services programs charged with supervising defendants prior to trial.
States have passed legislation to encourage these connections to services. Nearly half the states permit courts to authorize or order mental health treatment or counseling as a condition of release.22 The majority of states also authorize courts to impose any reasonable conditions of release the court determines to be necessary, which can include a referral to services or a mental health screening or evaluation.23
The time frame from booking to initial appearance also provides an opportunity to identify defendants who may be suited for pretrial diversion programs in lieu of traditional criminal justice processing. Six states–California, Connecticut, Indiana, Mississippi, Nevada and Washington–have statutorily created pretrial diversion programs for individuals identified as having a mental illness.
An additional 37 states have statutory pretrial diversion programs that are not population specific, but can be used for people with mental health needs.24 For example, many of these laws provide broad authorization for prosecutorial diversion agreements, where charges are held in abeyance or not sought in exchange for a defendant’s agreement to voluntarily seek treatment.
Intercept 3 includes policies that can connect people to services via the court system or while they are housed in jail. Courts can link a defendant to appropriate services by moving them to a specialized docket or treatment court designed to address their specific needs, often mental health or substance use.
Treatment courts, which serve individuals with mental illness, provide an opportunity to divert people away from the traditional criminal justice system. These courts emerged in the late 1990s, and have since rapidly expanded across the states.27
Today, 20 states have statutorily authorized mental health treatment courts.28 Additionally, 19 state legislatures have authorized veterans treatment courts to address the needs, including those related to mental illness, of veterans and active members of the military.29 Many more of these specialized courts exist at the local level,30 and a vast number of resources exist, addressing everything from how to set up a court to how to evaluate outcomes.31
For those who are not appropriate for diversion from criminal processing, access to or continuation of services and treatment, including medication, can be critical. Screening for mental illness at booking or intake (Intercept 2), can help to facilitate initiation or prevent disruption of services while the defendant is incarcerated. Various tools are available to help jurisdictions identify individuals who need further evaluation or treatment.32
Treatment availability in jails is often limited because of inadequate resources. About two-thirds of the nation’s just over 3,000 jails are located in rural counties, where tax bases are smaller and resources for even basic services can be sparse.33
Beyond resources, treatment can also be difficult because of the constant fluctuation in the jail population. About seven of every 10 individuals held in jail are being held pretrial and are not convicted of an offense.34 Length of stay for defendants eligible for release can be unpredictable and vary greatly. The remainder of the population is generally serving a sentence of less than one year or sometimes being held for another agency.35
State legislatures can be key to ensuring that both rural and larger urban jails have the resources needed to provide services to help reduce recidivism and demands on the criminal justice system. This can be accomplished through legislation to create treatment programs or by distributing funding to local jails. Additionally, legislators can help increase capacity for treatment in local jails by leading regional or state-local collaboration efforts.
Intercept 4 focuses on policies directed at assisting people who are leaving jail. According to the National Institute of Corrections, jails in the United States process approximately 12 million releases per year.44 Helping these individuals successfully transition from an incarceration setting to the community can have a significant positive effect on public safety and poses an opportunity to reduce recidivism.
The relatively short length of stay for individuals in local jails and the lack of resources can make implementing robust reentry programming difficult. The vast majority of jail inmates remain incarcerated for less than a month,45 so the time frame for treatment during incarceration is very brief. This can make the transition and connections to community resources vital, specifically if services, treatment or medication were interrupted by the jail stay.
Because the opportunity for intervention can be so brief, it is important to coordinate available community- and jail-based resources and consider interventions along the jail-to-community continuum. This starts with interventions and screening at intake developed under Intercept 3. Tying jail-based programming to reentry interventions under Intercept 4 will ensure continuity of treatment and services.
Continuity of care can be improved if a jail uses an approach known as “community in-reach,” a practice allowing community-based organizations to work within the jail.46 Community in-reach can facilitate a smoother transition, and help to bolster services that might not otherwise be available to jailed inmates. In-reach services can assist with a number of key reentry challenges, including housing, employment, behavioral or mental health treatment, physical health care and government benefits.
Community in-reach can also help prepare an individual for those critical first hours and days after release, a time when inmates are at a particularly high risk for drug relapse, homelessness, missing doses of medication or other problems that can lead to recidivism.47 Most people leaving jail are not subject to continued supervision, like inmates leaving prison might be, so strong case-management services and setting up initial contacts and appointments can be crucial to making a more successful transition.
A study of The Jail Inreach Project in Harris County, Texas, found that “directly linking,” or physically escorting inmates to initial appointments the morning after they are eligible for release was more successful than allowing inmates to “self-release.” That is the standard procedure, where inmates are released in the middle of the night without any additional assistance in contacting service providers.48 Inmates who elected to self-release were six times less likely to be successfully connected to services.49 Ensuring connection to services is crucial. Initial data from the program indicates that successful linkage to treatment has so far appeared to reduce the likelihood of rearrest.
Intercept 5 focuses on intervention policies for those on community supervision, which primarily involves individuals on probation.53 The most recent numbers from the Bureau of Justice Statistics estimate that nearly 3.66 million people were on probation at the end of 2016.54
Similar to people in jail, those on probation also disproportionately suffer from mental illness.55 Well-tailored community supervision provides an opportunity to link offenders to appropriate services, but it can also be difficult for those with mental health issues to comply with rules under a system that is not designed to meet their mental health needs.56
Probationers with mental illness face a unique set of challenges with supervision that are directly related to their conditions; however, they also struggle more than others with meeting basic needs. They are more likely to face socioeconomic challenges—such as homelessness, unemployment and reliance on public assistance—that make supervision compliance difficult.57 Thirty percent of local jail detainees with mental illness are homeless in the year prior to their arrest, compared with only 17 percent of individuals without mental illness.58 Additionally, 44 percent of probationers with mental illness are unemployed compared with 24 percent of those without mental illness.59 Because of these and other challenges, offenders with a mental illness are twice as likely to have their probation revoked.60
State support for programs that help individuals overcome these challenges can be key to preventing rearrest and further contact with the criminal justice system.
The number of people with co-occurring mental and substance use disorders involved in the justice system is significant. People with mental disorders are more likely than those without a mental disorder to also have an alcohol or substance use disorder.64 One way states are trying to address the needs of this population is by expanding the use of medication-assisted treatment (MAT) for those with opioid disorders.65 MAT has been defined by legislatures as the use of medications and drug screening, in combination with evidence-based counseling and behavioral therapy, to provide a holistic approach to treating substance use disorders.66 MAT has been shown to have positive outcomes, including improved patient survival rates, increased retention in treatment, decreased illicit opioid use and other criminal activity, increased ability to gain and maintain employment, and improved birth outcomes for pregnant women with substance use disorders.67
In 2015, the Indiana legislature moved to incorporate MAT as an option throughout the state’s justice system, including for individuals being supervised in the community. Senate Bill 464 authorized community corrections programs to coordinate or operate drug and alcohol abuse counseling programs, including programs that use MAT. The new law also required the corrections commissioner to prioritize community corrections and court-supervised recidivism reduction grants for programs that provide alternative sentencing options for persons with mental illness, addictive disorders, and intellectual and developmental disabilities. Programs for addictive disorders were authorized to include MAT. Courts with probation jurisdiction that seek state financial assistance are now required to consult with the corrections department and the division of mental health and addiction to more effectively address the need for substance abuse treatment, including MAT. Medication-assisted treatment was also authorized to be ordered as a condition of probation.68
To further ensure implementation of MAT, the legislature enacted House Bill 1304, which required training for judges, prosecutors and public defenders on the availability of probation programs for offenders with addictive disorders, including information on MAT.69
State lawmakers have an opportunity to make informed policy and budget choices that can help improve outcomes for people with behavioral health needs while maintaining public safety. Recent actions in state legislatures reflect growing bipartisan cooperation to divert and treat individuals with mental illness who are under correctional control or are at risk of coming into contact with the justice system. Moving forward there is an opportunity for lawmakers to reduce use of jails to house the mentally ill, while also creating a more fair and just criminal justice system.
Amber Widgery, Esq.
Senior Policy Specialist, Criminal Justice Program
Amber Widgery is a senior policy specialist for NCSL’s Criminal Justice Program in NCSL’s Denver, Colo. office. Other NCSL staff contributors included Alison Lawrence, criminal justice program director, Amanda Essex, criminal justice senior policy specialist, Sarah Brown, criminal justice group director, and Jane Andrade, communications program director.
The author would also like to thank Laurie Garduque of the John D. and Catherine T. MacArthur Foundation and Travis Parker and Ashley Krider of Policy Research Associates Inc. for their contributions to improve the quality and usefulness of this report.
This report was prepared with support from the John D. and Catherine T. MacArthur Foundation as part of the Safety and Justice Challenge, which seeks to reduce overincarceration by changing the way America thinks about and uses jails.