The NCSL Blog


By Amber Widgery

Individuals with mental illness are often arrested for behavior associated with their disability, including administrative offenses and non-violent “qualify of life” offenses.

Allison Sherry/CPR News Mark’s son (the family's surname is being withheld due to the son's legal trouble) has been sitting in Denver County Jail for 205 days awaiting mental health competency restoration so he can face criminal charges for spitting on a peace officer. His dad has not been able to get him his doctor-prescribed anti-psychotic medication because the jail said they couldn’t accept it.For those 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.

Today, a person experiencing a mental health crisis is more likely to encounter law enforcement than to receive the actual medical assistance needed. Current jail populations reflect this reality. Rates of serious mental illness in jails are four to six times higher than in the general population, with an estimated 2 million people afflicted with mental illness admitted to jail annually.

The overrepresentation of individuals with mental illness in the criminal justice system is also tied to reports of significant increases in the number of those identified as needing to undergo a competency evaluation. State competency systems have been overwhelmed resulting in litigation and serious fines that accompany court-mandated reforms. Lawsuits have been reported in as many as 11 states.

Experts on the intersection of the criminal justice and mental health systems have advocated for the use of the legal protections in the Americans with Disabilities Act (ADA) and the Olmstead v. L.C. U.S. Supreme Court decision to reduce incarceration of people with mental illness. In recent years, Ira Burnim, the director of the Bazelon Center for Mental Health Law, wrote about how this has been pursued in states like Georgia and Delaware in a blog for the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

Successful lawsuits relying on the ADA and the Olmstead decision have resulted in expanded services for individuals with mental illness, such as supported employment, supported housing, and an expanded crisis care services, including crisis stabilization services in some states.

Other states have moved to expand the crisis care continuum outside of the mandates of litigation. For example, a 2017 Arkansas law established and funded regional crisis stabilization units that have since been credited with reducing the number of people who end up in jail.

Recognizing that calling 911 and initiating a law enforcement response is often the de facto reaction to an individual in crisis, many of these changes have included increased collaborative efforts with law enforcement.

The Colorado legislature has enacted legislation to fund the establishment of co-responder programs across the state. The programs pair law enforcement and behavioral health specialists to respond to behavioral health-related 911 calls. The goals of the program include reducing unnecessary incarceration or hospitalization, providing alternate care in the least restrictive environment, preventing duplication of mental health services and facilitating the return of law enforcement units to patrol activities. 

Local jurisdictions have also taken an active role in addressing these issues. In addition to marking the 30th anniversary of the ADA, 2020 is the fifth anniversary of the Stepping Up Initiative. In the last five years, more than 500 counties in 43 states have joined the initiative, pledging to reduce the number of people with mental illness in jails across the country.

Lawmakers have also continued their work in 2020, with 10 states introducing 37 new bills in the last five months to fund, establish or support alternative law enforcement responses for individuals with behavioral health needs.

This piece is part of NCSL’s yearlong celebration of ADA30, and ongoing partnership with the U.S. Department of Labor Office of Disability Employment Policy’s State Exchange on Employment & Disability (SEED). SEED partners with intermediary organizations like NCSL to ensure that state and local policymakers have the tools and resources they need to develop and disseminate meaningful policies related to disability-inclusive workforce development.

Amber Widgery is program principal in NCSL’s Criminal Justice Program.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.