Mental Health and Criminal Justice

Mental Health and Criminal Justice
Testimony by Bernard S. Arons, M.D.
Director, SAMHSA Center for Mental Health Services

September 21, 2000

The number of persons with mental illness in U.S. jails continues to grow. Currently the prevalence of active serious mental illness among inmates admitted to U.S. jails is about 7 percent, which means that nearly 700,000 persons with active symptoms of severe mental illness are admitted to jails annually. For those persons in prison, recent Bureau of Justice Statistics reports approximately 16% or about 233,000 are also similarly diagnosed. About 75 percent of these people have a co-occurring alcohol or drug use disorder. Criminal justice and mental health professionals and advocates have called for diversion efforts to link offenders with mental illness to community-based services to break their continued cycling through the criminal justice, mental health, and substance abuse treatment systems and to reduce the number of people with mental illness in jails.

In order to help address this problem, the SAMHSA Center for Mental Health Services has supported a large scale study of the effectiveness of pre - and post - booking diversion

models. While nowhere near a comprehensive approach to all the issues involved in providing care and treatment to persons with mental illness who become involved with the criminal justice system, this is the area that appeared to offer the best promising program models that could be evaluated for their differential impacts.

For this reason, I will focus my background information on our diversion program while only briefly referencing other aspects of the issue which will, I expect, be addressed by other witnesses. The second part of my testimony will offer an approach to problem solving that could be useful to members of Congress as well as local communities struggling to deal with this growing crisis.

Jail diversion generally refers to specific programs that screen detainees in contact with the criminal justice system for the presence of mental disorder; they employ mental health professionals to evaluate the detainees and negotiate with prosecutors, defense attorney, community-based mental health providers, and the courts to develop community-based mental health dispositions for mentally ill detainees. The mental health disposition is sought as an alternative to prosecution, as a condition of a reduction in charges, or as satisfaction for the charges, for example, as a condition of probation. Once such a disposition is decided upon, the diversion program links the client to community-based mental health services.

It is important to note that jail diversion services consist of two broad interlocking areas of intervention. First is the diversion mechanisms, or the means by which an individual is identified at some point in the arrest process and diverted into mental health services. Second is the system of integrated mental health and substance abuse services to which the client is diverted.

Broadly defined, diversion leads individuals with mental illness or substance use problems away from criminal incarceration. Diversion services may either prevent incarceration or cut it short. Conceptually, then, the definition of diversion could include many crisis services that are used to intervene after the onset of acute symptoms but before an individual has engaged in any criminal behavior, thus removing a basis for arrest. Such a broad definition would make it very difficult to differentiate crisis services from jail diversion because one could never be sure that an arrest would otherwise have occurred. Diversion could also be any planning for release from jail, because a plan for community services after release often facilitates a faster release, thus preventing extended incarceration. Diversion programs can be operated by police, pre-trial service agencies, courts (as part of a Mental Health Court or otherwise), and from several parts of the jail system.

What makes jail diversion unique is that this service positions itself within the criminal justice system as an immediate alternative to incarceration. Individuals with mental illnesses may be identified for diversion from the criminal justice system at any point, including pre-booking interventions (before formal charges are brought) and post-booking interventions (after the individual has been arrested and jailed.

In a 1994 national survey, 34 percent of U.S. jails indicated that they had some type of formal diversion program for mentally ill detainees. However, in a follow-up telephone survey, only 18 percent of the jails that claimed to have such interventions actually had programs that fit the definition provided above. After researchers visited these sites, their final estimate was that only about 50-55 true jail diversion programs for mentally ill detainees exist nationwide.

When the major diversion programs were examined, five key elements were associated with the programs that were perceived to be most successful.

The bottom line was that program effectiveness depended on building new system linkages, viewing detainees as citizens, and holding the community responsible for the full array of services needed by the detainees.

Although jail diversion programs appear to have widespread support, few outcome studies have systematically examined the effectiveness of diversion programs using client outcome data. The literature offers little information on whether current programs benefit the targeted recipients in terms of symptom stabilization, reduced jail time, higher level community adjustment, and stable participation in community mental health services. Torrey and colleagues noted that there was not enough evidence about the comparative effectiveness of alternative approaches to jail diversion to recommend one approach over another.

Three modest outcome studies have been published. Lamb and colleagues' study of a pre-booking diversion program in Los Angeles sought to determine whether emergency outreach teams composed of police officers and mental health professionals could assess and make appropriate disposition decisions for psychiatric crisis cases in the community, including situations involving a threat of violence or actual violence. The study included a six-month follow-up of all referrals to the specialized outreach teams. Sixty-nine subjects encountered by the teams were placed on involuntary 72-hour holds, 80 were transported to hospitals, and 73 were actually hospitalized. Only two subjects were taken to jail.

The researchers concluded that the team benefitted from shared access to mental health and criminal justice records in making disposition decisions. The trained police officers provided security, transportation, law enforcement field resources, and the knowledge about handling violence. The mental health specialists provided knowledge about mental illness and experience in diagnosis, crisis evaluation, and interacting with psychiatric patients. Overall, the teams increased the percentage of mentally ill persons who had access to the mental health system.

The study of the pre-booking diversion program by Steadman and associates included two diversion sites - the community service officer program in Birmingham, Alabama, and the crisis intervention team in Memphis, Tennessee. The Birmingham community service officer program is a police department-based program staffed with in-house social workers. The Memphis crisis intervention team is a police-department-based cadre of specially trained officers who handle mental health crisis calls when the police are the first line of response. For comparison, the study included a traditional mental health emergency team - a mobile crisis unit in Knoxville, Tennessee - which is based in the county's mental health department and works with the Knoxville police department.

The three programs had notable differences, partly due to the program structure and staffing patterns. However, all three showed great promise for diverting mentally ill people from jail, keeping them in the community, and facilitating access to treatment. Across all three sites, only 6.7 percent of the "mental disturbance" calls resulted in arrest. The Memphis crisis intervention team had an arrest rate of two percent, which was comparable to that reported by Lamb and colleagues for the pre-booking diversion program they studied. These proportions compare to an 18 percent rate in a Chicago study, where no specialized police mental health team was available.

In more than half of the encounters examined in all three programs, mentally ill subjects were either transported or referred to treatment; in a third of the encounters, program staff used specialized response procedures to provide crisis intervention or resolve the incident on the scene. Of the three programs, the Memphis crisis intervention team appeared to make the management of crisis incidents easiest on police by offering a no-refusal, 24-hour crisis drop-off center.

Lamb and colleagues examined outcomes from a post-booking diversion program in Los Angeles County that provided mental health consultation to a municipal court. Clinical and forensic records of 96 individuals charged with misdemeanors and referred to a clinical psychologist court consultant for evaluation were studied. Follow-up information was collected one year after arrest on each subject. Poor outcomes were defined as psychiatric hospitalization, arrest, significant physical violence against persons, or homelessness during the follow-up year. Although 54 percent of the sample had a poor outcome, a significantly larger proportion of subjects who were diverted to receive judicially monitored treatment had a good outcome compared with subjects who were not mandated to receive monitored treatment. Also, subjects mandated to receive judicially monitored treatment had significantly better outcomes than subjects referred for treatment, but without court monitoring.

The three outcome studies described here offer some useful information. However, they do not provide adequate data to help answer the questions of a county executive, a sheriff, or some other elected official who asks a diversion program proponent to show how the proposed program will save the county money or keep the streets safer. In the absence of more comprehensive client outcome data and some cost-effectiveness information, the creation of innovative programs to prevent the unnecessary and often harmful incarceration of persons with serious mental illness is severely compromised.

To produce such data is extremely difficult. In real-world settings, random clinical trials are usually ethically impossible or, if possible, are impractical given local politics and the public's fears. Nonetheless, our current initiative holds great promise for filling these empirical gaps with information that will help communities in the design, implementation, and operation of both pre-booking, police-department-based diversion programs and post-booking, arraignment-court and jail-based diversion programs.

In September, 1997, The Substance Abuse and Mental Health Services Administration (SAMHSA) funded a three-year Knowledge and Development Application on jail diversion. The goal of the Knowledge and Development Application program is to develop new knowledge about ways to improve the prevention and treatment os substance abuse and mental illness, and to work with state and local governments as well as providers, families, and consumers to apply that knowledge effectively in everyday practice. Knowledge Development and Application grants do not provide operating funds for service programs, except as required by the knowledge development activity.

The jail diversion initiative moves beyond the three outcome studies described above in four ways. First, it includes several sites. Second, it is collecting extensive background and outcome data on subjects who are diverted from jail and on comparison subjects. Third, the study subjects constitute a diverse group. About 70 percent of the subjects are expected to be men in their mid 30s, most of whom have a mood disorder or schizophrenia. Their charges are expected to be primarily nonviolent misdemeanors, although a few are expected to have committed nonviolent felonies. Fourth, the jail diversion initiative will gather some cost data. The result will allow more sophisticated answers to the core questions for diversion - what works, for whom, and under what circumstances.

SAMHSA selected nine sites with established diversion programs to assess the effectiveness of the three major types of jail diversion programs -- pre-booking programs, court-based post-booking programs; and jail-based post-booking programs. The sites qualified for funding by submitting proposals describing strategies to evaluate the relative effectiveness of fully-functioning diversion models for individuals with co-occurring serious mental illnesses and alcohol or other drug use disorders.

A total of four pre-booking programs are included in the research initiative. Pre-booking programs in Memphis, Multnomah County (Portland), Oregon, and Montgomery County, Pennsylvania, intensively train members of the police force to handle calls that involve an individual with mental health or substance abuse problems. Each site has a 24-hour crisis center with a no-refusal policy that is available to receive persons brought in by the police. A pre-booking program in Wicomico County, Maryland, targets women.

A total of 11 post-booking programs are being studied. Most of the post-booking programs are jail based, although five of the Connecticut programs are court based. In the court-based programs, mental health workers situated in the courthouse identify clients while they are awaiting their hearing and negotiate with the court to develop community-based alternatives to jail.

The jail-based post-booking programs involved in the research initiative include New York City's NYC-LINK program, which uses linkages between planners at the jail and transitional mangers in the community to create community-based treatment arrangements for offenders with mental illness. The two post-booking programs at the Arizona sites identify offenders in jail and can refer them to three tiers of diversion alternatives: release from jail with conditions, deferred prosecution, and summary probation.

Lane County, Oregon, has a unique program that involves a psychiatric hospital located near the jail that offers detoxification services. Diversion options in Montgomery County, Pennsylvania, also include condition release with mental health services or dropping of charges once the offender is identified as a current mental health client. A third alternative in Montgomery County is "coterminous diversion," in which police take the offender into custody, then deliver the offender straight to psychiatric treatment and also file charges. This arrangement can result in a variety of dispositions, ranging from dropping the charges to having the offender respond to the charges.

The post-booking program in Honolulu begins when detainees are transported from holding cells in the local precincts to the courthouse in the early morning, where they are seen by a case coordinator who determines before arraignment whether diversion is appropriate.

Each of the sites will conduct a process and outcome evaluation of its jail diversion programs. The process evaluation focuses on a detailed description of the pre- or post-booking interventions at each site, a description of each subject's exposure to the intervention, and a description of the community context of the interventions and how it changes over time. Both self-report and record-based data will be used.

The general hypothesis that will be tested in the cross-site study is that diversion from jail to community mental health and substance abuse services will reduce negative outcomes such as recidivism, poor psycho social functioning, and psychiatric hospitalizations while increasing the quality of life of mentally ill detainees. The relative effectiveness of pre- versus post-booking diversion will also be assessed.

A cost-effectiveness analysis will be carried out to determine the cost savings to the criminal justice system; the benefits to the individuals who are diverted, in the form of improved individual outcomes; and the benefits to society as a whole, in the form of decreased costs due to a reduction in criminal victimization and property crimes and increased employment of diverted subjects. Comparisons of costs and effects will be made for pre- versus post-booking programs as well as for both types of diversion programs versus incarceration.

Additional avenues to be explored that may well enhance the role of standard treatment approaches are the adjunctive use of self-help groups by consumers who are in jails and prisons, specialized treatment groups within jails and prisons that are integrated to address co-occurring problems of mental illness and substance abuse, and focused group treatment approaches for women in jails and prisons that address the co-occurring issues in the context of histories of physical and sexual abuse, need for improved parenting skills, etc. Some preliminary study is underway in these areas to help define these issues for careful exploration, and it appears that the use of group treatment approaches is a viable and useful addition to more traditional one-on-one services approaches.

The role of family members in the planning, implementation, and support of services for a son or daughter or other family member has also been an approach to building diversion programs that are vitally related to communities. Families have been vocal advocates for improved services for the mentally ill in the criminal justice system. They are eager to assist in building a more accessible and treatment - friendly system both in the jail or prisons and in the community. Family members as resources in this process are carving out responsibilities that can relieve the overall burden on all concerned.

Diversion programs are thought to be the most effective approach to integrate, at a community level, an array of mental health, substance abuse, and other support services, including group approaches, to break the cycle of repeated entry into the criminal justice and mental health and substance abuse treatment systems by persons with mental disorders. However, very few systematic outcomes studies that address the effectiveness of jail diversion programs have been conducted. Thus far no research has systematically examined which types of programs work best for whom. We do not know which are the most effective programs and which are the most appropriate for certain communities and for certain groups of detainees.

Available research findings suggest that at least two core elements are necessary for diversion programs: aggressive linkage to an array of community services, especially those for co-occurring mental health and substance use disorders, and nontraditional case managers. However, we have not determined whether diversion programs are more effective than high-quality jail-based programs at accomplishing the goals discussed above.

At present, no single definitive model for organizing a criminal justice-mental health diversion program exists. In addition, little is known about which types of programs are effective for detainees with co-occurring disorders or whether programs actually benefit the targeted recipients, especially in terms of symptom stabilization, reduced jail time, higher levels of community adjustment, and stable participation in community mental health and substance abuse services. The SAMHSA jail diversion Knowledge and Development Application is expected to provide data that can be used to answer these pressing policy and clinical questions.

Diversion is not the only key interface between the mental health and criminal justice systems. There are persons with mental illness who will become incarcerated who require treatment in jail or prison. Other persons will be referred to treatment by their probation or parole officer. Still others will complete their jail or prison term and need to be reconnected to their community mental health system. All of these crossroads between criminal and justice and mental health present additional challenges and opportunities for improving outcomes for people with mental illness. Much is known about how to best provide treatment in jail and prison; how to supervise conditions of parole and probation, and how to facilitate community reentry. I need not add to the important information and insights available to the Committee from other sources in this testimony. Suffice it to say that there will be many parts to a solution of the problem we are addressing; we will want to take advantage of the learning and insights available to us from all sectors of both field.

The mental health and criminal justice systems have a big, common problem: persons with mental illness are increasingly involved in the criminal justice system, resulting in greater burden on criminal justice and less effective treatment for persons with mental illness. While study is not yet complete, we have invested in programs with a track record. We need to learn from their experience, even as we await more complete outcome data. Several of the programs already discussed make it clear that joint partnership between both systems is required.

We need to emphasize that as a society we have created this situation. Inadequate treatment and services leaves people unprotected from the force of their illness, and we wait and watch until they do something, often a non-violent misdemeanor, to put them in trouble with the law. Jails and prisons are not set up to help ameliorate the force of these illnesses, and a vicious cycle is often set in place creating high rates of recidivism for these people.

But, the existence of a common problem can be part of its solution. I assume the issue comes down to creating the right balance between providing treatment for illness and deterrence from dangerous behavior. The more the balance tips away from risk to public safety toward treatment goals, the sooner a treatment alternative to Criminal justice system involvement is indicated; the more there exists a serious public safety concern, the more emphasis would be placed on protection, at the expense of the most effective treatment. We can only identify the proper balance if the two systems - criminal justice and mental health - do it together. If we can agree on common interests, we can seek common solutions.

Where does this take us? First, it seems clear that all our interests can be at least partially addressed if more people with serious mental illness get effective treatment. Engagement in treatment represents achievement of the mental health system's basic treatment mission while at the same time it reduces the prospects of further demands on public resources by persons with active illness who are unable to work and maintain themselves independently. At the same time, there is good evidence that decreased reliance on the criminal justice system to handle persons with active mental illness frees up critical resources for pursuing the criminal justice system's basic mission to prevent societal harm caused by criminal activity. It follows, therefore, that diversion of non-dangerous persons with mental illness to effective treatment would be one component of a common goal.

There is a growing body of knowledge about how successful pre and post booking diversion programs work. SAMHSA'S multi-site study of jail diversion is teaching us much about both the ingredients necessary for an efficient diversion mechanism and the treatment programming that is needed to yield improved outcomes. Coupled with experience in many jurisdictions around the country, including places where a variety of mechanisms such as mental health courts, are being implemented, we have a solid foundations for using diversion mechanisms everywhere in the country.

There are, however, persons with mental illness who engage in serious criminal activity that merits prosecution and imprisonment. Just like any other group of people, there are some persons with mental illness who are dangerous. In these circumstances, a joint goal of protecting society and providing humane care must be formulated if mental health and criminal justice are to work together. While incarcerated, dangerous persons should receive treatment for their mental illness. This goal, that of humane deterrence, can be legitimized in both systems.

As a result, one can envision a two-pronged goal statement for mental health and criminal justice vis-a-vis persons with mental illness. It might be stated as follows:

In order to minimize involvement of persons with mental illness in the criminal justice system while protecting the public, the degree of criminal justice involvement should be directly proportional to the extent to which an individual poses a danger to society. Therefore, two compatible goals can be stated:

Whether we agree on this particular approach or not, the critical concern is that we seek a solution together. In my view, the formation of local joint ventures between the criminal justice and mental health systems holds the most promise for a solution to the current dilemma. The idea as well as the concrete characteristics of a joint venture make sense as an overall approach.

The idea of a joint venture is slightly different and much more concrete than the often repeated call for increased coordination, collaboration or partnership. A joint venture is a entity distinct from its component members. The entity has separate governance and is chartered for a specific purpose, in this case achievement of the common criminal justice system/mental health goal referenced above. The entity has no other purpose or responsibilities. It can be abolished without changing the character of its components.

There are several advantages to this approach. First, the entities entering into the joint venture must agree on the purpose or goal of the venture and make specific commitments with respect to achieving the goal. While most often financial, these commitments can also include adoption of specific practices and agreements to behave in specific ways under certain circumstances. The joint venturers make their commitments at the beginning of the venture before investments are made or any specific tasks are performed. Joint mental health and criminal justice ventures make up-front commitments to pool specific resources and to employ the screening, diversion, treatment, supervision, and reporting practices that are necessary to assure treatment and provide security.

Second, since the joint venture is a discrete entity, the role played by the criminal justice and mental health systems can be defined independently of traditional roles and responsibilities without abrogating those roles and responsibilities in the underlying systems. The new entity is, therefore, released from the bonds of history and precedent and given opportunity to forge new relationships and rules of conduct. Power and leadership rules can be radically redefined without compromising the underlying systems. Joint mental health and criminal justice ventures disregard historical differences, take advantage of each system's strengths, make rules that are tailored to the goals of the venture and create a direct link between investments of resources and specific outcomes that benefit both systems. The management style to create win-win conditions for both systems. At the same time, the traditional systems remain in place without the need for changes it would be naive to expect.

The nature of the joint venture would help define its business practices. Rather than institutionalizing a traditional bureaucracy, a joint venture can, and should, adopt selected business practices that can yield more focus on specific outcomes and improved quality assurance and utilization review mechanisms. In addition, the joint venture can adopt accounting procedures better tailored to accommodating pooled funding and the corresponding tracking requirements imposed by multiple categorical funding streams. Finally, expectations change with respect to the accountability mechanism that would be adopted by a joint venture, with a premium placed on watching the bottom line, which in this case would be specific targets related to engagement in treatment and prevention of recidivism among the targeted populations.

Regardless of the organizational vehicle, reducing the numbers and percentages of persons with mental illness in the criminal justice system will depend to a large extent on the willingness of providers and managers in both systems to understand one another. Those people who have experience in both systems understand the strengths and weaknesses of each. There is plenty of evidence that when the strengths of the fields are exploited all aspects of the service systems improved. So, police departments that have learned the advantages of mental health crisis intervention techniques when forming Crisis Intervention Teams have consistently improved both engagement in treatment and prevention of criminal recidivism among persons with serious mental illness. Mental health professionals who understand how courts work and how judges use their authority have been able to expand the availability of services to persons with mental illness by taking advantage of the judicious use of that power. The emerging principles of therapeutic jurisprudence underscore the value of sharing learning and experience across the two fields. There is no doubt that the principles underlying Assertive Community Treatment and enlightened community supervision practices within probation and parole share many similarities and a common ancestry. Taking a strengths-based approach to problem solving will be a key element of a success system of care for persons with mental illness involved in the criminal justice system.

More and more people with serious mental illness are entering the criminal justice system. The criminal justice system is being overwhelmed by the burden of providing humane care and management for persons with mental illness. This could be an historic opportunity to change by improving the efficiency and effectiveness of both systems. By agreeing upon a common goal and forming joint ventures to solve problems traditionally viewed as competing, the two systems can make a difference in the lives of hundreds of thousands of persons who suffer mental illness and associated criminal justice involvement. It cannot happen too soon.

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