The Decriminalization of Mental Illness in America

As a society, Americans have effectively criminalized mental illness. Our jails and prisons are filled with mentally ill individuals. 50% of prison and jail inmates in California have mental health impairments. But change may be approaching. More attention is being focused on this issue and Americans are starting to question the current criminal justice system. Some communities have begun taking action to remedy this societal catastrophe. There may be hope that soon we, as a country, may no longer be known as incarceration nation.

This post will discuss possible solutions to reduce the number of incarcerated mentally ill individuals. I will review new, pertinent legislation proposed in California and programs set up in other states that attempt to change the current status quo of the criminalization of mental illness. As discussed in my previous post, Santa Clara County is currently attempting to remedy the criminalization of mental illness in our community by spending $74 million on expanding its mental health unit in jail. But expanding the jail’s mental health unit does not provide a complete solution to the problem. Providing mental health treatment in jail is not as cost efficient or effective as outside treatment and may not be necessary. Many mentally ill individuals who are incarcerated commit low-level misdemeanor offenses such as trespassing, drug crimes, public urination, public intoxication, and aggressive manhandling. Research shows that if these individuals are provided support and treatment, they are much less likely to recidivate compared to when these individuals are incarcerated. We as a community must chose whether we want to lock up mentally ill offenders or care for them. The former perpetuates recidivism and chaos; the latter is more cost effective and humane.

 California Assembly Bill 2262

The California Legislature is currently considering adopting Assembly Bill 2262. AB 2622 would allow qualifying defendants to carry out part of or their entire criminal sentence in a mental health treatment facility instead of prison or jail. This is definitely a step in the right direction. According to AB 2262, providing someone mental health treatment outside of prison costs $20,412/year versus $51,000/year for housing someone in prison. Not only is mental health treatment more cost efficient than incarceration, it is more effective, as the carceral environment only exacerbates mental illness. More effective treatment lowers recidivism rates and assists people in becoming contributing community members.

But while this is a step in the right direction by the California government, it does not do enough. The bill does nothing for mentally ill pretrial detainees. As covered in my previous post, pretrial detainees can spend months and even years in jail before being sentenced. Mentally ill pretrial detainees are also housed in jail, usually with the general population. The Santa Clara Jail environment exacerbates mental illness due to the untrained jail deputies, understaffed mental health unit, and lack of therapeutic services. Factors that contribute to mentally ill individuals committing crimes include: lack of stable housing, employment, health care, and social support. Instead of addressing these causes of criminal behavior, AB 2622 retroactively attempts to provide assistance. By waiting until sentencing to provide adequate treatment and support, the bill still allows for the worsening of a prisoner’s mental health before providing assistance.

 Pre-Booking Diversion Programs

Some communities in California and other states are choosing not to wait until sentencing to provide treatment for mentally ill misdemeanants by establishing pre-booking diversion programs. Pre-booking diversion programs allow police officers and trained mental health staff to completely divert an individual who committed a misdemeanor out of the criminal justice system and into a treatment facility. Mentally ill individuals spend little or no time locked up in jail, and, pending the successful completion of treatment, the county can dismiss the charges. This approach is different from programs that focus on successful “re-entry” from jail or prison; Santa Clara County has called the approach “non-entry”. It is unclear, however, when the “non-entry” would occur in Santa Clara County. It is apparent that Santa Clara County would greatly benefit from the implementation of a pre-booking diversion program as 50% of its jail is currently filled with mentally ill individuals.

Presently, Miami-Dade County, Florida, has a successful pre-booking diversion program for the mentally ill and the results are astounding. Police officers are trained to recognize symptoms of mental illness and are allowed to divert misdemeanants suffering from mental illness to treatment in lieu of arresting them. Additionally, upon booking, all misdemeanor defendants are screened by a psychiatrist for possible diversion at that point. The diversion program provides services not only for mental health care but also for housing assistance. Additionally, Court officials have the power to modify or dismiss charges for those who successfully participate in the diversion program.

The results of this program have been undeniably successful. In 2011, 3,500 mentally ill individuals were diverted to treatment instead of facing incarceration. The daily jail population has dropped from 7,800 to 5,000 inmates. The program has been so successful that the county closed one jail, saving taxpayers $12 million a year. And, more importantly, the recidivism rate among mentally ill people charged with a misdemeanor has dropped from 75% to 20%. A Florida judge discussed the results this way: “Treatment works. People with mental illness don’t want to be sick. That’s what most people don’t understand.” Miami-Dade County is not the only community seeing results from pre-booking diversion programs. Counties in Massachusetts have also been utilizing pre-booking diversion programs that have yielded similar results.

San Jose attempted to implement a similar program with the creation of the Crisis Intervention Team (CIT). San Jose police officers can take part in a 40-hour training course to learn how to effectively respond to emergency calls related to mental health. A Post-Crisis Intervention Team was subsequently established to help facilitate communication between officers and mental health providers. The City of San Jose contracted with Alum-Rock Counseling Center in 2011 to provide mental heath assistance to individuals the officers identified as in need.

This is a step in the right direction, but it has several design flaws that differentiate it from the more effective Miami-Dade program. The CIT was simply set up to assist when a crisis mental health call or suicide call was made to the San Jose Police Department. The decision to even have a trained CIT officer respond to the 911 call is not mandatory; instead, it is left up to the dispatcher or responding officer. Furthermore, according to a 2011 evaluation report, it appears that San Jose police officers do not have the same authority to divert an individual who committed a misdemeanor to treatment. The evaluation reported that the CIT program assisted 112 people over almost a two-year span, meaning these individuals were successfully linked to a mental health provider. This is where the most glaring difference can be found when compared to the Miami-Dade diversion program, which diverted 3,500 individuals in one year. Furthermore, the 112 people assisted pales in comparison to the more than 1,500 mentally ill inmates currently housed in the Santa Clara Jail.

Revamping the CIT to mirror one similar to Miami-Dade County would bring Santa Clara a lot closer to decriminalizing mental illness. To be effective Santa Clara would need to invest up front in developing more facilities to house mentally ill offenders in beds outside of jail facilities. Although creating community-based treatment facilities is costly initially, it is more cost effective in the long run. According to a 2014 ACLU and Bazelon Center report, incarcerating mentally ill offenders is a waste of taxpayer resources as it costs far more to incarcerate inmates with a mental illness than those without a mental illness. The report also states that it is far less costly to supervise mentally ill individuals in community settings than in jail. Additionally, treatment and support reduce recidivism among mentally ill offenders, thereby lowering the jail population and the drain on the justice system.

Santa Clara should be establishing community based diversion programs to provide supportive housing, mental health treatment, and employment assistance for mentally ill individuals. Instead, Santa Clara is choosing to invest 74$ million on an in-jail psychiatric unit. According to Chief Operating Officer Gary Graves, diversion is a good concept but there is currently no place to divert individuals to. Additionally, Santa Clara would need to train all law enforcement personnel, not just the San Jose Police Department, on how to detect and respond to a person with a mental illness. But the cost would quickly be repaid when recidivism rates are reduced and there are less mentally ill individuals being housed in the jail.

Pre-Booking Diversion for the Mentally Ill Homeless Population

In 2009, a jail diversion report issued by the executive director of California Council of Community Mental Health Agencies discussed a variety of programs operating in multiple California communities. One unique program was in the city of San Bernardino. The city of San Bernardino implemented a pre-booking diversion program in 2005 that targeted the mentally ill homeless population. As San Jose and Santa Clara have one of the worst homeless problems in America, it may be worth developing a pre-booking diversion program specifically targeting them. San Bernardino identified that mentally ill homeless individuals were constantly cycling in and out of the criminal justice system for minor offenses. To constantly re-arrest and re-book these individuals was not cost effective. San Bernardino has designated four officers to address all 911 calls related to homelessness. These same officers patrol the city to look for people who might be homeless and in need of connections to services. The officers in San Bernardino assigned to this detail have developed relationships with the homeless population. The homeless see the officers as helpful figures, not necessarily as people who are trying to make an arrest. When the officers are dispatched to a 911 call related to a homeless mentally ill individual, he or she educates the person about the potential crimes the officer could arrest them for if they remained homeless. The San Bernardino program aims to balance proactive outreach with enforcement of the law, while connecting the homeless population with resources that can help them transition out of homelessness. If the individual is open and in need of mental health treatment, the officer connects them to the community mental health services, including driving them to the facility.

A question that arises in the midst of all the positive results is: why aren’t more counties and states implementing programs like in Miami-Dade County and San Bernardino? The answer is surprisingly simple: pre-booking diversion programs are fairly new. Because they are new, there is not a lot of empirical research to support them yet. But the numbers out of Miami-Dade County cannot be ignored. Pre-booking diversion programs are the most effective tool yet that we have to stop the criminalization of the mentally ill.

Essential to Santa Clara’s current discussion on incarcerated individuals with mental illness is pre-booking diversion programs. This would eliminate many of the negative consequences for mentally ill pretrial detainees and would help decriminalize mental illness. This would also free up space in our jail, unclog our criminal justice system, reduce recidivism, lower the homeless population, increase public safety, and save taxpayers money. We as a community can no longer turn a blind eye to what is happening in our back yard: the inhuman criminalization of mentally ill individuals. The Santa Clara Blue Ribbon Commission on Improving Custody Operations will hold public meetings regarding their future steps in attempt to remedy this problem. We need to insist that Santa Clara separate mental illness and criminal activity by investing in pre-booking diversion programs and community-based treatment. As Professor Craig Haney has said, we need to stop asking what an offender did and start asking why. By understanding the why, we can take preventative measures instead of retroactive punishment.