Jailing the mentally ill

From the Hogg Foundation, see a Houston Chronicle column (Jan. 18) titled, "Texas, stop treating mental illness like it's a crime."

Without question, some people with mental illness need to be incarcerated. But for low-level nonviolent offenders, we should look to measures that can divert people from jails and into community-based mental health treatment programs.

The sequential-intercept model is a good example and highlights how this process of diversion can happen at every point along the criminal justice continuum - from the moment the 911 call is placed all the way to re-entry into the community after incarceration.

What's required are common-sense reforms such as targeted training for police and 911 dispatchers, screening for behavioral health conditions at the early stages of the process, and improved coordination between the justice system and social service agencies. For example, re-entry peer support, in which a recently released person is paired with a trained mentor who's been through the same experience, has been tested in Pennsylvania with promising results. The Texas Legislature approved up to $1 million in funding last session for two pilot sites. Scaling of such a program, if the pilots prove successful, could make an enormous difference.

Another good example is the improved protocol for 911 dispatchers in Houston, which requires that all callers be asked if their call involves a mental-health issue. Callers who say yes are routed to special crisis counselors who work out of the police department and can often deal appropriately with a situation without even bringing law enforcement into it.

We should take these kinds of steps because it's not only the right thing to do, the time is right. The evidence base for diversion programs has matured to the point where we can have confidence that the money will be well-spent. Law enforcement officials across the country support such measures. And advocates, experts and policymakers are recognizing that systemic change is needed to address systemic problems. It's time for more Texas lawmakers to get on board. 

Meanwhile, the SA Express News published a column (Jan. 22) by Sheriff Susan Parmerleau touting Bexar County's much-admired mental health diversion program, which has garnered national praise and generated impressive results:

The results have been remarkable. In 2009, the 15 deputies assigned to our mental health unit received crisis intervention training, which teaches them how to recognize someone in a mental health crisis and how to de-escalate the situation. Prior to 2009, our mental health deputies had to use physical force, on average, 50 times a year taking those with mental health issues into custody. Since that time, in more than six years, force has only had to be used three times. The difference between 300 times and three times is dramatic.

Since this program was started, more than 20,000 people with serious mental illness have been identified and diverted from jail into treatment. And the program has contributed significantly to resolving the problem of overcrowding in the jail.

Bexar County’s improvements in responding to people in crisis have also led to significant savings by reducing incarceration and emergency room use. In the past five years, the jail diversion program has saved Bexar County more than $50 million. This has been achieved through wise investments in community mental health services, and hiring more professionals to provide treatment. It has also succeeded by focusing resources on rehabilitation, housing and employment assistance. ...

Jails have become de facto mental institutions, and that has to change. As we work together as a community, we can provide those with mental illness the help they need. Those suffering with mental illness need treatment programs, not jail cells.

Finally, UT-Austin academic William Kelly offered up an interesting critique of the mens rea debate going on at the federal level, arguing that the real mens rea issues in the criminal justice system relate to mental illness:

Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem.  The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.

Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law.  How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.

In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement.  If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.

Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.

It has also contributed to our recidivism problem.

When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.