AMERICAN PUBLIC UNIVERSITY SYSTEM. Charles Town, West Virginia JAIL DIVERSION BENEFITS THE CRIMINAL JUSTICE SYSTEM AND STAKEHOLDERS IN THE COMMUNITY

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1 1 AMERICAN PUBLIC UNIVERSITY SYSTEM Charles Town, West Virginia JAIL DIVERSION BENEFITS THE CRIMINAL JUSTICE SYSTEM AND STAKEHOLDERS IN THE COMMUNITY A thesis submitted in partial fulfillment of the requirements for the degree of MASTER OF ARTS In CRIMINAL JUSTICE By Christine Jones Department Approval Date: The author hereby grants the American Public University System the right to display these contents for educational purposes. The author assumes total responsibility for meeting the requirements set by United States Copyright Law for the inclusion of any materials that are not the author s creation or in the public domain.

2 Copyright 2011 by Christine Jones All rights reserved. 2

3 3 DEDICATION This body of work is dedicated to my husband Kenny, who patiently supported me while I spent hours at work on the computer. I also thank my sons Aaron and Dylan and granddaughters, Katelyn and Jaden, just because you make me happy. Mom, Dad, and Erika, thanks for believing in me and cheering me on.

4 4 ACKNOWLEDGEMENTS My gratitude to the staff at American Military University, I was always challenged to do my best and my work was held to the highest standards. The course work was a challenge and I am proud to be a graduate of the university. For this work I acknowledge Professor Muehlenbeck, her guidance throughout the course was invaluable and her assistance timely and friendly, thank you so much.

5 5 ABSTRACT OF THE THESIS JAIL DIVERSION BENEFITS THE CRIMINAL JUSTICE SYSTEM AND STAKEHOLDERS IN THE COMMUNITY By Christine Jones American Public University System, September 21, 2011 Charles Town, West Virginia Dr. Kerry L. Muehlenbeck, Thesis Professor The purpose of this research is to show that jail diversion for offenders with mental illness benefits both the criminal justice system and the stakeholders that provide for individuals with mental illness. Jail diversion seeks to divert mentally ill individuals from the criminal justice system and provide them with appropriate treatment of the disease and save taxpayer resources. The study makes use of peer reviewed journals, criminal justice and mental health system web sites, legislation, and personal conversation confirming that jail diversion reduces costs within the criminal justice system. The stakeholders in the community are mental and medical health care professionals, social service providers, and community support centers within the mental health system that treat and support individuals with mental illness. The stakeholders benefit by early intervention, providing treatment, and by providing support services that help mentally ill individuals return to the community. Providing these services are more difficult, if not impossible, to provide for mentally ill individuals wedged in the criminal justice system. In closing, the study will show that both the criminal justice and mental health systems benefit through jail diversion.

6 6 TABLE OF CONTENTS: CHAPTER PAGE I. Introduction.7 II. The Criminal Justice System 10 Law Enforcement.10 Corrections Courts...23 Probation and Parole 28 III. Mental Health Care History.. 35 Mental Health Care in Early America.35 Foundation for Institutionalization..36 Community Mental Health Movement...40 IV. The Mental Health System 40 Jail Diversion.42 Pre-Booking...43 Post-Booking...47 The Bexar County Jail Diversion Program..52 V. Conclusion.57 VI. References 60

7 7 Chapter I: Introduction In the early 1950 s and 60 s states began to close their public mental health hospitals in a process known as deinstitutionalization (Rivera, 2004). The idea to liberate persons from mental hospitals was a noble idea and part of the social changes of the times. The care and treatment of people that were institutionalized was questionable and forced institutionalization was seen as incomprehensible. This was the era of rapid change in mental health treatment and the heyday of the community health movement, which set in motion the closure of impersonal state hospitals and the return of the mentally ill to their families and communities (Marsh, 1994). However, the anticipated treatment in community health centers was not realized and resulted in the shift of many of the mentally ill from mental hospitals into the criminal justice system. The question of what to do with the mentally ill, especially those who violate laws, is not new as is evident in this statement recorded in the American Journal of Insanity in 1817, But the insane criminal has nowhere any home; no age or nation has provided a place for him, he is everywhere unwelcome and objectionable (Marsh, 1994, p. 1). The dilemma remains today as mentally ill persons, through their behavior, are often unwelcome in their home or community and subsequently find themselves arrested and in jail. This is not to oversimplify the plight of persons with mental illness, as it is a complicated social and medical issue with each individual and their families having their own personal experience. However, one can deduce from the definition of mental illness that a brain disorder may lead to behavior that can be criminalized. Mental illnesses are medical conditions that disrupt a person s thinking, feeling, mood, ability to relate to others and a diminished capacity for coping with the ordinary demands of life (National Alliance on Mental Illness [NAMI], 2011). Coping with the demands of ordinary life is challenging for those of sound mind and even more difficult for a person with mental illness especially those with serious mental illness. The number of Americans that have some degree of

8 8 mental illness is quite large. The National Institute of Mental Health (NIMH) reports that one in four adults or approximately 57.7 million Americans experience some type of mental health disorder in any given year; however, the main burden of illness is concentrated in those diagnosed with serious mental illness which occurs in about 6 percent, or 1 in 17 Americans (NAMI, 2011). The disruption in life caused by untreated mental illness may lead to a downward spiral of unemployment, homelessness, and self-medicating with alcohol and drugs. These circumstances leave the mentally ill, especially those with untreated serious mental illness, prone to involvement with the criminal justice system. It is acknowledged that there are thousands of persons in America diagnosed with varying degrees of mental illness and many of them end up in the criminal justice system. An estimated 11.4 million people are admitted to local jails every year in the United States and two million people are incarcerated in jails and prisons. Estimates indicate that 45 to 64 percent of those incarcerated in jails or prisons have some type of mental health problem (Mental Health America, 2001). These numbers represent persons who are taken to jail or sentenced to jail or prison; however, the criminal justice system involves much more than going to the county jail or prison. Mental health advocates posit that persons with mental illness are overrepresented in all parts of the criminal justice system; in their contact with law enforcement, in the courts, in jails and prisons, and in probation and parole caseloads across the country (Council of State Governments Justice Center [CSG Justice Center], 2006). This observation made by mental health advocates is shared with those in the criminal justice system as increasing numbers of mentally ill persons enter their system. Police arrest people with serious mental illness because few other options are available to handle their disruptive public behavior. Jail and prison administrators often struggle to treat and protect the mentally ill, judges grapple with limited sentencing alternatives for the mentally ill

9 9 who fall outside specific forensic categories, and probation and parole officers scramble to obtain scarce community services and treatment and struggle to monitor them with traditional case management strategies (Lurigio & Snowden, 2009). Advocates in the mental health system suggest that criminalization of the mentally ill is a consequence of a brain disorder and recommend treatment and care and the criminal justice system must accept into their system the mentally ill offender when no alternative is available (Torrey et al., 1992). The two systems have different agendas but share the commonality of dealing with the mentally ill and the collaboration between the systems would be beneficial, albeit the benefits would differ for each system. The benefits to the mental health system are incurred through treating the mentally ill and improving their place in the community and the benefits to the criminal justice system are public safety and cost savings. According to the CSG Justice Center (2006), there is no one solution to the problem of mentally ill persons involved in the criminal justice system; however, at each juncture of the criminal justice process, from before arrests to after release from jail, there are steps that criminal justice and mental health systems can take to improve their response to people with mental illness. The steps that are suggested are collaborations broadly referred to as jail diversion. According to Torrey (as cited in Steadman et al.), jail diversion programs should be set up to minimize the number of individuals with serious mental illness who end up in jail (p.1630). There are no identical jail diversion programs as each are created and developed specific to communities and their needs; however, one definition gives a general description of what jail diversion is. According to Florida Partners in Crisis (2010), the term "jail diversion" refers to programs that divert individuals with serious mental illness (and often co-occurring substance use disorders) away from jail and provide linkages to community-based treatment and

10 10 support services. Therefore, the individual avoids arrest or spends a significantly reduced time period in jail on the current charge or on violations of probation resulting from previous charges. Chapter II: The Criminal Justice System Criminal justice in the United States involves three interdependent agencies: law enforcement, courts, and corrections (jail and prison), operating at the federal, state, and local levels. Together, these agencies represent the criminal justice system (Caputo, 2004). The criminal justice system as a whole is costly to taxpayers at every level of government. Pustilnik (2005) states that responding to problems of mental illness principally through the criminal justice system imposes billions of dollars in costs annually to the public, estimating the annual incarceration costs alone of nonviolent offenders are approximately $5.95 billion. The amount of money spent goes up significantly when law enforcement and the courts are added into the cost. According to Bohm and Haley (2003), in 1999, local, state, and federal governments spent a total of $146 billion in direct expenditures for the civil and criminal justice systems. Collectively, law enforcement, corrections, and courts are each enormous systems, independent of one another, but interconnected just the same. Law Enforcement According to Steadman (1991), police involvement with the mentally ill is based on two legal principles; the police power function is to protect the safety and welfare of the public and parens patriae which involves protection for the disabled citizen. Police officers make contact with all citizens to include those with mental health problems and often time s individuals that are in a mental health crisis. Lamb, Weinberger, and DeCuir (2002) state that law enforcement agencies have played an increasingly important role in the management of persons who are experiencing psychiatric crises and police are often the first to be called to deal with persons with mental emergencies.

11 11 Police officers are tasked with responding to calls from the community, protecting citizens from harm, and upholding the law. Using their expertise and discretion they must decide if the circumstances warrant treatment or detention. It is clear that detention for minor disruptive behavior resulting from mental illness should not be a cause for detention in local jail; it is equally clear that very serious criminal behavior committed by persons who are seriously mentally ill warrants detention to accommodate criminal justice processing and community safety concerns (Steadman, 1991). Police officers that do not believe the person s behavior warrants arrest but recognize that some action must be taken are afforded another option through legislation provided in the health and safety code s written into states criminal code of procedures. States health and safety codes are relatively similar in all states and primarily guide law enforcement officers in emergency detention of individuals exhibiting harmful behavior. The Texas Health and Safety Code (2011) authorizes peace officers to take a person into custody if the officer believes the person is mentally ill and because of that illness there is a substantial risk of serious harm to the person or to others. If emergency detention is necessary, the person must then be taken immediately to the nearest mental health facility. The facilities that are intended to accept the citizens brought in by police officers are often unable to accommodate them because they are overcrowded and are forced to turn them away. Funding is always an issue with public amenities and mental health facilities are no exception. Budgets are being cut nationwide and many states are cutting budgets that fund mental health facilities. According to Torres (2011), in Texas, the Department of State Health Services has proposed an $80 million cut that could affect the state s 39 publicly supported community mental health centers. Many Texas cities may be affected and one that could see cuts include El Paso Mental Health and Mental Retardation (MHMR) which serves about 7,000 people and relies on $26 million in state money; without this funding, local leaders fear that a funding gap will crowd

12 12 El Paso s jails with the mentally ill (Torres, 2011). Budget cuts to mental health centers exasperate an already strained program. When community mental health centers are full it forces the police officer to take their detainee to a hospital for treatment and in some instances to jail. El Paso County Sheriff s Deputy A. Becerra is a member of the El Paso Inter Facility Task Force, a committee comprised of local law enforcement and mental health professionals and associates that is tasked with creating a jail diversion program in El Paso, Texas. Deputy Becerra stated that when the mental health facilities don t have room available they take emergency detention detainees to one of the six local hospital emergency rooms. The problem with this is that emergency rooms are already overloaded with patients with physical injuries and other medical conditions. Persons in a mental health crisis just do not fit in and usually have to sit there and wait to be seen. Deputy Becerra said that the hospital will contact MHMR and a representative will go to the hospital to evaluate the person. Sometimes the person will be referred to get additional treatment and sometimes they will be released after a few hours, it just depends (personal communication, October 26, 2011). This practice burdens already crowded emergency rooms and does not provide immediate care to the detainee. Based on the two legal principles of public safety and protecting the disabled citizen, police officers have a duty to act whether it is through emergency detention or jail. K. G. Jones, a detective and 23-year veteran with the El Paso Police Department, recalls emergency room doctors refusing to accept mentally ill detainees because nothing was wrong with them. This, he said, left me no other choice but to book them into jail on misdemeanor charges, because at least it would get them off the street and get them some kind of help (personal communication, October 29, 2011). Police officers may find the mental health option to be problematic. The problems associated with the mental health option for police are the long waiting periods in emergency rooms during which officers cannot attend to other duties. Health professionals may

13 13 question the judgment of police and refuse admission, or they may admit for only a brief hospital stay a person that just a short time before constituted a clear menace to the community (Lamb & Weinberger, 1998). The two scenarios provided by Deputy Becerra and Detective Jones indicate how a jail diversion facility specifically designated to accept emergency detainees brought in by police officers, staffed with mental health professionals and security, would be most advantageous. According to Steadman (as cited in Reuland, 2004), the best diversion model is one that has a single point of entry, a no refusal policy, and streamlined intake for police, all of these features make the service police-friendly and improves service delivery to the mentally ill. The diversion facility would ensure swift assessment and treatment, maintain public safety, and divert the detainee from the criminal justice system. Cost savings to law enforcement is translated in personnel and service. As stated, patrol officers are responsible for public safety and upholding the law. However, law enforcement administrators are tasked with the fiscal responsibilities and managing their agencies. According to Bennett and Hess (2004), in most law enforcement agencies budgets, salaries and wages account for the largest expenditure, typically 80 to 85 percent. A factor that is relative to law enforcement and cost savings is the concept that police are most effective when they are out in the community and available to take calls. Efficient use of personnel and providing timely service to the community are essential to law enforcement agencies. Costs must be managed if law enforcement agencies are to provide the services citizens expect and require (Bennett & Hess, 2004). Detective Jones time-consuming trip to the emergency room and subsequent trip to the jail, and Deputy Becerra s time in emergency waiting rooms were costly in time and in service to the community.

14 14 Corrections Marcia K. Goin, M.D., Ph.D., and president of the American Psychiatric Association, stated, Our jails and prisons have become the primary mental health care facilities in the United States today, this is a function these institutions are neither designed nor equipped to handle (The American Psychiatric Association, 2004, p. 1). Quietly but steadily, jails and prisons are replacing public mental hospitals as the primary purveyors of public psychiatric services for individuals with serious mental illness in the United States (Torrey, 1995). These bold statements are presented by professionals representing the mental health community and are shared by jail administrators. Reports from jail administrators from various county jails concur with the sentiment of the mental health professionals. E. Fuller Torrey, a research psychiatrist with NIMH, Neuropsychiatric Research Hospital in Washington, DC, conducted research and found that American county jails nationwide report that jails are overburdened with mentally ill inmates. Torrey (1995) found that county jail representatives from coast to coast shared a common theme: San Diego County jail assistant sheriff stated that his jail has become the bottom-line mental health provider in the county; Seattle s King County jail reported the jail has become King County s largest institution for the mentally ill; Travis County jail in Austin, Texas reported the jails psychiatric population rivals that of Austin State Hospital; Miami s Dade County reported, the jail usually houses more people with mental illness, more than any single institution or hospital in the county; and the Los Angeles County jail system stated that 3,300 of its 21,000 inmates require mental health services on a daily basis,; the basis for the claim that the

15 15 county jail has become de facto, the largest mental institution in the country. (pp ) Jail administrators have accepted that mentally ill inmates are a part of the jail population and have implemented systems to address their role as quasi-mental health facilities. There are three basic types of corrections agencies: jails which are run locally and are used to detain people while they await trial or for short sentences; prisons, run by states that provide long term incarceration; and community corrections agencies, such as probation and parole that supervise people in the community either in lieu of or in addition to jail and prison time (CSG Justice Center, 2006). By this definition all persons entering into this phase of the criminal justice system will be incarcerated in jail but not all of them will enter prison or be placed on probation or parole. According to Steadman (1991), when an apprehended person is transferred from the custody of law enforcement personnel to the custody of an officer in a jail, a significant criminal justice system boundary is crossed. The significance for the person being booked into jail is that at this point the options for the person are to post bail and be released with the promise to appear in court or wait in jail until they are scheduled for a court appearance. The significance for the jail is once the prisoner is booked into jail the county jail becomes responsible for their well-being and care and all the costs incurred with incarceration. The concerns of jail administration are the additional financial costs associated with housing mentally ill inmates by way of mental and medical health care, violent and destructive behavior, suicide watches, and the litigation concerns that present with each of these issues. Additionally, mentally ill inmates usually stay in jail longer than the general population adding to the cost of housing and opportunity for transgression to occur on the part of the inmate or jail staff.

16 16 When police bring their prisoners to jail the transfer of custody transpires through a process referred to as intake or booking. Once this process is complete, the prisoner is now referred to as an inmate and in the care of jail staff. It is at this point that jail staff screen for mental and medical health problems and suicidal tendencies. This was not always the case but experience, education, and litigation have established the screening process that specifically questions the inmate s medical condition, mental health history and suicidal tendencies. Borne through lawsuits costing taxpayers millions of dollars in punitive damages screening incoming inmates and subsequent care have become high priority for jail administrators. Both class action lawsuits on behalf of groups of mentally ill prisoners and lawsuits by individuals suffering from mental illness have resulted in large liability awards in specific cases (Farber, 2009). Jails are rife with potential lawsuits; excessive use of force and deprivation of rights are common jail lawsuits. However, lawsuits stemming from inadequate mental health screening and subsequent care are all too common and very costly. In addition to monetary awards for the plaintiff, facilities were ordered to write policies that would improve intake procedures and follow up care for the mentally ill. In the case of D. M. v. Terhune (1999), the state of New Jersey reached a wide-ranging $16 million settlement in a lawsuit over alleged inadequate treatment of mentally-ill prisoners and disability discrimination against them, it also ordered that all new prisoners were to receive a mental health assessment within 72 hours of their incarceration. This settlement is one of many that have spearheaded improvements in screening, assessment and treatment of mentally ill inmates. According to Ford et al. (2007), jails and prisons have a substantial legal obligation to provide mental health care for inmates although case law and statues have not provided a clear definition of what constitutes adequate mental health care.

17 17 To help guide jail administrators, mental health advocates have suggested minimum criteria to improve their intake procedure and continuity of care throughout their incarceration. The American Psychiatric Association (APA) has recommended that all jails provide at minimum mental health screening, referral, and evaluation: crisis intervention and short term treatment (most often medication); and discharge and pre-release planning (Steadman, Scott, Osher, Angnese, & Robbins, 2005). This recommendation requires cooperation between jail administrators and clinic staff and would ensure that care is given at multiple phases of incarceration. El Paso Sheriff s Office Jail Annex Director of Nursing, A. Pina, stated: We are obligated by law to conduct mental health screening covering aspects of mental health such as history of bipolar, schizophrenia, history of suicide and victimization. All inmates with any mental health disorder will be evaluated within 14 days of admission to the jail. After diagnosis a follow up is conducted within two months or sooner if the inmate requests one. In a crisis, most events of psychosis are treated with an injection and may be forced as applicable by Texas law. Short-term treatment is given by prescribing medication. Discharge planning is discussed and a form is given to them upon release that provides them with local clinics in the event that medical treatment is needed. We also provide a 3- day supply of medication when the inmate is released. The jail clinic and MHMR communicate about pre-release planning and share lists of clients to ensure continuity of care after discharge from the jail system (personal communication, November 3, 2011). Pina s assertion of care from intake and throughout incarceration is a testament to the jail s willingness to provide care and is commendable. It should be noted that providing these services is expensive. To achieve this level of care jails must invest in retaining

18 18 specially trained mental health care personnel and provide costly psychotropic medication during and after release. Some states have mandated jail standards that specifically address mental health screening and assessment to ensure the best practices and policies are in place to avoid lawsuits and to protect the mentally ill inmate. Texas is one state that has mandatory standards to which all county jails must adhere. The Texas Legislature created the Texas Commission on Jail Standards (TCJS, n.d.) in 1975 to implement a declared state policy that all county jail facilities conform to minimum standards of construction, maintenance and operation. The standards are general in language and allow each jail administrator to write policy and procedure to meet the minimum standards of operation. The commission dedicated a chapter to the standards that must be met regarding mental disabilities and suicide prevention. TCJS (n.d.) approved a plan, dated March 31, 1997, that ordered each sheriff to develop and implement disabilities/suicide prevention plan, in coordination with available medical and mental health officials. The plan requires provisions for staff training, intake screening, communication, special housing, adequate supervision, intervention and emergency treatment, reporting procedures for completed suicides, follow-up on policies following attempted or completed suicides, and screening instruments. In addition, it requires that during intake inmates will be checked against the Department of State Health Services system to determine if the inmate has previously received state mental healthcare. Not all jails are mandated by law to provide screening or care, but jail administrators that fail to implement the most basic care resulting in egregious neglect face costly law suits. Dona Ana County, New Mexico faced a lawsuit that was filed on behalf of jail inmates who alleged the county jail failed to provide mental health care. Dona Ana County officials settled a class action lawsuit with 14 jail inmates, who alleged the county routinely failed to

19 19 provide adequate mental health care to its detainees in 2006 and 2007, costing the county $400,000, and forced the jail to make a number of changes to polices including new mental health care staffing and monitoring of inmates mental condition (Alba, 2010). The Las Cruces Police Department, in Dona Ana County, was also named in the lawsuit. According to Alba (2010), the plaintiffs claimed the police departments practice was to use the jail as a de facto mental health care holding facility for mentally ill residents who had not committed a serious crime, the lawsuit ordered the department to provide police officers training in crisis intervention and asked that officers seek options other than arrest for people who seem to have a mental disability. Police departments and jails should not ignore the need for police training or the care of inmates with mental illness that are in jail; however, the community at large should be aware of how their tax dollars are being spent by city and county run departments. Dona Ana County spokesman Jess Williams said, Counties are obligated by law to run jails and recognize the reality of the increased responsibilities and costs of providing social services, but the public should know that the funds required to provide these services are funds that cannot be used for other county programs and services (Alba, 2010, p. 1). The lawsuit resulted in training for police officers and suggested that officers seek options other than arrest and jail but did not provide the officers with any other options. Jail diversion is an option that would provide an alternative facility for the trained police officer to take a mentally ill person in crisis and reduce the number of mentally ill inmates needing costly care in the jail. It is clear from the Dona Ana County Jail and the City of Las Cruces Police Department lawsuit that although they are separate agencies and their missions are different they are a part of the criminal justice system and costly lawsuits are not conducive to either agency or the taxpaying citizens. It is evident that jail administrators consider their jails as miniature

20 20 psychiatric hospitals and many jail administrators have accepted that mentally ill inmates are and will be a part of their population. In 2000, nearly 95 % of all state adult correctional facilities screened inmates for mental health problems, and of the nation s 1,558 state, public and private adult facilities, 1,394 reported that they provided mental health services to their inmates (Rivera, 2004). With the majority of jails and prisons participating in mental health services they do so at an exaggerated cost. Research indicates that it costs less to house a person in a jail diversion facility than to house a person in a jail or prison. According to Steverman and Lubin (2007), community mental health care can be costly, but it is far cheaper than incarceration, it costs around $26 a day to treat someone in a community mental health program, but it can cost more than $65 a day to keep them in jail. Cost shifting between mental health care and criminal justice systems is problematic. It is accepted that social services must be provided but deciding which system will fund the care and where the care is provided is challenging. Texas representative, John E. Davis explained, You can pay now or you are going to pay later and stated, we have to spend money up front for prevention, community services and support for people with mental health needs or you ll end up housing them in the prison system (Steverman & Lubin, 2007, p.20). There is credible research that attest to the higher costs associated with housing mentally ill inmates and the view that jail is not conducive to treating the mentally ill making compelling arguments for implementing jail diversion in communities. Care for mentally ill inmates costs the criminal justice system far more than caring for inmates without mental illness. Studies show that it costs approximately 75 % more to incarcerate individuals with mental illness than other inmates with the same charge (Cowell, Aldridge, Broner, & Hinde 2008). The cost of housing inmates is expensive in itself and the cost of housing mentally ill inmates drive that cost up even more. The American Psychiatric