And Justice for All: Families & the Criminal Justice System

Deinstitutionalization and Mental Illness

Until the 1960s lifelong institutionalization in state hospitals was the primary treatment for individuals with a mental illness like Malcolm X’s mother. Her isolation occurred for many reasons: the commonly held stigma that people with mental illness were more dangerous than the general population; a belief that individuals with a mental illness could only be helped in such restrictive settings, and a lack of resources at the community level (Kliewer, McNally, & Trippany, 2008). In the 1950s the first antipsychotic medication Thorazine was discovered and coupled with the subsequent passage of the 1963 Community Mental Health Centers Act (CMHCA) shifted support from lifelong institutionalization to community-based treatment. The CMHCA not only restructured how services were received but also who was to provide those services. No longer was treatment restricted to the medical profession. Therapeutic services to individuals with a mental illness were now assigned to a host of community based non-medical professionals. Additionally, increased civil rights were afforded to individuals with a mental illness and commitment statutes were refined, effectively restricting access to state institutions to the most severely impaired and/or dangerous individuals (Stubbs, 1998). Thus the era of deinstitutionalization began.

Advocates for deinstitutionalization expected the federal government to provide adequate funding for these new community-based mental health services. However, the money saved by limiting access to these expensive institutions was not transferred into additional community- based mental health services. Instead, the number of people who required services in the community far outweighed their availability. As a result of inadequate resources, the previously institutionalized were being treated by community based agencies, some of whom were ill-prepared or lacked sufficient training on the nature of mental illness and associated behaviors. In addition, community providers lacked the means to adequately treat these complicated mental health needs (Hurwitz, 2000).

The intended benefits of deinstitutionalization are apparent : independence and a chance at a better quality of life. However, the problems associated with deinstitutionalization are significant. Deinstitutionalized individuals often become homeless, isolated, and subsequently victimized on the streets while their symptomatic behaviors brings them to the attention of law enforcement officers (Kliewer et al., 2008).

Police and Individuals with a Mental Illness

The police are very often the first to respond to individuals with a mental illness in emotional or psychiatric crisis but are ill equipped to adequately respond (Lamb, Shaner, Elliot, DeCuir, & Foltz, 1995). Interventions with an individual with a mental illness use 87 percent more police resources than responses to individuals without a mental illness (Charette, Crocker & Billette, 2014). It is estimated that between 7 and 10 percent of all police calls involve an individual with a mental illness (Pinals, 2014). New York Police Department (NYPD) records reveal an average of 175 calls every day to respond to an ‘emotionally disturbed person.’ In addition to the frequency of the calls, police officers spend more time on these “mental disturbance” calls than they do on calls for burglaries, assaults, and traffic accidents combined (Cordner, 2006).

Most police encounters with individuals with a mental illness are occasioned by relatively minor nuisance offenses, and while time consuming, are not dangerous. However, police encounters with persons experiencing a more acute set of symptoms can result in volatile situations with risk of harm to both the responding officer and the individual. The Los Angeles Times reported that between 1994 and 1999, there were 37 incidents in which officers from the Los Angeles Police Department shot a mentally ill individual. Of those shootings, 25 were fatal (Berry & Meyer, 1999). Such fatal shootings have a profound impact not only on the victim’s family, but on the police officer involved and the community at large (Council of State Governments: Criminal Justice/Mental Health Consensus Project, 2002). While there are no national or state-level data available to calculate the rate at which these occurrences take place, a web-based search of “police shoot mentally ill” revealed news accounts of such events nationwide. These situations highlight the need for adequate training and/or mental health/police partnerships.

Without the support of additional training or access to specialized response programs, police officers have more negative attitudes toward individuals with a mental illness than toward the general population. Some of these attitudes include erroneous beliefs that individuals with a mental illness are always dangerous and violent, that they cannot care for themselves and that they need to be housed in a secure setting (Watson, Corrigan, & Ottati, 2004). A lack of understanding about mental illness by police officers, who use traditional police tactics when responding to individuals with a mental illness, can lead to the use of force (Watson, Morabito, Draine, & Ottati, 2008). Academy training to prepare police officers for handling individuals with mental illness varies from state to state but is widely regarded as insufficient. The initial training of new NYPD recruits lasts for 8 months yet only 12 hours are devoted to dealing with individuals in psychiatric crisis (Cordner, 2006).

The police most often encounter the mentally ill when they are called out to their aid or in response to the erratic, disruptive, or annoying behaviors and not necessarily because they are engaged criminal activity. Abram and Teplin (1991) state, “although American Bar Association (ABA) standards state that misdemeanants who are mentally ill should be diverted into the mental health system, in practice, they are often arrested” (p. 1036). Because many of these behaviors fit the definition of minor crimes, arrest is an available disposition choice for police officers (Teplin, 2000). Police officers are usually the initial contact with the criminal justice system for these individuals, often for low level offenses. Without training in how to intervene, there is a “disconnect in the process” (Teplin, 2000 p. 236). Appropriate police training, money and collaborative community support are needed to address this disconnect (Tucker, Van Hasselt, & Russell, 2008).

To a patrol officer, the successful resolution of a police encounter with a mentally ill person is one which at least holds through to the end of that officer’s shift. The immediate goal is a rapid resolution of the call and return to patrol service. Officers may feel compelled to detain the mentally ill person under two distinct circumstances; the individual is publicly ‘exceeding community tolerance for deviant behavior;’ and/or when there is likelihood that without official action, the behavior will not stop and they will have to respond again (Teplin, 2000 p.13). Under these circumstances the officer will either transport to the hospital emergency room or conduct an arrest. If the officer knows the individual and has had similar contacts with him/her in the past, an arrest may be more likely. This is particularly true if the officer had initiated a psychiatric evaluation in the past which appears to have made no impact on the individual’s behavior (Teplin, 2000). By ‘resolving’ this issue for a few hours, police officers could therefore be assured that they would not have to come into contact with that individual again during their shift. As a result of the lack of appropriate mental health treatment options, arrest may have become the default choice for officers who wish to resolve such a call quickly. Typically persons with a mental illness are arrested for misdemeanor offenses, often symptoms of their mental illness (Torrey, 1997).

Mental health professionals have referred to the arrest of individuals with a mental illness for their symptoms as the “criminalization of mental illness.” They note that these same individuals, previously treated by the mental health system, have instead been “shunted into the criminal justice system” (Teplin, 2000, p. 12). The probability of being arrested is 67 percent greater for individuals displaying symptoms of a mental illness compared with those who are not. Mentally ill citizens are therefore often being treated as criminals (Teplin, 2000). Police officers have considerable discretion when determining what their response to a misdemeanor offence should be. Without clear and available alternatives to arrest, police officers may feel that arrest is their only option. However, “substantial discretion in arrest decisions raises some questions about equal justice and without appropriate guidelines, similar behaviors could easily be described as criminal or psychiatric” (Cooper, 2004, p. 297).

Incarceration and Individuals with a Mental Illness

Tough on crime policies such as mandatory minimums, and three strikes laws, have increased the rate of incarceration in the US. Between 1980 and 2012, the number of individuals incarcerated in prisons grew from 319,598 to 1,483,900. When local jails were included, the number rose to well over 2 million people in 2012 (Bureau of Justice Statistics, n.d.). Punitive sentencing was prompted in large part by the perception, and the public’s fear, that serious and violent criminals were “getting off easy” (Biderman, 1995). In response to this public outrage, the likelihood that convicted offenders would serve time increased as did the length of time they spent once incarcerated (Tonry, 1992). While these policies promised increased protection for the public from serious and violent offenders, they also yielded high rates of confinement for non-violent offenders. Caught in the more punitive net, individuals convicted and sentenced for non-violent offenses increased more rapidly than the number of violent offenders (Gilliard & Beck, 1996).

In all three tiers of incarceration in the United States, inmates present with symptoms of a mental health disorder. In 2005, 60 percent of inmates in local jails, 49 percent of inmates in state prisons and 40 percent of inmates at federal prisons met the criteria for a mental health disorder (Bureau of Justice Statistics, 2006). Additional concern about individuals with a co-occurring disorder (both mental health and substance abuse) is well founded. The research on the jail population, which houses both men and women, suggests that up to 72 percent of jail detainees have a co-occurring substance use disorder (National GAINS Center, 2001).

Women are especially impacted by these criminalization practices. They have higher rates of mental health problems than their male counterparts in both the state prisons and local jails; 73 percent of women versus 55 percent of men in state prisons and 75 percent of women versus 63 percent of men in jails (Women in the Criminal Justice System, 2007). The impact of women’s incarceration for non-violent and drug related offenses cannot be overstated. The availability and quality of gender appropriate treatment in jails and prisons does not match the need. Additionally, families suffer due to the incarceration of women; “among female state prisoners, two-thirds are mothers of a minor child. For many women incarceration may last for a significant part of their child’s formative years, and in some cases lead to a loss of parental rights” (Women in the Criminal Justice System, 2007).

Individuals with a mental illness are often incarcerated because the community-based treatment programs are non-existent, at capacity, or the police don’t know how to access them. Police often arrest mentally ill individuals when treatment is not readily available. They feel that the individual needs to be confined because of the danger s/he poses (Abrams, 1991). Deinstitutionalization coupled with a lack of community resources therefore make incarceration a more frequent recourse. Short term misdemeanor custodial sentences are less expensive than lifelong hospitalization but these cost savings should be achieved by treating individuals in community based treatment and not during short term incarcerations.

In Pennsylvania, for example, “state hospitals cost $90-$100,000 per year per patient,” while in prison, “a seriously mentally ill individual is imprisoned and treated for around $35,000” (Human Rights Watch, 2003). It costs approximately $17 billion per year to house individuals with psychiatric disorders in jails and prisons at an average cost of $50,000 per person annually (Bureau of Justice Statistics, 2006). In addition to being costly, jails and prisons have now become the de facto institution in which mental illness is treated. In 2012, there were estimated to be 356,268 inmates with severe mental illness in prisons and jails. There were approximately 35,000 individuals with severe mental illness in state psychiatric hospitals. Thus, the number of mentally ill persons in prisons and jails was 10 times the number remaining in state hospitals (Treatment Advocacy Center, 2014).

Not only is the probability of being arrested greater for suspects exhibiting symptoms of mental illness but many are unable to make bail and remain incarcerated in jails pending trial. Arrestees with a mental illness are also detained because they are considered to be a high risk for release under personal recognizance (Teplin, 2000). People with mental illness are often charged by police with more serious offenses than non- mentally ill individuals arrested for similar behaviors (Hochstedler, 1987; Massaro, 2004). In addition, those with mental illness are frequently charged, convicted and sentenced more severely than others who have committed similar crimes (Massaro, 2004).

In 2002, the Council of State Governments Justice Center released a report detailing the outcomes and recommendations of their Criminal Justice/Mental Health Consensus Project. The report produced 47 policy statements intended to improve the criminal justice system’s response to individuals with a mental illness. The Consensus Project determined that individuals with a mental illness spend between two and five times longer in jail either awaiting trials or once sentenced than persons without mental illness (Council of State Governments: Criminal Justice / Mental Health Consensus Project, 2002). These offenders average sentences of 8 ½ years in prison which is 15 months longer than other offenders charged and sentenced for similar crimes. The largest differences in time served were among violent and property offenders. The mentally ill serve an average of at least 12 additional months for violent and property offenses (Ditton, 1999). In many cases, prisoners with a mental illness face additional criminal charges for behavioral infractions committed while in prison.

According to the Bureau of Justice Statistics (Ditton, 1999) 36.7 percent of mentally ill state prison inmates have been in fights since admission, compared to 24.4 percent of other prisoners. Similarly, 62.2 percent of mentally ill state prisoners have been charged with breaking prison rules, compared to 51.9 percent of other prisoners. Such rule violations, even if attributable to mental illness, are routinely punished without mercy as corrections officials feel they must apply the rules consistently if they are to maintain order.

The Clinical Impact of Incarceration on Mental Health

There is a significant clinical impact of ‘doing time.’ The culture in jails and prisons differ greatly from the therapeutic hospital milieu. Whereas openness and sharing of information is encouraged in a group home/ hospital setting, once incarcerated, these same behaviors can result in injury or even death. The inmates’ unwritten code of respect and strength can place the mentally ill inmate at increased risk (Treatment Advocacy Center 2014). Individuals with mental illness may wish to avoid being labeled as ‘crazy’ and so be reticent to take ‘psych’ meds. Without medications, individuals with severe mental illness can decompensate rapidly which can result in behaviors which can be interpreted as disrespectful and weak by other prisoners and put them at further risk of victimization (Rotter, 1998).

In addition to being labeled and stigmatized by fellow prisoners, the symptoms of untreated schizophrenia and paranoia can mimic non- compliance with authority. This in turn can prompt an inmate’s placement in solitary confinement for ‘observation’. Such sensory deprivation exacerbates existing symptoms and lead to significant distress among inmates with mental illness. Individuals with mental illness often have difficulty complying with the strict prison rules, particularly when there is little flexibility in their enforcement. Therefore those who cannot comply with the rules are disproportionately represented among prisoners in isolation or segregation (Haney, 2003). In addition to finding themselves in isolation, incarcerated individuals with a mental illness are also at increased risk of suicide. In Massachusetts, there were 18 inmate suicides spanning 2007-2011. This is more than five times the rate of suicides in the non-incarcerated Massachusetts population (Hayes, 2011).

In 1999, the state of New Jersey settled a class action lawsuit brought by prisoners with a mental illness residing in the state prison system. One expert involved in that suit noted that, “as a result of (the) disciplinary process that all but criminalizes the most common symptoms of mental illness as well as the lack of alternative housing facilities, mentally ill inmates are almost three times more likely to be found in administrative segregation than they are in general population” (D.M. vs. Terhun, 1999, p. 4). New Jersey settled the suit and agreed to spend $18 million a year to improve the correctional mental health systems in the state-operated correctional facilities (D.M. vs. Terhun, 1999).

In 2003, Human Rights Watch issued a report on prisons and jails in the U.S. and their treatment of inmates with a mental illness. Human Rights Watch is a nonprofit, nongovernmental human rights organization made up of more than 275 members around the globe. The report states that the prolonged solitary confinement of prisoners may amount to torture or other cruel, inhumane or degrading treatment and punishment (Human Rights Watch, 2003). The European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment, which has reviewed a number of prison settings akin to U.S. segregation and ‘supermax’ facilities, has noted that isolation can undermine reform and rehabilitation and can impair physical and mental health (Human Rights Watch, 2003). Forensic psychologist Keith Curry concluded that, “of the 68 mentally ill inmates reviewed for whom the length of stay could be roughly estimated from the medical record, the average length of stay in segregation appeared to be 5.2 years with a range of one month to seventeen years” (Curry, in Human Rights Watch, 2003, p. 153). In the same report, Dr. Terry Kupers identified another problem facing the mentally ill inmate: “Improper supervision and treatment can also leave the mentally ill vulnerable to each other. At the Phillips State Prison in Georgia in 2001, two prisoners who were mentally ill died violent deaths at the hands of other prisoners” (Kupers, in Human Rights Watch, 2003, p. 57). Additionally, Hans Tochs’ study of prisoners led him to conclude that suicidal prisoners can be easily pushed to their limit while pathologically fearful prisoners can regress into a psychologically crippling panic reaction (Toch, 1975).

Reentry and Individuals with a Mental Illness

If eligible for parole, mentally ill prisoners are also at greater risk than others of being denied. Concerned about their prison behavior and the mental illness itself, parole boards are reluctant to release them (Human Rights Watch, 2000). In addition, the lack of adequate community services makes it difficult for parole boards to develop satisfactory post-release supervision and treatment plans. Baillargeon et al., (2009) researched the association between co-occurring serious mental illness and substance abuse disorders with parole revocation in Texas. This retrospective cohort study included 8,149 inmates who were released over three months in 2006. Those with mental illness alone (no substance abuse) demonstrated no increased risk of having their parole revoked on a technical violation or new criminal charges. However those with a co-occurring disorder had a substantially increased risk of having their parole revoked on a technical violation or as the result of a new set of charges (Baillargeon et al., 2009).

Given the lack of available community services, families are often left to navigate the reentry process for their loved ones upon release. Their support is needed for reintegration to be successful and can include assistance with housing, financial and emotional support. As a result of the stigma associated with mental illness, negative consequences for the family include being blamed, shamed and avoided which can lead to social isolation and withdrawal. If the family resides in a resource poor community, accessing treatment is difficult and can require transportation that may not be available. In addition, stigma around mental illness can make it difficult for family members to access the necessary resources (Gela & Corrigan, 2015).

In sum, incarceration impacts individuals with a mental illness in profound and disturbing ways. Once incarcerated, the mentally ill spend more time in jails and prison than their non-mentally ill counterparts, spend increased time in segregation and are subject to further criminalization for their symptoms. Once discharged from incarceration, the road to reentry can be challenging and the burden of navigating the treatment options often falls on families. Police departments across the United States have begun to address these issues by developing jail diversion programming to shift low level misdemeanant offenders with a mental illness away from an arrest by offering mental health training for police officers and developing innovative jail diversion programming. There are clear and pressing reasons why the incarceration of low level nuisance mentally ill offenders should be avoided and diversion of the mentally ill should be a top priority. Jail Diversion Programs provide police with the tools which they need to effect a more humane and clinically appropriate resolution and more compassionate justice for the mentally ill.

Addressing the Problem: The Emergence of Jail Diversion

In 1999, the Council of State Governments (CSG) responded to calls for assistance from several states on how to respond to individuals with a mental illness who were coming in contact with the criminal justice system. In 1999, the CSG facilitated the first meeting of a small group of leading police and mental health policy makers from across the nation. Following this meeting a steering committee was created that developed and led an 18-month initiative with a wide range of stakeholder agencies including Police Executive Research Forum and the National Association of State Mental Health Directors. Together they developed policy and practice recommendations to improve the criminal justice response to individuals with a mental illness. The subsequent report produced by the Criminal Justice/Mental Health Consensus Project (2002) includes the result of weeks of meetings, surveys administered to governmental officials in 50 states, hundreds of hours of interviews with directors of innovative programs, and thousands of hours reviewing research, promising programs and legislation.

The Consensus Project recommends the development of partnerships between police departments and local mental health providers. In addition, policy statements recommend changes to increase the effectiveness of limited police resources. One of the many empirical findings of the Consensus Project report is that there is a direct link between inadequate community mental health services and the growing number of mentally ill who are incarcerated. Front line law enforcement practitioners and mental health advocates agree that individuals with a mental illness often come into contact with law enforcement as a result of the mental health system either having failed or as a result of individuals and their families being unable to navigate and access the treatment. Furthermore, members of the project agree that if those individuals with a mental illness actually received the services they needed, they would typically not find themselves charged with a crime, arrested or jailed (Council of State Governments: Criminal Justice/Mental Health Consensus Project, 2002). Budget constraints at the state and federal level have further impacted access to community based treatment, “since 2007, state budgets for mental health services have been cut by $2.2 billion. During that time, demand for community mental health services increased by 56%” (Asking Why? Reasserting the Role of Community Mental Health, 2011, p. 8).

Many police departments have responded to increased encounters between police and persons with a mental illness by offering expanded mental health training for officers. In states where police have shot and/ or killed mentally ill individuals, the mental health community has led calls for increased police training in responding to the mentally ill. The Memphis, Tennessee Police Department significantly enhanced their training practices after police officers, responding to a 911 call, shot and killed a mentally ill man in 1988. Memphis created around-the-clock specialized Crisis Intervention Teams (CIT). Officers assigned to these teams spent 40 hours training with representatives of the mental health system. Part of the training involved learning how to talk to ‘mentally disturbed people’ during standoffs and studying the effects of various medications. This CIT model has since been replicated in more than 50 law enforcement agencies nationwide (Council of State Governments: Criminal Justice/Mental Health Consensus Project, 2002).

Another model is the pre-arrest co-responder jail diversion program; designed to provide police officers immediate access to trained clinicians at the time that their discretion is called for. By providing an alternative disposition option for the police, clinicians can facilitate a therapeutic placement for the individual with a mental illness versus an arrest. With input from a trained clinician, police no longer have to shoulder the burden of making decisions without all the relevant information or resources at their disposal. If the clinician is available and responds to the scene, the officer can feel comfortable with an arrest diversion, knowing that the individual will be receiving appropriate and needed treatment and not simply ‘getting away with it.’ The officer is pleased to return to more serious police work; avoiding time spent arresting, booking and guarding the individual for a typically minor offence.

Jail Diversion Program Operations

On April 1, 2003, the Framingham Jail Diversion Program began. The Framingham JDP operates within the Framingham Police Department in three ways. The first is the on-scene assessment provided by the in-house JDP clinician, who is on the road during the shift on a ‘ride along’ with a police officer and co-responds to all calls involving the mentally ill. The second is through the annual in-service training program and orientation for new recruits. The third is through the monthly operations meeting in which members of the FPD (representatives from the patrol division, police administration and Chief’s office) and the JDP (clinicians and program director) discuss the day-to-day program operations, monthly statistics, difficult cases, and community updates.

Police Response to the Framingham Jail Diversion Program

The JDP has been unequivocally embraced by all of the officers at the Framingham Police Department. It is very common to hear officers say, ‘how did we respond to these kinds of calls before the JDP?’ Indeed, 96 percent of police officers in Framingham who have utilized the JDP clinician report that the JDP program is valuable (Abbott, 2011). Officers noted that because they are action oriented; they don’t want to get “tied up” with one mental health call for a long time. The presence of the JDP clinician expedites the resolution of these calls, freeing up the officer to respond to more serious ‘criminal’ calls (Perlman, 2004). In the words of one officer, “a weight is lifted off our shoulders” by the presence of the JDP (Perlman, 2004 p.10). Unfortunately, other police departments in the Commonwealth do not have the luxury of having clinicians at their side on the streets and do the best they can with the tools at hand. When responding to individuals who are mentally ill; without the benefit of specialty response programs, police officers often have had no choice but to arrest the mentally ill. The presence of the Framingham Jail Diversion Program had widened the number of options available to street officers on patrol which not only places a new tool firmly on their belts but undeniably benefits the members of the communities in which they serve.

Participant Response to the Framingham Jail Diversion Program

Individuals who have received Framingham JDP services, have been positive about the impact this has had on their lives. Prior to the program’s inception, unnecessary arrests for minor offences have placed these individuals in the criminal justice system, which has in itself created further barriers to wellness. These include reduced access to housing, employment and student loans (Hirsch, 2002). Family members have reported they were reluctant to call the Framingham police due to fear that their relative would be arrested for behavioral symptoms; and therefore only called when the situation was out of control. They now report that they feel better knowing that a social worker will accompany the police to their home and assist with accessing services for their relative in their greatest time of need.

The great promise of deinstitutionalization has all but evaporated and left behind an often fractured system of mental health care for those with the serious and persistent mental illness. Police officers have therefore been on the front line in their responses to individuals in psychiatric and emotional crisis, which they report feeling ill equipped to effectively manage. Jail diversion program models have sprung up around the country in an attempt to bridge this gap. The Framingham Jail Diversion Program appears to be delivering ‘compassionate justice’ to individuals who would have been arrested prior to the inception of the program. In addition to the reduction of unnecessary arrests, the program model ensures that acute crisis intervention services are available to the police when and where they need them. Delivering these critical services alongside the police reduces the usage of emergency departments and the associated costs. The Framingham community undoubtedly benefits from this more humane and appropriate response.

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