Keeping Chronic Mental Illness From Becoming a Criminal Offense

Last month I wrote about the Mental Health Parity law that requires insurers to provide equal coverage for both medical and mental health services. When health reform rolls out fully in 2013, many Americans with expanded access to private health insurance will have more equitable coverage for treatment of depression, attention disorders, addiction problems and other serious mental health ills. But parity laws that apply to private insurance will do little to advance the plight of the growing portion of our population that is seriously—and chronically—mentally ill, often homeless and increasingly showing up in the criminal justice system.

According to the Department of Justice, 14.5% of men and 31% of women recently admitted to jail have a serious mental illness. Applied to the 13 million jail admissions reported in 2007 (the most recent figure), the findings suggest that more than 2 million individuals with a serious mental illness may be locked-up annually. In many cases they cycle in and out of the criminal justice system; with a stop on the way to the emergency room or for hospitalization. It’s an expensive and futile exercise.

With all the emphasis on health reform and discussion centering on a vast overhaul of how we deliver, pay for and mandate medical care, the plight of the seriously mentally ill gets short-shrift. But that doesn’t mean there isn’t a real crisis in funding (especially at the state level) and treatment–or that there isn’t a wave of reform coursing through the mental health field. It’s just that without the loud voices of lobbyists from doctor, pharmaceutical and hospital organizations and powerful patient advocates, the mental health field is reform’s poor step-sister—beyond insurance parity, very few provisions in the Patient Protection and Affordability Act address chronic, serious, mental illness.

It is, in fact, the Justice Department (as well as courts at the state and county level), not Congress and not the Department of Health and Human Services that has taken initiative in dealing with these seriously mentally ill individuals. Born out of judges’ frustration with the lack of help available for the growing cadre of mentally ill defendants showing up at the bench, the first “mental health court (MHC)” was established in Broward County, Florida in 1997. The idea behind this and the subsequent MHCs that sprang up over the next dozen years or so is to move people with serious mental illness out of the criminal justice system and into monitored community treatment, without sacrificing public safety. There are now more than 250 mental health courts around the country—the majority limiting their cases to those accused of misdemeanors or non-violent crimes.

How well are these alternative court systems doing? There have been individual case studies, like this one by the RAND Corporation in 2007 that found that a Pennsylvania mental health court saved taxpayers $3.5 million over a two-year period.

But the mental health courts have been dogged by what Henry (Hank) Steadman, President of Policy Research Associates (PRA), a firm that conducts research on mental health services, calls “notorious idiosyncrasies.” These court programs differ in whether they accept those convicted of felons or just misdemeanors; the length of the mandated treatment; the inclusion of housing and vocational services and whether or not a participant’s criminal record is expunged after completing the program. According to a report from the National Center for State Courts, “There are as many mental health court models as there are mental health courts, and, aptly describing these differences practitioners proclaim, ‘when you have seen one MHC, you’ve seen one MHC.’”

In October, Steadman and other researchers from PRA published the first study to look at multiple disparate courts (two in California, one in Minnesota and another in Indiana) and to measure how successful they were at keeping the mentally ill out of the criminal justice system and steering them toward mental health services. The study, which appeared in the Archives of General Psychiatry, included one group of offenders that was referred to MHC programs while the other was given “treatment as usual;” jail time and probation without psychological counseling or mandated treatment programs.

Results were not staggering, but they did show a positive effect. Some 49% of mental health court patients were re-arrested in the 18 months after starting the mandated programs, compared with 58% of those in the traditional system. The average number of jail days increased for both groups, but for those who went through the MHCs the rise was just 12 % (from 73 days in the 18 months before to 82 in the 18 months after entering the alternative court system.) For the group who received “treatment as usual” (mainly jail time), there was a 105% increase in number of incarceration days.

Interestingly, graduates of the Minnesota MHC showed no lowering of rates of re-arrest or days in jail when compared to those who were not referred to the program. But in a separate study of just that site, researchers found that mentally ill participants who spent a longer time in the treatment phase and received housing as part of the program actually did show significant improvement.

To Ira Birnum, legal director of the Bazelon Center for Mental Health Law this is an important finding. He, like many mental health advocates, believes that mental health courts—although well-intentioned—shouldn’t be taking the place of an effective mental health system. He notes that mental health courts criminalize mental illness by using the court system—and a conviction—as the best conduit to comprehensive services. “Most misdemeanors don’t actually lead to prison sentences” says Birnum, noting that he’s seen some people who've been sent to MHCs and basically coerced into pleading guilty to minor crimes like loitering. The result is that they no longer can get work or government housing because of their police record.

In a 2006 report, Bazelon looked into the growing number of MHCs and found that; “Mental health courts may provide immediate relief to criminal justice institutions, but alone they cannot solve the underlying systemic problems that cause people with mental illnesses to be arrested and incarcerated in disproportionate numbers.” The report likens these programs to “outpatient commitment,” compelling an individual to participate in treatment under threat of going back to jail. “However, the services available to the individual may be only those offered by a system that has already failed to help,” the report continues; “Too many public mental health systems offer little more than medication and very occasional therapy.”

A study in the journal Psychology, Public Policy and Law in November found that criminal offenders with a serious mental illness get first arrested early in life—often in adolescence—and persist over time. The factors that are most related to multiple arrests; “homelessness, a co-occurring substance abuse diagnosis, fewer mental health outpatient service contacts and more mental health emergency room/inpatient contacts.”

The answer, says Birnum, is to direct more resources toward creating a robust mental health system that provides intensive community-based services including housing, vocational training and direct outreach early on; before an individual is arrested. Currently, the police in many places are attuned to the fact that the only way to get many of these folks access to these types of services is to arrest them, he adds.

To start, advocates recommend that mental health courts only accept felons, with mentally-ill individuals who commit misdemeanors being sent to “pre-booking diversion programs” that get them access to services before arrest. One such successful program for felons operates in New York City. Begun in 2000, the Nathaniel Project was the city’s first alternative-to-incarceration program for felony offenders with serious and persistent mental illness. In 2003, the project formed an Assertive Community Treatment team (ACT team) made up of clinicians who have training and experience in psychiatry, mental health, nursing, social work, substance abuse treatment, peer support, employment and criminal justice. The program provides supportive housing too. The ACT concept—which is available to clients 24-7—is now considered the most promising intervention for those who are seriously mentally ill and veering toward crime.

The Nathaniel ACT has produced measurable results with a recalcitrant population: 72% of participants receiving service at any time between 2003 and 2006 had no subsequent re-arrests, and 82% had no further criminal convictions, during a study period that averaged 19 months following release to the program. Many of these people had been in prison or hospitalized numerous times before being arrested and starting the program. But it doesn’t come cheap—a program that includes housing and an ACT team can cost $40,000/participant (less than the cost of incarceration for a year or hospitalization, but about $10,000 more than some of the more comprehensive MHC programs.)

Funding for mental health services has, in real dollar terms, been actually dropping in the several decades since insane asylums and other long-term care institutions were emptied of their patients. And that remains the biggest barrier to good intentions. Take the case of Kansas. A recent article in the Kansas City Star detailed a 19-month study that found that 17 percent of those booked into the Johnson County (a fast-growing metropolitan area in the northeastern part of the state) jail were mentally ill. A review of all Johnson County jail bookings in the last five years found that about 30 percent of 7,400 inmates had at some point been served by the county’s Mental Health Department. The report included three dozen recommendations for keeping mentally ill people out of jail, and noted that treating the mentally ill is far preferable and cheaper than incarceration. But the article also added that most of the recommendations are unlikely to receive funding; Kansas cut $1.7 million from the Johnson County mental health budget in the last two years, and a new proposed budget would cut it $1.5 million more.

In the face of declining budgets, the long-term solution to the problem of the chronically mentally ill—as it is for “medical” health reform—will require a fundamental shift in how the system is designed. For those patients suffering chronic ills like diabetes, asthma and heart disease, for example, health reform emphasizes moving away from urgent care and fee-for-service and towards creating medical homes and accountable care organizations that promote prevention and well-coordinated care. The goal is to avoid more expensive—and traumatic—alternatives like visits to the emergency room and frequent hospitalizations.

In mental health, reform is also taking place—albeit at a slower pace and with far less fanfare. The goal here, says Birnbum, is to realize a “radical view of community integration.” This is not very different from the idea of creating medical homes and ACO’s—but in this case evidence is showing strong benefits in providing supportive community housing and teams of professionals (psychiatrists, vocational specialists, social workers, nurses, etc.) who interact directly with patients on a weekly or monthly basis. The goal; keep the mentally ill out of more expensive—and catastrophic—alternatives like prisons, emergency rooms and hospitals.

The parallels between the mental health care system and the “body-oriented” health care system go further. A strong argument from reformers of both systems is that we don’t need to spend more money on care; we need to spend it in ways that are less wasteful, more cost-effective and ultimately, offer better outcomes. For the seriously mentally ill a lot of funding still goes toward long-term hospital care, out-patient “daycare” programs that offer very expensive babysitting, some talk therapy and activities like finger-painting. Advocates insist that these funds would be far better spent on extensive mobile outreach, housing, and rehabilitative services like vocational training and drug counseling; ideally before the mentally ill become marked as criminals. For those in the mental health trenches, there's a long fight ahead.


11 thoughts on “Keeping Chronic Mental Illness From Becoming a Criminal Offense

  1. Mental health is fundamentally different than the rest of healthcare for 2 reasons:
    1) The patients generally dont believe they are sick
    2) Many have paranoid tendencies and refuse to take meds or see doctors.
    If you want to fix the mental health system, you have to fix those 2 problems first. Everything else is window dressing.
    I can offer a paranoid schizophrenic a nice warm house, free meds, free food, counseling, visits with group therapy, psychologists and psychiatrists but that wont help at all if he thinks the psychologist is trying to plant alien thoughts in his head. Offering the services wont do jack to help these people. You need close monitoring and enforcement mechanisms which current law makes very difficult to provide.
    Our current legal system says you cant force somebody into treatment until they pose a “direct/immediate” threat to himself or others. Thats an awfully high burden to meet.

  2. Hi, Jason,
    I agree; a big problem in treating the mentally ill is getting past the fact many don’t believe they are ill.
    But not all mental illnesses are psychotic disorders. When I worked as a correctional nurse, I saw as many depressives and borderline personalities as schizophrenics and bi-polars.
    What Naomi is talking about sounds to me more like a sort of hospice for mental health: combining easy access to support systems along with intensive community treatment, and a dedicated team for each patient that can be accessed before a crisis gets out of hand.
    Most medications used to treat mental illness have such unpleasant side effects, it is difficult to convince patients not to stop taking them. Yet the model is “treat ’em and street ’em”: there is no money for counseling.
    I think it is high time to change the “imminent danger to self or others” requirement in the case of those who are mentally ill. Rather, since the severely mentally ill are not capable of making informed decisions, the theory of implied consent should be applied in some cases; I don’t know of any severely mentally ill person who WANTS to be in a psychotic state. They simply fear the cure as worse than the disease.
    A new model that does not rely on the ingestion of toxins might be a step in the right direction.

  3. Hi Naomi:
    There is more to this than what is stated by the Rand report which I will get into later when I get home.
    – Who are the experts deciding who is mentally ill or suffering from a disorder mimicing mental illness and causing a lack of cognizance.
    – Sentencing guidelines have been over bearing and have committed many nonviolent offenders to prison or jail for long terms.
    – The court system is adversarial and much is spent on the win rather than a determination of what caused it.
    – Prisons are not a place for the mentally ill.

  4. Has anyone studied the effects on non-mentally ill inmates and guard staff of being incarcerated with a high percentage of often untreated mentally ill people? This has to be stressful and perhaps damaging to everyone, not just the ones who were ill when they came in.

  5. The problems are many.
    In an encounter with the police, 28% of suspects without mental disorders are arrested; 47% of suspects with mental disorders are arrested.
    Between 15-20% of people in jails and prisons are severely mentally ill.
    The three largest mental health providers in the United States are: Los Angeles County Jail, Rikers Island Jail (New York City), and Cook County Jail.
    Severely mentally ill people in prisons experience more victimization, discipline, and suicide than other inmates.
    Severely mentally ill people in prisons have been given longer sentences, they get less parole, and they serve more time for the same crimes compared to other inmates.
    Contrary to widespread belief, most of the crimes committed by severely mentally people are not violent. Most of them are too disorganized to do a good job of intentionally hurting people. They screw up and get caught. But, the exceptions get all the press coverage.
    Severely mentally ill people, in spite of their disabling conditions, are often released from prisons without connection to treatment, or without enough medications to last until they can get to an appointment, and (surprise!) they have higher rates of recidivism.
    With the closure of state mental hospitals, there was woefully inadequate investment in community treatment resources. Consequently, it is often not possible to get into treatment, even if you want it badly, before symptoms hijack any chance for managing the illness well enough to stay out of trouble. Because of the illnesses, some severely mentally ill people do not appreciate that they need treatment, but that is another whole topic.
    In this recession, cuts to state mental health services have been brutal, and that is just so far.
    Psychiatric hospitalizations have fallen dramatically, for example in one Ohio County from 157 per 100,000 in 1988 to 17 per 100,000 by 1996.
    One third of the homeless are severely mentally ill.
    Severe mental illnesses are biologically-based chronic brain diseases.
    Treatment for these diseases is so fragmented that little or no attention is paid to other health issues. People with severe mental illnesses die 25-30 years younger than the rest of the population. This is third world life expectancy for Americans because they are sick and disabled.
    Mental health courts, with the backup of Assertive Community Treatment (ACT), are very effective. Many people are stabilized and rehabilitated, and the recidivism is much lower than what otherwise happens. However, it would be better if people didn’t have to get into trouble in order to be treated for their illnesses.
    It is very hard to put mental health courts together, partly because the added expenses are in the underfunded public mental health systems, and the savings are in the criminal justice system. We incarcerate more people per capital than any other country, but if you empty their beds, they just let someone else in from the queue. In most successful and sustained mental health courts, both sides have worked hard to solve this problem. As you point out, a court that can offer only “ordinary” (i.e., inadequate) services to these sickest of patients (who have already been failed by the mental health system) will not be successful.
    We can do better than this. The public does not believe that people are responsible for having these diseases, and they strongly believe that it is the government’s responsibility to provide treatment for this group of people.
    It is our system of caring for these people that is criminal.

  6. Noni:
    To answer your question, it is quite the opposite. The general population, the guards, and the prison setting in general abuse the mentally ill.
    To the rest .. . understand the court system. It is adversarial in which seeking the truth and subsequent justice takes a second place to getting “the win” and getting the notch on their gun.
    In many states, the mentally ill, and those who suffer from disorders mimicing mental illness which also cause a lack of cognizance (automatism), are tried under insanity which is extremely difficult to win as the burden of proof falls upon the defendant till such time as their case is made. In the end, a defendant may be delared mentally ill but guilty and still receive the same prision sentence as a normalk defendant. The court does not explain the what a sentence can mean to a jury. In which case, the jury reaches a blind decison for the mentally ill.
    The Rand Report leaves much out. I do not know of any ADA who would have the medical training of a psychiatist and neither would a forensic (trained to testify legally) psychologist who might understand the complexity of CPS disorder and its impact on cognizance during a seizure. Yet this is the scenario we thrust the mentally ill into . . . an environment which claims they had control of their faculties and were able to recognize the difference between right or wrong.
    Sentencing guidelines give judges little leeway in sentencing people muchless the mentally ill. If such guidelines were loosened for the nonviolent:
    “Table 4 suggests a modification of sentencing guidelines of ~50% in sentencing guidelines at the federal, state, and local level would result in reductions in cost of ~$17B with the greatest impact being felt at both a state and local level, the governments restricted by budgeting mandates. The changing of minimum sentencing, truth in sentencing, and three strikes guidelines for non-violent crimes would contribute significantly to increases in prison population.”One in Thirty-One Adults”
    In the end, enough money could be saved to begin to institute mental health facilities which go beyond that of the mental hospitals which existed such as “Dunning” in Chicago in the fifties.
    Canada takes the issues out of the courts and such cases go to a review board of “medical” experts who ascertain why the defendant does what they do. While not perfect, this does have the impact of placing such issues in front of a panel of medical experts rather than the controversy of whose expert is most qualified. (I watched one case in which a forensics [trained to testify in court] psychologist was given preference as an expert over a psychiatrist with neuorological training in a case dealing with a brain disorder. The psychologist had two hours of didatic trainiing on the topic. It was the prosecutor who railed on the significance of forensics as opposed to medical training.)

  7. Crime and mental disorder are difficult to relate to each other. Both are difficult to define, heterogeneous, and partially determined by culture. Most studies of mental disorder and criminality have been based on unselected groups of discharged male sychiatric patients, differing proportions of whom have suffered from schizophrenia. In these studies, arrest rate was taken as a measure of criminal behavior, and comparisons were made at best with the general population.

  8. I hear what you saying Naomi. My close friend had some incident recently due to his sever bipolar disorder. People usually don’t understand him and gets in trouble very easily. He is better and less expensive for the government to let him be on his own or in doctors hand than lock him up.

  9. Many of the risk-based interventions rely on strategies of exclusion – they are based on the notion that we can identify persons who are risky, and protect ourselves from them by locking them away, or prohibiting them from living near us, or somehow making their presence in our proximity obvious. These strategies go counter to current theories that inmates being released from prison, need to be successfully reintegrated into society.