Decriminalization of SMI

People with SMI are so overrepresented in jails and prisons that carceral facilities are now referred to as the “new” asylums. When a person with SMI is unable to assist in their own defense or understand the proceedings, they may be found “incompetent,” also referred to as “unable to proceed” or “unfit for trial.” In those cases, it is unconstitutional for their criminal case to move forward unless their competency is restored. An individual often waits in jail for months before they can access competency restoration, which is not treatment but serves the limited purpose of rendering a person legally fit for trial. Those behind bars during episodes of acute psychosis are therefore often left without access to a criminal legal process or treatment while awaiting competency restoration. Backlogs in the competency restoration system have led to at least a dozen states facing class action lawsuits for keeping people with SMI in jail for unreasonable lengths of time.

The Bureau of Justice Statistics estimates that people with a diagnosis of schizophrenia or bipolar disorder make up 32.1% of the state prison population, despite representing approximately 3.5% of the United States population. People with schizophrenia spectrum disorders are 21.6 times more likely to have a history of incarceration than the general population.

Acute episodes of psychosis may include severe cognitive impairments, an inability to recognize symptoms or changes in one’s mental state (anosognosia), and aggressive behaviors as a response to frightening delusions or hallucinations. Those symptoms indicate a need for emergency medical care, but arrest instead of hospitalization is frequently what happens.

The reasons for a societal shift away from a medical response and toward a law enforcement response to SMI are complex, and include:

• A lack of accessible, affordable voluntary services.
• A shortage of appropriate crisis response services.
• Too few mobile crisis teams.
• Not enough acute inpatient or crisis stabilization beds.
• Lack of comprehensive insurance reimbursement, including through discriminatory policies like the IMD exclusion act which prohibits the use of federal Medicaid funds for people who receive care in mental health treatment facilities with more than sixteen beds.
• Unclear or restrictive legal pathways to treatment for people unable to seek or maintain treatment voluntarily because of their severe symptoms.

In communities without robust crisis options, law enforcement may be required to decide whether an individual should be left to deteriorate further, taken to a hospital, or arrested and booked into jail. Officers have even developed terminology for making a “compassionate arrest” or a “mercy booking” of a person with SMI to facilitate care access through the criminal system.

Normalizing incarceration as a typical pathway to mental healthcare is not only unacceptable, but calling this choice of action “mercy” is based on a false premise. Arrest can lead to criminal charges that remain on a person’s public record for life. Being incarcerated in jail adds trauma to an already traumatic life experience related to the SMI episode. Even in a best-case scenario, resources in a carceral facility cannot replicate comprehensive mental health treatment or individualized social services. In the worst of cases, jails and prisons are places where people with SMI experience further deterioration, accrue additional charges, or die from preventable causes like malnourishment.

Several diversion programs can effectively improve outcomes for people with SMI, including mental health court and assisted outpatient treatment (AOT).

Mental health court has a growing body of evidence supporting its use at reducing recidivism. However, eligibility often requires the individual to acknowledge their mental illness diagnosis and voluntarily accept treatment. Some jurisdictions require a plea of guilt. Mental health court additionally may impose punitive measures, including incarceration, for treatment nonadherence. While mental health court is helpful for some, its voluntary and punitive structure falls short of meeting the needs of many people with SMI and may require reform to help those with the most severe symptoms.

AOT is an outpatient treatment program with court oversight through the civil commitment system. When used to divert a case out of the criminal courts, charges are dismissed, preventing the accrual of criminal charges for behaviors attributable to symptoms of a mental illness. In response to nonadherence, treatment teams can increase outreach efforts and may order an emergency psychiatric evaluation. Evidence supports the efficacy of AOT at reducing arrests and incarcerations. However, research into AOT’s effectiveness at reducing recidivism in a diversion context is still limited.

Community-based crisis services are always preferable to criminalization. TAC accordingly supports investment in crisis beds and response teams to enable compassionate pathways to care. Most communities need to build or expand mobile response systems to better serve people who may require transport to a secure facility for medically necessary care. At the same time, existing teams and law enforcement cannot take compassionate action when there is no therapeutic place ready to receive a person experiencing an acute mental health crisis. Well-trained staff and available inpatient and crisis stabilization beds are necessities currently lacking in many communities.

TAC supports the development of alternatives to competency restoration for individuals with SMI who are charged with crimes but found unable to assist in their own defense due to the acuity of their symptoms. Alternatives may include court-supervised outpatient treatment, inpatient treatment, or residential services tailored to an individual’s needs. TAC supports diversion efforts based on medical need, not only the level of criminal charges. By diverting a person out of a criminal process and into treatment, states can end the costly churning between jails and state hospitals that contributes to bed shortages and long wait lists for competency restoration services. TAC does not support dismissal of charges without referral into an evidence-based treatment program.

As an alternative form of sentencing, mental health courts provide an evidence-based option to reduce recidivism and encourage treatment instead of incarceration and/or fines. Some programs need adjustments to make them more accessible for the sickest individuals. An emerging example in some areas is to utilize mental health court pre-adjudication, before a plea or trial process. A person who is experiencing such severe symptoms that they are incapable of recognizing their illness should not be required and is often unable to plead guilty. Admission of guilt requires a level of understanding and self-reflection that can be impossible without insight. TAC supports mental health court reforms to align with a pre-plea diversion model to allow mental health court support without a guilty plea requirement.

If a person successfully completes mental health court, they may be rewarded with reduced penalties and/or a cleared criminal record. If they fail, further punishments can be the outcome. Nonetheless, strict adherence to a treatment plan can be a struggle for people with poor insight because of anosognosia, the most common reason for treatment nonadherence. TAC supports reforms to emphasize a collaborative response, instead of criminal sanctions, for mental health court clients who have episodes of treatment non-adherence.