In Broward County, Florida, Judge Ginger Lerner-Wren presides over what is believed to be the nation’s first county court specializing in offenses committed by persons with a mental illness. In Memphis, Tennessee, members of the municipal police department’s Crisis Intervention Team (C.I.T.) respond to more than 7,000 incidents each year involving persons with mental illness, often resolving the situation on the scene or diverting the individual to an emergency services facility rather than making an arrest. Community mental health providers serving several metropolitan areas in Connecticut participate in a state-funded program to identify persons with mental illness and/or substance use disorders in local courts and jails to ensure that they receive timely and appropriate services.

These and similar programs across the nation are providing services to individuals with mental illness who are involved with the local criminal justice system. Although only a small minority of persons with mental illness are ever incarcerated, more than half of all adults in jail have a mental illness or substance use disorder.¹ The likelihood that a person with mental illness will be incarcerated increases dramatically if the person has a co-occurring substance use disorder. An influential study of jails in Cook County, Illinois, for example, found that 72 percent of incarcerated persons with a current “severe mental illness” also had either an alcohol or substance use disorder. For those in jail who had experienced a severe mental illness at some point in their lives, the rate of co-occurring substance use disorders was 94 percent. ²

Many individuals with mental illness or co-occurring mental illness and substance use disorders are incarcerated not because they have committed violent or other serious crimes but because law enforcement and the courts are not prepared to handle incidents involving disruptive behavior stemming from their illness or because there is simply nowhere else to take them. “There are fewer and fewer resources to serve these individuals,” notes Bonita Veysey, Ph.D., Senior Research Associate at Policy Research Associates (PRA) in Delmar, New York. “There are fewer resources for the indigent—less public care. One agency that cannot refuse to respond to persons in crisis is law enforcement.”

Increasingly, however, agencies spanning law enforcement, corrections, courts, mental health and substance abuse are cooperating to ensure that incarcerated persons with serious mental illness or co-occurring mental illness and substance use disorders receive the services they need while in jail and, when appropriate, are diverted from a court or detention center to a community-based mental health center.

Mental health collaborations with local criminal justice systems, according to experts, fall into two primary categories: (1) “pre-booking” interventions that usually occur at the scene of an incident and (2) “post-booking” (pre-adjudication) interventions that take place once a person has been arrested and/or incarcerated. Some communities use one approach or the other; a few, such as Lane County, Oregon, and Albany County, New York, provide both pre- and post-booking interventions.

Within these broad categories, there are a range of variations, according to Martha Williams Deane, M.A., director of a PRA pre-booking diversion research project funded by the National Institute of Justice, and Lisa Keller, J.D., of the National GAINS Center for People with Co-Occurring Disorders in the Justice System, a federally funded resource and system change center.

In communities such as Memphis, uniformed police officers receive special crisis intervention training that enables them to respond to incidents involving persons with mental illness and co-occurring mental illness and substance use disorders. In Birmingham, Alabama, and Lane County, non-uniformed mental health professionals employed by or under contract to local law enforcement agencies assist patrol officers in responding to such incidents. In Albany County, mobile community mental health center employees respond to such incidents as part of a team with police; while in nearby Rensselaer County, New York, mental health staff based at community mental health centers cooperate with police in responding to such incidents. These are a few of the varied treatment and diversion approaches now being implemented throughout the country.

To identify exemplary practices in the diversion and treatment of persons with co-occurring mental illness and substance use disorders in local criminal justice settings, two agencies within the federal Substance Abuse and Mental Health Services Administration (SAMHSA)—the Center for Mental Health Services (CMHS) and the Center for Substance Abuse Treatment (CSAT)—are providing funds for an ambitious three-year knowledge development and application program involving nine sites that offer community-based mental health and substance abuse treatment in lieu of arrest and/or incarceration.

The program’s goal, according to Susan Salasin, Director of CMHS’s Mental Health and Criminal Justice Program, is “to find out what programs and strategies work best under what circumstances.” CMHS and CSAT jointly provide $6 million per year for the program.

Research Triangle Institute of Raleigh, North Carolina, the program’s coordinating center, is responsible for data gathering and evaluation. In addition, SAMHSA funds the GAINS Center to provide consultation and technical assistance to program sites.

Changing the Way Police, Consumers, Family Members and Mental Health Providers Interact

More than a decade ago, the Memphis Police Department and the University of Tennessee Medical Center pioneered the Crisis Intervention Team (C.I.T.) program. Under the Memphis model, which has been adopted by a number of communities around the country (including Waterloo, Iowa; Albuquerque, New Mexico; Portland, Oregon; and Seattle, Washington), specially trained police officers are on call during their regular patrol duties to respond to incidents involving persons with mental illness or co-occurring mental illness and substance use disorders.

In some cases, C.I.T. officers responding to such incidents are able to resolve matters on the spot without taking further action. In others officers transport an individual to an emergency services facility for evaluation, follow-up services and referral. Once the police officer brings the consumer to the emergency services facility, mental health staff assume responsibility for providing services to the consumer, enabling the police officer to resume patrol duties.

Such cooperative and speedy handling of cases is a key factor in garnering law enforcement support for the program, according to Lt. Sam Cochran, C.I.T. Coordinator for the Memphis Police Department. The C.I.T. program, he notes, has dramatically reduced the amount of time that Memphis police officers spend waiting at an emergency services facility during the intake process.

Police officers who are accepted into the Memphis C.I.T. program take part in an in-depth, 40-hour training program that includes presentations by mental health clinicians from the University of Tennessee Medical Center and other local mental health providers, as well as veteran C.I.T. officers. During this training period, officers meet and talk with consumers and family members in their homes, at community mental health centers and at the nearby state psychiatric hospital.

This person-to-person interaction promotes greater understanding and empathy among police officers for consumers and their families, Lt. Cochran notes. What makes the C.I.T. model so effective, however, is not simply the initial training activities but the day-to-day experiences of officers, consumers and family members. “A sense of trust develops among all parties,” Lt. Cochran explains. “It seems to happen by osmosis.”

Extending Mental Health Services to the Criminal Justice System

Every morning, clinical staff of local community mental health providers funded by the Connecticut Department of Mental Health and Addiction Services visit courts in Hartford, New Haven, Bridgeport/Stamford and New London County. They review the previous day’s arrest logs for the names of individuals who are current or past community mental health center clients and accept referrals from court officials who have received training in identifying persons exhibiting signs of mental illness or co-occurring mental illness and substance use disorders. Staff members then meet with these defendants in court to evaluate their mental health status and discuss options for obtaining community-based mental health services and other supports that could result in alternatives to incarceration.

With the client’s approval, the staff member meets with the public defender and other court officials to develop a release plan, which is then presented to the judge at the initial court hearing. In situations involving minor offenses, the judge may dismiss the case on the condition that the defendant participates in agreed-upon services. In other instances, the judge may withhold final disposition of the case for a period of time to ensure compliance with the release plan. When the judge requires an individual to remain incarcerated, program staff arrange for services to be provided in jail.

Gail Sturges, L.C.S.W., Director of Forensic Services for the Connecticut Department of Mental Health and Addiction Services, points out that the primary goal of the state program, which is also a participant in the SAMHSA-funded alternatives to incarceration initiative, is to ensure that persons with mental illness or co-occurring mental illness and substance use disorders who are arrested and/or incarcerated receive needed services. In some cases, this involves diversion to a community-based mental health program. In others it means providing services and ensuring continuity of care within the criminal justice system.

Clinical staff at the four Connecticut program sites work closely with law enforcement and the courts, Ms. Sturges notes. Some staff members are based in courthouses; others work at nearby community mental health centers. “We are sensitive not to intrude into the adversarial process,” she explains. “We don’t necessarily go to the judge and say, ‘Please release him.’ But we try to make sure that a person with a serious mental illness or co-occurring disorder has access to services whether or not he or she remains in jail.”

Even though program staff work collaboratively with the criminal justice system, Mrs. Sturges notes, their primary responsibility is to act on behalf of the consumer, not to serve as an adjunct to either the defense or prosecution. “We view our work as extending the front door of the community mental health system into the criminal justice system,” she observes.

Building a Bridge Between the Courts and Mental Health Consumers

Judge Ginger Lerner-Wren of Broward County, Florida, was appointed in June 1997 to preside over a newly established county court specializing in cases involving persons with mental illness. During the past 10 months, in addition to her regular duties as a county court judge in Fort Lauderdale, Judge Lerner-Wren has heard more than 200 cases involving individuals with mental illness who are charged with misdemeanors.

Most cases involve relatively minor charges such as trespassing, loitering and disorderly conduct. In some circumstances, however, the court hears cases involving persons with mental illness or co-occurring mental illness and substance use disorders who are charged with more serious misdemeanors such as battery.

Every day at 11:30 a.m., Judge Lerner-Wren stops regular county court proceedings to convene the special court. After making an initial determination about whether the case is appropriate for this court, the judge confers with a court monitor from the community mental health system, the public defender, the state’s attorney and others to gather information about the defendant and the case.

In some instances, the matter is immediately resolved with a voluntary referral to a community mental health provider; in others the judge grants a continuance while the defendant is evaluated at a community mental health center or an inpatient setting. During this period, the state’s attorney, the public defender, community mental health staff and the consumer and his or her family work together to develop a services plan to be presented to the judge.

According to Judge Lerner-Wren, who served previously as the plaintiff’s monitor in a federal class action suit involving the South Florida State Hospital, one of the court’s primary missions is to minimize the amount of time that persons with mental illness and co-occurring mental illness and substance use disorders spend in jail or in other interactions with the justice system. “We work very, very hard to ensure dignity and respect for those who appear before the court,” she points out. “There is a philosophical recognition that we are working toward the decriminalization of persons with mental illness."

Identifying Key Characteristics of Effective Programs

While there are many approaches to diversion and treatment in local criminal justice systems, effective programs appear to share several characteristics, experts point out. These include:

• Leadership and oversight by a broadly representative, culturally diverse task force whose members include representatives of law enforcement, the courts, consumer and family organizations, and mental health and substance abuse agencies. It helps if task force members are sufficiently high in their organizations’ hierarchies to institute needed changes.

• Coordination, cooperation and trust among agencies. Partners develop an understanding of and respect for each other’s mission, viewpoint and operations.

• Continuity of care to ensure that consumers receive services both while they are incarcerated and after returning to the community. Program staff work with consumers during the transition from incarceration to community services to ensure that they receive appropriate services.

• Integration of services among the mental health, substance abuse and criminal justice systems. Given the prevalence of co-occurring mental illness and substance use disorders among persons incarcerated in jails, there is a growing understanding of the need to integrate services in these three areas.

• Dedicated “champions” and “boundary spanners” who cross organizational and professional lines to engender commitment and enthusiasm and promote cooperation among individuals and organizations.

Promoting Accessible, Effective Community-Based Services

Jail diversion and treatment programs help not only to ensure that persons with mental illness and co-occurring mental illness and substance use disorders receive needed services and supports during and after involvement with the criminal justice system, but they also serve to highlight the need to increase the availability of comprehensive and effective community-based mental health services and supports. If, as many mental health and criminal justice experts believe, a shortage of effective, community-based services exacerbates the problem of persons with mental illness and co-occurring mental illness and substance use disorders becoming involved with the local criminal justice system, diversion and treatment programs can play a vital role in prompting action at state and local levels to ensure that these services are available and accessible.

¹The National GAINS Center for People with Co-Occurring Disorders in the Justice System. (Spring 1997). “The Prevalence of Co-occurring Mental and Substance Abuse Disorders in the Criminal Justice System,” Just the Facts. Delmar, NY: The GAINS Center. ²Abram, K., and Teplin, L. (October 1991). “Co-Occurring Disorders Among Mentally Ill Jail Detainees: Implications for Public Policy,” American Psychologist 46(10): 1036-1045.

In recent years, several states have enacted laws for the special psychiatric commitment of convicted sex offenders who are about to be released from confinement after having completed a jail or prison sentence. A 1990 Washington state statute has served as the template for legislation in many other states.

The law is aimed, in the statutory language, at "a small but extremely dangerous group of sexually violent predators...who do not have a mental disease or defect that renders them appropriate for involuntary treatment" based on general involuntary civil commitment law. It provides for the indeterminate commitment of "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence."

Today, seven states have laws similar to the Washington statute: Arizona, California, Illinois, Kansas, Minnesota, North Dakota and Wisconsin. All but one of these laws were enacted since 1994 and modeled on the Washington law. Minnesota's law, the exception, has been on the books since 1939. A number of other states are considering such legislation.

Historical Overview

In the United States, laws for the special commitment of sex offenders first appeared in the 1930's. Unlike the recent statutes, which provide for civil commitment after completion of a prison term, these early laws were designed to provide an alternative to imprisonment for persons found to be "mentally disordered sex offenders." The laws were grounded in the belief that "sex offenders were ill and psychiatrists could cure them."1 During the 1950's more than half of the states in the nation had special sex offender commitment laws. By the 1970's, however, the "optimism of earlier decades that psychiatry held the cure to sexual psychopathy no longer shone so brightly,"2 and these laws began to fall out of favor. By the mid-1980's, all but a few states either had repealed their sex offender commitment laws or had halted new commitments under the laws.

Resurgence of Commitment Legislation

Does the recent resurgence of sex offender commitment legislation reflect a new-found optimism about the efficacy of treatment? Not according to a report by the American Psychiatric Association's Task Force on Sexually Dangerous Offenders.3 Although the task force acknowledged that some sex offenders–those with a diagnosed paraphilic disorder–may be reasonable candidates for treatment, it questioned the notion that treatment is a primary purpose of the recent laws.

If treatment were the aim, the APA task force observed, commitment would not be delayed until offenders have completed their sentences. Moreover, the laws' reach would be narrower, targeting offenders with diagnosable mental disorders. The real purpose of the statutes, the task force concluded, is "preventive detention of offenders who have completed their criminal sentences. The medical model of long-term civil commitment is used as a pretext for extended confinement that would otherwise be constitutionally impermissible."4

Cautioning that "sexual predator statutes distort the traditional meanings of civil commitment, misallocate psychiatric facilities and resources, and constitute an abuse of psychiatry," the task force recommended that punishment and incapacitation be addressed through sentencing alternatives within the criminal justice system, not through involuntary civil commitment laws that "exclude adequate diagnostic and treatment considerations."5

Impact of Sentencing Reform

Recent support for the civil commitment of sex offenders, the APA task force noted, appears to be a by-product of sentencing reforms that have occurred throughout the country during the past decade, particularly the repeal in many states of indeterminate sentencing laws that prescribed lengthy prison terms for some crimes but also allowed for early release on parole. In their place, many states have enacted laws establishing fixed sentences with no possibility of parole. In these states, most offenders now serve somewhat longer terms than would have been the case under indeterminate sentencing, but some—high-risk offenders who in all likelihood would have been denied parole in the past—are released much sooner. "One obvious solution," according to the APA task force, would be to return to indeterminate sentencing.

Kansas v. Hendricks

Laws for the commitment of sex offenders have been controversial on legal as well as clinical grounds. Following a series of cases in which courts in different states expressed radically different views on the constitutional questions raised by these laws, the U. S. Supreme Court in 1997 agreed to hear the matter of Kansas v. Hendricks, a case involving Kansas' sexual offender commitment statute. The Kansas Supreme Court had struck down the statute on the ground that it violated due process rights. "The provisions of the act for treatment appear somewhat disingenuous," the state high court observed.

The U. S. Supreme Court, however, took a different view. In a 5-to-4 decision delivered in June 1997, the Supreme Court overturned the Kansas high court ruling, declaring the law constitutional. Writing for the majority, Justice Clarence Thomas dismissed the notion that civil commitment requires a showing of mental illness, or any mental condition defined or officially recognized by the mental health professions. Moreover, he rejected the argument that treatability was a prerequisite for commitment. "Where accompanied by proper procedures," he wrote, "incapacitation may be a legitimate end of the civil law."

In a separate, concurring opinion, Justice Anthony Kennedy agreed that the civil commitment of the offender in the case, Leroy Hendricks, was constitutional. However, he broke ranks with his colleagues in the majority by suggesting that meaningful treatment was, indeed, essential to the constitutionality of the Kansas law. "If the object or purpose of the Kansas law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext," he wrote, commitment would be unconstitutional. Expressing concern that the term "mental abnormality" may be "too imprecise a category" to serve as the basis for commitment, Justice Kennedy noted, "In this case, the mental abnormality–pedophilia—is at least described in the DSM-IV."

Because Justice Kennedy's vote was the tie breaker, his opinion limits the scope of the Court's decision. The decision, he wrote, "concerns Hendricks alone," suggesting that the case should not be read as a blanket endorsement of the Kansas statute. If a case arises involving an offender for whom treatment were shown to be a "sham or mere pretext," it appears likely that Justice Kennedy's stand with the majority would change, tipping the balance of the Court. The message for states crafting sexual predator commitment legislation, or implementing laws already on the books, seems clear: to avoid constitutional uncertainty, civil commitment should be reserved for people with a legitimate mental disorder and should be for the real purpose of treatment.

State Mental Health Agency Concerns

Since the Supreme Court rendered its decision in Kansas v. Hendricks, there has been renewed momentum for sex offender commitment legislation in many states, including Delaware, Georgia, Missouri, New Jersey, New York, Ohio, Pennsylvania, Tennessee and Virginia. Some states, however, appear to be reconsidering the issue in view of both its financial and clinical implications.

According to a survey of state mental health agencies by the National Association of State Mental Health Program Directors (NASMHPD),6 the annual cost of providing inpatient services in state mental health agency (SMHA) forensic units ranges from $60,000 to more than $125,000 per person, compared with $25,000 to $35,000 per person for inpatient services in state corrections facilities. Anticipated operating costs for proposed SMHA commitment programs range from $1 million a year to operate a 12-bed unit in Indiana to $1.6 billion over five years in Illinois.

State mental health officials and others in the mental health community caution that increased civil commitment of high-risk sex offenders could skew the entire mission of state mental health agencies and drain resources from services for persons with diagnosable mental illness.

With these concerns in mind, NASMHPD issued a policy statement warning of the "significant risks" that sexual offender commitment legislation poses for public mental health systems and urging policymakers to address concerns about the "threat that criminally violent sex offenders may pose upon release from prison through sentencing or other alternatives within the criminal justice system." If commitment legislation is adopted, the policy statement urges, "every effort should be made to fund, administer and provide services outside the state mental health agency."

In light of the U.S. Supreme Court's decision in Kansas v. Hendricks, it is inevitable that policymakers will be forced to consider whether involuntary civil commitment represents an appropriate response to the dangers sex offenders may pose when released from jail or prison. Both public safety and the integrity of the public mental health system demand a full exploration of the implications of all possible options.

W. Lawrence Fitch, J.D., is Director of Forensic Services for the Maryland Mental Hygiene Administration. He is also an Adjunct Professor at the University of Maryland Schools of Law and Medicine and Secretary of the Executive Committee of the National Association of State Mental Health Program Directors' Forensic Division. Mr. Fitch is a recipient of the "Amicus Award" of the American Academy of Psychiatry and the Law in recognition of his scholarship and service in the field of mental health and the law.

Few issues offer a greater challenge to the public mental health system than its relationship with the criminal justice system. The recent movement throughout the country toward enactment of laws that permit the indefinite involuntary commitment of sexual predators to state psychiatric facilities after their prison terms are completed suggests that the lines between individual mental health treatment and public safety are becoming increasingly blurred. The inference drawn as a result of these laws between sexually violent behavior and mental illness threatens to undo years of work to address public fears about the nature of mental illness.

This issue of networks tackles this concern and highlights a number of programs that have built bridges between the mental health and criminal justice systems, using their respective expertise to meet the needs of the individual as well as of the general public. We invite readers to contact these programs directly for additional information.

In a slight departure from our typical practice of focusing all networks articles on a specific theme, this issue includes a report on a recent site visit conducted by NTAC to Montana to provide assistance in the implementation and oversight of the state's Mental Health Access Plan. Montana's situation provides something of a cautionary tale for other states—where an ambitious and long-planned managed care plan has been implemented by not one but three different vendors within less than a one-year period, as industry consolidations and buyouts continue. NTAC staff would be happy to respond to requests for additional information on its activities in Montana.

To return to the topic of mental health and criminal justice, this issue of networks has drawn on the experience and expertise of many individuals in addition to those mentioned within specific articles. W. Lawrence Fitch, J.D., Director of Forensic Services, Maryland Mental Hygiene Administration, contributed the article on state consideration of sex offender commitment legislation. Mr. Fitch serves as Secretary of the Executive Committee of the National Association of State Mental Health Program Directors' (NASMHPD) Forensic Division.

We are grateful to a number of individuals who assisted in scanning the environment to identify topics of concern to the mental health and criminal justice fields. Their knowledge and insight provided a fuller understanding of the current issues confronting both systems.

These individuals include Andrea K. Blanch, Ph.D., Associate Commissioner, Programs, Maine Department of Mental Health, Mental Retardation, and Substance Abuse Services; Joseph J. Cocozza, Ph.D., Director, The National GAINS Center for People with Co-Occurring Disorders in the Justice System; Joel A. Dvoskin, Ph.D., A.B.P.P., Department of Psychology, University of Arizona; Linda Frisman, Ph.D., Project Director, Research Division, Connecticut Department of Mental Health and Addiction Services; John House, J.D., Senior Staff Counsel, Kansas Department of Social and Rehabilitative Services; John Petrila, J.D., L.L.M., Chair, Department of Mental Health Law and Policy, University of South Florida; and James E. Smith, A.C.S.W., Superintendent, Vernon State Hospital and Wichita Falls State Hospital, Texas Department of Mental Health and Mental Retardation, and Chairperson, Executive Committee, NASMHPD's Forensic Division.

Thanks also to Gail P. Hutchings, M.P.A., NASMHPD's Deputy Executive Director; Roy E. Praschil, NASMHPD's Director of Operations; and Jenifer Urff, J.D., NASMHPD's Director of Government Relations, for their insight and guidance. —Bruce D. Emery, M.S.W.

The National Technical Assistance Center for State Mental Health Planning (NTAC): Maintains a comprehensive web site providing information on innovative programs and technical assistance on issues of importance to mental health planning, service delivery and evaluation. The web site contains information that states can use in considering development of programs and services in a wide variety of topic areas, including criminal justice. NTAC's audience includes state mental health agencies, consumers, families and state mental health planning and advisory councils. [YOU ARE HERE]