You are here
Position Statement 52: In Support of Maximum Diversion of Persons with Serious Mental Illness from the Criminal Justice System
Statement of Policy
Mental Health America (MHA) supports maximum diversion from the criminal justice system for all persons accused of crimes for whom voluntary mental health or substance use treatment is a reasonable alternative to confinement or other criminal sanctions. MHA urges the utilization of diversion programs at the earliest possible phase of the criminal process, preferably before booking or arraignment. Conversely, MHA supports minimizing the use or threat of use of criminal sanctions to compel mental health treatment. These principles apply with equal force to adults and juveniles.
MHA supports the long-term goal of integrating persons living with mental and substance use conditions into a culturally competent community-based mental health care system focused on consumer empowerment and quality of life, and aimed at their recovery. Over the past two decades, criminal justice diversion programs have emerged as a viable and humane alternative to the criminalization and inappropriate criminal detention of individuals with mental and substance use conditions. Diversion programs benefit the diverted persons, the criminal justice system and the community.
Criminal behavior, including violent behavior, is overwhelmingly caused by complex factors other than mental health conditions. However, some persons with mental health conditions commit crimes because of our failure, due to lack of funding and other resources, to provide them with appropriate and timely mental health services. Thus, one of the most effective “diversion” strategies that any jurisdiction can employ is to ensure that persons with mental health conditions receive treatment before they interact with any part of the criminal justice system. Additionally, it is crucial that programs designed to divert persons with mental health conditions from the criminal justice system do not divert resources from the already under-funded mental health system. Simply put, no one should be incented to commit a crime in order to receive mental health services .
Another critical issue for individuals with a mental or substance use condition is that of coercion. With a deeper understanding of the role of recovery in the successful treatment of mental health or substance use problems, MHA is wary of the expanded use of the criminal justice system, with its increased focus on persons with mental illness, as a substitute for voluntary community-based treatment that mental health advocates have consistently sought. Avoiding the sense of dependency and helplessness that comes from linking treatment to incarceration is at the core of the need for effective diversion.
MHA encourages local and state affiliates, consumers, stakeholders, and other advocates to support the development of diversion strategies that promote police officer training, community engagement, and early intervention in an effort to keep persons with mental and substance use conditions out of the criminal justice system.
An estimated 11.4 million people are admitted to local jails every year in the United States. On any given day, about 2 million people can be found incarcerated in U.S. prisons or jails. In 2005, the Bureau of Justice Statistics reported that more than half of all prison and jail inmates had a mental health problem. These estimates were based upon personal interviews with prisoners and used broad measures of mental illness. Research also shows that 16% of those in state prisons and local jails have a serious mental illness, as do 7% of those in federal prisons. People with mental health and substance use conditions are repeatedly arrested for petty offenses.
The Surgeon General’s report entitled Mental Health: Cultural, Race, and Ethnicity showed that disparities existed in mental health systems for persons of diverse populations and that mental and substance use conditions exacted a greater toll on their overall health.  national indicators show that persons of color are disproportionately represented in both adult and juvenile justice systems. Studies also show that while there are few, if any, differences in the nature and scope of crimes committed by persons of color, their rates of arrest, prosecution, and incarceration, as well as the length of sentences, are substantially higher than the Caucasian population.
Fewer than 5 percent of jails polled nationwide in 1992 had procedures to divert inmates with mental health conditions from the criminal justice system into the mental health treatment system. Since then, the establishment of jail diversion programs has become more commonplace. There have been 294 jail diversion programs in operation since 2003, 17 of which were funded by SAMSHA’s Center for Mental Health Services.
Another form of diversion has also arisen by way of Mental Health Courts. In 2000, The Mental Health Courts Program was created by "America's Law Enforcement and Mental Health Project" (Public Law 106-515). In 2003, the Bureau of Justice Assistance funded 23 of these courts which helped to relieve over-burdened criminal courts that ordinarily handled all cases relating to mental health. Participants in a study focusing on mental health courts reported improved quality of life and demonstrated greater gains in developing independent living skills and reduced drug problems and new criminal activity. Today, more than
150 250 of these courts exist, and more are being planned. In 2004 Congress enacted the Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) providing additional funding for criminal justice diversion. In 2013, the Justice and Mental Health Collaboration Act (S.162) was introduced to reauthorize and improve MIOTRCA.
The extraordinary human and financial costs to the criminal justice system argue strongly that effective diversion may produce better results at a lower cost. Community-based programs for people with mental illness and substance use conditions would help to provide not only appropriate treatment for them, but would decrease duration or even prevent incarceration altogether. Four SAMHSA-sponsored jail diversion programs have recently released data showing the most well-controlled cost-effectiveness results to date. Costs were defined as those from all court appearances, public defenders’ and prosecutors’ offices, the police, and incarceration days. Mental health courts reduce both arrest rates and days of incarceration.
Mental health problems among the population of persons in the nation’s jails and prisons are serious and growing. The Los Angeles County Jail, Cook County Jail in Chicago and New York City’s Riker’s Island “each hold more people with mental illness on any given day than any hospital in the United States.” The Los Angeles County Jail has for a number of years been declared to be the largest mental health facility in the country. In an era of deinstitutionalization, jails and prisons have become de facto mental health treatment facilities.
People with mental and substance use conditions in jails and prisons have complex and challenging needs. Problems include: (1) mental health services in prisons and jails are inadequate; (2) persons with mental illnesses are frequently victims of crimes within prisons; (3) the environment in prisons and jails worsens many mental health conditions; and (4) left untreated, persons with serious mental health conditions who are incarcerated for minor crimes may commit additional crimes which will result in extended prison time leading to a cycle of suffering, violence and wasted criminal justice resources. Almost 75% have co-occurring mental health and substance use disorders, and many have been imprisoned for crimes which have arisen from untreated mental illness.
Call to Action
The increasing involvement of persons with mental health and substance use conditions in the criminal justice system has enormous fiscal, public safety, health and human costs. Diverting individuals with mental and substance use conditions away from jails and prisons and toward more appropriate and culturally competent community-based mental health care has emerged as an important component of national, state and local strategies to provide effective mental health care; to enhance public safety by making jail and prison space available for violent offenders; to provide judges and prosecutors with alternatives to incarceration; to provide specialty training to law enforcement and probation personnel to deal effectively with mental health and substance use issues; and to reduce the social cost of providing inappropriate mental health services or no services at all. The success of diversion programs in communities across the country is generating genuine excitement and hope that real progress can be made in meeting the challenge of criminalization and reducing the toll it exacts on these individuals, their families, service agencies and the criminal justice system.
Mental Health America recognizes that the development of diversion programs involves negotiation between the mental health system, law enforcement officers, public defenders, prosecutors, court personnel and others in the criminal justice system. Each community must reach consensus on the type of diversion program appropriate for that community and the severity of offenses that may disqualify offenders from participation in the program. However, the principal consideration should be assuring that careful consideration is given to diversion of persons with serious mental and substance use conditions despite their charges, which may be more reflective of stigma than the real severity of the offence.
Mental Health America supports diversion at the earliest possible point. The Sequential Intercept Model has gained wide acceptance in the criminal justice and behavioral health field as a mechanism for decriminalizing persons with serious mental health conditions.
There are two major kinds of jail diversion programs: pre-arrest and post-arrest.
Pre-Arrest (“Pre-Booking”) Diversion Strategies
Pre-arrest strategies typically focus on the law enforcement officers that are often the first point of contact with persons with mental or substance use conditions in crisis. Since their initial interactions with persons with mental or substance use conditions are so critical to determining the situation’s outcome (i.e., whether or not an individual is to be jailed), pre-arrest jail diversion strategies rely heavily on helping police become knowledgeable regarding the nature of mental and substance use conditions, provide tools to de-escalate crisis situations and provide options for treatment alternatives to incarceration that are available in the community.
Examples of pre-arrest strategies include: police training to recognize the signs of mental illness and substance use; deployment of a mobile crisis response team that provide assistance and support to police and the individual; and transportation to treatment rather than jail. One of the nationally-recognized and widely-used models for police training and intervention is call Crisis Intervention Team or CIT. Culturally competency is a critical component of such training, to avoid the unequal treatment that comes from stereotyping racial and cultural groups.
Post-Arrest (“Post-Booking”) Diversion Strategies
Post-booking diversion programs are the more common type of jail diversion program in the United States. After formal charges have been filed, post-booking programs screen individuals to determine the presence of mental or substance use conditions; negotiate with prosecutors, attorneys, courts and mental health providers to dispose of the case without additional jail time; and link the individual with mental health treatment as a condition of a reduction in charges, deferred prosecution or dismissal.
Mental health courts are an example of a post-booking jail diversion program. Mental health courts hear cases involving persons with mental health conditions who have been charged with non-violent crimes. They divert these individuals away from jail or prison by negotiating a treatment program that might include group or day services, psychotropic medication, case management or inpatient hospitalization in order to restore defendants to stable functioning in their communities. Today there is an enormous variety of mental health courts including ones that focus on veterans, women, persons with co-occurring substance abuse problems and juveniles. 
Studies show that diversion of persons with mental and substance use conditions accused of misdemeanor crimes into appropriate, community-based mental health treatment programs allows for better long-term results for offenders. Such programs reduce arrests, jail days, hospital stays and total criminal justice expenditures. 
Dismissal of Charges
Mental Health America believes that successfully completed pre-booking and/or post-booking diversion programs should provide for dismissal of criminal charges. In the case of post-booking diversion, jeopardy of re-involvement in the criminal justice system should be limited in accordance with the criminal justice standards in that jurisdiction. As a guideline, conditions of deferred prosecution, deferred sentence or probation ordinarily should not exceed one year.
Implementing Effective Diversion Strategies
Timely and accurate mental health screening and evaluation is the single most critical element in a successful diversion program. More treatment resources are desperately needed. Communities must develop services that meet the needs of mental health and substance use consumers. In addition to significant increases in public investment, services must be integrated across public and private agencies. Individual treatment plans should be focused on consumer recovery and choice and should include: mental and physical healthcare, case management, appropriate housing, supportive education, integrated substance abuse treatment, and psychosocial services, in the least restrictive environment possible.
Diversion programs also require the development of community coalitions, including but not limited to partnerships between criminal justice, mental health and substance abuse treatment agencies. Judicial leadership has been particularly instrumental in creating and expanding criminal justice diversion programs across the country, helping to increase public support and funding for alternatives to incarceration. Criminal justice and corrections agencies should be encouraged to develop new sources of funding to expand diversion programs. Coalitions should also be reflective of the diverse make-up of the community. Joint mobile outreach services such as crisis intervention teams are a key element in successful partnering between mental health, substance abuse treatment and law enforcement agencies, with effective diversion to an appropriate treatment plan the critical measure of success. Consumers of mental health and substance abuse services and family members affected by mental illness or substance use need to be included in such coalitions to assure that the real barriers to effective mental health and substance abuse treatment in that community are addressed.
These community coalitions need to reach out to all criminal justice system personnel to ensure that comprehensive culturally competent training is provided at all levels to deal with issues of mental illness and substance use, wherever and whenever they occur. Mental health associations should reach out to or create such coalitions whenever possible. Effective diversion from the earliest point of contact with the criminal justice system of a person with a serious mental illness or serious emotional disorder should be a centerpiece of all mental health planning, with the aim of promoting recovery from mental illness and as an end to all unnecessary use of criminal sanctions.
The Mental Health America Board of Directors approved this policy on September 15, 2013. It is reviewed as required by the Mental Health America Public Policy Committee.
Expiration: December 31, 2018
 See Mental Health America’s Policy Number 72: “Violence: A Community Mental Health Perspective”
 See Mental Health America’s Policies Numbered 11-16 on the need to transform our mental health system.
 Government Printing Office, Census of Jails, 1999. NCJ186633. Washington, DC (2001).
 Bureau of Justice Statistics, Special Report, Mental Health Problems of Prison and Jail Inmates, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Washington, DC (2006).
 Bureau of Justice Statistics, Special Report, Mental Health and Treatment of Inmates and Probationers (1999)
 U.S. Department of Health and Human Services, Culture, Race, and Ethnicity A Supplement to Mental Health: A Report of the Surgeon General, Rockville, MD: U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health (2001).
 Cowel,l A.J., Broner, N., & Dupont, R., “The Cost-Effectiveness of Criminal Justice Diversion Programs for People with Serious Mental Illness Co-Occurring with Substance Abuse: Four Case Studies,” Journal of Contemporary Criminal Justice 20 (3): 292-315 (2004).
 “Effect of Mental Health Courts on Arrests and Jail Days” Steadman, et al., Arch Gen.Psychiatry 68(2):167-72, doi: 10.1001/archgenpsychiatry.2010.134 (2010).
 Butterfield, F. (1998, March 5). “Prisons Replace Hospitals for the Nation’s Mentally ill,” New York Times, A1. Testimony of Dr. Arthyr Lynch, Director of Mental Health Services for the NYC Health and Hospitals Corporation, before the Subcommittee on Mental Health, Mental Retardation, Alcoholism and Drug Abuse Service, April 22, 1998.
 See Mental Health America Policy Number 56: “Mental Health Treatment in Correctional Facilities”
 Munetz, M.R. & Griffin, P.A., “Use of the Sequential Intercept Model as an Approach to Decriminalization of People with Serious Mental illness” Psychiatric Services 57(4):544-9 (2006).
 See Mental Health America Policy Number 53: “Mental Health Courts”
 “Adult Mental Health Court Database” SAMHSA’s GAINS Center for Behavioral health and Justice Transformation, gainscenter.samhsa.gov/grant_programs/adultmhc.asp; Callahan, et al., “A National Survey of U.S. Juvenile Mental Health Courts,” Psychiatric Services 63:130 (2012).
 Resources on various types of diversion programs and the research demonstrating their effectiveness is available from SAMHSA’s GAINS Center for Behavioral Health and Justice Transformation, gainscenter.samhsa.gov/topical_resources/jail.asp
 Steadman, et al., “Effect of Mental Health Courts on Arrest and Jail Days” Arch. Gen. Psych. 68:167 (2011)