The key to successfully redirecting and removing the seriously mentally ill from the criminal justice system is creating systems and programs that provide the treatment they actually need, according to Judge Steven Leifman, a Miami-Dade County Mental Health Court Judge.
It’s the first step in abandoning today’s failed punitive application of rehabilitation, Leifman, a pioneering advocate for alternatives to incarceration (ATI), told a recent forum in New York City.
“When you apply a criminal justice model to an illness, you’re getting what you should get—a disaster,” said Liefman.
The forum, sponsored by The Greenburger Center for Social and Criminal Justice and entitled “Not Going Back: A Conversation About New Diversion and Re-Direction Options,” was held at Baruch College of the City University of New York
The launch pad for the discussion was the planned shutdown of New York’s infamous Rikers Island complex, which authorities have promised to close within 10 years and for which the New York Mayor’s Office of Criminal Justice has recently been tasked with implementing closure plans.
The forum examined viable alternatives to prison for the mentally ill that have enjoyed success around the country, discussed the goals of alternatives that are currently in development, and addressed the overall need for new approaches and new thinking.
“The standard ‘lock em up response’ not only won’t necessarily be the most just, but also won’t be the result that will get you the best outcome,” said Leifman.
Other speakers at the forum included: DJ Jaffe, Executive Director of MentalIllnessPolicy.org, a non-partisan think tank providing information about the care and treatment of people with serious mental illnesses; Arizona Representative Nancy Barto, chair of the state House Health and Human Services Committee; Judge Mathew D’Emic of the Brooklyn Mental Health Court; and Vincent Schiraldi, a senior research analyst at the Columbia Justice Lab and former New York City Probation Commissioner.
All agreed that the current system results in the seriously mentally ill perpetually falling through the cracks, recycling through hospitals, and ending up homeless, in jail, or in prison. Today, according to Human Rights Watch, roughly 360,000 seriously mentally ill are in prison or jail on any given day.
“We don’t want to lock these people up, they need treatment,” said Nancy Barto.
“And we’re not meeting that need.”
According to the National Institute of Mental Health (NIMH), approximately 50 percent of individuals with severe mental illness (3.5 million people) are receiving no treatment for their mental illness at any given time.
The National Alliance on Mental Illness (NAMI) reports that at least 83 percent of jail inmates with a mental illness did not have access to needed treatment. And a 2010 survey by the Treatment Advocacy Center found that people with mental illness are nine times more likely to be incarcerated than hospitalized, and 18 times more likely to find a bed in the criminal justice system than at any state and civil hospital.
For Barto, these statistics are a painful reminder of the situation in her home state of Arizona.
“Starting out with the lack of beds, in Arizona, and that is long term for this small chronically mentally ill population, we have 1/10th of the national average (or) 1.3 beds per 100,000,” she said. “The national average is between 40 and 60.”
Barto added that the type of housing that Arizona has is inadequate for this specific population as well, who often wind up homeless and on the street.
According to a 2015 survey by the U.S. Department of Housing and Urban Development, the seriously mentally ill comprise 25 percent of the American homeless on any given night. In Arizona’s Maricopa County, the fourth most populous in the country, azcentral.com reports a 150 percent spike in people living on the street in the last five years. With no supports in place, the seriously mentally ill often find themselves in an unbreakable cycle.
Nowhere to Go
“They end up committing small and, if left untreated, sometimes violent crimes and end up in prison or in jail,” said Barto, who pointed out the dangers this raises for communities. “Then, when they’re released, there’s nowhere for them to go to get the type of care that they need to stay in treatment.”
She continued: “You end up with a situation that, unfortunately, is more typical than we want to admit.”
On March 23, 2018, Curtis Bagley was huddled behind a barrier outside a downtown Phoenix newspaper office, screaming that dead people were after him and were going to kill him. It took five police officers to subdue him and take him immediately to an emergency psych unit. He was later released.
Eight days after that incident he was found in the backyard of a downtown phoenix home. At his feet was a bloody kitchen knife. He had killed the resident inside, Joshua Fitzpatrick.
“This man had been petitioned to an urgent care psych facility over 30 times,” said Barto. “This is a failure of the system.”
And that failure has consequences.
In an analysis of multiple studies on the relationship between violence and the seriously mentally ill, MentalIllnessPolicy.org found that roughly 10 percent of U.S. homicides are committed by people with severe and untreated psychiatric disorders.
With no place to go, and no treatment, it’s not a matter of wondering if an incident will occur, but when.
“The idea is to get ahead of these situations before they explode,” said Judge Leifman.
To demonstrate what can be done to achieve this goal, Leifman discussed the Eleventh Judicial Circuit Criminal Mental Health Project, which he implemented in Florida in 2000. The project seeks to steer people with mental illness that have committed low-level offenses away from incarceration and towards community-based care.
“We now have a pre- and post-arrest diversion type of system,” he said. “Pre-arrest involves a massive crisis intervention team police program (CIT).”
This consists of a 40-hour training program that teaches Miami-Dade law enforcement officers how to identify people who are in crisis, how to deescalate the situation, and where to take them as opposed to arrest them.
And with currently over 6,700 law officers trained at all 36 of their departments, the resulting numbers have been positive.
“The number of arrests in Dade County went from 118,000 a year to about 56,000 this year as a result of all these different parts and approaches,” said Leifman.
These results have allowed Leifman and his team to develop more sophisticated approaches. In addition to CIT training for officers, 911 call-takers are instructed on how to ask the right questions so they can dispatch a CIT officer to any scene that’s involving mental health.
Trained liaison officers are stationed at every department and substation to meet with care providers on a monthly/quarterly basis to make sure that people don’t fall through the gaps. And a newly developed “homeless resource unit” enables officers to initiate petitions for homeless individuals with serious mental illnesses and substance abuse disorders, find them housing, and do spot checks on them to make sure they are improving.
Threat Management Units
Finally, because of their sophisticated CIT program, the police have been able to set up a threat management unit. Created after the Parkland shootings, this unit helps to prevent instances like the one with Curtis Bagley from ever happening.
“They have about 13 detectives working in this unit, they go through every CIT call live every day, and if there’s any indication of any kind of threat or violence, they then do a follow up,” said Leifman.
This follow-up involves sending a plain clothes officer out to the house who, instead of using a traditional police approach, attempts to develop a relationship and dialogue with the individual.
If a weapon is involved, the Marjory Stoneman Douglas Public High School Safety Act allows police to remove it. More importantly, Leifman points out that officers are trying to encourage the person to call them first if they’re not feeling well so the officers can work with providers to help them get treated. So far, this has allowed them to keep tabs on 100-150 people at a time.
“It avoids explosive situations,” said Leifman.
And tactics like these have grown in popularity among states around the country that are working to keep the mentally out of prison and in treatment.
In Texas, the Houston Police Departments 911 Crisis Call Diversion program places mental health professionals in the 911 dispatch center, giving operators the chance to quickly connect callers who have mental health-related issues to counselors instead of, or in addition to, dispatching a police or fire/EMS unit, according to The Council of State Governments Justice Center.
In southern California, the Los Angeles Times reports that 39 psychiatric emergency response teams, staffed with a police officer and a mental health professional, act as “second responders” for cases involving mentally ill people across L.A. County.
In addition, multi-purpose diversion centers, such as the Greeenburger Center’s own Hope House in the Bronx, scheduled to open this year, offer treatment, housing, and continual care for people in a secured environment. In Miami-Dade, Leifman’s Mental Health Diversion Center is slated to open in 2020 and will provide a range of mental and primary health care services, living space for up to a year, as well as assistance with housing, employment training, daily activities and courtroom support.
San Antonio’s diversion center, the Center for Health Care Services, according to a previous story by TCR, lowered the county jail population by 22 percent, and reduced recidivism rates for the mentally ill to 6.6 percent, versus the national average for felons after release of 43 percent as reported by the Pew Research Center.
“The goal is to enable a person to not walk away from treatment, due to their illness, which is what is happening in an un-secure setting,” said Barto.
She recently helped pass legislation in Arizona that started the process towards establishing their own secure residential treatment places.
However, while these efforts are steps in the right direction, the reality is that they are of little use to a number of people who don’t believe that they are sick at all.
According to a report by NAMI, anosognosia, or the inability of a person with a serious mental illness to be aware of or perceive their condition accurately, affects roughly 50 percent of people with schizophrenia, and 40 percent of people with bipolar disorder.
A 2014 study in Innovations in Clinical Neuroscience emphasized anosognosia’s importance as an outcome predictor, associated with treatment adherence, relapse frequency, symptom remission, psychosocial functioning, vocational attainment, and risk of violence toward self or others. Keeping this population of people in treatment is exceedingly difficult.
“As a kind and compassionate society we should be helping them,” said DJ Jaffe of MentalIllnessPolicy.org.
“But to say that having more treatment options, which somebody is likely not going to participate in, is going to solve the problem, isn’t consistent with reality.”
Jaffe offered several examples of solutions to the problem.
One is New York State’s assisted outpatient treatment (AOT), under which courts can order somebody with a history of being arrested, violent, incarcerated, homeless, and hospitalized due to untreated mental illness to stay in treatment for at least six months while they continue to live in the community. A second is Kendra’s Law, granting judges the authority to issue those orders to people who meet certain criteria.
“(These are) not an alternative to community based services, (but) a way to see the most seriously mentally ill get into those services,” said Jaffe.
And while he notes that everyone supports voluntary community based services, he warns that many of those services are likely to reject people who reach the level of impairment experienced by the untreated seriously mentally ill.
An important part of Kendra’s Law protects against just that, he said.
“Many providers cherry pick. They want the highest functioning. They say this person is not eligible because they abused substances, they had a felony, they can’t manage their own care, they’re not physically well,” said Jaffe.
“Kendra’s Law allows the judge to not only order the person to receive treatment, but to order the mental health system to provide it.”
As a result, he reports a 70 percent reduction in violence, arrest, hospitalization, homelessness, and incarceration of persons suffering from mental illness. Coupled with mental health courts, which offer early screening in the court system, the law and AOT are powerful tools in identifying and diverting this population of the seriously mentally ill out of the criminal justice system and into the more developed, and secure, forms of ATI proposed by Judge Leifman and the Greenburger Center.
“I think the key is flexibility,” said Judge D’Emic of the Brooklyn Mental Health Court.
“We’re flexible in the sense that we seek out the best treatment alternatives for the person, the clinical is in contact with the program on a daily basis, I see the individual every week. Relationships are established.”
Launched in 2002, the Brooklyn Mental Health Court adheres to the tenets of procedural justice to maintain this flexibility: Officials there establish a therapeutic relationship that focuses on respect, patience and understanding; in court, defendants often communicate with the judge directly regarding their progress, discuss and arrange their own treatment plans with social workers and caseworkers, and have an active role in their own rehabilitation.
The model has enjoyed 17 years of success.
“Today 87 percent of the people actively involved in the court are compliant. We have a graduation rate of 81 percent, and we’re about to have our thousandth graduate sometime this year,” said D’Emic.
However, while the combination of Kendra’s Law, the Brooklyn Mental Health Court, and AOT in New York may enjoy and represent some of the best possible outcomes of a layered approach to handling this small population of seriously mentally ill, it is far from a perfect solution and even encounters many of the same problems as anywhere else.
“Housing is a huge hurdle,” admitted D’Emic.
“If a person doesn’t have a home or a family, that’s the problem for us.”
In fact, a 2017 article from The New York Times reported roughly 4,000 needy individuals without supportive housing. A recent feature by ProPublica found that those who have housing are often living in boredom and squalor, with little therapeutic services. And while, according to the New York Post, the number of mental health shelter beds have increased to 4,000, up from 2,800 in 2015, they offer little more safety or support to the seriously mentally ill who wind up rotating through the system as the mental health courts tread water.
And though 43 states have implemented some form of AOT, metalhealthpolicy.org reports that most don’t implement it as widely or as effectively as it should be.
In addition, while D’Emic’s court has seen success with its alternative model, other mental health courts still adhere to the traditionally punitive system. A 2016 Boston Globe Spotlight series on the mentally ill in Massachusetts found that a majority of the state’s mentally ill offenders struggle through a system with few options, and that many judges still look at punishment as the best solution, frequently recommending jail time for minor probationary infractions and drug relapses.
According to Vincent Schiraldi, a former commissioner of New York City Probation, this type of maltreatment should be expected from a justice system that includes a probation and parole model designed for people to fail. Especially the seriously mentally ill.
“It’s a super risk-averse field, where you have malign parole and probation officers, with way too many people on their caseloads, who have lots of challenges.,” said Schiraldi.
“It’s a total set up.”
A 2018 brief by Pew Charitable Trusts estimates that there are roughly 4.5 million people on probation and parole in the United States, twice that of the total incarcerated population. A report by the American Criminal Law Review states that roughly 760,000 of those on parole and probation are seriously mentally ill. They represent a majority of the people who annually fail to successfully complete their supervision.
According to a report by the United States Courts, a person on parole must comply with roughly 20 different conditions ordered by the court. These can include residential restrictions, scheduled meetings with a probation/parole officer, drug testing, required counseling and treatment for addiction or mental illness, supervision fees, and association and contact restrictions.
It is a maze that is almost impossible to navigate without assistance, even without a mental illness, and Schiraldi warns it’s only made worse by a staff with little motivation to rehabilitate.
“If I’m a parole or probation officer and I take a chance on a guy, and he does well, gets a job, I get nothing for that. Zero,” said Schiraldi.
“But if that person goes out and reoffends, I get humiliated, maybe I’ll get transferred, maybe I’ll get demoted, maybe I’ll get written up, maybe I’ll get fired.”
And while most expect these people to be either heroes or villains, Schiraldi points out that more often than not they are simply “lunch pail” employees trying to just get through the job and reach retirement. Facing low wages and a high stress environment with no rewards, parole and probation officers are more inclined to go whichever way the wind is blowing in a field that is far too punitive when it comes to even the smallest violations.
A recent study by the Prison Policy Initiative found that nearly 350,000 people are shifted from community supervision to prison or jail each year, often for low-level offenses (such as drug use) or technical violations (such as breaking curfew).
The study also stresses that current probation and parole policies ignore the realities of drug addiction and relapse, unemployment, and homelessness, effectively criminalizing marginalized populations, like the seriously mentally ill, who struggle with these problems daily. The result is a revolving door.
“If we’re saying to people if you use drugs, which is the normal course of an addiction, if you relapse, we’re going to imprison you for that, we should expect lots of [people who abscond],” said Schiraldi.
“And if we tell the probation officers, if you don’t do something when somebody absconds you’re going to be in trouble, we should expect lots of incarceration.”
He maintains that the solution is substantially smaller, substantially shorter, and substantially more supportive and rehabilitative probation and parole models.
“If we want things to change we have to change the rules, and we have to provide the kind of resources that people need to turn their lives around,” said Schiraldi.
In 2018, Schiraldi and a coalition of New York community groups, attorneys, advocates, and victims, along with Assemblyman Walter Mosley, proposed the Less is More: Community Supervision Revocation Reform Act.
Addressing the current problems of how technical violations in the parole system lead to reincarceration, the bill will incentivize good behavior and allow New Yorkers to earn accelerated release from parole, require fair hearings, create maximum terms of reincarceration for violations and eliminate incarceration as a sanction for certain technical violations.
It’s a probation and parole model that is much needed in a state with over 6,000 people returned to prison for technical violations every year, the second highest in the country according to Schiraldi’s own “Less Is More” report.
And while the daily population of Rikers Island has steadily dropped from 9,400 to roughly 7,000, according to The Gothamist, the number of people held in Rikers for violation of their probation continues to rise, and the seriously mentally ill are among them and every other similar prison population around the country.
“We create an atmosphere, an environment that discourages the [seriously mentally ill] from wanting to get better,” said Judge Steven Leifman.
“Everyone has this inverse pressure to do the wrong thing as opposed to setting up systems that actually help people recover.”
To do that, law enforcement must be trained to know who to divert and how, treatment centers must be built to house and care for those in most serious need of help, laws are required to enforce change and make certain those who are a danger to themselves and others stay in treatment, and housing is needed for those who are without friends or family to care for them.
Perhaps most important of all, the criminal justice model of handling these circumstances must be abandoned for one more akin to medicine.
“Look at this like cancer,” said Leifman.
“You have stage 1 vs. stage 4. When you have a more acute illness you need an acute approach.”
By creating a triage of acute support from start to finish, one which emphasizes rehabilitation and an informed understanding of the circumstances the seriously mentally ill regularly find themselves in, states can ideally clear their prisons of a population that has no business being there in the first place.
“Don’t operate on a hair trigger,” said Judge D’Emic.
“If somebody relapses, is off their medication, or doesn’t go to their program, unless [you’re] worried about innocent people being affected, always give second or third or fourth chances.”
However, while these and other initiatives being taken by the criminal justice community to remove the seriously mentally ill from prisons like Rikers are a step in the right direction, Schiraldi and others like him remain wary of even the best intentioned plans.
Especially when it concerns treating people behind locked doors.
“The day after you open a locked facility, it takes a major step away from all the hopes and dreams of everybody who built it; it starts to get institutionalized,” said Schiraldi.
“We have to fight this institutionalization from the day it opens to the day we knock it down.”
Isidoro Rodriguez is a contributing writer to The Crime Report. He welcomes readers’ comments.