Protection & Advocacy News

a report from the nation's disability rights network

October 2001 Volume 6: Number 4

"Special Needs Populations*

with Mental Illness in the Criminal Justice System"

L. Elaine Sutton Mbionwu, Disability Advocate Specialist

* Note: The terminology "special needs population" covers a broad number of disabilities (i.e., physical, mental, cognitive, etc.) Although this article focuses on individuals with mental illness in the criminal justice system, the case scenarios and service delivery recommendations contained herein are reflective of and applicable to other populations. Those populations include but are not limited to individuals with mental retardation, visual impairments, and brain injury just to name a few.

I. Introduction

According to a Bureau of Justice Statistics Special Report entitled "Mental Health and Treatment of Inmates and Probationers" there are 283,800 individuals with mental illness in prison or jail and 547,800 on probation.

Sixteen (16%) percent of state prisoners are classified as having a mental illness and Seven (7%) percent of federal prisoners are diagnosed with a mental illness. There are over a quarter million individuals with mental illness are in prison or jail.

Reported a…	State Prison	Fed. Prison	Jail	Probation
Mental or emotional condition	10.1%	4.8%	10.5%	13.8%
Overnight stay in a mental hospital	10.7%	4.7%	10.2%	8.2%
Estimated to be mentally ill*	16.2%	7.4%	16.3%	16.0%
*Reported either a mental or emotional condition or an overnight stay in a mental hospital or program.

Bureau of Justice Statistics Special Report July 1999

Six out of ten offenders with mental illness admit being under the influence of alcohol or illicit drugs during the commission of their offense.

Four in ten offenders with a mental illness were unemployed and/or homeless before arrest.

There is a noted family history of incarceration and alcohol or drug use among individuals with mental illness.

Individuals with mental illness reveal an increased incidence rate of past physical and/or sexual abuse.

State prisoners

Before entering prison

	Mentally Ill Inmates	OtherInmates
Homeless in 12 months prior to arrest	20.1%	8.8%
Physical/Sexual Abuse: Male Physical/Sexual Abuse: Female	32.8% 78.4%	13.1% 50.9%
Alcohol/Drug Use-At time of offense	58.7%	51.2%
Drug Use-In month before offense	58.8%	56.1%

Bureau of Justice Statistics Report July 1999

Caucasian inmates are more likely than African-Americans and Latinos to divulge the existence of a mental illness.

Six out of ten offenders with mental illness receive mental health counseling or treatment while incarcerated.

Mentally Ill Inmates

Mental Heath Treatment Since Admission	State Prison	Jail
Any Treatment	60.5%	40.9%
Medication	50.1%	34.1%
Counseling	44.1%	16.2%

Bureau of Justice Statistics Special Report July 1999

In the year 2002, over 600,000 ex-offenders will be released into communities all over the country. It is estimated that at least 2/3 of these ex-offenders will be individuals with mental illness or are dually diagnosed (mental illness & substance abuse). With these staggering statistics, it is evident that a prominent number of U.S. jails and prisons house a significant portion of this countries special needs population.

II. Contributing Factors

A. Front End Cause

In order to adequately address the plight of individuals with mental illness, we must examine society's attitude towards our most vulnerable special needs community. If we are going to truly meet the unserved and underserved needs of individuals with special needs, cause and effect have to be taken into consideration prior to the development of any corrective plan of action to improve and enhance the quality of life for this population.

The deinstitutionalization movement has factored in greatly towards the high rate of incarceration among individuals with special needs. For most of these individuals, their lives have consisted of a consistent pattern of cycling between correctional system and psychiatric wards. The effort to close a large number of psychiatric wards across the country was initially applauded by the advocacy community. The attempt to honor an individual's right to reside in the least-restrictive setting and to exercise their individual freedom of choice was seen as a monumental step in the right direction.

However, overtime, the curtains began to fall and the backstage view revealed systematic weaknesses across the board; 1) lack of appropriate discharge planning; 2) lack of person-centered planning; 3) uninvolved family members; 4) absence of community supports; and 5) budget-cuts and dollars that did not follow the individuals into the community. In addition, the backlash of this well intentioned but not fully planned out movement resulted in communities who were not ready nor had the capacity to absorb this special needs population.

B. Back End Effect

Due to the overwhelming stress of finding employment, housing, supporting a family, and managing

from day-to-day, many individuals find themselves experiencing stress induced psychosis which often times leads to a state of mental decompensation.

Without family or friends to turn to for assistance with day-to-day need, many individuals with mental illness move towards a life on the streets. Life on the streets, for many, causes them to become targets of unrelenting social pressure resulting in arrests on minor charges by the police.

Now, we have a special needs population of individuals with mental illness and a criminal record. As if its not enough to have the stigma of having a mental illness, added to the mix is the trauma of being arrested, exacerbating an already stressful condition.

III. Incarceration & Mental Health Treatment: What Should be Done

Individuals who come into contact with the criminal justice system should be screened for mental health disorders; essential components of screening include:

1) Criminal Justice background check

2) Past and present mental health history

3) Past and present substance abuse history

4) Past and present history of suicide risk

5) Assessment for individualized treatment planning

IV. Management & Supervision of Individuals with Mental Illness in a Jail or Prison Setting

A. Formal identification of inmates with mental health or
substance abuse conditions

B. Provision of appropriate mental health treatment

C. Provision of safeguards for vulnerable special needs
population from harassment and inhumane treatment

D. Proper and adequate training for correctional staff interacting with special needs populations

E. Provision of appropriate and adequate measures to safeguard individuals with special needs who are at risk of or display suicidal tendencies

V. Alternatives to Incarceration: Diversionary Integrated Service Models

A. Why Diversion?Why Diversion?

The majority of individuals with mental illness in the criminal justice system are low-level, non-violent offenders whose recidivism rate is high due to inadequate or non-existent community services. In order to divert contact with the criminal justice system by individuals with mental illness, adequately staffed, sufficiently funded, fully integrated community based services are urgently needed by special needs populations. An integrated community based service model would ensure continuity of care, sharing of information, collaborative treatment planning and sharing of resources to provide the best service delivery system possible.

B. Diversion Options

1)Pre-booking: At the point of contact with the criminal
justice system and before formal charges are brought
forth, law enforcement officials are in contact with and
depend heavily on community based services to
communicate recommendations and suggested
alternatives to incarceration;

2) Post-booking: This is the most widely used point of diversion
in the U.S. Post-booking diversion programs exist in
arraignment courts and jails. Program staff negotiate with
prosecutors, public defenders, attorneys, community-based
mental health and substance abuse providers and the courts to
evaluate an individual's eligibility for diversion.

Diversion programs are the most efficient and effective means to integrate community based service delivery and to reducing the high recidivism rate of individuals with mental illness in the criminal justice system.

A Glance at the Work Being Done Across the Country by P&As

on Alternatives to Incarceration

New Jersey Protection and Advocacy Office

On January 21, 2000, the New Jersey P&A held its first state-wide forum in an attempt to explore appropriate alternatives to incarceration. Correctional officers, clergy, social workers, staffers of Senator John Matheussen, prosecutors, and consumers and family members were in attendance. The goal of the forum was to seek realistic solutions for persons with mental illness coming into the contact with the criminal justice system.

As a result of the forum and the development of a coalition, spawned from the forum meeting, the NJ P&A has embarked upon the start-up of a pilot program within the Gloucester County Jail to address diversion options for PSMI's (Persons with Mental Illness). Former Gloucester County Jail Sheriff, Charles Gill, gave approval and sign-off on this collaborative effort with the NJ P&A office. The new sheriff, Gilbert Miller, has recently added his endorsement.

What precipitated the need for the NJ P&A's pilot jail diversion program?

Case #1:

The Gloucester County Jail is well known to the NJ P&A office as several significant cases of the NJ P&A originated from there. One case in particular involved a young African American male, who at the age of 11 had been diagnosed as having a mental illness. In "Brian's" teenage years, he was arrested for stealing his girlfriend's stereo system. While being arrested "Brian" physically resisted the arresting officers and was subsequently charged with assault.

Due to the lack of coordinated community based services between the jail and mental health centers, "Brian's" incarceration resulted in a worsening state of mind. The failure of the jail to provide "Brian" with proper mental health services coupled with his mental decompensation, "Brian" continuously received behavioral based infractions. Soon, lock-down, which further complicated "Brian's" mental health state, became the answer to the infractions which were symptomatic of "Brian's" mental illness.

Case #2:

Another case which became the basis for the NJ P&A's pilot jail diversion program also involved a Gloucester County Jail inmate with mental illness, who repeatedly told his cell mate that he had a fixation with gouging out his eyes. This inmate was on 15- minute high-risk watches by the Jail. However, in between the 15-minute watches, this inmate managed to gouge out both of his eyes.

The Gloucester County Jail states the lack of funding for in-house mental health services and alternatives to incarceration for PSMI's is the primary reason for the disposition of many of these cases investigated by the NJ P&A.

Basic Model Structure of Integrated Jail Diversion Program for Gloucester County

The model presented presupposes:

the existence of mental health services in the community;
program services that will be integrated within existing facilities of participating agencies;
the leveraging of existing relationships between various private and public systems in Gloucester County; and
the further development of creative partnerships between the State of New Jersey, Gloucester County, and community programs.

Recommendations for interventions at various points of contact within the criminal justice system include:

Pre-Booking Intervention

the program should utilize a trained mobile crisis intervention team available to review and respond as necessary to all enforcement calls from all municipalities in the county 7 days a week, 24 hours a day. Direct mobile response capacities should include mental health evaluation, verbal de-escalation interventions, and pre-booking diversion and transportation to mental health screening/treatment services as appropriate. County mental health crisis services will be enhance to allow for adequate diversion. Expanded training programs should be provided for municipal police officers, County Sheriff's officers, and corrections offices county-wide.

Pre-Conviction Interventions

Pre-conviction interventions should occur following booking and pending the court's disposition of an individual's case. Services during this phase should include comprehensive and effective screening of all new inmates in the County's jail and municipal facilities. In-facility mental health evaluations should be conducted by jail psychiatrists, or when psychiatrists are not available, by the County crisis screening center. Evaluations should be integrated with current health and social screening services practices at the jail, and should be planned to be delivered within a specific period following detention.

Judicial Interventions

To the greatest degree possible Municipal, County and Superior Court Judges and Court personnel should be aware of mental health issues particularly as they pertain to enforcement, adjudication and corrections. Mental Health training should be provided for Judges and Court Administrators, Prosecutors, Public Defenders, and Probation and Parole Officers. The local municipal government should maintain coordinating responsibility for training and intervention programs for municipal and County Court personnel.

Court based advocacy and intervention should also include:

-designated staff with expertise in mental health and legal issues to provide technical assistance to attorneys who represent individuals;

- the development of personalized justice plans (PJP) with relevance to mental health treatment and support in the community;

- further education of the County and municipal criminal justice systems about mental illness, the disadvantages faced by this population and how appropriate community support systems can address their rehabilitative needs.

Post-Conviction Interventions

Non-indictable offenders with mental illness who are detained in the Gloucester County Jail following conviction should be provided with comprehensive in-facility mental health services. Existing mental health services should be enhanced and integrated with additional human and social services provided in the County. Inmates should be ensured re-evaluations as necessary during incarceration. Similarly, indictable offenders identified as in need of mental health services should be provided comprehensive services pending transfer to other jurisdictions.

The goals of Gloucester County Jail Task Force and the New Jersey Program pilot program include: 1) training of correctional officers and staff who interface with PSMI's; 2) development of a crisis intervention team; and 3) the coordination of diversion options available to PSMI's. In addition, the NJ P&A works closely with the Gloucester County Jail by participating on the Jail's Task Force meeting monthly to discuss the progress of program initiatives. The Task Force consists of criminal case management representatives, crisis screening center staff, mental health center professionals, social services, a jail psychiatrist, and the Sheriff's confidential assistant.

Recommendations offered by the NJ P&A for coordinating a jail diversion program include:

Gather key players within the criminal justice system who interface with PSMI's
Obtain buy-in and participation of community based service providers
Elicit support from public policy makers
Involve law enforcement officials
Involve community based grassroots organizations
Involve family members and consumers
Obtain from decision-makers the acceptance and adoption of mission, goals and objectives

For additional information, please contact:
Rachel Parsio, Sr. Staff Advocate * (609) 292-9742
Jeremiah Battle, Managing Attorney
Rick Considine, Director of Community & Outreach

Florida Protection & Advocacy Office

The PAIMI and PADD programs of the Florida P&A routinely receive calls from individuals with mental illness in jails and prisons. County jails in Florida are overpopulated with mental health cases. An enormous portion of the Florida's special needs populations residing in the jails and prisons have not been diverted nor offered alternatives to incarcerations. Chief Counsel of the Florida P&A, Peter Nimkoff, states that the failure of the system is larger than its success -many persons being held in local jails ought to be treated in alternative settings.

There are a number of cities and counties in Florida which house Drug Courts that have some relevance to individuals with mental illness depending on the diagnosis of the accused - usually dually diagnosed population. Broward County in Ft. Lauderdale, Florida houses a Mental Health Court that has received national publicity for leading the nation in setting practical and appropriate alternatives to incarceration. The Broward County Mental Health Court receives cases of individuals with mental illness misdemeanors brought before a judge to assess treatments and alternative treatment settings alternative setting is appropriate.

The Florida P&A has been actively involved and instrumental in the provision of advise and recommendations to Public Defenders and other officers of the court on matters relating to alternative sentencing options for individuals with mental illness. According to the office of Judge Ginger Lerner-Wren, the presiding judge of Broward County's Mental Health Court in Florida, their Annual Progress Report for FY 2000-FY 2001 reveals the following data on the activity of the Court:

Broward County Mental Health Court

Annual Progress Report

FY 2000 - FY 2001

New cases since Court's inception	2,392
New cases FY 2000 - FY 2001	685
Average new cases per month	57

Another strategy used by the Florida P&A is outreach and education. In its effort to inform members of the correctional system and the broader community, the Florida P&A spends a significant amount of time educating, promoting, and encouraging law enforcement officials about the Memphis CIT (Crisis Intervention Team) Model in Florida. See www.memphispolice.org.

Other Noteworthy News:

The Florida Institutional Legal Services(FILS) of Gainesville, Florida along with the Florida Justice Institute has filed a class action lawsuit, which represents all prisoners in the state of Florida, challenging the inadequacy of mental health care for offenders in the criminal justice system. The lawsuit specifically challenges the system's "close management" practices otherwise known as isolation, segregation, restraint, seclusion which more often than not substitutes for mental health treatment.

For additional information, please contact:
Peter Nimkoff, Chief Counsel * (850) 488-9071

Pennsylvania Protection and Advocacy Office

As the result of public outcry from the advocacy community, Jeff Hunsicker, Forsensic Services Advocate with the Pennsylvania P&A, reports that in Alleghany County (Pittsburgh) and Erie County (Erie) has begun implementation of mental health courts to address the ever increasing need for alternative sentencing options. Funding for these two pilot mental health courts has been secured through the Justice Department of Pennsylvania. Two task forces have been organized to address strategies around the development the mental health courts. The Executive Task Force is dedicated to providing training and technical assistance on mental health issues to the proposed presiding judges of these two courts.

The Forensic Mental Health Task was designed to service the 5 surrounding counties of Philadelphia. This task force addresses the need for the coordination of a multi-agency, integrated service delivery approach for linking community services for persons with mental illness as an alternative to incarceration.

How does the P&A fit in the Mental Health Court movement?

Hunsicker further states that the role for the PA P&A will be to provide assistance to prosecutors, public defenders and other legal representatives by advising and recommending alternative sentencing options impacting the disposition of cases involving persons with mental illness.

For additional information, please contact:
Jeff Hunsicker, Forensic Services Advocate
1-800-710-8308

South Carolina P&A

In December 1990, P&A teamed with private trial attorneys to represent juveniles confined in the long-term institutions at the South Carolina Department of Juvenile Justice (DJJ). The juveniles sought declaratory and injunctive relief, as well as damages, against DJJ for unconstitutional conditions of confinement. After a trial on the merits, the federal district court issued an order finding many conditions unconstitutional and ordering DJJ to correct the deficiencies. Alexander S. v. Boyd, 876 F.Supp. 773 (D.S.C. 1995). After years of monitoring conditions and litigating over DJJ's attempts to bring conditions up to constitutionally minimum standards, the juveniles are still fighting for the changes ordered by the court in the 1995. At present the court has appointed an independent, three-person panel to investigate the current conditions at DJJ. Based upon the panel's findings, the court will decide if DJJ has implemented appropriate relief.

Despite the difficulties in acquiring relief for all the juveniles in the DJJ institutions, some juveniles have been more fortunate. In 1992, the court certified a subclass of plaintiffs who were identified as seriously mentally ill or mentally retarded. The criteria adopted by the court for each category of disability was based upon a stipulation by the parties. The court found that DJJ was not providing appropriate treatment to the subclass, but merely warehousing them. It ordered DJJ to survey the entire juvenile population, identify those juveniles meeting the subclass criteria, and begin providing appropriate treatment.

Initially DJJ attempted to comply with the court's order by contracting with the Department of Mental Health (DMH) to provide services at the DJJ institutions. The agencies set up a special dorm to house subclass juveniles who met the criteria for mental illness. The plan to provide mental health services in the juvenile justice environment did not succeed.

Eventually, through negotiations between DJJ, DMH and counsel for the juveniles, DJJ and DMH entered a memorandum of agreement (MOA). Under the MOA juveniles identified as falling under the subclass criteria for mental illness are transferred from DJJ to programs operated by or contracted under the DMH.⁽¹⁾ Once a juvenile is identified as falling within the subclass, DJJ has 30 days to hold an interagency treatment team meeting to decide what type of placement and treatment the juvenile needs. DMH has 90 days to locate an appropriate program and transfer the juvenile. Once the juvenile is transferred, DMH becomes responsible for the juvenile's care and custody. DMH makes all decisions with respect to treatment and transfer between programs, although coordination between agencies is encouraged. Pursuant to state law, the South Carolina Juvenile Parole Board retains the authority to release the juvenile back home. Short of release, the DMH may place the juvenile in lesser restrictive placements, as the juvenile's treatment needs dictate.

Although the system is not without its problems, the ultimate solution for the mentally ill subclass juveniles in South Carolina has resulted in a great improvement in the quality of care these juveniles receive. Prior to litigation these juveniles were merely warehoused at the DJJ institutions. Currently, DJJ has a system in place to identify, evaluate and transfer these juveniles out of DJJ in a relatively timely manner. The real success in the system is due to the DMH's commitment to take responsibility for this population of juveniles. Most of the juveniles are transferred to programs throughout the state that are run by private providers. In many cases, the juveniles have an opportunity to receive treatment appropriate for their needs, near their home communities.

For further information, please contact::
Gloria Prevost, Executive Director
803-782-0639

Recommendations for P&A Involvement

Individuals with special needs are vulnerable and often times viewed as a nuisance upon society. Furthermore, the criminalization of these individuals further fosters an unyielding, unaccepting and intolerant disposition from the broader community. Our most vulnerable special needs population must become priority in society.

There is an urgent need for changes in the mental health and criminal justice system and here are few recommendations on how P&As can become actively involved:

P&A involvement is needed in fostering collaboration among service providers and other community stakeholders towards a model of community based integrated services;

Advocacy efforts toward the creation of more community based, least restrictive alternative treatment settings;

Advocacy campaigning towards diversionary programs;

Advocacy efforts for increased mental health services in correctional settings;

P&A involvement in providing training to local law enforcement offices how to interface with individuals with mental illness; and

P&A involvement in advocating for additional mental health professionals and special needs population staff in correctional settings.

Upcoming Conferences

Women in Prison - State, National and International Conference: 28 November 2001 - 30 November 2001; Sisters Inside Inc. is hosting this important State, National and International Symposium in Brisbane to encourage debate on issues for women in prison and responses, especially the issues emerging in the 21st Century.
Mental Health and Criminal Justice Workshops at the 21st Annual ANZAPPL Congress: 21 November 2001 - 22 November 2001
13^th Annual National Youth-at-Risk Conference; February 24-27, 2002; The Westin Savannah Harbor Resort; Savannah, Georgia
2002 American Correctional Association Winter Conference; San Antonio, Texas; January 12-16, 2002
2002 American Jail Association's Annual Training Conference & Jail Expo; April 28 - May 2, 2002, Milwaukee, Wisconsin

Criminal Justice Organizations

American Correctional Association (www.corrections.com/aca)

American Correctional Food Service Association (www.acfsa.org)

American Correctional Health Services Association (www.corrections.com/achsa)

American Jail Association (www.corrections.com/aja)

American Probation and Parole Association (www.appa-net.org)

Association of Paroling Authorities International (www.apaintl.org)

Association of State Correctional Administrators (www.asca.net)

BJA Jail Work and Industry Center (correction.org/bja.htm)

Center for Restorative Justice & Mediation (ssw.che.umn.edu/ctr4rjm)

Community Justice Exchange (communityjustice.org)

Correctional Education Association (sunsite.unc.edu/icea)

Correctional Industries Association (www.correctionalindustries.org)

Corrections Technology Association (www.corrections.com/cta)

HIV Education Prison Project (www.hivcorrections.org)

International Association of Correctional Officers (www.acsp.uic.edu/IACO)

International Association of Correctional Training Personnel (www.iactp.org)

International Community Corrections Association (www.iccaweb.org)

International Corrections and Prisons Association (www.icpa.ca)

Jail Industries Association (www.correctionalindustries.org)

Mental Health in Corrections Consortium (www.mhcca.org)

National Association of Blacks in Criminal Justice (www.nabcj.org)

National Association of Pretrial Services Agencies (www.napsa.org)

National Association of Probation Executives (www.correctionssoftware.com/nape/)

National Center for State Courts (www.ncsc.dni.us/ncsc.htm)

National Center on Institutions and Alternatives (www.ncianet.org/ncia/)

National Commission on Correctional Health Care (www.ncchc.org)

National Correctional Recreation Association (www.effingham.net/ncra)

National Council on Crime and Delinquency (nccd-crc.org)

National Criminal Justice Association (www.sso.org/ncja)

National Prison Hospice Association (www.npha.org/abtnpha.html)

National Prison Project, American Civil Liberties Union (www.aclu.org/issues/prisons/hmprisons.html)

National Sheriffs' Association (www.sheriffs.org)

North American Association of Wardens & Superintendents (www.corrections.com/naaws)

The Sentencing Project (www.sentencingproject.org)

Victim Offender Mediation Association (www.voma.org)

The transfer of custody is accomplished pursuant to a state law provision that authorizes DJJ to transfer juveniles who are mentally ill or mentally retarded "to another state agency which in its judgement is best qualified to care for the juvenile…." S.C.Code Ann. §20-7-7815 (Law. Co-op. 2000).