The Future of the Courts: The Next 10 Years

Phillip Knox and Peter C. Kiefer

Contributing Factors & Impacts of Mental Health Issues in the Criminal Justice System

There are enormous societal and economic costs of warehousing mentally ill offenders in our jails and prisons. Several criminal justice jurisdictions have not quite reached consideration of imbedding devices into these persons but there are some interventions and policy changes that are now addressing how we might better reach reasonable solutions.

What is defined by experts as severe mental illness impacts nearly one quarter of the population that comes in contact with U.S. corrections (jails, prisons and on probation) [i]  Epidemiological studies identify close to 15-24 percent of prison inmates in the category of severely mentally ill.[ii]  The sheer number of individuals that impact and are impacted by law enforcement, courts and corrections is staggering.  What becomes more remarkable in this story is that the needs of this population is extraordinarily and exponentially greater than other groups of individuals.  For example, mentally ill prisoners have higher rates of misconduct and accidents in prison.[iii]  These acts of misconduct and accidents thereby drive indirect costs in prison. Staff in jails and prisons may sometimes be specially trained in methods to better deal with individuals who suffer from bouts of mental illness while in custody but certainly other inmates are not trained to interact with other inmates who suffer from mental illness and may be untreated.  More than 24 percent of state prisoners with mental health problems compared to 14 percent without had been charged with physical or verbal assault on prison staff or fellow inmates since admission [iv]

A report from the Bureau of Justice Statistics (BJS) on the mental health of prisoners and jail populations in the US indicates that more than 700,000 inmates reported symptoms or a history of a mental health disorder.[v] Although there are some differences in how disorders and mental illness is defined by jurisdictions, organizations such as the BJS distill down the factors and elements that are inherent in the various state laws so that language descriptors can be used for evaluation.

There are a number of factors that can be tied to the increasing population of persons with some level of mental illness in US jails and prisons. A general lack of adequate services available for those in the community with these needs and a fragmented, if even available community –based service delivery system are key to the challenges.  Additionally, there has been a marked increase in the rate of substance use disorders and criminogenic risk factors among those who already have mental illness.

In 1965, with the advent of the Social Security Amendments (Medicare, Medicaid) there was a continuing move towards deinstitutionalization that had begun a decade earlier.  This led to shifting of treatment costs to the Federal government. Government policies however would later exclude most use of institutionalization as a means for the treatment of mental disease.[vi]  In the absence of developed community service delivery methods to reach these populations, jails and prisons became the primary housing for persons with mental illness. There are now more mentally ill persons in jails and prisons than in hospitals.[vii]  The lack of community treatment systems in place, reduced or inadequate funding from state and federal sources absent a crisis has only caused increases in the number of persons with mental illness now committed to criminal justice institutions.[viii] 

There are some additional elements that have acerbated issues and presented additional challenges. As with the general population, the age of those in our criminal justice institutions is getting older.  Older inmates tend to have mental illness at higher rates than their younger peers. Therefore, this factor alone adds to the climb in mental illness observed in prison populations.[ix]  For a number of years, the criminal justice system has dealt with large numbers of males, both young and middle-age.  What criminologists and criminal justice professionals have noticed over the past two decades or more is the influx of females into the system.  Among many jail systems, there has been a steady increase in the number of women being booked. Since 1995, the number of women housed in jails and prisons has nearly doubled and now exceeds 225,000.[x] There are different speculations as to why ranging from a lack of facilities in the community that can address housing needs for women, lack of alternative solutions for drug addiction and co-occurring disorders and the lower social and economic status of some women. As a percentage, more women than men are in custody for drug offenses and property crimes. At the time of booking, 31 percent of females and 14 percent of males have a serious mental illness.[xi]

Promising Practices and Alternative Solutions- Addressing Mental Illness

Just over twenty years ago (1997) there were only four courts or programs across the country that called themselves a mental health court.  Today that number has grown to over 300.[i] For years these programs have been the mainstay of courts and the most promising criminal justice interventions for mentally ill offenders.  Mental health courts are devised to provide community –based treatment instead of jail or prison, increasing access to medication and mental health care. Improvements have led to community –based reentry programs with coordinated services and case management for mentally ill transitioning. Diversionary programs have been developed both pre-trial and at the adjudication stages. Some of these have multi –disciplinary teams that include social worker, pretrial and/or probation.  Referrals are made to community-based services and clinics that specialize in mental health services. Substance abuse monitoring along with intervention and a coordinated involvement with family, community members and partners in the reentry process have also been determined to be vital to a more holistic approach.

The Substance Abuse and Mental Health Services Administration (SAMHSA) has identified key elements of an effective court response to persons with mental health disorders.  In a September 2018 publication, they list these as: use of pretrial screening tools to make adjustments for mental disorders; ensuring that pretrial diversion includes an effective mental health services component; early identification and screening to reduce length of incarceration; clinical assessment; identification of treatment resources, referral system and linkage/engagement and recovery-based engagement strategies that focus on the person’s multiple needs.[ii] Effective court and community responses are important to many matters faced but especially vital to the proactive responses to dealing with mentally ill people who come in contact with the criminal justice system.  Persons with mental illness are sixteen times more likely to be killed than any other civilians approached or stopped by law enforcement.[iii]

The effectiveness of the response requires interventions prior to engagement in the criminal justice system. Key areas of importance are the role of court leaders; accuracy of data; information sharing among related partners and identifying intercept points where the individual with mental health needs can be intercepted and prevented from continuing future contact with the criminal justice system. The Sequential Intercept Model (SIM) was developed based on the notion that an effective strategic planning tool is needed to better address the needs of those with mental health disorders and to assess available resources in the community and identify any gaps in services.[iv] The model identifies six levels or intercept points (community services-0; law enforcement-1; initial detention/initial court hearings-2; jails/problem solving courts-3; reentry-4 and community corrections-5).

The best and most promising options are being explored every day through the exploration of best practices.  One of these options is the Reinvestment Bill (Senate Bill 973) – Curb Jail Bookings of People with Behavioral Health Needs signed by the governor of Oregon on July 15, 2019.  Impacting fiscal years 2020 -2021 this legislation changes the way communities respond to people with complex behavioral health issues. Mainstays of the new program are providing supportive housing and crisis stabilization units or medication(s) and care coordination.  Legislative goals are to improve people’s lives, reduce pressures on law enforcement and free-up taxpayer funding for other programs. Another developing program with some promise to address the needs of mentally ill is the Crisis Stabilization Units which through $6.4M of funding is operational in four Arkansas counties.  Two stated goals of that project are to alleviate jail overcrowding and reduce recidivism.

Another initiative established to reduce the number of people with mental illness who are or may become incarcerated is the Stepping up Initiative. This is a coalition of the National Alliance of Mental Illness, Council of State Governments Justice Center, National Association of Counties, American Psychiatric Foundation and a host of law enforcement, mental health and substance abuse organizations around the country.[v] More than 500 U.S. counties have pledged to implement data-driven programs and policies that focus on crisis intervention, societal reentry and getting the proper care to individuals.

What Might the Future Hold- Asking the Experts

Over the course of seven years and eight different surveys on the Future of Courts, a total of three questions have been posed directly relative to mental health and the criminal justice system. It may be that not much can be gleaned from respondents’ answers to that limited inquiry.  On the other hand, a total of 1,400 court professionals have taken the time over this period to consider our questions and then contemplate what might be – ten or more years out from the time of the specific survey.  There is true value in that type of considerate thought.

This review of the compiled data and research on what courts and the criminal justice system have been doing to address the issues of mental health since we last surveyed is intended to provide additional background and encourage conversation.

In the winter-spring 2014 survey, we posed the issue:  Governments relocate mentally ill defendants out of jails and prisons.  As so many mentally ill defendants end up in jail or prison, governments finally enact rules and statutes to relocate the mentally ill to separate facilities away from general populations to focus on giving them needed treatment.

In that same survey released in winter- spring 2014 we asked a competing question. That scenario was posed as, Prison and Jail is Still the Most Common Way of Dealing with the Mentally Ill. Jails and prisons end up being the default location for the mentally ill. Although the two scenarios seem to be at odds, respondents leveled out the difference in the scenarios through their responses. What is meant by this is that by averaging to the center, a “maybe” end result for each, there is no clear answer as to preferred scenario.

Responses to that first scenario resulted in providing a, Maybe 50/50 conclusion as it registered a 2.7 on our scale.  There was little variance among the different age cohorts: Traditional Generation 2.6; Baby Boomers 2.8; Generation X 2.7 and Millennials 2.7.  This data is expressed in the chart below.


We again posed the scenario, By default, incarceration is the most common way of dealing with the mentally ill nearly four years later (2018). We might surmise that with very similar response rates ( mean 2.8) that not much has surfaced in how to treat the mentally ill and respondents have little optimism that there are approaching remedies as they scan ten years into the future. The mean score of responses in 2014 was 2.8 as well.  When we consider the age cohorts there is little difference except maybe for the older respondents which is slightly closer to an “unlikely”.  Traditional Generation 3.2; Baby Boomers 2.8; Generation X 2.8 and Millennials 2.7. (see chart below)

Not long after the release of the first two questions in 2014, we attempted to have our survey takers consider an option for the treatment of mentally ill in the criminal justice system. Through the winter 2015 release, we posed the scenario, Devices attached to mentally ill defendants monitor and manage chemical imbalances. Devices to check on a variety of medical conditions such as blood pressure, heart rate, and even brain activity are easily and inconspicuously worn or even implanted into the human body. Mentally ill defendants are monitored and managed in order to keep them stable.

It may have been that the, body implants, was a controlling concern of some of the respondents.  In a society that has become aware, if not accustomed to the idea of individuals released on criminal charges and sentenced defendants wearing electronic monitor as a condition of release, it may be a, bridge too far, to consider the intrusion of an implant. Prior to release of this scenario that used this language, there was much consideration as to whether it remained in the final question.  We do always remind our audience that we wish for them to focus their thinking to ten or more years out from the date of the scenario. 

As can be seen in the third chart below, the resultant response only reached to, Unlikely (3.1).  None of the discrete age groups varied much and all believed the scenario to be Unlikely even ten years into the future. Traditional Generation 3.3; Baby Boomers 2.9; Generation X 3.3 and Millennials 3.2.

I will note that there were 140 court professionals who reconciled that by 2025, some form of device, whether it be a next generation of ankle bracelet or otherwise was likely or highly likely a tool of option in managing the mentally ill. A number of us in the former two age groupings can recall our early exposure to devices that could confine an individual to a certain defined location, keep them away from other locations and even detect alcohol in their bloodstream and be checked over telephone transmission.   If our options are to restrict interaction with the general population, confine persons in facilities that are not a jail or prison or confine the mentally ill in jails or prisons, are these devices a more civil and humane alternative?

Are the days of warehousing the mentally ill in jails and prisons coming to an end?  Are there reasonable and promising programs that may mean an end to this practice? When we consider the responses of those who considered the survey questions in the past five years, collectively it can be noted that there is some optimism looking out ten years that options may present themselves. There seems to be a high-level of agreement by these court professionals that jail and prison is not the appropriate environment to house and treat those with mental health or co-occurring disorders- but where?  It is very likely that there are some viable options and a growing trend of working together to provide solutions that will be sustainable and meaningful for this vulnerable and growing population.

[i] Csgjusticecenter.org/mental-health-court-project (2019).

[ii] https://storesamhhsa.gov/shin/content//sma15-4929/sma15-4929pdf.

[iii] Treatment Advocacy Center, Overlooked in the Undercounted: The Role of Mentally Ill in Fatal Law Enforcement Encounters,1 ( (2015).

[iv] https://www.prainc.com/sim/

[v] NAMI.org/About-NAMI/National-Partners/The –Stepping-up-Initiative

[i] Ditton, Paula M., Mental Health and Treatment of Inmates and Probationers. Bureau of Justice Statistics Special Report No. NCJ 174463. Washington, D.C. U.S. Department of Justice. Office of Justice Programs (7-11-1999).

[ii] Baillargeon, Jacques, Ingrid A. Binswanger, Joseph V. Penn and Brie A. Williams, 2009. Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door.” American Journal of Psychiatry 166 (1): 103-109.

[iii] Fellner, Jaime, 2006, “A Corrections Quandary: Mental Illness and Prison Rules”. Harvard Civil Rights- Civil Liberties Law Review 41:391-412.

[iv] Fellner, 2006.

[v]James, Doris J; and Lauren E. Glaze 2006. “Mental Health Problems of Prison and Jail Inmates.” Bureau of Justice Statistics Special Report No. NCJ 213600. Washington D.C.; U.S. Department of Justice, Office of Justice Programs.

[vi] Frank, R.G. and Glied, S.A., Better But Not Well: Mental Health Policy in the United States Since 1950. Baltimore (MD) John Hopkins University Press; 2006.

[vii] Treatment Advocacy Center, More Mentally Ill Persons are in Jails and Prisons than Hospitals: A Survey of the States (2010). http://www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pdf.

[viii] Treatment Advocacy Center (2010).

[ix] Chiu, Tina. 2010.” It’s About Time: Aging Prisoners, Increasing Costs and Geriatric Release. New York: Vera Institute of Justice.

[x] Bronson, J. and Carson, E.A. (2019) Prisoners in 2017.  Washington, D.C., Bureau of Justice Statistics.

[xi] Steadman, H.J., Osher, F.C., Robbins, P.C. Case, B., Samuels, Prevalence of Serious Mental Illness Among Jail Inmates. Psychiatry Services, 2009; 60 (6): 761-5.

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