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For Too Many With Mental Illness, Incarceration is the Default

December 8, 2023 By: Debra A. Pinals, M.D. Read time:

In this Issue:

  • Fall 2023
  • Addressing Anxious Times
  • America's Age of Anxiety
  • America's Mental Health Crisis
  • Five Myths About Mental Health
  • Mental Illness & Incarceration
  • Creating Mentally Healthy Workplaces
  • Kids and Teens Need Resilience
  • Nature & Mental Health
  • The Power of Shame
  • What Happens When You Call 988?
  • When the System is the Barrier
  • When You Don't Know You Need Help
  • Why I'm Talking About My Mental Health
  • View All Other Issues
For Too Many With Mental Illness, Incarceration is the Default
More than a million people in America’s prisons and jails have behavioral health conditions. Many of them probably never needed to be there.

A man I’ll call Ty is 52 years old. During his 20s, he was dishonorably discharged from the Army with a diagnosis of chronic paranoid schizophrenia. The symptoms of his illness had become evident over time. At one point he told his superiors that voices in his head were harassing him and his commanding officer was communicating with him through microchips. More recently, he has lost touch with family and slept in a cardboard box in an overcrowded tent encampment of unhoused people. For months he has been sitting in jail awaiting adjudication after allegedly assaulting a police officer. The correctional staff offer medications to quell the voices, but he usually refuses them. They offer coloring books to let him pass the time, but he has no interest. He yells so much from his cell about the microchips that he frequently is put in the “hole,” an isolated cell.

A woman I’ll call Teresa sits alone in a county jail cell, longing for her children. She has been in and out of jail for 10 of her 32 years on Earth, for charges related to drug dealing and drug use. Removed from her biological parents as a young girl after experiencing terrible abuses, she spent her early years in foster care and juvenile hall. There were abusive boyfriends. Though there were a few kind social workers, none remained in her life and she trusts no one. Her two children are in the custody of her mother. She is diagnosed with post-traumatic stress disorder and major depressive disorder, along with opioid and methamphetamine use disorders.

Ty and Teresa are composite characters, built on traits and experiences that I’ve seen in countless detention facilities in the United States over the past three decades.

This nation incarcerates more people than any other country on the globe, with somewhere between 6 million and 6.5 million under correctional supervision, including prisons, jails, parole, and probation. Exact estimates vary slightly, but we in the field agree that about 16% of this population has some form of significant mental illness. 

That means there are about 1 million Tys and Teresas. And it means that their jails have become their de facto mental health institutions, which the facilities were never intended to be.

And even those overwhelming numbers don’t fully portray a growing national concern. Suicide rates among incarcerated people are increasing. The co-occurrences of serious substance use disorders among the correctional populations are on the rise. And intersecting facets of who this population is—Black, Hispanic, Native American, often poor—mean these numbers will grow for these populations because they have a higher likelihood of arrest—often for minor infractions—and have longer stays in detention settings.

Or a higher chance of not landing behind bars at all because statistics show they have much greater chances of dying early either from medical conditions or from being shot by police during encounters that get out of hand. The Washington Post noted in 2018 that 1 in 4 people fatally shot by police the prior year suffered from mental distress, according to a report by the Treatment Advocacy Center.

The stigma associated with those with mental health issues and with those in the criminal justice system must be overcome.

That there is over-representation of people with these “behavioral health” conditions (things like mental illness, substance use disorders and even mixed with intellectual and developmental disabilities) in the criminal legal system is not news. But the COVID-19 pandemic brought new attention to the challenges of mental illness in a society with over 30% of the population reporting anxiety or depression, and ongoing alarming rates of suicide, overdose, and homelessness. And the laser-focused attention on the disparities for people of color with these challenges has renewed efforts for a more equitable service system that provides the right care and support at the right time and in the right place. In the criminal justice system, that means new practices—jail diversion programs, mental health and drug courts, and other interventions—are being developed that try to stem the tides. But with the growing numbers of people affected, these innovations must get up and running faster and become more effective.

Society as a whole would benefit from these innovations by reducing prison costs and allowing law enforcement to expend its resources on fighting crime instead of providing mental health crisis responses for which it is not trained or equipped.

Fortunately, there is a roadmap to a successful future if we have the will to follow it.

People in the criminal justice system pass through many decision gates before incarceration; each one is an opportunity to identify their mental health and substance use needs, allowing people to be intercepted and referred to the care that they need.

It begins with the first encounter with someone in crisis, often because of a call to 911. The country’s new 988 lifeline, formally established in July 2022, is meant for those facing a mental health or substance use crisis issue, and the number is already seeing a rise in calls. Often, those in need can be helped just by talking to the trained responder on the line, and a response from police is unnecessary.

If a physical response is necessary, who shows up is also changing. A growing number of communities are creating mobile crisis response teams that include trained mental health staff, or specially trained medical personnel (and yes, sometimes police officers with specialized training). These teams can de-escalate difficult situations that otherwise might lead to arrest or an armed police response. They can get people diverted to the mental health care that is required and often follow up on cases to ensure that longer-term treatment is arranged—and arrests are avoided.

When those efforts are successful, they allow people to avoid the criminal justice system. For those who are arrested, there is the next series of intercept points. Many localities now have specialized problem-solving courts such as drug courts, veteran treatment courts, and mental health courts. These courts can divert individuals into alternative treatment programs and replace incarceration with care. And for those who are incarcerated, some communities are able to provide care through specific treatment programs within jails and prisons.

The final intercept point is for those people who go through the criminal justice system, are incarcerated, have served their sentence and now face re-entry to society.

The initial months out in society after incarceration are often especially perilous for those with mental health and substance use issues. The risk of death from overdose, for example, is almost 13 times higher for people being released from prison within the first two weeks after their release compared with the general population. There are many reasons for this, and more support is needed to address gaps when services provided within the prison abruptly end. That’s when community services need to step in—but instead people usually face fragmented and disconnected care as they transition out of prison and into the community.

Fortunately, there is a growing recognition of the challenges faced by people with mental health and substance use disorders, prompting new efforts at the federal, state, and local levels to build out a robust and more interconnected system to provide a continuum of care. This includes services to keep both youth and adults in home- and community-based programs, providing care that helps them avoid reaching the crisis points that could prompt a law enforcement response that funnels them into the criminal justice system.

Other efforts are underway to help those already in the system as well.

A new initiative through Medicaid is helping by covering some services up to 90 days before a person is released from a correctional setting. California was the first state to receive approval for this, and there have been and will be others. Such funding of services pre-release can ensure smoother transitions to care for these persons by community providers once they are out of prison. A key component is the use of peer counselors: Research has increasingly recognized the value of lived experience, from those who have gone through the system, in mentoring people and helping them achieve better outcomes and recovery.

Our criminal justice system is filled with people who bounce through courts, jails, prisons, parole, and probation—people who need mental health and substance use care to prevent them from re-entering the system at a cost to them and to society.

The federal government is also expanding the Certified Community Behavioral Health Clinic (CCBHC) model of services. These clinics provide rapid access for anyone who wants treatment, providing screening for anyone who enters the door regardless of ability to pay or type of insurance. The CCBHC model also sets up mobile crisis intervention services and partnerships with local sheriffs and law enforcement to focus some outcomes on diversion from arrest and jail, provide substance use treatment services, and develop relationships with other community systems such as schools.

What makes this CCBHC model especially useful is its funding structure: Clinics aren’t simply paid on the traditional fee-for-service arrangement but instead on the number of people served. Paying for non-billable yet still essential needs, such as clinic infrastructure, means communities can be nimble in providing quick and effective treatment to those who need it.

These innovative programs and funding designs provide a roadmap that can lead to a better future. And we certainly can see the problem that needs to be addressed. So the one last ingredient of success comes down to vision.

Collectively as a nation, we must consider what public safety really looks like today—and how it can be made better for us all. Our criminal justice system is filled with people who bounce through courts, jails, prisons, parole, and probation—people who need mental health and substance use care to prevent them from re-entering the system at a cost to them and to society. Indeed, it’s the very care that could have prevented them from entering the criminal justice system from the start if only they had received attention they needed and deserve.

Great need often sparks a great response, and that is where we are today as a nation. With local, county, state, and federal governments and all the many potential partners working on improving access to mental health and substance use disorder services, there are opportunities to turn the statistics around and to demonstrate success.

But it will require a cultural change, too. The stigma associated with those with mental health issues and with those in the criminal justice system must be overcome. Someone with a broken bone must get a cast and help recovering. Someone with diabetes must receive needed treatment and help recovering. And someone with post-traumatic stress disorder or schizophrenia or substance use disorder must receive the medication, counseling, and therapy needed to provide help recovering. And they must receive this help before the criminal justice system becomes the place of last resort.

From the 988 system to new funding opportunities for services geared for those re-entering society from jails and prisons, we have the tools to make a difference. To be sure, part of the journey for the Tys and Teresas will be the work they must do to help themselves move to a better place in life, to make healthier choices for their personal wellness, and to make positive decisions. But experience shows us that we must offer support, hope, and opportunities to enhance their well-being and safety and the safety of others. We must realize that society will be enhanced if we do more than simply lock them up.

The Takeaway

Reforming the criminal justice system to deliver interventions such as mental health and drug courts and jail diversion systems would keep more people with mental illnesses out of jail and get them the help they need.

Debra A. Pinals, M.D., is a clinical adjunct professor at the University of Michigan Law School and a clinical professor of psychiatry and director of the Program in Psychiatry, Law, and Ethics at the University of Michigan Medical School. She also serves as the senior medical and forensic adviser to the National Association of State Mental Health Program Directors. The opinions expressed in this article are her own. 

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