SAKS INSTITUTE FOR MENTAL HEALTH LAW

SPRING SYMPOSIUM: CRIMINALIZATION OF THE MENTALLY ILL

STEPHEN MAYBERG, P hDAPRIL 11 , 2013

Policy, Practice and Perception: Implications in the Criminalization

of the Mentally Ill

Criminalization of the Mentally Ill

New trends or long term problemContributory factorsPerceptions/Public PolicyPromising alternatives

Policy Issues

Realignment CA Mental Health 1991 Funding/Responsibility shift State to county responsibility/authority

Civil Commitments/LPS

Forensic Commitments

1991 3300 600

2012 550 6000

State Hospital Population

Policy Impact: Realignment

Financial Incentives County choice/flexibility State pays for forensic care State hospital beds

County pays LPS State pays – NGI, IST, MDO, SVP

IST Costs Counties – Misdemeanors State - Felony

Resource Issues

County mental health allocation insufficient for all services

Limited long term care available Declining state hospital beds

24 hour acute care Short term – Crisis use Average stay less than 7 days

Follow up capabilities inconsistent Responsibility and resources

National Policy Trends

Community Care vs. Institutional CareDeclining state hospital bedsState hospitals/ IMD’s – no 3rd party paymentCourt decisions stressing communities

instead and community programs

Policy Decisions - Funding

MediCal (Medi-Caid) not available for single adults (forensic population)

State hospitals, IMDs, jails, prisons mental health services not reimbursable

Loss of MediCal eligibility in jail and juvenile hall

100% county (or state) cost for forensic services No federal participation

Program Development Practice/Policy

Incentive to develop programs is in areas where monies can be leveraged

Law enforcement more likely to be funded at local level with county dollars Public Safety Politically more acceptable

Liability/Public Perception

Local mental health programs concerns about responsibility for forensic patients

ADVERSE EVENTS Media coverage – “Blame” Torts/liability Local political pressures

Accountability/responsibility

Liability Perception Impact

Conditional Release from Parole for Mentally Ill Inmates (CONREP)

Extensive Service/Treatment Array – 100% state funded

Counties have right at first refusal Very few counties participate

Consequence: lack of coordination with local programs

Conflict About Responsibility for Care

Parole outpatient versus county mental health

Screening, evaluation, and recommendations Probation vs. County Mental Health

Who should provide/pay for service

Conflict

Voluntary vs. Involuntary treatment LPS Law variably implemented “Fungible” definition of WI 5150

Police vs. First Responders Jail vs. hospitals

Can reflect lack of clarity Impact training, resources, responsibilities Laura’s Law – Outpatient commitment

Only 1 county has implemented

Accountability

Who is accountable/responsible Lack of clarity “fall between cracks”

Conflicting laws/standards Welfare and institution code vs. penal code

Court Decisions Impact

Sell – U.S. Supreme court rules IST’s cannot be involuntarily medicated without criteria/hearing

Jameson vs. Farabee – California Courts – inmates cannot be forcibly medicated without hearing

Consequence – decompensation Barriers complicate ability to treat

IST Process

Incentives for state hospital treatment vs. jail Reduces jail census, jail treatment cost, court time

Incentive – Defense attorneys/inmates: hospital better than jail environment

Credit time served – hospital in lieu of jailMedication in jail usually cannot be

involuntaryConsequence: Disconnected system

Revolving door

Impact

Inadequate or insufficient treatment resources available in 24 hour institutions

Mentally ill in jail/prison opt to not get treatment

Recidivism common Mentally ill parolees most likely to be

revoked/reoffend

Other Contributory Factors

Substance Abuse 70% SI Adults have substance abuse issues 90% forensic mentally ill have co occurring diagnosis

Drug Use/Possession Illegal – Criminal Justice Contact

Substance Abuse Behavior Impulsive, lower frustration tolerance, aggression

Consequence: Untreated Substance Abuse More likely to become part of system

Contributory Factors

Vacaville Mental Health Study Evaluations on consecutive admissions over two time

periods Findings

Average IQ - low to low average Education – 8th grade Social Economic Status (SES) -low Brain Injuries – 65%

Fighting, Falls, Drug Use

Vacaville Continued

Employment marginalFamily History– more apt to be single,

disengaged from familyHistory of violenceConsequence: Complex factors must be

addressed to prevent criminal behavior

Policy Implications for Treatment

Cognitive/Outpatient treatment may not be effective

Structured environment may be requiredCoordination of substance abuse/mental

health treatment essentialEducational/Vocational programs integral

part of approach

Contributory Factors: Homelessness

Substance use/Mental illnessHostile living environmentCrimes of opportunity/Quality of life crimesHigh visibilityLack of coordinated resources or

responsibility

Contributory Factors: Stigma

Failure to access treatment because of stigma Perception of nexus of violence and mental

illnessMedia sensationalismBlame

NRA - Monsters

Contributory Factors: Public Perception

Perception: community safer with individuals locked up rather than treated in outpatient or in the community

NIMBY issues for community program placement

Elected officials tend to fund programs that lock up or promise “public safety” before funding community programs

Public Perception Continued

Tolerance/Expectations Parolee “Acting out” vs. Mentally Ill Differential response from press, media, community Funding for Control Agencies (Law Enforcement)

rather than treatment programs Prison realignment experience -AB 109

Summary of Issues - Responsibility

State vs. Local Law Enforcement vs. Mental HealthMental health vs. Substance Abuse“No One”

Summary of Issues - Finance

Insufficient funds for mental health/substance abuse treatment

No Federal dollars (MediCal) available for treatment of most forensic populations

Incentive in construction of laws/regulations for state to pay rather than counties for forensic populations

Paradox: Counties responsible and funded for rest of MH system a disconnect

Priority funding for Law Enforcement vs. Mental Health when monies are available

Summary of Issues – Stigma

Perception: individual concerns inhibits treatment seeking behavior

Perception: public concerns of stereotypes of mentally ill Mental illness and violence

Perception: community concerns, 24 hour care is “safer” than community treatment

Fear of Violence/unpredictability consistent and reinforced by media

Summary – Lack of Resources

Limited long term or structured careLack of specialty trained professionalsLack of specific programs addressing unique

needs of this populationLack of 3rd party participation

CONSEQUENCE Jails/Prisons have become our defacto mental health

treatment programs

Summary – Legal System

Involuntary medication difficultInvoluntary commitments difficultLegal system may encourage accepting

charges rather than treatmentCriminal Justice system not always well

informed about mental illness and options Administrative Office of Court Findings

Promising Practices/Opportunities

Policies that workPrograms that workPotential opportunities

Programs that Work

AB 34/2034 SteinbergHomeless Mental Health Services

Significant reduction in hospital days Significant reduction in jail days, arrests Cost effective – 50% reduction in costs Defined responsibility, broad based approach

Promising Programs (Con’t)

Law Enforcement Training/Partnership CIT (Crisis Intervention Training) for Law

Enforcement Smart/PET teams Mobile Crisis

Promising Program (con’t)

Court/Criminal Justice Involvement Mental health/behavioral health court Drug courts Diversion MIOCR programs

Policy that Works

24/7 Mental Health availability in crisis Point of contact responsibility Crisis training/consultation

Co-Occurring programsViolence programs

Bullying Domestic violence Anger management Trauma based approaches

Policy that Works (Con’t)

Mental Health Services in Jails/Prisons Connected with community programs Screening/case management Dedicated trained staff

Policy that Works (Con’t)

Stigma Reduction Media education Court/Law enforcement education Public education/awareness

Advocacy Involvement

NAMI Strong advocacy for recognition/treatment

alternativesClient Groups

Peer Support/Self help Promoting less stigmatizing alternatives

Best Practices/Opportunities

Proposition 63/Mental Health Service Act Target At-Risk Populations

Los Angeles County Mental Health examples Cultural Competence Outreach Urgent Care 24/7 Full Service Partnership (FSP) Homeless programs

Los Angeles Mental Health

Community PartnershipsEarly Intervention programs/PreventionStigma reduction programsJail programs

Best Practice/Opportunities

Co-Occurring Programs Specific programs designed for mentally ill/substance

abuse forensic patients PROTOTYPES as example

Target population Broad array services

CONREP Recidivism less than 10%

Opportunies

Health Care Reform Parity for Mental Health/Substance Abuse now

required Reduces Stigma Expands access

Expanded eligibility 3rd party payment for uninsured population

Incentives for treatment

Opportunities (Con’t)

Prison Realignment AB 109 New dollars for criminal justice system approaches Local decision making Role of prevention, diversion, and treatment

Opportunities (Con’t)

Utilization of Research finding Program success rates Cost Reduction Data Return on Investment (ROI)