Policy, Practice and Perception:
Implications in the Criminalization
of the Mentally Ill
SAKS INSTITUTE FOR MENTAL HEALTH LAW
SPRING SYMPOSIUM: CRIMINALIZATION OF
THE MENTALLY ILL
STEPHEN MAYBERG, PhD
APRIL 11, 2013
Criminalization of the Mentally Ill
 New trends or long term problem
 Contributory factors
 Perceptions/Public Policy
 Promising alternatives
Policy Issues
 Realignment CA Mental Health 1991
 Funding/Responsibility shift
 State to county responsibility/authority
State Hospital Population
Civil Commitments/LPS
Forensic
Commitments
1991
3300
600
2012
550
6000
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 Care
 Declining state hospital beds
 State hospitals/ IMD’s – no 3rd party payment
 Court 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 jail
 Medication in jail usually cannot be involuntary
 Consequence: 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 marginal
 Family History– more apt to be single, disengaged
from family
 History of violence
 Consequence: Complex factors must be addressed to
prevent criminal behavior
Policy Implications for Treatment
 Cognitive/Outpatient treatment may not be effective
 Structured environment may be required
 Coordination of substance abuse/mental health
treatment essential
 Educational/Vocational programs integral part of
approach
Contributory Factors: Homelessness
 Substance use/Mental illness
 Hostile living environment
 Crimes of opportunity/Quality of life crimes
 High visibility
 Lack of coordinated resources or responsibility
Contributory Factors: Stigma
 Failure to access treatment because of stigma
 Perception of nexus of violence and mental illness
 Media sensationalism
 Blame
 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 Health
 Mental 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 care
 Lack of specialty trained professionals
 Lack of specific programs addressing unique needs
of this population
 Lack of 3rd party participation
 CONSEQUENCE
 Jails/Prisons have become our defacto mental health
treatment programs
Summary – Legal System
 Involuntary medication difficult
 Involuntary commitments difficult
 Legal system may encourage accepting charges
rather than treatment
 Criminal Justice system not always well informed
about mental illness and options

Administrative Office of Court Findings
Promising Practices/Opportunities
 Policies that work
 Programs that work
 Potential opportunities
Programs that Work
 AB 34/2034 Steinberg
 Homeless 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 programs
 Violence 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 alternatives
 Client 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 Partnerships
 Early Intervention programs/Prevention
 Stigma reduction programs
 Jail 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)