Criminal Justice / Mental Health Consensus Project

8. Consultation with Victim

10. Modification of Pretrial Diversion Conditions

Prosecutorial Review of Charges

POLICY STATEMENT # 9

Maximize the use of alternatives to prosecution through pretrial diversion in appropriate cases involving people with a mental illness.

As the representative of the state, the prosecutor is responsible for ensuring that criminal cases are resolved in the best interests of justice.[1] The best interests of justice can sometimes be served by extending to the individual the opportunity to address issues that may have led to the commission of the alleged offense without prosecuting the individual. When the case involves a minor offense or first-time offender, the prosecutor has the authority in many jurisdictions to provide that opportunity through pretrial diversion.

Authorizing which defendants will be offered pretrial diversion rests with the prosecutor and is addressed on a case-by-case basis in accordance with the laws of the jurisdiction authorizing diversion. Unlike the pretrial release/detention decision discussed in Policy Statement 11, the decision of whether to offer the defendant the opportunity to participate in a pretrial diversion program is at the discretion of the prosecutor. Prosecutors typically rely on a number of criteria, including the potential danger to the community, the nature of the offense, the defendant's prior criminal record, and the wishes of the victim, in reaching a diversion decision. When faced with a defendant with a mental illness, prosecutors should also look at the relationship between the defendant's mental condition, whether the defendant was receiving adequate community treatment, and the behavior that led to the arrest.

Highlighting diversion programs designed especially for people with mental illness by no means suggests that these individuals should not have the same access to any diversion programs that are available in a jurisdiction to a person without mental illness.

Recommendations for Implementation

a.		Provide sufficient dispositional opportunities for people with mental illness for prosecutors to employ early in the court process.

The crux of this recommendation is the need for more dispositional diversion programs for individuals with mental illness who come in contact with the criminal justice system. Pretrial diversion programs have been in existence in many jurisdictions for decades, serving mostly first-time offenders or those charged with minor offenses. The earliest diversion programs were based on the recognition that the justice process itself could be harmful - in some instances, criminogenic - and that for certain types of defendants, "diverting" them from the traditional process into a rehabilitative program and holding their charge in abeyance would reduce the likelihood of recidivism.[3] This same recognition surfaces when considering the person with a mental illness who is charged with a crime.

There are jurisdictions that provide pretrial diversion opportunities specifically for defendants with mental illness.

Example: Mental Health Diversion Program, Jefferson County (KY)

In Jefferson County, the Mental Health Diversion Program serves nonviolent defendants charged with either misdemeanors or felonies who suffer from chronic mental illness and have a history of treatment for mental illness. Defendants who are placed in pretrial diversion undergo intensive treatment for a period of six months to one year. Upon successful completion, the charges are dismissed.

Several jurisdictions have been developing models for community prosecution, in which prosecutors reach out to the community to seek input and assistance in both preventing and responding to crime. Community prosecution may be an effective vehicle for expanding the opportunities for diverting from prosecution people with mental illness.

b.		Ensure that the defense and the mental health community work together to provide, in appropriate cases, mental health information to the prosecutor for use in pretrial diversion decisions.

When an arresting officer brings a case to the prosecutor's office, a prosecutor screens the case to determine whether to file criminal charges, and, if so, which charges.[4] The police report, which describes the circumstances that led to the arrest of the individual, might note any overt behaviors that are indicators of mental illness. (See Policy Statement 5: Incident Documentation) That report usually is made available to prosecutors very early in the life of the case - sometimes within hours of arrest. Often, however, prosecutors may have no indication of possible mental health issues when reviewing the arrest information. The arrestee may not have exhibited symptoms of mental illness at the time of the incident, or the officer may have believed that the person was under the influence of drugs or alcohol. Without such information, the prosecutor cannot consider special accommodations that the defendant might need to be successful in pretrial diversion or any specialized mental health diversion program that might be appropriate. Procedures have been implemented in some jurisdictions to gather mental health information for the pretrial diversion decision.

Example: Pretrial Services Program, Pima County (AZ)

In Pima County, Arizona, the prosecutor uses information collected by the pretrial services program for the pretrial release hearing to identify misdemeanor defendants who have a mental illness and who might be candidates for pretrial diversion. Those placed in the diversion program undergo a 180-day treatment program. Charges are dismissed upon successful completion of the program; prosecution resumes if the program is not completed.

In this example and others like it, the defendant has given prior written consent for the release of mental health information for the purpose of determining possible placement in a pretrial diversion program. The consent should be provided only after the defendant has consulted with his or her attorney. (See Policy Statement 7: Appointment of Counsel, for more on consent issues.) The consent provided should be in writing and explicitly specify what information the defendant is consenting to have released, who is being authorized to make the release, the parties to whom the information will be released, and the purposes for which the information is to be used. Finally, the release of mental health information should be consistent with all applicable confidentiality and ethical requirements, as well as conforming to the principle that the information released is the minimum necessary to make an informed pretrial diversion decision. All information collected through this process should also be made available to the defense attorney.

c.		Expand the options available in rural areas to provide mental health services for people with mental illness who might be candidates for pretrial diversion.

The opportunities for identifying or establishing the resources that would provide the range of options discussed here are much greater in urban and suburban areas than they are in rural areas. In fact, in many rural areas there may be no options at all. The chief problem that rural areas encounter as it relates to viable options for those with mental illness who are in the criminal justice system is the lack of mental health professionals. For example, more than half of the 3,075 counties in the United States - all of them rural - have no practicing psychiatrists, psychologists, or psychiatric social workers.[5]

The mobile units that law enforcement and mental health officials have teamed up in recent years to institute in many urban jurisdictions may hold clues for developing a model for options that can be used by courts to develop release alternatives in rural jurisdictions. These units are designed to respond rapidly to a person in a mental health crisis so that an arrest is avoided and the person is taken to an appropriate mental health facility. In rural areas, such mobile units may provide the courts with alternatives by bringing mental health treatment resources to those who need it. It may also be useful to make greater use of telemedicine, in which mental health professionals are available to conduct private telephone consultations with mental health patients from a remote location.

Availability of Mental Health Treatment as an Option to Courts in Rural Areas

The federal government has been attempting to address the shortage of health care workers in rural areas since 1987, when the National Advisory Committee on Rural Health (NACRH) was established within the Department of Health and Human Services (HHS) to seek solutions to health care problems in rural areas. The committee has made several recommendations, such as: increase the awareness of health care opportunities in rural areas and ensure that students are academically prepared to take advantage of these opportunities; and create incentives for health care practitioners to practice there. Such incentives include financial support for students who will commit to service in rural areas, enhancement of Medicare reimbursements for rural providers, and granting tax credits to providers who serve rural areas. Many of these recommendations have been followed and have brought some relief to the health care shortages in rural areas.[6]

The U.S. Department of Justice, currently through its Bureau of Justice Assistance, also provides block grant funding to the states. In the past, block grant funds could be used for a number of different purposes, including to address alternatives to detention for those who pose no danger to the community.[7]

HHS has sought to address the mental health needs of rural residents through the Mental Health Block Grant program, which provides funding to states to improve access to mental health services.[8] More than $350 million is allocated to this program annually. In order to receive their block grant funds, states must submit plans to address the mental health needs of various state ubpopulations, including those who live in rural areas.[9]

State and local officials should work together to ensure a coordinated use of block grant funds from the Departments of Justice and HHS to address the mental health treatment needs of people who have been charged with criminal offenses in rural areas.

Diversion Defined [2]

The use of the term "diversion" here employs the definition spelled out in the Diversion Standards of the National Association of Pretrial Services Agencies. "[A] dispositional practice is considered diversion if: (1) it offers persons charged with criminal offenses alternatives to traditional criminal justice or juvenile justice proceedings; and (2) it permits participation by the accused only on a voluntary basis; and (3) it occurs no sooner than the filing of formal charges and no later than a final adjudication of guilt; and (4) it results in a dismissal of charges, or its equivalent, if the divertee successfully completes the diversion process."

Identifying the correct source of information requires that the individual cooperate, supplying the name of the attending clinician and providing consent to contact the clinician.

In cases where the individual has no prior history of receiving mental health services it may be necessary to have an assessment conducted by a mental health clinician before a decision - pretrial diversion, pretrial release, adjudication, or sentencing - is made. In such instances, the incident that led to the arrest may have been the individual's first indication that he or she may have a serious mental illness.

Identifying the Sources of Mental Health Information for Court Officials.

A key issue in the release of mental health information to criminal justice officials, regardless of the decision point, is identifying all the sources of this information in individual cases. This can be problematic, especially in larger jurisdictions where the individual may have received services at a number of different locations, or where the individual is transient, moving from one jurisdiction to another. Ideally, the individual's most recent clinician should have as up-to-date a history as exists.

[1] "The prosecutor must seek justice. In doing so there is a need to balance the interests of all members of society, but when the balance cannot be struck in an individual case, the interest of society is paramount for the prosecutor," (emphasis in the original). National District Attorneys Association, National Prosecution Standards, Commentary to Standard 1, p. 11.

[2] National Association of Pretrial Services Agencies, Performance Standards and Goals for Pretrial Release and Diversion: DIVERSION, August, 1995, pg. 1.

[3] For an excellent review of the early years of diversion programming, see John P. Bellassai, "Pretrial Diversion: The First Decade in Retrospect," The Pretrial Services Annual Journal 1, 1978, pp. 14-41.

[4] According to the standards of the National District Attorneys Association, prosecutors should exercise that discretion using several criteria, including the strength of the evidence against the accused and the agreement of the victim to cooperate. Two other criteria are undue hardship caused to the accused and the availability of suitable diversion and rehabilitative programs. National District Attorneys Association, National Prosecution Standards, 1990.

[5] Georgine M. Pion and Harriet McCombs, Mental Health Providers in Rural and Isolated Areas: Final Report of the Ad Hoc Rural Mental Health Provider Work Group, Rockville, MD: The Center for Mental Health Services, 1997.

[6] National Rural Health Policy: Recommendations from the First Eight Years of the National Advisory Committee on Rural Health, Rockville, MD: Office of Rural Health Policy, U.S. Department of Health and Human Services, 1997.

[7] See the Web site of the Bureau of Justice Assistance at: www.ojp.usdoj.gov/BJA for the latest guidelines on the use of block grant funds.

[8] Ibid.

[9] Ibid.

8. Consultation with Victim

10. Modification of Pretrial Diversion Conditions