Forensic Experts Propose New Commitment Process for Defendants With SMI

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A woman is arrested for spitting on passersby at Penn Station in New York. A man is arrested for knocking over displays in a retail store. Another is arrested, again, for threatening people on the street.

These individuals, often having serious mental illness, may be taken to an emergency department, then released again onto the streets. Or they may enter into a criminal justice system that involves costly competency assessments and hospitalization in order to stand trial, then confinement in the prison system—never getting anything like the comprehensive treatment planning they need.

A 2009 report of the APA Task Force on Outpatient Forensic Services estimated that more than 800,000 individuals with mental illness are under correctional control at any given time: 180,000 state-incarcerated individuals, 8,000 federally incarcerated individuals, 97,000 jail detainees, and 547,000 people on probation.

The system is long past a crisis. Now, a prominent forensic psychiatrist and a nationally recognized expert in mental health law are calling for a reset. In a paper published in Psychiatric Services, Steven Hoge, M.D., M.B.A., and Richard Bonnie, LL.B., are proposing a new commitment pathway that would divert offenders with serious mental illness into treatment. Hoge is a professor of psychiatry at Columbia University and director of the Columbia-Cornell Forensic Psychiatry Fellowship Program. Bonnie is a professor of law and director of the Institute of Law, Psychiatry, and Public Policy at the University of Virginia.

Current System Is Failing

Their proposal entails legislative action at the state level to create a new law allowing offenders with serious mental illness to be committed to treatment after arrest, avoiding the criminal justice system requiring competence to stand trial.

“We have been spending an enormous amount of money on forensic hospitalization in the service of the criminal justice process, without treating offenders with serious mental illness as patients and with no discharge planning for when they are released into the community,” Hoge told Psychiatric News. “This is the idea behind our proposal—to get these individuals out of an empty legal process and into a meaningful therapeutic system.”

The authors emphasized in interviews that their proposal requires advocacy and are calling on forensic and community psychiatrists and other stakeholders to consider the proposal and help to shape and polish it into policy that can be enacted.

“We want to start a discussion,” Bonnie told Psychiatric News. “We want the people who do this work for a living in community and forensic psychiatry to speak up about what is happening in their own communities and to consider whether this might be a possible solution. This is driven by the fact that the way the system operates now is a failure. Everyone is looking for an alternative.”

In the Psychiatric Services paper, the authors wrote that the new form of commitment would be applicable to “a subgroup of offenders with serious mental illness whose criminal behavior appears to be sufficiently related to their illness that they are likely to continue to offend in the absence of aggressive treatment interventions and social supports.”

In an interview, Hoge said as many as 40% to 60% of defendants with serious mental illness who end up in the criminal justice system might be eligible.

As in a standard competency to stand trial evaluation, a request for an assessment of a detainee’s commitment eligibility might be made by prosecution, defense, or the judge. “In practice, we expect that in many cases involving less serious offenses, commitment would be consensual,” the authors stated.

The commitment would follow current requirements including right to counsel, right to a hearing, proof by clear and convincing evidence, and the right to appeal. Proof would require clear and convincing evidence that the conduct underlying the charged offense was related to a serious mental illness.

Hoge said that treatment under their commitment proposal would be modeled on Assisted Outpatient Treatment (AOT). Services would include provisions for inpatient and outpatient care as necessary, including residential treatment, assertive community treatment, day treatment, and other needed care services.

Hoge and Bonnie said that adoption of this model does not exclude continued use of other innovations, such as mental health courts and diversion programs. But they emphasize that their proposed commitment process would be state mandated.

“Mental health courts are built one by one,” Hoge said in an interview. “They exist not by legislation but because a judge champions them. When the judge retires, the program can die. The courts get a lot of attention, but the truth is that they are rare because they are hard to put together and hard to fund.”

Moreover, mental health courts require the voluntary participation of the defendant, which means defendants must be competent to agree to the arrangement. “That means many of these defendants are going through competency assessments and hospitalization to restore competence,” Hoge explained. “Additionally, to be eligible for a mental health court, you have to be manageable as an outpatient. It’s a relatively narrow group who are competent, agree to the arrangement, and are stable enough to live in the community.

“Under our proposal, you don’t have to be competent—it’s a commitment process, and you can be admitted to an inpatient service.”

Concentrated State-Level Effort Needed

Forensic psychiatrist Barry Wall, M.D., who reviewed the paper for Psychiatric News, agreed that the current system is in dire straits and in need of new thinking. “A concentrated effort is needed to reform state commitment laws,” he said. “Ideally, such laws should provide protections and treatment for a person with mental illness before they become dangerous, homeless, arrested, or victimized. Creating this proposed new path to divert persons makes sense.”

But Wall said the public mental health system has been degraded by years of underfunding. “Until there is a political and social will to pay for basic health care for these individuals, with an understanding that they require a lot of intervention and comprehensive services, we are going to continue to be challenged,” he said. “All experts recognize that getting people with serious mental illness out of the criminal justice system and into proper treatment will eliminate the more expensive costs associated with confining and treating them in the criminal justice and forensic mental health systems. But there continues to be a fiscal disconnect between funding a new pathway and offsetting current costs.”

Hoge and Bonnie believe their proposal would reduce expenditures while emphasizing treatment. They noted that their early diversion would reduce state mental health system expenditures for competence restoration, which currently costs billions of dollars. In addition, the costs of initial competence assessment, prolonged jail waits, and their associated costs would be diminished.

Hoge said that advocacy is essential. “If we can get these offenders early into a system where they are getting real clinical services, including discharge planning, we are going to be better off.” ■