Handling mentally ill offenders

Does your local law ­enforcement have a way to identify mentally ill people in crisis? If so, do your agencies have a way to divert these ­people to a treatment center versus a booking center?

Art Clayton
Assistant Criminal District ­Attorney in Tarrant County
Many times officers are called to a case clearly involving mental health issues. In those cases, the officer may be able to make a decision about where to direct a situation. Specifically, the Arlington Police Department has been training to identify low-level offenses where there may be a mental health component, such as criminal trespass. The City of Arlington also has the Mental Health Patrol Response Program, which is staffed on each shift by officers who are trained to identify mental health issues. When the police department encounters a suspect who may be suffering from mental illness, these officers are routed to the call. They are better versed on resources in the community and can make a decision to send a person to treatment versus needing to use the criminal justice system to steer offenders to get mental health treatment. The City of Arlington has developed relationships with mental health facilities to assist in this process.
    In addition, during the day shift, the City of Arlington utilizes the Tarrant County Law MHMR Liaison Program. In these situations, a licensed clinician with MHMR will go out on follow-ups to check in on people who may be in crisis. This works like a mini-crisis team.

George Havlovic
Assistant District Attorney in El Paso County
Local law enforcement agencies have provided mental health crisis training to their officers. Currently our county does not have a pre-booking diversion program, but law enforcement does have the option of utilizing an Emergency Detention Order under the Mental Health Code in appropriate cases in lieu of booking into the county jail. Additionally, all detention officers are required to have Mental Health First Aid training in addition to the state-required mental health training.

Denise Oncken
Division Chief, Mental Health Division, Harris County District Attorney’s Office
Yes. Both the Houston Police Department and the Harris County Sheriff’s Office have Crisis Intervention Response Teams (CIRT), which are specially trained units who ride with clinicians from the local mental health authority. Like all officers, they have the discretion to take individuals in mental health crisis to a treatment center rather that jail.

Lee Pearson and Carmen White
Assistant Criminal District ­Attorneys in Dallas County
The Dallas Police Department requires that all officers complete 40 hours of mental health training to aid and assist in responding to a situation involving mental illness. Currently, there is no treatment center to take a person in crisis; officers must determine if there is a spot at one of the various hospitals set out to help mentally ill people. If not, then the person is booked into jail. 

Jason Steans
Mental Health Court Chief, Travis County Attorney’s Office
Both the Travis County Sheriff’s Office and the Austin Police Department have units assigned as a Crisis Intervention Team. The officers assigned to the Crisis Intervention Team are tasked with responding to calls that involve mentally ill people who are in crisis, and with diverting those people to mental health services when possible instead of involving them with the criminal justice system. Any and all officers, regardless of whether they are with CIT, have the ability to apprehend a person with mental illness and to transport that person to an appropriate facility for inpatient treatment if they believe that there is a substantial risk of harm to that person or others unless the person is restrained (Health & Safety Code §573.001). Officers are required to file a notification of detention with the facility, and a probable cause hearing for the detention will be set within 72 hours to determine whether probable cause exists to hold the individual.

At the jail, how does your county screen and assess ­defendants for mental illness?

Art Clayton (Tarrant): The City of Arlington has a mental health care evaluation at the jail. Authorities there question medications, treatment for mental health, and drug treatment, thus allowing the inmate to be flagged for referral to the Tarrant County MHMR Law Liaison Program or the Diversion Empower Treatment Opportunity Understanding Reduce Recidivism (DETOURR). They look to steer inmates into the diversionary programs offered at the courthouse.
    The Mansfield Law Enforcement Center (MLEC), which handles most of the housing for the City of Fort Worth prior to transfer to the country jail, utilizes a jail intake form questioning mental history and whether the inmate is suicidal at the time of intake.  

    At the county jail, intake offices also utilize a screening form, which goes into the inmate’s mental health history and suicidal ideations. The jail intake officers are required to look inmates up in the Continuity of Care Query (CCQ) to see if the inmate has a history of mental health treatment. (SB 839 from the 80th Legislature created the CCQ to replace the Client Assignment and Registration System, known as the CARE check system.) From that, MHMR staff is notified, and additional screening and mental health services are provided.

George Havlovic (El Paso): At booking, a nurse interviews the inmate concerning his mental illness history. A correctional officer asks the inmate the required suicide questions and completes the required form. Also during the booking process, a query of state mental health services databases is completed on each inmate. Each jail facility has special-needs officers who respond to inmates who may have mental illness issues but were not identified during the booking process.

Denise Oncken (Harris): Sheriff’s Office personnel are able to identify mentally ill individuals by accessing records and by speaking to and observing individuals as they are being screened before the actual booking. The officer completes the jail standard mental health screening form.

Lee Pearson and Carmen White (Dallas): Everyone charged with an offense is screened for mental illness when they enter the jail. This is done by jail staff and staff from Parkland Memorial Hospital (the county hospital), who are housed at the jail. 
Jason Steans (Travis): Our jail screens people at booking by use of a questionnaire about mental health issues, an interview with jail counselors, information provided by arresting officers, information provided by family of the defendant, a check of the defendant’s prior mental health records from previous trips to the jail, and a query of a state database to see if the defendant has been treated by a state funded mental health treatment provider. If the person is found to have a mental illness, that person is assigned a special “PSY” classification code in the jail and is routed into appropriate medical housing and services. The PSY code also serves as the mechanism by which jail cases are routed into the court’s misdemeanor mental health dockets, with defense attorneys from a specialized mental health list appointed to work those cases.

If someone is identified as mentally ill at the jail, how is this information transmitted to the prosecutor and defense attorney?

Art Clayton (Tarrant): Mental health issues are documented in inmate information at the local jails. When the inmate goes from the city jail to the county jail, that mental health information goes with him. In addition, detectives may give referrals to the mental health court when the case is filed or tell a defendant’s family members about mental health diversionary programs.
    Article 16.22 of the Code of Criminal Procedure requires that the jail notify the magistrate if someone has a mental health issue within 72 hours. The magistrate then requests that MHMR provide an assessment and answers whether the inmate has mental illness or mental retardation and asks if the person could benefit from a competency evaluation. The information from this assessment is given electronically to the prosecutor, defense attorney, and judge of the court where the case is pending.
    Referrals can come from the medical department, officers on the floor, family members, or the court to see if the inmate needs services or a modification of existing services.

George Havlovic (El Paso): Currently El Paso County is establishing a procedure for transmitting a jail inmate’s mental health information gathered under CCP Art. 16.22 to the appropriate individuals. A Pre-Trial Services Department is being developed and the newly hired director of that department reported to work in November 2015.

Denise Oncken (Harris): Special Needs Forms are delivered to each court’s coordinator the day that the defendant is on docket. Copies of this form, which contain information regarding past and current diagnoses and medications, are generally available to both defense counsel and prosecutor. The DA’s office electronically receives these forms (by a standing order of the county court administrative judge) daily for all misdemeanor defendants, which are forwarded out to all misdemeanor court chiefs so they have it as they are screening the new cases in their court. And what happens to that defendant upon identification? The defendant may be assigned a defense attorney who has specialized training in representing defendants mental illness. Prosecutors use this information in deciding how to resolve each case.

Lee Pearson and Carmen White (Dallas): There are two ways in which information is disseminated to the District Attorney’s Office.  A list of people in jail who are suspected to have mental illness is forwarded to the mental health division intake attorney for the District Attorney’s Office. Those on the list are then reviewed to determine potential placement into a specialty program for felonies called SET (Stabilization Education Transition), which has recently been developed by the Dallas County Criminal District Attorney. If they are not placed in the SET program, then they are assigned to one of three prosecutors who handle cases in involving mentally ill defendants.  A determination of how to proceed with the case will be made by each individual prosecutor. 
    All those booked into the jail who were previously diagnosed with a mental illness and who have received mental services in the past are placed on a computer database known as the Jimi Bot. Limited information on the Jimi Bot is then disseminated to two prosecutors who are assigned to evaluate to determine if an individual is eligible for misdemeanor mental health judicial diversion or the SET program. The limitation is that the prosecutors get only the individuals who met specific criteria.

Jason Steans (Travis): The docket that I work on (i.e., the Special Reduction Docket) receives all Travis County misdemeanor cases for defendants who have been classified by the jail with a mental health code. Therefore, for jail cases I am notified that a person has mental illness by virtue of the fact that they appear on my specialized docket. If a defense attorney is assigned to a jail case and does not believe that a discussion of mental health issues is appropriate for the case, he is free to move his case back to a regular trial court docket. For cases where defendants are out of jail or have retained attorneys, those attorneys are free to come see me at my office if they want a recommendation that takes mental health issues into account. Retained attorneys are free to come talk to me about their cases at any point if those cases involve mental illness, but I require written documentation of a diagnosis from a licensed healthcare provider before assessing them. Court appointed attorneys for our mental health cases are part of a special “wheel,” a roster of special attorneys who are assigned mental health defendants by court administration after those individuals have been identified by the jail.


Does your office have a policy on who should be considered for release on a MH PR bond under Article 17.032 of the CCP?

Art Clayton (Tarrant): We do not generally do PR bonds. Instead, we refer the case to the enhanced mental health services docket. This docket is comprised of misdemeanor cases with defendants who have two or more arrests and mental health history. In that program, the defendant’s bond does not have fees but includes services through MHMR as a condition of bond.
    In felony cases, inmates are referred to the Tarrant County Assertive Treatment Program (TCATP). TCATP works with the rise program and the mental health diversion program. Through TCATP, the defendant is released into the community with wraparound services, meaning they are connected with resources in the community and treatment. The case remains pending while the defendant is in the program.

George Havlovic (El Paso): Our office does not have a policy on who should be considered for release on a bond under CCP 17.032. Motions to release on bond pursuant to CCP 17.032 are considered on an individual basis.

Denise Oncken (Harris): No. When screening defendants for bond, specialized mental health ADAs screen each case on an individual basis, taking into account the nature of the offense, criminal history, feelings of the complainant, and a review of relevant records.

Lee Pearson and Carmen White (Dallas): Policies are currently being developed to determine who is to be released on a MH PR bond as set out in Art. 17.032 of the Texas Code of Criminal Procedure. The new policy will likely require that a qualified mental health assessor determine an individual’s diagnosis and mental health status. After this assessment is completed, those who are identified as eligible for a bond will be given a PR bond and monitored to make sure they are maintaining stability on their medication and engaging with their service provider. After this time period, they will be considered for the SET program or other alternatives as determined to be appropriate. 

Jason Steans (Travis): Our pretrial services office has specially designated mental health supervision officers who do a good job of staying in contact with defendants who have been released with mental health bond conditions. They keep us updated on their progress in terms of attending treatment appointments, taking meds, and maintaining a healthy living situation (e.g., whether the person is working, in school, or engaged in other activities). We generally try to remain receptive to the possibility of bonding out defendants with mental health issues in order to facilitate treatment so long as the person is stable enough to return to court and the release doesn’t appear likely to present a safety risk or a significant disruption to the community.

How do you share mental health information among the prosecutor’s office, defense, and judiciary?

Art Clayton (Tarrant): The courts are notified via email and attachment of mental health evaluations and any related reports.

George Havlovic (El Paso): El Paso County is establishing a procedure through a new Pre-Trial Services Department for sharing mental health information with the appropriate parties.

Denise Oncken (Harris): One of the major tools is the “special needs form” (formerly known as the orange sheet) which is sent to the courts. This form contains mental health information from while the defendant was in custody in the county jail. It includes current medications they are on, as well as current and prior mental health diagnoses. It is prepared by the local mental health authority in the county jail. Each court coordinator receives the electronic distribution of these each day as a defendant is on the docket.

Lee Pearson and Carmen White (Dallas): Once a case is assigned to a mental health prosecutor and/or a mental health public defender, there is a collaborative effort on the part of all attorneys to share any information that may assist in evaluating the case to determine the availability of services and programs for the defendant. Until a case is actually assigned to one of the mental health attorneys, there is not an open flow of information among all the parties. However, as we mentioned above, we are developing procedures to interject the State and defense into the process immediately after arrest, resulting in all parties being able to have a more free flow of information.  

Jason Steans (Travis): The presiding judge for our docket has issued a standing order for cases on the misdemeanor mental health docket (i.e., the Special Reduction Docket) which allows the jail medical staff to share relevant information with the defense attorneys and prosecutors. Information about diagnoses and treatment history is shared fairly freely, but attorneys are ordered to meet with their clients before attending docket, and they are free to move their clients off of our docket and never discuss mental health information with the prosecutor or judge if they don’t believe that the health information is relevant or if they don’t believe their client wishes for it to be disclosed. Of course, if a defense attorney has reason to believe that their client is incompetent, they have a duty to bring concerns about mental health to the attention of the court whether or not their client is in agreement. Additionally, we are fortunate enough to have a representative from our local mental health authority (i.e., Austin Travis County Integral Care) who attends our docket and who not only provides information about defendants upon request, but also helps to connect defendants to various treatment programs.

How can bond schedules and policies be modified to allow for more diversions to ­treatment?

Art Clayton (Tarrant): We convert their bonds to pre-trial conditions and maintain the conditions while the case is pending. The diversion treatment program usually takes 12 months to complete, while some people take up to two years.

George Havlovic (El Paso): This will be a point of discussion through the new Pre-Trial Services Department.

Denise Oncken (Harris): On our felony competency restoration docket—those defendants who cannot be restored to competency—we utilize the following procedure: On that docket for felony offenses, we often do not want to just dismiss the case and let incompetent defendants out on the street without services or the long arm of the court watching them (even though we cannot proceed on the criminal case because they are incompetent). So the court utilizes pretrial release bonds for those who can safely be out in the community (and whose offenses are nonviolent) with conditions that require them to get into treatment. The court can address issues if they are non-compliant because these defendants are on a pretrial release bond. Because it is a felony case, it give the court time to monitor and make sure services and treatment are provided, even though we might ultimately dismiss the case (unless they can be restored to competency).

Lee Pearson and Carmen White (Dallas): Continued collaboration between the District Attorney’s Office, Public Defender’s Office, private bar, and judiciary is needed to address this challenging population. Currently, efforts are being made to identify individuals with mental health issues early in the process and receive complete mental health information to determine appropriate placement. 

Jason Steans (Travis): Our Mental Health Pretrial Diversion Agreements are, essentially, a modified personal bond, accompanied by a signed agreement that promises a dismissal in exchange for compliance with specific terms of a mental health supervision bond. For cases which are too serious for a promise of dismissal, similar results can be often be achieved by releasing a person on a mental health supervision bond with two pending sentencing recommendations—a standard sentencing recommendation similar to what the person might receive on a regular docket and a more lenient recommendation which the defendant can earn by way of treatment and supervision compliance.
    In some unusual cases, particularly where we have located family who are willing to lend support but live out of state, we will release a defendant on bond to move to the new location and to engage in treatment there. Once the defendant has reached his new location and can provide proof that he has been complying with treatment there, we will dismiss the case or allow him to resolve the case through a plea in absentia.


Does your county have a ­diversion program for ­defendants with mental illness?

Art Clayton (Tarrant): Yes; we’ve had one since 2003. Since then, it has carried a caseload as large as 53 in 2008 and as little as 31 in 2014. Currently, we have 35 people in the program, and 10 have graduated this fiscal year. 
    To be considered for the program, the defendant must have significant mental impairment documented by a mental health professional prior to the offense, and the current offense must be related to the mental impairment. Misdemeanors and low-level, nonviolent felonies are considered for admission into the program. (Violent criminal offenses and offenses involving a weapon are not accepted.) Family violence cases are considered on a case-by-case basis. All cases admitted into the program are reviewed by the Tarrant County Criminal District Attorney’s Office, where three prosecutors (Assistant Criminal District Attorneys Lucas Allan, Mary Butler, and myself) review them for admittance. Furthermore, the prosecutors attend weekly diversion court settings for the caseload.
    The defendant must comply with the conditions of the program. He must:
1.    admit to the commission of the offense by entering an open guilty plea and agree that the admission may be used against him in court;
2.    not commit a criminal offense for the duration of the program;
3.     not consume alcohol or non-prescribed controlled substances;
4.    submit to random chemical testing;
5.    cooperate with mental health treatment and/or counseling as recommended;
6.    take all psychiatric medications as prescribed;
7.    keep all appointments and attend all compliance hearings as scheduled;
8.    agree to report to the Mental Health Diversion Program (MHDP) office and all other appointments as directed;
9.    keep the program staff informed of any changes in address, telephone number and employer;
10.    consent to the release of protected information as permitted under Texas law;
11.    have no contact with any person of disreputable or harmful character;
12.    waive his rights relating to speedy trial;
13.    acknowledge that failure to comply with any term of this agreement will cause the State to withdraw from the agreement and proceed with prosecution of the offense;
14.    attend monthly compliance hearings held in open court as directed; and
15.    agree to follow directives given by MHDP in accordance with their individual treatment plan and program goals.
    Upon successful completion of the diversion program, the defendant is allowed to withdraw the guilty plea, the State dismisses the charge, and the charge is eligible for expunction.

George Havlovic (El Paso): Currently El Paso County does not have a pre-indictment diversion program, though it does have a mental health court for already-indicted cases.

Denise Oncken (Harris): Yes. Senate Bill 1185 (from the 83rd Session in 2013) is designed to get people out of custody and into treatment. We also have other specialized mental health dockets—felony mental health court, competency restoration docket, etc.

Lee Pearson and Carmen White (Dallas): Yes. There are two specialty programs available and a conditional dismissal program. The first program is the SET program, which will begin in January 2016. It is for felony offenders who are considered high-risk and high-need. It is a 9–18-month program that results in a dismissal of the case and an expunction upon successful completion. If a defendant is accepted into the SET program, he is assigned a case manager who will monitor him and engage him in all services necessary to address his mental health. Participants will be required to meet once a week at court and complete three phases to successfully complete the program. 
    There is also a misdemeanor judicial diversion program for those who have been identified as having mental illness. This program is also done in phases and is six months long.  If accepted, an individual will be assigned a caseworker and be required to attend court sessions at least twice a month or more frequently if needed. Upon successful completion of the program, the defendant’s case will be dismissed.
    Finally, there is a conditional dismissal program run by the Public Defender’s Office. Conditional dismissals are for individuals who do not qualify for one of the diversion programs but who still need more specialized monitoring than probation can offer. The terms of the conditional dismissal are determined on a case-by-case basis, and individuals are monitored by the mental health attorneys in both offices as well as the case managers on staff at the Public Defender’s Office. Regular check-ins are required, and terms can be modified as necessary if there is non-compliance.
Jason Steans (Travis): We have instituted a Mental Health Pretrial Diversion program for certain defendants; it releases them on bond with the possibility of earning a dismissal through treatment compliance. The defendants are released on a mental health bond, check in on a weekly basis with Pretrial Services mental health supervision officers, return to court monthly to check in with the court, provide proof of attendance at health care appointments, and submit to substance abuse testing upon request. Participants in the program sign a written agreement up-front (also signed by the prosecutor) outlining the terms. We typically allow into the program only people who have a permanent address and/or other assurances that they are stable enough to make it to appointments and check in with supervision regularly. i