Diversion From
Incarceration

People with mental health and substance use disorders too often ​become involved in the criminal justice system because our society fails to provide appropriate and timely treatment and support services. ​Federal policies can provide incentives for systems to reorient toward a public health approach, and ultimately improve mental health outcomes while reducing societal costs for Americans.

Our country should take a public health approach to mental health and substance use disorders, which recognizes the need to mainstream prevention, diagnostic, and treatment services within our health care system, rather than funnel people to the criminal justice system.
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Solutions for Better Mental Health

Providing Enhanced Services for People At Risk

The first priority for reform should be to prevent interactions with the justice system in the first place. Prevention is key — aim to stop people from getting sick enough that they become at-risk of justice system involvement — but certain programs specifically targeted at criminal justice diversion are also critical. A legacy of systemic bias, including diversion programs that discriminate against people of color, should also be addressed.

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  • The federal government should explicitly authorize health care payment models that target decreased justice system involvement as an outcome and provide planning grants and technical assistance to support innovative pilots that share justice system savings with healthcare when they reduce incarceration.

Changing Approaches to Crisis Intervention

Even with effective services, crises will still occur. In most communities today, law enforcement responds, and often individuals are taken to jail – either because officers weren’t provided with training to identify mental health issues, or because there was simply nowhere else to take them. Some communities have begun to implement alternative approaches, including Crisis Intervention Teams, in which officers are specifically trained to respond to mental health crises and refer people to mental health services.1Amy C. Watson et al., “CIT in Context: The Impact of Mental Health Resource Availability and District Saturation on Call Dispositions,” International Journal of Law and Psychiatry 34, no. 4 (July 9, 2011): 287–94, http://dx.doi.org/10.1016/j.ijlp.2011.07.008.

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  • The federal government should authorize use of Medicaid matching funds for information technology investments that enable more seamless service referrals after a crisis response.
  • CMS should provide planning grants and funding for learning collaboratives for states to develop effective approaches to crisis response that include Medicaid covered services; and the Department of Justice should include target metrics of reducing preventable arrests and increasing successful mental health service linkages as performance measures across federal law enforcement funding streams to change incentives.

Supporting Formal Diversion Programs

While effective crisis response will reduce the total number of arrests, some people with mental health conditions will still get unfairly tangled in the justice system. Formal diversion programs should identify these individuals early, cease the justice proceedings, and ensure they get access to the services and supports they need to prevent further interactions. This could simply mean releasing the individual, expunging the interaction from their record, and linking them with the services. On the more structured end, this could involve referral to a specialized problem-solving court. First developed in the 1990s, specialized problem-solving courts offer a therapeutic non-adversarial treatment approach for non-violent, low-level offenses.2Freudenberg and Heller, “A Review of Opportunities to Improve the Health of People Involved in the Criminal Justice System in the United States.” Though proven to be more effective than traditional judicial pathways, the 3,000 problem-solving courts in the U.S. are near or at capacity.3“Economic Perspectives on Incarceration and the Criminal Justice System” (Obama White House, April 2016).

View Action Items

  • CMS should clarify to what extent Medicaid funds can be used for screening, diagnosis, and diversion from justice settings.
  • The federal government should include incentives in federal justice system funding for establishing formal procedures for routine mental health screenings early in the process and diversion to services as appropriate.
  • The federal government could provide capacity development grants to states, as they did in the SUPPORT Act for states to develop provider capacity for MAT.

Tailored Policies for Unique Needs

To be effective, mental health solutions need to address individuals' range of identities based on race, ethnicity, language, gender, or gender identity, sexual orientation, disability, veteran's status, or life circumstances. We recommend meaningful policies to combat a harmful legacy of one-size-fits-all solutions.

Explore our recommended policies for focus populations

Explore our Fact Sheets

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