Pretrial Release and Mental Illness in Misdemeanor Cases

Journal of the American Academy of Psychiatry and the Law | Vol. 53, No. 3, p. 1-12

How Mental Illness Influences Pretrial Release Decisions for People Charged with Misdemeanors

Gary M. Graca, MD, MPA; Vagelos College of Physicians & Surgeons, Columbia University, New York, NY

Maxmoore T. Potkin, MD; Vagelos College of Physicians & Surgeons, Columbia University, New York, NY

Sela E. Dragich, JD; Attorney, Brooklyn, NY

Debra A. Pinals, MD; University of Michigan Medical School, Ann Arbor, MI

Leah G. Pope, PhD;  Vagelos College of Physicians & Surgeons, Columbia University, New York, NY

Elizabeth B. Ford, MD; Vagelos College of Physicians & Surgeons, Columbia University, New York, NY

Many jurisdictions are focused on pretrial reform aimed at reducing pretrial detention for nonviolent misdemeanors. How this reform affects people with mental illness, who have historically experienced lengthier and higher rates of pretrial detention, remains unknown. This qualitative study explores state laws and practices related to pretrial detention of people with mental illness across the United States, with a focus on perceptions about if and how, mental illness influences likelihood of appearance in court, dangerousness, and likelihood of jail detention. Statutes of all 50 states and the District of Columbia related to pretrial detention were reviewed, followed by semistructured interviews with 25 state forensic mental health directors and 15 judges who preside over first appearances or arraignments. The results highlight how state laws afford wide discretion to judges to determine the impact of mental illness on pretrial release. Judges and forensic mental health directors perceive this discretion as leading to a higher likelihood of detaining people with mental illness charged with misdemeanors, often for perceived concerns related to likelihood of appearance, unmet social service needs, and public perceptions of dangerousness. These findings have important implications for ongoing pretrial reform, improvement in community supports, and diversionary behavioral health services.

Criminal law; jail diversion; pretrial reform

“Compared with individuals without mental illnesses, those with mental illness are more likely to experience frequent incarcerations and be detained in jail for longer periods of time and have a higher likelihood of incarceration for nonviolent misdemeanors… This detention comes with significant consequences, including disruption of individuals’ continuity of psychiatric care, disconnection from familial and community supports, and exposure to potentially traumatizing experiences while incarcerated. It may also embed people with mental illness deeper into the criminal justice system because detention correlates with guilty pleas, conviction, longer term incarceration, and risk for rearrest… How these pretrial reforms specifically affect people with mental illnesses remains unknown… Emerging research suggests that such reforms may instead disproportionately reduce the jail detention of people without mental illness” (p. 1-2). 

“State statutes also generally allow judges to consider persons’ dangerousness or their likelihood to appear in court when determining pretrial release eligibility… Existing literature, although limited, indicates that judicial decision-makers may associate mental illness with a higher risk of dangerousness and a lower likelihood of returning to court. This study was designed to describe pretrial detention state laws and local practices across the United States to better understand whether these laws and practices are differentially applied to people with mental illness” (p. 2). 

“Specifically, we sought to understand how state statutes consider mental illness in determining eligibility for pretrial release, what influences perceptions in courts of first appearance about a defendant’s dangerousness or risk of failure to appear when considering pretrial release eligibility, and if and why people with mental illnesses may be more likely to be detained at their first court appearance… The first phase of this qualitative study reviewed state statutes governing pretrial detention… The second phase… involved semistructured interviews with state forensic mental health directors and criminal court judges who preside over first appearances or arraignments” (p. 2). 

“The results of the statute review highlight that state laws infrequently dictate how or if mental illness does or should influence pretrial release eligibility, leaving wide judicial discretion in such decisions… Eight states (16%) explicitly permit consideration of mental condition in determining eligibility for pretrial release… An additional 14 states (27%) and the District of Columbia implicitly permit consideration of mental condition in determining eligibility for pretrial release” (p. 4-8). 

“More than 92 percent of forensic mental health directors and 77 percent of judges did not perceive mental illness alone as influencing the dangerousness of people charged with misdemeanors… There was more robust consensus among the interviewees that mental illness reduces arrestees’ likelihood of appearing for subsequent court dates and therefore increases their risk of remand… ‘It’s more difficult for [people with mental illness] to track the things they need to do… that’s not to say that they cannot, but it just makes everything in life more difficult for them” (p. 5-8). 

“Most judges and forensic mental health directors perceived mental illness as likely or possibly increasing a defendant’s likelihood of being remanded to jail pretrial… primarily because of perceived associations with failure to appear in court… Judges reported remanding people with mental illness to jail pretrial to provide them shelter, food, and rudimentary access to medical and mental health care… ‘Jail… has become the place where a lot of them end up because it’s safe, it’s warm… you get a meal’” (p. 7).  

“Our findings indicate that state statutes offer little guidance, and that both judges and forensic mental health directors think people with mental illness are remanded to jail more frequently than similarly charged others primarily because of perceived associations with failure to appear in court… further research is therefore needed to identify best practices for such efforts that do not unintentionally further criminalize mental illness” (p. 9). 

“Our findings also suggest several behavioral health policy implications. Because social determinants appear to play a central role in whether judges detain people with mental illness pretrial, diversion programs aiming to decrease this pretrial detention need to address these social determinants. Programs focused primarily on providing psychiatric treatment may not include the full array of services (such as case management, housing services, employment supports, substance use services, and family supports) to assuage the specific judicial concerns prompting pretrial detention. Additionally, our findings support the crucial role cross-system training and collaboration play in pretrial reform. Court officials may benefit from training about how different community services can address judges’ concerns about perceived dangerousness and failure to appear. Behavioral health providers may benefit from greater awareness of the factors influencing pretrial detention that go beyond individuals’ specific clinical symptoms” (p. 9). 

This qualitative study had several limitations. Given anticipated challenges in recruiting judges to participate, we relied on suggestions from the forensic mental health directors. This likely led to interviews with judges who were more interested in the topic of the study. We also had a smaller sample of judges than forensic mental health directors and were therefore unable to make robust comparisons between the two disciplines. The study was also subject to the specific coding decisions made by the research team and recall bias among the judges, who were not asked for specific records reflecting their decision-making so as to protect anonymity and encourage participation” (p. 9).