Mentally Ill in Jails, Part 3: Costs, Legislative Initiatives, and a Modest Proposal

By Dick Hall-Sizemore

(Note: This is the third, and final, post in a series examining the issue of mentally ill people being held in jails. Earlier posts can be found here and here.)

Costs. In comments to the previous installments, several readers brought up the issue of the cost of providing services for the mentally ill in jails, as well as the comparable costs of mental health services and the costs of incarceration. This is a tricky subject.

There will be costs. Programs to divert the mentally ill from jail or to provide treatment services while in jail will cost money. There is no getting around that.  How much it will cost will depend on the scope of the diversion and treatment efforts. A second question is who bears, or should bear, those costs.

Incarceration vs. treatment. Is it cheaper to treat the mentally ill than to hold them in jail? Probably not. Many advocates for diversion and treatment point to the daily cost per offender in jail. In FY 2019, the latest year for which data is available, the operating cost per inmate for all jails was $91.97 per day. The daily cost per individual jail varied from $270.55 (Fairfax County) to $48.69 (Piedmont Regional Jail).

However, it is misleading to use the total per diem operating cost as a point of comparison. That cost includes “sunk” costs, primarily personal services administrators, correctional officers, and other staff that jails will incur regardless of the fluctuations in their populations. A better measure is “direct inmate cost”, which is the cost directly attributable to an individual inmate. If the Fairfax County jail released a mentally ill inmate to a nonprofit treatment program, or 10 or 100 inmates, it would not decrease the number of positions it used to run the jail. But those released inmates had to be fed, clothed, and provided medical care (the basic components of direct inmate costs) while they were in the jail, which would no longer be necessary after they had been released.

The Compensation Board provides data that will enable one to get a fairly accurate estimate of direct inmate costs in jails.  It breaks out the cost of food and medical care, which comprise the bulk of direct inmate costs. On a statewide basis, in FY 2019, any decrease in the number of mentally ill inmates in jails would have saved those jails $15-16 per day.  The cost of treatment would probably be higher. Of course, the direct inmate costs could vary widely for individual inmates, depending on their medical needs.

In summary, moving mentally ill inmates out of jail into other treatment venues would result in fewer management problems for sheriffs and jail administrators and, potentially, better care for the mentally ill individuals, but not any short-term financial savings.  It could be argued that there would be long-term savings realized by society, but that argument is beyond the scope of this post (and probably my expertise.)

Who bears the cost? As was discussed in a previous installment, there are various programs that seek to divert mentally ill individuals from jails. Furthermore, jails are required to administer a mental health screening to all persons admitted.  If a screening detects a possible problem, most jails follow up with more in-depth mental health assessments, and many provide some level of treatment for those needing it. The short answer to who bears the cost:  the localities.

State financial assistance to localities for the operation of jails is administered by the Compensation Board and comes in two forms. The first is reimbursement of the total costs of all positions approved by the Compensation Board at salary and fringe benefit rates approved by the Board. (Many localities support more positions than approved by the Board and supplement Board-approved salaries.)

The second form of state reimbursement is a per diem payment for each offender housed in a jail.  For each local-responsible offender, which includes most of those who are mentally ill, the state will reimburse the local or regional jail $4.00 per day.

As was discussed in the last installment, the relatively small amount of approximately $15 million spent annually by the state is for diversion and assessment of individuals experiencing a mental health crisis. Only some of the small DCJS pilot grant program of $2.5 million annually was used for treatment services.

Legislative initiatives. There have been three major legislative initiatives in the 2020 and 2021 General Assembly sessions that provide some hope regarding mentally ill individuals.

Marcus Alert (HB 5043, Bourne-D, 2020 Special Session)—The legislation requires the Department of Behavioral Health and Developmental Services to establish, b 2026, a critical care team, consisting of mental health professionals and law-enforcement, in each community service board region. The team would be responsible for responding to situations in which a person was experiencing a mental health crisis.

Consideration of mental condition by court—(SB 1315, McClellan-D)—Many acts are criminal or carry more serious punishment only if it is proven that the accused acted with a particular mental state, such as willfulness or premeditation, in addition to proving that the alleged act itself took place.  However, in Virginia law, criminal intent is presumed. The only defense against that presumption is insanity. As Steven Benjamin, a noted Richmond criminal defense attorney and adviser to the Senate Committee on Courts of Justice, told the Richmond Times-Dispatch, “[In a Virginia court] you were either the perfectly normal, generic person of reason, unimpaired judgement and able to foresee the consequences of your conduct or you were completely insane.  There was no middle ground.”

SB 1315 would change that presumption. The enacted legislation will allow persons accused of an offense to offer evidence that mental illness, a developmental disability, or intellectually disability existing at the time of the offense shows that he did not have the requisite intent for the offense for which he is charged. Richard Bonnie, the director of the Institute of Law, Psychiatry, and Public Policy at UVa., explained that the bill establishes that, if it cannot be proved that a defendant had the specific, required mental state to commit a crime, the defendant is not guilty even if he committed the act itself. Sen. Jennifer McClellan, the chief patron of the legislation, characterized it as “a giant leap forward in decriminalizing mental health conditions.”

In case anyone is wondering, the legislation explicitly does not permit “voluntary intoxication” as evidence of one not having the requisite intent to commit an offense.

Behavorial Health Commission (SB 1273, Deeds-D)—In 2014, the General Assembly created the “Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century.” That body has met several times each year since its creation, holding hearings, and hearing presentations. It has made significant recommendations to the General Assembly regarding mental health issues, which have been adopted. The General Assembly has adopted resolutions extending its existence. As effective as it has been, it has been hampered by a lack of dedicated staff and a sense of permanence.

SB 1273 has removed those obstacles. The legislation establishes, in the Code of Virginia, a Behavioral Health Commission. The Commission will be a legislative branch agency with the statutory purpose to “study and make recommendations for the improvement of behavioral health services and the behavioral health system in the Commonwealth.”  It would have the authority to hire an executive director and other staff.  The amended budget bill includes an appropriation for $348,774 for FY 2022 to support four staff positions and associated office-related expenses of the commission. Existing, comparable legislative agencies are the State Crime Commission and the Joint Commission on Health Care.

Although the issue of mentally ill in jail would be just one that would fall under the new commission’s broad mandate, its creation is good news for those who hope to keep mental health reform at the forefront of the legislature’s attention.

All of these initiatives are worthy. But, they will not fully address the issue of mentally ill people being housed in jails. The Marcus Alert program is designed to assist people experiencing a mental health crisis and divert them from jails. Many, if not most, of the mentally ill people in jail are not there as a result of a mental health crisis. For example, Jamycheal Mitchell was in jail for shoplifting; there was no mental health crisis. The crisis occurred after he was in jail. Similarly, SB 1315 might give people like a Mitchell a defense at his trial, but it will not keep them from being held in jail awaiting trial, often for months. Even Richard Bonnie of UVa. acknowledged that he did not believe there will be many cases in which the SB 1315 legislation would be applicable. Finally, mentally ill in jails was an issue taken up by the former Joint Subcommittee on mental health reform and, presumably, will be an issue for the new Behavioral Health Commission, but it is likely to be dwarfed by other issues in the behavioral health field.

Summary and a Proposal. As a society, we have determined that there is a collective moral and civic duty to care for the mentally ill and provide treatment, where possible, rather lock these people away from public view as was done as recently as the 19th and 20th centuries. However, we have been bedeviled as to what is the best way to do that.

Over the past 50 years since the ground-breaking recommendations of the Bagley Commission in the early 1970s, the Commonwealth has struggled to find the best method of providing services to the mentally ill. Some would contend that the steady increase in the number of mentally ill persons in Virginia jails is a symptom of the failure to properly address the overall problem.

This is a much larger issue and I have no intention of wading into it, primarily because I do not have the background to do so in a credible manner. But, over the years, I have participated in numerous discussions about jails and the issue of their housing the mentally ill.

When I started developing this series of posts, I firmly thought that mentally ill persons should not be in jails. (That opinion undoubtedly came through in some of my comments.) However, as I have thought about this issue more deeply over the course of writing about it, my thinking has shifted somewhat.

It is easy to say that mentally ill people should not be in jail, even if they have committed a criminal offense. But, doing so ignores the hard questions of how they should be treated. It is true that many do not pose a danger to society and do not need residential treatment; their conditions can be managed through medication. But, many mentally ill people have a history of not taking their medications as needed, for a variety of reasons. They forget  They lose them. For some, they just do not want to take the pills. Unless they are involuntarily committed, an extraordinary step, they cannot be compelled to take the medications, or undergo treatment, for that matter.

Furthermore, if they are not in jail, where will they stay? Many are homeless.  And homelessness is another can of worms altogether. For many, their families may not be in a position to give them the supervision and support they need. Being homeless , or inadequately cared for, and mentally ill, they are vulnerable. One of my most vivid memories from those committee meetings on this issue is Sheriff Ken Stolle of Virginia Beach saying that he always worried when a mentally ill person was released from his jail because, if that person was not brought back in on another charge soon, he knew the chances were good that he was dead.

Finally, if the mentally ill are homeless or not adequately supervised, are in and out of treatment, and on and off their medications, they may not be dangerous, but they can disrupt public order.

In an ideal world, we would have what one commenter on an earlier post proposed; “affordable long-term housing with on-site addiction and mental health support, regular home-based welfare checks, and routine after-hours counseling.” Unfortunately, we do not live in an ideal world. For many of these individuals, “affordable” would mean “free.” There is a limit on resources and political will. Also, as already discussed, the availability of such resources would not guarantee that the mentally ill would take advantage of them.

The result would be an environment in which the mentally ill would be safer, would be fed properly, would get needed medical care, and would get the medications and other treatment services needed. Although they could not be force to take their meds or undergo counseling, the chances would be higher they would do so in such a setting than if they were released to the street on their own when their sentences were completed. And, in this proposal, upon release, they would receive the needed follow-up care.

Such an approach should be mandated by the state, with standardized conditions. Therefore, it should be funded by the state, as are other components of the behavioral health care system. A formula could be devised to be used by the Compensation Board to reimburse the jails and the community services boards would receive a dedicated source of funding to service this population.

Implementing this approach would not be easy. As demonstrated by the pilot programs administered by the Department of Criminal Justice Services (described in a previous installment), jails and mental health treatment are two substantially different cultures and it is not easy to mix the two. However, those pilot programs have made progress and it should be possible to learn their experiences  apply those lessons elsewhere.

Until we come up with something better, we should not let those more than 7,000 mentally ill Virginians languish in jail. The feasible should not be held hostage by the ideal.

Source of data:

Virginia Compensation Board

FY 2019 Jail Cost Report