A New Commitment Pathway for Offenders With Serious Mental Illness: Expedited Diversion to Court-Ordered Treatment

Like a CST evaluation, a request for an assessment of a detainee’s commitment eligibility may be made by either party (i.e., prosecution or defense) or the court. In addition, a request for a CST evaluation by either party or court will trigger a judicial review of the appropriateness of an assessment for commitment eligibility as an alternative path. However, regardless of how the request for assessment arises, a commitment may not occur unless the prosecution petitions for it. In practice, we expect that in many cases involving less serious offenses, commitment would be a consensual disposition.

The initial psychiatric assessment would include determination of a mental disorder and provide a summary of past problematic behavior. Moreover, the psychiatrist would identify risks for violent or criminal behavior or other factors detrimental to long-term adjustment in the community. These risks and factors would be addressed in treatment planning.

The commitment would follow current requirements: right to notice, right to counsel, right to a hearing, proof by clear and convincing evidence, and the right to appeal, for example. The predicates for commitment would be a serious mental disorder as defined by state law for traditional civil commitment. Proof would require clear and convincing evidence that the person committed the elements of the charged offense and that the conduct underlying the charged offense was related to a serious mental illness. It would also require clear evidence for a significant likelihood of future offending in the absence of treatment interventions and for a reasonable likelihood, based on psychiatric evidence, that the mental disorder can be effectively treated.

The commitment order would be grounded in a detailed treatment plan, identifying treatment providers, services, and classes of medication needed. These services would include provisions for inpatient and outpatient care as necessary, including residential treatment, assertive community treatment, day treatment, and other needed care services; estimates of the expected length of intensive treatment under the commitment order; and long-term treatment and service needs that are likely required after the commitment order has expired.

The court would be required to monitor the provision of the services as detailed in the plan, to ensure compliance and continuity of court-ordered care. A hearing would be held periodically, but no less than every 6 months, and the care and progress of the committed person would be thoroughly reviewed.

Jurisdictions may differ in judgments about how to best balance safety and therapeutic concerns and therefore about the appropriate commitment length. Jurisdictions should base commitment duration on the committed person’s treatment needs as demonstrated by successful transition and stability in the community. It may be necessary for those with complex service needs to be committed to a more extended period of mandatory care.

However, criminal justice factors should play a role in determining the ceiling of the involuntary treatment period. In most circumstances, if the predicate offense for the commitment is a misdemeanor, the commitment period should expire after 1 year. For persons accused of nonviolent felonies, a maximum period of 3 years should be appropriate in most circumstances and should be sufficient to bring prosecutors on board to petition for commitment. For more serious felonies, a ceiling of 5 years may strike an acceptable balance between therapeutic needs and public safety concerns. In any case, the length of commitment should not exceed the period of the maximum sentence the committed person would have received if convicted of the charged criminal behavior. The proposed pathway is not suitable for cases in which the prosecutor is seeking long-term psychiatric confinement, as is common in NGRI commitments. The commitment should terminate whenever the judge determines that the person no longer needs supervision for public safety reasons or no longer needs treatment.

The proposed law borrows familiar elements from civil and outpatient commitment models. The adoption of this model does not exclude continued use of other programmatic innovations, such as mental health courts and diversion programs. However, the proposed law differs in important ways from those programs. As a commitment law, it would be applicable statewide. In contrast, traditional informal diversion programs are based on voluntary entry by defendants and are available in relatively few jurisdictions. Because these programs are local innovations, they rely on negotiation on a court-by-court basis, generally involving a strong champion to promote adoption, and require buy-in from multiple agencies and resources from uncertain and transient funding pools.