Criminal Legal Involvement: A Cause and Consequence of Social Determinants of Health

Criminal legal contact may be precipitated by implicit bias, policing practices, and discriminatory laws. It also may be precipitated by law-breaking, antisocial conduct. This conduct can be looked at as a behavioral health outcome, often related to exposure to social determinants. In the 1980s, researchers and practitioners sought to counter the assumption that “nothing works” in the treatment of individuals with antisocial behaviors. In the service of both public safety and client success, they attempted to identify the factors most clearly linked to criminal conduct, with an eye toward targeting these factors in assessment and intervention. The most widely accepted approach to addressing the challenge of repeated criminal behavior and associated criminal legal contact is the risk-needs-responsivity (RNR) paradigm. Social determinants, while not specifically identified as such, play a prominent role in this model (5).

The principles of RNR include matching the intensity of treatment and supervision to a validated measure of the risk of repeated criminal behavior, treating the individual needs most directly associated with criminality, and considering factors that may impede a person’s ability to be responsive to recommended treatment. RNR was originally developed for a population of individuals without serious mental illnesses. However, those with serious mental illnesses appear to share the same risk factors for criminal recidivism as those without such illnesses (3). Many of these risk factors map directly onto the social determinants of health.

The list of individual needs includes educational and vocational challenges as well as lack of family or community support, among other factors. Even the “antisocial items,” including history of antisocial behavior, have been associated with social determinants such as adverse childhood experiences. Responsivity factors, whose contribution to reoffending may be indirect (i.e., they increase risk of recidivism through their exacerbation of associated needs) include almost any other social determinant that is destabilizing or deters an individual from participating in treatment. Examples include housing instability, exposure to trauma, and discrimination (Table 1).

In the RNR paradigm, the presence of a serious mental illness is a responsivity factor, both because symptoms may interfere with successful participation in needs-focused treatment (e.g., substance use interventions) and because individuals with serious mental illnesses are predisposed to other needs-related challenges; for example, the diagnosis of a serious mental illness is associated with very high rates of unemployment. The responsivity principle has also been expanded to include the concept of “systemic responsivity,” in which area-level and neighborhood characteristics (e.g., inadequate transportation, socially fragmented communities, and paucity of clinical or social services), rather than just individual-level factors, increase risk of criminal legal contact (6).

Although the RNR paradigm is purportedly race neutral, systemic racism clearly plays a role in RNR-based assessment and response. With respect to the potential for racism, the assessment of an individual’s risk of reoffending has received the most attention to date, given that RNR-based categorization by risk level may be associated with longer sentences and lengthier and more restrictive probation and parole. Studies have demonstrated that the recidivism risk factors and risk-level scores themselves may be equally predictive across races, but there is a potentially disparate impact on people of color (7). For example, a history of criminal legal involvement is an equally valid risk factor for repeated criminal behavior for both people of color and non-Hispanic Whites; however, as noted above, a person of color is more likely than a White person to have had criminal legal involvement for reasons having to do with policing, conviction, and sentencing practices, and this involvement contributes to a high risk rating. In addition, people of color are more likely to have experienced the social determinants identified within the RNR paradigm—and those with serious mental illnesses are even more likely. To borrow a term that originally referenced the additive social challenges faced by Black women, there is an intersectionality (8) between race and the presence or diagnosis of a serious mental illness in which the stigma and social challenges associated with each are additive. Unemployment, underemployment, housing instability, and poor housing quality may be race-neutral risk factors in the RNR paradigm and not limited to persons with serious mental illnesses; however, a Black person with schizophrenia, for example, is more likely to face those challenges and associated criminal legal consequences.

Criminal legal involvement, whether related to actual criminal behavior or not, can interfere with mental health, increase risk for mental illnesses and substance use disorders, and worsen the course of illness or outcomes among those with existing mental illnesses. Across the spectrum of legal involvement—from receiving a desk appearance ticket, to initial hearings and arraignment, to conviction and sentencing, to serving time in jail, to probation monitoring (with associated fees and fines at several of these stages)—the process is stressful, interferes with usual roles and responsibilities, constricts choices, and exposes individuals to uncertainty and potential conflict or even violence. The stress is perhaps especially damaging when individuals perceive limitations to their voice, dignity, and trust as elements of procedural justice. Specifically, when a sense of participation (having a voice and the opportunity to present one’s own side and be heard by the decision maker), dignity (being treated with respect and having one’s rights acknowledged), and trust (feeling that the authority is concerned for one’s welfare) are lacking, individuals feel disempowered, which, undoubtedly, adversely affects mental health. Conversely, providing individuals with voice, choice, dignity, and respect in the criminal legal context has been associated with decreased repeated criminal conduct. It is noteworthy that these principles are very similar to those emphasized in the recovery approach to treating serious mental illnesses (Table 2).

Criminal legal involvement can also increase risk for mental illnesses and substance use disorders by creating or exacerbating social determinants. For example, incarceration is known to be associated with later employment problems (unemployment, underemployment, job instability, and low income), which are determinants of mental health outcomes. Among individuals with existing mental illnesses, criminal legal involvement interferes with the course of illness and outcomes, and incarceration interrupts continuity of care, particularly when mental health services are limited in many jails and prisons.

The social determinants paradigm, which explicitly recognizes structural issues (e.g., systemic racism) that underpin the determinants, allows for two potentially productive areas of focus for forensic mental health professionals: individual treatment planning and system change collaboration (9). At the individual level, a clinician who recognizes the baked-in effects of racism and the relevance of social determinants within the RNR model may be more likely to take a supportive, recovery-focused approach to treatment planning, rather than focus solely on risk level and risk management. One example is MISSION-CJ (Maintaining Independence and Sobriety Through Systems Integration, Outreach and Networking–Criminal Justice) which embeds RNR in a broader array of recovery-oriented, peer-supported, trauma-informed, wraparound services for co-occurring disorders (10). The social determinants paradigm also supports a practical implementation of cultural humility, an approach to client engagement and treatment that recognizes and validates the social inequities that have daily impact on clients’ well-being.

The social determinants paradigm, however, is also a concept about how to address and prevent disease, or criminal legal contact, at the population level. What do we need to do in society (e.g., changing policies) so that fewer people face these social challenges and, thus, fewer people develop chronic diseases, behavioral disorders, and associated consequences (including criminal legal involvement)? Mental health professionals can play a critical role as advocates for systemic change.

Social determinants (e.g., discrimination, underemployment or unemployment, housing instability, food insecurity, poor access to health care) are risk factors for, and consequences of, behavioral disorders and criminal legal system involvement. The fiscal and public health justifications for addressing social determinants are also relevant to criminal legal contact. However, the impetus to strive for health equity because of social justice considerations has extra relevance in the context of the criminal legal system for several reasons: the potentially preventable consequences include loss of liberty and, even more tragically, loss of life; the contact may be associated with the behavior of the system and its players, rather than with anything the individual has done; and consequences of criminal legal involvement are borne more heavily by groups that face discrimination (e.g., people of color).

These consequences may include not only abrogation of basic rights to life and liberty but also health and mental health consequences that then exacerbate the very social determinants with which the cycle began. This is one of the many ways in which racial inequities are built into one system, with tentacles of racial inequities reaching into many other systems and sectors, such as those pertaining to employment, housing, families, and neighborhoods.

Given the clear general medical health, mental health, and behavioral consequences, clinicians have a role to play in advocating for the structural policy changes—and changes in social norms—that will help ameliorate these challenges. At the individual client level, structured, comprehensive approaches, such as RNR, when used for treatment planning purposes, can help ensure that a client’s emotional and social needs will be addressed in support of their recovery and their community success. The social determinants model provides a language and paradigm that can support the necessary activities at both the structural and clinical levels.