SJR 440

Joint Committee Studying Treatment Options for Offenders with Mental Illness and Substance Abuse Disorders

July 27 , 2001, Richmond

The fourth meeting of the joint subcommittee focused on Virginia's legal obligations, barriers to meeting the mental health needs of juvenile offenders, model programs, and jail/community diversion and transition issues.

Virginia's Legal Obligations

Federal and Virginia law affords certain key rights to incarcerated persons with mental illness or substance abuse disorders. Staff from the Division of Legislative Services reported that the Eighth Amendment prohibition against "cruel and unusual punishment" requires that anyone in custody suffering from a mental illness be given medical treatment. However, the mandatory care is limited by considerations of cost, time, and medical necessity.

Several courts have identified components of a "minimally adequate" mental health care delivery system, including

  • A systematic program for screening and assessing inmates to identify those in need of mental health care;
  • A treatment program that involves more than segregation and close supervision of inmates;
  • Employment of a sufficient number of trained mental health professionals;
  • Maintenance of accurate, complete and confidential mental health treatment records;
  • Administration of psychotropic medication only with appropriate supervision and periodic evaluation; and
  • A basic program to identify, treat, and supervise inmates at risk for suicide.

Educational, vocational or rehabilitative services for a substance abuse disorder, however, are not guaranteed under the Eighth Amendment.

The Fourteenth Amendment's "due process" clause provides a procedural safeguard protecting an inmate/prisoner's "liberty interest." When a prisoner is diagnosed with either a mental illness or substance abuse disorder requiring a detrimental change in his "liberty interest," the Fourteenth Amendment requires either an adversarial hearing or an evidentiary hearing.

Under the provisions of the federal Americans with Disabilities Act of 1990 (ADA), a jail or prison cannot exclude an inmate from participating in a benefit or service because of his mental illness or substance abuse disorder. In addition, there seems to be a growing body of precedent recognizing that the ADA prohibits discrimination based on a person's particular disability (discrimination by category).

Virginia law closely tracks the minimum requirements of federal law, including "medically necessary" treatment, and goes beyond by requiring treatment for certain offenders with substance abuse disorders.

Mental Health Needs of Juvenile Offenders

National data indicate that more than 50 percent of detained adolescents experience problems with drug and alcohol abuse and depression. Substance abuse is the single strongest risk factor for juvenile involvement in violent activities. A study by the Virginia Department of Juvenile Justice showed that more than 40 percent of males and almost 60 percent of females in detention homes need mental health services; more than seven percent of males and more than 15 percent of females had urgent mental health treatment needs.

Risk factors related to behavior problems, such as substance abuse, delinquency, teenage pregnancy, school dropout, and violence, show a great deal of overlap. For example, addressing early and persistent antisocial behavior in the school setting may address behavior problems in a number of areas. Risk factors tend to have an interactive effect. That is, one single factor is not usually a cause, but rather multiple factors working together can create problem behavior. Other overlapping risk factors include extreme economic deprivation, family management problems, family conflict, academic failure beginning in elementary school, friends who engage in the problem behavior, and early initiation of the problem behavior.

Effective intervention programs address multiple risk factors, involve comprehensive services that are individualized and family- and child-centered, are delivered in collaboration with the family, occur in natural settings, and are delivered with skill, persistence, and a strong sense of accountability.

Juvenile justice professionals in Virginia identified 10 key barriers to meeting the mental health needs of juvenile offenders:

1. Lack of a guiding philosophy for serving juvenile offenders;

2. Juvenile justice system used as a "dumping ground" for juveniles with mental health problems;

3. Undiagnosed learning problems;

4. Lack of early intervention, leading to an escalation of delinquent behaviors;

5. Need for greater parental involvement in, and accountability for, the child's treatment and rehabilitation;

6. Need for detention and community-based treatment;

7. Need for improved interagency collaboration and integrated comprehensive service delivery systems;

8. More local services needed for special populations of juveniles—insufficient advocacy for court-involved juveniles, post-adjudication;

9. Inadequate funding to localities to serve juvenile offenders; and

10. Legal confidentiality impediments to interagency records sharing and development of integrated data systems.

Jail/Community Linkages

National research indicates that between six and 15 percent of jail inmates have a serious mental illness. Nationally, there has been a correlation between the increase in persons with mental illness in jails and the downsizing of state hospitals.

A survey of Virginia sheriffs in 1997, conducted by the School of Social Work at Virginia Commonwealth University, found that linking inmates with community mental health providers was the problem most frequently mentioned by the sheriffs, rather than problems with managing the behavior in the jails; also mentioned were lack of diversion options, housing and medication. Ninety-two percent of the sheriffs believed that the relationships with community services boards were productive. The sheriffs made the following suggestions as alternatives to incarceration:

  • Greater interaction between the court and mental health systems, including more consistent mandatory court-ordered treatment;
  • A mental health professional assigned to every sheriff's and magistrate's office;
  • Mandatory case management while the person is incarcerated;
  • Greater continuity of care for persons with mental illness and substance abuse disorders;
  • Assertive follow-up of persons with mental illness after incarceration;
  • A diversion center within the state psychiatric hospitals to assess clients;
  • Additional guidelines and training about mental illness;
  • Transitional and supervised housing for offenders;
  • Day treatment programs, outpatient training in self-care skills, and day reporting requirements;
  • More intensive pretrial evaluation;
  • Intensive probation with mental health workers, in-home counseling and medication monitoring; and
  • Supervised community placement while awaiting trial.

Of "mental health managers" in Virginia's jails surveyed in 1995, most of whom work for community services boards, 59 percent reported that they were unable to provide some aspects of mental health treatment in the jail; 34 percent reported comprehensive mental health treatment capabilities on site; 39 percent reported the lack of acute, specialized psychiatric care, including detoxification and sex offender treatment; 32 percent reported a lack of adequate mental health and substance abuse evaluation and counseling; and 21 percent reported a lack of services for persons who are in jail for extended periods.

The survey also addressed the problems facing persons with mental illness in jail, including jail environment (mistreatment and overcrowding); unmet special needs (social skills and medication); and jail resource shortages (staff training, treatment information, and linkage services). Forty-six percent reported that their jail did not support family involvement. Families can become involved by providing direct care and assistance, advocating for medical care, bridging communication gaps between staff and the inmate, and becoming recipients of services themselves. A subsequent study revealed that jails that encouraged family involvement had a significantly higher percentage of inmates who successfully linked with the mental health system after they were released.

Community Transition

A Department of Justice study reported that approximately 20 percent of the persons who need mental health treatment in prisons and jails do not receive it; advocates point out that between 40 and 50 percent of the persons with serious mental illness in the communities are not receiving treatment. States have lost approximately one-third of their spending power for mental health treatment when expenditures today are compared with expenditures in 1955, before deinstitutionalization began. Assertive community treatment teams, psychiatric rehabilitation programs, integrated treatment of dual-diagnosed persons, and supported employment programs are showing very promising results, but unless the whole spectrum of problems is addressed, including homelessness, people will continue to end up in jail or prison.

There are various ways to divert persons with mental illness from prisons and jails, but a change in the community programs and additional resources will be required. The Village in Los Angeles is a fully comprehensive array of services that has kept people out of institutions and prisons and jails. The Memphis Crisis Intervention Team is a cadre of specially trained law enforcement officers. Wrap-around Milwaukee, a comprehensive program for juveniles, has established a track record of re-integrating juvenile offenders into the community and having them succeed.

Federal rules do not allow a federal Medicaid match for individuals while they are incarcerated, but they do not require that Medicaid be terminated; it can be suspended. However, all states do terminate Medicaid coverage, making it more difficult to get people back on the program when they are released. As a result, national data suggest that offenders may go 14 days or more without a Medicaid card after they are released. Making these services available more quickly could make a big difference. There is a slight risk if the federal government determines that the person is not eligible when he is released; however, people do not normally gain significant income or assets while they are incarcerated.

One option is to require prerelease planning to include all federal/state programs (SSI, SSDI, Medicaid, Medicare, Food Stamps, TANF, and Veterans' benefits). Several recent federal and state court cases have found that individuals are entitled to better prerelease planning. The New York mental health authority pays for psychiatric medications for offenders leaving jail or prison, pays for transition managers to help former inmates file benefit claims, and ensures that individuals apply for Medicaid. In Lane County, Oregon, state-only Medicaid is available for the first 14 days in jail after arrest to make sure that current medications are continued and basic mental health services are available. In Springfield, Massachusetts, local community health program staff assist jail inmates and provide services. Local programs are typically stretched and would need small grants to hire individuals to make these programs work.


Several diversion/transition projects have shown results. The rate of officer injury rates during mental illness events decreased almost six-fold after the start of the Memphis Crisis Intervention Team program. Albuquerque, New Mexico, adopted the Memphis model, but they also follow-up with the individual in his home. Albuquerque also has a program to link people at the pretrial level with community services. Forty percent of the people who used to be held in jail have been diverted and only six percent have been rearrested, none for violent crimes. Project Link in Monroe County, New York, features a mobile treatment team with elements of the assertive community treatment model, a forensic psychiatrist, a dual-diagnosis treatment residence, and culturally competent staff. Yearly jail days dropped from 107 to 46 per person; yearly hospital stays decreased from 115.9 to 7.4 days; the average number of arrests per person declined considerably; and no assaults, suicide attempts, or other reportable incidents occurred among the clientele.

There is no single definition of mental health courts, but their success depends on the support of the courts, the prosecutors and the defense bar. If community mental health services are not available, individuals may spend more time in jail as they wait for services. The Thresholds Jail Program in Chicago's Cook County jail, which provides long- and short-term aftercare services, found that jail time decreased 82.2 percent for the first 30 clients to complete one year of the program, resulting in a savings of $157,640 to the jail. In addition, there was an 85.5 percent decrease in the number of hospitalizations, resulting in savings of $916,000 to Illinois state hospitals.


The commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) said that the department supports numerous programs providing psychiatric care for adult inmates in local regional jails and children and adolescents in juvenile detention homes across the Commonwealth.

The Virginia Code requires community services boards (CSBs) to maintain written agreements with courts and local sheriffs relative to the delivery and coordination of services (§ 37.1-197), and performance contracts require CSBs to provide forensic services. CSBs also provide emergency services to local and regional jails and juvenile detention homes and non-emergency evaluations. Through the Substance Abuse Prevention and Treatment (SAPT) block grant, the DMHMRSAS funds one substance abuse case manager in each CSB to identify cases and provide assessments and counseling. Nine CSBs receive funds totaling $1.1 million to provide intensive substance abuse treatment services in jails (Petersburg, Roanoke County, Roanoke City, Virginia Beach, Norfolk, Fairfax, Hampton, Martinsville, and the Middle Peninsula-Northern Neck areas). These programs have a total capacity of 211 beds, the average length of stay is between 90 and 180 days, and approximately 400 to 600 inmates per year participate in these programs. Five CSBs are funded ($561,215) to provide substance abuse treatment to juveniles in detention homes. In addition, many CSBs provide mental health and substance abuse services to the offender population through local initiatives and through 10 adult and two juvenile drug courts.

In fiscal year 2000, approximately 400 adult jail inmates and juvenile detention home residents were treated or evaluated in state mental health facilities. This number represents approximately 25 percent of the patients in state mental health facilities.

Several Virginia localities, including Fairfax County, Henrico, Alexandria, Virginia Beach, and Petersburg, have developed comprehensive jail or detention-based mental health or substance abuse programs. The following characteristics make them model programs:

  • Use of nationally accepted and tested service models;
  • Positive coordination between the criminal justice and mental health and substance abuse treatment staff in areas such as joint security and clinical services training; and
  • Connections to continuing care programs in the community.

The commissioner also released the results of three surveys that the department conducted for the period from November 1, 2000, to April 30, 2001: (i) community services boards regarding services provided to local and regional jails and juvenile detention homes; (ii) juvenile detention home administrators; and (iii) sheriffs. The purpose was to estimate the number and cost of services provided or needed in jails and detention homes. The annualized cost of meeting the unmet need for mental health and substance abuse services in local jails, as estimated by community services boards, is $34 million; for juvenile detention homes, the estimated cost is $3.4 million. (Juvenile detention homes estimated the cost of unmet need for mental health and substance abuse services to be almost $4 million).

The commissioner listed several barriers and challenges for the provision of treatment services to adult and juvenile offenders, including the lack of:

  • Defined statutory responsibilities for the provision of treatment services to adult and juvenile offenders;
  • Standards for services that should be available to offenders;
  • Meaningful agreements between jails, detention homes and community services boards for the delivery and coordination of services;
  • Equitable access to care;
  • Coordination between jails, detention homes and community services boards related to pre-release planning and connection to community services;
  • Training for jail and treatment staff in balancing therapeutic goals with security needs;
  • Sufficient number of psychiatrists; and
  • Ongoing collection of complete and accurate data on treatment services provided to offenders.

His recommendations included the following:

  • Legislation to assign the statutory authority to the criminal justice system for provision of mental health and substance abuse services in jails and detention homes;
  • Definition of the continuum of care and a long-range plan to implement the standards;
  • Integrated state policy and identification of funding;
  • Local collaboration, including meaningful memoranda of agreement, training and new initiatives; and
  • Pre-screening consistency among Code sections, including ensuring offenders are pre-screened by a CSB prior to admission to a state hospital.

The Honorable Stephen H. Martin, Chairman
Legislative Services contact: Nancy L. Roberts


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