The moment is now for tough conversations about justice reform, and it is vital that increased use of diversion for those with mental health issues is part of those conversations, writes Nicola Corner from JustSpeak
For the past few months, we’ve seen a lot of much needed discussion come out in the justice space. In particular, two issues have dominated the conversation: the need to address mental health in the criminal justice system, and the need to reduce the prison population.
We’ve heard Kelvin Davis acknowledge the high rates of mental illness in our prisons and the “huge need” for better mental health treatment. We’ve listened to Andrew Little pledge to reduce the prison population by 30%.
In light of this context, it’s all the more curious that there seems to be a major gap in the crime-mental health conversation: the possibilities for diversion. For all the articles on decarceration and mental health reform, there seems to very little talk about the various ways that mental health can be addressed outside of the prison environment.
We talk a lot about making at-risk units more therapeutic, of adding specialised mental health units to prisons, about eliminating solitary confinement. What we don’t talk about is the ways that we can address both offending and mental illness within the community.
From a political perspective, this is unfortunately not surprising. Despite the clear failures of the prison system in turning lives around, for many years it was simply accepted that mental health treatment was occurring neatly on the inside. Yet there are several problems with a narrative that confines its mental health solutions to the four walls of the prison.
For one, it means that the harmful effects of imprisonment on mental health get left out of the conversation. Overcrowding, exposure to violence, drug abuse, lack of privacy, lack of physical and mental stimulation, separation from support networks, emotional isolation and inadequate health services can all impact poorly on mental health. Double bunking, which already accounts for around 40% of New Zealand’s prison beds, adds further strain to mental health problems. And while the addition of mental health facilities in prison may prove to be a promising development, their resources can only extend so far. The new mental health unit in Waikeria, for example, only has 100 beds. Considering 91% of prisoners have had a lifetime diagnosis of a mental health or substance use disorder and we currently have almost 10,000 prisoners in New Zealand, specialised mental health units are only one piece of the solution.
If the prison population grows, the problems surrounding demand for mental health treatment will only become more acute. However even if all inmates were able to receive mental health treatment exactly as they needed it, the very nature of being separated from society can also create future problems. Factors that may contribute to poor mental health (such as job insecurity) can be even harder to manage when faced with the challenges of reintegrating back into society after time in prison.
Yet most importantly, by confining the crime-mental health conversation to the prison, we limit our imagination. We limit ourselves from considering all the other ways we could intervene to help people before they end up in a prison cell.
What if there was a better way?
This is where diversion comes in. Essentially, diversionary solutions aim to divert people with mental illness away from traditional criminal justice pathways by managing their offending in alternative ways. As opposed to sending the person to prison, the focus is instead on linking them with mental health services and providing rehabilitation options within the community.
Diversionary initiatives for offenders with mental illness can come in many different forms. In some cases, it occurs pre-arrest, with police or specialist mental health responders deciding to refer the person to mental health services, rather than pressing charges. In other forms, it means that a specialty probation programme is available as an option instead of a conviction and imprisonment, with mental health treatment provided.
Another initiative gaining in popularity internationally are mental health courts. Similar to the Alcohol and Other Drug Treatment Courts and the New Beginnings Court in New Zealand, mental health courts offer the opportunity for people who have offended to go through court-mandated, supervised treatment in the community. While models across jurisdictions differ, generally if participants complete the treatment programme successfully, it will have an impact on how their charges are handled. In Victoria’s mental health court in Australia, for example, participants that complete the programme can become eligible for credit to reduce their sentence. In less serious cases, participants may be discharged without a conviction. However, mental health courts don’t allow participants to escape accountability – they are closely monitored by a judge throughout the process, who may use a range of sanctions to keep them on track. And importantly for the general public, research has also shown mental health courts to be moderately effective at reducing recidivism. When programmes are implemented well, participants leave the mental health court less likely to offend than if they were to be sent straight to prison.
Of course, initiatives like mental health courts will not necessarily be the correct response for every person who has offended, nor do they create a complete picture of what is needed to address mental health in the criminal justice system. They require, for example, that community based mental health services are strongly supported and funded, an area which the government has recognised needs further improvement.
But while diversionary and community-based solutions may not solve everything overnight, they do, at the very least, need to be a part of the public conversation. To do otherwise is to accept an idea that many of us thought we had abandoned in 1970s – that the best place to treat mental illness is within an institution. As the World Health Organisation has warned, “without urgent and comprehensive action, prisons will move closer to becoming twenty-first century asylums, full of those who most require treatment and care but who are held in unsuitable places with limited help and treatment available”.
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