Mental Health Care, Not Prison: NJ Bill Would Create Diversion Program

ESSEX COUNTY, NJ — People with mental illnesses are 10 times more likely to end up in jail than in a hospital, according to a recent report. But it doesn’t have to be that way, a state lawmaker from Essex County says.

On Monday, the Senate Judiciary Committee unanimously voted to advance S-524, which will see further review in that chamber before a full vote. A companion bill has been introduced in the Assembly. Read the full text here.

If it becomes law, the bill will create a “first of its kind” statewide mental health diversion court initiative. The goal? To steer eligible people away from the criminal justice system and into “appropriate case management and mental health services,” according to one of its sponsors, Senate Majority Leader Teresa Ruiz (NJ-28).

Here’s what the proposed state law would do, Ruiz said (read the full bill statement below):

“The bill would establish mental health diversion courts in three high-need vicinages in the north, central and south parts of New Jersey. Under the bill, each vicinage would consist of a team working together which would include prosecutors, superior court judges and a mental health diversion team which would consist of legal professionals and licensed mental health specialists.”

“With this legislation, in collaboration with the Attorney General and the Administrative Office of the Courts, we reaffirm New Jersey’s commitment to empower and provide critical lifesaving wrap around services to those battling mental health disorders,” said Ruiz, who represents Newark in the Legislature.

“This legislation is deliberate and takes into account other models used throughout the state with the intent to codify and expand these services, at the discretion of the Attorney General,” she continued. “Together we will break the stigma around mental health and will foster a more empathetic approach, forging a path forward towards healing and justice for all in this state.”

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BILL STATEMENT

As per the New Jersey state Legislature:

In 2004 a Special Offenders Unit was created in the Union County Prosecutor’s Office to deal with mentally ill criminal defendants. The unit has helped to initiate “a jail diversion program, a court based mental health program and an ongoing training program for law enforcement.” The jail diversion program, begun in 2006 has diverted individuals with mental illness away from the criminal justice system and into appropriate treatment. Since that time, county prosecutor’s offices in several New Jersey counties, including Ocean, Essex and as recently as 2015, Gloucester, Hunterdon and Warren Counties, have initiated similar diversion programs.

To facilitate the expansion and growth of programming for individuals with mental illness involved in the criminal justice system, this bill establishes a Statewide Mental Illness Diversion Program to divert eligible persons who have committed certain offenses away from the criminal justice system and into appropriate case management and mental health services.

The Department of Human Services is directed, in conjunction with other federal, State, and local government agencies, to prepare and disseminate a directory of Mental Health Diversion Resource entities within New Jersey to facilitate the diversion of eligible persons from the criminal justice system. Each Mental Illness Diversion Resource Entity would serve as a point of entry to facilitate the law enforcement diversion or referral of eligible persons into existing case management and mental health services offered by the New Jersey Department of Human Services or other appropriate case management and mental health services available to persons with mental illness.

Eligibility

The bill provides that a person is eligible for admission into the program if he committed an eligible offense and has a prior diagnosis of mental illness or other indications of mental illness. An eligible offense is defined by the bill as a non-violent petty disorderly persons offense, disorderly persons offense, or crime of the third or fourth degree.

Each Mental Illness Diversion Resource Entity would serve as a point of entry to facilitate the diversion or referral of eligible persons into existing case management and mental health services offered to persons with mental illness. Under the bill, the Mental Illness Diversion Resource Entity or any other agency to which an eligible person is referred should be capable of providing screening, counseling, treatment and case management for mental health issues and other co-occurring health disorders to or coordinating these services through the appropriate federal, State and local government agencies that offer assistance.

A Mental Illness Diversion Resource Entity or an agency which accepts the referral of an eligible person would be required to provide law enforcement officials with periodic status reports regarding the eligible person’s participation and recovery progress, provided the person consents to the release of such information.

Intake procedures

Under the bill, when a person is taken into custody for an eligible offense, if the person exhibits behavior that may be related to a mental illness, the law enforcement officer may continue processing the individual with a preference for diversion to a Mental Illness Diversion Resource Entity or other community-based mental health services in lieu of filing a criminal complaint. If the alleged offense is not an eligible offense or the person is resistant to diversion, the officer may file a criminal complaint. Under the bill, a law enforcement officer cannot divert an eligible person prior to the filing of a criminal complaint if the crime or offense involves restitution for damages, if the crime or offense involves violence or the threat of violence, if the crime or offense involves the violation of any restraining order or protective order of another person, or where a victim of the offense objects to the diversion. If the person is not diverted, the law enforcement officer may proceed with the filing of a criminal complaint and indicate the person’s status as an eligible person.

At any time after the filing of a criminal complaint, but prior to the disposition of such complaint, an eligible person, the assigned public defender, or the individual’s own legal counsel may make an application to the prosecutor to participate in the Mental Illness Diversion Program. The prosecutor may approve or conditionally approve an eligible person’s admission into the Mental Illness Diversion Program. The prosecutor would have the sole discretion to determine if an eligible person qualifies for and is admitted to the Mental Illness Diversion Program after consideration of the nature of the eligible offense, the causative relationship between the person’s diagnosed or apparent mental illness and the commission of the offense, the amenability of the person to participation in the services of the program, the availability of case management and mental health services, the desires of any victim, the person’s history of prior convictions and the probability that diversion will promote the person’s recovery, prevent future criminal behavior and protect public safety. The prosecutor would consult with the victim prior to approving an admission into the program. The prosecutor’s approval of an application would not be conditioned on an admission or guilty plea.

Disqualification

The bill prohibits admission into the Mental Illness Diversion Program: (1) if the person has criminal charges pending for a crime of the second degree or higher; (2) if the crime or offense involved violence or the threat of violence; or (3) if the person was previously convicted of a violent crime enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2) such as murder, vehicular homicide, kidnapping, aggravated assault, sexual assault, robbery, carjacking, or firearms trafficking. In addition, the bill provides a presumption against admission into the Mental Illness Diversion Program if the person is charged with any crime or offense involving domestic violence or if the person committed the crime or offense while subject to a temporary or permanent restraining order.

Program requirements

To qualify for the Mental Illness Diversion Program, an eligible person shall agree in writing to certain terms and conditions. The prosecutor would determine the duration of the person’s participation in the program, except that the participation in the program could not exceed two years from the date of the diversion agreement.

The bill requires the eligible person to be responsible for coordinating with the Mental Illness Diversion Resource entities to ensure that the prosecutor receives periodic reports on the person’s participation, cooperation, and recovery progress. The person would be required to contact the Mental Illness Diversion Resource Entity or other case management and mental health service provider within seven days of the date of the diversion agreement.

The court would review the status of the deferred prosecution no later than six months from the date on which the court approved the prosecutor’s initial request for a postponement of the proceedings, and, thereafter, every six months from the most recent review, to consider whether the postponement of court proceedings should continue. If, after a minimum of six months from the date of the diversion agreement, the prosecutor is satisfied that the eligible person has complied with the diversion agreement, has not been the subject of any subsequent criminal charges, and continues to make progress with case management services and mental health recovery, the prosecutor may move for the dismissal of the criminal charge and terminate the eligible person’s participation. If, at any time, the prosecutor finds that the eligible person has failed to comply with the diversion agreement, the prosecutor may notify the court that the State is prepared to proceed with the prosecution. The bill provides that no fee would be assessed to an eligible person for participation in the Mental Illness Diversion Program. An eligible person may be admitted to the Mental Illness Diversion Program one or more times at the discretion of the prosecutor.

The dismissal of charges based on successful participation in the Mental Illness Diversion Program would not be deemed: (1) a conviction for purposes of disqualifications or disabilities but would be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from other diversion programs; or (2) a conviction for the purpose of determining whether a second or subsequent offense has occurred under any law of this State.

When considering the diversion of an eligible person from the criminal justice system, a prosecutor may use the Mental Illness Diversion Program established under the bill, any other diversion mechanism authorized by law, or a county-based law enforcement diversion program after considering each program’s restrictions, the relief available to the eligible person, and the safety of any victim and the public.

Training

The bill would require the Administrative Director of the Courts to develop a differentiated mental health supervision case type within the Probation Division of the Superior Court for eligible persons who are sentenced to a term of probation supervision. To the extent that sufficient resources are available, probation officers assigned to the specialized caseload should be experienced in behavioral health and evidence-based therapeutic interventions. The probation officers would coordinate with mentors as well as federal and State case management and health care providers to promote their recovery, compliance with the terms of probation.

Amendatory sections

The bill amends N.J.S.2C:52-6 to allow for expungement of all records and information relating to the arrest or charge dismissed based on an eligible person’s successful participation in the Mental Illness Diversion Program. In addition, the bill amends the PTI statute (N.J.S.2C:43-12), conditional discharge statute (N.J.S.2C:36A-1) and the conditional dismissal statute (section 1 of P.L.2013, c.158 (C.2C:43-13.1)) to cross reference the Mental Illness Diversion Program established by the bill. Under the bill, successful completion of the Mental Illness Diversion Program bars the person’s eligibility for PTI, conditional dismissal and conditional discharge programs; however an eligible person may seek subsequent admission to the Mental Illness Diversion Program and may be admitted at the sole discretion of the prosecutor.

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