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Marjorie L. Baldwin Ph.D.

Mental Illness Is Not a Crime

Instead of jail, use the justice system to help the mentally ill.

Source: 3839153/Pixabay

There is nothing criminal about being diagnosed with mental illness. Nevertheless, according to data from the Bureau of Justice Statistics, nearly 40 percent of inmates in state and federal prisons have a history of mental illness.1 Nearly 15 percent meet criteria for acute and serious psychological distress.

In county jails, the prevalence of mental illness is even higher: almost half of inmates report a history of mental illness, while one in four meet criteria for serious psychological distress. The number of people with serious mental illness incarcerated in jails or prisons in the U.S. is nearly 14 times greater than the number residing in all of the state psychiatric hospitals.2 Jails in major cities have now become the country’s largest providers of psychiatric care.3

One judge in Miami-Dade County is trying to change those statistics. I had the good fortune to hear him speak in August 2018, at a conference sponsored by the National Institute of Mental Health. Judge Steven Leifman is an associate administrative judge for the Eleventh Judicial Circuit Court of Florida. As a newly elected judge in 1995, he became frustrated with the numbers of mentally ill persons who came through his courtroom each month, many of them multiple times. He became even more frustrated with his inability to do anything to help them. In 2000, he created the 11th Judicial Circuit Criminal Mental Health Project (CMHP), which aims to steer persons with serious mental illness away from jails and prisons and to the psychiatric care they need.4

Judge Leifman talked about the incident that sparked his concern for offenders with mental illness. Early in his judicial career, he presided over the trial of a young man with obvious signs of mental distress. The young man was found guilty. Before he was sentenced, his mother contacted the Judge and pleaded with him to get her son the psychiatric care he needed, but which he rejected. Judge Leifman promised to help. He sentenced the young man to an involuntary outpatient treatment program, but the defendant’s lawyer objected. “With all due respect, your honor,” he said, "you do not have authority to order a person to receive medical care." The lawyer was correct. There was nothing the Judge could do to help that young man get the care he needed, the care that might keep him out of the criminal justice system in the future.

Today, thanks to the CMHP, things are different. A misdemeanor jail diversion program aims to divert nonviolent defendants with mental illness away from the criminal justice system and into community-based treatment.2 All persons booked into the county jail are screened for symptoms of serious mental illness. Those who are eligible for diversion are transferred as soon as possible to a community crisis stabilization unit. Once their condition is stabilized, criminal charges may be dismissed or reduced, if the defendant agrees to comply with treatment. Those who agree are assigned to community-based care, and connected with an array of social support services. The court monitors compliance with the medical treatment plan, and ensures that appropriate social services are being provided, for up to one year.

The diversion program has been an unqualified success. Approximately 300 defendants who have been charged with misdemeanors in Miami-Dade County are referred each year. The majority are homeless, and most have serious cognitive impairments associated with their mental illness. But treatment works, even for this chronically and seriously ill population. Annual re-offense rates have declined from 75 percent before CMHP to 20 percent after.2

Justin Volpe is a "graduate" of the diversion program. He was arrested in Miami in 2007 on charges of petty theft. Prior to his arrest, he experienced symptoms of psychosis: delusions, hallucinations, paranoia, and voices telling him to steal. He says, “I didn’t understand my illness, [so] I never sought the treatment I needed.”5 Justin was sentenced to jail time, but the resident psychiatrist recognized that he was suffering from mental illness and transferred him to a hospital. From there, case workers determined he was eligible for the jail diversion program.

Today, Justin works with the CMHP as a peer recovery specialist. The peer specialists are assigned to persons newly released from jail under the diversion program, to help them obtain the resources they need to live independently. Justin is married and has a young son. “Without [the jail diversion] program,” he says, “I’m not sure where I would have ended up.”5

The key to the success of the jail diversion program is that it connects clients to mental health services with the authority of the criminal justice system. The single factor that accounts for the disproportionate share of persons with SMI in jails and prisons is untreated mental illness. Some persons with SMI, like Justin, do not recognize that they are sick and need treatment. Others stop treatment because they believe they are cured, or because they experience negative side effects from anti-psychotic drugs. Whatever the reason, neither their family and friends, nor the mental health system, have the authority to get these persons the treatment they need. The criminal justice system has that power—and treatment works!

I have experienced the power of the justice system in my own experiences with my son. A wise judge recognized that he was suffering from mental illness, and a persistent lawyer ensured that he was accepted into a diversion program. While he was in the program, he took his medicine as prescribed, and avoided alcohol or other drugs. I could be a mother again—the justice system did the policing. The diversion program turned around his life. Today, he runs his own business and has a family.

In the U.S. in 2018, jails are de facto psychiatric hospitals, and prison guards double as mental health providers. Our treatment of persons with serious mental illness has not progressed far, if at all, from the era of the state hospitals. Kudos to Judge Leifman for harnessing the authority of the criminal justice system to show us there is a better way. Other counties should follow his lead.


[1] Bronson J and Berzofsky M. 2017. “Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-12.” U.S. Department of Justice.

[2] Northeast Ohio Medical University. ”Eleventh Judicial Circuit Criminal Mental Health Project.”

[3] Roth A. 2018. “A ‘Hellish World’: The Mental Health Crisis Overwhelming America’s Prisons.” The Guardian.

[4] Stepping Up Initiative. “Steve Liefman: A Judge on the Mental Health Frontlines in Miami.”

[5] Volpe J. 2015 “Jails are no place for the mentally ill. I was lucky to get out.” The Washington Post.


About the Author

Marjorie L. Baldwin, Ph.D., a health economist and economics professor at Arizona State University, is author of the forthcoming book, Beyond Schizophrenia: Living and Working with a Serious Mental Illness.