Offenders with mental health disorders deserve a path back to society

June 28, 2023 9:59 am

For many offenders in the current system, there is no mechanism to diagnose or impose treatment for mental health, writes the president of the New Jersey State Bar Association. (Getty Images)

I spent 23 years in New Jersey’s municipal court system as both a prosecutor and judge. Countless times I witnessed those struggling with a mental health disorder facing charges in court that are directly related to their mental health. The justice system simply is not the place for these people to be rehabilitated. They require treatment, but the help they need isn’t available. And like a revolving door, they are arrested on another offense.

New Jersey has a chance to break this cycle for one of the most marginalized groups in our society with bill S524/A1700, sponsored by Sen. Teresa Ruiz and Assemblywoman Annette Quijano. The bill provides funding to expand court-based mental health diversion programs to three additional Superior Court vicinages across the state. These programs would model those that already exist in five New Jersey counties that divert some nonviolent offenders into mental health treatment. Much like a drug recovery court, the process offers people with mental health disorders a chance to avoid jail time and have their charges expunged if they graduate from the program.

The bill would improve the health and well-being of those with mental health disorders, create a safer society and reduce the cost of incarceration borne by the taxpayer.

For many offenders in the current system, there is no mechanism to diagnose or impose treatment for mental health. The defendant is charged, sentenced, and completes their punishment with no needs assessment, follow-up, or treatment, however warranted or necessary. That leaves many defendants back in the same place where they started – with an untreated condition that causes them to act in ways they should not. As one defendant noted, no amount of punishment is going to reverse the effects of a mental illness.

Also consider that, without treatment, many of these individuals leave jail or prison in a worse condition than when they entered. The prison population sees higher rates of post-traumatic stress disorder than the general population, according to the National Institute of Health. In a 2019 study, the Institute concluded that the prevalence of mental health disorders in prison, combined with PTSD, leads to self-harm and aggressive behavior.

Contrary to some sentiments that diversion programs are soft on crime, the current treatment avenues in New Jersey are anything but a get-out-of-jail-free card. Through every step of treatment, eligible offenders are monitored by a mental health team that includes the judge, prosecutor, public defender, and mental health professionals. The judge presides over all the participant’s appearances and regular meetings of the diversion team. And those who do not comply with treatment are terminated from the program and proceed with their criminal matter.

There is a successful model for mental health diversionary programs, and they are our recovery courts, once known as drug courts. The first drug court appeared in 1989. Now there are 3,700 nationwide, and New Jersey’s Recovery Courts are a meaningful success. Mental health diversion courts came a decade later and total more than 300 to date. Diversion courts have expanded exponentially not only because of increased funding and a willingness to try alternative means of rehabilitation, but because they work. Studies are clear that defendants who complete mental health diversionary programs are significantly less likely to reoffend than those who do not.

Take the Essex County Prosecutor’s Office’s mental health initiative as a shining example of what these programs can achieve for defendants, taxpayers, and society. The initiative launched in 2012 to create a path where qualifying individuals can obtain long-term treatment with judicial monitoring, as both a means of rehabilitating the defendant and keeping the community safe by reducing recidivism and escalation to more serious offenses. The program accommodates about 30 individuals each year and, to date, only two on record have reoffended after graduating, according to acting Essex County Prosecutor Theodore N. Stephens II.

Couple that statistic with the expenses of housing a prisoner versus the cost of a mental health program. Because the recidivism rate is lower for people who enter mental health diversion than those who complete a prison term, the long-term benefits and savings are evident.

In my career as a former judge, nothing gave me greater pride than meeting a defendant who graduated from recovery court and became a different person with a new lease on life. As legal professionals, lawmakers, and taxpaying residents of New Jersey, it is our duty to afford that opportunity to every member of society with a mental health disorder.

This commentary uses the term “mental health disorder” to reflect the language in the bill.

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Timothy F. McGoughran
Timothy F. McGoughran

Timothy F. McGoughran is president of the New Jersey State Bar Association, a family law attorney, and the founding partner of the Law Office of Timothy F. McGoughran in Ocean.