Usually within a day of arrest, a defendant will appear in court where a judge or magistrate will determine whether or not the defendant should be released pending adjudication of the case, and if so under what conditions.  In making that decision, the judicial officer weighs the risks posed by the defendant to fail to appear in court and the potential threat to the community's safety if the defendant if released. 

Judges, like any decision maker, seek to make informed decisions and to have a range of options at their disposal.  Armed with the kind of information outlined below and improved options, the courts should be in a position to minimize the unnecessary pretrial detention of people with mental illness. 

This is not to suggest that people with mental illness should never be detained.  It is particularly important, though, that mental illness itself not be used as a reason to detain a defendant in a case where a defendant with no mental illness facing similar charges and with a similar criminal record would likely be released.  In such cases where the criminal charges do not warrant detention and the judge's primary concern is the defendant's mental illness, facilitating access to services should be considered instead of resorting to criminal detention.

Recommendations:

a.

Facilitate the release of mental health information where appropriate for use at the pretrial release hearing.

b.

Ensure that a neutral entity is available to provide the pretrial release    decision making officer with all the information relevant to that decision, including mental health status, and with viable options to address any identified mental health issues.

c.

Ensure that interview protocols used by pretrial services staff also include questions to identify those with co-occurring substance abuse disorders.

d.

Ensure that at the initial hearing defense counsel are prepared to offer, in appropriate cases, an alternative to pretrial detention for defendants with mental  illness.

e.

Ensure that mental health information presented to the presiding judicial officer at  the pretrial release/detention hearing is limited to an indication of whether the defendant has a mental illness, and, if so, options for addressing it in the pretrial release decision.

f.

Establish programs that provide judges, prosecutors, and defense attorneys with options to address the mental health needs of people with mental illness.

g.

Design pretrial release conditions to address individual risks and needs posed by each defendant.

h.

Expand the options available in rural areas to provide mental health services for people with mental illness who are charged with a criminal offense.