Mental Health Holds in Jails: Incarcerating Those With Mental Emergencies
In a recent interview, Vermont’s Secretary of State, Al Gobeille, asked a rhetorical question that thousands of mental health practitioners, lawyers, and corrections officials have pondered: “What do we do when we don’t have an inpatient psychiatric bed for someone?” In that state, the question remains unresolved. Since July 2016, 60 people in Vermont (and many more around the country) have been temporarily held in jail while waiting for a bed in a psychiatric facility. 
This unfortunate and bizarre phenomenon is a product of the power of the government to involuntarily hold mentally ill people (who have committed no crime) to prevent them from being dangers to themselves or others. But, is holding them in correctional facilities when treatment facilities are unavailable legal? What are the procedural rights of such patients? We will focus on these questions in this presentation.
Views on mental health disorders have evolved as stigmas associated with mental health problems have decreased. Today, people with mental health problems can be held involuntarily only if they pose specific dangers to themselves or other people. In the 1975 United States Supreme Court decision, O’Connor v. Donaldson, a case dealing with the “treatment” of Kenneth Donaldson, who was diagnosed as a paranoid schizophrenic and was confined to a Florida hospital for almost fifteen years, the Supreme Court ruled that a state cannot confine a non-dangerous person merely because the person suffers from mental illness. If the person can live safely by himself or with the help of willing and responsible family members or friends, the state must allow that to happen. Incarcerating people merely because of subjective determination that their mental disorders make them dangerous is unconstitutional because determining “dangerousness” is too subjective and unreliable.
While ideally, all people that are held due to mental defects would be placed in appropriate psychiatric facilities, the reality is that due to logistical reasons or because beds might temporarily be unavailable, some people are temporarily housed in jails. Unfortunately, there is no national study providing data on how many people are held in jail annually when states have nowhere else to put them when they experience mental health crises.
Through May, 2017, six states had statutes authorizing the state to place people experiencing mental crises or suicidal thoughts in jail. Colorado was one of the six until Governor John Hickenlooper signed Senate Bill 17-207, which banned the use of jails to house people who are “a danger to themselves or others,” but have not committed any crime. Prior to the bill’s enactment, Colorado state law allowed law enforcement officials to place mental health hold on a person, detaining him in jail for up to 24 hours. After that 24 hours, the detainee was required to go to health facility or mental health center for evaluation and treatment. In many cases, a mental health center was not located nearby, so instead of releasing the detainee into the community, law enforcement officials would simply continue holding him in jail.
Let’s look at a sample statute from New Mexico, one of the five remaining states that allow correctional facilities to be used for “mental health holds.”
Under New Mexico’s “Emergency Mental Health Evaluation and Care” statute, an officer “may detain and transport a person for emergency health evaluation and care” to an “evaluation facility.” The officer must satisfy one of three requirements prior to detaining and transporting the person:
· have reasonable grounds to believe the person has just attempted suicide; or
· have reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or his designee; or
· a licensed physician or a certified psychologist has certified that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or others and that immediate detention is necessary to prevent such harm
But what is meant by “evaluation facility” if an officer satisfies any one of these three requirements? In New Mexico, evaluation facility frequently means jail. This is because New Mexico has among the fewest public psychiatric beds per capita of any state and is among the stingiest in state mental health expenditures. Therefore, there is an inadequate number of inpatient mental health facilities in the state. One report found that New Mexico has only 491 beds for psychiatric inpatients and that almost half of these were in the Albuquerque metropolitan area. A December 2015 student commissioned by the state legislature found that jails have become “the de facto mental health hospitals” in the other rural areas of the state.
South Dakota’s statute on mental health holds is similar to New Mexico’s. To place a person on a mental hold, that statute requires that an officer can apprehend a patient to protect her from physical harm to self or others because she is severely mentally ill. An officer can then transport the patient to an “appropriate regional facility.” A jail can be an “appropriate regional facility,” but it may not be used unless and until the state has tried to find other “appropriate” regional facilities. This makes jails the fallback option for mental health holds. Additionally, a person cannot remain in a jail for longer than 24 hours on a hold alone. As in New Mexico, South Dakota jails bear the brunt of mental holds as large hospitals have insufficient capacity for psychiatric patients.
Though the state can place someone as a “mental health hold” in a correctional facility, the detained person does enjoy several rights not afforded to prisoners. New Mexico allows detainees to: 
· be taken to an evaluation facility as soon as possible and no later than 24 hours from the time he is taken to jail;
· be separated from other inmates;
· not be identified on records used only to record custody of prisoners;
· be protected from committing suicide; and
· be treated with the respect and dignity that every citizen who is neither accused not convicted of a crime deserves
Most states recognize that placing a person who suffers from a psychiatric crisis in a jail is not a proper or effective method of treatment when a hospital bed isn’t available. The closer question is whether that is acceptable as a last resort. Colorado is the latest state to move away from such a practice, but in a number of places it’s a stopgap solution to a pervasive problem.
 O'Connor v. Donaldson, 422 U.S. 563, (1975).
 T. Howard Stone, “Therapeutic Implications of Incarceration for Persons with Severe Mental Disorders: Searching for Rational Health Policy,” 24 Am. J. Crim. L. 283, (1997).
 Rashad Mahmood, “Psychiatric Capacity in New Mexico,” http://publichealthnm.org/2015/12/09/psychiatric-capacity-in-new-mexico/, (2015).
 Senate Joint Memorial 4 Task Force Recommendations, https://www.scribd.com/document/292806661/Task-Force-on-Jail-and-Mental-Health.
 S.D. Codified Laws § 27A-10-3.