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My Child with Mental Health Challenges Has Been Arrested: Now What?

Updated: Apr 26, 2023

One of the sad side effects of a broken mental health system here in Georgia is that the criminal justice system becomes the de facto triage unit. Not surprisingly, it is ill-equipped to play such a role, and yet families are regularly hoping to rely on judges and lawyers in this system to route their loved ones to treatment, and to do it quickly. But, "quickly" is a foreign word in criminal procedure, so what are the realities families can expect, what are potential ways to exploit the current system to the benefit of the person struggling with mental health challenges, and what needs to change to fix a nagging problem?


Pre-Arrest: 911 and Beyond


One of the most challenging scenarios a parent (or another family member) faces is when their loved one is in an acute psychiatric crisis; one in which they may be a danger to themselves or others in the home. There are a lot of things going through your mind in that crucial moment, especially if you've had to respond to a similar crisis situation in the past. Did your loved one have a bad experience at a crisis stabilization facility previously? Did you previously call 911 and the police ultimately resorted to the arrest of your loved one? Do you have legitimate concerns about your safety or the safety of your child?


I get questions about what to do in these scenarios a lot from parents for the above reasons. Bad prior experiences can lead to hesitation, frustration, and even panic. But before we dive in to the options and subsequent considerations, know that this is what I tell any parent who asks me this question: it is better to act in any responsible way and to ensure your child's (or other loved one's) safety than to hesitate out of fear of consequences in the system and risk something irreversible happening. Meaning, call 911, call the Crisis Access line, (if the danger is imminent but not immediate) seek a Probate Order to Apprehend; do anything that might help put a safe stop to the crisis situation and worry about the consequences the system might render later. You can't fix a death or serious injury, but you can potentially fix a run-in with the criminal justice system or the civil psychiatric system.


Should you resort to calling 911, there are things you can do to try to both mitigate the outcome and prevent a misunderstanding between the responding officer and your loved one that might result in an unnecessary arrest, or worse. Make it clear to the operator that this is a mental health crisis and that you are requesting a responding officer who is trained in Crisis Intervention (CIT). In some states, CIT training is mandatory for all peace officers, while in others (hello, Georgia!) it is not. However, many local police agencies in the latter states require CIT training for their officers or else have dedicated, trained CIT responders. Those are the ones you want. So, do whatever you can to make it clear to the 911 operator that you want someone trained in mental health response, and you vastly improve the chances your loved one isn't arrested and that the officer doesn't escalate an already tumultuous situation. Also, make sure the responding officer understands his or her options under the law: in Georgia, for instance, the officer now has the option to take an individual in mental health crisis to a hospital, even if that person isn't committing a crime (O.C.G.A. §37-3-42). This was a recent change to the law and only requires that the officer confirm via telehealth or similar call to a psychiatric professional that the person meets criteria (as a substantial threat of imminent harm to himself or others) for involuntary hospitalization.


Other options include calling your state's mental health crisis line. Here in Georgia, the Crisis Access Line (GCAL) can send out a mobile crisis unit to try to either convince the person to voluntary hospitalize or, in cases where the person meets criteria, a person can be hospitalized involuntarily (this doesn't seem to happen very often in my experience). Keep in mind that at least with Georgia's GCAL, mobile crisis has been slow to respond in many cases in which families have reported back, so depending on the situation, 911 may be your best option. But know with GCAL you are getting mental health professionals trained in responding to crisis situations. If your crisis is in Georgia, GCAL can be reached at (800) 715-4225.


Lastly, there is the option in Georgia and other states of approaching the courts for help. In Georgia, probate courts have jurisdiction over these matters, and two witnesses to a person's troubling behavior over the course of the last 48 hours can submit affidavits to a Judge, who can then in turn issue an Order to Apprehend, which would have law enforcement find and take the person to a hospital for treatment. Keep in mind, this is not a super fast way to respond to a crisis, so is more appropriate for situations where the pot has been simmering and there are legitimate concerns it's about to boil over. The affidavits must contain information that leads a Judge to believe the person meets criteria for involuntary inpatient hospitalization and the information must have come from the last 48 hours, not based solely on some non-recent history of dangerous actions (although adding some history for context is always good in my opinion). Furthermore, the witnesses cannot come to legal conclusions in their affidavits--that's for the Judge. So, what I usually tell families who wish to go this route is to take notes of concerning behaviors, like any threats of suicide, aggressive behavior, or threats of hurting other people. Then make sure you get to the probate court within 48 hours or else your observations are moot.


It Couldn't be Avoided: My Child Got Booked


If it happens, first thing's first: don't despair. For one thing, while no one would call jail a pleasant place, frankly neither is a psychiatric hospital, but in both there is some level of a stabilizing environment where things are not likely to get worse than they already were. In crisis situations, that's the name of the game: keep something irreversible from happening.


Entering the criminal justice system is not typically an irreversible outcome in these situations, and in many scenarios can be a jumping point (though not ideal) for meaningful progress in treatment down the road. You just need to accept some realities while also preparing the groundwork for exploiting the system to your child's benefit.


Reality #1: The criminal justice system is slow. Really slow. Some parts, in particular, are tragically slow, and those are concentrated in cases involving mental health. While you may be able to use the system to some extent, there is no instant gratification (or at least if there is, it's exceedingly rare).


Reality #2: The players in the court system are not motivated to bring treatment to your child quickly. Judges, prosecutors, and even many defense attorneys are either focused on the boxes in which a typical case is supposed to be placed early on and/or are ignorant of the few available and feasible options for arrestees to receive quick intervention. Sadly, there is a lot of unfounded fear of mental health challenges as well, due to traditional stigma and media hype. That means fashioning an outcome early on that gets your child out of the jail and into inpatient treatment can be tough, as many magistrate judges would prefer to avoid the risk of releasing an unstable arrestee and punt to another judge down the road. It doesn't mean options can't ever be fashioned, but just accept that it's not easy and frankly not likely to happen at the early stages of a criminal case.


Reality #3: Jails are not even remotely capable of meaningful mental health treatment. Expect to hit walls, starting with even finding a direct number to the mental health units at the various jails. They aren't widely advertised, and you'll likely have to find a live person (or be routed to others) to help you get to that floor. Asking for a mental health visit is probably your best bet early on, but if you have a medication history you can provide to them, do it. Keep in mind, though, that jails opt for cheap medications, so don't expect them to administer that Abilify injection or provide Wellbutrin. They will resort to older and less expensive antipsychotics, mood stabilizers, and antidepressants (of which incidentally I find are not administered much at all--my assumption is that the condition of MDD is not considered "acute enough" to warrant proactive intervention). Some jails will allow you to bring existing meds to an inmate with the proper documentation, but not all Sheriffs allow this--just ask; it doesn't hurt. In summary, while it shouldn't be this way, the jails are much more concerned about safety and stability between the inmates themselves and between the inmates and staff. Holistic considerations are secondary, if they exist at all.


Reality #4: You may not want to post bond for your child. And that's ok; DON'T BEAT YOURSELF UP. This is one of the most common questions I get--"Should I post his bond?" My answer has always been the same: "Far be it from me to tell you, as a parent, what you should or shouldn't do in this situation." There is no easy or consistent answer. Sometimes a person is so clinically unstable that posting bond may legitimately result in one of several possible bad things, including the person going underground and missing court apperances, getting rearrested, or getting hurt. It's ok to recognize these possibilities and decide you just can't do it. On the other hand, if you can prepare a structure for treatment on the outside and you can get a buy-in from your child, perhaps posting bond is a better outcome, as they could receive meaningful treatment and avoid the trauma of the jail environment. Just have a plan and a way to pivot if your child doesn't comply (that's a whole other conversation for another blog post).


So, given these realities, where is the hope at all if your child or loved one gets arrested? The hope comes from accepting the above realities while taking steps to get balls rolling. These can build into positive developments down the line while also avoiding needless gaps of dead time that will have to be made up later.


Competency Evaluations and In-Jail Mental Health


If your loved one is so symptomatic and has a poor history of outpatient treatment, it may be that he or she has to suffer through some time in the jail. Let me be clear: the system needs a complete overhaul to help individuals avoid this reality, but as a defense attorney I have to work within the boxes I'm given. What the aim should always be, regardless of the pain on the front end, is to set the individual up for success when the criminal case is done, so as to avoid ever, ever, having to experience it again.


That means not letting emotion overcome a sober analysis of the realities. Rash decision making out of fear for the pain your child is inevitably feeling can sometimes lead to worse things that can not only complicate the existing criminal case but can also jeopardize the health and safety of your loved one. It's best to approach the situation from a two-pronged perspective: mitigating the pain on the front end as much as you possibly can, while also looking down the road for that time when the criminal case hits the trial judge's courtroom. You will have wanted your child to have built a decent foundation of insight by that point, if possible, because it can help to mitigate outcomes, if the evidence doesn't play out favorably from a traditional defense standpoint.


If competency is even remotely at issue, my practice is to get an order for an evaluation early on, as soon as is possible. Evaluations by state doctors (the ones most likely to expedite spinning the case to a hospital for treatment) are exceedingly backed up, and as far as I can tell there is no relief in sight. You usually can't change that fact, so you need to get the ball rolling early and avoid any wasted time, knowing it's going to take months for the report to come back, anyway. Talk to your child's lawyer about this possibility and see if he or she can move on it.


While the evaluations are pending, it's worth trying to get the jail mental health team to work with your loved one. I'm not going to pretend that this is groundbreaking treatment; it's not, and that's not meant to disrespect those professionals who genuinely care for their inmate-patients. The priority of the Sheriffs running the jails simply overrides those other concerns, and that priority is the security of the jail and safety of the staff and other inmates in their custody. That means the jail mental health departments typically operate more from that angle than they do trying to build any meaningful foundation of insight. And beyond that, whether the treating staff is county-employed or private, budget is ALWAYS a concern, so the more expensive meds are right out.



But again, this is about exploiting a lousy system for your child's benefit, not waxing poetically about it's strengths. The goal at any point in this process is to get your proverbial fingers in the window of your loved one's psyche: bring him to a place where you (or his lawyer) can speak to him through the symptoms. That often means taking advantage of even a short period of time where those symptoms may be in check, and exploiting jail mental health to get there may not be a longterm solution, but it is a way to pry that window open some.


Change the Trajectory: Accountability Courts


These aren't always an option, but in a growing number of states and counties, there are courts targeted to help those with mental health challenges who get caught up in the criminal justice system. These are lead by judges who aren't interested in treating these individuals like criminals and are, instead, keen on expanding treatment for them and changing their outlook on what treatment means.


They are typically comprised of various perspectives in the court system: prosecutors, defenders, law enforcement, treatment professionals and others all interested in helping these men and women out of the jails and into happier lives (that incidentally save law enforcement resources down the line).


Some, like the DeKalb County Misdemeanor Mental Health Court funded by the DeKalb Criminal Justice Treatment Coalition (treatmentisjustice.org) are meant to intervene early on, to limit the time spent in jail. Others are targeted toward felony charges in cases where a person has repeatedly had run-ins with the court system.


Ask your lawyer, or anyone in the court system, as to whether those options might be available. Your child will have to be on board--none of these are mandated, or at least the overwhelming majority. And in any case, if he or she doesn't want to participate, they can't benefit. Sometimes being faced with jail time can bring a buy-in on the front end, at least.


The Case is Serious: Insanity Defenses and Mitigating Argument


Mental health in the criminal justice system is often conflated with things like what they call an Insanity Defense in Georgia. The reality is that, after twenty years of practice in this field, I rarely utilize Insanity as an outcome for my clients. Why? Because a finding of Not Guilty by Reason of Insanity has consequences that don't amount to walking out the courtroom doors, no matter what the charge. The immediate outcome is being transported to the inpatient custody of a State hospital, and even in cases I think might result in early discharge, I can never guarantee it, nor does the law really provide comfort in that regard.


In any event, I do frequently prepare a case for a potential Insanity defense, in partiuclar if the charges are very serious. Hospitalization is always a preferred outcome over lengthy prison time, and in the end it (kind of) puts the ball in the client's court as far as when she will be discharged.


Issues pertaining to the laws surrounding criminal responsibility and Insanity can be found elsewhere on my website, but in practice, where it might be at issue, I start developing data as early as possible, or in other words, as close to the point of the alleged crime as possible. Since Insanity requires a finding that the person either could not distinguish between right or wrong and/or had a delusional compulsion at the time of the offense, it means a forensic evaluator is eventually--way down the line--going to have to look backwards, and providing them with data that might support a finding of Insanity starts early.


The decision to pursue such a defense is always in the client's hands, but having the data ready to utilize if necessary is the practice of a lawyer familiar with these defenses, and it is worth looking for that when hiring for your loved one.


Beyond Insanity, having an eye towards developing mitigating arguments is always something to start thinking about early on, and developing those arguments with the client's help is essential to securing a more favorable outcome in the end.


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