Updated: May 17
In a recent blog post, I went in depth concerning the arrest of a loved one with mental illness, both leading up to that arrest and subsequent considerations. There were a few things in that analysis that are important but of which I covered superficially, as they each required a far more concentrated discussion than what that post was meant to address.
One of those areas for which I receive a TON of questions from parents and other family members is the issue of what to do in the early stages of an arrest when the arrestee suffers from mental health challenges. You know your loved one is not mentally well, you know a jail is a terrible place for them to be in light of their symptoms, and you are terrified of what might happen if they were to have a violent run-in with another inmate or jail staff member. "Surely there is a way for me to get her to a place where she can be properly treated and finally address her mental health; she needs to be in a hospital, not jail," opines a parent or sibling, frequently. Getting her out means securing her release through the bonding process, and in most cases (depending on which state you live in) you are in a position to post bond (pay the bail money) in one way or another, pretty quickly. So, should you?
DISCLAIMER: If you are reading this expecting me to give clear and defined guidance and relieve you of the anxiety that comes with debating the decision of whether to post bond for a jailed loved one with mental illness, I cannot. As I noted in the prior blog post, far be it from me to tell you whether you should or shouldn't take action to secure your loved one's release. Every situation is different, and within each of those situations, the considerations are both dynamic and nuanced, and those dynamic and nuanced considerations are pondered by very different people with different historical and moral perspectives. Some folks are simply worn out, and that's simply understandable. Point being: you are reading this because you care, and whatever decision you make will be rooted in that care to a large extent, so don't beat yourself up, regardless of the final resting place for your mind. Now, on to the good stuff.
The Bond Process
I'm going to use Georgia as the example here, as it is my state of practice, but the process is fairly similar across the country. Upon arrest, an arrestee is typically brought before a magistrate judge anywhere from a few hours to a couple of days. This timeframe is based upon statutory mandates, but the purposes for the first appearance can vary.
In Georgia, magistrate judges have the power to set bond in criminal cases, except for in cases involving very serious felonies (we call them the "Seven Deadlies," but in reality there are thirteen offenses under O.C.G.A. §17-6-1 for which only a designated Superior Court judge may set bond). That doesn't mean a magistrate judge has to set a bond, but in most cases at least something is set for potential posting and release. If it is one of the Seven Deadlies, the timeline for getting before a Superior Court judge varies depending on jurisdiction. Fulton County, for example, allows Magistrate Judges to sit as Superior Court judges by designation, and holds miscellaneous calendars for these purposes typically ten days to two weeks following arrest. In other counties, you may not be so fortunate--it can take weeks to get before a Superior Court judge in some cases, and filing a Motion for Bond is often a requirement to get a hearing. In any case, if a felony case is not indicted within 90 days, the arrestee MUST be given a bond (it just doesn't have to be a particularly attainable one).
Considerations for bond are technically governed by statute and established case law, but generally involve things like the potential flight risk of the arrestee, dangerousness to the community, likelihood to commit a crime, and potential to try to influence witnesses. Practically speaking, the nature of the alleged offense is first and foremost in the mind of almost every judge, even though an arrestee is presumed innocent at that time.
For cases involving mental health (especially those where violence or threats of violence are alleged), it's not uncommon for a magistrate judge to defer to a Superior Court judge for setting a bond, if any. The reason for this is up for speculation, but I suspect it is because mag court judges are risk averse, and they know a decision to deny bond doesn't really have a lasting impact but protects them from getting burned should the arrestee be released and something bad happen.
Once a bond is set, it is typically one that operates in two potential ways: (1) it allows for you, as the family, to post the entire bond and pay that bail money to the sheriff of the respective jurisdiction. Upon the case being fully resolved, that money would mostly be given back to the person who posted it--it is literally a bond between the Defendant and the court system to ensure the Defendant shows up for court. If he doesn't you can potentially say goodbye to that money; or (2) you go through a bonding company, who fronts the money for you and collects a ~12% fee as payment for doing so. That 12% is a sunk cost and is the price to be paid for having someone else be on the hook. Bonds can also be cash only or, in some cases, property bonds, where a home or other real property can be used as collateral.
Release from jail after bond is posted can range from an hour to several hours or even a full day, depending on the county.
Best Practices for Securing a Reasonable Bond in Mental Health Cases
Believe it or not, there is a lot of sympathy for those wrestling with mental health challenges that comes from the bench, but that doesn't necessarily translate, by itself, to a reasonable bond being issued. There are considerations that, if properly addressed, will lead to a much more likely chance of an attainable bond being set, and might even offer a framework for the individual to remain committed to a treatment regimen so long as the case is pending.
Clinical stability matters. I know, that's easy for me to say. But it is often where I start in these cases, especially in the more serious ones. If an individual is acutely symptomatic to the point where he can hardly keep composed in the courtroom setting, chances of a bond being issued are near zero absent extraordinary efforts to secure inpatient crisis hospitalization and direct transportation to said hospital from the jail, an effort that is akin to moving mountains. Trying to exploit jail mental health services to intervene and offer psychotropic medications is the primary way of accomplishing this, but it requires a buy-in from a typically reticent arrestee and proactivity from a typically passive mental health unit. That said, I will often advise holding off on requesting bond if I believe stability can be attained within a reasonable period of time, both because it increases our chances of getting a bond (and not having to wait however many weeks for another shot at it) and because it increases the likelihood that nothing happens after release that complicates the case further (i.e. another arrest, the individual going AWOL, etc.). If symptoms are present but not severe, these efforts are a little less important, but it is always nice to be able to tell a Judge that "the defendant's symptoms have been abated by medications since his arrest."
Having a plan for treatment in place is key. While I'm not a fan of conflating issues of mental health and criminal allegations, the reality is that it's hard to disguise the fact that mental health concerns are a part of a case, and besides, it can be very helpful context in cases where a Judge might otherwise scoff at the idea of setting a bond, given the nature of certain charges. By prepping a plan that is ready for implementation beforehand, and talking about it with the arrestee and getting his buy-in, you give the judge cover; she doesn't have to be overly concerned that release equals her name in a newspaper for bad reasons. Details are important, and letting the Court know that the individual is looking forward to treatment is helpful. Interviews with treatment facilities are often a requirement prior to acceptance, so coordinating video interviews through the jail may be required. That can be tricky but is usually doable.
Roof over their head or bust. Have you thought about where the arrested individual is going to ultimately live? Start thinking about it. In many cases, families have reached a point where they are unwilling to take in their loved one anymore due to ongoing problems when they do. That is totally understandable, but the Court is going to always want to know where a person is going to live, especially in these cases. It has to be a stable environment, and has to be in place with an identifiable address, or chances of getting bond are slim to none in all but the less serious offenses. Besides that, having no solid landing pad for an arrestee after release from jail and/or treatment is an invitation to going AWOL. Living situation is often the most difficult piece of my cases, as bridges have so often been burned to the extent that a solid residence is elusive. So, having that in place before making a serious run for a bond is very important.
So, Should I or Should I Not?
Let me be clear once again, there is no clear answer here. I think the knee-jerk reaction from anyone on the outside looking in would be "How can you possibly consider not posting bond for your kid (or other loved one)?" But for those who are in the middle of it, we know it isn't that simple. Frustration, concern, logic, and other feelings and emotions play into the decision, and every case is nuanced based on history, previous incidents, nature of symptoms, substance abuse and more. Get them out, and we might be looking at the same dangerous situation we had been trying for years to prevent. Leave them in and they languish in a traumatic environment with little to no treatment intervention. Not an easy call.
Then comes that common refrain: "She needs treatment, not jail." I can't count the number of times I've heard this from families; almost every time. And each and every time I feel the helplessness in their voices. And, I think finding empowerment in these situations means accepting a basic premise of mental health challenges: absent a willingness to engage from the participant, on some level, mental health treatment is largely ineffective.
I say this not to ring a note of despair, but to have you change your paradigm some. The process of guiding a loved one to treatment is a psychological dance, and treatment can't be effectively imposed upon someone who doesn't want it. That means that before you make your decision regarding posting bond one way or another, you have to accept that success doesn't initially come from the outside (that is, the provider of treatment); rather, it comes from some glimmer of acceptance from your loved one wrestling with these challenges and some modicum of willingness to engage in treatment services.
So, you might ask, does this mean I need my child begging for help and excited to go to a hospital and take medications before I can be confident that his release won't end in disaster? Of course not. It is the rare instance in which I have a client who's level of insight into his challenges is one conducive to hitting the ground running. I liken it to getting my fingers in the window that the individual has slammed shut. A tiny crack of acceptance, a glimmer of willpower, a hint of desire. If I can get there, I try to run with it.
The process of getting to this place is a matter for an entirely separate post, or rather a litany of posts, but my point is that if you have no hint of that, or if it is apparent that it is completely manufactured, then just prepare yourself for the likelihood of a bumpy ride. On the other hand, if you can get your fingers under that window, strike while the iron is hot.
Again, this willingness to engage treatment services doesn't have to be robust, and likely won't be. Jail can understandably provide some leverage, as no one wants to be in jail, but I think it's important to emphasize with your loved one that this is less about getting out of jail and more about positive change in his or her life. Focusing on the potential positives of treatment, rather than the consequences of failing to engage it (i.e. going back to jail), seems to be more effective, in my experience. In any event, it is the starting point that feeds into other considerations. For instance, having the Court incorporate specific requirements regarding treatment into a bond order can provide some structure and accountability for the individual, but it isn't by itself the answer. Sometimes, reporting requirements to pretrial services (kind of like probation while on bond) can be particularly helpful in both attaining a bond and for accountability purposes, that is if the county offers those services (larger ones typically do). You're just trying to help lay the foundation for something better, to tap into and reinforce that modicum of desire, and to help make it less likely that release turns into a crash and burn.
In some more severe cases, where symptoms are simply so acute that release would most certainly result in bigger problems, staying the course in jail may be (tragically) more desirable. In these cases, I do my best to get the ball rolling on matters of competency evaluations as soon as possible (and you should ask her lawyer to do just that), as these can take weeks or longer to complete and longer than that to get the individual to restoration treatment services in a state hospital. If we must go down that road, I make it a point along the way to do my best to make this the last time the person has to suffer through an extended jail stay, and to exploit the treatment services they will ultimately receive from forensic doctors and spin them into effective outpatient options down the road, where real progress can be made. But to be clear, this road is agonizing for both the jailed individual and the family, and is why it creates such a complex and difficult decision when it comes to posting bond. Know that while even though remaining in jail may be the less dangerous option, it can mean months to a year of the person remaining in custody if their symptoms don't abate, just waiting to get to a hospital for treatment in connection with their criminal competency. That's why you don't stop trying for a breakthrough and you still look to secure some kind of bond, so that if a breakthrough can be found, you are in a position to post the bond and exploit that window of opportunity quickly, rather than having to wait to ask for one.
There is one other slim option for cases of severe symptoms where straight release is simply not an option: securing what in Georgia is called a 1013 or an Order to Apprehend (OTA) from a probate court. These are typically secured in the civil system in cases of mental health crisis, where the individual is not incarcerated. In the case of a 1013, it requires a mental health professional to certify that a person is in need of involuntary hospitalization as a substantial threat of imminent harm to themselves or others. With the OTA, it means to lay witnesses submitting an affidavit to a probate judge alleging similar behavior, and the judge then issues an order requiring their hospitalization. This is not easy to accomplish in the jail setting, but it can be done. It means trying to work with the jail mental health unit to issue a 1013 and for the Sheriff to authorize a transport from the jail to an inpatient hospital, or to convince a probate judge that it doesn't matter that the person is in jail, they are still a danger and need inpatient, crisis management rather than more passive jail intervention. In the latter instance, bond would likely have to be posted and coordinated with the Sheriff so that transport to the hospital could be dovetailed in. So having a bond in place beforehand is key. Again, not easy, but I've managed to do it in the past in a handful of cases. While this option is forced treatment, it's more about the opportunity to gain symptom abatement and that window of opportunity for engagement, spinning it into potential residential or outpatient treatment options that help avoid an extended jail stay.
As I mentioned at the start, this post isn't meant to answer the question of should I or should I not so much as it is to lay the framework for that consideration. Furthermore, it doesn't fully address the more holistic considerations of your ongoing role as the support system and on the front lines of crisis management; nurturing the nascent stages of insight, encouraging treatment in a positive way, keeping the lines of communication open, finding empathy with your loved ones circumstances, educating yourself on the conditions, the medications, what they feel like, etc. These are much broader and more important considerations, in my opinion, and their practical application is much more impactful over the long term.
But, alas, that is a conversation for another day.