The Legislature is considering major policy changes aimed at redirecting people with serious mental illness who commit non-violent, low-level crimes out of jail and into mental health treatment.

It’s unclear what criminal charges would qualify for this kind of jail diversion, and the details behind a trio of proposals are still being worked out by lawmakers with input from state health regulators, public defenders and judges.

But the political will appears to be building to stop criminalizing mental illness, especially in cases where the behavior that incites an arrest is clearly a result of poor mental health rather than nefarious intent.

Some mental health advocates who’ve long been sounding the alarm on this issue say they are hopeful that 2020 could be the year that the state adopts meaningful reforms.

Cory Lum/Civil Beat

“It’s a tricky issue,” said Louis Erteschik, executive director of the Hawaii Disability Rights Center. “I used to think that this kind of thing infringed on the civil liberties of some of these people by forcing them to get treatment. I’ve evolved in my thinking over time. The truth is I get off the bus every day on my way to work and right there on Fort Street I see people laying there with open wounds.

“Obviously we don’t want people’s rights totally run over, but to me the reality is just unmistakable when you look at these people every single day like I do. It doesn’t make sense to not try and do something to help them.”

In criminal proceedings where there’s reason to believe that a defendant’s mental illness may become an issue in the case, House Bill 1619 would allow the court to divert the case into an evaluation of the defendant’s mental fitness. The results of that examination would then help direct the defendant into an appropriate level of treatment. The bill would also give the court the option to send the case to Mental Health Court.

House Bill 1620 and its companion Senate Bill 2033 would move a defendant out of the court system and into the custody of the state health system to receive psychiatric treatment for up to a week. After that, a treatment team would guide the defendant toward the most appropriate level of care going forward. The court would have the option to dismiss the defendant’s charges.

Della Au Belatti

Although these bills are the result of tremendous collaboration between the mental health, law enforcement and justice systems, not everyone is in accord.

In opposition testimony, the Attorney General’s Office found the measures in violation of a person’s constitutional right to turn down psychiatric treatment. That’s because the policies are proposing to force a person to receive treatment without the crucial determination that he poses a danger to himself or others.

The Office of the Public Defender made the case that pre-trial incarceration time for many defendants would actually increase under the diversion plan because of the long length of time that it currently takes to administer a mental fitness evaluation.

“I want to stress that these bills continue to be a work in progress,” said Rep. Della Au Belatti, adding that lawmakers need to balance a person’s civil rights with public safety when considering law enforcement diversion programs like this.

Belatti noted that interested parties have been working together to find a solution that everyone can get behind.

“There is collaboration between legislators, law enforcement, the Department of Health and community advocates,” Belatti said. “It’s really made them get out of their silos and talk to each other.”

Eddie Mersereau, deputy director of behavioral health at the state Department of Health, said he doesn’t view the lack of consensus as a barrier, at least not yet. The real roadblock — getting all the major players at the same table to workshop policy solutions — has already been overcome, he said.

“There’s a continued sense of, ‘Hey, if we work together, we can achieve the similar goals that we all really have,'” he said. “Because the courts don’t want to keep doing things the way they’ve been doing them, seeing people cycling and recycling through the system again and again, and they are very clear something needs to be different. We’re all aligned on that.”

A Broken System With ‘Devastating’ Consequences

The push to unclog Hawaii’s jails and deliver adequate mental health care to people deemed unfit for court proceedings is highlighted in a January report by the Hawaii Mental Health Core Steering Committee. The report describes psychiatric care in the current system as “minimal, delayed and inefficient,” and notes the “devastating” impact on families across the state.

During 2017 and 2018, nearly 150 people facing a misdemeanor or petty misdemeanor charge were jailed in Hawaii for a total of about 12,000 days before they were transferred to the Hawaii State Hospital for psychiatric care, according to the report. It estimates that it cost the state about $2.18 million to keep these people in jail waiting for treatment.

Cory Lum/Civil Beat

The report was born of an inaugural summit on improving the government response to people with serious mental illness. The summit, held last November at the Hawaii State Supreme Court, brought together judges, law enforcement officials and health agency representatives for a discussion about how Hawaii government agencies can guide people with mental illness to proper health care services before they repeatedly cycle through jails, hospitals and courts.

There are about 250 people in Hawaii who could utilize this kind of jail diversion program, according to Mersereau.

It would work in step with a Honolulu pilot program launched in 2018 called Law Enforcement Assisted Diversion. LEAD provides intensive social services to non-violent people who have frequent brushes with police, but have not broken the law, and are grappling with issues including mental illness, substance abuse and homelessness.

“Think of it like this,” Mersereau said. “LEAD is to divert people before the police feel like they have to make an arrest. If it’s implemented to its fullest extent, police would say, ‘I could arrest you, but I can see that you need treatment, so if you agree to get this treatment I’ll hold the arrest in abeyance to see if you follow through with it — and if you do, I’ll dismiss the arrest.'”

“What we’re talking about with this policy change is, when somebody’s been arrested, the court has the opportunity to say, ‘We want to determine if you’re mentally fit to proceed — and if you’re not, we want to get you into treatment.'”

The jail diversion program under consideration by Hawaii lawmakers was modeled after a similar program in Florida’s Miami-Dade County.

“They were at a point where they had over a million people in their county jails who were suffering from mental illness,” Mersereau said. “So (the judge) basically redirected and reshaped how they managed people with mental illness in the court system and that led to huge decreases of folks in the court system. We’re pulling from some of those things that they did, but tailoring them to Hawaii’s unique circumstances.”

Diamond Head Tragedy Prompts Action

Beyond correcting the point where the criminal justice and mental health systems intersect with policy changes, lawmakers need to simultaneously look at funding a more robust menu of psychiatric treatment options, said Connie Mitchell, executive director of the Institute for Human Services.

“If we just tell people, ‘We’ll let you off if you go to treatment,’ but then there’s no treatment beds, we’re going to be in a big quandary again,” she said.

Mersereau agreed. If the proposed jail diversion policy were to be implemented today, the state would not have enough capacity to provide those who are eligible with treatment, he said.

Other bills would increase the state’s capacity to offer psychiatric care to patients, including funding requests for crisis stabilization beds.

Rep. Gregg Takayama said lawmakers will also consider legislation related to mental health and gun violence with heightened urgency following last month’s Diamond Head neighborhood blaze, stabbing of a woman and killing of two Honolulu police officers.

On Thursday, House and Senate committees are scheduled to hold separate hearings on 18 gun violence prevention measures, such as new rules around ammunition purchases, and restrictions on carrying a firearm while intoxicated.

“What happens when someone passes away and leaves weapons behind?” Takayama said. “Who is responsible for making sure they are accounted for to prevent situations where they end up falling into the wrong hands or forgotten?”

Although Hawaii is known for having some of the nation’s tightest gun controls, Sen. Clarence Nishihara said lawmakers are looking to close loopholes to prevent tragedies like the one in Diamond Head.

Civil Beat reporter Blaze Lovell contributed to this report.