Abstract
Many jurisdictions are focused on pretrial reform aimed at reducing pretrial detention for nonviolent misdemeanors. How this reform affects people with mental illness, who have historically experienced lengthier and higher rates of pretrial detention, remains unknown. This qualitative study explores state laws and practices related to pretrial detention of people with mental illness across the United States, with a focus on perceptions about if and how, mental illness influences likelihood of appearance in court, dangerousness, and likelihood of jail detention. Statutes of all 50 states and the District of Columbia related to pretrial detention were reviewed, followed by semistructured interviews with 25 state forensic mental health directors and 15 judges who preside over first appearances or arraignments. The results highlight how state laws afford wide discretion to judges to determine the impact of mental illness on pretrial release. Judges and forensic mental health directors perceive this discretion as leading to a higher likelihood of detaining people with mental illness charged with misdemeanors, often for perceived concerns related to likelihood of appearance, unmet social service needs, and public perceptions of dangerousness. These findings have important implications for ongoing pretrial reform, improvement in community supports, and diversionary behavioral health services.
The disproportionate rates of arrest and subsequent incarceration of people with mental illnesses, especially those with marginalized racial, ethnic, or sexual identities, is a well-known problem in the United States. Of the estimated 664,300 people confined in jails at a given time, an estimated 26 percent of people report concerns consistent with a mental illness and more than 44 percent of people report a diagnostic history of mental illness.1,2 Compared with individuals without mental illnesses, those with mental illness are more likely to experience frequent incarcerations and be detained in jail for longer periods of time and have a higher likelihood of incarceration for nonviolent misdemeanors.3,–,6 This detention comes with significant consequences, including disruption of individuals’ continuity of psychiatric care, disconnection from familial and community supports, and exposure to potentially traumatizing experiences while incarcerated. It may also embed people with mental illness deeper into the criminal justice system because detention correlates with guilty pleas, conviction, longer term incarceration, and risk for rearrest.7
Decades of federal, state, and local efforts have been intended to reduce this overrepresentation of people with mental illness in the criminal justice system, although not without countervailing government policies, such as the “war on drugs,” furthering this problem.8 Examples include the development of the sequential intercept model (designed to identify diversion opportunities at each decision-making point within the criminal-legal process); the creation of specialized law enforcement, pretrial, prosecutorial, and jail-based responses; the development of standardized risk assessment tools to reduce bias related to mental illness; the creation of specialty courts addressing mental illness or substance use disorders; and changes in the perceived roles of courts in furthering treatment goals.9,–,14 The limited success of these programs in reducing the disproportionate rates of detention for people with mental illness as well as disagreements about how much potential remains for these reforms continue to be topics of controversy.15,16
Along with these efforts, many states and local jurisdictions are continuing to refine pretrial bail practices, known as pretrial reform. Such reforms seek to confront pretrial detention more broadly by reducing detention for all, regardless of mental health status.17,18 Examples include eliminating cash bail for misdemeanors or nonviolent felonies, increasing the use of summonses instead of arrests, replacing pretrial detention with nonmonetary conditions of release, and strengthening statutory presumptions of pretrial release.19 In New York, for example, an evaluation of pretrial reform changes enacted in 2019 found that jail populations fell by more than 30 percent within a year of enactment.20 New Jersey reforms in 2017 reduced the pretrial jail population by nearly 44 percent.21 In Illinois, jail bookings and average daily populations both fell substantially in the first few months of reform.22
How these pretrial reforms specifically affect people with mental illnesses remains unknown. Emerging research suggests that such reforms may instead disproportionately reduce the jail detention of people without mental illness. In Cook County, for example, an analysis of detention changes between 2015 and 2019 found that, despite reductions in the total number of jail admissions, the absolute number of people detained with serious mental illness (determined in that study by a complex model incorporating diagnosis codes, intake screening results, patterns of medication use, placement in specialized treatment housing, and transfer to inpatient psychiatric units) did not change. This suggested an increase in the proportion of jail admissions involving people with serious mental illness.23 Early signs also indicate that pretrial detention reform may also disproportionately increase the use of pretrial supervision, such as electronic tether monitoring for people with mental illness.24
Interstate differences regarding the consequences of pretrial reform for people with mental illness may be related to state-specific statutes that set the parameters for how decisions about pretrial release eligibility should be made. Although most people charged with misdemeanors, with some exceptions for violent misdemeanor offenses, have an absolute right to bail or release from custody because of the relatively minor nature of their charges, state statutes also generally allow judges to consider persons’ dangerousness or their likelihood to appear in court when determining pretrial release eligibility.25,26 Existing literature, although limited, indicates that judicial decision-makers may associate mental illness with a higher risk of dangerousness and a lower likelihood of returning to court.27,–,30 It is important to note that dangerousness for the purpose of detention is not always the same as what clinicians might consider a risk of harm to others because of mental illness.
This study was designed to describe pretrial detention state laws and local practices across the United States to better understand whether these laws and practices are differentially applied to people with mental illness. Specifically, we sought to understand how state statutes consider mental illness in determining eligibility for pretrial release, what influences perceptions in courts of first appearance about a defendant’s dangerousness or risk of failure to appear when considering pretrial release eligibility, and if and why people with mental illnesses may be more likely to be detained at their first court appearance.
Methods
The first phase of this qualitative study reviewed state statutes governing pretrial detention to determine if or how such laws consider mental illness in bail and bond decisions for people charged with misdemeanors. The second phase, designed to understand local practice regarding pretrial decision-making, involved semistructured interviews with state forensic mental health directors and criminal court judges who preside over first appearances or arraignments.
Review of State Statutes
Two members of the research team, a lawyer and a law student, reviewed statutes from all 50 states and the District of Columbia. They collected statutes governing bail and pretrial procedure to determine whether a person with mental illness may be incarcerated because of that illness. Multiple statutes from each state were studied to collect information about the full pretrial decision-making process. Each statute was coded for whether it permitted consideration of mental illness as a justification for denial of eligibility for pretrial release, either explicitly (i.e., stated clearly) or implicitly (i.e., did not specifically exclude).
A statute was coded as explicitly permitting consideration of mental illness in determining eligibility for pretrial release if it used mental health status as a factor that either must or may be considered. For example, one state statute requires that likelihood of appearance in court be considered in determining release eligibility and requires that “the court shall, on the basis of available information, take into consideration…defendant’s employment, financial resources, character and mental condition,” in determining whether a defendant is likely to appear.31 In another state, the law instructs the judicial officer to consider the following to order pretrial release or set bail: “the history and characteristics of the defendant, including, but not limited to…[t]he defendant’s character and physical and mental condition.”32
A statute was coded as implicitly permitting consideration of mental health status in release eligibility determinations if it permitted consideration of dangerousness or likelihood of returning to court in determining pretrial release eligibility or permitted broad discretion about the factors that judges may consider without explicitly mentioning mental illness. For example, in one state, judges are required to release individuals pending trial “unless the magistrate or court determines in the exercise of his discretion, that such a release will not reasonably assure the appearance of the defendant as required or that the defendant may pose a danger to any other person or in the community.”33 In this instance, there is no explicit reference to mental illness in the statute, but the language about dangerousness and appearance suggests that there is room for judges to make decisions based on their assumptions about the connections between mental illness and those factors. In other states, the statutory language is broad enough to subsume mental illness. For example, according to one state statute, “Proper considerations in determining whether to release the defendant without bail, fixing a reasonable and not excessive amount of bail or imposing other reasonable conditions of release are:…the character, health, residence and reputation of the defendant.”34 Here again, there is no explicit reference to mental illness, but judges may assume that mental illness relates to character, health, and reputation.
A distinction was drawn between eligibility for pretrial release (the existence of any legal route for a person’s pretrial release) and conditions (requirements such as ankle monitor, treatment, amount of bail) one must meet to be released. Although the amount of bail may be the determining factor in whether an individual can secure release, this does not preclude eligibility, per the law, for release. This study focused specifically on eligibility for bail while also noting that one’s ability to pay bail remains an important consideration outside the scope of this analysis.
The reviewers divided the statutes for coding purposes and met regularly to review progress and clarify any questions about the appropriate interpretation of the relevant statute.
Semistructured Interviews
The research team developed separate but similar interview guides for state forensic mental health directors and criminal court judges (these guides are included as an online appendix). Questions in both interview guides probed for knowledge about statutory guidance and practice related to judicial pretrial detention and competency to stand trial decisions for people with known or suspected mental illness charged with misdemeanors, perspectives on if or how the presence of mental illness influences judicial decision-making at first appearances, and the availability of guidance or formal training for judges and other court stakeholders regarding defendants with mental illnesses.
We chose to interview state forensic mental health directors, believing that such a role would involve knowledge about statutory and regulatory guidance related to mental health and criminal law. In collaboration with colleagues at the National Association of State Mental Health Program Directors, state forensic mental health directors or their equivalents from 49 jurisdictions (47 states, the District of Columbia, and Puerto Rico) were contacted via e-mail. Three states were excluded because the position of forensic mental health director was vacant at the time of recruitment. Representatives from 29 locations responded (29 of 49, 59%), 27 (55%) agreed to participate, and 25 (51%) interviews were completed with either the forensic mental health director or their designee.
The group of judges was recruited from the 25 jurisdictions represented by the interviewed state forensic mental health directors. Judges were eligible to participate if they had experience with first appearances or arraignments. Anticipating challenges in recruitment, the team asked for recommendations from the interviewed forensic mental health directors for judges in the state’s most populous city. Recommendations were received from 22 state forensic mental health directors. Nineteen judges (19 of 22, 86%) responded to the team’s recruitment emails. Fifteen judges (68%) participated in the study and completed interviews. Thirteen of the 15 judges were currently overseeing first appearances or arraignments of misdemeanors, and the other two judges had past experience doing so.
The interviews took place between February 2023 and March 2024. Interviews lasted no more than 60 minutes, were conducted via video conference, and were audio-recorded to obtain an accurate transcript. One research team member led the interview (typically L.G.P. or E.B.F.), and another took notes in the event that the recording failed or the interviewee did not agree to be recorded. The study was reviewed by the Institutional Review Boards of the New York State Psychiatric Institute and the University of Michigan and was determined not to be human subjects research.
Analysis
All interviews were recorded and transcribed verbatim. We then used a thematic analysis approach.35 Dedoose, a qualitative coding software, was used to organize and code interview data.36 The research team reviewed transcripts together and generated codes based on the content of the interviews. Codes were both deductive and inductive. Codes were refined iteratively until a final code book was produced.
Three members of the research team (L.G.P., G.M.G., M.T.P.) each coded the same four interviews (10% of transcript sample) to ensure consistency in the approach to coding, resolve questions, and add appropriate detail to the codebook. The same three researchers then coded all remaining interviews and met weekly to review progress, answer questions, and resolve coding questions in consensus discussion. The entire research team then drafted summary code reports.
Results
Statute Review
Figure 1 describes the results of the state statute review. Eight states (16%) explicitly permit consideration of mental condition in determining eligibility for pretrial release (Fig. 1). An additional 14 states (27%) and the District of Columbia implicitly permit consideration of mental condition in determining eligibility for pretrial release (Fig. 1).
Figure 1. States that explicitly or implicitly permit consideration of mental condition in determining eligibility for pretrial release.
Interview Sample
Twenty-five state forensic mental health directors (or their designees) and 15 judges participated in interviews. Forensic mental health directors represented a variety of regions in the country, with 32 percent from Southern states, 28 percent from Western states, 24 percent from Midwestern states, and 16 percent from Northeastern states. The median time they had been in their current role was three years. Judges also came from a diverse range of states (27% each from the Northeast, Midwest, and West and 20% from the South) and had been judges for a median time of 14 years. Eight (53%) of the 15 judges reported using information obtained from pretrial risk assessment tools to inform their decision-making about pretrial release. Of those eight judges, two (25%) reported that the pretrial risk assessment tool included questions about mental health.
Perceptions Regarding Dangerousness
Many interviewees, including more than 92 percent of forensic mental health directors and 77 percent of judges, did not perceive mental illness alone as influencing the dangerousness of people charged with misdemeanors. As one judge noted, “To me, mental health in and of itself is not a dangerousness issue.” Forensic mental health directors frequently reported that they did not perceive judges as viewing people with mental illness as inherently dangerous. This perception aligned with their clinical perspective that mental illness does not generally correlate with dangerousness.
Interviewees qualified their responses about dangerousness, however, noting that the individualized details of the misdemeanor offense or circumstances of the behavior could change an individual’s potential dangerousness. For example, when asked whether mental illness “impacts” dangerousness, one judge noted, “No, probably not…it might depend on what the mental illness is and what the misdemeanor was and what their conduct and behavior is. But I would say generally, no.” Similarly, at least six forensic mental health directors highlighted the presence or absence of co-occurring substance use as being influential in determining dangerousness risk, with one saying, “I think the literature would suggest that substance use is a greater risk for dangerousness to the community.” Others suggested violent offense history, medication adherence, specific psychiatric symptoms, and social supports factored more prominently into individualized determinations.
Interviewees highlighted the typical misdemeanor offenses brought against people with mental illness as exemplifying why they do not generally perceive dangerousness as a significant concern for this population. One judge described a typical scenario:Most of the time…they’re homeless people that are arrested for trespassing because they were in [a store] and they were told to leave or they took a soda…A lot of those folks [in] that population have mental illness and those are the kind of misdemeanors they’re arrested on…they’re not [going to] be a danger to the community simply because of mental illness.
A forensic mental health director in a separate region of the country similarly said:I feel like a lot of times with…misdemeanor charges, you’re getting these people who are getting…arrested essentially because they’re mentally ill…They keep going back to the store that tells them they’re loitering after they’ve been told to stay away from the store…They’re more of a nuisance than a danger.
Multiple interviewees, including at least five judges and three forensic mental health directors, expressed concern about individuals’ risk of inadvertently harming themselves more than hurting others. One forensic mental health director noted, “We know that most folks are not a danger to other people. If anything, there’s a risk, probably a bigger risk, to themselves just because people…misinterpret what they’re doing.” A judge provided this perspective: “My bigger concern of dangerousness is the danger to that particular person in not being provided adequate housing and services.”
Interviewees often described social supports playing a larger role in the perception of individuals’ potential dangerousness than their mental illness. Interviewees highlighted housing, employment, behavioral health service access, high-crime neighborhoods where people with mental illness disproportionately reside, and service system engagement as being more important factors in the consideration of dangerousness in this population. Many focused on individuals’ housing status being particularly important for perception of dangerousness to the community and potentially in court.
Interviewees also highlighted a conflict between public perceptions of dangerousness and the risk perceived by clinicians and judges. As one forensic mental health director described:There’s been a lot of news about people who commit pretty heinous crimes having mental health issues, et cetera. And I think there’s been sort of a fear built up around mental illness…And so, I think in general, there’s just a larger misunderstanding about it. I’d say the safety piece of it for me is mostly that misunderstanding. It’s not necessarily the mental illness, but rather how the community supports that, or how the community engages with that.
Many judges described appreciating this community perception and recognizing that it either has led or could lead to bias in judicial decision-making. For instance, one judge noted: “And it has been very instructive to me and no small bit humbling to realize, I tend to be afraid of people with mental illness for lack of a better way to describe it. I tend to want to attribute to them dangerousness that is unfair.”
Perceptions Regarding Appearance
A majority of interviewees in both groups (including nearly 83% of forensic mental health directors and 93% of judges) felt that mental illness reduces likelihood of court appearance. Judges and forensic mental health directors provided similar responses, although judges perceived mental illness alone as being more influential than clinical, social, or service-related circumstances compared with forensic mental health directors.
Among interviewees who identified mental illness as reducing likelihood of appearance, some highlighted cognition and organization as key concerns. These interviewees noted that disorganization impairs people’s ability to keep appointments, understand the importance of a court appearance, appropriately prepare to attend a court hearing, and navigate transportation to attend.
Interviewees blended the influence of mental illness on appearance with the effect of attendant stressors that frequently accompany mental illness. For example, one judge provided the following qualifying answer:I think it’s more difficult for [people with mental illness] to track the things they need to do. And it certainly makes it more difficult for them to have stable housing, to have relationships with people who can assist them get to court. So, it has a huge impact on their ability to get to court. That’s not to say that they cannot, but it just makes everything in life more difficult for them.
A forensic mental health director similarly said:I think [mental illness] does impact their likelihood of showing up because, one, they’re often estranged from family and other supports in their life that would help them sort of navigate the court process and get there to your hearings, show up to your attorney meetings, things like that. A lot of [people with mental illness] just aren’t thinking clearly if they’re untreated. So yeah, they’re less likely to follow through, in part anyway, from symptoms of their mental illness, especially if untreated symptoms.
Another forensic mental health director noted, “It’s hard to say whether it’s the mental illness or whether it’s the lack of meeting social determinants of health, right?…For our population, especially our misdemeanor population, I’d say it’s the chicken and the egg situation.”
Although the interviews did not specifically ask about housing, over a quarter of interviewees spontaneously discussed an individual’s housing status as particularly influential for likelihood of appearance. As one judge reported, “Mental health and [being] unhoused are sort of the central themes of what’s happening for our failure-to-appear folks.” A forensic mental health director noted, “I don't think it’s mental illness primarily [affecting court appearance]. I think it’s the fact that a lot of our mentally ill folks do not have secure housing.” These interviewees discussed how a lack of housing worsens an individual’s ability to remember and attend court appointments, the relative lack of importance of a court date in comparison to an individual’s housing needs, and the implications of being unhoused on a person’s transportation, financial, and social supports.
Interviewees frequently identified other social determinants of health reducing likelihood of appearance, such as limited social support, poverty, limitations in behavioral health services, transportation difficulty, food insecurity, and co-occurring addiction. For instance, interviewees discussed how being poor limits individuals’ cell phone access for attorney reminders, constrains the persistence of an individual’s attorney to encourage appearance for a misdemeanor offense, and affects motivation to appear in court when other survival needs could be perceived to be more important than the court appearance. One judge, in discussing the importance of social supports, noted, “If someone is presenting with an acute mental health need, but they live in a supported residence or have a community or family…then that’s a different calculation than I think someone who doesn’t have those connections.”
One judge and three forensic mental health directors perceived mental illness as potentially improving an individual’s likelihood of appearance but typically only if certain services or community supports were available and psychosocial stressors were addressed. One forensic mental health director noted:I will tell you some of our individuals who have been the most ill have religiously shown up to their court dates. So, I don’t know that that’s always a big determiner of whether people are going to appear. But certainly, symptoms can interfere with being able to appear. And so can, again, homelessness.
Perceptions Regarding Jail Remand
Most judges and forensic mental health directors interviewed (nearly 80% and 63%, respectively) perceived mental illness as likely or possibly increasing a defendant’s likelihood of being remanded to jail pretrial. Judges expressed a stronger perception that mental illness influences remand decisions than forensic mental health directors. This was in part related to perceptions that people with mental illness would be remanded because of a higher risk of failing to appear in court.
As one judge shared, people with mental illness are more frequently remanded for misdemeanors “because a judge will, may, determine they’re just not [going to] show up otherwise.” A forensic mental health director echoed that view, noting that increased remand occurs because people with mental illness are “just not [going to be] trusted to come back and show up.”
Also, as described above, interviewees highlighted the intersecting social determinants associated with mental illness as factoring strongly into appearance considerations and, ultimately, risk of remand. Interviewees highlighted that poverty or limited social connections reduce the likelihood of posting bond to facilitate pretrial release, that homelessness increases the perception of dangerousness and reduces the likelihood of reappearance in court, and that difficulty with behavioral or emotional regulation in court can increase concerns about future appearances.
Interviewees, especially judges, reported that public perception and biases regarding mental illness play an important role in remand decisions. As one judge explained in response to a structured question on whether mental illness “impacts” remand rates:For sure, because they’re the people that are less likely to show up, probably more or less, more likely to sort of creep people out. You know, the ones that are the beggars in the street that the people in the suits really are offended by and that raise those concerns to the, the leaders of the community. You know, they’re the ones to get the most attention and, you know, if you’re a judge, especially a new judge…you’re very concerned about your perception…And then they’re also the people that are less likely to show up so they’ve got that track record of not showing up for court so it’s easy to say we never show up for court so this time I’m gonna set bail and keep you in jail for two weeks, three weeks, four weeks or whatever.
Another judge explained that biases affect how judges deal with uncertainty, including uncertainty related to defendants’ social supports, housing status, access to community services, and risk for unpredictable violence. This judge noted that people with mental illness are:more likely to appear to…a judge, as someone [about whom] you really don’t know what they’re going to do next. And therefore instinctively, your default is slow this down, let’s take a further look at it. And so that generally ends up in remands and bail and all of that because we’re not sure what will happen next.
Historical patterns of an individual’s prior misdemeanors factor into remand decisions separately from specific concerns about dangerousness or court appearance. For instance, one judge noted that people with mental illness are more frequently remanded pretrial because “[t]hey’re the ones who have the long criminal history of these petty type of charges…so I think you see their rap sheet is like ‘oh they’ve got all these trespassing charges or misdemeanor theft, shoplifting’…it looks perhaps more severe or egregious than it really is.”
Judges also expressed a desire to use remand as a perceived act of beneficence and protection for people with mental illness. Across numerous interviews, judges reported remanding people with mental illness to jail pretrial to provide them shelter, food, and rudimentary access to medical and mental health care. According to one judge:We can’t do [pretrial release] because they, they’re just gonna walk out the door and they’re gonna be homeless again or they’re, you know, get hit by a car, they’re gonna, they’re gonna scare somebody who’s gonna hurt them. So, we keep it a low bail and then we get someone at the jail.
Another judge said, “Jail…for me has become the place where a lot of them end up because it’s safe, it’s warm. Yeah, you get a meal, you know.” Many judges described having moral difficulty when deciding whether to remand individuals with mental illness and a misdemeanor charge if they perceive them as being at risk of harm to themselves, with one judge poignantly noting, “I will say that there have been instances of a misdemeanor where I have very serious concerns for the defendant’s well-being if released and the fact, the law doesn’t really contemplate that…that’s just a really hard space to be in.”
Finally, judges reported that they almost never remanded individuals to jail solely for the purpose of a competency evaluation. If it ever happened, it was done only after multiple failed attempts at conducting an out-of-custody evaluation or by judges who were seen as outliers in the system. As one forensic mental health director noted, “that’s a rogue tactic[….]it’s not really like the statute says you can do that anywhere.”
Discussion
We set out to describe the influence of mental illness in pretrial release decisions made at arraignment or first appearance for people charged with misdemeanors. This earliest judicial decision point in the criminal justice system, relatively under-studied in psychiatry, marks the potential entrance into the carceral system for people with mental illness accused of low-level crimes. The results of the statute review highlight that state laws infrequently dictate how or if mental illness does or should influence pretrial release eligibility, leaving wide judicial discretion in such decisions.
Consistent with this, our interviews amplify how pretrial release eligibility for people with mental illness and misdemeanor charges primarily hinges on local practices and perceptions. Mental illness was identified as a major influence in decision-making, although often indirectly through association with an individual’s social determinants of health. The demonstrated influence of mental illness on judicial decision-making resonates with the focal concerns framework on criminal punishment, which posits that judges orient sentencing around concerns of blameworthiness, community protection from dangerousness, practical constraints, and rehabilitation potential of the defendant.37,–,39 As Ulmer et al.38,39 discuss, judges seem to discern information about a defendant’s moral standing, risk of future crime, and redeemability from a similar set of case and defendant factors; the mental health of the defendant is important among these. Although the focal concerns framework relates to sentencing, it is reasonable to consider how the focal concerns of judges influence other parts of case processing, including early pretrial release decisions.
Our data suggest that dangerousness concerns from the general public about people with mental illness subtly influence early pretrial judicial decisions about release. This appears to favor remand for people with mental illness who may be perceived to be creating public nuisances, who are perceived to have the potential to become dangerous in the future, or who might benefit from psychiatric treatment that is not readily available in the community. A lack of available community services was frequently noted as a failing of the public mental health system and a driver of jail detention for people with mental illness, consistent with emerging perspectives that comprehensive community-based services may be the most critical factor for effective diversion.15
There was more robust consensus among the interviewees that mental illness reduces arrestees’ likelihood of appearing for subsequent court dates and therefore increases their risk of remand at arraignment or first appearance compared with similarly charged individuals without mental illness. Forensic mental health directors and judges perceived difficulties related to the cognitive effects of particular psychiatric disorders and, more often, those related to attendant psychosocial circumstances common among people with mental illness. There is a dearth of literature examining the relationship between mental illness and failure to appear; the results are mixed. Two studies have found no relationship between mental illness and failure to appear,40,41 yet one study in Ohio found that mental health predicted failure to appear for both men and women, with stronger correlations for women.42 It might not be surprising if people with mental illnesses have disproportionately higher failure-to-appear rates, as Pope et al.24 have argued. Multiple studies have reported no-show rates for outpatient mental health appointments ranging from 10 to more than 60 percent. The risk factors for nonappearance in court may be similar, including long lengths of time between appointments or court dates, substance use, psychosocial impairment, and living in disadvantaged neighborhoods.24 This has practical and policy implications we consider below.
Finally, the results support the widespread perception, consistent with suggestions in the literature, that people with mental illness and misdemeanor charges are more likely to be detained pretrial than people similarly charged without mental illness. Failure to appear in court plays a central role in this outcome. Individuals’ symptoms of mental illness, in addition to social stressors like housing insecurity, poverty, limited social networks, and transportation challenges that frequently accompany such illness, greatly reduce the likelihood of individuals’ appearance.
This finding has several key policy implications for ongoing pretrial reform. It highlights the importance of accommodations for people with mental illness to facilitate appearance and therefore limit jail detention. Second, the findings raise concern that pretrial risk assessments, which rarely consider mental illness specifically but frequently rely on prior patterns of appearance to predict risk of failing to appear, may reinforce patterns of ignoring the underlying social determinants that contribute to disproportionate pretrial detention for people with mental illness and may be amenable to intervention. In addition, as pretrial detention for misdemeanor charges is increasingly replaced with summonses, supervision, or other conditions, individuals with mental illness may continue to bear risk for disproportionate jail detention. Jurisdictions implementing pretrial reforms should track how such reforms affect those with mental illness to reduce net-widening and ensure equitable application.
Our findings also suggest several behavioral health policy implications. Because social determinants appear to play a central role in whether judges detain people with mental illness pretrial, diversion programs aiming to decrease this pretrial detention need to address these social determinants. Programs focused primarily on providing psychiatric treatment may not include the full array of services (such as case management, housing services, employment supports, substance use services, and family supports) to assuage the specific judicial concerns prompting pretrial detention. Additionally, our findings support the crucial role cross-system training and collaboration play in pretrial reform. Court officials may benefit from training about how different community services can address judges’ concerns about perceived dangerousness and failure to appear. Behavioral health providers may benefit from greater awareness of the factors influencing pretrial detention that go beyond individuals’ specific clinical symptoms.
This qualitative study had several limitations. Given anticipated challenges in recruiting judges to participate, we relied on suggestions from the forensic mental health directors. This likely led to interviews with judges who were more interested in the topic of the study. We also had a smaller sample of judges than forensic mental health directors and were therefore unable to make robust comparisons between the two disciplines. The study was also subject to the specific coding decisions made by the research team and recall bias among the judges, who were not asked for specific records reflecting their decision-making so as to protect anonymity and encourage participation.
Conclusion
We believe this national qualitative study to be the first of its kind to attempt a better understanding of how mental illness drives judicial remand decisions at arraignment or first appearances. Our findings indicate that state statutes offer little guidance, and that both judges and forensic mental health directors think people with mental illness are remanded to jail more frequently than similarly charged others primarily because of perceived associations with failure to appear in court. This exploratory study highlights the need for additional research about the influence of a defendant’s mental illness on judicial decision-making at arraignment, including specifically how social determinants affect pretrial detention. It also highlights the need for policy interventions aimed at alleviating social determinants in arraignment-related diversion efforts. As our work suggests that courts are attempting to address gaps in services through their pretrial decision-making, further research is therefore needed to identify best practices for such efforts that do not unintentionally further criminalize mental illness.
Acknowledgments
We are grateful for the collaboration of Joan Gerbasi and Daniel Ruskin in the early stages of this project.
Online Appendix
Is Mental Illness Being Used, Either Through Competency Evaluation or Bail, to Jail People Charged with Misdemeanors? A National Review of Statutory Law, Case Law, and Real-World Practice
Interview Guide for County/Trial Court Judges
Overview
Thank you for agreeing to take part in this interview. The purpose of our interview today is to learn more from you about the legal and practical factors you consider in setting bail for individuals with suspected or known mental illnesses. We will begin with some general questions about your jurisdiction and your responsibilities. We will then move on to ask more detailed questions about how bail decisions are made, when questions of competency are raised, and how they are handled.
Background
In what region of the country do you work (Northeast, South, Southwest, Midwest, West)?
For how long have you been a judge?
What are your regular judicial assignments?
How frequently do you preside over arraignments or first appearances?
When was the last time that you made a decision about bail?
Legal Procedures around Bail and Competency
Can you briefly describe how an individual’s criminal matter is processed between the time of their arrest on a misdemeanor charge and the time of their first court appearance?
How long does this process generally take?
How does the law in your jurisdiction currently guide decisions about bail for people arrested on misdemeanor charges? (Probe for dangerousness, flight risk, and other specific factors including mental illness)
Are there any pre-trial risk assessments done related to bail decisions?
If so, what are they?
Are exceptions allowed based on the person’s legal history or status (e.g., deemed a “persistent offender”?)
Have there been any recent changes to the bail laws in your state?
In your experience, if there are questions about the competency of a defendant, at what point are such questions raised (probe for whether they are raised at first appearance/arraignment or at later stages in the process after release on one’s own recognizance or bail is set)?
Does this differ based on whether the person is being charged with a misdemeanor or a felony offense?
When a request for a competency evaluation is made, is there any impact on your initial remand decision? (Probe for whether person in community could be ordered to jail or hospital)?
For defendants who receive a competency order, where is the evaluation done?
In your state, what is the procedure for individuals who are charged with misdemeanors and found incompetent to stand trial? (e.g., are charges dropped, are they sent to a hospital, if so, what kind of hospital, etc.)
Influence of Mental Illness on Judicial Decision-Making
Now that we’ve talked about the laws and general procedures in your jurisdiction, I would like to learn a little bit more about what influences your decision-making as a judge and how mental illness comes into play in the courtroom.
Earlier you described the key factors that go into making a bail determination for misdemeanor charges. How do you weigh these key factors in your own decision- making?
How do you think mental illness impacts the likelihood of someone being a danger in the community after being charged with a misdemeanor offense?
How do you think mental illness impacts the likelihood of someone showing up for court?
Consider this scenario: you are conducting arraignments and a defendant appears obviously mentally ill – he is disheveled, eyes darting around the room, talking to himself, and not focusing on his hearing. What would you do?
Do you think people with mental illnesses are more likely than those without mental illnesses to be remanded to jail for misdemeanor charges?
If so, why do you think this is the case?
Availability of Guidance around Mental Illness
What sort of formal training or guidance is available for judges in your county regarding defendants with mental illnesses?
What do you think would be helpful for judges to assist them in making decisions around bail/remand status for people with mental illnesses?
Wrap Up
If you could make one change to the system in your state to improve the bail process for people charged with misdemeanors, what would it be?
If you could make one change to the system in your state to improve the competency process for people with mental illnesses charged with misdemeanors, what would it be?
Is there anything else that you would like to share?
Is Mental Illness Being Used, Either Through Competency Evaluation or Bail, to Jail People Charged with Misdemeanors? A National Review of Statutory Law, Case Law, and Real-World Practice
Interview Guide for State Forensic Mental Health Program Directors
Overview
Thank you for agreeing to take part in this interview. The purpose of our interview today is to learn more from you about cases involving people with mental illnesses being charged with misdemeanor offenses. We will begin with some general questions about your state practices and your responsibilities. We will then move on to ask more detailed questions about how competency evaluations are handled and if you think mental illness plays a role in misdemeanor cases where competency is not raised.
Background
In what region of the country do you work (Northeast, South, Southwest, Midwest, West)?
For how long have you been the State Forensic Mental Health Program Director?
What do you consider the scope of your role?
Procedures around Bail and Competency
Can you briefly describe how an individual’s criminal matter is processed between the time of their arrest on a misdemeanor charge and the time of their first court appearance?
How long does this process generally take?
How are decisions about bail made around misdemeanor charges?
Are there any pre-trial risk assessments done related to bail decisions?
If so, what are they?
In your experience, if there are questions about the competency of a defendant, at what point are such questions raised (probe for whether they are raised at first appearance/arraignment or at later stages in the process after Release on Own Recognizance or bail is set)?
Does this differ based on whether the person is being charged with a misdemeanor or a felony offense?
When a request for a competency evaluation is made, what is the procedure for conducting the evaluation? (Probe for where the eval is done and whether person in community could be ordered to jail or hospital)?
In your state, what is the procedure for individuals who are charged with misdemeanors and found incompetent to stand trial? (e.g., are charges dropped, are they sent to a hospital, if so, what kind of hospital, etc.)
Influence of Mental Illness on Judicial Decision-Making
Now that we’ve talked about the laws and general procedures in your state, I would like to learn a little bit more about what you think influences decision-making in the courtroom and how mental illness comes into play.
How does mental illness factor into decisions about setting bail?
How do you think mental illness impacts the likelihood of someone being a danger in the community after being charged with a misdemeanor offense?
How do you think mental illness impacts the likelihood of someone showing up for court?
Do you think people with mental illnesses are more likely than those without mental illnesses to be remanded to jail for misdemeanor charges?
If yes, why do you think this is the case?
Availability of Guidance around Mental Illness
What sort of formal training or guidance is available for judges or other court stakeholders in your state regarding defendants with mental illnesses?
What do you think would be helpful for judges or other court actors to know to assist them in making decisions around bail/remand status for people with mental illnesses?
Wrap Up
If you could make one change to the system in your state to improve the bail process for people charged with misdemeanors, what would it be?
If you could make one change to the system in your state to improve the competency process for people with mental illnesses charged with misdemeanors, what would it be?
Is there anything else that you would like to share?
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2025 American Academy of Psychiatry and the Law
