The research confirmed what anyone working in behavioral health, law enforcement, the courts, or jails and prisons sees: A small percentage of people with mental illness and substance use disorder return to jail so often – as many as 72 times in three years – they make up a third of incarcerations. 

But it was a conversation with a court clerk that convinced Dianne Martin, who works for the state’s judicial branch, that the branch’s new effort to keep that population out of jail can succeed. 

She said she wanted “to help what she called the regulars,” Martin recalled. “She literally started crying. That for me told me that people throughout the branch are seeing this as an issue, and we need to give them the tools to support those people. And they want to.”

The judicial branch’s efforts have included mental health and substance misuse training for the entire court staff and an even bigger project: using a national model, Sequential Intercept Mapping, to identify opportunities to divert this population from the criminal justice path and figuring out the logistics to do it. The branch has held one mapping summit in Merrimack County and will soon train others to repeat the exercise in all 10 counties.

With its ambitious Justice Reinvestment Initiative, which includes the mapping work, the judicial branch hopes to connect and coordinate the existing and often siloed treatment and support services with a single goal: divert “the regulars” whose mental illness and substance abuse contribute to their reincarceration.

“It’s not just that people are interested in this,” Martin said. “There are actually resources. The timing is now. We have to put our energy into this now.”

Those existing resources include the state’s $30 million investment in two behavioral health hospitals, one of which is already open and serving children and youth. It also increased Medicaid rates significantly this year to help community mental health centers recruit staff and fill more than 300 vacancies.

For its part, the judicial branch has created specialized treatment courts in some counties and is piloting a new family treatment court for neglect and abuse cases where a parent is willing to get treatment for substance use disorder. 

The team leading the effort includes people who know this population and their needs best, Martin said, from Katja Fox, head of Health and Human Services’ Division for Behavioral Health, and Ken Norton, former executive director of NAMI NH, to Helen Hanks, corrections commissioner, and Supreme Court Chief Justice Gordon MacDonald.

“This is an opportunity to improve public safety, to save public dollars, and more importantly to get people the treatment they need when they need it rather than keep cycling through our system and not getting the treatment they need,” MacDonald said. 

Jailing people repeatedly is expensive

The team looked to the Council of State Governments Justice Center to help quantify the problem and better understand the people who are repeatedly returning to jail and why. The center analyzed three years of jail records and Medicaid behavioral health claims. 

The data showed the 2,622 people who returned to jail more than four times between 2019 and 2021 are mostly nonviolent offenders who struggle with mental illness or substance abuse. A majority of those “high utilizers” earned little enough to qualify for Medicaid. Many have experienced homelessness.

Jailing them is incredibly expensive.

The average cost of reincarcerating the 218 people who returned to jail most often, between 12 and 72 times in those three years, was $15,000 per year. That’s nearly six times the $2,578 average annual cost of jailing most inmates, according to the data.

“This is significant dollars,” said David D’Amora of the Council of State Governments Justice Center, at the judicial branch’s mental health summit in June.

“Our point isn’t that that money shouldn’t be spent. Our point is that the money is not being spent well,” he said. “We need to rethink how we’re spending some of that money to get better outcomes for these individuals and get them out of the criminal justice system.”

These repeat jail incarcerations are largely not the result of violent criminal acts.

As much as 25 percent of the reincarcerations were due to parole or probation violations or arrests for low-level offenses, such as criminal trespass, criminal mischief, resisting arrest, and disorderly conduct, not violent crimes. 

For example, among those 218 people with the highest reincarceration rates, 25 percent were arrested for low-level offenses, while 13 percent were charged with violent crimes. 

The prevalence of behavioral health challenges is significant. 

Among the high utilizers, 93 percent had been treated for mental illness, substance misuse, or both. They were more likely than other jail inmates to have considered or attempted suicide or been homeless.

Breaking down silos

Martin said Merrimack County was an obvious place to start.

For nearly 10 years, a team of county prosecutors, defense attorneys, judges, and corrections staff have met quarterly with a focus on increasing services to reduce recidivism. Last year, the county expanded that effort with the launch of its County Navigator Program, which brings a broader range of players to the table, including treatment providers and those who know housing and social services.

“We wanted to break down silos,” said Kara Wyman, director of human services and former assistant superintendent at the jail. “It’s easy to send an email. It’s difficult to have a conversation.”

In April, the judicial branch partnered with the county to expand that effort yet again by gathering about 75 people who work with the population repeatedly returning to jail and those who have experienced mental health or substance misuse challenges.

For two days, they used a national model known as Sequential Intercept Mapping to identify opportunities to divert them from the criminal justice path. Together they identified obstacles and prioritized the projects to begin with.  

The list includes finding off-ramps early in the process. For example, Wyman said, could bus drivers be given a list of options other than calling the police when they encounter someone in distress? 

Next, what are the options that can keep someone out of jail or the hospital? “Sometimes the (situation) is a crisis to them, but it might be something we can easily resolve,” Wyman said. That could include services to stabilize a person or connect them with treatment.

The third priority may be the most challenging: rethinking the cumbersome process when someone is found incompetent to go through a court proceeding. 

Currently, the law gives judges two options when they find a person incompetent to stand trial.  They can order the person to get treatment if they believe their competency can be “restored.” If the person refuses, a judge can require treatment as part of a bail order and jail them if they don’t comply. It’s not an ideal option because the person is unlikely to get the treatment they need in jail. 

If a judge does not believe treatment will restore a person’s competency within the year or it hasn’t been restored, they must dismiss the case. 

A judge cannot require a person to be admitted to a hospital for treatment unless they are considered a danger to themselves or others. In that case, a prosecutor would have to seek an involuntary admission through a separate court proceeding. 

The county’s criminal justice group that has been meeting in 2014 will oversee the implementation of the three priorities. 

“This is not a task force report that was done and is going to sit on a shelf,” MacDonald said.

“This is a breathing, living, continued effort that people are really, really committed to.”

Wyman said it was crucial to have participants who work with people at each stage of the criminal justice journey because each brings experience the others don’t.

“I could name a list of 50 things that are most important to me, but where does that overlap with all groups?” she said. “I think, for me, it was a reminder that no matter the mission, we’re all working to help the same individuals.”

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