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How Is Mental Health and Criminal Law Handled in Maryland?

Attorneys often realize that clients arrested and charged with a criminal offense may suffer from mental illness. Maryland does not differ from other states in that many mentally ill people are put in jail rather than in hospitals, where they can receive proper treatment. It does differ from all but four other states in that it does not authorize assisted outpatient treatment (AOT), in which a judge can order a mentally ill individual to follow an outpatient treatment plan.


In states permitting AOT, such plans include taking prescribed psychiatric medication and meeting regularly with mental health professionals. With an AOT, a judge may order a person suffering from mental illness not to associate with certain people or go to particular places that may exacerbate the patient’s condition. Because of a lack of AOT and other mental health support, the likelihood of incarceration rather than hospitalization for severely mentally ill patients in Maryland is approximately 2.6 to 1, according to the Treatment Advocacy Center.


Mental Health and Crime

Under Maryland law, a defendant can plead “not criminally responsible,” otherwise known as an insanity plea. Not criminally responsible means that the person was “insane” at the time of the offense. It is necessary to file such a plea at the time of the initial pleading. The court may allow a later filing for such a plea if there is good cause. The burden of proof of “not criminally responsible” falls on the defendant. Before that initial plea is filed, the defendant must undergo a competency hearing.


Many mentally ill people are arrested for non-violent offenses, such as disorderly conduct, which is really a manifestation of their disease. Whether the charges against them involve violence or not, mentally ill people are often victimized while incarcerated, since they are easy targets and often do not understand their situation. The state of Maryland pays more for incarcerating a mentally ill inmate than a competent one, since such inmates have high medication and needs and many require segregation from the general population.


Mental Health Courts and Crisis Intervention Training

Even though the state lacks an AOT, mental illness awareness plays a role in the judicial process. Maryland Defendants can receive mental health support through the state’s mental health courts. These courts use a problem-solving approach rather than the standard criminal court action. Mental health screenings identify participants, but participation in mental health court is voluntary. Each defendant receives an individualized treatment plan. The goal of mental health court is not only to aid defendants suffering from mental health issues, but to “address underlying problems contributing to criminal behavior,” thus lowering the recidivism rate for mentally ill offenders.


Crisis Intervention Training (CIT) is relatively new in Maryland. In 2015, only 11 jurisdictions had CIT programs, although the number has grown in the past two years. The Mental Health Association of Maryland describes CIT as “a partnership between law enforcement, behavioral health providers and advocates to assist and divert individuals in crisis, resulting in less lethal interventions, better outcomes, and increased safety for all involved.”


Both mental health courts and CITs work to redirect seriously mental ill people from the criminal justice system into some type of mental health support. About 30 percent of the severely mentally ill population charged with relatively minor offenses is now served by either mental health courts or CITs.


Beyond Capacity

In 2016, a Maryland law firm filed suit against the Maryland Department of Health and Mental Hygiene and its director to force the transfer of mentally ill defendants to hospital beds, rather than keep them in jail. The four plaintiffs in the suit were all deemed mentally incompetent by a judge, who ordered them treated at a Howard County maximum security forensic hospital. However, like many other Maryland hospitals designed to care for such patients, the Howard County facility was way beyond capacity. The lawsuit states that such mentally ill defendants are thus forced to “languish unlawfully in jail or detention facilities.”


How an Attorney Can Help

When a person with a mental illness is arrested, a criminal lawyer with expertise in mental health awareness can make a difference in the outcome. The attorney can discuss jail diversion programs such as CITs and mental health courts, as well as document evidence for a “not criminally responsible” plea.