People who have committed nonviolent, petty offenses and have a prior diagnosis of mental illness would be eligible to enter a statewide mental illness diversion program under a bill that cleared the Senate Judiciary Committee on Monday.

The push by state officials and advocates to assist people with diagnosed mental health disorders comes as over 40% of people in state prisons nationwide report one or more diagnosed mental health condition. If the bill is signed into law, the program would divert eligible people from the criminal justice system and into mental health services that provide screening, counseling and treatment. Only about one-fourth of people in state prisons nationally have received professional help for mental health since entering prison, according to a June 2022 report from the Prison Policy Initiative.

In New Jersey, at least six counties have developed mental health diversion programs, according to Sen. Teresa Ruiz (D-Essex), a primary sponsor of the bill. These counties include Essex, Mercer, Gloucester, Hunterdon, Union and Warren. Ocean County also has a mental health diversion program.

Not a job for criminal justice

“The criminal justice system has been saddled with the results of mental health disorders for years,” Theodore N. Stephens, II, the acting prosecutor for Essex County, told the committee Monday. “The results are an overburdened court docket, which overutilizes precious resources, not to mention an incredibly expensive bill,” he said.

Under the legislation, the state Department of Human Services would prepare and distribute a directory of organizations that offer mental health diversion resources. Each organization would serve as a point of entry to divert or refer someone to existing case management and mental health services offered by the state DHS.

Additionally, the bill states that when a person is taken into custody for an “eligible offense,” which can include crimes such as harassment, simple assault or burglary, and shows signs of a behavior that may be related to a mental illness, a police officer can process them to a mental illness diversion resource organization or other community-based mental health service rather than filing a criminal complaint. But if an alleged offender is not eligible or if the person resists the diversion, the police officer can file a criminal complaint.

While there was support for the program from many people during the hearing, several lawmakers raised questions about the role of prosecutors and judicial oversight.

A police officer cannot divert an eligible person “before” filing a criminal complaint if the crime involves violence or the threat of violence, the violation of a restraining order or when the victim of the crime objects to the diversion, according to the bill. Additionally, a person would be disqualified from the program if they were previously convicted of a violent crime, including murder, vehicular homicide, sexual assault or robbery.

A prosecutor would have the “sole discretion” to decide if an eligible person qualifies for and is admitted to the diversion program after considering the nature of the offense, the person’s willingness to participate in the program, the availability of case management and mental health services and what the victim wants, among other considerations. The prosecutor would also determine how long the person participates in the program, except that their participation cannot be longer than two years from the date of the diversion agreement.

Exactly how many people would be involved in the program, as well as its anticipated costs, were not discussed during testimony Monday.

Getting to ‘root’ of problem

Diversion programs can target the “root problems” that lead to criminalized behavior, like food and housing insecurity, joblessness, lack of educational resources and unmet mental health needs, according to the Vera Institute of Justice, a national organization that works to end the overcriminalization and mass incarceration of people of color, immigrants and “people experiencing poverty.”

There is no “one-size-fits-all” approach to diversion, according to the Vera Institute. The state attorney general’s office would have discretion over how the mental health diversion programs would be created in each county, according to Ruiz.

During testimony on Monday, advocates of the legislation pointed to the work other states have done to take people struggling with mental health issues out of the criminal justice system and treat them, allowing them to become eligible for programs like Medicaid.

“What I’m hoping to see in the final version of the bill is that there’s significant funding to provide both the mental health services and the wraparound services that defendants will need in order to make this program successful,” added Kelly Shelton, an assistant prosecutor in charge of the appellate and mental health unit in the Warren County prosecutor’s office.

But while there was support for the program from many people during the hearing, several lawmakers raised questions about the role of prosecutors and judicial oversight.

“I have serious concerns, though, with the lack of judicial oversight in this process, similar to what we have in the drug courts, which is a very successful program and which I wholeheartedly support,” said Sen. Anthony Bucco (R-Morris). Bucco also said he had concerns about the “full discretion” given to prosecutors.

Four Republican lawmakers abstained from voting on the bill.

 The bill heard in the Senate on Monday is identical to a bill currently in the Assembly, a version of which was introduced in 2018.