Does State Law Stand in the Way of Local Criminal Justice Reform?
A new report from R Street Institute looks at how laws undermine alternatives to arrest.
The nonprofit R Street Institute recently released a 50-state review of laws and rules concerning reform efforts. Authors Lars Trautman and Jonathan Haggerty looked at five key policy areas that affect the ability of local officials to implement diversion and crisis response strategies and offered policy recommendations for each:
Emergency Mental Health Holds
Recommendations: Nobody should be kept in a correctional setting pending commitment. However, six states still use jails for mental health holds, a practice that undermines the purpose of implementing arrest alternatives. This practice should be brought to an end and the complexities of eliminating the use of correctional facilities, including treatment capacity and resources, must be addressed. Medical and behavioral health personnel should be included during the early phase of these holds to ensure that people are properly diagnosed and diverted to the most effective, least restrictive setting conducive to individual and public safety. And finally, the civil liberties implications of emergency holds mean that any potential expansion of these authorities must also attempt to mitigate the risks of their misuse or overuse.
Protective Custody
Recommendations: Given that protective custody is meant to serve as a noncriminal public health response, there is no reason for the source of impairment to be a barrier to treatment. States should allow protective custody for people impaired by all drugs, not just alcohol. Jurisdictions should also reduce the reliance on correctional institutions as much as possible for custody.
Citation Authority
Recommendations: States should consider adding to their lists of citable offenses and generally expand the discretion granted to officers in writing citations. Legislators should also treat citation as a complement to pre-arrest diversion authority. Anything that keeps people who don’t pose a public safety threat from ending up behind bars is a useful policy.
Substance Abuse Good Samaritan Laws
Recommendations: Good Samaritan laws are intended to create an incentive for people to call for assistance during a suspected overdose and also free up law enforcement to pursue non-criminal responses for people found at the scene of the overdose. To fulfill these ends, the immunity from Good Samaritan laws should kick in as early as possible and render arrests unnecessary.
Good Samaritan laws should also cover other low-level crimes at the site of an overdose, such as drug paraphernalia possession and potential violations of pretrial release, probation, or parole. Furthermore, both the person calling for help and person experiencing the overdose should be granted immunity.
Ambulance Transport Destinations
Recommendations: Legislatures should clarify that the law permits EMS to transport people to alternative destinations and work with stakeholders to improve the availability of these treatment centers.
