By Moryt Milo
Santa Clara County Superior Court Judge Stephen Manley is a risk taker and like most risk takers he bucked the norm when he founded one of the country’s first drug treatment courts in 1994. His rationale was simple: “We took a different approach which was to utilize treatment instead of incarceration.”
Four years later, he noticed that many of the individuals who were sentenced and sent to his drug court for treatment, as part of their probation, had mental health issues and weren’t permitted to enter the program. So, Judge Manley created one of the nation’s first behavioral health courts (originally known as mental health treatment court). Once more his rationale was simple. These individuals were already in the system, and the court was already providing treatment, resources, and services for them, so why not add a mental illness treatment component. Today, these health issues are recognized as co-occurring disorders. Twenty years ago, that correlation was not a consideration.
Both courts were extraordinary back then, with many doubting such a radical approach could work in the criminal justice system. The judge proved the doubters and naysayers wrong, and he has never looked back. “Our court was very courageous at the time to let me do it,” he said.
In 2019, Judge Manley received a new set of tools to further his mission—the passage of California Assembly Bill 1810. The law provides a pathway for individuals with underlying mental health conditions to be diverted away from the jails, prisons, and state hospitals into community-based mental health programs. Judge Manley credits former California State Senator Jim Beall and former California Governor Jerry Brown’s administration for developing the program. Judge Manley and his colleagues also helped craft the new law.
“This program is a really novel and different approach because it avoids the criminal justice system to the greatest extent possible,” he said. “You must already be in the system, but you can be diverted out of the system on two levels.”
Two Tracks to Diversion
It’s important to note that violent offenses such as homicide make an individual ineligible to participate in either Track 1 or Track 2 of the diversion program. In all cases, mental illness must be the underlying issue that causes the individual to commit the offense. Other requirements include 1) the disorder must respond to treatment; 2) there is no reasonable risk to being treated in the community; and 3) the individual agrees to meet all treatment criteria.
“Not only does the offense not disqualify you, but where you are in the proceedings does not disqualify you either,” Judge Manley said. “As long as you have not been convicted, you can go into diversion at any time—regardless if you were charged with a misdemeanor or felony, you can request diversion.”
After an individual attends the first court appearance (the arraignment), diversion can be requested. However, it’s not a given. The burden is placed on the defendant to meet the criteria. Track 1 is for individuals who have committed misdemeanors, and they must be “eligible and suitable” for diversion. The prosecutor or district attorney’s office can object and then a hearing is required. Judge Manley noted that not everyone jumps on the diversion train. “Many want nothing to do with it,” he said. The commitment is 18 months.
The Track 2 program is for individuals who commit a felony and are deemed to be incompetent to stand trial. Prior to AB 1810 these individuals had no option but to languish in jail until a state hospital bed became available to restore their competency. If their competency was restored, they would go back to trial. If not, they often ended up untreated and back on the streets or stuck in jail.
According to the Judicial Council of California, 20% of the inmates in California’s jails are on psychiatric medications, and 30% of the prisoners are in the California Department of Corrections Rehabilitation (CDCR) mental health system. As of 2020, there were over 100,000 adults in the prison system, per the CDCR, of which approximately 30,000 suffered from mental illness.
“This was a system I always felt was flawed,” Judge Manley said. “This diversion statute creates a new possibility. Rather than being sent to a state hospital after being found incompetent [to stand trial] and charged with a felony, you can be diverted into the community for treatment and that’s what I have been doing since the law came into effect.”
Diversion from State Hospitals
Gabby Olivarez, Division Director of the Criminal Justice System, Behavioral Health Services Department in Santa Clara County, works closely with Judge Manley’s Behavioral Health Court and the diversion program. Her behavioral health team does the assessments to determine if individuals in Track 2 can enter the community for treatment. If the public defender, prosecutor, D.A., Olivarez’s team, and judge all agree the individual qualifies for diversion, Olivarez sends a referral to one of the County’s providers. That provider must agree to send frequent status reports on the individual’s participation in the program. Judge Manley is also in close contact with the individual through ongoing hearings to gauge progress. The goal is to successfully improve over an 18-month period and graduate out of the program. If this is achieved, then all charges including felonies are dismissed.
Olivarez’s team also works closely with the Track 2 inmates in the jail who are scheduled for state hospital placement. These individuals spend so much time in jail waiting for a bed, Olivarez said, “We work with them to take their medications and they become well enough that we can divert them away from the state hospital and prison into a community program where they continue to improve.”
The Behavioral Health Services Department (BHSD) has two programs targeted for the jail population. FACT House, which stands for Forensic Assertive Community Treatment, is a 16-bed, 24/7 high-intensity residential treatment facility. This is BHSD’s highest level of care for Track 2 clients. When they leave jail, they are taken directly to FACT House for treatment. The program is so popular, BHSD is hoping to secure a second home. The second program is Evans Lane Wellness and Recovery Center that can house up to 56 people. Olivarez said it’s the only one of its kind in California designed for individuals who have mental illness, substance abuse, and are part of the criminal justice system. The transitional housing program includes independent apartments and an outpatient program onsite. The tenants live with two roommates and develop life skills enabling them to eventually step down into independent living. Individuals can stay up to a year; most are there for six months.
Olivarez, who has worked in the County’s behavioral health services department for more than twenty years, is passionate about these programs, calling Judge Manley her hero and said, “Judge Manley always says, ‘Being mentally ill is not a crime, it’s an illness.’”
Throughout the pandemic, Olivarez’s work never slowed down. Over the past six months BHSD has been able to move 1,000 people out of jail and into treatment.
“In my view, it is one of the most successful programs we have,” Judge Manley said, referring to the Track 2 diversion program, and Olivarez has the Track 2 numbers to back that up.
“I’ve seen a 92 percent reduction in individuals going to state hospitals, and I’ve seen a 54 percent reduction in recidivism,” she said.
Scoring Savings Strategies
Over a two-year period and through an unprecedented pandemic, the County’s Criminal Justice System and BHSD have been able to demonstrate that the fledging program works for Track 2 offenders. Over time this could translate into significant cost savings. The average cost to house and treat an inmate with mental illness in the California Department of Corrections and Rehabilitation is $75,200 per year versus $21,900 per year for treatment in a community-based setting, according to the Stanford Justice Advocacy Project.
To grow this program, Judge Manley said, funding can’t be constrained. Better strategies need to be developed in the community. “There is not enough treatment in California. There are not enough services and there is not enough housing. I have too many people living on the streets because they have nowhere else to live. There is no room for them anywhere,” he said.
This is one of the challenges with Track 1. Individuals on this diversion track are often left to self-manage their treatment and it doesn’t work without supportive, supervised treatment programs, which are lacking. “One of the biggest problems we have in our County is we don’t have enough residential treatment facilities for substance abuse. We don’t have detoxication facilities,” Judge Manley said. “This is what we need. If someone is using drugs daily, they need the highest level of care. I understand it’s expensive, but we don’t have it. I have people sitting in jail waiting for residential treatment programs.”
Judge Manley sees the solution through “scoring savings.” With fewer people in jails and prisons, money from those facilities should be transferred into community-based treatment programs, he said.
Former California State Senator Jim Beall, concurs. He noted that the state prison population has dropped by about 25% since the beginning of the pandemic, and there should be extra money in the state budget from an operational standpoint that could be matched with CalAIM funds and potentially used to increase funding for housing, residential treatment programs, and people who need drug and mental health supportive services.
“It gives us an opening,” Beall said. “The judges and mental health courts are in favor of this because they can’t find placement for these people. They can’t get them out of the jails, and that is therapeutically obscene.”
Faced with this dilemma, California’s jails and prisons operate as the state’s mental health hospitals by default, due to decades of neglect in addressing the need for mental health and drug addiction supportive services.
“We are the locked programs that don’t exist. We have outpatient programs that don’t exist. What I call the last stop,” he said. “[Outside the jails] we don’t have these things so here’s the easy one, let’s just put the people in jail. Why? Because they will get treatment in our County because we have outstanding programs for those in jail. But when you use that strategy, all you are going to do is build more jails.”
The solution is to fund treatment at the level of service we can provide. We need to build out the necessary programs to combat drug addiction and enable those with severe mental illnesses to receive proper care. After close to 30 years on the bench, Judge Manley knows it’s an uphill battle, but he refuses to give up.
“If we don’t keep trying, we won’t get anywhere. There is always hope. There is not one day where I don’t see a miracle. Not one day I don’t see at least one person who has made a dramatic change in their life, and that’s all it takes. You do it one day at a time and one person at a time.”
To read more about Judge Manley and the success of his virtual hearings during the pandemic, see the blog post “Judge Manley Lauds Virtual Hearings, Effectiveness Increases”
For information about NAMI-SCC’s Family Jail Support Group meetings, go to the article on Jail Family Support Groups Helps Families Advocate for loved ones
