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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.

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First responders and local leaders on the front lines of homelessness, drug use, and mental illness have come to a conclusion about these overlapping crises: We can’t arrest our way out of them.

Over reliance on the criminal justice system only inflicts more harm on people who need help while burdening taxpayers with an expensive and ineffective system. That’s why cities across the nation have begun to rely on pre-arrest diversion and crisis response strategies that direct people away from the criminal justice system and toward treatment, housing, and other services. Unfortunately, legislative barriers often exist at a state level that prevent local governments from maximizing the benefits of this approach.

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

    Every state offers the civil power to detain someone for reasons relating to mental health. This alternative to arrest can help keep someone safe while in a crisis and also protect others. However, states vary on who can initiate proceedings, the sort of danger a person must pose to allow detention, and where people are kept during a mental health hold.

    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

    All but two states allow law enforcement officers to rely on protective custody for people who are intoxicated or impaired by other drugs. While emergency mental health holds are often used for people suffering from a mental health crisis, this alternative to arrest is used in response to a specific instance of intoxication or impairment. The goal is to ensure that individuals are safe and, if necessary, get them off the street and connected to short-term medical care.

    States vary in determining who has the authority to use protective custody, the discretion granted to officers in deciding whether to use protective custody, the types of locations that people are taken to, and the sorts of drugs covered.

    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

    Misdemeanor-level offenses dominate the arrest and court statistics, and many of these crimes do not require an arrest to keep the peace and see that justice is done. All but two states permit law enforcement officers to issue citations for at least some non-traffic misdemeanors, and 12 states extend this citation authority to include at least one felony offense.

    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

    Accidental drug overdose is the leading cause of death in the United States for people under 50. Forty-seven states and the District of Columbia have responded to this epidemic by enacting Good Samaritan laws that provide immunity from the criminal justice system as an incentive to call for help when someone experiences an overdose. However, these laws vary in who they cover, the extent of immunity offered and whether further action is needed to receive immunity. For example, some states grant immunity to the person calling for help, while others only grant immunity to the person experiencing the overdose.

    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

    Around one in eight emergency department visits involves a diagnosis relating to mental health or substance abuse. However, emergency rooms are often ill-prepared to handle behavioral health issues. Specialized treatment centers — such as sobering centers and mental health facilities — are typically better suited to deal with these unique needs. Despite the advantages, many states require Emergency Medical Services to take all patients to a hospital emergency department, even when there’s an appropriate alternative destination.

    Policies that erect barriers to alternative destinations can discourage pre-arrest diversion and crisis response by forcing law enforcement to serve as the only possible transportation to a sobering center or mental health facility. If those alternatives don’t exist, or require long waits, law enforcement has an incentive to simply rely on incarceration.

    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.

    Read the full report here.