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Behavioral Health Commission Discusses Criminal Justice Diversion, Recommendations for 2024

The Behavioral Health Commission met on December 5 to receive a briefing from its staff on a study of a potential new process to divert certain individuals from the criminal justice system into court-ordered mental health treatment, and to finalize legislative and budgetary proposals for the upcoming session resulting from studies considered during earlier meetings.

Commission staff presented an overview of the potential new civil commitment process, Expedited Diversion to Court-Ordered Treatment (EDCOT), a version of which was considered in legislation during the 2023 session, but not adopted.  EDCOT would divert individuals with serious mental illness from the criminal justice system into civil court if the court finds that an individual’s conduct was related to his or her serious mental illness, that there is a significant likelihood that the individual will reoffend in the future, absent treatment, and that there is a reasonable likelihood that treatment will reduce the risk of reoffending.  Under EDCOT, proceedings move to the civil court, with a court-approved mental health treatment plan involving ongoing monitoring and court oversight, allowing the criminal charges to be dismissed.

Staff discussed implementation challenges associated with EDCOT, including the need to expand existing outpatient services to accommodate individuals diverted away from criminal justice involvement and the need to establish new services to meet the needs of EDCOT participants, both of which would require additional funding and would be affected by workforce shortages.  Community Services Boards would be required to conduct evaluations and monitor compliance with treatment plans, which would also require funding and staffing; additional court hearings would require resources for the court system as well.  Staff also pointed out potential disincentives to participation; for example, some defendants would be faced with a choice between a potentially lengthy period of involuntary treatment under EDCOT or a criminal sentence, which may be shorter.  Lastly, the report documents concerns expressed by stakeholders as to whether EDCOT, as an involuntary treatment with intense monitoring and oversight, is the most appropriate approach for defendants with mental health needs.

Commission members approved the staff proposal to direct the Office of the Executive Secretary of the Supreme Court to collaborate with the Department of Behavioral Health and Developmental Services and the National Center for State Courts on a study assessing existing statewide diversion programs and to what extent EDCOT could divert individuals not currently served; examine the operational, legal, and funding changes required to address EDCOT implementation issues; and determine the feasibility of implementing EDCOT or a similar diversion program.

Commission members also reviewed recommendations from earlier staff studies and reports on STEP-VA monitoring, the Community Services Board system, and the pandemic’s effect on public education and approved a series of proposed bills and budget amendments; a chart detailing recommendations from these studies, as well as other studies, approved by the Commission this year may be found at this link.

VACo Contact:  Katie Boyle

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