OPINION: Moving from dismissal to accountability

This winter, the Bernalillo County Metropolitan Court will launch a pilot program to divert individuals experiencing mental illness out of the justice system and into community-based treatment and support services. Qualified individuals who are charged with nonviolent misdemeanors and felonies are eligible to participate in the Competency Diversion Program. No DWI cases will be accepted.

When a defendant’s attorney, the prosecutor or the presiding judge has concerns that a person may be suffering from a mental illness or other conditions — to a degree that prevents them from understanding the criminal proceedings and assisting in their own defense — an evaluation to determine whether they are competent to face prosecution is required by law.

For decades, individuals experiencing mental illness who were charged with nonviolent crimes remained in limbo for extended periods of time while costly professional forensic evaluations were completed. Those evaluations often ended with the conclusion that the individual was legally incompetent to stand trial, and the case was dismissed, foreclosing any further prosecution. In more serious cases, after additional Court determinations regarding dangerousness, cases were transferred to the state’s Behavioral Health Institute for competency restoration treatment, and/or civil commitment might also have been part of the competency process.

The current forensic competency examination process is expensive, lengthy and only serves the purpose of determining whether a person is competent to stand trial. The process is not designed to connect individuals with treatment or address other needs they may have.

The newly created Competency Diversion Program team will work to identify and screen qualified individuals when they are first booked into the Metropolitan Detention Center on eligible nonviolent charges. That includes individuals with a history of prior competency assessments or those identified by scored intake screenings.

Upon identifying an individual with a documented history of mental illness, the assigned state prosecutor and defense counsel must both agree to refer the case to the pilot program.

After referral to the diversion program, a defendant will not go through the competency evaluation process. Instead, trained staff, called “navigators,” will refer and help participants engage with appropriate services in the areas of housing and medical needs, inpatient or residential treatment, intensive outpatient treatment or community-based treatment for mental health and/or substance use. Participants will voluntarily consent to any behavioral health treatment. It is not court ordered. Competency Diversion program managers will assess and monitor the participant for compliance with those community-based services.

People facing misdemeanor charges will be referred to the program for three to six months, while those facing nonviolent felony charges will be referred for six months to a year. The Court will dismiss the charges if and when individuals successfully complete a needs-based plan developed in collaboration with their navigator and behavioral health provider. Those who fail to remain engaged with program’s requirements will be terminated and the original criminal proceedings will resume.

With funding provided during a special legislative session last year, the diversion pilot program for competency-related cases is up and running in four judicial districts here in New Mexico with promising results. This new approach to helping one of our state’s most vulnerable populations is designed to hold defendants accountable while providing them with meaningful rehabilitation.

Our jail facilities and the criminal justice system were not created to provide long-term care and oversight for those struggling with mental illness. We can and should try to make our communities safer and healthier by helping individuals connect with and receive the services they most need.

In cases involving minor, nonviolent crime, spending extensive time and resources deciding whether someone can understand their criminal charges and participate in their defense is an outdated endeavor. It is time we ask a new question — how can we help meet the needs of this population to prevent them from coming back into the criminal justice system again?

No process is guaranteed to address everyone’s unique circumstances and challenges. This new approach has been created to help encourage and connect people with existing services so they can achieve better outcomes. Reducing arrests while helping individuals is definitely a step in the right direction for Albuquerque.

Nina Safier is a judge in Bernalillo County Metropolitan Court.