How Mental Illness Influences Pretrial Release Decisions for People Charged with Misdemeanors

Many jurisdictions are focused on pretrial reform aimed at reducing pretrial detention for nonviolent misdemeanors. How this reform affects people with mental illness, who have historically experienced lengthier and higher rates of pretrial detention, remains unknown. This qualitative study explores state laws and practices related to pretrial detention of people with mental illness across the United States, with a focus on perceptions about if and how, mental illness influences likelihood of appearance in court, dangerousness, and likelihood of jail detention. Statutes of all 50 states and the District of Columbia related to pretrial detention were reviewed, followed by semistructured interviews with 25 state forensic mental health directors and 15 judges who preside over first appearances or arraignments. The results highlight how state laws afford wide discretion to judges to determine the impact of mental illness on pretrial release. Judges and forensic mental health directors perceive this discretion as leading to a higher likelihood of detaining people with mental illness charged with misdemeanors, often for perceived concerns related to likelihood of appearance, unmet social service needs, and public perceptions of dangerousness. These findings have important implications for ongoing pretrial reform, improvement in community supports, and diversionary behavioral health services.