People with mental illness are sitting in jail. What can be done?

The criminalization of people with mental illnesses is a significant issue that taxes our resources and tests our humanity — an estimated 44% of people in jails and 37% of people in prison have a mental illness. 

Often people with mental illnesses are deemed incompetent to stand trial, so they can’t be tried. Jails don’t provide the treatment or education needed to help people become competent, so people are often stuck there. 

No one wants to see people with mental illnesses languish in jails.

A well-intentioned law passed in 2013 that sought to address this issue is not working. It’s called the 48-hour law and prioritizes people deemed incompetent to stand trial and who have been committed to be admitted to state hospitals. If the 48-hours cannot be met, it leaves the state open to lawsuits and fines. 

First, a little background:

Roughly 15 years ago — during a meth epidemic and after Minnesota passed a law requiring a mental health screening whenever someone was jailed — we began to see increases in the number of people deemed incompetent to stand trial, meaning that due to mental illness, cognitive impairment or intellectual disability, they could not engage in their defense. According to a Minnesota judicial workgroup, the number rose 73% between 2014-2018. 

People with mental illnesses were ending up in jail due to untreated or undertreated symptoms and often for nonviolent acts. Attorneys and judges put many of them through a process, called Rule 20, to determine if they could engage in their defense — which is a constitutional right. People can’t be tried if they don’t have the capacity to understand the judicial system and work with their attorney.

If the case was a misdemeanor, it was dismissed. (Often the person returned to the community without any mental health treatment, putting them at significant risk of winding up right back in jail.) 

For all others, they were referred for commitment. But not even half of the people who were referred to commitment were ultimately committed. So, many people with mental illnesses were simply released to the streets without being connected to treatment. This did not lead to good results, especially in light of the costs of being in jail and the costs to the courts. The Judicial Branch of state government spends millions every year on Rule 20 exams.

In 2013, the sheriffs successfully advocated for legislation that people who are in jail, incompetent to stand trial and committed, be moved to a state-operated program within 48 hours. The sheriffs who advocated for it didn’t want people with untreated mental illnesses to languish in jail. The entire process, however, from screening to incompetency evaluation and commitment, could take three to six months while they wait in jail, so even before the 48-hour law comes into play, they have been locked up for months in the jails.

In 2013, 46 people were in jail waiting for a state-operated bed. By 2024, that number was 424. Clearly people couldn’t be moved within 48 hours — there simply weren’t enough beds. State operated services, such as Anoka Metro Regional Treatment Center, are now filled with people coming from jails. This is true in Minnesota and across the country. 

Meanwhile, there are people with mental illnesses in community hospitals who need this level of care but can no longer access it because the 48-hour rule winds up prioritizing people in the jails.

In 2019, the Legislature established a task force with representatives of all the interested parties — advocates, sheriffs, county commissioners, county social service administrators, state operated programs, community services, hospitals, defense attorneys, etc. — to investigate this issue and develop alternatives.

Despite their efforts, they couldn’t clearly identify why these numbers were increasing. This was also happening across the country, and a national task force, which I sat on, also couldn’t fully explain the increase. People conjectured that it was due to greater awareness of mental illnesses. Others thought it was related to drug use, especially meth.

The state task force met for two years and in 2022 the Legislature passed several of their recommendations. The competency restoration system was changed to address the needs of people who didn’t meet the civil commitment criteria; were unlikely to ever attain competency; or had misdemeanors. Forensic navigators were created to connect people to services and treatment before leaving the jail.

The pressure on state-operated services persisted. Across the country, most state-run hospitals are occupied by people court-ordered for competency restoration — a 58% increase since 2010. Most had waiting lists, and people were still languishing in jail. At least 24 states were involved in litigation, including Minnesota. In some places — like Washington State — there were huge fines imposed on states.

Tensions were running high between counties, defense attorneys, and the state as it became impossible to meet the 48-hour requirement; if no bed was available, a person couldn’t be admitted. 

In 2023, the Legislature created a task force to examine the impact of the 48-hour law and come up with recommendations to prevent litigation and increase access. The Legislature also amended the 48-hour law by clarifying that the 48 hours kicked in when a medically appropriate bed was available. This clause will sunset on June 30, 2027. 

In 2024 they set aside room for 10 people who were currently committed and in a community hospital, i.e., just 10 spots for patients not coming from jails.

The task force in 2024 turned into a panel, which concluded that we have a front door and back door issue. In other words: We need to prevent people from entering our jails, and we need to help people leave state-operated beds into appropriate community services. This issue could not be resolved by focusing on state-operated beds — we could not build our way out of this problem.

To prevent people with mental illnesses from ending up in jail in the first place, the panel recommended, we should increase access to community treatment and crisis teams. We also need to increase access to mental health treatment in the jail, so people’s symptoms don’t worsen. We need to develop alternatives to providing the clinical care provided in state-operated programs, such as locked community residential programs. And we need to increase access to state-operated beds.

Some movement was made in 2024. The Legislature funded pilot projects to assertively and holistically engage with people who would not consent to treatment but were exhibiting symptoms that could lead to a crisis. Those pilots began in the fall of 2025. The Legislature also allowed the state to prioritize who got a bed based on acuity — not just who is first in line. 

The state repurposed a substance use disorder facility, which added 16 more beds, and the Forensic Mental Health Program’s Ironwood Unit was re-opened, resulting in 14 additional beds. A pilot program funded mental health medication for people in jail and for consultation to jails to increase access to medications, particularly injectable medications. Locked residential facilities were allowed in statute (but none have been developed).

In 2025, the Legislature funded an additional 50 beds at Anoka Regional Treatment Center. Crisis services did not receive increased funds, but funding was increased this year. Although the Legislature increased rates for community mental health services in the hopes of increasing  access, the federal One Big Beautiful Bill Act contains a provision that will not allow those increases to go forward as currently structured.

While some progress has been made, it hasn’t been enough. People with mental illnesses are still waiting in jail for treatment. This panel has continued to meet, and a huge sticking point is whether to eliminate the original 48-hour law. A few other states have deadlines — ranging from seven to 60 days, but none as short as 48 hours. These deadlines don’t address the waiting list for a bed. 

Without additional resources the wait list can’t be addressed.

The counties (sheriffs, attorneys, commissioners, social service directors) want to keep the 48-hour law, saying that it keeps state-operated programs’ feet to the fire. The advocates and community providers want to eliminate it because it can’t really be enforced, and they don’t want to use limited money for fines if the state is sued.

A key issue: Whose problem is it to solve? And there is a lot of finger pointing. 

Yes, state-operated programs (known as Direct Care and Treatment) have a responsibility to people who need this level of care, but they are dependent upon funding by the Legislature. 

Yes, counties and the Department of Human Services have a responsibility as the local and state mental health authority to meet the needs of people with mental illnesses in the community, but they don’t have unlimited funds. 

Jails have a responsibility to provide health and mental health care to people they detain, but they struggle with funding and personnel. 

It feels as if it is everyone’s and no one’s problem all at the same time.

With all the finger pointing, why keep a law that can never be followed? 

The law should be eliminated. Too often in the history of our mental health system we have turned to building large institutions — whether it’s state hospitals or jails — to address the needs of people with serious mental illnesses. But the actual solution is to keep people in their home communities, and that means creating a wide array of community services, and most importantly, funding early identification and treatment.

Consider all the money we are spending on jails and the courts, which don’t actually address a person’s mental illness. What if that funding went to building community services? 

If we only focus on the people who are in jail instead of how to prevent people with mental illnesses from ever ending up in jail, we will never resolve this problem.