Treatment could be available for more defendants (photo: Michael Appleton/Mayor's Office)

State legislation to expand alternatives to incarceration for people with mental illness is gaining momentum in Albany amid debates over how criminal justice, public safety, and mental health care policy interact.

The Treatment Not Jails Act would require judicial diversion courts in every county of the state and expand the list of special circumstances that qualify a defendant to have their case heard outside a conventional criminal courtroom. Its sponsors say the program would offer a critical alternative to the traditional system of crime and punishment for people with serious mental health care needs, intellectual disabilities, and a host of other clinically defined "functional impairments." 

The legislation has seen growing support in the State Legislature, where its sponsors are pushing for it to be included in their chambers’ one-house budget proposals due out the week of March 13. Governor Kathy Hochul has not taken a position on the bill as budget negotiations enter the final stages — a state budget is due by the April 1 start of the new fiscal year.

The debate over treatment courts comes at a time when jails and prisons, which house a disproportionate number of people with mental health needs, are seeing record violence and death.

Supporters argue the alternative court settings – which offer court-ordered treatment and supervision in lieu of incarceration – provide a safer and more constructive path to rehabilitation than jails. Opponents say the legislation is another progressive measure, like recent discovery law reforms, that could sap resources and hurt public safety. 

"On the face of it all, it's easy to go back to that knee-jerk reaction of, 'Oh, it sounds like this is a get-out-of-jail-free card.' And it's not," said State Senator Jessica Ramos, a Queens Democrat and the bill's lead Senate sponsor, in an interview with Gotham Gazette. "It is actually making sure that folks are being seen by the court with the medical lens that their mental illness requires."

The bill has gained co-sponsors each legislative session since it was first introduced in 2020. It now has the official support of roughly a third of each legislative chamber, including both Democrats and at least one Republican in each house.

Spokespeople for Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie, both Democrats, did not return requests for comment on the legislation or the likelihood of it being included in one-house budget bills.

Court-mandated mental health treatment and involuntary psychiatric commitment have become a growing interest of city and state leaders, including Hochul and Mayor Eric Adams, two Democrats who have centered related policies in their public safety agendas.

Adams has put in motion an increase in involuntary removals of homeless New Yorkers with untreated severe mental illness from the streets and subways.

"We can no longer deny the reality that untreated psychosis can be a cruel and all-consuming condition that often requires involuntary intervention, supervised medical treatment and long-term care," he said when announcing the new policy in November.

He also advocated for the successful state-level expansion of Kendra's Law last year, which allows court-order treatment in civil cases where a person is deemed a danger to themselves or others.

A spokesperson for Adams said the Treatment Not Jails Act was under review.

"Mental health courts have an important role to play in our criminal justice system, strengthening public safety and ensuring that people get the treatment and support they need to maintain stability," the spokesperson wrote by email.

Each of the five boroughs currently has a mental health treatment court for a narrower population than is included in the Treatment Not Jails Act.

A spokesperson for Hochul said she would look at the legislation if it passed both houses.

New York has 233 special treatment courts for veterans, people with substance abuse disorder, families with a history of domestic violence, and people with mental health care needs, among others. The courts, which exist on an ad hoc basis throughout the state, require mandated treatment plans that could include counseling and medication along with other services like housing (the Office of Court Administration could not provide a breakdown of the courts' distribution across the state). Mental health courts often require a guilty plea before a defendant may become eligible for diversion from potential incarceration, according to the bill's sponsors.

The Treatment Not Jails Act would require each county to open up a treatment court and make any individual accused of a felony or misdemeanor eligible for consideration. The bill would require a clinical evaluation by a mental health professional to determine eligibility before a plea is made. The evaluation is shared with the defendant and their lawyer who may agree to share it with prosecutors and the court. To be diverted, the prosecution and defense must then come to an agreement based on the evaluation; otherwise either party may seek a hearing before a judge.

Prosecutors reached for comment said they support the spirit of expanding access to mental health treatment courts but indicated they were unsatisfied with the current language of the bill. 

"The Office supports the goals of the bill and will be meeting with advocates and legislators in the coming weeks to discuss specific aspects of its language," wrote Emily Tuttle, a spokesperson and senior advisor to Manhattan District Attorney Alvin Bragg, in an email to Gotham Gazette. Shortly after taking office, Bragg opened a new division focused on special courts and alternatives to incarceration. His office declined to provide specifics about its concerns with the current bill language.

“We are deeply committed to increasing access to mental health treatment, and Brooklyn’s nationally recognized Mental Health Court has continually expanded the cases it accepts," reads a statement from Brooklyn District Attorney Eric Gonzalez's office in response to a Gotham Gazette inquiry. "We are working with the bill’s sponsors to prevent the serious unintended consequences that would arise if the legislation is enacted in its current form.”

The office did not provide details on what those unintended consequences could be.

An official familiar with treatment courts who requested not to be named because they were not authorized to speak on the record warned that the courts do not have the resources to conduct hearings and evaluations for the wider population that would become eligible for diversion under the bill. The official said the bill could result in unmanageable delays that might reduce the number of people who end up receiving mental health treatment.

A spokesperson for Queens District Attorney Melinda Katz said the office was analyzing the latest version of the legislation.

Public defenders have organized in support of the Treatment Not Jails Act. “Too often, our incarcerated clients with mental health and substance abuse issues languish in jail, denied treatment and cycled through the revolving door of Rikers Island,” said Alice Fontier, managing director at the Neighborhood Defender Service of Harlem, in a recent statement.

Prosecutors say they are still struggling to meet the demands of 2019 changes made to the state's discovery laws that tightened deadlines to turn over evidence to defense attorneys. Hochul has proposed more funding for that purpose in her executive budget.

"District Attorney’s offices spent a great deal of time establishing new mechanisms for discovery storage and exchange. Funding continues to be needed for additional staff and particularized staff training, new and updated technology, and expanded storage capabilities," the District Attorneys Association of the State of New York testified at a recent legislative budget hearing.

The state's 95 existing Adult Drug Treatment Courts will cost taxpayers $16 million in the next fiscal year, $15.2 million of which will pay for non-judicial court personnel with the remainder going towards training and drug testing, according to court spokesperson Lucian Chalfen.

The bill's sponsors estimate the Treatment Not Jails Act will cost the state roughly $15 million annually and argue it will ultimately save the state much more money by avoiding the cost of imprisonment. The Office of Court Administration, which runs the state court system, does not yet have a position on the bill, Chalfen said.

While Hochul has not opined on the legislation, her inclusion of an additional $15.7 million for alternatives to incarceration in her executive budget this year has given lawmakers hope.

"That is exactly the number for Treatment Not Jails," said Assemblymember Phara Souffrant Forrest, the Assembly's prime sponsor of the Treatment Not Jails Act, in an interview with Gotham Gazette. "That was very positive for us." The Assemblymember’s office will be meeting with the governor's team next week to discuss getting the bill into the final budget, she said.

Last year, Hochul and the Legislature allocated $15.7 million for alternatives to incarceration, ultimately awarding $17.1 million through the Department of Criminal Justice Services (DCJS), according to Janine Kava, a spokesperson for the governor's office and DCJS. The funding went toward pretrial release programs, employment-based services, and jail based "cognitive behavioral intervention," aimed at reducing recidivism upon release. Another $400,000 of that original allocation went to the state correction department, Kava said. In her executive budget for the fiscal year that begins April 1 of this year, Hochul doubled alternatives to incarceration spending to $31.4 million.

The governor and legislative leaders will negotiate the budget over the coming weeks, discussions that will intensify after the two houses pass their individual budget resolutions in the near future.

The newly-funded programs are yet to be determined, "but DCJS will build on what has worked well and ensure that programs are evidence-based and proven to work," Kava wrote in an email. "Governor Hochul will review the legislation if it passes both houses," she said of the Treatment Not Jails Act.