My loved one has been arrested but can’t afford a lawyer. What are the options?

At NAMI, we appreciate how difficult it can be to navigate the legal system when a loved one is living with a mental illness. Please know that NAMI volunteer Information & Resource Referral Specialists are not legal professionals, therefore we cannot offer legal advice.

NAMI has developed a series of informational videos that answer common questions asked by family members whose incarcerated loved one has a mental illness. You can view the Criminal Justice Videos in the Advocacy/Policy Priorities section of our website.

If you or your loved one CAN afford to hire a lawyer: A reliable source for finding legal representation is the American Bar Association that maintains a lawyer locating service. To find the legal referral service for your area, use the American Bar Association’s Find Legal Help search function where you can locate the legal referral service for your area. When seeking a legal referral, ask for someone with expertise in criminal defense, preferably with experience representing individuals with mental health conditions.
If you or your loved one CANNOT afford to hire a lawyer: The presiding Judge over the case will assign a Public Defender at the initial hearing to represent your loved one.

You may wish to consult the page on our website on handling the arrest of a family member that provides a comprehensive overview on steps to take to assist your loved one through the Criminal Court System. Additionally, SAMHSA has sponsored an excellent webinar (accessible to view through the following link) that discusses Getting Help After Arrest and Jail.

Once you have secured legal representation (either a private, criminal defense attorney or a public defender), work to advocate on behalf of your loved one by organizing a comprehensive file of their previous mental health medical records and any other pertinent information regarding their mental health condition. This is sometimes referred to as a mitigation report and contains "the story" of your loved one's life. It may help to document (in chronological order) all information pertaining to their mental illness (i.e. names of doctors, diagnoses, list of prescriptions, dates of hospitalizations, treatments prescribed). To educate the court, you may want to consider including information about the criminalization of the mentally ill (see the Treatment Advocacy Center website). You may also wish to include any documentation that provides a broader view of who your loved one is (e.g., community service, student records, jobs held, etc.) as well as information regarding the disproportionate incarceration of individuals living with a serious mental health condition. More information on this topic can be found on the Treatment Advocacy Center Criminalization of Mental Illness Page.

Providing this information to your loved one’s lawyer will facilitate and expedite the process. This is particularly important if you are working with a public defender.

You may wish to see if there is a Mental Health Court (MHC) in the jurisdiction where your loved one is being tried. MHCs link offenders who would ordinarily be prison-bound to long-term community-based treatment. They rely on mental health assessments, individualized treatment plans, and ongoing judicial monitoring to address both the mental health needs of offenders and public safety concerns of communities.

Often this involves the alternative of a Jail Diversion Programs that allows the offender to participate in court-mandated treatment rather than serving time in jail. This may also allow criminal charges to be dropped. However, if the person fails to follow through with treatment, they can be re-arrested, and the charges can be refiled.

Unfortunately, these programs are not offered in every State, so it might not be an option for your loved one. If there is a jail diversion program near you, you can present this information (the name and number of an administrator at the program) to your love one’s lawyer who can then bring the proposal to the court officials or prosecutor and present it to the judge before sentencing. The judge has final say on whether or not to transfer the case to a MHC.

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