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.
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.
When searching online for legal representation for your loved one, you may consider searching "forensic mental health law" to find specialized criminal defense attorneys for people with mental illness.
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.
NAMI’s Navigating the Criminal Justice System Guide is a comprehensive resource that families can use to support loved ones with mental illness who are involved with the criminal justice system. You can find information about working with attorneys, navigating the courts and the criminal process, and more. You may also wish to consult NAMI’s webpage on Handling the Arrest of a Family Member, which provides an overview of steps you can take to assist your loved one through the criminal court system.
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). Reference NAMI’s Knowledge Article My loved one was arrested during a mental health crisis. How can I let the court know about their mental health history? for more information on writing a mitigation report.
To educate the court, you may want to consider including information about the criminalization of people with mental illness. 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 quickly may facilitate and expedite the process. This is particularly important if you are working with a public defender.
You may also 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.
Mental Health Courts often involve Jail Diversion Programs that allow the offender to participate in court-mandated treatment rather than serving time in jail. Diversion programs 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.
The National Treatment Court Resource Center maintains an interactive Treatment Court Map that shows the number of treatment courts in each state. This tool may help you find and discuss options with your loved one and/or a legal professional. 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 the name and phone number of your local program administrator to your loved one's lawyer. The lawyer 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 Mental Health Court.
We are so glad you found this information. NAMI HelpLine offers a Family Caregiver Service. It brings together family caregivers with shared experiences and equips HelpLine Specialists with knowledge and insights into what helps. If you are a family caregiver and would like support from a peer, we encourage you to call the NAMI Family Caregiver HelpLine at 800-950-NAMI (6264) or send a text to 62640. We are available Monday through Friday, from 10:00 am to 10:00 pm EST.
Hours of operation: Monday-Friday, 10 a.m. – 10 p.m. EST
Call: 800-950-NAMI (6264)
Text: 62640
Email: helpline@nami.org
Website: www.nami.org/help