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Melissa Stuart
BY Melissa Stuart

What To Do When An Individual With Special Needs Gets Arrested

People with severe mental illness and others with severe behavior problems can become disproportionately involved in the criminal justice system.

Due to a lack of awareness, a lack of preventative measures, and a lack of understanding about mental illness, often times, the criminal justice system is ill-equipped to respond to the needs of this special population.  While each state differs in the programs available and processes for dealing with people with special needs who have been arrested, the article below outlines the basics for navigating the criminal justice system.


In general, when someone is arrested, they are often taken to a place to be processed. At this point, the arrestee goes in front of a judge to determine if there is probable cause (i.e., enough information to support an officer in making the arrest) to hold the person.


If the person can be held, a bond (the amount of money the Judge will set to ensure the person will return to court) will be set or the person may be released on their own recognizance or released to a caregiver who can assure the person will return to court.  If the person cannot pay the bond amount, he or she will be held in custody until their case can be heard.

Additional Challenges For Individuals With Special Needs

For people with mental illness, the process is no different.  However the consequences may be more detrimental.  For example, if the person is held in custody and has not alerted the jail staff of his condition, he may not receive treatment or medications.  Or if he does self-identify as someone in need of treatment, the medications available may not be the same as those the person usually takes.

Some States Offer Special Treatment

Some states have special processes or programs for people with mental illness or those suspected of having mental illness based on their behavior.  For example, some states have specific courts to deal with individuals with mental illness who are charged with a crime.  These special courts are more aware of the needs of individuals with mental illness and may be able to work with treatment providers to help the person get appropriate treatment and possibly avoid incarceration.  Unfortunately, these programs may not be available in all states.  It is important to contact your state’s court and prison system to understand what programs are available.

What Parents Can Do

For parents or caregivers of a person with mental illness who has been arrested, there are things you can do:

1. Get A Lawyer

First off, consult with a criminal defense attorney and make sure he or she is aware of your child’s condition and needed treatments.

2. Explain The Situation To Everyone

Make sure you attend as many hearings as possible and ensure your child’s diagnosis is known by everyone involved (including the judge and prosecutor).

3. Think prevention

If there are certain triggers or situations you know that may cause problems for your child, discuss them ahead of time with the attorney.  For example, if your child has clothing or diet sensitivities, having your child’s attorney contact the prison to arrange an accommodation may be possible.

4. Treatments And Medication

Individuals with Special Needs in jailIf your child is to be held in custody, make sure your child’s attorney knows what treatments or medications your child takes so the jail can help make sure your child’s treatment continues to the highest extent possible.

Work On Prevention

The best way to avoid interacting with the criminal justice system is prevention.  If your child is in school and is prone to disruptive or aggressive behaviors that might trigger a response from police, make sure your child has an updated Behavior Intervention Plan in place and that staff know how to follow the plan.  If your child is not in school, consult with your child’s providers to develop a plan for identifying and de-escalating problem behaviors.

Get More Information

There are many other issues involved with mental health and the criminal justice system including competency to stand trial, treatment of inmates once incarcerated, and forced treatment.  However, these topics are beyond the scope of this piece.  For more information on these and other topics, please visit Mental Health America’s website or the Substance Abuse and Mental Health Services Administration.

A special thanks to Matthew B. Keyes (, a criminal defense attorney and former Public Defender in the Marion County Mental Health Court in Indianapolis, for providing information and assistance in drafting this article.

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Melissa Stuart

Written on January 15, 2013 by:

Melissa Stuart is an associate attorney at Cohen & Malad, LLP in Indianapolis, Indiana. She graduated J.D., cum laude from Indiana University School of Law, 2011 and was Editor-in-Chief of the Indiana Health Law Review. Prior to joining Cohen & Malad, LLP, Melissa worked for several years at Riley Children's Hospital in the Christian Sarkine Autism Treatment Center as a Research Specialist.

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