Ep. 10 - What If Mental Health Care Can Lower Incarceration?

A better answer to rising incarceration might start with a monthly shot. Judge Robert Herzfeld joins us to explore how long-acting injectables, smarter diversion, and targeted accountability can keep people stable, families intact, and courts focused on real public safety. We talk through the practical side of reform: why medication adherence collapses for people in crisis, how LAIs remove daily barriers, and what changed when mental health coverage no longer vanished with a job or an insurance switch. The result isn’t theory—it’s fewer repeat civil commitments and fewer chaotic encounters that spiral into charges.

From the bench, options are narrower than many think. Judges can order competency evaluations and consider clinical facts, but they cannot unilaterally convert prosecutions into treatment. That’s where prosecutors and defense counsel matter, weighing harm, victim needs, and credible care plans. We break down drug courts—structured treatment, frequent testing, swift sanctions—and why they work best with strong community ties. Then we dig into mental health courts, where progress can’t be verified by a swab and stability rises and falls over months, not minutes.

The most promising lever may come before any arrest. Regional crisis centers give officers a place to bring someone in obvious distress for rapid evaluation, medication, and stabilization—no booking, no record, just a bridge back to outpatient care. Arkansas is testing this approach, and while funding gaps and policy friction shuttered one center, the model points the way: cross‑agency buy‑in, transparent data on recidivism and ER use, and sustained leadership to outlast election cycles. Judge Herzfeld’s bottom line is hopeful and hard‑nosed: earlier care, clear accountability, and tools that actually fit the problem. If your city wants fewer jail beds and safer streets, start with treatment that works and pilots you can measure.

If this conversation sparked ideas, follow the show, share it with a friend who cares about real solutions, and leave a review with one reform you’d fund first.

Transcript

Framing The Mental Health Crisis

SPEAKER_00 0:07

Welcome back to the Radical Moderate podcast. This is part two of my interview with Judge Robert Hertzfeld. And in the first part of our interview, we really got into the decades-long experience you have in the criminal justice system, and you really just kept coming back to the mental health aspect. And I want to I want to take a deeper dive on that. How how specific can you be with either individuals or particular kinds of mental health? Like where where do you see the problem originating at? And then then go into like what can we do about it? Give me some hope here that we're not just spinning our wheels and we're just gonna always have the highest incarceration rate in the world.

Why Long-Acting Injectables Change Lives

SPEAKER_01 0:59

Well, uh, as I as we kind of wrap it up, I'm glad you brought it back to this. I have a lot of hope. Uh I I believe thing I know things are better than even when I started as a judge just uh 16, 17 years ago. I know they're better. And I have a sense that is, you know, it's that's not because of me. I mean, I I individually I do what I can to make it better for people, but what the biggest thing, uh, two things really that have made uh the system and and the ability for the system to help people better in the last couple of decades, number one, and I cannot emphasize this enough, and that is the introduction of new medications that make it easier for people to get their medication and get those doses in the correct way. And it's it's they're called LAIs or long-acting ingest uh injections, and it's a shot uh that can, depending on what the medication is, it will last a month uh or even as long as six months, where the folks who otherwise would be having to take one or two or 10, not 10, but one or two or a bunch of pills per day, even when they're depressed, even when they don't feel like it, even when they they're in a matic state and they and they're having to remember all these different things, they have to take that medication or they're gonna lose parts of themselves along the way. But with the with the long-acting injectables that takes that out of the equation, you know, I I take an allergy pill and uh uh asthma medicine every night. I don't even I don't take it every night because I forget. And I'm as I'm among the higher end of people who take care of themselves and take care of their business. And so imagine if you miss one pill and it's gonna affect your ability to take your next pill, it's gonna go on down. And so these long-acting injectables are a game changer, and and they're only really beginning being prescribed, they're beginning to be prescribed at levels that are gonna have a broader impact on the population. So that is one. Um and the other thing is that more people have access to insurance that covers mental health uh treatment. And that's whether that's medication or therapy. About uh 12, 13 years ago, there was a law passed that said you cannot keep somebody from having health insurance because of a pre-existing condition. So 15, and but that was just 13 years or so ago, which meant until 2011 or 2012, if you had bipolar and you change, you couldn't change insurance. If you had schizophrenia or your family member had health uh schizophrenic skinny and you're schizophrenia and you're trying to get them covered, you could not get health insurance, which means only the really wealthy could get the best care. And that has been a tremendous change where people have more consistent and steady and stable care combined with access to really life-changing medications, and we're now seeing the benefit of that. And that's why I have hope, because those medications and the ability to access those medications, we're still not yet to a saturation level. Uh, some doctors, the old, particularly, you know, older doctors are less inclined to do those longer-lasting medications. Um, but the the benefits have been astounding in making it where people have the ability to live their life and be their best self and be their best, you know, friend and family member, husband, daughter, uh, whatever. And that it is astonishing. And the more people that come into contact with somebody or have somebody like that in their life, that are they're aware of this as an option, the more people can have that opportunity to be successful and to have hope, not just for society, but for their friend or family member and for themselves and having in and having the opportunity to help them.

Insurance Access And Systemic Shifts

SPEAKER_00 5:06

I think everybody's heard the expression this person was off their meds. And so you're saying that that their medicine is advanced to a point where we can help stop that. Now, going back to how this interacts with the criminal justice system, so somebody comes in, you know, gets arrested, they're ending up in your court, another judge's court, how how I mean you sound like you're pretty knowledgeable about these things. I wonder, are all judges that knowledgeable? Like from a process and system standpoint, how are people screened? And like what happens from a broader perspective to make sure that someone, that the judicial official can say, yeah, you know what we really got going on here is a mental health issue. Let's treat that first.

SPEAKER_01 5:54

Well, it's it's it is more complicated than that. Uh, I will say most judges who've been doing it very long at all, well, all judges that I'm I've ever met want to do a good job. Okay, they want to do the right thing. They may not have, you know, 16 or 17 years of experience or particular interest in that field. But we we judges, we are fortunate. There's plenty, there's not not every judge is a great judge, but almost all judges are pretty good. Um, so that's good, but it's it's not as simple as a judge sees it, there's somebody coming in that's being prosecuted. There's a limited ability to interact and get into it at that stage, or maybe any stage from the judge's perspective, um, when it's a criminal case. Uh certainly you can order a mental evaluation to see whether they're competent to stay in trial to effectively assist in their own defense, or whether they uh at the time the crime was committed or allegedly committed, whether they were able to appreciate the criminality of their actions. Those are the two basic things that judges would be involved in relatively early on, typically in a criminal case. There is not, and I'm I'm not sure that I'm advocating for the ability to, but there is not the ability for a judge to just say, stop, hold on, you shouldn't be doing this. Okay, this guy, this guy or this lady is having an episode, we can fix it. Like that's that's not a part of our system. You can conceive of a system where that might work, but that's so far away from what we do that it's not really worth jumping into throwing the head first. Um, the prosecutors being aware of that and having uh the guts to tell victims that, that we this is not a case where we need to lock them up. That is a hard thing to do, especially if you're an elected prosecutor as you as we are in Arkansas. But there are prosecutors who do that, and have the experience and also the compassion for victims uh to explain and see what's going on. But all of that has to be measured by accountability, or not measured, but tempered by accountability. So it is an extraordinarily complicated process. Um, but most people want to do the right thing. Most people comprehend that if somebody thinks that they're being attacked by demons, that it's maybe not their fault that they pushed over somebody in the grocery store, right? And and and so obviously the more serious the injury or the damage if somebody is killed, that that takes it, that makes it much more difficult to say, well, we're not that, and I'm not even sure we should say we just need to treat them. That's a very complicated process. But the short of it is there is there, you know, life is really complicated. And people who think there's a simple solution to anything that has been we've been struggling with, you know, they're either naive or they're lying to. Yeah. But there are ways we can't continue to do this.

What Judges Can And Cannot Do

SPEAKER_00 8:54

Yeah. And I don't know that there's maybe there isn't a simple solution. Well, probably not a simple solution, but what I'm just wondering, you know, maybe even if it's after adjudication, they they did as we, as you well know, a lot of times people start in the criminal justice system in a you know, theft or some drugs or just disturbances in a home. And like they're not, it's not felony. And sometimes the police don't even arrest them initially, but it's starting to get out of control. And I I don't know where because the police have so much to do already. I don't know where you're supposed to find that help, but maybe it's post-adjudication. And and we haven't really we haven't talked about drug courts, um, and you've definitely made a distinct distinguished here, but I know there are drug courts, and so they they try to have more of a process. If you could give us a minute or two on just what is it that the drug courts are trying to do, and to what extent do you see them nationwide as being successful?

SPEAKER_01 10:03

What drug the the what a drug court, you know, there and there are some there are differences across all every single drug court is different than every other drug court, at least a little bit. But generally speaking, it's court supervised intensive treatment with accountability for and frequent drug testing. I think that's probably the the a relatively straightforward definition. So you would have somebody who has had multiple previous convictions where they were low level, they would they never went to prison. And then drug court might be their last you know opportunity to stay out of prison and to get help. And if they use, typically they there is a a punishment for that, but also a treatment response. And so if they use, you know, they go to jail for the weekend, and then they go, they may need to go eventually to or immediately to an inpatient facility for 20 days or 28 days, and then let them get out. They're required to work, they're required to do, you know, it's a lot. Drug core being a drug core participant is very busy and very complicated, and they do work really well for a particular kind of uh defendant. It's generally speaking, those who have the most family support and most structure where that's going to maintain after the fact. Okay. And so the more they are a part of the community, the more likely they are to take to take these lessons and continue to be able to apply them. Where we don't do so well with drug courts is they've done well, maybe had a few times they got in trouble, but they stopped once the accountability came into play. That we haven't been able to change their desires and or and also haven't been able to create for them or have them create the structure of support that they need once the judge is no longer looking over their shoulder. So there's that's a complicated problem that there's not an easy solution to. And there are also mental health courts that do similar things, and there's an again a number of different kinds of those. But I do want to come back to what you were talking about.

Accountability, Victims, And Complexity

SPEAKER_00 12:19

Well, if you want, just before we move on, let me one thing that you said there that uh that did strike me that's much harder than it say mental health versus drug courts. You can give a a person a drug test and immediate clarity, you're either on drugs or you're not, and you can have consequences for that, where I'm assuming mental health ebbs and flows, or you meet them when they're on their medicine, you don't know that there's a problem, you meet them when they're on off their medicine, there's clearly a problem. So I we'll put we'll put the the you know the drug addiction to the side, but I I I do think there's such a personal level here that maybe you've got some examples of and I want to get into. And by that I mean I think I know people who've either had some mental health challenges, and it maybe didn't necessarily turn into criminal, but it turned into a mess for everyone around them, and sometimes criminal. And then I also differently know some people, people I've worked with, worked for me, that sort of thing. Drugs became an issue that they couldn't overcome and it wrecked lives. So, but you're about to make a point. Uh so so go on with that.

Drug Courts: Structure And Limits

SPEAKER_01 13:33

Yeah, so we were talking a while ago about the pre-ed, you know, the stage when they come before the judge, and then the judge, as I said, the judge really has limited ability to do much there. And then you talked about doing something after adjudication, which absolutely we can and we should do a better job of that. But the where the rubber meets the road would be before they're arrested, but they're engaging in and obviously disturbing behaviors, right? And so in Arkansas, under under Governor Hutchinson, the legislature, and he signed it into law, passed into law what are called crisis, the funding for and structured, somewhat of the structure for what are called crisis centers. And those are designed for these exactly these kind of folks that come into uh come into contact with patrol officers or sheriff deputies. Obviously, they're not doing well. Often they'll have a family member, even they themselves will say, I'm on my meds, or I'm I'm having a crisis. And what do we do with those folks who are not okay and not safe? Well, you have to put them somewhere. And what we have for most communities, that means you're going to jail because it there's a problem, and it's not safe for you to be where you are. And if you're lucky and you have a prosecutor's office that is set up for it, and you have facilities that are set up for it, as we do here in Sulane County, because of our, you know, the history of um having facilities here, you might be able to get a civil commitment and have prompt action and have a bed available. And so those are the options. What the crisis centers that were that were funded by Governor Hutchinson have have begun to do is have somewhere that's effectively a combination of those two things. So someone is can be picked up, they're encountered, they have an encounter with law enforcement because of this un you know, because of their behavior. You take them to the crisis center, they get an immediate evaluation, they begin to get treatment, they get somebody who's going to look into their background and at least stabilize the situation. Almost all of these folks are going to have a psychiatrist or some therapist or some treatment already, and then you connect the dots, help them get back situated, and you move on, and they never come into the criminal justice system. So that's that's one of the reasons I have hope because again, that's a that's a Republican Arkansas, Republican governor, Republican legislature past that, and it's an it's in it, and they are in place. The opportunity is moving forward, there's only two of them. And there's one in in uh Jonesboro area, and there's one in Fort Smith. And the one there was three, uh, there was one in Pulaska County as a regional crisis center, and and that is no longer functioning. So the good news is somebody came up with the idea, and it's a really good idea, and it's being implemented, and the and the opportunity in front of us is to see and measure and and and and demonstrate how effective that can be, and have the guts and the willpower to put money behind it, where people all across the state or all across the country, wherever you're you're talking about, have that type of way of you know stopping things before they go so far where you're having to lock them up because they've hurt somebody or they've caused some such incredible property damage, and you're not and you're securing them, you're getting them help, and you're heading them off at the past. And that's where we have a real opportunity because it's there, and we'll have to be able to demonstrate that it's just going to take knowledge uh among policymakers and legislators that this works. So, and we and here are the results. And I can, you know, we I have been doing mental health issues in court in central Arkansas for 18, you know, 22 years or more altogether. We've never been able to use one of those, but we also are lucky to have our own local facilities where it's similar to, but not exactly the same. But that's where I have hope. It definitely sounds go ahead.

SPEAKER_00 17:47

Yeah. Well, it just definitely sounds like an effort to do something different when things haven't been working. What what is what's the actual name of these centers again? What are they called? I believe they're called regional uh regional crisis centers.

SPEAKER_01 18:03

And you can Google it in for Arkansas and you'll see where it lists three of them, and then it shows you the map where it's two of them on either side of the state. Obviously, I think the nicest way to say it is that there's they're effectively pilot programs now. Um I'm and the the biggest lift and one of the the you know of a value that I see is is places now that's like your podcast is sharing information about because it does make sense, right? I can say I can see you're listening and you're responding. Well, and of course it makes sense. Like, how do we save all of this money and time here at this? It's it's a way to cut them, as I said earlier, to cut them off with the pass. And so it just takes spreading the information and and and hopefully, you know, over time the results will speak for themselves and we'll spend that$1 here to save the$5 later.

Mental Health Courts Versus Drug Testing

SPEAKER_00 18:56

Yeah, yeah, it sounds great. And you educated me. I had not heard about this, and I get maybe I've become out of touch on such things. All right, I'm gonna I'm gonna throw you a curveball. I'm gonna give you a kind of hypothetical, what I call pretty radical approach to things that popped into my brain here. And just give me some feedback on it, indulge me. So the way I've I've talked about this before, which is the first time anyone has to go to a jail, and I can say that the only times I've ever been to a jail was as a licensed attorney to meet with clients. I never uh I never had to, I never arrested. Um, I'll be honest, you know, in my younger days, there's probably times where I had too much to drink. And had I been stopped, I probably would have gotten a DWI and I should have. I was engaging in bad behavior, and that's on me. And thank God nothing happened, but you know, I was able to move past that. But so here's my view of the, say, the county jail. A person spends their first night there, and when they walk out in the morning, depending upon what happened to get them there, I think it's a big moment in their life. And that is a moment where they're either saying, Hey, the behavior which led me to be in this awful, stinky, scary place, I got to stop. I can't ever come back here. Some people, and I think the kind of people you're talking about with mental health, they might view it either they don't even know they're there, or maybe they're gonna get some medication. Maybe something good is gonna happen because of it. There's people, and you've seen them, who they grew up in a home without stability, without discipline, without resources, and they're like, I got a place to sleep and they're feeding me, you know, and I think everybody reacts differently. I really think there's an opportunity to do more at the county jail level and just say an exit interview. Why are you here? You know, and do that screening there, and maybe it's drugs or mental health or whatever. That's my radical approach. Um, and it just popped in my head because you kind of inspired me with all your hope. So, so now knock me down a peg, knock me down a peg. Would it work? Am I crazy?

Crisis Centers As Jail Alternatives

SPEAKER_01 21:22

It is a part of the way you're supposed to do drug courts is to do it is to do an exit interview. Um, and and it's kind of obviously a good idea to get more information. The the difficulty, and certainly not unsurprising you know, unsurmountable. The difficulty is we have insulin in in Arkansas, for example, obviously other people from around the country have uh well, probably related issues. There's 75 counties, which means there's 75 county jails, which which are rep operated by 75 different sheriffs who have a widely uh varying uh level of funding and staff and the capability of hiring qualified staff. You know, there's there's oh I don't I don't know the exact numbers, but I'm I'm confident that there's jails in in Arkansas that can hold less than 20 people, right? And then you contrast that with jails, yeah. I mean probably less than 10, but I but but you know you might have three jailers uh that are watching five or six people. I mean, that at most, sometimes three jailers, right? And so how the getting the the funding for, you know, that's a that's a that's an outside having a sheriff that would do that would be I'm sure there are sheriffs out there like that. There are lots of innovative sheriffs, but that's not where there's the the drive is likely to come. So that you're talking about a study, a university funded or government state funded study where with actual one-on-one interviews, but then also following up to check on recidivism, to see what other times, whatever things they've made been arrested. Yeah, really a longitudinal study of why people are in the county jail probably has been attempted, but not as but not to my knowledge, but I'm sure it's out there. But it's it's a a brilliant way to gather information. Again, it takes funding and and somebody needs to be in charge of it that has stakes in it.

SPEAKER_00 23:34

Uh I think you could start, yeah. You're talking about pilot programs. I think you could start as some bigger jurisdictions, you know, in Arkansas there'd be Pilassi County, but I'm thinking Cook County, Chicago, maybe, you know, it's I don't really talk about billionaires on my show much, but why not some billionaire drop$50 million on something like this? Uh, you know, and do because if the government does it, everybody's gonna say it's a terrible use of money. I just think going back to what I said in part one of our episode, I think we have a problem with incarceration. Now, I'm not saying I know every aspect of why that's happening. You've talked in great detail about mental health being a huge factor in the system. You've got some solutions for that. I just think we need to get more aggressive and try some pilots. And I'm encouraged by this, these crisis centers. Do you happen to know, by the way, why one of them closed in central Arkansas?

SPEAKER_01 24:33

I'm aware that it closed the website effective that I was saw when I was double checking today. Basically, the I think it was UAMS that was administering it. And I it I don't have any inside information whatsoever on that, but it appeared that there was um perhaps disagreements or some difficulties with the funding being consistent and with policies being consistent, which is you know not shocking that that might occur in a new type of uh policy approach and as it's being applied. So, you know, this it's the beginning of what I believe can be what it takes, what it what it's gonna take is somebody or a lot of somebody with skin in the game who understands it enough to talk about it and to take action and educate the different levels. So even if you have a center, if the sheriff's office or the sheriff deputies in that area don't know about it or don't believe in it or think it's just a hug-a-thug or whatever, then it's not gonna work. So we need cross-sectional buy-in. And so that's where leaders come into play, whether it's a governor or uh you know, a member of Congress or state local lakes, state legislator, these people can lift up the awareness and speak one-on-one and to groups about how this is valuable. And it doesn't take much to convince people on this kind of issue, I think. But you've got to have there's not an institutional structure that is self-sustaining. So unless somebody at the state level or or there's a grant, even if there's just a grant, throwing money in, it's not it, you've got to have people who are invested and involved. And that's the heavy lifting, but at least somebody's gotten the gotten the the uh the pry bar under the rock to start moving things.

SPEAKER_00 26:25

By the way, is is hug-a-thug a thing that the kids say, or where'd you get that?

SPEAKER_01 26:30

It's uh it's often a derogatory term on treating the individual rather than punishing them. Yeah. It's a I've been around cops and lawyers and judges for a long time, and it's it's it's the kind of thing people say that just sounds like a hug-a-thug program. Um, but which is anyway, yes. I I don't like the phrase because it doesn't well, I like it because it doesn't work, and it's it's obviously it didn't work.

SPEAKER_00 26:56

Yeah, no, I I've I didn't know where you got it from, but I I'm sure it's it it exemplifies the challenge of no one wants to be seen as soft on crime, coddling criminals. But and and I certainly don't, but I just the costs of this, just the hard costs, the the the costs of incarceration and the costs of law enforcement, the all the police we have to pay for, uh you know, that alone I think justifies what we need is more innovation. So here's what I like to do. We just got a couple minutes left. Uh you've touched on this a couple times. I feel like you got more to say on it. On a personal level, meaning you've seen people come through your courts. And I I know you couldn't use names, but you might have a specific story of a family, and you saw it, it was really a mental health situation. Do you have any success stories? Can you end this on a good note of saying, yeah, this happened and go for it?

Funding, Buy‑In, And Policy Hurdles

SPEAKER_01 27:55

When I first took the bench and was handling these kind of cases, you know, there's I'll try to keep it tight, but there's several different layers or levels of the civil commitment. So one of them, the first one is generally a seven-day evaluation, then you have a 45-day order, then you have a 180-day commitment where they're getting longer term treatment. And unfortunately, often those are rolled over with multiple hearings over years. The number of people who are, you know, for lack of a better term, frequent flyers like that, would come in for a commitment, they need a seven-day evaluation, we get them stabilized, get on their meds, and then they come back in two months when they go off their meds again. I don't see that anymore. Okay. I I don't see it anymore. Mostly, I believe, in my experience based on the research and things that I've done, but mostly because of the long-acting injectables that we were talking about a while ago. They get steady treatment, you know, you know, and there's downsides. There are downsides to that, to those shots. One is that they're shots. So there are some people who are not going to want a shot of any kind ever. Um, but there are also, for the medications themselves, there are there are side effects. However, if they're on the medication at all, it's effective with the same side effects. And so they need to be on the medication. But not having to take it every day consistently and having that long, steady ability to not just be well, but also to stay well and to have the structures and support and develop the relationships, to have the resilience to just go once a month or even every two months to get that shot. It's made a world of difference in my experience. And it it's it's it's a miracle. And it's and it's something that it changes not, as I said several times, not just that person's life, but all of the lives of the people that are around them. It makes the world a better place and it gives all of us.

SPEAKER_00 29:58

You know, you might have turned. Me around a little bit toward the end of the episode here with the LAIs. And I I think I'll close by saying that I bet there's families out there. I hope there are, anyways, that are hearing this podcast. They've had a situation, and maybe it's it hasn't gotten to a criminal level, but they've got a a s uh a brother, a cousin, a friend who's been who's been going down the wrong path, and maybe they didn't know that this was a newer thing, and maybe they can, as they get involved talking to doctors and such, they can they can bring awareness to this because you're you called it a miracle, and I've I've known of you and your reputation long enough to know that you wouldn't you wouldn't use that term lightly. So thank you, uh Judge, for coming on the show today. It's it's it's been very informative and uh leave the audience with uh some things to think about. And so for this week, that is the POV of P.O.B.