Can Mental Health Courts End the Criminalization of Persons With

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					Law & Psychiatry

Can Mental Health Courts End
the Criminalization of Persons
With Mental Illness?
Stephan Haimowitz, J.D.

T     here is hope that the use of spe-
      cial courts will remedy the prob-
lem of people with mental illness lan-
                                            establish appropriate connections to
                                            mental health providers. The Sub-
                                            stance Abuse and Mental Health Ser-
                                                                                            people with serious disabilities. Di-
                                                                                            verting “cyclers” from the criminal jus-
                                                                                            tice system seems sensible, but the
guishing in the criminal justice sys-       vices Administration (SAMHSA) has               question remains: Divert them to
tem (1). In mental health courts,           funded a study of nine communities’             what? Many have had unsuccessful ex-
trained judges and attorneys work           diversion efforts as well as “capacity          periences in the mental health system.
with clinicians and defendants to           expansion” projects and a national              What will make a difference?
fashion treatment alternatives to ex-       technical assistance and policy analy-             Mental health courts, with trained
oneration or punishment. Although           sis center. These are important steps.          judges and lawyers, clinicians avail-
mental illness does not usually lead to        However, many people with mental             able for assessment and community
legal problems, and some crimes             illness who are entangled in the legal          treatment planning, and the capacity
committed by people with mental dis-        system present more difficult chal-             to monitor service delivery, may be
abilities are not a result of their dis-    lenges than occasional arrests for dis-         effective for these consumers. Fewer
ability, many people do enter and re-       orderly conduct. These individuals              than 30 mental health courts are in
main in the criminal justice system as      repeatedly cycle through the process,           operation today, and they vary enor-
a result of mental disorders. Are spe-      often charged with misdemeanors or              mously in eligibility criteria, proce-
cial courts the answer?                     low-level felonies as well as disorder-         dures, and other basic elements (2).
   Long before a judge becomes in-          ly conduct. Crimes involving aggres-            As these courts proliferate, various
volved, diversion from the criminal         sive panhandling, substance use, or             concerns have been raised: Will use
justice to the mental health system         relatively minor violence are some-             of such courts amount to “net-widen-
should be arranged for an individual        times involved. Although imposing               ing”? Where will the services come
with mental illness charged with such       criminal responsibility may be inap-            from? Will coercion increase? Should
offenses as loitering (for being home-      propriate because of the illness’s ef-          people not be held responsible for
less), lewdness (for cursing or urinat-     fect on the person, the insanity de-            their behavior? Are special courts an-
ing in public), and disorderly con-         fense has a low success rate and is al-         other “paradigm shift” that misses the
duct. Arrest and prosecution do little      most always an irrelevant option.               problem? Much is simply unknown.
to help such people recover. Incarcer-         To the public and the media, this               Although frequently seen as clones
ation can exacerbate the illness and        revolving door consumes significant             of the drug courts, mental health
result in victimization, loss of public     tax dollars, yet the disruptive behav-          courts are different; possession or use
benefits, and suicide. Often people         ior continues. Police, jail, and court          of street drugs is a crime, whereas
are arrested because police officers        personnel are exasperated as their re-          having a mental illness and not com-
cannot ignore a troublesome situation       sources are diverted from their cen-            plying with treatment are not. More-
but are unable to spend hours navi-         tral missions. Family members watch             over, more than a thousand drug
gating the mental health system.            in sadness. Most of all, the person             courts have been in operation long
   It is in everyone’s interest to train    with mental illness suffers.                    enough for standardization to have
police and jail staff to recognize men-        People in this situation frequently          evolved and empirical evidence on ef-
tal illness, to deescalate crises, and to   experience both mental illness and              fectiveness to have been compiled.
                                            substance use disorders but go without             Some preliminary research on
                                            effective treatment. Although there             mental health courts has been under-
Mr. Haimowitz is a senior program asso-
ciate at Advocates for Human Potential,     are many reasons for undertreatment,            taken. An evaluation of the first two
Inc., 262 Delaware Avenue, Delmar, New      it is easy to blame dysfunctional serv-         years of the Seattle mental health
York 12054 (e-mail, shaimowitz@ahp-         ice systems or a lack of insight. One           court found that the target population Paul S. Appelbaum, M.D., is ed-   thing is clear, however: the criminal           experienced a decrease in involve-
itor of this column.                        justice system is not designed to treat         ment with the criminal justice system
1226                                  PSYCHIATRIC SERVICES   o o October 2002 Vol. 53 No. 10
and an increase in mental health               the sentence that would have been             son in a diversion program may delay
treatment engagement. The report               imposed for a conviction. Some peo-           or prevent treatment for a person
notes that the court’s effectiveness           ple might feel that liberty is better         who has not been arrested—a dis-
was strongly dependent on the ongo-            served by a sentence of months in jail        turbing form of rationing. Thus if new
ing collaborative support of the stake-        than by years of mandatory supervi-           services are not provided when a
holders (3). An inquiry into the views         sion. Counsel for the accused may be-         mental health court is established, lit-
of consumers in Broward County,                lieve that there is an effective defense      tle net benefit can be expected. Al-
Florida, where the best-known men-             to the charge and insist on the               though easier said than done, de-
tal health court is located, found that        charge’s dismissal before diversion to        creasing jail time would allow the
participants in the special court in           possibly years of court appearances,          redirection of some funding to com-
1999 did not experience their involve-         treatment monitoring, urine tests,            munity mental health services.
ment as coercive (4). Such findings,           and other requirements.                          To the extent that services exist but
although tentative, are promising.                On the other side, state attorneys         are difficult to negotiate, the ongoing
   In accordance with federal legisla-         want the defendant to plead guilty as         attention of an interested judge can
tion, the U.S. Department of Justice           a precondition to diversion to mental         improve coordination and outcome.
is awarding grants to communities              health court treatment. They are con-         However, when providers fail in their
that are creating mental health courts         cerned that if the defendant does not         responsibility to serve consumers
and is funding a national center               comply with treatment, the case will          who have complex problems, the
whose role includes research. As out-          be more difficult to try later, because       court has no real power. Given that
lined below, at least two sets of issues       witnesses may move away or forget             the agencies are not parties to the
warrant attention.                             facts. Prosecutors are also troubled by       criminal case, the judge can neither
                                               the position advanced by some advo-           order them to do anything nor sanc-
Individual liberty and closing                 cates that all treatment must be vol-         tion their failure to deliver. However,
the revolving door                             untary. Given that the individuals            it may be possible to create a struc-
If consumers who commit minor of-              who benefit most from this alterna-           ture for provider input and accounta-
fenses are diverted before arrest or           tive to incarceration are those facing        bility in individual cases through the
very soon afterward, those who re-             substantial charges, it would be ironic       state mental health agency’s licensing
maining in the criminal justice system         if insistence on voluntary treatment          authority or by state statute. Either
will face serious charges. Although vi-        induced prosecutors to limit eligibili-       approach would require careful polit-
olence is not involved in most cases,          ty to nuisance offenses.                      ical and operational analyses.
the stakes are substantial for all con-           These adversarial tensions are un-            The most complex issues concern
cerned. The need for public order              likely to be resolved. One suggestion         confidentiality and the defendant’s
and the concerns of any victims must           is to defer the issue—to adjourn the          cooperation with treatment. For ex-
be addressed, and the liberty of the           proceedings in favor of a judicially          ample, the law presumes that treat-
accused is at significant risk. Such fac-      monitored treatment plan for 30 to            ment is provided on a voluntary ba-
tors may cause attorneys for defen-            120 days, during which time the de-           sis—each individual has the right to
dants and the state to be skeptical of         fendant determines whether the regi-          control his or her body and personal
special courts.                                men is acceptable and the prosecutor          information. Refusal to be medicated
   Criminal courts are designed to de-         assesses the defendant’s compliance           may be overruled in some states only
termine whether a defendant is guilty          with it. Although this approach is pre-       if a judge determines that an involun-
through an adversarial process that            cluded in courts that limit eligibility       tarily committed patient lacks the ca-
seeks to protect the constitutional            to those who have pleaded or been             pacity to make treatment decisions. It
rights of the accused. The value               found guilty, it would permit the case        may be unrealistic to expect that such
placed on liberty is expressed in the          to be negotiated on a more individual,        issues can be appropriately addressed
presumption of innocence and the re-           less abstract basis.                          in a criminal court proceeding.
quirement that the state prove guilt                                                            In short, people who need treat-
beyond a reasonable doubt. Rules               Courts and treatment delivery                 ment go without it because of the in-
governing search and seizure, self-in-         Knowledge is accumulating about the           terplay of service availability, provider
crimination, and other rights apply to         effectiveness of integrated mental            effort, and consumer cooperation.
every person charged with a crime.             health and substance abuse treatment          Research must determine the extent
These elements are at the heart of our         as well as person-centered services           to which mental health courts can
concept of due process.                        such as assertive community treat-            fairly balance the interests of con-
   Defense attorneys, bound to repre-          ment, peer involvement, and housing           sumers and the community, reduce
sent zealously their clients’ interests        and employment support (5). Such              traffic through the revolving door,
and liberty, are loath to relinquish any       comprehensive services are rarely             and remain cost-effective.
fundamental rights. Although mental            available in a single community. In
health courts focus on treatment               deciding individual cases, mental             Useful, but not a panacea
rather than punishment, judicial su-           health courts cannot create new re-           Despite these uncertainties, mental
pervision infringes on personal liberty        sources, but they may set service pri-        health courts may be able to help dif-
for lengthy periods, often longer than         orities. Providing treatment to a per-        ficult-to-serve consumers. Stakehold-
PSYCHIATRIC SERVICES   o o October 2002 Vol. 53 No. 10                                 1227
ers need to acknowledge their diver-       example, the Council of State Gov-              References
gent motivations in order to agree on      ernments published an extensive set             1. Steadman HJ, Davidson S, Brown C: Men-
priorities and outcome measures—           of cross-system recommendations (6)                tal health courts: their promise and unan-
                                                                                              swered questions. Psychiatric Services 52:
for example, a decreased jail census,      that was the subject of a recent Sen-              457–458, 2001
less disruptive behavior in the com-       ate committee hearing (7) and may
                                                                                           2. Goldkamp JD, Irons-Guynn C: Emerging
munity, greater consumer satisfac-         serve as the basis for federal and state           Judicial Strategies for the Mentally Ill in
tion, and greater rates of treatment       legislative proposals. In the initiatives          the Criminal Caseload: Mental Health
compliance. Political leadership will      noted above, both SAMHSA and the                   Courts in Fort Lauderdale, Seattle, San
                                                                                              Bernardino, and Anchorage. Washington,
be needed for the savings from re-         Department of Justice are seeking to               DC, US Department of Justice, Office of
duced jail stays to be redirected to       identify evidence-based best prac-                 Justice Programs, Bureau of Justice Assis-
mental health services.                    tices at the intersections of the two              tance Monograph, pub no NCJ 182504,
                                                                                              April 2000
   Tensions between priorities will not    systems. In addition, the National In-
vanish, nor should the benefits of         stitute of Mental Health is funding a           3. Trupin E, Richards H, Wertheimer DM, et
                                                                                              al: Seattle Municipal Court: Mental Health
mental health courts be oversold.          research center, to open this year at              Court Evaluation Report. Seattle, City of
Such courts are but one of many sys-       Rutgers University, that will work on              Seattle Municipal Court, Sept 5, 2001
temic changes that are needed. Other       improving the ways criminal justice             4. Poythress N, Petrila J, McGaha A, et al:
essential components include coordi-       agencies treat people with mental ill-             Perceived coercion and procedural justice
                                                                                              in the Broward Mental Health Court. In-
nation between police and the mental       ness.                                              ternational Journal of Law and Psychiatry
health system in crisis situations, pre-      Ending the criminalization of peo-              25:1–17, 2002
booking diversion, treatment for in-       ple with mental illness is a daunting           5. Mental Health: A Report of the Surgeon
carcerated persons, discharge plan-        challenge. The requisite elements                  General. Rockville, Md, US Department of
ning initiated long before release, and    range from empirical knowledge and                 Health and Human Services, 1999
reentry programs.                          funding to communication and com-               6. Council on State Governments Mental
   Although funding is never ade-          promise. Efforts to address these                  Health: Criminal Justice Consensus Project
                                                                                              Report, 2002. Available at www.consensus-
quate, the importance of collabora-        matters at least have been initiated.    
tion at the crossroads of the mental       Special courts are not the only answer
                                                                                           7. The Criminal Justice System and Mentally
health and criminal justice systems is     but may be an important component                  Ill Offenders. US Senate Judiciary Commit-
increasingly being recognized. For         of the solution. o                                 tee, Full Committee Hearing, June 11, 2002

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