VIEWS: 43 PAGES: 3 POSTED ON: 10/15/2011
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 net.com). 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 http://psychservices.psychiatryonline.org 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 http://psychservices.psychiatryonline.org 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. project.org 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 Psychiatric Services Launches Web-Based Manuscript Submission and Peer Review System Psychiatric Services has implemented a Web-based manuscript submission and peer-review system, called Manuscript Central, designed by ScholarOne. Since 1998 more than 150 top-tier scholarly peer-reviewed journals have turned to Man- uscript Central to conduct a virtually “paperless” peer review. Authors of papers for Psychiatric Services: Please do not submit manu- scripts by mail. Instead please visit http://appi.manuscriptcentral.com and follow the instructions to open your account and upload your paper and a cover letter. After submission, you can check the status of your paper on-line at any time. Peer reviewers for Psychiatric Services: You will be notified by e-mail when a paper has been assigned to you. The e-mail will contain instructions about visiting the Web site, locating the paper in your existing account, and sub- mitting your review on-line. The journal staff and the technicians at ScholarOne have worked hard to make the system as user-friendly as possible. For users who need assistance, Manu- script Central offers prompt telephone support and other types of support, such as by e-mail and by “live chat” with a technician. 1228 PSYCHIATRIC SERVICES o http://psychservices.psychiatryonline.org o October 2002 Vol. 53 No. 10
"Can Mental Health Courts End the Criminalization of Persons With "