Title: Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts. Series: Monograph Author: Bureau of Justice Assistance Published: April 2000 Subject: Mentally Ill Offenders, Case Processing 88 pages 241,664 bytes ---------------------------- Figures, charts, forms, and tables are not included in this ASCII plain-text file. To view this document in its entirety, download the Adobe Acrobat graphic file available from this Web site or order a print copy from BJA at 800-688-4252. ---------------------------- U.S. Department of Justice Office of Justice Programs 810 Seventh Street NW. Washington, DC 20531 Janet Reno Attorney General Daniel Marcus Acting Associate Attorney General Mary Lou Leary Acting Assistant Attorney General Nancy E. Gist Director, Bureau of Justice Assistance Office of Justice Programs World Wide Web Home Page www.ojp.usdoj.gov Bureau of Justice Assistance World Wide Web Home Page www.ojp.usdoj.gov/BJA For grant and funding information contact U.S. Department of Justice Response Center 1-800-421-6770 ---------------------------- This document was prepared by the Crime and Justice Research Institute, under grant number 99-DD-BX-K008, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. ---------------------------- Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts in Fort Lauderdale, Seattle, San Bernardino, and Anchorage Acknowledgments This examination of the emergence of mental health courts in the United States was made possible by the special recognition and leadership shown by Nancy Gist, Director, and Timothy Murray, Director, Program Development Division, Bureau of Justice Assistance, U.S. Department of Justice. The research we describe in this report involved observations, interviews and continuing discussions with a number of officials and key actors in the nation's first four mental health courts. This work was possible because of the cooperation, assistance and patience of quite a number of very busy people. Anchorage, Alaska We are appreciative of the assistance and encouragement of the Honorable Stephanie Rhoades, who made herself available to answer questions and provide documentation about the work of her court. We would like to thank JAS Coordinator/Caseworker Laura Brooks and Mental Health Coordinator Colleen Reilly as well for their thorough descriptions and prompt responses to requests for information. Chief Municipal Prosecutor John Richards was particularly helpful in providing information and offering valuable insights into aspects of the mental health court programs. In the Public Defender's Office, Margi Mock was the source of important information from the perspective of the mentally ill offender. Broward County, Florida We are very grateful for the assistance, cooperation and helpful discussions with the Honorable Ginger Lerner-Wren in Broward County, the nation's first mental health court judge in the first mental health court. She invited us to observe her courtroom, arranged a meeting of all key actors, including the Honorable Mark Speiser who played a major role in planning the court, in which our questions were very patiently answered. Judge Lerner-Wren welcomed the research and offered critical insight into the operations of the court and objectives of her program. We appreciate the assistance of Broward Mental Health Court staff, particularly Judicial Assistant Christine Paganelis and Court Monitor Bertha Smith, who provided information about treatment issues. We thank Assistant District Attorney Lourdes Roberts, who patiently provided requested information. King County, Washington Our observation of the King County Mental Health Court was equally eye-opening. We thank the Honorable James Cayce, Presiding Judge of King County District Court and Mental Health Court judge, for his open support and cooperation. He gave freely of his time in person and over the phone and made sure we had our many questions answered. Program Manager Kari Burell tirelessly answered all of our questions and responded promptly to numerous requests for information. The help provided by Court Monitor Susie Rozalsky is also greatly appreciated. Mark Larson, Chief Deputy District Attorney of the Criminal Division, thoughtfully explained the issues, perspective and interests of the prosecutor relating to the Mental Health Court. We appreciate the cooperation of Public Defenders Floris Mikkleson and Dan Gross and their willingness to describe the issues faced by the defendant, and the assistance of Probation Officer Susan Butler in informing us about supervision and treatment issues. San Bernardino, California Our visit to San Bernardino was originally intended to conduct focus groups with participants in the San Bernardino Drug Court presided over by the Honorable Patrick Morris. He invited us to observe the mental health court. His court was impressive, differing from the others in taking felony as well as misdemeanor matters. Its full docket dealt with very difficult cases and raised many questions for us, which Judge Morris patiently discussed with us. He also invited us to the precourt staffing of the cases and gave us an opportunity to meet with the clinical staff and court personnel. Mental Health Court Administrator Deborah Cima provided invaluable assistance. Conversations with Dr. John Mendoza and Cheryl Hause provided us with valuable insight into the treatment issues of the mentally ill offender as they related to the court. The cooperation of the District Attorney's Office, provided by Assistant District Attorneys Dan Lough and Charlie Umeda, was important in providing perspective into the unique prosecutorial issues that arise in this mental health court. Also much appreciated was the detailed information provided by Jane Lawrence from the Public Defender's Office. We are grateful for the opportunity this research represented to observe the innovative efforts underway in these four jurisdictions and the dedication of those involved. Our observations of the courtrooms and discussions with the principal actors impressed us with the seriousness of the issues raised by the mentally ill offender in the criminal caseload and the challenge accepted by these mental health court pioneers. Contents Executive Summary The Origin of a Mental Health Court Approach Common Features of the Four Mental Health Courts Differences Among the Four Mental Health Courts Issues Raised by the Emergence of a Mental Health Court Model Chapter 1 Introduction Setting the Stage for Court Responses to Mental Illness in Criminal Justice Caseloads: Recent Precursors to Mental Health Courts Earlier Prototypes: Special Court-Centered Judicial Precursors to Mental Health Courts Early Mental Health Court Approaches in Four Jurisdictions Chapter 2 The Broward County (Fort Lauderdale) Mental Health Court Target Problem and Rationale Target Population Broward County Mental Health Court Procedure The Treatment Approach in the Broward County Mental Health Court Success and Failure in the Broward County Mental Health Court Chapter 3 The King County District Court Mental Health Court Target Problem and Rationale Target Population King County Mental Health Court Procedure The Treatment Approach in the King County Mental Health Court Success and Failure in the King County Mental Health Court Chapter 4 The Anchorage Mental Health Court Target Problem and Rationale Target Population Anchorage Court Coordinated Resource Project (Mental Health Court) Procedure The Treatment Approach in the Anchorage Mental Health Court Success and Failure in the Anchorage Mental Health Court Chapter 5 The San Bernardino (California) Mental Health Court Target Problem and Rationale Target Population San Bernardino Mental Health Court Procedure The Treatment Approach in the San Bernardino Mental Health Court Success and Failure in the San Bernardino Mental Health Court Chapter 6 Early Mental Health Court Initiatives: Common Themes and Emerging Issues Common Origins and Objectives Common Features Differences in the Approaches of the Four Mental Health Courts Emerging Issues References Sources for Further Information Executive Summary The Origin of a Mental Health Court Approach Beginning with the emergence of drug courts, the last decade has seen a growing number of court-based, "problem-solving" initiatives that seek to address the problems ("root causes") that contribute to criminal involvement of persons in the criminal justice population. While breaking ground for other "hands-on" judicial treatment innovations, the drug court model has itself continued to evolve to address substance-abusing court populations across the country. From the one begun as an experiment in Miami in 1989, drug courts have grown in number to roughly 500 in the United States (and abroad) currently. The judicial problem-solving methodology originating in drug courts has been adapted to address other serious problems associated with large numbers of persons in the criminal caseload. These have included community issues (community courts), family violence (domestic violence courts), and drug offenders returning to the community after serving prison terms (re-entry courts). One of the most challenging applications of this therapeutically oriented judicial approach, the mental health court, has focused on the mentally ill and disabled in the criminal justice population. This report describes the emergence of the mental health court strategy in four pioneering jurisdictions in the United States, beginning with Broward County, Florida, where the idea was first innovated. The Broward County Mental Health Court model has been adapted to different settings and challenges in King County (Seattle), Washington; Anchorage, Alaska; and San Bernardino, California. The immediate pressures that have led to the development of the mental health court strategy include crises in community mental health care (the long-term effects of deinstitutionalization), the drug epidemic of the 1980s and 1990s, the dramatic increase in homelessness over the last two decades, and widespread jail overcrowding. Each of the mental health court jurisdictions has responded to both the critical problems faced by the mentally ill in already overcrowded jails, and the relatively common co-occurrence of mental illness among the large numbers of substance abusers in the criminal justice population. Local jails, which have been struggling for decades, to deal with chronic overcrowding, have been particularly challenged by the need to care for the large numbers of mentally ill persons found in their charge. As many jurisdictions have increased emphasis on drug crimes and quality of life offenses, the jail and court populations have increasingly included mentally ill and disabled individuals who have extensive histories of involvement with the justice system and who have not been successfully engaged by community mental health treatment agencies. Common Features of the Four Mental Health Courts The four pioneering mental health court initiatives share a number of common attributes. Each court is voluntary; the defendant must consent to participation before he can be placed into the court program. Although the mental health eligibility requirements for participants differ somewhat from court to court, each jurisdiction accepts only persons with demonstrable mental illness likely to have contributed to their involvement in the criminal justice system. The mental health courts share the objective of preventing the jailing of the mentally ill and/or of securing their release from jail to appropriate services and support in the community. In addition, each of the courts gives a high priority to concerns for public safety, in arranging for the care of mentally ill offenders in the community. This concern for public safety risk explains the predominant focus on misdemeanor and other low-level offenders and the careful screening or complete exclusion of offenders with histories of violence. The King County court is open to defendants with a history of violent offenses which have been triggered by mental illness, who are then provided with a level of supervision sufficient to protect the public. The four mental health courts also seek to expedite early intervention through timely identification of candidates. Screening and referral of defendants takes place within timeframes ranging from immediately after arrest to a maximum of 3 weeks after the defendant's arrest, depending on the jurisdiction. Each of the courts makes use of a dedicated team approach, relying on representatives of the relevant justice and treatment agencies to form a cooperative and multidisciplinary working relationship with expertise in mental health issues. Another core ingredient of the mental health courts' approaches is the emphasis on creating a new and more effective working relationship with mental health providers and support systems, the absence of which in part accounts for the presence of mentally ill offenders in the court and jail systems. Each mental health court provides supervision of participants that is more intensive than would otherwise be available, with an emphasis on accountability and monitoring of the participant's performance. The four mental health courts share the core role of the judge at the center of the treatment and supervision process, to provide the therapeutic direction and overall accountability for the treatment process. Differences Among the Four Mental Health Courts The nation's first four mental health courts also differ from each other in important respects. The nation's first mental health court in Broward County was designed to be pre-adjudicatory and diversion oriented in its focus on misdemeanants. Eligible participants are placed into treatment programs prior to the disposition of their charges, which are held in abeyance pending successful program completion. The rationale for this approach was therapeutic: the court was to be as nonthreatening and nonpenal as possible and would seek to prevent further penetration by the mentally ill offender into the formal adjudication process. In contrast, the other jurisdictions opted for a conviction-based approach. In those sites, participants generally plead guilty in order to enter the program. The implications of a candidate's decision to go to trial also differ in the four mental health courts. In King County, during the first year of operations, defendants were required to waive their right to a trial in return for admission to mental health court. They could not choose to go to trial, get convicted and then seek to enter mental health court. Today, defendants who request a trial are free to return to treatment court should they be found guilty at trial. None of the other sites has a strict policy against accepting individuals who have opted for a trial, been convicted and then requested admission to the mental health court. However, in these cases, admission is far from ensured, and is decided on a case-by-case basis. The four mental health sites also differ in their method of resolving criminal charges. Successful participants in Broward often have no conviction on their records, as charges are generally resolved through a "withheld adjudication" or a dismissal of the charges. In King County, another significant policy adjustment has recently been made. Deferred prosecutions and deferred sentencing are now liberally granted, increasing the likelihood that successful completion will result in the dismissal of charges. During its first year of operation, most of the participants pled guilty. The other two courts generally require pleas of guilty or no contest in order to enter the program, with the option of deferred disposition or deferred adjudication offered rarely to defendants with few or no prior contacts. In Anchorage, only these few defendants may end up without a conviction. In San Bernardino, however, successful completion may result in the withdrawal of the plea and, later, expungement of the participant's criminal record. The mental health courts diverge also in their handling of noncompliant participants. While each court expects the treatment process to be potentially difficult, given the population of mentally ill offenders with which they have chosen to deal, they vary in the way they impose sanctions for noncompliance. Short of program termination, the most severe sanction is jail confinement. The use of this sanction seems least likely in Broward and Anchorage, somewhat more likely in King County, and relatively commonplace in San Bernardino. This difference in approach is accounted for in part by philosophical differences among the sites about the appropriate response to noncompliance; however, it is also related to the differences in the type of candidate admitted to the court. San Bernardino is the only site that accepts low-level felony offenders, who are usually incarcerated offenders with a previous diagnosis of mental illness as well as a record of prior convictions. In addition, most of the San Bernardino mental health court population has serious co-occurring substance abuse problems. Issues Raised by the Emergence of a Mental Health Court Model Early Identification of Mental Health Court Candidates Problem-solving courts of different types share in common the need to identify their target population candidates as early in criminal processing as possible. The original drug court model was premised on the assumption that intervention with addicted offenders should occur shortly after arrest to maximize the opportunity to begin treatment when individuals may be most open to the possibility. In domestic violence courts, there is urgency to correctly assess the risks posed to victims and implement options for treating or otherwise dealing with the offenders before further harm can occur. To be effective, mental health courts share that critical need to identify mentally ill or disabled candidates at the earliest possible stages of processing to avoid the damaging experience of arrest and confinement, to intervene medically to stabilize offenders and then to situate them in an appropriate placement process. Like the other types of courts, however, the mental health court model faces serious challenges in identifying appropriate candidates early through appropriate and effective screening and evaluation procedures. Collectively, the early mental health courts employ informal and formal methods for identifying possible candidates and assessing them in some depth before detouring them from the normal adjudication process. These methods may include informal referrals at arrest, arraignment or jail admission of persons appearing to suffer from mental illness or disabilities. They are followed by more indepth clinical interviews at the jail or in court to assess the eligibility of defendants for the mental health court programs. Fair, appropriate and effective screening procedures face three principal challenges: timeliness, accuracy, and confidentiality. Each of the courts has established procedures that identify mentally ill or disabled candidates as early as possible in the criminal process to maximize the opportunity to intervene and assist. The need to identify and assess the conditions of candidates quickly potentially conflicts with the need to conduct the thorough clinical assessment required for a reliable diagnosis on the basis of which processing in the mental health court can begin. To put it simply, it is hard to rush such an assessment and still have it be accurate and complete. This may be particularly true because of the difficulty associated with communicating with some mentally ill defendants. Early intervention by the mental health court depends on timely and accurate information about the defendants' criminal justice and mental health backgrounds. However, the goal of early intervention and prompt treatment conflicts in part with the need for confidentiality and for consent by the defendants to share the mental health information with the court staff. Devising workable procedures that both enhance early intervention and enrollment of mentally ill offenders in the mental health courts and respect confidentiality pertaining to sensitive personal information represents one of the difficult challenges facing the mental health court approach. Voluntariness Some observers see special courts as vehicles for "coerced treatment," a term with favorable and unfavorable connotations. The favorable use of the term suggests that the judicial role and application of sanctions and rewards contribute a valuable tool for keeping participants in treatment and increasing the chances of successful outcomes. The unfavorable reference alludes to the problems associated with forcing treatment upon individuals who have not voluntarily consented, from a due process perspective and from the perspective that treatment cannot be effective unless it is wanted and the offender is "ready." In fact, most problem-solving courts are premised on voluntary participation by candidates, with the exception of some sentenced-based approaches (in which judges may simply sentence a person to treatment in court). This is especially true in diversion-based courts. Certainly, courts requiring guilty pleas from participants for admission must demonstrate that a plea was made knowingly and voluntarily on the record. Even when appropriate procedures are observed to safeguard voluntariness in special courts, some critics argue that the choice (between, for example, drug court and jail) is a coerced choice. The question of voluntariness is even more difficult for mental health courts. Although all the same legal issues dealt with in drug courts, domestic violence courts and community courts exist for persons entering the mental health courts examined in this report, they must also confront questions about a person's mental capacity and ability to comprehend the proceedings and the options being provided. Competency is a threshold issue that must be decided before an individual can be considered as a mental health court candidate in each of the courts. However, even among those deemed competent to stand trial, serious questions may be raised about the ability of persons to really understand the choices being presented and the consequences of those choices (e.g., going to trial or participating in the mental health court in one of several possible legal statuses). If a requirement for voluntary participation in the special courts is not only competency as legally defined, but also an ability to understand and make reasonable decisions, then achieving voluntariness among mentally ill or disabled treatment candidates is a challenging proposition indeed. In the mental health courts, it means that sufficient time must be taken by defense counsel and by the court itself to make certain that the candidate's decision to enter the mental health court is in fact voluntary. This means having a grasp, beyond the threshold question of competency, of a defendant's mental condition. The potential fear is that defense counsel and/or the court may make decisions in the candidate's best interest when in fact the candidate, though competent, is thoroughly confused and afraid. Conflict Between Criminal Justice and Mental Health Treatment Goals A challenge in the design of each type of problem-solving court was the need to craft an approach that resolved conflicts in values and goals inherent in criminal justice and treatment orientations (Goldkamp, 1999). For example, when substance abuse treatment professionals might stress tolerance for relapse and erratic performance (or a positive drug test) by drug abusers as part of the therapeutic process, criminal courts might normally be inclined to revoke conditional release (probation) and impose sanctions. While the criminal process might need to proceed expeditiously to adjudicate criminal charges, mental health professionals require time to diagnose the mentally ill defendant's condition, take immediate steps to stabilize the defendant and then to place the defendant in appropriate supportive services for treatment. From the perspective of mental health treatment, potentially the worst experience for many mentally ill persons would be arrest, jail and formal proceedings in the criminal court. In short, these conflicts in method, aims, values and style pose a particular challenge in the emerging mental health court initiatives to produce a hybrid model that attends to the basic requirements of each. Defining Success The drug court treatment process, from which the mental health court approach was adapted, was structured around clear phases of treatment through which a participant passed on the way to graduation. Requirements for graduation were clearly specified and typically included minimum periods of testing negatively for drugs of abuse, completion of all treatment activities, payment of fees, etc. Drug court participants therefore were able to chart their progress against clear expectations and rules for completion of the program. Charting a course for successful completion of requirements of the mental health court treatment process is more complex. Mental health court participants may suffer from a variety of symptoms and illnesses and, thus, lack a common starting point. The steps necessary to stabilize participants and to situate them in living situations that will maximize their effective functioning are likely to differ considerably from individual to individual. While a goal for substance abusers can clearly and measurably be abstinence within the timeframe of the drug court treatment program, such a practical framework is not so readily available in the treatment of mental illness. Courts cannot say, "be cured within 12 months." They can expect that participants successfully follow the steps to improved functioning outlined in a treatment plan agreed upon by the participant and the mental health professionals. Thus, the challenge for setting achievable milestones for mental health court professionals is more complex and the functional equivalent of graduation may differ considerably from individual to individual. Range of Responses to Participant Behavior/Performance To an observer of other problem-solving courts, particularly drug courts where some of the in-court techniques were first developed, the mental health court model faces special challenges in devising responses to participant performance in treatment. One might argue that the experience of drug courts in the United States suggests that drug abusers respond well to a very structured system of incentives and sanctions when moving through the treatment process toward sobriety and improved functionality. These approaches are crafted based on assumptions about the behaviors of addicted persons, including a belief that very basic lessons and behaviors may have to be taught and retaught for substance abuse treatment to be successful. Many drug courts have devised a rich range of responses rewarding participants for forward progress through treatment stages (until graduation). When these elements of the drug court model are applied to the mentally ill and disabled in the criminal justice system, the translation of the "rewards and sanctions" approach to mental health courts raises some difficult challenges. It is apparent that, because of the nature of mental illness (as compared to substance abuse or domestic violence), judicial responses have to be more generally encouraging and supportive as the court process seeks to move mentally ill and disabled participants into treatment and supportive services. Thus, depending on a defendant's illness, the judge's repertoire may need to draw on a wider range of incentives and supportive responses to participant progress than other problem-solving courts. The notion that mental health courts should also call upon sanctions for poor performance is more difficult. In some cases, it may be clinically appropriate to employ the kinds of sanctions employed by drug courts in responding to noncompliance in treatment, including returning participants to earlier and more restrictive treatment stages or, even, making use of jail in selective instances. In other types of cases, however, it may be questionable as to whether sanctions (based on assumptions of deterrence) are at all appropriate to produce the improved mental health outcomes desired. Real questions, therefore, are raised about how the coercive power of the courts can be channeled to promote the goals of mental health treatment. Can a court sanction a defendant who fails to take medication? Does a court sanction a defendant who has difficulty functioning and understands little of the current circumstances or expectations due to mental illness? Community Linkage and Resources A critical element of the emerging mental health court model involves identification of the necessary treatment and related services in the community and the development of an effective working arrangement between the courts and the service providers that helps place participants in appropriate services, and moves them out of jail, as quickly as possible. Moreover, the model is premised on a working relationship, as represented by the dedicated team approach, that facilitates ongoing supervision and case-management. Two important problems are faced by the mental health court approach. First, if it is true that the court system finds itself having to address the needs of the mentally ill population, it is at least partly because existing institutions and services in the community (at least outside of criminal justice) have failed to serve this population. There is some irony, then, in designing a program that uses the court to place mentally ill and disabled participants in those very systems. Secondly, if the rationale for making use of these existing services is that the mental health court creates a new, synergistic relationship that improve both the court and treatment approaches, then the actual availability of these services and the resources to support them becomes a critical concern. A mental health court approach with a large population of persons in need of treatment but few services available in the area may have great difficulty in delivering treatment. Moreover, even when services are available and providers are enthusiastic about the court-based mental health treatment approach, effective identification of candidates in the criminal justice population risks placing a new and large demand on treatment resources. Each of the mental health courts described in this report have identified potentially large populations of mentally ill and disabled defendants who are in need of mental health and related supportive services. Each has also found that treatment resources and funding are insufficient for the populations they are serving and plan to serve in the near future. When resources exist, they do not adequately provide the type or range of services the mentally ill and disabled persons in the criminal justice population require. Mental Health Courts as a Community Justice Initiative The mental health court strategy shares with prior problem-solving court undertakings the fact that a difficult problem has not been adequately dealt with through community institutions and services. Presumptively, effective community interventions could prevent the need to find and treat mentally ill citizens in the criminal justice system. The criminal behavior of the mentally ill ranges from nuisance and quality-of-life levels to more serious offenses that sometimes endanger themselves or other citizens. Although there are a range of behaviors associated with the mentally ill and disabled, it is highly unlikely that they have gone unnoticed in the community until their encounters with the criminal justice system. In fact, the presence of untreated, low-level mentally ill offenders represents an important quality of life and community justice concern in many localities. Because other community networks or institutions have not effectively treated and supported the mentally ill-because community-based safety nets have failed-they enter the justice system, usually involved in minor, nuisance, and quality of life offenses. Often, by then, they have other serious problems-such as alcohol or other drug addiction, housing, employment and physical health problems-that also have not been addressed. In many instances, the mentally ill or disabled find themselves in criminal justice primarily because of their mental illness and their inability to connect with or stay in supportive community-based treatment services. Like the other special court approaches, the mental health courts described in this report attempt to address the problems of their target populations on two levels: o By dealing with their problems in the criminal justice system. o By building linkages to community services and support structures that have for a variety of reasons failed to reach them prior to their criminal justice involvement. Each of the mental health courts discussed has developed strategies for identifying mentally ill and disabled offenders at the earliest stages of processing, sometimes involving contacts from police officers at the arrest stage. Each jurisdiction has taken steps to implement early screening procedures to evaluate candidates for the court treatment process as soon as possible so that unnecessary delay, criminal justice processing, and jail confinement can be avoided. Each of the courts began with a primary focus on defendants entering the criminal process shortly after arrest, but expanded to accept referrals from other courts, attorneys, police, friends, relatives or other community contacts aware of mentally ill or disabled individuals caught up in the justice system. Each of the courts established a close link to the local jail, so that mentally ill inmates could be identified and admitted to the mental health court treatment process, at whatever stage of processing in the criminal justice system. In short, consolidating justice procedures to identify and enroll candidates in treatment has been an aim of these first pioneering mental health courts. In each case, the in-house approach is closely tied to a focus on community treatment resources and linkages. Depending on the kinds of illnesses evidenced and the types of resources available in their locales, each of the early mental health courts takes steps to place participants in community-based treatment services, either immediately or after initial crises are addressed and individuals are stabilized. Each court emphasizes the importance of proper and timely diagnosis and of placement in proper treatment and supportive care services, where they exist. Each court builds the treatment process around court supervision as a critical, core element ensuring both that enrolling participants cooperate and that appropriate services are indeed provided. At the core of the mental health court approach is a newly established working relationship between the supervising court and community mental health treatment and related services. Mental health courts, in this regard, represent important court-based community justice initiatives. They are strengthening the effectiveness of community mental health treatment approaches by offering their close attention and supervision. They are returning mentally ill persons from custody and processing in the criminal justice system to the community to function there. They are encouraging community-based justice and health approaches that would prevent mentally ill and disabled individuals from entering the justice system in the first place. Thus, successful court strategies would ideally put themselves out of business: they would find far fewer mentally ill persons in criminal justice, because they would be more effectively and appropriately dealt with through improved community intervention, services and support mechanisms. ---------------------------- Chapter 1 ---------------------------- Introduction American jails and prisons have long struggled with problems associated with mentally ill persons in their care and custody (Fosdick et al., 1922: 440-443; Beeley, 1927; National Commission on Law Observance and Enforcement 1931; National Advisory Commission on Criminal Justice Standards and Goals 1973; Mattick, 1975; American Bar Association, 1986; 1989; Matthews, 1970; McFarland et al., 1989). The challenges faced by jails in managing mentally ill persons in their custody have been particularly acute (Steadman and Veysey, 1997; Abram and Teplin, 1991; Teplin, 1990 Henderson, 1998). With scarce resources, local jails have traditionally had difficulty in providing adequate mental health treatment services to inmates who may be in their care for relatively short stays, often in a mix of legal statuses. Although jail populations have accounted for high concentrations of persons with mental health problems, most justice agencies deal with individuals with serious mental health issues, in areas ranging from the most minor to the most serious criminal matters, from criminal trespass and disorderly conduct to capital cases (Matthews, 1970; McFarland et al., 1989; Wolff, 1998, Harris and Koepsell, 1998). Public perception of the mentally ill offender may be most dramatically shaped by incidents of random violence in the community as treated by the mass media-which appear far too common-and include the beliefs that mental illness contributes to high rates of recidivism. The concern for mental disability or illness in the criminal justice population is, as a matter of legal philosophy, traditional. In fact, the normal adjudication process is bounded by concerns for the mental capacity and adequate functioning of defendants and offenders. At the early stages, participation in the criminal process is premised on the assumption that a defendant is mentally competent to participate in and understand the proceedings (Winnick, 1995). Criminal responsibility and assignment of punishment are limited by questions of insanity and guilty-but-mentally-ill.[1] Beyond these special issues, however, it is unarguable historically that persons with mental illness have always been found in criminal justice populations and have posed longstanding and stubborn issues for justice agencies and institutions. A recent Bureau of Justice Statistics survey (1999), estimating conservatively that 238,000 mentally ill offenders were incarcerated in American prisons and jails in 1998, underscores the magnitude of the problem currently dealt with by correctional agencies nationwide. This number represents 16 percent of all state prison and local jail inmates, and 7 percent of Federal prisoners. When the massive volumes of arrests,[2] criminal cases processed,[3] police contacts with citizens, persons supervised by pretrial services, and probation and parole agencies are also taken into account, the numbers of mentally ill persons dealt with and/or supervised by the criminal justice system on a routine basis in the United States is extraordinarily large. Several developments may account cumulatively for the current state-of-affairs represented by the mentally ill in the American criminal justice systems. The deinstitutionalization movement in mental health during the 1960s and 1970s (Whitmer, 1979) had the foreseeable result of diverting greater numbers of persons with serious mental illness into the community. As the hoped-for community-based mental health treatment system was not effectively realized, by default, the criminal justice system increasingly absorbed individuals who were not able to function acceptably and independently in the community. This phenomenon was aggravated by the dramatic increase in homeless populations in American cities and towns during the 1970s, 1980s, and 1990s, among which the mentally ill were, also predictably, well represented (Smith, 1996; Solomon et al, 1992; Snow, 1989). Many mentally ill suffer from co-occurring disorders, often including substance abuse[4] (Abram and Teplin, 1991). The enforcement efforts of the "War Against Drugs" of the mid-1980s and early 1990s directed against drug offenders inadvertently fostered increases in arrests and prosecutions of drug-involved offenders with mental illness. Moreover, recent law enforcement strategies emphasizing strict enforcement of "quality-of-life" offenses and local ordinance violations have added to the probability that the mentally ill (and particularly the homeless mentally ill) will find themselves increasingly involved in the criminal justice system for minor offenses. Together, these factors have contributed to the perception that, for the mentally ill and the substance-abuse-involved, the criminal justice system has increasingly come to serve as the "social service system of last resort."[5] Setting the Stage for Court Responses to Mental Illness in Criminal Justice Caseloads: Recent Precursors to Mental Health Courts The potentially large numbers of mentally ill persons in the criminal justice population have in common a processing in the criminal courts. Simple math suggests that the potential impact of the problems associated with the mentally ill on the judiciary in disposing of its criminal caseload is significant. Beyond the relatively infrequent special judicial determinations relating to civil commitment, competency, insanity and guilty-but-mentally-ill defenses, mentally ill defendants and offenders raise a more general challenge to normal case processing, when it appears that patterns of offending are explained by mental illness or disability and/or that effective treatment could control or prevent the occurrence of such patterns. Two more recent developments have played an influential role in the emergence of mental health courts: the national crisis of overcrowding in local jails and the development of drug courts. At the conclusion of the 1980s, jails in many American jurisdictions reached critically overcrowded levels, driven in part by the large increases in arrests for drug-related crimes. This meant that in addition to previously unknown concentrations of substance abuse involved inmates, they also had to deal with growing numbers of inmates with mental health problems. Court systems in the most crowded jurisdictions participated in systemwide review of practices and problems that contributed to delays in processing and to the avoidable use of confinement of defendants and offenders in local jail facilities. Whether in response to Federal lawsuits or the need to address system dysfunction, many jurisdictions developed strategies to improve justice practices and implemented alternatives to routine processing and incarceration. To do this, they focused on the categories of inmates that contributed most to the excessive jail population levels, including drug offenders. The "decarceration" of categories of inmates in local jails, through emergency release procedures or more planned system improvements, forced local criminal justice systems to devise strategies to manage higher-risk defendants and offenders in the community. Key in most significant alternatives to incarceration or system improvement strategies were the criminal courts, because their procedures for organizing and disposing of the criminal cases and their uses of local confinement at pre- and post-conviction stages were the dominant influence on the local correctional population. At the end of the 1980s and the beginning of the 1990s, as drug enforcement expanded and criminal penalties for drug offenses increased, reform strategies inexorably sought to come to grips with the drug-related criminal caseload and drug offenders who were confined in state and local institutions. Thus, local justice systems faced the prospect of handling greater numbers of higher-risk and often drug-involved offenders in the community. The development of drug courts was prompted by the crowding crisis in the jails and criminal caseload crises in the courts. Against the system strains brought on by the crack/cocaine epidemic and drug enforcement efforts, the "invention" of the nation's first treatment drug court in the Dade County (Miami), Florida, court system in 1989 represented a major reform milestone in American criminal courts in a number of ways. First, the philosophy underlying the Miami Drug Court departed sharply from the traditional process-and-punish orientation of large criminal court systems. Overwhelmed by unparalleled increases in the drug-related felony caseload, the Miami court leaders, the prosecutor (Janet Reno) and the public defender decided to reject "more of the same." The Miami system had shown that more enforcement, faster adjudication, more severe penalties and, even new jails had not reduced drug crime. However, they had clearly overburdened the resources of the local criminal justice system and, with a seemingly inexhaustible supply of drug offenders, there appeared to be no end in sight. To respond to this situation, Miami justice leaders designed what Attorney General Reno describes as a "carrot-and-stick" approach to provide drug treatment to felony offenders through a different use of the criminal court as a treatment catalyst and therapeutic tool. The drug court movement is described elsewhere in detail.[6] Its relevance to understanding the emergence of mental health courts stems first in its philosophical breakthrough, that is, the decision that criminal courts could appropriately intervene to "treat" addicted offenders, and also in its provision of a significant alternative to confinement in the local or state correctional systems. The reasoning was simple and recognized the principle that to reduce drug crime it made sense to tackle its cause: substance abuse. In addition to its tough-minded but helping philosophy, the Miami Drug Court departed from the traditional hands-off approach of the judiciary, which reflected a belief that the myriad social problems in the lives of offenders were not the responsibility of the courts to address. (This included a strong belief that judges were not social workers.) The judicial philosophy behind the Miami Drug Court was, instead, hands-on, arguing in sharp contrast that the criminal court judge and criminal courtroom could play a major role in getting offenders off drugs and setting them in the direction of more productive and law-abiding lifestyles. Another revolutionary element of the Miami innovation was the development of a new working relationship between (drug treatment and other health) professionals and the criminal court. The Drug Court was based operationally on multidisciplinary teamwork and cooperation at all stages (although led and supervised by the judge). The success of the drug court idea in the United States and abroad is now well-known. The Miami approach struck such a chord among other localities and court systems that first one, then a handful, and then hundreds of other court systems adapted the treatment court model to address their own local drug crime problems. Remarkably, the drug court model of demand reduction among substance abusing offenders is now supported through a variety of state and federal funding sources with a dedicated office in the Department of Justice (the Drug Court Program Office of the Office of Justice Programs). More important for understanding the emergence of mental health court strategies than the apparent popularity of the Miami innovation, is the fact that the Miami Drug Court opened the door to direct judicial involvement in dealing with the significant problems associated with large numbers of persons in the criminal caseload, and in focusing on substance abuse. The proactive, hands-on, problem-solving model pioneered in Miami accomplished much more than just to help proliferate the drug court model across the nation. It broke down important barriers that made possible other court-based justice innovations that continue to reshape American courts. Spin-off innovations include the Midtown Community Court and a whole second generation of community courts, a growing number of domestic violence courts, court-initiated programs focusing specifically on female offenders and their treatment needs, and other special court approaches dealing with problem populations making up the criminal caseload. The drug court innovation set the stage for other special court approaches, including mental health courts, by providing a model for active judicial problem solving in dealing with special populations in the criminal caseload. But, in addition and not coincidentally, as the involved judiciary learned more about substance abuse and serious addiction among offenders, they also learned more about disorders, such as serious mental illness and disabilities, frequently co-occurring with substance abuse. In fact, as drug courts became more efficient at identifying candidates and providing treatment, the prevalence of mental illness in the substance-abusing justice population became increasingly apparent. Earlier Prototypes: Special Court-Centered Judicial Precursors to Mental Health Courts The criminal justice system generally, and particularly the courts in considering probation, the jails in housing inmates locally for short periods, and the police in enforcing nuisance offenses have struggled with the problems posed by mentally ill defendants and offenders for decades. The very recent emergence of the mental health court approach in a handful of jurisdictions does have parallels, if not direct origins, in earlier court-centered initiatives dealing with mentally ill offenders in the 1960s. Matthews (1970), for example, describes "court-centered mechanisms" for "therapeutic disposition" of cases of defendants exhibiting mental illness in the Municipal Court of Chicago and the Supreme Court of the City of New York. Matthews reports that early in the 1960s, the Municipal Court of Chicago had jurisdiction over misdemeanors and sat as committing magistrates for felony cases. The Psychiatric Institute, which was administratively attached to the court, had two divisions. One was housed in the same police headquarters building as the misdemeanor branch of the court and handled misdemeanor referrals. The other, an in-patient facility, was located at the main city jail next to the building housing the felony branch of the municipal court. The primary function of the Institute was to make psychiatric evaluations on issues of competency to stand trial and on issues of criminal responsibility of defendants charged with felonies. If the Institute found that a felony defendant referred for evaluation was suffering from a mental illness, and the gravity of the crime or the danger posed by the defendant was not too serious, it could recommend alternatives to criminal justice sanctions, including civil commitment or, in the case of minor felonies, out-patient therapy as a condition of probation. Cases were sent back to criminal court when mental disorder was not found or was found to be irrelevant to the crime charged. Misdemeanor defendants were referred to the Institute by administrative order, often by the arresting officer or by the judge after observing odd behavior in a pretrial hearing. Such cases usually involved defendants who were unable to make bail or afford the services of private counsel. Although there was no legal basis for the referral, there was little objection to it. Public defenders did not object, as the referral often led to a nonpenal disposition for the defendant. A psychologist and a psychiatric social worker interviewed the defendant. The psychiatrist would then prepare a letter for the court containing sentencing recommendations for non-criminal dispositions that were almost always followed. In 1 year, according to Matthews (1970:180), Institute referrals resulted in the diversion of 1,729 mentally ill offenders. Recommendations included out-patient treatment in a clinic or office, out-patient neurological treatment, and alcohol treatment, but most of the recommendations were for civil commitment. In addition to the evaluations and recommendations, the Institute provided temporary clinical custody for referred defendants and made the arrangements for the therapeutic dispositions. When referrals resulted in therapeutic dispositions, the criminal charges were routinely dismissed. According to Matthews (1970:186-92) the New York procedure through which mentally ill defendants were diverted to the health care system was more likely to occur at the time of arrest than after the case had gotten to the courtroom, as in Chicago. He describes the emergency detention procedure in New York as more effective in producing referrals than the Chicago model because it was easier for police to access.[7] Male arrestees were taken to Bellevue Hospital, while females were taken to Elmhurst Hospital. Both Hospitals had prison wards that were administered by the department of corrections, a connection that facilitated interactions between the criminal justice system and the mental health system in New York City. When defendants were referred for competency/responsibility evaluations by the court, according to Matthews (1970:187) they were committed by court order to 30 days of in-patient observation and examination. Felony defendants were given a hearing in the prison ward, of which a transcript was kept. The hospital prepared a report and recommendation for the court that included medical opinions regarding the defendant's ability to get along outside of the hospital and/or on probation, and relating to the defendant's criminal responsibility and competency to stand trial. When a noncriminal disposition was proposed, a treatment plan was prepared. If a felony defendant was found incompetent, New York law mandated commitment to Mattawan State Hospital. Civil commitment was often recommended in the cases of incompetent misdemeanor defendants. The court frequently followed the medical recommendation for nonpenal dispositions. Elmhurst Hospital generally arranged the treatment program and began treating its female patients before the case was referred back to court for final disposition. Bellevue did not arrange for the treatment of the male patients processed there. Early Mental Health Court Approaches in Four Jurisdictions The recent emergence of mental health court strategies can be understood in part against the background of longstanding criminal justice difficulties in dealing with mentally ill persons, earlier court-based initiatives, the deinstitutionalizing of the mentally ill, the pressures of jail crowding, the exploding drug caseloads, and, more recently, the alternative judicial philosophy and methods of the treatment drug court model. Momentum for the development and implementation of such initiatives has also been created by dramatic incidents involving random violence, focusing public, media, political and criminal justice system attention on the problems of the mentally ill in the criminal justice system. Within this historical context, this report examines four pioneering mental health courts to identify common, critical ingredients that may form basic elements of a mental health court model, as this judicial problem-solving strategy becomes more prominent. At the time of this writing, the mental health court initiatives in Broward County, Florida; King County, Washington; Anchorage, Alaska; and San Bernardino, California, represent the first judge-supervised, court-based innovations designed to address the problems of mentally ill defendants and offenders in the criminal caseload in the United States. ---------------------------- Chapter 2 ---------------------------- The Broward County (Fort Lauderdale) Mental Health Court Target Problem and Rationale The Broward County judicial strategy, focusing on misdemeanor cases in County Court, grew out of a recommendation of a multiagency Criminal Justice Mental Health Task Force formed in 1994 to address broad concerns about the mentally ill in the criminal justice-and particularly the local correctional-population. The task force, led by Circuit Court Judge Mark A. Speiser, was convened in response to a series of incidents involving mentally ill offenders, including suicides of persons incarcerated in local facilities. The task force included community leaders, state and county government officials, mental health advocates, mental health providers, and law enforcement representatives. Their goal was to develop a system of care for mentally ill defendants and to devise ways to integrate and more closely link the community-based mental health care system with the criminal justice system. The work of the task force was given momentum when, as the result of efforts of a local criminal defense attorney, a grand jury was formed to investigate the treatment of the mentally ill in the jails. The grand jury later issued a highly critical report.[8] The Broward task force concluded that the normal criminal process dealt poorly with the mentally ill offender and recommended establishing a mental health court as one of its core strategies for improvement. The proposed mental health court would adopt special procedures to deal primarily with the misdemeanor population by intervening early in the process to divert low-level offenders from routine case processing and to place them in appropriate treatment services under the care of mental health professionals and the supervision of the mental health court judge. County Court Judge Ginger Lerner-Wren was appointed to preside over the nation's first mental health court, which began operation June 6, 1997, in Broward County in Florida's 17th Judicial Circuit by administrative order of its Chief Judge, the Honorable Dale Ross. Target Population The Broward County Mental Health Court was begun as a part-time court designed to respond on an as-needed basis to an unknown volume of cases involving mentally ill misdemeanor defendants. The decision to intervene in misdemeanor cases was intended as a prevention strategy to target defendants who, without treatment and supportive services, could become involved in more serious matters at a later time when appropriate treatment would be more difficult to arrange. The Broward Mental Health Court currently accepts and screens mentally ill defendants charged with a range of misdemeanor offenses (which carry a statutory maximum of 1 year in jail under Florida law). Defendants charged with driving-under-the-influence (of alcohol or a controlled substance) or with domestic violence are ineligible because separate court programs are already in place to handle these types of cases. In addition, defendants charged with misdemeanor battery are eligible only with the consent of their victim. Because the Mental Health Court was designed to deal with minor offenders who, because of their illness, return frequently to the criminal justice system, the Broward Court accepts defendants with prior convictions. Defendants with criminal histories that include violent crime are carefully screened to avoid involving defendants who pose an extreme threat to public safety. However, if a candidate with crimes of violence on their record expresses a genuine desire to participate and nothing prevents the candidate from achieving therapeutic gains, he or she may be admitted into treatment court.[9] Beyond current charges and prior criminal history, potentially eligible misdemeanor defendants must have been diagnosed with an Axis I mental illness,[10] have an organic brain injury or head trauma, or be developmentally disabled. Use of these clinical criteria in screening potential candidates was intended to ensure that the Mental Health Court would focus its resources on the seriously mentally ill or disabled in the misdemeanor population. Program statistics maintained by the Broward Mental Health Court indicate that from July of 1997 through September 1999, 882 cases were placed under Mental Health Court jurisdiction. As of September 29, 1999, a total of 445 cases were disposed since the program's inception in the summer of 1997. According to court data, the typical court participant is male and is between the ages of 28 and 54. About 21 percent had at least one prior misdemeanor arrest, and 17 percent had prior felony arrests. One of four mentally ill participants entering the Court during that year was diagnosed as having a co-occurring substance abuse disorder. Out of the 469 new participants who entered the program between July 1998 and September 1999, 26 percent were homeless. Broward County Mental Health Court Procedure By design, the Broward Mental Health Court seeks to identify and intervene in the cases of mentally ill defendants as early as possible in the misdemeanor criminal process. (For an overview of the Broward County Mental Health Court procedure, see Figure 1.) The Mental Health Court serves principally as a pre-adjudication diversion program, although there is some flexibility in accepting candidates that are identified in later processing stages, including defendants who may have been convicted and placed on probation by other judges in traditional court. The Court's rationale in focusing on pre-adjudication intervention in misdemeanor cases is to avoid criminalizing mental health problems by preventing the unnecessary (and counterproductive) use of confinement and further criminal processing. Instead, the Court seeks to link mentally ill arrestees to appropriate diagnostic and treatment services. A guiding premise for the initiative is that jail and formal adjudication will do little to address the reasons for the involvement of mentally ill individuals in the justice system, will probably exacerbate their conditions, and will likely contribute to their recycling in and out of criminal court. Many candidates for Broward Mental Health Court are identified at the misdemeanor bail stage (probable cause/bond hearing stage) within 24 hours of their arrest. Clinicians (advanced doctoral students from Nova Southeastern University) assigned to the Public Defender's office screen in-custody defendants for mental illness prior to the first probable cause/ bond hearing. Any inmate who has visible mental health issues during intake at the jail, or who admits to any past contact with the mental health system will be housed in the mental health section of the jail pending a full assessment of his status by the EMSA psychiatrist. When symptoms of mental illness are found at the clinical screening interview, the Defender informs the court about the defendant's situation during the hearing, which is generally conducted via closed circuit TV. The County Court Magistrate presiding at the bond hearing refers possible candidates to Mental Health Court the same day or the next day depending on the time of arrest. The Mental Health Court judge sees defendants referred from the in-custody screening process and other first referrals every day at 11:30 a.m. Referrals also include some jailed defendants who were not identified at earlier proceedings and who are being held in custody pending a probable cause hearing or other pre-adjudication proceedings. These defendants are screened by Emergency Medical Services Associated (EMSA), which contracts with the jail to provide mental health, medical and dental services to the inmates. When the evaluation finds that a defendant poses a danger to himself or others, the psychiatrist seeks an order from the judge to transport the defendant to a crisis center for stabilization. Defendants who are found to have mental health problems but deemed stable are referred to Mental Health Court. In addition, other judges may refer misdemeanor defendants to the Court if they believe them to have serious mental health problems. Out-of-custody defendants on pretrial release, who have been issued citations and dates to appear in court, can be referred to the Mental Health Court by the magistrate, the defense attorney, the police, the defendant's family, or their mental health caseworker. In each instance, whether from jail custody or out of custody awaiting a hearing, an attempt is made to have the defendant appear in Mental Health Court as soon as possible, often within a few hours. Out-of-custody defendants are generally not processed as quickly as in-custody defendants because their arraignment dates are scheduled later than in-custody defendants and they are not subject to mental health screening. Once they are referred to the Mental Health Court, however, they are generally scheduled to appear in Mental Health Court within 24 hours. Mental Health Court staff has estimated that as many as 30 percent of misdemeanor defendants making their first appearance in Mental Health Court are acutely ill. In cases when an acute episode may have triggered the offense, the defendant may still be unstable when appearing before the Mental Health Court judge. In such instances, the judge seeks to put the defendant in the care of medical services to stabilize the defendant's symptoms. This involves sending defendants to the 19th Street Crisis Center, or other receiving facility for an independent evaluation under the Public Health statute, Title XXIX, Chapter 394, to determine whether an involuntary civil commitment is necessary. The statute requires that the evaluation be completed within 72 hours of arrest. If the results of the evaluation indicate that the defendant is a candidate for commitment, the General Master holds a hearing at the facility to determine whether commitment is appropriate. If long term hospitalization is deemed necessary, the defendant may be involuntarily committed for up to 6 months at the South Florida State Hospital until stabilized. These defendants typically are not returned to Mental Health Court, and charges are ultimately dismissed. If the defendant is retained at the crisis center for short-term stabilization, and then are deemed to be stable, they are returned to Mental Health Court for further action. Upon the return of the defendant to mental health court, a status hearing is held, where one of the first issues addressed is competency. When defendants are believed to be incompetent, the judge enters an order requiring that they be evaluated for competency. If the defendant is in custody, the evaluation may be done at the holding facility. Out-of-custody defendants are ordered to attend the evaluation. If the evaluation confirms incompetency, the court will order a conditional release subject to treatment and special provisions for adequate supervision and/or out-patient services. Defendants with no suitable living arrangements are housed at the court's transitional housing facility, Cottages on the Pines. The Mental Health Court judge requires that conditions of release be observed and receives periodic reports on the defendant's compliance with the conditions from the agencies handling his care.[11] During this process, the state maintains jurisdiction over the criminal case for 12 months. If competency is not restored within this time period, the charges are dismissed and the individual will be evaluated to determine whether civil commitment is necessary. Once the competency issue has been resolved, a probable cause hearing is held in Mental Health Court to review the basis of the charges. Defendants are advised in open court about the nature of the Mental Health Court treatment process, what would be done for them and what would be expected from them if they decided to participate. Also discussed are all issues involving housing, the defendant's prior criminal history and public safety, as well as how the defendant feels and is looking for in terms of community services. Family members are encouraged to be at all hearings, and their input, concerns and needs are a key to understanding the candidate's history and current needs. Participation of eligible candidates in the mental health court process is voluntary. The Mental Health Court judge considers the information presented from criminal justice and mental health professionals to decide whether a particular candidate can be helped by the Court's services. The judge may decide, for example, that a defendant's needs are so extreme as to best be addressed through other resources, or, if the defendant is already engaged in treatment, taking medication and living in a stable environment, that supervision is not needed. In such a case, the judge may resolve the charges right away to permit the defendant to go forward with treatment outside of the criminal justice setting. Otherwise, the defendant is given the option of entering treatment under the supervision of the Court after consulting with an attorney and being interviewed by mental health professionals. Following the defendant's agreement to participate in the Mental Health Court, the state's attorney may hold the criminal charges in abeyance, pending ongoing review of progress in treatment.[12] The Mental Health Court can monitor cases for up to 1 year. The actual length of supervision of the defendant by the Mental Health Court varies on an individual basis, depending on the particular needs and progress of each defendant. Defendants who participate in the appropriate mental health services, stabilize and perform well in the community may have court supervision terminated before the end of 1 year. Once treatment is completed (and after consulting with the mental health professionals, defense and prosecution, the defendant and, in some cases, family members), the judge may resolve the charges. Defendants with minor charges and no criminal history may have the charges dismissed with the consent of the prosecutor. In most cases, adjudication is withheld, meaning that there is a record of the arrest and treatment court disposition, but no adjudication is ever entered. During the treatment process, participants regularly report to Mental Health Court so that the judge can review their progress. Status review hearings are held periodically on an as-needed basis determined by the judge, but usually after 2, 3, and finally 4-week intervals, as participants demonstrate satisfactory progress. An observer of status reviews is struck by the problem-solving nature of these hearings, as the judge draws on the staff to help first solve any treatment-related concerns and criminal justice issues defendants may be facing and to encourage the defendant's full participation in the individualized, therapeutic treatment process. Defendants with minor or nuisance charges are assisted in accessing mental health treatment services and may be released into the transitional housing reserved for Mental Health Court participants or placed into a residential treatment program until other appropriate placement can be arranged. A review hearing may be held to check on participant progress. Once the defendant is stable and following the treatment regimen, charges may be resolved early through dismissal or withholding of adjudication. In eligible cases involving more serious charges and criminal history, defendants may be released on their own recognizance (ROR) if they participate in the Mental Health Court treatment process and follow the agreed upon treatment plan. The plan may include residing in an appropriate setting (e.g., residential treatment or transitional housing and day treatment). Defendants participating in the Mental Health Court while on pretrial release are supervised by a case manager who stays in contact with them and ensures that court recommendations are followed. When difficulties arise, the case manager reports violations of the agreement to the court (mental health) monitor, who reports the violation and requests a hearing before the judge. Criminal charges are not disposed of until after the participant has been shown to be stable and has performed consistently in treatment, long enough to demonstrate responsibility. When these standards have been met, the charges are resolved, most often through withholding of adjudication. In the most serious eligible misdemeanor cases, a plea may be taken with credit given for time served in the Mental Health Court treatment process. In this situation, a conviction is recorded but the defendant has still had access to mental health services. The Treatment Approach in the Broward County Mental Health Court The debate first instigated by the establishment of drug courts about the appropriateness of courts serving as the "social service institution of last resort" (and the social worker role of the judge) was already partly academic by the time the Broward Mental Health Court was established. Like the earliest drug courts, the Broward County Mental Health Court grew out of the recognition that community treatment and social service agencies simply had not engaged a large part of the local populations with serious behavioral health needs, persons who would find their way into the criminal justice population. This understanding of the reason for the prevalence of serious mental health problems in the criminal justice population was based on a perception that community-based treatment services had failed mentally ill citizens in important ways. They had failed to locate them, to engage them in services, and to keep them stable and in treatment. According to this understanding, the mentally ill, like the substance abusers addressed by drug courts, form an elusive population that, due to its nature, is characterized by individuals who do not perform simple functions well. Both populations are made up of people who routinely do not hold jobs, make and keep appointments (e.g., with treatment agencies) or function predictably and consistently-except in a negative sense. Recognizing that the social service and treatment failure that has allowed so many mentally ill individuals fall through the cracks and be without services, the Broward Mental Health Court has sought to identify and, through clinical assessment, facilitate treatment for misdemeanants with mental illness. The court's goals include helping defendants access appropriate treatment and services to improve their functionality and quality of life in society, promoting personal responsibility, and enabling participants to manage their own mental health needs and coordinating fragmented mental health services through the Mental Health Court process and under the strict supervision of a judge. The courtroom is a critical arena for the therapeutic process in the Broward Mental Health Court. Borrowing again from the method of drug courts, the Broward Mental Health Court was designed to be informal, often involving interaction and dialogue between the judge and the participant about problems and treatment options. Just as the drug court model involves a therapeutic view of the addict and employs clinical terminology about addiction and recovery, the Broward Court incorporates a respectful and helpful manner toward participants, makes careful use of language that is sensitive to the issues related to mental illness, and is informed by an understanding of the nature and treatment of mental illness. The Broward Court adopts a supportive, instructive, problem-solving and understanding style in presiding over the special calendar of the Mental Health Court, and avoids threatening or punitive language, or language that might contribute to labeling or stereotyping. In other words, the informal style of the Mental Health Court is designed to reflect the methods of mental health treatment and to contribute to the improved mental health of its participants. The Broward Mental Health Court employs a team model based on a great deal of consultation and cross-disciplinary input, although there is no doubt that the judge is the leader of the group problem-solving that transpires and has final responsibility for all decisions. The court personnel are not rotated into the assignment on a short-term basis, but rather have become specialists in dealing with the mentally ill in the justice setting. In addition to the judge, court personnel include a prosecuting attorney (sometimes two because of overlapping city and county jurisdiction in misdemeanors), a representative of the jail, the public defender, the court monitor, a forensic social worker, and a case manager. All are specifically assigned to Mental Health Court and have considerable background, experience and interest in the problems of the mentally ill in the justice system. The team approach contributes to an active courtroom that seems to have a variety of activities going on simultaneously, rather than a one-case-at-a-time orientation. The judge may be dealing with several cases simultaneously and asking various staff to investigate, interview, make calls for placements, or compile necessary information to resolve the statuses of persons appearing before her, some for the first time, others for regular status reviews. Not many issues are postponed; rather the judge seeks to have answers and problems solved before sending a participant out of the courtroom or back to jail to await another hearing. With each of the appropriate agencies and functions represented in the courtroom, the judge is able to craft and implement a response and to request necessary action and follow-up on the spot. The issues dealt with by the Broward Mental Health Court judge cover a wide range of problems, from getting a newly arrested person to identify herself and to understand where she is, to arranging for immediate medical care for individuals who have been off medication and are unable to function, to seeking input from a care provider who did not appear in court, to arranging temporary housing for a participant who has no place to stay. The mental health courtroom differs from the drug court experience because in courts, with the exception of some participants with co-occurring disorders and disabilities, participants appear to understand the proceedings and events going on around them fairly well. This cannot be so easily assumed in the mental health court. In the Broward Mental Health Court, understanding and communication are viewed as part of the problem-solving process. In some cases, the judge speaks very slowly and waits patiently for participants to understand and respond-sometimes with the help of mental health professionals or lawyers in the courtroom. The patience and tolerance for the problems of comprehension and communication that defendants may have create an impression that speedy disposition of a large number of cases is not necessarily high priority. Some hearings go smoothly and quickly because participants are doing well in their various treatment settings, while others are almost painfully slow as difficult problems and suitable options are identified and discussed. The Broward Mental Health Court calls on both county and private service providers to respond to the treatment needs of its participants. At the initial stages, once a referral is made, the court monitor interviews the defendant. She checks to see if the defendant is already involved in mental health treatment and, if so, consults with his caseworker about the nature of his illness and his treatment needs and progress. If the defendant is not already in treatment, he is referred to the Henderson clinic or the Nova University Community Mental Health Center to determine whether he meets the mental health eligibility requirements. In-court screening interviews are carried out before the hearings by a court clinician, who is a licensed clinical social worker, in addition to advanced doctoral interns associated with the clinical psychology program at Nova Southeastern University. The local jail contracts with EMSA, which provides several staff with specific training in mental health including a psychiatrist and a psychiatric nurse, who help identify candidates for the court from the jail population. The court refers newly arrested persons in need of immediate diagnosis and emergency treatment services to a nearby state mental health facility. Once participants are stable or able to be placed in appropriate longer-term services, the Mental Health Court refers them to one of two different treatment providers with a range of services located in different parts of Broward County. The court monitor has access to most area providers, but the two major sources of care are the Henderson Mental Health Center and Nova University Community Mental Health Center. Services provided include short- and long-term residential treatment, including supportive housing, substance abuse treatment, and assertive community treatment. Assertive community treatment utilizes a community-based, interdisciplinary, intensive case management team, which includes a psychiatric nurse, a peer recovery counselor who has been through the mental health system, a case manager and a psychiatrist. The team works on a 24-hour basis with a small group of defendants to support them as they learn to live in the community. The court has recently implemented a new gender-specific program called "Options" with a grant from the Bureau of Justice Assistance, which targets women with histories of sexual and assaultive abuse, who are also suffering from depression, post traumatic stress syndrome, or drug and alcohol issues. "Options" is a comprehensive program that addresses physical and mental health issues, as well as family issues involving children, and parenting skills. At this point, the program is run on an out-patient basis by Nova Southeastern University. Eventually, however, a residential component will be added. There are currently 12 women enrolled in the program, which has a present capacity of 40. Defendants with developmental disabilities are referred to treatment through the Developmental Services Division of the Department of Children and Family Services, a state agency. Dually diagnosed participants face a shortage of specially tailored programs, with a limited number of day treatment programs and residential placements that are open to the severely impaired defendant. With an estimated 26 percent of the mentally ill defendants homeless in the Broward Mental Health Court, transitional housing is a high priority as participants wait for openings in longer-term treatment settings. The Mental Health Court has its own, dedicated transitional housing program, which operates on the grounds of the Henderson Center. The "Cottages in the Pines" has 24 beds used to house program participants on a temporary basis for up to 5 months until more permanent living arrangements are available. Services provided in that setting include primary health care, substance abuse treatment, daily medication dispensing, and vocational training. Success and Failure in the Broward County Mental Health Court The Broward County Mental Health Court is similar in some ways to the precursor drug court model because it focuses on health problems in therapeutic ways but in the context of the criminal court process. However, despite the similarity and overlapping nature of the problems addressed by the two approaches-addiction and mental illness-they pose very different issues and problems for a court-centered approach. If the aim of a drug court is to bring about sobriety and a normal, productive life functioning (without crime) within a specified timeframe, the Mental Health Court's aim is to promote mental health, stable functioning and improved life circumstances so that the illness does not continue to overwhelm participants and bring them back to the criminal justice system. How the court encourages the treatment process and participants' compliance may differ considerably under the two models. Some drug courts rely heavily on sanctions, including time in jail, to encourage compliance. How well punitive (deterrent) sanctions serve to promote the therapeutic process in a mental health setting remains an important and somewhat controversial question. The Broward Mental Health Court was designed with the knowledge that if it enrolled its target population, compliance problems would be common among its participants-by definition. Generally, the participants have found their way into the Mental Health Court precisely because they have not succeeded in meeting the minimum demands of normal life or of the community-based mental health treatment process. The Broward Mental Health Court judge has rarely employed confinement as a means of furthering the treatment process, although defendants who are arrested on new charges and those who simply have not cooperated may ultimately be held in jail while awaiting adjudication. By philosophy, the Broward Mental Health Court judge views jail as the opposite of what mentally ill persons caught up in the criminal justice system need and sees jailing of the mentally ill as representing the failure of all prior intervention efforts. The judge would be likely to order confinement only if the nature of the offense demanded it. Should defendants fail to take necessary medication and become a threat to the public as a result, the judge might agree that a temporary stay in jail was required pending development of more appropriate means of dealing with the person. In the event that a relatively serious new crime was committed while the defendant is on release, the state attorney may move to revoke a participant's status in Mental Health Court and request adjudication and sentence. Any time current or former participants are arrested on a new misdemeanor, they are ordered to appear in Mental Health Court for disposition in the interest of continuity of treatment. In drug courts, graduation from a 1-year to 18-month process of treatment rewards periods of abstinence and crime-free behavior. The Broward Mental Health Court seeks the same among its participants with drug problems, but the goals for mental health issues may differ among defendants. Generally, the Broward Court completes its relationship with a participant when he or she has made the transition into the required treatment and supportive services, which may involve medication, counseling, housing, training or employment. When the criminal court is no longer needed to facilitate those connections, the participant is considered to have been "successful" and has the charges resolved. ---------------------------- Chapter 3 ---------------------------- The King County District Court Mental Health Court Target Problem and Rationale The process that formed the King County Mental Health Court was catalyzed by the brutal, random murder of Fire Department Captain Stanley Stevenson by a mentally ill offender in a Seattle park in August 1997. The assailant was a misdemeanor defendant who had been found incompetent by the Seattle Municipal Court. The defendant was released into the community by the court just prior to the homicide. The shocking incident prompted King County executive Ron Sims to convene a task force including broad representation of mental health and justice system professionals to review how mentally ill offenders were handled by the justice system. The Mentally Ill Offenders Task Force, chaired by the Honorable Robert Utter, retired chief justice of the Washington Supreme Court, was given the responsibility of making recommendations for improving the handling of mentally ill persons in the criminal justice system. Among many other suggestions, including reevaluation and reform of competency law, the Task Force recommended the establishment of a mental health court in the King County District Court on a pilot basis. King County District Court Chief Judge James Cayce led a Mental Health Court Task Force to develop plans and examine the feasibility of establishing such a court. In February 1998, as part of that process a group of judges, as well as other justice and health system officials, visited the Broward Mental Health Court and, upon their return, incorporated their observations into a plan released by the Mental Health Court Task Force in August 1998. After further planning, budgeting and coordinating activities, the King County District Court Mental Health Court began operation in February 1999. King County's Mental Health Court Task Force identified several areas in justice processing that failed to address difficult issues raised by the mentally ill and that appeared likely to contribute to their frequent returns to the system. Under normal court procedures, defendants might appear before a number of different judges as their cases were heard at various stages of processing, even in the same case. With little extra attention paid to individual defendants as cases moved through a high-volume court system, mentally ill defendants-whose mental illness may have caused their involvement in criminal justice-were simply moved through the court process like everyone else. Moreover, judges presiding over high-volume courtrooms did not have special training in dealing with the special issues presented by the mentally ill, nor were they generally aware of the treatment resources that might be available in the county to treat the offender and protect the public. When charges were dismissed, the mentally ill defendant merely disappeared from the court's jurisdiction, hopefully to be handled by other agencies elsewhere. Other mentally ill offenders would, upon conviction, be sentenced to probation or local jail time, two options also usually poorly suited to their problems. The Mental Health Task Force found that, as a result of normal procedures, mentally ill defendants and offenders often re-offended and were recycled through the system again and again. In fact, the King County Mental Health Court Program Narrative reports that a 1991 study of the King County Jail showed that offenders admitted to the psychiatric unit had an average of 6 bookings into the jail in the 3 years prior to their current offense, with longer average lengths of incarceration than comparable nonmentally ill inmates (Steadman, 1991). In its planning stages, the King County Mental Health Court was greatly influenced by the Broward County Mental Health Court, which began operation about a year and a half earlier. The King County Mental Health Court had seven primary goals outlined by the Task Force in Recommendations for the King County Mental Health Court (August 1998). They included: 1. To reduce the number of times mentally ill offenders come into contact with the criminal justice system in the future; 2. To reduce the inappropriate use of institutionalization for people with mental illness; 3. To improve the mental health and well-being of the defendants who come in contact with Mental Health Court; 4. To develop greater linkages between the criminal justice system and the mental health system; 5. To expedite case processing; 6. To protect public safety; 7. To establish linkages with other County agencies and programs that target the mentally ill population in order to maximize the delivery of services. Following the example of the Broward Court, the King County Mental Health Court employs a team approach. It is made up of court representatives from justice agencies and treatment providers who are assigned to the Mental Health Court and develop relevant expertise through intense training and experience in the mental health and court systems. An important aim of the approach is to have a strong and experienced team proficient in dealing with the problems associated with the mentally ill in the criminal caseload; one consisting of individual members who work well together and who provide a "seamless connection" between community mental health and the criminal justice system. In King County the dedicated team approach is intended to eliminate the gaps and problems in communication characteristic between agencies and organizations that are part of the problem. Target Population District Court has jurisdiction over misdemeanors (offenses with maximum penalties of no more than 1 year in jail) in King County, although municipalities in the county, like Seattle, also have municipal courts that have jurisdiction over misdemeanors. With an estimated 29,199 misdemeanor cases entering the system in 1999,[13] the King County District Court represents a high-volume urban misdemeanor court. The King County Mental Health Court considers candidates who are charged with misdemeanor offenses. Mental Health Court candidates include individuals whose crimes or charges appear related to mental illness, who have been referred for competency evaluation, whose medical histories include a diagnosis of a major mental illness or an organic brain impairment, or who are determined by court clinicians to need mental health treatment. In addition, many candidates have records of prior arrests or convictions, which may include felonies and crimes of violence, provided mental illness is believed to have been a causative factor in the candidate's history, or a factor in the current offense. In fact, one current court participant has a prior conviction for murder and rape, both of which are believed related to his history of mental illness. The court believes that they are able to provide proper supervision for these types of defendants, and considers part of its mission the treatment of dangerous individuals such as the violent offender whose much publicized crime triggered the development of the court initially. Participation in the Mental Health Court is voluntary and, after the model of some drug courts, was originally designed to require a guilty plea or a plea of no contest and, in most cases, results in a term of probation and a suspended jail sentence. Consequently, most of the defendants were likely to have convictions on their record at the end of the treatment process. Since that time, the program has evolved, such that a larger number of defendants may enter the court through a statutory petition for deferred prosecution or an agreement with the prosecution for a deferred sentence. With successful participation in the Mental Health Court, these defendants are much more likely to have charges withdrawn and not reflected on their records. Candidates for the Mental Health Court are identified principally at the post-arrest stage by the jail medical staff while awaiting their first court appearance in the county jail. However, referrals also come from justice officials, other misdemeanor courtrooms, or friends or family who may believe that an individual's involvement in the criminal process is the product of mental illness. To expand the scope of misdemeanor defend-ants eligible for its services, the District Court has been negotiating with misdemeanor courts from nearby cities, including Bellevue and Shore Line, to have their defendants referred for participation in the King County Mental Health Court. The King County Mental Health Court has received 199 referrals since February 1999. Most (76 percent) were male, between the ages of 31 and 50 (61 percent), and white (74 percent). About half (51 percent) had been referred by the jail, with an additional 43 percent sent by judges, 3 percent by defense attorneys and the remainder by family members or probation officers. Seventy-one percent of the defendants were in custody at the time of the referral. The majority of the referred defendants (55 percent) were not in mental health treatment at the time of the referral. Twenty-five percent were homeless at the time of referral. Only 22 percent were able to live independently. The remainder lived in either some form of supported living arrangement, or their residence location was unknown to the court. Forty- five percent of those referred had a co-occurring drug or alcohol disorder. King County Mental Health Court Procedure The King County Mental Health Court process begins with identification of possible candidates at the probable cause/bail hearing stage. (For an overview of the referral process in King County, see Figure 2.) Although referrals to the Mental Health Court can come from police who believe an arrestee may be mentally ill, generally candidates are drawn from among misdemeanor arrestees who have been detained pending their first court appearance (which occurs within 24 hours of arrest). Upon admission to the detention facility in Seattle, mentally ill defendants are first identified through the jail's normal intake screening procedure. When the assessment indicates that a detainee has serious mental health problems and might be a candidate for the Mental Health Court, the defendant is informed about the program and his or her consent is requested so the jail staff may share the information in the assessment with the Mental Health Court. Should the defendant refuse but be found competent,[14] the confidentiality of the information obtained is assured. When a defendant appears to be mentally incompetent, the court is alerted by the jail staff, who then send a memo to the court containing the defendant's name and charges only, without detailed defendant information. When a defendant does give consent, the assessment information is provided to the court for review. All members of the Mental Health Court team of professionals are notified by e-mail that the particular defendant is being referred. In this way, each actor in the court process has an opportunity to prepare for the defendant's first appearance in the court, usually the following afternoon. Generally prior to their first appearance in the Mental Health Court, candidates are interviewed at the jail by the court monitor. Her job is to gain an understanding of the defendant's mental health issues. As part of that process, she requests a release of information approval from the defendant to enable her to access the defendant's treatment history, if any. If possible, she will also communicate with the case manager who has handled the defendant's treatment in the past. The court monitor prepares a report for the Mental Health Court containing information about the defendant's history, including any current medications, history of compliance with treatment, behavior at home and/or in the jail, as well as information about housing and family support, if any. In addition, the monitor prepares a treatment plan that would go into effect upon the defendant's release and participation in the King County Mental Health Court, including living arrangements and provisions for supervision and treatment. During this process, the monitor spends time getting to know the defendant as well as explaining the workings of the Mental Health Court to the defendant and offering preparation for the hearing and the period following. Ideally, the report and proposed treatment plan that the monitor produces are provided to each of the relevant courtroom staff prior to the defendant's first hearing. The Mental Health Court is also alerted to competency issues based on the opinion of the court monitor through her informal evaluation and information given to her by the jail medical staff. There is currently no formal assessment instrument, although such a tool is being developed for use by Mental Health Court staff. Prior to the start of the first hearing, the prosecutor, the public defender and the court monitor, will meet to review the information gathered about the candidates and to discuss the particular mental health issues that may be involved. The discussion includes the analysis and recommendations of the court monitor as well as analysis from the jail mental health staff, with input from the prosecutor and defense counsel. The first hearing begins with a determination of probable cause, particularly if defendants were referred to mental health court before a probable cause hearing was held in the normal fashion before a traditional court judge. Once probable cause has been established, the King County Mental Health Court judge then proceeds to address the major threshold issues: competency and detention. Most of the defendants who are candidates for this court are in custody due primarily to homelessness or instability related to their illness that puts them at higher risk than nonmentally ill defendants to fail to appear in court for the next hearing date. One of the Court's principal objectives is to place candidates in treatment as soon as possible and avoid further confinement. The Program Manager reports that an estimated 15 percent of the candidates appearing at the first hearing in Mental Health Court appear to be incompetent and are referred to Western State Hospital for competency evaluations through an order of the judge. Defendants who are found competent are returned to the Mental Health Court. Incompetent defendants charged with a violent offense, who have a history of violence, or have been found not guilty by reason of insanity or incompetency on charges involving physical harm in the past, may be held under the state's competency statute, Title 10 RCW, section 10.77.090,[15] which allows for hospitalization for up to 29 days (including the time it takes to complete the evaluation), and/or 90 days of out-patient treatment, to try to restore competency. Defendants who do not meet the criteria may not be held by the state for the additional 14 days and must have the charges dismissed. However, such defendants may also be evaluated to determine the appropriateness of civil commitment. Defendants who, at the end of this period, are restored to competency are rescheduled to appear in Mental Health Court to decide upon participation in its program. Defendants who are still found to be incompetent at the end of the statutory treatment period must have their criminal charges dismissed. They must also be referred to the county-designated mental health official for evaluation to determine the appropriateness of involuntary civil commitment. At this stage, the focus of the inquiry will be on whether the defendant poses a danger to public safety or security, and will not depend upon whether or not the defendant was charged with a felony.[16] In the past, the court lost jurisdiction over misdemeanor cases once the defendant was found incompetent to stand trial. Once the threshold question relating to competency is resolved, the judge decides whether to accept the case and determines whether the defendant wishes to participate in the program based on the input from the Mental Health Court team and on consideration of the monitor's report and treatment plan. In the cases of defendants who are competent but unstable, the judge's next concern is to determine the nature of treatment and support services appropriate for the defendant so that an informed decision about entry into the Mental Health Court program can be made. Because in many cases the defendant is confined prior to this hearing the next important decision involves the defendant's release from custody. The judge not only seeks to release the defendant from custody but to place the defendant in the community with the services that will be needed to ensure safety and stability. Once such a service plan is set up, the defendant will be released as soon as possible under the supervision of a case manager who will monitor and support the defendant, now a Mental Health Court participant, through the process. Defendants who already have a home to return to with an appropriate support system are released quickly. Others are released from jail when a shelter bed or other appropriate placement becomes available, usually within a week. Thus, although the judge seeks to release the defendant from custody as soon as possible, the defendant remains in custody at the jail with jail-based services and monitoring by the Mental Health Court until the appropriate release options can be employed. In the experience of the King County Mental Health Court so far, it appears that few defendants refuse the treatment option once the preliminary matters are completed. Even so, most candidates who wish to enter the program are released pending adjudication under the terms of the service plan for an initial period of a week or two. During this period of provisional participation, defendants are given the opportunity to become familiar with the aspects of the proposed treatment regimen under the supervision of the court monitor before they are returned to court to make a decision about whether they wish to continue. Upon return to the Mental Health Court, if a defendant should decide to opt out of the program, the criminal case is simply listed in the normal fashion for adjudication. Defendants may occasionally prefer going to adjudication because they do not agree that they have a serious mental health problem or because they believe that they have a good chance of a favorable outcome at trial.[17] Under the original program design, defendants who choose adjudication were not eligible to return to Mental Health Court upon conviction. This policy was recently revised to allow a defendant who requests a trial to continue to attend the treatment program to which they were provisionally assigned on their own, whether they are ultimately convicted or not. Should they be found guilty at trial, the defendants are now eligible to return to treatment court program. Defendants who decide to enter the Mental Health Court treatment program must address their charges first, either by entering a plea of guilty or no contest to the misdemeanor charges, petitioning for a deferred prosecution,[18] or entering an agreement with the prosecutor for a deferred sentence. Statute governs the deferred prosecution in Washington, where it is considered a pre-arraignment disposition. No finding of guilt is entered for the defendant and upon successful completion of the program the defendant is eligible to have his charges dismissed. The defendant must petition for the deferred prosecution, which may be granted by the judge over the objection of the District Attorney. The deferred sentence generally comes about as a result of plea negotiations between the prosecutor and the defense attorney. While there is an initial finding of guilt, defendants who successfully complete the program are eligible to have their charges dismissed. A disposition can be granted by the judge over the objection of the prosecutor. In most cases, the defendant will be placed on probation in the Mental Health Court for up to 2 years or will receive a suspended sentence of up to 1 year while participating in the program. For individuals pleading guilty to driving-under-the-influence charges, pleas are accepted and a sentence of up to 5 years' probation may be imposed. In some instances, persons charged with domestic violence misdemeanors are determined to be eligible for the court. In these cases, defendants are granted a "stipulated order of continuance." In it they waive the right to a jury trial and agree that if they do not comply with the conditions of release to the Mental Health Court treatment program the judge can find him guilty on the basis of the facts in the police report without taking any testimony. In appropriate domestic violence cases, successful completion of the Mental Health Court treatment program results in dismissal of the charges (and no record of conviction), following procedures often employed in misdemeanor domestic violence cases in regular court. This permits an opportunity in cases of mentally ill defendants who have been charged with domestic violence-related offenses to begin and complete treatment without being required to plead guilty. The matter is handled in this way in order to assure that these defendants are not penalized for trying to address their illness by opting to enter treatment court. From February through December 1999, 54 defendants (27 percent) of the 199 defendants referred decided not to enter the King County Mental Health Court treatment program and were transferred back to normal criminal calendars. Dispositions for the remaining 145 defendants included the following: 69 defendants (48 percent) chose to participate and an additional 33 (23 percent) remained undecided as of December 31, 1999. Of the remaining 43 defendants, 6 cases had been closed, 17 cases were dismissed by the prosecutor, 13 cases were screened out as being inappropriate for mental health court, and the prosecutor elected not to file charges in District court in 7 cases. Of the 69 defendants who entered mental health court, 35 pled guilty, 8 received stipulated orders of continuance, and 6 were granted deferred prosecution status. The 20 remaining participants were referred from other courts, either having already been placed on probation, or having pled and had the sentencing transferred to mental health court. As of the end of the year, 63 participants were on active probation. Once the candidate opts in or formally enters the Mental Health Court, a probation officer is appointed to supervise the participant. The probation officer works as part of the Mental Health Court team and maintains close contact with the participant, whether in custody or in the community. The probation officer coordinates and communicates with the caseworker at the treatment facility handling the defendant's care and the Mental Health Court case manager. Once the treatment plan is put into effect, the probation officer and the case manager check on the participant's progress and ensure that court-ordered treatment is being provided. Participants are required to return to King County Mental Health Court for review hearings at regular intervals-or when the judge determines that it is necessary-to assess whether they are complying with the requirements of the treatment process or there are any difficulties that need to be addressed. One of the most common issues for supervision surfacing at the review hearings involves the participant's failure to take the prescribed medication. In cases in which the participant appears to be having great difficulty in complying with the treatment process, a hearing may be scheduled and the defendant may be taken into custody if found to be in violation of the terms of probation, and such a sanction is deemed appropriate. In rare instances, failure to take medication may mean that the participant can become a threat to himself or others. In such cases the court may refer the defendant to the state hospital to determine whether temporary involuntary civil commitment is necessary. The use of jail to motivate the participant to take the program seriously is rare (usually jail is what the Mental Health Court is seeking to avoid). When it occurs, it usually is for short periods of no more than a few days detention. Defendants who are purposefully noncompliant and who do not respond to repeated counseling by team members and the judge in court appearances may have their probation or suspended sentences revoked and be ordered to serve their sentences in jail. The Treatment Approach in the King County Mental Health Court King County Mental Health Court supports its participants in treatment by drawing on an array of treatment programs and ancillary services available through the county's existing community mental health system. The community mental health network of services includes 17 treatment facilities at locations throughout the county. Although the geographic coverage offered by these programs is an asset to the Mental Health Court, the size of the county and the number of treatment services involved initially posed a challenge to the Mental Health Court in coordinating services, communication and procedures. The King County Mental Health division has contracted with United Behavioral Health (UBH) to oversee the managed care network, to coordinate the treatment, and to monitor and act as case manager for its participants as they are referred to the 17 mental health providers. The court monitor employed by UBH for the purpose of managing the Mental Health Court caseload is the link between treatment providers and the court. The monitor ensures that the providers respond to the wishes of the court promptly, from expediting screening of candidates for the court to addressing particular problems with services that might arise during the Mental Health Court treatment process. The court monitor assigns an agency to each participant to determine what services are needed and to monitor the progress of treatment carefully for the court. Participants are assigned to programs based upon their individual needs, and at locations as near to their living situations as possible to facilitate attendance in treatment. The types of services provided vary depending on the particular problems of the participants, but may include medical evaluation, monitoring of medications, psychotherapy, supervised living situations, and other relevant social services. In addition, vocational pre-paration and an educational component are available to defendants who have the ability to benefit from them. Most of the defendants are placed in community-based, out-patient programs, unless acute care or more intensive services are needed. When in-patient or residential treatment is recommended, participants must specifically consent before they can be placed in a program. Participants who refuse the structure, support and supervision of in-patient programs may be held in jail for lack of other sufficiently secure options. Jail is used as a last resort, in part because services provided there are not as comprehensive and are by nature short-term, and in part because the Mental Health Court seeks as one of its primary goals to move mentally ill individuals out of jail into community treatment. The participants entering the King County Mental Health Court present a variety of challenges for treatment services. One of these challenges is the large number of participants dually diagnosed with substantial substance abuse problems as well as serious mental illness. Given the nature of the criminal justice-based population of participants entering the treatment process, the King County Mental Health Court has discovered in its early stages of development that services for the dually diagnosed are insufficient. Unfortunately, only eight providers in the county network are able to treat dually diagnosed participants on an out-patient basis. In addition, only two programs, one run by the county, and the other by the state, are available to provide MICA services on an in-patient basis for these participants, and there is a long waiting list at both facilities. Thus, there is a shortage of treatment resources available to deal with this commonly encountered type of participant. There are also special programs available in King County to address problems such as anger management or domestic violence issues. The Mental Health Court experience in the early stages has also shown that a majority of participants require assistance in finding appropriate living arrangements. Resources are very limited for patients requiring residential programs and structured living arrangements. The need for structured living situations varies on a case-by-case basis. For some participants who are in immediate crisis, special housing to support stabilization of their mental health symptoms is an urgent requirement. Others homeless participants may have been accustomed to living in makeshift living arrangements and now resist any type of structured living arrangement. Although a variety of programs are utilized to try to address these needs, the county is not well funded to meet the needs of the mental health defendants for structured residential care. To make up for the lack of availability of structured care situations, the Mental Health Court attempts to supplement the support and supervision it provides with "wrap around" services. Through these services the defendant is engaged in some sort of structured treatment or activity from morning to night each day, with specialized case managers who visit the participant daily to monitor compliance with day treatment and medication, and try to respond to problems as they arise. At this stage of its development, the King County Mental Health Court itself does not have an aftercare program, but seeks to facilitate the participant's transition to full use of community mental health services after involvement with the court. The use of community services is voluntary, of course, so that an aim of the court treatment process is to build strong links to appropriate services for participants so that most will carry on without supervision by the Mental Health Court. In its planned evaluation research, the Mental Health Court intends to track the clients for 3 years after release from probation to see whether they were successful in preparing clients to continue to access the support services. Success and Failure in the King County Mental Health Court It is early in the development of the King County Mental Health Court to measure program successes. However, two kinds of measures seem to be available for assessing the realization of the court's goals, short of the longer-term evaluation it has planned. The court's initial aims have included identifying and enrolling (from the jail, other courtrooms, friends, relatives and attorneys) mentally ill persons charged in misdemeanors. In 10 months of operation, the King County court had screened (received and evaluated) 199 referrals and enrolled less than half of them in the court-supervised treatment process. Although Judge Cayce believes there are many more mentally ill misdemeanor defendants in King County who could benefit from participation in the Mental Health Court, the court has already begun to tap a potentially large population and gained some operational experience. It has identified resource and treatment needs in its first months of operation. In addition, the court has revised some of its program requirements, including the policy that required the loss of the treatment court opportunity to defendants who opted to contest their charges at trial, and the requirement that the majority of the defendants plead guilty in order to enter the program. The court is now open to the return to treatment court of defendants who are convicted at trial, and the option of deferred prosecution or deferred sentencing dispositions, with the likelihood of a dismissal of the charges upon successful program completion, is being more liberally granted. These adjustments will result in expanded opportunities for defendants to enter into the treatment court program without necessarily being penalized with a criminal conviction. According to the Mental Health Court's mission, the principal measures of success are to place participants in appropriate medical, behavioral health treatment and related services, and to monitor, case manage and supervise them through their involvement with the Court. With rare exceptions, the terms of probation extend for 1 year. Thus, a negative measure of the court's performance would be large numbers of participants who violate conditions of probation, or suspended sentences, who then had to serve jail or probation sentences outside of the control of Mental Health Court. These data are not available at the time of this writing, particularly because the court is only about 1 year into its implementation. More difficult interim measures would seek to indicate how well candidates had been placed into treatment, had stabilized and were functioning. Because participants have different problems related to their mental illnesses, an early measure would reflect forward progress in bringing participants into stable settings and more normal life routines. The use of probation as the principal vehicle for supervision by the court will provide data for measures of compliance and progress at a later date. At this stage, with the King County Mental Health Court still adapting and expanding, the most relevant measures of success have to do with implementation of services and reaching the intended target population. ---------------------------- Chapter 4 ---------------------------- The Anchorage Mental Health Court Target Problem and Rationale A 1997 (Care Systems North) study of the incarcerated population in Alaska found that about one-third of inmates suffered from serious mental illness, a rate about twice as high as the estimated national average of 16 percent (Bureau of Justice Statistics, 1999). That group included a large number of persons with developmental disabilities and organic brain injuries. The study noted that the Alaska Department of Corrections had become the largest provider of institutional mental health services in the state. Against the background of efforts to address institutional overcrowding, the challenge facing Corrections to provide services for its mentally ill inmates was extraordinary, particularly in Anchorage, one of the state's largest population centers. In 1998 the Criminal Justice Assessment Commission, formed to examine jail crowding problems in Anchorage, identified the mentally ill and disabled as a special population presenting difficult problems for the jail and local justice system. One of the recommendations of the Decriminalizing the Mentally Ill Subcommittee was to explore means of identifying mentally disabled offenders for diversion away from the justice system into coordinated community treatment services. A special jail-based program to provide placement in community mental health treatment programs for inmates, the Jail Alternative Services Pilot Program, was instituted during July 1998. The subcommittee also recommended development of a mental health court, referred to as the Court Coordinated Research Project (CCRP), to address misdemeanor defendants and offenders with mental disabilities. During the planning stages, the experiences of the Broward County and King County Mental Health Courts were considered and adapted to the special problems of the local justice system in Anchorage. Circuit Court Presiding Judge, the Honorable Elaine Andrews, signed an administrative order that officially established the Court Coordinated Resources Project in April 1999 and appointed Judges Stephanie Rhoades and John Lohff to preside over the "specialty mental health court." The two-pronged mental health court initiative went into operation in July 1998. One component, the Jail Alternative Services (JAS) Program, established alternative mental health programming in the community for specially targeted mentally ill inmates. The other, the CCRP, established a court-centered approach to identifying and treating mentally ill persons in the criminal caseload in the Anchorage District Court. The mental health court process is presided over by two District Court judges, the Honorable John Lohff, Deputy Presiding District Court Judge, and the Honorable Stephanie Rhoades. CCRP was designed to provide an alternative to jail and routine adjudication of misdemeanor cases for persons with mental disabilities by instituting special procedures that allow trained judges to address and treat mental illness and create more effective linkages and coordination between the courts, other justice agencies and mental health resources. Although the court-based initiative was motivated by the pressing need to address problems associated with jail overcrowding in Anchorage-hence the special Jail Alternative Services Program initiative for persons in custody- CCRP aims at a broader population. It accepts mentally ill persons in the misdemeanor population whether or not they are confined. Although CCRP places some defendants in the JAS Program, it draws upon a large array of community mental health and other supportive services. While the aims of the Anchorage District Court's CCRP initiative to link mentally ill defendants with community-based mental health services are similar to those of other mental health courts, the court chose not to call itself a "mental health court" to avoid the stigma that might be associated with participation in a court designed to respond to the mentally ill. Target Population The jail-based component of the mental health court initiative, the JAS Program, began on July 6, 1998 as a pilot project operated by the Alaska Department of Corrections and funded through the Alaska Mental Health Trust Authority. To be eligible for the JAS Program, defendants must be confined in the Anchorage jail on misdemeanor charges (punishable by a statutory maximum of 1 year in jail) and be found to suffer from a major mental illness with a history of psychosis or an organic brain injury. Prior records of convictions are anticipated by the mental health court. These restrictive criteria ensure that the JAS Program is very selective. It is limited to 40 participants, 5 of which are to be defendants suffering from organic brain impairments. Eligibility criteria for participation in the District Court's mental health court program (CCRP) also begin with the limitation that defendants-in or out of custody-must be charged with misdemeanor offenses and defendants with prior records are not excluded. Beyond these threshold criteria, CCRP criteria are less restrictive than those that apply to JAS participants. Defendants diagnosed with or showing obvious signs of mental illness, developmental disability, or organic brain syndrome are considered appropriate candidates for the mental health court program. However, there is no requirement of a history of psychosis, as in the JAS Program, and the defendant need not have been in custody, a JAS eligibility requirement as well. CCRP has not attempted to limit enrollment to a certain number of participants. Candidates are referred to Anchorage's CCRP by the correction department's jail staff, the attorneys handling the case, other judges, family members, concerned friends or other relevant sources. Anchorage Court Coordinated Resource Project (Mental Health Court) Procedure The Court Coordinated Resources Project operates in Anchorage's District Court, which has jurisdiction over both state and municipal misdemeanor offenses. (For an overview of the Anchorage Court referral procedure, see Figure 3.) An arrestee who is charged with a misdemeanor will have an arraignment before a judge within 24 hours. Persons detained after arraignment are screened by jail staff. If they appear to be candidates for the JAS Program, the JAS coordinator is notified. The JAS coordinator in turn notifies the court and the court notifies the prosecutor and defense attorney. If the defendant is interested in being a JAS participant, the JAS coordinator meets with the defendant (and/or attorney) to conduct an assessment to determine JAS Program eligibility. The coordinator explains the treatment program available under JAS. If the coordinator determines that the defendant meets the eligibility criteria and is willing to participate in the program, the coordinator submits a brief report to the CCRP judge, indicating the defendant's treatment needs. The report also proposes a treatment plan, with specific recommendations for mental health and/or substance abuse treatment in the community, and, if needed, provisions for medication and for monitoring the defendant's medications, and provisions for addressing housi