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.
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 inter-views 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, posttraumatic 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.
8 Mental Health Court Investigation. Grand Jury Report, 17th Judicial District. Broward County, Florida. November 9, 1994.
9 An important assumption of the Broward approach is that there are many mentally ill defendants who are recycled through the justice system in need of treatment who are not violent or dangerous. Untreated they represent a great likelihood of posing criminal and other behavioral problems in the future.
10 Axis I is primary mental heath diagnosis that is usually first diagnosed in childhood, including schizophrenia, mood or anxiety disorders, certain impulse control disorders, and major depression. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. Fourth Edition. Washington, DC: American Psychiatric Association, 1994.
11 Florida Statutes, Title XLVII, Criminal Procedure and Corrections, Chapter 916.17.
12 The speedy trial ?clock? does not begin to run until a demand for formal discovery is made. Prior to this, the defendant?s attorney is provided only minimal informal discovery, in the form of police reports. Defendants who prefer to challenge and litigate the charges may do so before the Mental Health Court judge without losing the opportunity to be placed in mental health treatment. The judge will hear the case and will still place them in treatment if they are convicted but still need help.