Early Mental Health Court Initiatives: Common Themes and Emerging Issues

Common Origins and Objectives

The nation?s first mental health courts have much in common with the problem-solving courts that preceded them. Drug courts, community courts, domestic violence courts and related court-centered treatment and social service strategies were motivated by similar problems, severe local correctional crowding and court delay, dramatically growing caseloads of substance abuse offenders, and a shared sense that traditional methods of case disposition were inadequate and unsatisfying. Drug courts ?broke the mold? in searching for a more effective response to substance abuse in the criminal justice population, with subsequent problem-solving or specialized courts adding to the substantive agenda of problems, including domestic violence and community quality-of-life issues that could be addressed by adapting the drug court approach.

In part, the subject matter of special courts diversified as courts discovered first hand that substance abusers often suffered from co-occurring disorders or were struggling with other critical life problems linked to the substance abuse, such as housing, unemployment, domestic violence, educational, vocational and health issues. Thus, to succeed at restoring offenders to sobriety and functionality in the community, multifaceted treatment approaches were necessary and new service delivery partnerships were created. Special court approaches of the last decade prioritized different problems and different target populations and selectively adapted the methodology and lessons of the drug court model to address them and added unique new dimensions of intervention and operation. Each special court initiative has faced the challenge of dealing with participants who were mentally ill. The first mental health court initiatives took on that challenge.

The four pioneering mental health court initiatives described in this report grew from efforts to respond to three basic critical problems. These problems included: the public safety risk posed by mentally ill offenders; the difficulties associated with housing the mentally ill in local jails; and the inadequacy of the criminal process in dealing with mentally ill defendants in all matters. These judicial strategies were based on the recognition that mentally ill offenders were handled poorly in the criminal justice system generally, as well as in the criminal courts in particular. Many offenders? particularly mentally ill defendants charged with low-level offenses who were nevertheless competent?were routinely processed through the misdemeanor system with meaningless responses and ineffective penalties, including fines that would never be paid and time served for days already spent in jail.

A very clear aim in each site was to devise an alternative to holding and treating mentally ill defendants in jail. Although each jail was attentive to the issues of the mentally ill offender, the jails faced serious crowding problems and were ill-equipped to provide more than temporary care for the mentally ill. Resources were too scarce, facilities were inadequate, and the numbers of inmates were too great. Moreover, each mental health court strategy was premised on a belief that, in most cases, jail was the last method that should be employed to address the problems of the mentally ill offender. Not only were jails generally unable to provide adequate care, confinement was often a stressful ordeal for the mentally ill, causing crises and a variety of problems that might otherwise be avoided. The designers of these mental health court innovations saw the growing problem of the mentally ill in jails as evidence of the failure of mental health treatment and other social service systems in the community.

The early courts also share common origins and aims because they draw on the example and experience of the nation?s first mental health court in Broward County. Each of the succeeding efforts has considered and adapted the pioneering Broward County Mental Health Court model in some fashion. Once established, the early mental health courts have shared lessons and challenges among themselves and?as communication and geography would permit?have continued to learn from their different experiences. Moreover, each of the early courts now receives visitors from other courts interested in addressing the problems of the mentally ill in their justice systems.

Common Features

The four pioneering mental health courts we examined share a number of common attributes, some adapted from the earlier models of problem-solving courts, some unique to the mental health populations they address.

Target Problems and Populations

The early mental health courts focus their efforts on the relatively low-level mentally ill offender who is found in the criminal justice population. All of the courts place a primary emphasis on the mentally ill defendant or offender held in jail, seeking ways to find supportive treatment in the community as an alternative to confinement. The courts differ slightly in their criminal justice and mental health eligibility criteria. Each of the courts accepts misdemeanor defendants but has a varying period of court supervision. The Broward County Mental Health Court is limited to 1 year of supervision of participants, the extent of misdemeanor jurisdiction in cases that are sentenced. (Broward defendants are not on probation during their participation in Mental Health Court.) The other sites require disposition of the charges prior to entering treatment.

In King County, a guilty plea was required under the original program rules. Currently, however, charges are increasingly more likely to be resolved through deferred adjudication or a deferred sentence. The participant?s period of probation is limited to 2 years, unless the defendant is charged with DUI, in which case probation may last up to 5 years. The Anchorage Court requires a guilty plea and, while the probationary term in Anchorage for the misdemeanor charges may extend to up to 10 years, the supervisory term is typically set at 3 to 5 years. In San Bernardino, misdemeanor probation is limited to 2 years; felony terms may last up to 6 years, but are generally limited to 3 years in the program. Despite the different periods of court supervision that are employed in each of the locations, a noncompliant misdemeanor participant who faces serving a term of confinement can serve no more than 1 year of jail time. Felony participants in San Bernardino can face considerably longer terms.

The mental health court approaches also differ with regard to the type of charges that are acceptable for entry into treatment court. The Broward Court excludes from Mental Health Court DUI and domestic violence charges, for which separate court programs exist; battery charges are acceptable only with the victim?s consent. The King County Mental Health Court, in contrast, does not limit the type of misdemeanor charge that is eligible. The Anchorage CCRP does not eliminate specific misdemeanors from consideration for program admission; instead, the screening element focuses more on prior record as an indicator of dangerousness to the public. San Bernardino is the only court to accept felony defendants, some facing relatively serious charges. There the prosecutor looks beyond the actual charges filed and into the facts of the case to determine the true seriousness of the criminal acts alleged, in addition to factoring in the mental illness as a cause of the act before making the eligibility decision. Truly violent criminal defendants are not eligible for program admission. In San Bernardino there is no limitation on admission based upon the type of misdemeanor charged.

All of the mental health courts accept individuals with extensive criminal histories, based on the knowledge that few mentally ill or disabled defendants will be first-time offenders and that many often find themselves in and out of the criminal justice system for a variety of usually minor offenses. San Bernardino is the only site that actually requires that the defendant have a criminal history in order to be admitted to the program. All of the other programs accept both new and repeat offenders, although the majority of the participants in each of the locations have had prior contacts with the criminal justice system.

Although each mental health court focuses on defendants who show signs of mental illness as they enter the process, the clinical eligibility criteria also differ slightly from court to court. In Broward County, candidates must be diagnosed with an Axis I mental illness,25 have an organic brain injury or head trauma, or be developmentally disabled. In King County, misdemeanor candidates must be found to suffer from a significant mental illness, organic brain impairment, and/or a developmental disability that is directly or indirectly connected to the crime charged, and for which the person is in need of treatment and that, unless treated, greatly increases the probability of future criminal recurrence. The JAS Program in Anchorage and the STAR court in San Bernardino have the strictest mental health criteria. In Anchorage, the JAS Program deals with defendants who have a major mental illness with a history of psychosis. (Eligibility requirements for CCRP are less stringent, requiring serious mental illness, developmental disability or organic impairment, but not psychosis.) The San Bernardino Court requires that participants have been previously diagnosed with one of the six Axis I illnesses. The defendant must have a documented history of mental illness to be eligible for treatment through the STAR Program. Both of these programs are relatively low volume, having access to a small number of treatment beds, and both focus on confined defendants who are seriously mentally ill.

Judge-Centered Court Treatment Process

Each of the mental health courts is built around the main feature of the problem-solving court strategy pioneered by the Miami Drug Court and carried over into other substantive areas, such as community courts and domestic violence courts. Under this approach, the judge sits at the center of the court treatment process and plays a variety of roles, formal and informal. The judge represents authority and has responsibility for all actions of both legal- and treatment-related natures to be taken. The judge presides formally over any legal matters at the entry and completion stages of the process and may adjudicate cases of participants who opt out or fail in the program. Perhaps most importantly, the judge plays a handson, therapeutically oriented and directive role at the center of the treatment process. The judge deals with problems, encourages progress and responds to poor performance by participants. The judge deals and interacts with the participant directly, and assigns rewards and sanctions as may be appropriate, including selective use of jail or changes in placement options.

New Working Relationship Between the Court and Mental Health Services

The new, multifaceted role of the judge and other courtroom actors is premised on the development and implementation of a new working relationship between the criminal court and mental health treatment and related support services. To the mental health court, the presence in criminal justice (and particularly in jail) of large numbers of mentally ill and disabled defendants is evidence that, on their own, community mental health services have failed to engage citizens in the treatment process. If they were effective in treating this population, such large numbers would not be in the criminal justice system. Following the drug court model, the mental health court redesigns the working relationship between the court and treatment services, brings the redesigned partnership into the courtroom and holds it accountable to the judge. The new working relationship is seen in the special teams of courtroom personnel dedicated to staffing the mental health courts, including the judge, probation officers, clinical supervisors or coordinators, case managers, defense attorneys, prosecuting attorneys, jail liaisons and other service providers dealing with the court participants. The new relationship is reflected in the pre-court case staffing discussions and the in-court collective problem-solving that assist the judge in directing appropriate actions in individual cases. The authority and final decision making responsibility of the judge holds the treatment process, as well as the participant, accountable and requires continual communication between members of the mental health court staff.

Special Courtroom Procedures, New Roles for Courtroom Staff

The special use of the courtroom associated with the early mental health courts is reminiscent of the drug court conceptualization of the courtroom as part of the therapeutic environment (a ?theatre in the square?) (Goldkamp, 1994a, 1994b;, Goldkamp et al., 2000; Hora et al., 1999). The courtroom environment differs in style in each of the settings studied, ranging from the full and busy meeting room with many consultations going on in Broward County, to the quieter and slower proceedings in King County Court, to the drug-court style of proceedings in San Bernardino. Each of the courtrooms shares in common the attempt to present a supportive environment in which participants have confidence that they can speak and have their problems addressed.

A full range of courtroom actors are called upon to participate at various stages of proceedings to report on progress, interpret evaluations, discuss treatment plans and help resolve problems. They include a mix of clinical and criminal justice staff. In addition to the clinical supervisors, case managers, and defense and prosecution attorneys, there is also a representative of the jail staff who provides a critical link for the mental health court.

The tempo of proceedings differs markedly from other courts. The mental health court judge allows time for participants to speak; in some instances, defendants may ramble and get confused in addressing the court, sometimes causing proceedings to progress slowly. The style of the courtroom varies as well in the size and nature of the audience, often including people at various stages of treatment and processing who may be experiencing a variety of problems. The mental health court courtroom is intense, emotional and demanding of all staff, as problems are identified and solutions are devised.

Range of Treatment and Supportive Services

Each of the courts seeks to link their participants with appropriate treatment services, some in residential or other supportive housing placements, but most ultimately in the community. Thus, each mental health court approach has involved drawing together whatever appropriate services are available to assemble a network of services that can be responsible to the court. In Broward County, this includes two mental health providers responsible for covering different parts of the county with slightly different services available. Participants there are supervised by facility case-managers as well as the mental health court monitor. In Seattle, the King County Court partners with a managed care provider who oversees the county?s mental health treatment programs. Participants are supervised by the probation department. In San Bernardino services are provided by private, nonprofit providers for augmented board and care facilities and a day treatment program that draws upon a range of services. Supervision is provided by jail mental health staff, who also function as case managers, and by the probation department. In Anchorage, the selected participants from the jail population are placed in residential settings with supervision provided by treatment facility case managers, with careful oversight by the JAS case coordinator. In the Anchorage CCRP, non-jail misdemeanor defendants are required to arrange adequate treatment services themselves through public and/or private means and are monitored only by facility case managers, who provide progress reports upon request to the Municipal Prosecutor, and the judge through in-court status reviews. The early mental health courts differ in the kinds of treatment resources they have available to serve their participants. The courts share common difficulties identifying sufficient treatment resources, because of limited local treatment capacity, and funding to support the needed services for the difficult populations they have engaged.

Multiagency and System Support

The four mental health courts described in this report are at various stages of development, ranging from the oldest and most established in Broward County (about two and a half years of operation), to the newest in San Bernardino and King County, opened in January and February 1999, respectively. Regardless of stage of development, however, a critical element in each of the strategies is multiagency and systemwide support in both planning and operation. This is reflected in the planning task forces producing the recommendations for the mental health courts and in the collaboration required in the day-to-day operation of the court and the work of the court team. In Broward, the Public Defender?s office, State Attorney?s office, Broward County Sheriff?s Office, community treatment providers, and the local hospital have supported the development and operation of the mental health court. In King County, the court operates with the support and cooperation of the Prosecuting Attorney?s office, the Public Defender?s office, the Probation Department, the King County Jail, and United Behavioral Health, which provides case management. In San Bernardino, participating agencies include the Department of Behavioral Health, the Public Defender?s office, the District Attorney?s office, the Probation Department, and private providers. In Anchorage, the court draws on the cooperation and support of the Department of Corrections, the Alaska Mental Health Trust Authority, the Municipal Prosecutor?s office, the Public Defender?s office, and treatment providers and is seeking to broaden its base of support and cooperation.

Differences in the Approaches of the Four Mental Health Courts

Although the four mental health courts we describe share common elements, they also differ in their adaptation of a problem-solving court model to their particular systems. These differences include the timing and method of resolving the underlying criminal charges, the responses to noncompliance by participants, and the effect of a defense request for a trial.

Stage of Intervention

As the first site to design a special court approach addressing the mentally ill and disabled in the criminal justice population, the Broward County Mental Health Court laid the groundwork for the efforts that followed. One of the features of the Broward court that none of the other sites chose to adopt was its pre-adjudicatory emphasis. Defendants who choose to enter the Broward program are not required to answer to their charges until their treatment is completed. Criminal charges are held in abeyance for a period of up to a year, while the participant?s mental health needs are addressed. At the conclusion of the treatment period, the defendants? adjudication is often withheld, depending on the seriousness of the charges and their criminal histories. This approach was adopted in Broward County based upon a therapeutic rationale that the mental health court should be as nonthreatening and nonpenal as possible. In addition, the Broward model seeks to divert the mentally ill person from the formal adjudication process. Other jurisdictions adopted a conviction-based approach, partly because of prosecutorial preferences and partly because of constraints of criminal procedure.

Mental Health Court Versus Normal Trial: Second Chances?

In each of the jurisdictions, a candidate?s participation in the mental health court is based on a voluntary decision. The courts differ in their policies regarding mentally ill defendants who decline to enter mental health court and choose to have their charges adjudicated instead of either entering treatment prior to adjudication or pleading guilty and being placed on probation in the mental health court. In King County, defendants must waive their rights to a trial in return for admission to the mental health court treatment process. Defendants who choose to go to trial and are then found guilty are not accepted back into the mental health court. None of the other sites has a strict policy against accepting individuals who have declined the program, chosen adjudication, been convicted and then requested admission to the mental health court. However, admission is far from ensured and is decided on a case-by-case basis. The San Bernardino, Anchorage and Seattle Mental Health Courts operate as sentencing courts, or at least as courts dealing with persons serving sentences but not as trial courts for practical and philosophical reasons. (They were seeking to concentrate resources on mental health treatment.) Thus, they may have little control over adjudication and sentencing in other courts, should candidates select the normal adjudication route.

Methods of Case Disposition

The four mental health court sites also differed in their methods of resolving the criminal charges. Successful participants in the Broward Mental Health Court may, as a result of withheld adjudication or an outright dismissal of charges with the consent of the prosecutor, have no conviction on their records. In King County, there is an increasing likelihood that charges will be resolved through deferred prosecution or deferred sentence, resulting in a dismissal of the charges upon successful program completion. In Anchorage, however, the requirement of a guilty plea (or of a nolo contendere plea) ensures that a conviction generally results, whether or not the participant is successful. Withheld adjudication or deferred prosecution dispositions are only rarely employed in this location. In San Bernardino, where a plea is also required, successful completion may result in withdrawal of the plea and dismissal of charges. Because many of the mentally ill or disabled persons who enter the mental health courts may have fairly extensive records of prior convictions, the question of whether or not a conviction is recorded for the current offense may be of little practical significance. Defense counsel, especially in King County, have expressed discomfort with the policy requiring conviction and suggested that the guilty plea requirement might serve as a disincentive to some eligible defendants wishing to enter treatment.

Use of Sanctions for Participant Noncompliance

The four mental health courts appear to differ as well in the way they respond to noncompliance by participants in the mental health treatment process. In designing its approach, each court has recognized the challenges associated with engaging and maintaining the target populations in the treatment process. Thus, while each court expects problems with compliance in its client population, they vary in the way they impose sanctions, a basic element of the drug court model adapted by each type of problem-solving court. Short of termination from the program (with the attendant legal consequences), one of the most severe sanctions is the imposition of jail confinement. The use of jail as a sanction seems least common in the Broward County Mental Health Court and the Anchorage Mental Health Court, and somewhat more likely in the King County Court. It is used most common in the San Bernardino Mental Health Court, which operates most closely to a drug court model.

This difference in the use of sanctions generally, and of jail in particular, is not explained mainly by judicial philosophy?which likely accounts for some differences?but may be linked instead to differences in the type of candidates admitted to the courts. For example, in contrast to its peer courts, the San Bernardino Mental Health Court focuses on felony defendants as well as misdemeanants and deals with serious substance abuse as a co-occurring disorder in most of its cases. Differences in target populations notwithstanding, officials interviewed in the King County and San Bernardino Mental Health Courts acknowledge that the threat of jail may serve as an important motivator for candidates considering whether to enter the mental health court and a useful tool for ensuring compliance among participants.

Emerging Issues

Early Identification of Mental Health Court Candidates

Problem-solving courts of different types share 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 when individuals may be most open to the possibility to maximize the opportunity to begin treatment. 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 in-depth 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 (Anglin and Hser, 1990; Anglin, 1988). 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.?26 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 voluntary 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 really to 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 may need to proceed expeditiously to adjudicate criminal charges, mental health professionals require sufficient 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 so that treatment could then proceed. 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

Favorable progress in the drug court treatment process is measured by completion of successive phases of treatment by participants on their way to graduation. In the drug court instance, 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. When applying this kind of framework of favorable progress to the mental health court approach, however, setting a standard for success in treatment is more complex.

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 participants. 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.

To promote progress through treatment, the drug court model rewards good behavior and discourages poor performance by participants through the use of various types of sanctions. 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 others 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. Moreover, the model is premised on a working relationship as represented by the dedicated team approach that facilitates ongoing supervision and case management. Courts considering a mental health court approach face two important problems.

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 improves 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 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 existing treatment resources.

Each of the mental health courts described in this report has identified a potentially large population of mentally ill and disabled defendants who are in need of mental health and treatment-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 crime behaviors of the mentally ill range from nuisance and quality-of-life levels to more serious offenses that endanger themselves or others. 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.

Because other community networks or institutions have not effectively treated and supported the mentally ill?due to the failure of communitybased safety nets?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:

  • By dealing with their problems in the criminal justice system.

  • 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 and being held in jail. But they expanded to accept referrals from other courts, and other sources, such as attorneys, police, friends, relatives or other community contacts aware of individuals caught up in the justice system who were mentally ill or disabled. 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 communitybased 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 such persons would be more effectively and appropriately dealt with through improved community intervention, services and support mechanisms.


25 For an expanded definition of Axis I, please see footnote 10.

26 It is a conventional wisdom in the substance abuse treatment literature that treatment that is imposed without consent is ?as effective? as treatment for which a person voluntarily chooses to enter (Anglin 1988; Belenko 1998).



Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts in Ft. Lauderdale, San Bernardino, and Anchorage
April 2000