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 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.
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.
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:
Each of the four pioneering 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 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 they would be more effectively and appropriately dealt with through improved community intervention, services and support mechanisms.