American jails and prisons have long struggled with problems associated with mentally ill persons in their care and custody (Fosdick et al., 1922: 440-443; Beeley, 1927; National Commission on Law Observance and Enforcement 1931; National Advisory Commission on Criminal Justice Standards and Goals 1973; Mattick, 1975; American Bar Association, 1986; 1989; Matthews, 1970; McFarland et al., 1989). The challenges faced by jails in managing mentally ill persons in their custody have been particularly acute (Steadman and Veysey, 1997; Abram and Teplin, 1991; Teplin, 1990 Henderson, 1998). With scarce resources, local jails have traditionally had difficulty in providing adequate mental health treatment services to inmates who may be in their care for relatively short stays, often in a mix of legal statuses. Although jail populations have accounted for high concentrations of persons with mental health problems, most justice agencies deal with individuals with serious mental health issues, in areas ranging from the most minor to the most serious criminal matters, from criminal trespass and disorderly conduct to capital cases (Matthews, 1970; McFarland et al., 1989; Wolff, 1998, Harris and Koepsell, 1998). Public perception of the mentally ill offender may be most dramatically shaped by incidents of random violence in the community as treated by the mass media?which appear far too common?and include the beliefs that mental illness contributes to high rates of recidivism.

The concern for mental disability or illness in the criminal justice population is, as a matter of legal philosophy, traditional. In fact, the normal adjudication process is bounded by concerns for the mental capacity and adequate functioning of defendants and offenders. At the early stages, participation in the criminal process is premised on the assumption that a defendant is mentally competent to participate in and understand the proceedings (Winnick, 1995). Criminal responsibility and assignment of punishment are limited by questions of insanity and guilty-but-mentally-ill.1 Beyond these special issues, however, it is unarguable historically that persons with mental illness have always been found in criminal justice populations and have posed longstanding and stubborn issues for justice agencies and institutions.

A recent Bureau of Justice Statistics survey (1999), estimating conservatively that 238,000 mentally ill offenders were incarcerated in American prisons and jails in 1998, underscores the magnitude of the problem currently dealt with by correctional agencies nationwide. This number represents 16 percent of all state prison and local jail inmates, and 7 percent of Federal prisoners. When the massive volumes of arrests,2 criminal cases processed,3 police contacts with citizens, persons supervised by pretrial services, and probation and parole agencies are also taken into account, the numbers of mentally ill persons dealt with and/or supervised by the criminal justice system on a routine basis in the United States is extraordinarily large.

Several developments may account cumulatively for the current state-of-affairs represented by the mentally ill in the American criminal justice systems. The deinstitutionalization movement in mental health during the 1960s and 1970s (Whitmer, 1979) had the foreseeable result of diverting greater numbers of persons with serious mental illness into the community. As the hoped-for community-based mental health treatment system was not effectively realized, by default, the criminal justice system increasingly absorbed individuals who were not able to function acceptably and independently in the community. This phenomenon was aggravated by the dramatic increase in homeless populations in American cities and towns during the 1970s, 1980s, and 1990s, among which the mentally ill were, also predictably, well represented (Smith, 1996; Solomon et al, 1992; Snow, 1989).

Many mentally ill suffer from co-occurring disorders, often including substance abuse4 (Abram and Teplin, 1991). The enforcement efforts of the ?War Against Drugs? of the mid-1980s and early 1990s directed against drug offenders inadvertently fostered increases in arrests and prosecutions of drug-involved offenders with mental illness. Moreover, recent law enforcement strategies emphasizing strict enforcement of ?quality-of-life? offenses and local ordinance violations have added to the probability that the mentally ill (and particularly the homeless mentally ill) will find themselves increasingly involved in the criminal justice system for minor offenses. Together, these factors have contributed to the perception that, for the mentally ill and the substance-abuse-involved, the criminal justice system has increasingly come to serve as the ?social service system of last resort.?5

Setting the Stage for Court Responses to Mental Illness in Criminal Justice Caseloads: Recent Precursors to Mental Health Courts

The potentially large numbers of mentally ill persons in the criminal justice population have in common a processing in the criminal courts. Simple math suggests that the potential impact of the problems associated with the mentally ill on the judiciary in disposing of its criminal caseload is significant. Beyond the relatively infrequent special judicial determinations relating to civil commitment, competency, insanity and guilty-but-mentally-ill defenses, mentally ill defendants and offenders raise a more general challenge to normal case processing, when it appears that patterns of offending are explained by mental illness or disability and/or that effective treatment could control or prevent the occurrence of such patterns.

Two more recent developments have played an influential role in the emergence of mental health courts: the national crisis of overcrowding in local jails and the development of drug courts. At the conclusion of the 1980s, jails in many American jurisdictions reached critically overcrowded levels, driven in part by the large increases in arrests for drug-related crimes. This meant that in addition to previously unknown concentrations of substance abuse involved inmates, they also had to deal with growing numbers of inmates with mental health problems. Court systems in the most crowded jurisdictions participated in systemwide review of practices and problems that contributed to delays in processing and to the avoidable use of confinement of defendants and offenders in local jail facilities. Whether in response to Federal lawsuits or the need to address system dysfunction, many jurisdictions developed strategies to improve justice practices and implemented alternatives to routine processing and incarceration. To do this, they focused on the categories of inmates that contributed most to the excessive jail population levels, including drug offenders.

The ?decarceration? of categories of inmates in local jails, through emergency release procedures or more planned system improvements, forced local criminal justice systems to devise strategies to manage higher-risk defendants and offenders in the community. Key in most significant alternatives to incarceration or system improvement strategies were the criminal courts, because their procedures for organizing and disposing of the criminal cases and their uses of local confinement at pre- and post-conviction stages were the dominant influence on the local correctional population. At the end of the 1980s and the beginning of the 1990s, as drug enforcement expanded and criminal penalties for drug offenses increased, reform strategies inexorably sought to come to grips with the drug-related criminal caseload and drug offenders who were confined in state and local institutions. Thus, local justice systems faced the prospect of handling greater numbers of higher-risk and often drug-involved offenders in the community. The development of drug courts was prompted by the crowding crisis in the jails and criminal caseload crises in the courts.

Against the system strains brought on by the crack/cocaine epidemic and drug enforcement efforts, the ?invention? of the nation?s first treatment drug court in the Dade County (Miami), Florida, court system in 1989 represented a major reform milestone in American criminal courts in a number of ways. First, the philosophy underlying the Miami Drug Court departed sharply from the traditional process-and-punish orientation of large criminal court systems. Overwhelmed by unparalleled increases in the drug-related felony caseload, the Miami court leaders, the prosecutor (Janet Reno) and the public defender decided to reject ?more of the same.? The Miami system had shown that more enforcement, faster adjudication, more severe penalties and, even new jails had not reduced drug crime. However, they had clearly overburdened the resources of the local criminal justice system and, with a seemingly inexhaustible supply of drug offenders, there appeared to be no end in sight. To respond to this situation, Miami justice leaders designed what Attorney General Reno describes as a ?carrot-and-stick? approach to provide drug treatment to felony offenders through a different use of the criminal court as a treatment catalyst and therapeutic tool.

The drug court movement is described elsewhere in detail.6 Its relevance to understanding the emergence of mental health courts stems first in its philosophical breakthrough, that is, the decision that criminal courts could appropriately intervene to ?treat? addicted offenders, and also in its provision of a significant alternative to confinement in the local or state correctional systems. The reasoning was simple and recognized the principle that to reduce drug crime it made sense to tackle its cause: substance abuse. In addition to its tough-minded but helping philosophy, the Miami Drug Court departed from the traditional hands-off approach of the judiciary, which reflected a belief that the myriad social problems in the lives of offenders were not the responsibility of the courts to address. (This included a strong belief that judges were not social workers.)

The judicial philosophy behind the Miami Drug Court was, instead, hands-on, arguing in sharp contrast that the criminal court judge and criminal courtroom could play a major role in getting offenders off drugs and setting them in the direction of more productive and law-abiding lifestyles. Another revolutionary element of the Miami innovation was the development of a new working relationship between (drug treatment and other health) professionals and the criminal court. The Drug Court was based operationally on multidisciplinary teamwork and cooperation at all stages (although led and supervised by the judge).

The success of the drug court idea in the United States and abroad is now well-known. The Miami approach struck such a chord among other localities and court systems that first one, then a handful, and then hundreds of other court systems adapted the treatment court model to address their own local drug crime problems. Remarkably, the drug court model of demand reduction among substance abusing offenders is now supported through a variety of state and federal funding sources with a dedicated office in the Department of Justice (the Drug Court Program Office of the Office of Justice Programs).

More important for understanding the emergence of mental health court strategies than the apparent popularity of the Miami innovation, is the fact that the Miami Drug Court opened the door to direct judicial involvement in dealing with the significant problems associated with large numbers of persons in the criminal caseload, and in focusing on substance abuse. The proactive, hands-on, problem-solving model pioneered in Miami accomplished much more than just to help proliferate the drug court model across the nation. It broke down important barriers that made possible other court-based justice innovations that continue to reshape American courts. Spin-off innovations include the Midtown Community Court and a whole second generation of community courts, a growing number of domestic violence courts, court-initiated programs focusing specifically on female offenders and their treatment needs, and other special court approaches dealing with problem populations making up the criminal caseload.

The drug court innovation set the stage for other special court approaches, including mental health courts, by providing a model for active judicial problem solving in dealing with special populations in the criminal caseload. But, in addition and not coincidentally, as the involved judiciary learned more about substance abuse and serious addiction among offenders, they also learned more about disorders, such as serious mental illness and disabilities, frequently co-occurring with substance abuse. In fact, as drug courts became more efficient at identifying candidates and providing treatment, the prevalence of mental illness in the substance-abusing justice population became increasingly apparent.

Earlier Prototypes: Special Court-Centered Judicial Precursors to Mental Health Courts

The criminal justice system generally, and particularly the courts in considering probation, the jails in housing inmates locally for short periods, and the police in enforcing nuisance offenses have struggled with the problems posed by mentally ill defendants and offenders for decades. The very recent emergence of the mental health court approach in a handful of jurisdictions does have parallels, if not direct origins, in earlier court-centered initiatives dealing with mentally ill offenders in the 1960s.

Matthews (1970), for example, describes ?court-centered mechanisms? for ?therapeutic disposition? of cases of defendants exhibiting mental illness in the Municipal Court of Chicago and the Supreme Court of the City of New York.

Matthews reports that early in the 1960s, the Municipal Court of Chicago had jurisdiction over misdemeanors and sat as committing magistrates for felony cases. The Psychiatric Institute, which was administratively attached to the court, had two divisions. One was housed in the same police headquarters building as the misdemeanor branch of the court and handled misdemeanor referrals. The other, an in-patient facility, was located at the main city jail next to the building housing the felony branch of the municipal court. The primary function of the Institute was to make psychiatric evaluations on issues of competency to stand trial and on issues of criminal responsibility of defendants charged with felonies. If the Institute found that a felony defendant referred for evaluation was suffering from a mental illness, and the gravity of the crime or the danger posed by the defendant was not too serious, it could recommend alternatives to criminal justice sanctions, including civil commitment or, in the case of minor felonies, out-patient therapy as a condition of probation. Cases were sent back to criminal court when mental disorder was not found or was found to be irrelevant to the crime charged.

Misdemeanor defendants were referred to the Institute by administrative order, often by the arresting officer or by the judge after observing odd behavior in a pretrial hearing. Such cases usually involved defendants who were unable to make bail or afford the services of private counsel. Although there was no legal basis for the referral, there was little objection to it. Public defenders did not object, as the referral often led to a nonpenal disposition for the defendant. A psychologist and a psychiatric social worker interviewed the defendant. The psychiatrist would then prepare a letter for the court containing sentencing recommendations for non-criminal dispositions that were almost always followed. In 1 year, according to Matthews (1970:180), Institute referrals resulted in the diversion of 1,729 mentally ill offenders. Recommendations included out-patient treatment in a clinic or office, out-patient neurological treatment, and alcohol treatment, but most of the recommendations were for civil commitment. In addition to the evaluations and recommendations, the Institute provided temporary clinical custody for referred defendants and made the arrangements for the therapeutic dispositions. When referrals resulted in therapeutic dispositions, the criminal charges were routinely dismissed.

According to Matthews (1970:186-92) the New York procedure through which mentally ill defendants were diverted to the health care system was more likely to occur at the time of arrest than after the case had gotten to the courtroom, as in Chicago. He describes the emergency detention procedure in New York as more effective in producing referrals than the Chicago model because it was easier for police to access.7 Male arrestees were taken to Bellevue Hospital, while females were taken to Elmhurst Hospital. Both Hospitals had prison wards that were administered by the department of corrections, a connection that facilitated interactions between the criminal justice system and the mental health system in New York City.

When defendants were referred for competency/responsibility evaluations by the court, according to Matthews (1970:187) they were committed by court order to 30 days of in-patient observation and examination. Felony defendants were given a hearing in the prison ward, of which a transcript was kept. The hospital prepared a report and recommendation for the court that included medical opinions regarding the defendant?s ability to get along outside of the hospital and/or on probation, and relating to the defendant?s criminal responsibility and competency to stand trial. When a noncriminal disposition was proposed, a treatment plan was prepared. If a felony defendant was found incompetent, New York law mandated commitment to Mattawan State Hospital. Civil commitment was often recommended in the cases of incompetent misdemeanor defendants. The court frequently followed the medical recommendation for nonpenal dispositions. Elmhurst Hospital generally arranged the treatment program and began treating its female patients before the case was referred back to court for final disposition. Bellevue did not arrange for the treatment of the male patients processed there.

Early Mental Health Court Approaches in Four Jurisdictions

The recent emergence of mental health court strategies can be understood in part against the background of longstanding criminal justice difficulties in dealing with mentally ill persons, earlier court-based initiatives, the deinstitutionalizing of the mentally ill, the pressures of jail crowding, the exploding drug caseloads, and, more recently, the alternative judicial philosophy and methods of the treatment drug court model. Momentum for the development and implementation of such initiatives has also been created by dramatic incidents involving random violence, focusing public, media, political and criminal justice system attention on the problems of the mentally ill in the criminal justice system.

Within this historical context, this report examines four pioneering mental health courts to identify common, critical ingredients that may form basic elements of a mental health court model, as this judicial problem-solving strategy becomes more prominent. At the time of this writing, the mental health court initiatives in Broward County, Florida; King County, Washington; Anchorage, Alaska; and San Bernardino, California, represent the first judge-supervised, court-based innovations designed to address the problems of mentally ill defendants and offenders in the criminal caseload in the United States.

1 See, e.g., Ford v. Wainwright, 447 US 399 (1986) in which the U.S. Supreme Court held that the eighth amendment prohibited the state from inflicting the death penalty upon an insane prisoner; see also Mossman (1992).

2 In 1998, law enforcement agencies nationwide made 14.5 million arrests for all criminal infractions excluding traffic violations. UCR (1998) at p. 209.

3 Sourcebook of Criminal Justice Statistics, U.S. Department of Justice, Bureau of Justice Statistics, Washington, DC: USGPO, (1998), pp. 388, 431, 435.

4 According to Ditton (1999), a majority of mentally ill inmates suffer from co-occurring substance abuse problems.

5 See Wexler and Winck (1996) for a discussion of therapeutic jurisprudence and its application to the mentally ill in the justice system. See Hora et al. (1999) for a discussion of drug courts from the perspective of therapeutic jurisprudence.

6 For discussion of the evolution and impact of drug courts, see Goldkamp (2000; 1999; 1994) and Hora et al. (1999).

7 ?The importance from the police viewpoint of a clear and expeditious emergency detention procedure can scarcely be exaggerated. Emergency detention offers the policeman a quick and simple method of dealing with apparently disturbed persons who are unwilling or unable to go voluntarily to a hospital or some other place where care may be had. If the police do not have clear-cut authority to make an emergency detention on the grounds of apparent mental illness, or if the emergency detention procedure is cumbersome, as it was under the Illinois Code, the police fall back on the criminal arrest for disorderly conduct...? (Mathews, 1970: 173-174).

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