Mental Health Courts

Research Paper

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Mental health disorders are overrepresented within United States prison systems. Available national statistics show that nearly one quarter of state prisoners had received a clinical diagnosis or treatment within a 12-month period; when prisoners with symptoms of a mental disorder were also included, 56 % of state prisoners were defined as having a mental health problem (James and Glaze 2006 4). This alarming overrepresentation has been linked to the deinstitutionalization of mental care facilities and the lack of creation of outpatient services to fill the void created by their dismantling. Some of these mentally ill individuals that have fallen through the cracks of the health-care system have instead been swept up by the criminal justice system, in many cases for offenses related to the lack of treatment for their mental illness. Once they become a part of the criminal justice system, these mentally ill individuals often receive inadequate care for their mental illness and begin a cycle of reoffending and institutionalization in which their mental health needs are never appropriately addressed. James and Glaze found that almost one in four of state prisoners or jail inmates who had a mental health problem had been incarcerated three or more times (compared to one-fifth of those without, Id. at 1). Their analysis of national data also documents more homelessness, substance abuse, and prior traumatic abuse for mentally ill inmates compared to other offenders, as well as less utilization of treatment for these populations within the criminal justice system. Criminal justice agencies from police to corrections are increasingly concerned about the costs associated with using the justice system as the treatment facility of last resort, a function it is rarely equipped to adequately perform.

Mental health courts (MHCs) fall under the auspice of problem-solving courts as they seek not only to reduce the number of mentally ill persons cycling through the criminal justice system but also to improve the lives of their clients by helping them cope and better manage their mental illnesses. MHCs attempt to do this by restructuring the courtroom into a cooperative work group, where defense lawyers, prosecutors, probation officers, and mental health case workers work together providing monitoring, treatment, and linkage to external mental health facilities for the court’s clients. During these proceedings the judge abandons his/her traditional role as a neutral arbitrator and interpreter of the law and becomes a risk manager who relies on the expertise of the courtroom staff but has the final decision about the potential risk the court’s clients pose to themselves and the public, as well as implementing treatment plans designed specifically for each client and monitoring clients (Talesh 2007).

The Nature Of Mental Health Courts

While there are many ways to address the insufficient approach to mentally ill offenders, one of the most notable and popular approaches is through the adaptation of problem-solving courts, best known through the longest-running variation, the drug court. Problem-solving courts use the concept of therapeutic jurisprudence. According to Berman and Feinblatt (2001) problem-solving courts share five elements: (1) They seek tangible outcomes for victims, offenders, and society such as reduced time in hospitalization for mental illness, (2) they seek to restructure how the government responds to social problems such as drug addictions and mental illness, (3) the use of judicial authority to change behavior of litigants and solve problems, (4) the collaboration between the courts and social services, and (5) nontraditional roles for judges, attorneys, and prosecutors.

Nationally, mental health courts are one of the fastest-growing types of problem-solving courts. Examples such as the Nathaniel Project in New York and the Behavioral Health Court in San Francisco are models for innovations across the country. The first MHCs were developed in the 1990s in the United States and Canada out of grassroots movements combined with government interest in diversion (Scheider et al. 2007, 34). The growth in the United States is partially due to the availability of seed money from the federal government, including a mental health court grant program established by the America’s Law Enforcement and Mental Health Project Act of 2000 (Scheider et al. 2007, 167). However, matching funds are often required and the federal start-up funds are short term, so jurisdictions must be committed to providing internal funding. The spread of MHCs is also assisted through the information sharing made possible by organizations like the Criminal Justice/Mental Health Consensus Project, coordinated by the Council of State Governments Justice Center, which releases reports and maintains a database of best practices and model programs (http://consensusproject.org/, accessed 4/12/13). The well-established Center for Court Innovation, a public/private partnership between the New York State Unified Court System and the Fund for the City of New York, includes a focus on mental illness and also provides research, expert assistance, and demonstration projects such as the Brooklyn Mental Health Court (http://www. courtinnovation.org/, accessed 5/19/12).

The Process

Although MHCs fall under the rubric of problem-solving courts, their rapid proliferation, the multiple forms they assume, and the way they operate make defining what exactly a MHC is and how it operates problematic. For example, Griffin et al. (2002) describe how MHCs use at least three different methods of disposition of criminal charges to get their clients to adhere to their treatment regime. While people may enter a MHC at different stages of the justice process (at arrest in a true diversion program or after conviction or sentencing), referral is typically initiated by the public defender’s office, a judge, or a probation officer. Most programs restrict participation based on an offender’s criminal record, current offense, and mental health diagnosis. Eligibility is often determined by the prosecutors, and then selection is finalized by the mental health court team itself. Although the selection and admission details vary depending on the stage and level of the criminal justice process at which the court functions (e.g., misdemeanor diversion vs. felony violation of probation), generally, if an offender with mental illness agrees to participate, he or she is read a mental health court explanation that explains the tradeoffs that must be accepted in order to participate in court, including the right to contest the charges if the MHC is a pretrial diversion. Often, the judge estimates a time frame for program enrollment and provides a sense of the graduated sanctions that may be employed. Common conditions include regular contact with a probation officer, regular therapy or counseling sessions, drug and alcohol treatment, and abstinence from criminal behavior. Time frames range from a few months to a few years.

While the client is in the mental health court program, they attend regular status hearings. Before each status hearing there is a pre-court meeting of the MHC team members: the judge, the prosecutor and defense attorney, the probation officers, the treatment staff, and some support personnel. At these pre-court meetings the team members review each client’s behavior, discuss the client’s situation, and give recommendations to the judge regarding the disposition of each client. The clients are not present at these pre-court meetings.

The in-court status hearings resemble traditional court proceedings in some ways; they take place in a courtroom open to the public, with the judge, the prosecuting attorney, and the defense in their traditional places within the courtroom. One of the team members typically gives an account of a client’s progress since the previous status hearing, the individual and the judge talk briefly, and the judge rewards, sanctions, and advises the client accordingly. The performative nature of these sessions is even more striking than in traditional court proceedings; for example, the judge often gets his/her script from the other team members prior to court (“What should I say to Ms. Smith?”), and the order of client appearances may be calculated to send a message to other participants. For example, graduations may be conducted first, to dramatize what the other participants are working towards.

Though the exact definition of what a mental health court is and how it operates is elusive, Steadman et al. (2001) put forth four basic criteria which MHCs follow: (1) All persons with mental illness identified for referral to community-based services on initial booking are handled on a single court docket, (2) a courtroom team’s approach is used to arrive at recommended treatment and supervision plans with a person specifically designated as a “boundary spanner” to ensure actual linkage, (3) assurance of existing appropriate treatment slots is necessary before the judge rules, and (4) appropriate monitoring occurs under the court aegis with possible criminal sanctions for noncompliance, such as reinstituting continued charges or sentences. Redlich et al. (2005) describe a second generation of MHCs which are more likely to accept felony cases, use jail as a sanction, and offer different forms of court supervision. In 2006, Redlich et al. conducted a comprehensive survey of all the existing MHCs, and their results supported Redlich et al. (2005) in concluding that MHCs are continuing to evolve, as well as describing additional characteristics that are common to MHCs. In a 2009 review of the literature and based upon a consultation with leading researchers and practitioners, Almquist and Dodd also found that MHCs increasingly include violent offenders and recognize the co-occurring substance abuse needs that accompany the serious mental illnesses of their clients (2009).

Empirical Results

Increasing Treatment

While the earliest work on MHCs was descriptive in nature, studies of the effectiveness of MHCs have recently begun to emerge. These studies have generally relied on outcome comparisons between a certain MHC and a similarly situated court that handles the same type of offenders but that does not follow a MHC model. The results indicate that MHCs produce favorable outcomes in both providing their clients with increased mental health care and services, as well as reducing recidivism.

Boothroyd et al. (2003), in their evaluation of the Broward misdemeanor MHC, found that the use of behavioral health services by MHC participants increased from 36 % to 53 % after enrollment, and clients were 50 % more likely to continue receiving treatment after their court appearance than defendants in the comparison group. They also found that the amount of behavior health services that MHC participants received increased by 61.6 %, while the amount of behavior health services received by those in the comparison court decreased by 18.3 %. Trupin and Richards (2003), in their evaluation of two Seattle MHCs, found that those who opted into the MHC received more treatment and access to mental health care than mentally ill offenders that opted not to participate in the MHC. Using a 12-month pre-post comparison design, Herinckx et al. (2005) found that offenders who participated in the Clark County misdemeanor MHC in Washington “received more hours of case and medication management and more days of outpatient service after enrollment” in the 12 months after enrollment as compared to the 12 months before enrollment into the program, as well as spending less time in inpatient treatment facilities (855). Keator et al. (2013) also found that participants in MHCs accessed community treatment more frequently and at a quicker pace following discharge than those who did not participate in a MHC. The preceding studies indicate that MHCs have increased the amount of treatment their clients receive, which is an important step in breaking the cycle of continually re-incarcerating mentally ill offenders. Not only do MHC participants seek out community treatment at a greater rate than those who do not participate in a MHC, but participants have greater perceptions of procedural justice than those who do not participate in a MHC (Canada and Watson 2013).

Reducing Recidivism

A recent meta-analysis performed by Sarteschi et al. (2011), which quantitatively examines a large number of MHC studies to determine a pattern of significant results, found two distinct patterns: (1) that MHCs are consistently found to reduce recidivism among participants and (2) that the majority of participants in MHCs in the United States are white males in their mid-30s. The idea that MHCs reduce recidivism for participants is important because it is one of the main goals of a MHC; this illustrates the potential success of MHCs for the misdemeanor offenders who are chosen to participate. A multisite study conducted by Steadman et al. which compared 407 MHC participants with 600 matched offenders who had no contact with MHC, similarly found that in the 18 months following entry into mental health court, the MHC group had a lower rearrest rate, fewer post-18-month arrests, and fewer post-18-month incarceration days than the comparison group (Steadman et al. 2010).

Sarteschi et al. (2011) also indicate that MHCs appear to reduce recidivism among participants. MHCs are moderately effective in curtailing subsequent criminal activity, and as expected, the reduction in recidivism is most pronounced for individuals who participate and complete the guidelines outlined by the MHC. Examining the results of the meta-analysis, it appears that the reason for the reduction in recidivism for participants who complete a MHC has to do with their GAF (Global Assessment of Functioning) scores. The successful completion of a MHC has been found to increase participants’ GAF. The GAF test measures how well an individual deals with problems they encounter in their daily lives. The higher the GAF score, which ranges from 0 to 100, the lesser extent to which mental illness symptoms are present in the individual. These increased GAF scores indicate that individuals who complete a MHC are able to function to a greater degree in their daily lives and are less likely to be bothered by an unexpected problem. This could lead to a reduction in psychiatric emergency room visits for successful MHC participants, thus reducing individual and state costs, a finding supported by the meta-analysis performed by Sarteschi et al. (2011).

Specific case studies can allow for a more indepth analysis of how MHCs can reduce recidivism. McNiel and Binder compared 170 participants in the San Francisco Behavioral Health Court to 8,067 other adults with mental disorders who were booked into an urban county jail after arrest during the same interval (2007, 1396). Based on an intent-to-treat sample (i.e., all of those who enrolled in MHC regardless of completion), both the participants and the graduates were less likely to have any new charges than the comparison groups. After 18 months, only 34 % of MHC graduates had received any new charges, compared to 56 % of the treatment comparison (Id.). Most strikingly, the MHC graduates evidence half the rate of violent charges when compared to the other group (just 6 % of MHC graduates were charged with violent offenses during the follow-up, compared to 13 % of the others) (Id.).

Examining the 12 months after enrollment in a MHC, crime rates for individuals with a severe and persistent mental illness who completed the program were four times less than individuals who did not complete a MHC program (Herinckx et al. 2005). When examining just those participants who completed the program, after 1 year approximately 55 % had no arrests and probation violations were reduced by approximately 60 % (Herinckx et al. 2005). Overall, successful completion of a MHC reduced the likelihood of rearrest by approximately 3.7 times compared to participants who do not successfully complete a MHC program (Herinckx et al. 2005). MHCs also reduced the likelihood of new charges for violent crimes, and when new charges did occur, participants in MHCs had a greater period of time between charges than those who do not participate (Herinckx et al. 2005). The examination of violence and MHCs also indicates the reduction in new charges is maintained once the MHC graduate is no longer under court supervision. In general, studies indicate that MHCs reduce recidivism for individuals who successfully complete the court-mandated guidelines by showing the participant how to deal with problems that can arise in their daily lives, which reduces psychiatric emergency room visits and costs for both the individual and the state. However, it should be noted that the reduction in recidivism might only be a result of structured follow-ups with the MHC. According to Burns et al. (2013), once the structured period of follow-up with the MHC concludes, participants may see recidivism more in-line with the average of those who did not participate in a MHC. Their conclusions are based on a MHC in northern Georgia and a comparison of completers and non-completers 2 years after involvement in the MHC. While Burns, Hiday, and Ray’s results may not be representative to all MHCs, they are worth mentioning as an issue facing graduates of MHCs.

An additional cautionary note is needed here: the empirical support for mental health courts is promising, but it suffers from selection biases. No large random assignment study has been performed to date (but see Cosden et al. 2003). As McNiel and Binder explain in their study, “Although propensity weighting helps control for nonrandom assignment, it can only adjust for observed covariates, and it may not have adequately adjusted for unobserved variables that may have influenced selection into mental health court (e.g., as participants who entered mental health court voluntarily agreed to have their cases handled in mental health court rather than traditional court, it is possible that they differed in unobserved variables such as treatment motivation) (2007, 1402).” Thus, whether MHCs are helping the offenders who would likely have performed better without this intervention remains unknown.

Key Issues and Controversies

As discussed in the previous section, MHCs appear to be successful based on the empirical analyses completed to date, including the ability to successfully link participants with mental health services, reduce recidivism, reduce costs, and aid the decriminalization of individuals with less severe mental illnesses. However, this does not mean there are no controversies surrounding MHCs. Critics contend that they are coercive, ineffective when the proper mental health services are not provided, and that selection bias is present along gender and racial lines. This section discusses some of these controversies more closely.

MHCs as Reactive

The first major controversy surrounding MHCs is that they are reactive and fail to address the larger systemic and structural factors that account for the overrepresentation of the mentally ill in the criminal justice system (Leon 2007). Individuals with a mental illness who participate in these programs only receive treatment after they commit a criminal offense. While the specialty courts provide a link to treatment for those who need it, scholars echoing this criticism feel that mental health services need to be more adequately available for all individuals who need them. Instead of waiting for an individual to commit a criminal offense, mental health services must be more fully funded by all levels of government and available to individuals with mental illnesses who are untreated or undertreated. A more proactive response could include advertisement to inform individuals about available services, along with outreach to the community. Allocating resources for preventative care instead of providing a reactive “drop in the bucket” will entail providing services to all relevant persons within a community, instead of only those committing criminal acts. This would reduce any privileging of one group over another.

Mental Health Courts as Coercive

Another major criticism of MHCs is the troubling concern that individuals may not have a full understanding of the potential consequences when they choose to participate. While Canada’s approach demonstrates an insistence on reminding participants that they can withdraw at any stage, this is not typically the case in courts within the United States. Many of the studies find that although participants agree to participate, many claim they were not told that the program is voluntary (Sarteschi et al. 2011). Participants may not be told that the increased supervision they will undergo through the specialized program by its nature extends the opportunity for their failures to be detected and penalized. Another important concern to come out of this line of research is that many of the participants in MHCs do not understand facts about court procedures (Sarteschi et al. 2011). This is troubling because of the legal requirements of MHCs. Participants who are involved in the programs usually must plead guilty to their charge (Sarteschi et al. 2011). Once the participant successfully completes the program, their record may be expunged and the guilty plea should be erased. However, that does not always happen. Once the individual pleads guilty, a criminal record is established. If the individual does not complete the program, the criminal record stays with them and can subsequently haunt them. When an individual successfully completes the program, the charges and plea should be automatically expunged or dismissed and the criminal record should also disappear. Unfortunately, studies have found that this is not always the case. For whatever reason, some successful graduates of MHCs continue to have a criminal record even though the charge should have been expunged or dismissed.

Selection Bias

The meta-analysis performed by Sarteschi et al. (2011) indicated that the majority of participants in MHCs are white males in their 30s, even though African Americans, especially young African American males, are disproportionately represented in the criminal justice system. This indicates selection bias in MHCs, another major criticism of the specialty courts. This is not uncommon for jail diversion programs in general, as a disproportionate number of individuals being placed into jail diversion programs are older white females. Not only are there racial differences in admittance into MHCs, but there are also gender differences. While the majority of participants in MHCs are white males, females, especially white females with a severe mental illness, are more likely to be diverted into a MHC than men. This is even true when controlling for type of charge, crime, and race.

Furthermore, the other major finding of the Sarteschi et al. meta-analysis is troubling: the majority of participants in MHCs in the United States are white males in their mid-30s. Considering that a disproportionate number of African Americans are involved in the criminal justice system and that mental illness is found in a similar proportion of blacks and whites, the number of blacks and whites participating in MHCs should be almost equal. Having a majority of white males as MHC participants could indicate selection bias by the courts.

Critics of the selection criteria of MHCs argue that it is hard to examine whether a selection bias exists because there is often great leeway in selecting participants for the specialty court. Instead, it is up to the MHC to decide when someone fits the criteria to participate in the program; this comes up, for example, when deciding whether the details of past offenses count as “violent.” This allows for the MHC to choose participants that they think most likely to succeed and ignore a possibly more deserving individual who they think will not succeed: “cherry-picking.” A selection bias could indicate that MHCs are ignoring a certain population who needs treatment but might be seen as too difficult to treat. These views about who will be successful could ultimately lead to skewed research findings indicating MHC efficacy when they have not been tested across the eligible population.

Future Directions

Given the institutional support for mental health courts, as well as the promising data regarding their efficacy, their continuation and expansion seem likely. Researchers, practitioners, and advocates must remain attuned, however, to concerns about coercion and biases in the selection and treatment of participants, as well as to the broader efforts needed to prevent contact with the criminal justice system through comprehensive mental health care for all.

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