Law & Psychiatry: Can Mental Health Courts End the Criminalization of Persons With Mental Illness?

There is hope that the use of special courts will remedy the problem of people with mental illness languishing in the criminal justice system (1). In mental health courts, trained judges and attorneys work with clinicians and defendants to fashion treatment alternatives to exoneration or punishment. Although mental illness does not usually lead to legal problems, and some crimes committed by people with mental disabilities are not a result of their disability, many people do enter and remain in the criminal justice system as a result of mental disorders. Are special courts the answer?

Long before a judge becomes involved, diversion from the criminal justice to the mental health system should be arranged for an individual with mental illness charged with such offenses as loitering (for being homeless), lewdness (for cursing or urinating in public), and disorderly conduct. Arrest and prosecution do little to help such people recover. Incarceration can exacerbate the illness and result in victimization, loss of public benefits, and suicide. Often people are arrested because police officers cannot ignore a troublesome situation but are unable to spend hours navigating the mental health system.

It is in everyone's interest to train police and jail staff to recognize mental illness, to deescalate crises, and to establish appropriate connections to mental health providers. The Substance Abuse and Mental Health Services Administration (SAMHSA) has funded a study of nine communities' diversion efforts as well as "capacity expansion" projects and a national technical assistance and policy analysis center. These are important steps.

However, many people with mental illness who are entangled in the legal system present more difficult challenges than occasional arrests for disorderly conduct. These individuals repeatedly cycle through the process, often charged with misdemeanors or low-level felonies as well as disorderly conduct. Crimes involving aggressive panhandling, substance use, or relatively minor violence are sometimes involved. Although imposing criminal responsibility may be inappropriate because of the illness's effect on the person, the insanity defense has a low success rate and is almost always an irrelevant option.

To the public and the media, this revolving door consumes significant tax dollars, yet the disruptive behavior continues. Police, jail, and court personnel are exasperated as their resources are diverted from their central missions. Family members watch in sadness. Most of all, the person with mental illness suffers.

People in this situation frequently experience both mental illness and substance use disorders but go without effective treatment. Although there are many reasons for undertreatment, it is easy to blame dysfunctional service systems or a lack of insight. One thing is clear, however: the criminal justice system is not designed to treat people with serious disabilities. Diverting "cyclers" from the criminal justice system seems sensible, but the question remains: Divert them to what? Many have had unsuccessful experiences in the mental health system. What will make a difference?

Mental health courts, with trained judges and lawyers, clinicians available for assessment and community treatment planning, and the capacity to monitor service delivery, may be effective for these consumers. Fewer than 30 mental health courts are in operation today, and they vary enormously in eligibility criteria, procedures, and other basic elements (2). As these courts proliferate, various concerns have been raised: Will use of such courts amount to "net-widening"? Where will the services come from? Will coercion increase? Should people not be held responsible for their behavior? Are special courts another "paradigm shift" that misses the problem? Much is simply unknown.

Although frequently seen as clones of the drug courts, mental health courts are different; possession or use of street drugs is a crime, whereas having a mental illness and not complying with treatment are not. Moreover, more than a thousand drug courts have been in operation long enough for standardization to have evolved and empirical evidence on effectiveness to have been compiled.

Some preliminary research on mental health courts has been undertaken. An evaluation of the first two years of the Seattle mental health court found that the target population experienced a decrease in involvement with the criminal justice system and an increase in mental health treatment engagement. The report notes that the court's effectiveness was strongly dependent on the ongoing collaborative support of the stakeholders (3). An inquiry into the views of consumers in Broward County, Florida, where the best-known mental health court is located, found that participants in the special court in 1999 did not experience their involvement as coercive (4). Such findings, although tentative, are promising.

In accordance with federal legislation, the U.S. Department of Justice is awarding grants to communities that are creating mental health courts and is funding a national center whose role includes research. As outlined below, at least two sets of issues warrant attention.

Individual liberty and closing the revolving door

If consumers who commit minor offenses are diverted before arrest or very soon afterward, those who remaining in the criminal justice system will face serious charges. Although violence is not involved in most cases, the stakes are substantial for all concerned. The need for public order and the concerns of any victims must be addressed, and the liberty of the accused is at significant risk. Such factors may cause attorneys for defendants and the state to be skeptical of special courts.

Criminal courts are designed to determine whether a defendant is guilty through an adversarial process that seeks to protect the constitutional rights of the accused. The value placed on liberty is expressed in the presumption of innocence and the requirement that the state prove guilt beyond a reasonable doubt. Rules governing search and seizure, self-incrimination, and other rights apply to every person charged with a crime. These elements are at the heart of our concept of due process.

Defense attorneys, bound to represent zealously their clients' interests and liberty, are loath to relinquish any fundamental rights. Although mental health courts focus on treatment rather than punishment, judicial supervision infringes on personal liberty for lengthy periods, often longer than the sentence that would have been imposed for a conviction. Some people might feel that liberty is better served by a sentence of months in jail than by years of mandatory supervision. Counsel for the accused may believe that there is an effective defense to the charge and insist on the charge's dismissal before diversion to possibly years of court appearances, treatment monitoring, urine tests, and other requirements.

On the other side, state attorneys want the defendant to plead guilty as a precondition to diversion to mental health court treatment. They are concerned that if the defendant does not comply with treatment, the case will be more difficult to try later, because witnesses may move away or forget facts. Prosecutors are also troubled by the position advanced by some advocates that all treatment must be voluntary. Given that the individuals who benefit most from this alternative to incarceration are those facing substantial charges, it would be ironic if insistence on voluntary treatment induced prosecutors to limit eligibility to nuisance offenses.

These adversarial tensions are unlikely to be resolved. One suggestion is to defer the issue—to adjourn the proceedings in favor of a judicially monitored treatment plan for 30 to 120 days, during which time the defendant determines whether the regimen is acceptable and the prosecutor assesses the defendant's compliance with it. Although this approach is precluded in courts that limit eligibility to those who have pleaded or been found guilty, it would permit the case to be negotiated on a more individual, less abstract basis.

Courts and treatment delivery

Knowledge is accumulating about the effectiveness of integrated mental health and substance abuse treatment as well as person-centered services such as assertive community treatment, peer involvement, and housing and employment support (5). Such comprehensive services are rarely available in a single community. In deciding individual cases, mental health courts cannot create new resources, but they may set service priorities. Providing treatment to a person in a diversion program may delay or prevent treatment for a person who has not been arrested—a disturbing form of rationing. Thus if new services are not provided when a mental health court is established, little net benefit can be expected. Although easier said than done, decreasing jail time would allow the redirection of some funding to community mental health services.

To the extent that services exist but are difficult to negotiate, the ongoing attention of an interested judge can improve coordination and outcome. However, when providers fail in their responsibility to serve consumers who have complex problems, the court has no real power. Given that the agencies are not parties to the criminal case, the judge can neither order them to do anything nor sanction their failure to deliver. However, it may be possible to create a structure for provider input and accountability in individual cases through the state mental health agency's licensing authority or by state statute. Either approach would require careful political and operational analyses.

The most complex issues concern confidentiality and the defendant's cooperation with treatment. For example, the law presumes that treatment is provided on a voluntary basis—each individual has the right to control his or her body and personal information. Refusal to be medicated may be overruled in some states only if a judge determines that an involuntarily committed patient lacks the capacity to make treatment decisions. It may be unrealistic to expect that such issues can be appropriately addressed in a criminal court proceeding.

In short, people who need treatment go without it because of the interplay of service availability, provider effort, and consumer cooperation. Research must determine the extent to which mental health courts can fairly balance the interests of consumers and the community, reduce traffic through the revolving door, and remain cost-effective.

Useful, but not a panacea

Despite these uncertainties, mental health courts may be able to help difficult-to-serve consumers. Stakeholders need to acknowledge their divergent motivations in order to agree on priorities and outcome measures—for example, a decreased jail census, less disruptive behavior in the community, greater consumer satisfaction, and greater rates of treatment compliance. Political leadership will be needed for the savings from reduced jail stays to be redirected to mental health services.

Tensions between priorities will not vanish, nor should the benefits of mental health courts be oversold. Such courts are but one of many systemic changes that are needed. Other essential components include coordination between police and the mental health system in crisis situations, prebooking diversion, treatment for incarcerated persons, discharge planning initiated long before release, and reentry programs.

Although funding is never adequate, the importance of collaboration at the crossroads of the mental health and criminal justice systems is increasingly being recognized. For example, the Council of State Governments published an extensive set of cross-system recommendations (6) that was the subject of a recent Senate committee hearing (7) and may serve as the basis for federal and state legislative proposals. In the initiatives noted above, both SAMHSA and the Department of Justice are seeking to identify evidence-based best practices at the intersections of the two systems. In addition, the National Institute of Mental Health is funding a research center, to open this year at Rutgers University, that will work on improving the ways criminal justice agencies treat people with mental illness.

Ending the criminalization of people with mental illness is a daunting challenge. The requisite elements range from empirical knowledge and funding to communication and compromise. Efforts to address these matters at least have been initiated. Special courts are not the only answer but may be an important component of the solution.

Mr. Haimowitz is a senior program associate at Advocates for Human Potential, Inc., 262 Delaware Avenue, Delmar, New York 12054 (e-mail, [email protected]). Paul S. Appelbaum, M.D., is editor of this column.