Mental health courts are creating a great deal of discussion and have provoked a surprising variety of responses from stakeholders in the criminal justice system and the mental health system. Here are some of the challenges, questions and tensions under discussion.
Use of Jail
Many mental health court practitioners struggle with the issue of whether it is ever appropriate to use jail as a sanction for defendants who fail to take their medications or participate in treatment. In drug court, there’s a certain logic to sending offenders to jail for dirty urine because they’re violating the law—there’s a clear connection between the incarceration and the violation. When a mentally ill defendant stops taking his medications, he may have violated the court’s order but no law has been broken. What kinds of sanctions are appropriate in this case? And apart from appropriateness, there are questions about the effectiveness of jail for offenders with mental illness. For instance, the King County Mental Health Court in Seattle, Washington, tries to avoid using jail sanctions because offenders’ mental condition often deteriorates in jail, making it harder for them to re-engage in treatment upon release (Cayce, 2000). The San Bernardino, California Mental Health Court also seeks to avoid the use of jail, but for a different reason. Interestingly, they found that offenders with mental illness were simply not motivated by the threat of jail. Many regarded a stay in jail as a welcome relief from the difficulties of life in treatment or in the community (Morris, 2000). As a result, San Bernardino has aggressively employed community service sanctions instead.
Beyond Legal Competency
Legal competency statutes and rulings set a very low standard for participation in criminal proceedings. Even if defendants meet the standard for legal competency to stand trial, their mental disorders may impair their abilities to make effective treatment decisions (Grisso & Applebaum, 1998). Given this, what expectations of competency should mental health courts adopt? One approach to this difficult question is offered by King County, which permits defendants to enter treatment for a short period of time pre-plea to stabilize their condition and maximize their ability to make competent decisions about their legal and treatment options.
Mental illnesses are various and complicated. Are certain mental illnesses less susceptible to treatment than others? How do you handle defendants for whom medication simply has no effect? Are there some illnesses for which treatment will have no impact on recidivism? Is there enough “integrated” treatment available for defendants with co-occurring disorders?
A single sensational story about a participant committing a violent act could be enough to sink the entire mental health court movement. Courts must always balance the desire to rehabilitate with the need to preserve public safety. How can mental health courts quickly and effectively assess the public safety risks posed by defendants with mental illness? How reliable are the available risk assessment instruments? How should they be used?
Stigma and Confidentiality
Do mental health courts run the danger of stigmatizing defendants with mental illness? What happens if a defendant decides not to opt in to mental health court and the case is transferred to a conventional court? What information should the new judge and prosecutor receive about that defendant’s mental illness, if any? And would this information have the potential to prejudice the way that the prosecutor and judge treated the defendant in subsequent proceedings? More generally, what kinds of confidentiality protections are appropriate for the information that defendants reveal as part of their involvement with mental health court?
Many defendants with mental illness are homeless—they need housing in addition to treatment. And the effectiveness of treatment may be seriously compromised without adequate housing (Ades, 2001). How will mental health courts ensure access to housing for those defendants who require it?
The vast majority of participants in mental health courts will require public benefits—Medicaid, Social Security Insurance or Social Security Disability Insurance—for their subsistence and treatment. These federal benefits are often terminated or suspended when a person is jailed. As a result, when defendants are released, they must re-apply for benefits. It often takes several weeks before benefits applications are processed and payments begin. This leaves many defendants with mental illness in limbo, unable to meet their basic support and health needs (GAINS Center, 1999). What, if anything, can mental health courts do to address this problem?
The Role of the Courts
Many individuals who end up in mental health courts have already been in the mental health system at some point in their lives. What evidence is there that courts can bring about different results? What do they bring to the table that’s unique? Is it simply coercion? Or is it something else? Can courts promote enhanced system integration, bringing together criminal justice, mental health and drug treatment agencies?
Answering these questions will go a long way toward coming to terms with a more fundamental question: Are mental health courts a good thing or a bad thing? This is a question that can only be answered over time, with the help of solid, independent research and more practice on the ground.
While mental health courts have raised difficult legal, ethical, practical and therapeutic concerns, it is important to note that many of these issues are not entirely new. Drug courts, community courts, domestic violence courts and other problem-solving courts have been grappling with these issues for years. And the record has shown that on a local level, many problem-solving courts have managed to figure out answers to thorny issues of confidentiality, proportionality, case targeting and public safety. Mental health courts must figure out how to build on the best of the existing problem-solving courts while formulating new responses to issues that are unique to the mental health field.
Ades, Y. (2001). Interview with Yves Ades, Director, Mental Health Programs, Center for Alternative Sentences and Employment Services, New York, NY.
Cayce, J. (2000). Interview with Hon. James D. Cayce, Presiding Judge of the King County District Court, who planned and presided over the King County Mental Health Court located in Seattle, WA.
GAINS Center (1999). Medicaid Benefits for Jail Detainees with Co-Occurring Mental Health and Substance Use Disorders. Prepared by Sherman, R. Delmar, NY: The National GAINS Center for People with Co-Occurring Disorders in the Criminal Justice System. Available: http://www.prainc.com/gains/publications/medicaid.htm
Grisso, T. & Applebaum, P. (1998). Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. New York: Oxford University Press.
Morris, P. (2000). Interview with Hon. Patrick Morris of the Superior Court in the City of San Bernadino, California about the Mental Health Comprehensive Offender Umbrella for Release and Treatment program.