David B. Wexler and the late Bruce J. Winick co-founded the field of social enquiry known as therapeutic jurisprudence, which seeks to assess the therapeutic and counter-therapeutic consequences of law and effect legal change to increase the law’s healing potential. Here they talk about the relationship between therapeutic jurisprudence and mental health courts.
Bruce J. Winick is professor at the University of Miami School of Law. David B. Wexler is a professor of law at the University of Arizona in Tucson, Arizona. Together they are the leading authorities on "therapeutic jurisprudence." They have co-authored and co-edited numerous books and articles, including the landmark volume Judging in a Therapeutic Key. In January 2005, Winick and Wexler spoke with the Center for Court Innovation’s Carolyn Turgeon about the relationship between therapeutic jurisprudence and mental health courts.
What work have you done in mental health courts?
Winick: We think they’re a good idea. I just finished co-editing, with Susan Stefan, a symposium issue that will be published in Psychology, Public Policy, and Law, in which I am very pro-mental health court. It contains articles, both positive and critical, of these courts, and suggestions on how they should be evaluated. Susan and I differ in our views of these courts, and our disagreement is expressed in a dialogue contained in the foreword of the issue. It should be out some time in 2006. The first mental health court was started as a misdemeanor court by Judge Ginger Lerner-Wren in Broward County, Florida, and was crafted using therapeutic jurisprudence.
Basically the notion behind mental health courts is that there are going to be people in the community as a result of de-institutionalization and the tightening of commitment standards and the like—people who are going to need continued mental health treatment but who for a variety of reasons won’t take their meds or won’t have access to facilities, etc. And some of them are going to get into trouble. They’re going to commit minor criminal offenses. They’re going to urinate on someone’s lawn. They’re going to trespass in a store or they’re going to wander in traffic, and get arrested. And when they are arrested they are going to suffer terribly because a jail is one of the most stressful environments for someone with mental illness. A jail doesn’t have much in the way of treatment resources—it’s noisy, it’s overcrowded, and people are going to decompensate further. I think everyone agrees that’s the worst possible thing for people with mental illness. So what’s the remedy?
Well one remedy is: let’s be careful and not arrest these people. Let’s divert them from the criminal process and educate our police officers to recognize people with mental illness and bring them to treatment rather than to jail. But obviously some of them are going to go to jail, so how can we divert them—those who don’t provide a serious risk of danger to the community—from jail and into the treatment they really need? Mental health court is designed to do just that.
In a way, the mental health court is functioning as a sophisticated social work agency by helping to link people with needed services and to motivate them to get those services. In addition, the mental health court can do this more effectively as a result of the criminal charge that brought the individual to the court’s attention. The individual, after all, is alleged to have committed a crime. The criminal charge provides a degree of leverage in this process just as it is in drug treatment court and domestic violence court. So basically we see mental health court as another application of a problem-solving approach. I think it’s a much superior alternative to something that some jurisdictions are moving toward right now called preventive outpatient commitment, which is allowing the court to mandate that people receive treatment in the community. Outpatient commitment is too paternalistic. It’s overtly coercive, and coercion does not work as well as voluntary choice. The mental health court gives people an option, gives them a choice, and lets people internalize the value of accepting treatment.
Wexler: There’s a related point. A number of people basically say that courts shouldn’t be in this business, the criminal justice system shouldn’t be in this business. What all of this really suggests is that we should just have increased resources, social services and treatment—and of course we should. But those who think that the courts and the criminal justice system shouldn’t be involved in this are really, I think, short-sighted in the sense that very often people’s need for treatment doesn’t come to anyone’s attention until they are arrested or brought to court.
I just read a case in the federal system called Riggs. Riggs suffered from paranoid schizophrenia, and he suffered for two years before getting any treatment at all. The first time he got treatment was when he was arrested for something, and he pled guilty, got treatment, and was released on probation. He was taking oral medication and was okay, but after a couple of years he stopped and began having hallucinations again. He was arrested again, on a federal charge this time, and at that point he was put on medication augmented with monthly intramuscular injections. So if he were to forget his medication, the injections were kind of a back-up. In addition, using some therapeutic jurisprudence kind of principles, his mother was brought into the process, and she gave daily reminders to him to take the medication. And that seemed to do the trick.
It’s interesting to me that both of his treatments—first the oral medication and then the oral medication augmented by the injections—occurred when he got into trouble with the criminal justice system and I just think that’s going to be a fact of life no matter what programs and treatments and services we develop. I do think we need to develop those, but I also think the criminal justice system and the courts will be functioning as a type of legal emergency room.
Do you have any concerns about mental health courts?
Winick: I think one of the concerns is we don’t want to see a widening of the social net. We don’t want to see people being arrested for things they wouldn’t previously have been arrested for just to get them into treatment. That’s certainly a potential concern that people will say, “Wow, mental health courts are working so well, let’s tell the police to arrest more people,” and I think that would be a mistake.
How effective do you feel that mental health courts have been in practice?
Winick: I think we need to do thorough evaluations. One of the articles in the symposium is a methodological piece about how these evaluations should be done. Many evaluations that have been done of these and other treatment courts have not met the standards for scientific research. I do think that drug treatment court and the other courts have been effective, but I’m not sure that that has been demonstrated with sufficient methodologically sound research. I think we have to do a bit more of that because obviously we’re putting public money into these programs and we deserve to know what works and what doesn’t work.
Wexler: I think first of all that evaluations are very important, and I think it’s important for both problem-solving courts and therapeutic jurisprudence not to shy away from rigorous evaluations and from changing programs or ideas or modifying them based on the results of studies.
Also, I don’t think we should confine ourselves solely to recidivism rates when we’re evaluating certain kinds of problem-solving courts or interventions. There have been some comments about other possible outcome measures—relationships within one’s family, improved self-concept, employment, whatever. And I just think this is a very fertile area for discussion and for research.
Have your ideas of therapeutic jurisprudence changed at all as you see it applied in mental health courts?
Winick: It’s still a new phenomenon. I think the one in Broward has been there for about seven or eight years, but up until two years ago, there weren’t more than a handful of such courts, and now there are about 100. So I think it’s still a fairly new phenomenon, and one of the things we have to do is provide more training for the judges in these courts.
It would be helpful to standardize some of what they are doing. A particularly charismatic judge might make a dramatic impact on someone’s life, but how do you replicate that? What are the processes and procedures and techniques that should be used? I think we need to do more talking about this. In a way our book Judging in a Therapeutic Key (Carolina Academic Press, 2003), was an attempt to introduce judges to some of the techniques drawn from psychology and social work that we think indicate good practice in these areas. I think there needs to be more conferences and training sessions for judges so that a consensus can emerge about best practices in this area.
Wexler: And for lawyers as well. I’ve become more and more aware of the importance of the lawyer’s role in working with someone to make sure that they are really consenting. Some of the reports suggest that despite what the judge says, many people still don’t realize they have a choice. I think that the literature also suggests that if someone really knows that they don’t have to do this, that they can go into the regular criminal justice system but have opted for this, then that’s probably a very good thing. And I think that there may be a very important role before the trial, before the hearings, for lawyers. Perhaps more beefed up than it has been to-date. So some of my thinking is changing as I see what some of the practices are in mental health courts and elsewhere.