Reading List: Mental Health Diversion Courts

Yes, this looks like our daily Recommended Reading posts that Anna does for us every day – but it’s different. Reading List is a selection of links around a single issue or topic, as a start for those interested in exploring it further. The initial edition, on mental health diversion courts, was sparked when I came across the first article:

Susan Thornton, “A court for mental illness,” Denver Post, Nov 15, 2009

History will be made in Colorado’s 18th Judicial District this week when Colorado’s first districtwide adult Mental Health Court will convene to hear the case of “Robert,” age 37. Robert has bipolar disorder. He frequently goes off his medication, hasn’t followed through with treatment plans, has attempted suicide, and has been hospitalized three times. He has several prior convictions for shoplifting, violating restraining orders and resisting arrest. Now he says he wants to figure out a better way to live, and has volunteered for the Mental Health Court.

The court is a specialized treatment court designed to divert nonviolent felony offenders who have a serious mental illness such as bipolar disorder, schizophrenia or major depression, as well as those with a combination of mental illness and substance abuse. It is not open to those with violent behavior or to sex offenders.

Most of the people who’ll come before the court have been repeatedly in and out of jail. They’ve been charged with minor offenses that result from their mental illness, things like being a public nuisance, drinking in public, and shoplifting. They’re charged with a felony because of the cost of items they’ve stolen or damaged. Usually they have been off their medications because they can’t afford them, and live in and out of shelters.

Each participant will have an intensive treatment plan, including case management and medications, and will be closely monitored by probation officers and mental health professionals. Treatment addresses the mental illness, recurring substance abuse and criminal thinking. There will be incentives for compliance, and sanctions for non-compliance that may include re-sentencing.

This article by the Bazelon Center for Mental Health Law gives a good overview of why the current use of the criminal court system to address mental illness is so problematic, including these statistics on the scope of the problem:

  • Approximately a quarter million individuals with severe mental illnesses are incarcerated at any given moment—about half arrested for non-violent offenses, such as trespassing or disorderly conduct.” This does not include more than half a million probationers with serious mental illnesses.
  • Sixteen percent of state and local inmates suffer from a mental illness and most receive no treatment beyond medication.”
  • During street encounters, police officers are almost twice as likely to arrest someone who appears to have a mental illness. A Chicago study of thousands of police encounters found that 47 percent of people with a mental illness were arrested, while only 28 percent of individuals without a mental illness were arrested for the same behavior.

The same Bazelon article also has a nice outline of the role of mental health courts (as well as detailed analyses of different models of these courts and recommendations for improvements):

From the criminal law perspective, two rationales underlie the therapeutic court approach: first, to protect the public by addressing the mental illness that contributed to the criminal act, thereby reducing recidivism, and second, to recognize that criminal sanctions, whether intended as punishments or deterrents, are neither effective nor morally appropriate when mental illness is a significant cause of the criminal act. The goals of mental health courts, then, are: 1) to break the cycle of worsening mental illness and criminal behavior that begins with the failure of the community mental health system and is accelerated by the inadequacy of treatment in prisons and jails; and 2) to provide effective treatment options instead of the usual criminal sanctions for offenders with mental illnesses.

There’s also a nice overview of the mental health courts at Frontline, from their series “The New Asylums,” devoted to the stories and issues of people with mental illness in state prisons. The site lets you watch the whole program online and provides a separate complete transcript. There’s also an interactive state-by-state map so you can find information on specific states.

One reason these courts are becoming increasingly popular is because of their fiscal effect – it is more difficult and expensive to incarcerate a person with mental illness than a neurotypical inmate. For the super-wonky, here’s a detailed report from RAND on the fiscal impact of a mental health in Allegheny County, Pennsylvania. It found that the costs of providing treatment and services was more than offset by the savings in jail costs. The National Center for State Courts also has a great list of resources on these courts, including lots of studies on fiscal impact.

This is a big part of why there’s significant governmental support for these courts. The Federal Department of Justice provides assistance and resources to communities who want to begin mental health courts. The Council of State Governments Justice Center provides technical support and information to communities working with the DOJ, including a list of essential elements in a mental health court and a practical guide to mental health court design and implementation.

I am not nearly as familiar with court systems outside the US, but even some cursory googling shows that these exist in some model in places including South Australia, England (although the report notes they’re not achieving their potential), Canada, and, um, some places in the European Union.

I also include the significant caveat that the ideas behind and goals of these courts are only as good as their implementation, and that can vary a lot. Not every court is great and even if they worked perfectly, there would still be a lot of problems with the criminal justice system’s relationship with people with disabilities overall.

If you have information on mental health courts in other areas or other great resources, please drop them in the comments!

3 thoughts on “Reading List: Mental Health Diversion Courts

  1. I don’t have information about mental health courts.

    Only questions.

    In the US, does the bipolar/schizophrenia/major depression have to be the primary impairment?

    And would you go there for a first offence?

    How do people come to know about the courts?

  2. i can give you some general information, but because mental health courts vary quite a lot, these won’t be true for all courts. the most robust court i’ve found in the US, with the most extensive web documentation, is the seattle court. this court is open to people with a wide range of disabilities: “They may have any type of serious mental illness, be developmentally disabled, have a brain injury, or suffer from dementia.” it may be a first offense or the latest in a long line of offenses.

    as for participating in the court, it doesn’t appear that the defendant can refer him/herself to the court and there must be a referral. the seattle court staff contacts any individual booked into jail and can divert the defendant into the mental health court at that point, or at any later point, including probation review after sentencing. it seems like jail staff, attorneys, court staff, or even judges can refer individuals to the mental health court.

    you’ve raised one of the major issues with these courts, though – there may be courts that restrict based on primary impairments, or handle only first offenses, or have other limiting restrictions. and no matter how expansive the criteria, having access to the court be based on referral or identification by jail or court staff will surely leave a lot of people out.

  3. I only see the bail end of things, but the local court that I work in part-time has therapeutic court (recent name change from mental health court, which was considered stigmatizing) just for bail hearings every Wednesday. The attitude and general tenor of this courtroom compared to the courtrooms on either side is very different. Everything is more casual and more relaxed, the staffing is more consistant (rather than switching up the duty counsel and the crown all the time), there are mental health professionals involved at every step, and the expectations about client behaviour are more open and less intolerant. It’s not perfect — sometimes people will still get impatient or frustrated with the clients, or be half-assed — but I can see that an effort is being made to make the court process less difficult and alienating, which it so frequently is. Wish I knew more about how the clients are identified and if they have comparable rates of bail release compared to people with similar charges, criminal histories, and social supports in other courtrooms.

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