Psychiatric Annals

CORRECTIONAL PSYCHIATRY: EFFECTIVE AND SAFE LINKASE OF MENTALLY ILL OFFENDERS 

A Court for the Nonviolent Defendant With a Mental Disability

Ginger Lerner-Wren, JD; Antoinette R Appel, PhD

Abstract

Criminal courts in the United States have typically been concerned with mental illness and mental retardation only insofar as the mental disability of the defendant is raised to question competency or sanity. The focus of concern in these instances is on legal issues (ie, restoration of competency and criminal responsibility) and not on clinical interventions.

Most defendants with a mental disability appearing before the various courts in the United States are adjudged to be competent and legally sane. These defendants frequently have a history of being arrested for behavior that is driven by their mental disability, and of being evaluated, briefly treated, released, and arrested again and again. The lack of a formal mechanism within the criminal justice system for addressing treatment issues of these defendants contributes to the likelihood that they will again be arrested for behaviors that are more sick than criminal. This revolving door benefits no one - not the defendant, not the state, and certainly not the public. Revolving door "justice" is expensive, ineffective, and unjust.

Unlike U.S. criminal courts, some courts in England, Scotland, and Canada have addressed treatment issues and have diverted defendants "who are suspected of having psychological difficulties ... for psychological and psychiatric treatment before, and generally in lieu of, prosecution."1 These diversion programs have three obvious benefits: (1) defendants who need treatment receive treatment; (2) defendants who are arrested for sick behavior rather than criminal behavior are not additionally harmed by acquiring a record of criminal conviction; and (3) the expethency, effectiveness, and quality of judicial administration is enhanced. For example, the foreign diversion programs result in a 50% reduction in the time needed to conclude a defendant's criminal case.2

In those few U.S. jurisdictions that have some sort of oiminal court mental health intervention for competent, sane defendants, measures of outcome suggest the obvious efficaciousness of such programs.3 That more such programs do not exist may reflect the lack of training within the U.S. legal community regarding issues of mental disability.4

This article discusses one community's attempt to deal more systematically, effectively, and humanely with defendants who have a mental disability, particularly those who are arrested for behaviors driven by their mental disability and those who are competent and legally sane but in need of clinical services.

DEVELOPMENT OF A CRIMINAL MENTAL HEALTH COURT

In June 1997, Broward County, Florida, began operation of a criminal Mental Health Court. As far as we know, this is the first court of its kind in the United States. The purposes of this Mental Health Court are to (1) ensure legal advocacy for defendants with mental illness; (2) ensure that defendants with mental illness do not languish in jail because of their mental illness; (3) balance the rights of the defendant and the safety of the public by recommending the least restrictive, most appropriate, and most workable disposition; (4) provide for the expeditious evaluation and treatment of defendants with a mental disability; (5) provide a means of ensuring needed follow-up for those defendants released into the community; and (6) provide expethent, humane resolution of the defendant's criminal problem in an environment in which the defendant with a mental disability can effectively participate in the process.

The Broward County Mental Health Court was the outgrowth of three converging perceptions. There was a perception in the community that the community was seeing the ''criminalization of nonviolent psychiatric acting out."57 Individuals were increasingly arrested for "being a pain in the neck," for "hanging out" where they were not welcome, and for disorganized behavior rather than clear criminal behavior. In the past these individuals might have sought refuge…

Criminal courts in the United States have typically been concerned with mental illness and mental retardation only insofar as the mental disability of the defendant is raised to question competency or sanity. The focus of concern in these instances is on legal issues (ie, restoration of competency and criminal responsibility) and not on clinical interventions.

Most defendants with a mental disability appearing before the various courts in the United States are adjudged to be competent and legally sane. These defendants frequently have a history of being arrested for behavior that is driven by their mental disability, and of being evaluated, briefly treated, released, and arrested again and again. The lack of a formal mechanism within the criminal justice system for addressing treatment issues of these defendants contributes to the likelihood that they will again be arrested for behaviors that are more sick than criminal. This revolving door benefits no one - not the defendant, not the state, and certainly not the public. Revolving door "justice" is expensive, ineffective, and unjust.

Unlike U.S. criminal courts, some courts in England, Scotland, and Canada have addressed treatment issues and have diverted defendants "who are suspected of having psychological difficulties ... for psychological and psychiatric treatment before, and generally in lieu of, prosecution."1 These diversion programs have three obvious benefits: (1) defendants who need treatment receive treatment; (2) defendants who are arrested for sick behavior rather than criminal behavior are not additionally harmed by acquiring a record of criminal conviction; and (3) the expethency, effectiveness, and quality of judicial administration is enhanced. For example, the foreign diversion programs result in a 50% reduction in the time needed to conclude a defendant's criminal case.2

In those few U.S. jurisdictions that have some sort of oiminal court mental health intervention for competent, sane defendants, measures of outcome suggest the obvious efficaciousness of such programs.3 That more such programs do not exist may reflect the lack of training within the U.S. legal community regarding issues of mental disability.4

This article discusses one community's attempt to deal more systematically, effectively, and humanely with defendants who have a mental disability, particularly those who are arrested for behaviors driven by their mental disability and those who are competent and legally sane but in need of clinical services.

DEVELOPMENT OF A CRIMINAL MENTAL HEALTH COURT

In June 1997, Broward County, Florida, began operation of a criminal Mental Health Court. As far as we know, this is the first court of its kind in the United States. The purposes of this Mental Health Court are to (1) ensure legal advocacy for defendants with mental illness; (2) ensure that defendants with mental illness do not languish in jail because of their mental illness; (3) balance the rights of the defendant and the safety of the public by recommending the least restrictive, most appropriate, and most workable disposition; (4) provide for the expeditious evaluation and treatment of defendants with a mental disability; (5) provide a means of ensuring needed follow-up for those defendants released into the community; and (6) provide expethent, humane resolution of the defendant's criminal problem in an environment in which the defendant with a mental disability can effectively participate in the process.

The Broward County Mental Health Court was the outgrowth of three converging perceptions. There was a perception in the community that the community was seeing the ''criminalization of nonviolent psychiatric acting out."57 Individuals were increasingly arrested for "being a pain in the neck," for "hanging out" where they were not welcome, and for disorganized behavior rather than clear criminal behavior. In the past these individuals might have sought refuge in public psychiatric hospitals, community psychiatric "drop-in centers," or other such programs, but now these have largely disappeared not only in Broward County but also throughout the country.

There was also a perception among law enforcement agencies that it was quicker and easier to arrest and book individuals who were acting out psychiatrically than to have them evaluated at a crisis center or connect them with treatment at an outpatient facility.8 For example, Broward County has only one 24-hour crisis center and no psychiatric residency programs at any of its public hospitals. Moreover, its mental health centers are typically not open at night.

Finally, there was a perception among the public, embodied in a scathing grand jury report, that individuals with psychiatric impairments in the community in general and the legal system in particular were being inadequately served by a system hopelessly fragmented and ill-equipped to deal appropriately with the nonviolent mentally ill.

COURTS AS A REVOLVING DOOR FOR THE MENTALLY ILL

As a consequence of the tendency to arrest and incarcerate individuals for exhibiting signs of their mental illness in public, and the lack of expeditious evaluation of those so arrested, the county courts were seeing large numbers of defendants who languished in jail without evaluation or treatment, and whose charges, even if proven, warranted no more incarceration than time already served. Without the ability to intervene to ensure that those who needed treatment but were not dangerous and thus not committable actually obtained treatment, the county courts were becoming revolving doors for a significant number of individuals whose real problems were psychiatric and not criminal.

In Florida, as in many other jurisdictions, County Court judges, who hear misdemeanor cases, lack the authority to commit individuals for treatment. Moreover, all judges lack the authority to commit individuals who are not imminently dangerous to themselves or others. Because the overwhelming majority of individuals with a mental disability coming before the criminal court are not imminently dangerous, the ability of the Courts to intervene effectively in the repeated cases of the defendant who was disorganized, socially isolated, competent, legally sane, and mentally disabled was nonexistent.

Consequently, we face the troubling and inhumane situation of repeatedly arresting and incarcerating the mentally ill for short periods, and then releasing them with a sentence of "time served." This is a huge waste of judicial time, public defender resources, county jail detention resources, and, much more importantly, the limited human resources that the marginally noninstitutionalized mentally ill can muster.

Although many of these problems could, in theory, be addressed by a user-friendly coordinated social service system that brings together in one place both psychiatric and social services, the trend has been for public sector resources to be reduced or eliminated altogether. Public inpatient psychiatric facilities are being closed and the community mental health centers that were supposed to replace them are not being built or funded. Public assistance that previously provided at least minimal medical care, housing, and subsistence is being sharply curtailed in both amount and duration, while the increasing emphasis in the job market is on technologic sophistication that cannot be sustained by nonviolent individuals with chronic mental illness. The outcome is predictable - without stability, sustained psychiatric treatment, medication (if needed), adequate social skills, and social stability, these individuals decompensate, act out, are arrested, are released, and are rearrested.

These concerns gave rise in 1994 to an ad hoc criminal justice task force whose assignment was to explore new ways of dealing with this expanding problem. The criminal justice task force was composed of Court personnel, law enforcement personnel, general community-based mental health providers, and consumers or community advocates (eg, members of the National Alliance for the Mentally Hl). Central to the task force's mission was a realization that it was essential that the nonviolent defendant with chronic mental illness and the defendant with significant mental retardation be assisted in accessing social services and psychiatric services in the least threatening way and that they be encouraged to use the services and rewarded for doing so. This philosophy gave rise to the decision to develop a mental health court within the criminal courts, and it became the central focus of the administrative order establishing the Broward County Mental Health Court.

Operationalizing these concerns required enlisting already overburdened agencies to participate in a cooperative effort that would predictably disrupt their usual modes of doing business. Most urgently, the Court first had to develop a rapid and effective means of identifying defendants whose cases should be referred to it. A three-prong system was developed that included as its first two prongs screening at first appearance hearings and screening by detention facility personnel. Because at least some defendants are reluctant to reveal a history of mental illness at first appearance, as a third prong the Mental Health Court invites referrals from family, friends, and associates of defendants and also from defense attorneys and prosecutors.

The second element that was essential to the success of the Court was the development of a flexible and rapidly responsive core team composed of social service, law enforcement, medical, and psychiatric representatives who could respond to individuals coming before the Court. The agreed purpose among these representatives and the Court was that it was important that our jails not serve as substitute psychiatric hospitals, but rather that individuals with mental illness and mental retardation be diverted to less restrictive, more appropriate civil programs and treatment facilities in the community where their needs could be more appropriately met.

From the outset, the Court recognized the need to distinguish those situations in which (1) individuals are arrested for public manifestation of their psychiatric behavior (eg, an individual running in the middle of traffic); (2) individuals are arrested when it appears that their psychiatric condition is directly involved in the "crime" for which they are arrested; and (3) individuals with mental illness or mental retardation are arrested, but the charged crime appears not to have arisen from the psychiatric or developmental impairment. The Court thus had to have available a full range of options from emergency diversion to adjudicatory sanctions. This was achieved by the administrative order that allowed the judge assigned to this Court to sit with Circuit Court authority for the purpose of ordering emergency evaluation and emergency commitment.

Emphasis in the Court, however, is on the defendant's assuming, insofar as possible, personal responsibility for the management of his or her illness. This focus is outweighed only by issues of public safety. Thus, the third element that the Court needed was a means of encouraging the participation of the defendant who needed treatment, in the process of obtaining treatment. Defendants had to be encouraged to follow through on referrals for outpatient treatment at facilities willing to provide such treatment, especially when their case might have been resolved and the Court could be without authority to require participation.

To achieve this overriding goal, it was necessary to shift the philosophical orientation of the criminal justice system from one of traditional adjudication to one of therapeutic jurisprudence9"11 and to put in place systems to ensure effective interactions between the criminal justice and the mental health systems. Personnel who typically mistrusted each other's motives and were accustomed to adversarial procedures had to agree that they could represent their constituencies effectively while creating an atmosphere and system less threatening to the individual with a mental disability.

Central to this new system was an emphasis on personal responsibility on the part of the individual with a mental disability. The Court and the personnel participating in it had to promote the defendant's involvement. They did so by providing a dignified, nonstigmatizing forum where issues affecting mental disability and its interface with the criminal justice system could be discussed with the defendant and others openly, genuinely, with empathy, and with proper concern that a defendant's substantive due process rights would not be violated.

The Court's emphasis on treatment as opposed to punishment required the identification of additional personnel beyond those usually found in a Court. These personnel would have to be available in the courtroom whenever the Court convened. In addition to a judge, prosecutor, and public defender, they include a mental health court monitor or community resource liaison, an in-court clinician or clinical intern, and representatives of the various community resources (eg, the Browarâ County Sheriff's Office, emergency transportation systems personnel, mobile crisis teams, the local emergency medical personnel, and liaisons from various psychiatric treatment facilities and community social service programs).

FINDINGS FROM THE FIRST 2 YEARS OF THE COURT'S OPERATION

Broward County, Florida, consistently has one of the nation's largest local jail populations.12,13 The U.S. Department of Justice estimates that 16.3% of local jail inmates are mentally ill. 14In the 10-year period from 1988 to 1998, the average daily census in Broward County jails increased progressively from 2,629 to 4,289 inmates.

The Mental Health Court has now been in operation for 2 years. During that time, it has had 882 cases referred to it. The number of new cases under the supervision of the Court increased from 168 in the 6-month interval from July 1 to December 31, 1997, to 263 in the 6-month interval from January 1 to June 30, 1999.

A gender breakdown indicated that in the first year of operation there were 3Ve times as many male defendants as female defendants referred to the Court. In the second year of the Court's operation, a decision was made to target middle-aged defendants with mental illness. This resulted in a decrease in the ratio of male to female defendants, which is now 2 to 1.

Age data were collected by ranges. To calculate the mean age of defendants referred to the Court, ages younger than 18 years were coded as 17, ages older than 54 years were coded as 60, and ages for the groups 18 to 27, 28 to 40, and 41 to 54 years were coded as the midpoint of the range. On the basis of this manipulation, the mean age of defendants referred to the Court was 36.69 years in the first year of the Court's operation and 38.27 years in the second year.

Data on living arrangements before arrest revealed that defendants referred to the Court were between 2 and 4 times more likely to have been homeless at the time of arrest than were mentally ill local jail inmates nationally. Rates of homelessness were 16.9% in the Court's first year and 27.6% in the second year, compared with national rates of 6.9%.14 Additionally, the data revealed two significant changes: (1) the number and percentage of homeless defendants referred to the Court increased dramatically from the first to the second year; and (2) the number of defendants who had been residing in mental health programs prior to arrest decreased dramatically from the first to the second year, from 16.33% to 0.67%. We have no explanation for these data. In both years, the largest percentage of referred defendants resided with family (28.0% in the first year; 29.3% in the second year) or alone (23.0% in the first year; 25.3% in the second year).

Psychiatric diagnostic data and prior psychiatric hospitalization data also were collected. We recorded the clinical diagnoses that had been made before arrest. In the first year of the Court's operation, 88% of the defendants referred to the Court had a serious and persistent mental illness (eg, schizophrenia, bipolar disorder, schizoaffective disorder, major depression, or mental illness and substance abuse) and 74% of the defendants had a history of one or more psychiatric admissions. Twenty percent of the defendants had dual psychiatric and substance abuse diagnoses, and 55% of the defendants had diagnoses indicative of major thought disorders (eg, schizophrenia, bipolar disorder, or schizoaffective disorder).

In the second year of the Court's operation, the percentages of defendants with diagnoses indicative of serious and persistent mental illness and of major thought disorders declined to 78% and 41%, respectively. The percentage with a dual diagnosis increased to 28%, and the percentage undiagnosed increased from 6% to 20%. The percentage of defendants who had a history of at least one prior psychiatric hospital admission decreased to 53%.

These data are distressing because they reflect two events that have occurred in the community: (1 ) there has been a loss in the number of mental health beds in the community; and (2) the "tent" that provided temporary shelter and a "safe zone" for the homeless has closed and been partially replaced by a homeless assistance center that does not deliver direct mental health services and, therefore, does not admit homeless individuals who are exhibiting severe symptoms and signs of mental illness.

Mental health benefits were not available to 53% of the defendants, and only 3% of the defendants had private health insurance with mental health benefits.

Outcome data revealed that of the defendants coming before the Court, 24% subsequently were linked with community mental health providers, 15% were involuntarily hospitalized, and 7% obtained private psychiatric care. Fewer than 10% of the defendants referred to the Court were considered inappropriate for the Court, and fewer than 10% of the defendants referred to the Court refused community mental health services. Only 5% of the defendants bonded out and failed to appear for Mental Health Court. The Court referred 12% to 15% for commitment evaluation. The rest of the defendants returned to jail on other charges, were difficult to place, or were awaiting competency evaluation.

LOOKING RACK AND LOOKING AHEAD

The Broward County Mental Health Court has been successful beyond anyone's ability to predict. Although exact statistics on recidivism are only now being collected, preliminary estimates suggest that fewer than 20% of the defendants diverted to the Mental Health Court have been rearrested. For these "revolving door recidivists," this is a marked improvement.

The Court's success in demonstrating the efficaciousness of treatment intervention has resulted in funding for a transitional living facility for those defendants in need of housing during treatment.

More than 50% of the defendants appearing before the Mental Health Court have been linked to appropriate community-based treatment programs. This percentage would likely be higher if community treatment programs that were geographically more convenient were more readily available.

The fact that defendants with a mental disability arrested for behavior driven by that disability have been moved out of the detention facilities, thus freeing space in those facilities for criminal defendants charged with serious crimes, is important. In a community that in the past was under a Federal Court consent decree with mandated caps on detention census, this is a great achievement.

Perhaps one of the saddest findings is the increase in the number of homeless individuals being arrested and diverted to the Mental Health Court. One of the things that this Court plans to examine is whether the homeless defendants corning before it are in any way different from other defendants coming before it. We are interested in determining whether there is an overrepresentation of defendants who do not have a mental disability among the homeless and whether the jail and the Court are being used as a new solution to deal with the homeless.

Another important issue that has arisen is the overrepresentation of women defendants in this Court compared with other courts in the same jurisdiction. This has given rise to a concerted effort to develop gender-specific mental health and substance abuse outreach programs and treatment programs.

We have observed that there are cultural and minority issues that appear to be barriers to the involvement of certain groups of defendants in the Mental Health Court and the mental health system in general. One future direction for this Court is to develop outreach and treatment programs that specifically address this matter.

Finally, because of the success of the Court in the diversion of defendants who have committed misdemeanors and the success of the defendants in changing their life situation, there is movement toward expanding the jurisdiction of the Court to include defendants who have committed nonviolent felonies.

We wish to emphasize that the Court could not have succeeded without the investment of all of the individuals who work with the Court and all of the defendants who have come before the Court. If there is one overriding piece of advice to others contemplating establishing such courts, it would be to encourage a therapeutic jurisprudence that fosters an alliance among those who work in and for the Court and those who are being served.

REFERENCES

1. Cooke DJ. Treatment as an alternative to prosecution: offenders diverted for treatment. Br J Psychiatry. 1991; 158:785-791.

2. Exworthy T, Parrott J. Comparative evaluation of a diversion from custody scheme. Journal of Forensic Psychiatry. 1997;8:406-416.

3. Lamb HK, Weinberger LE, Reston-Parham C. Court intervention to address the mental health needs of mentally ill offenders. Psychiatr Serv. 1996;47:275-281.

4. Mossman D, Kapp MB. Attorneys' and judges' needs for continuing legal education on mental disability law: findings from a survey. Journal of Psychiatry and Law. 1997; 25:327-345.

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8. Husted JR, Charter RA, Perrou B. California law enforcement agencies and the mentally ill offender. Bulletin of the American Academy of Psychiatry and the Law. 1995;23.315-329.

9. Wexler DB. Putting mental health into mental health law: therapeutic jurisprudence. Law Hum Behav. 1992;16:27-38.

10. Winick BJ. The jurisprudence of therapeutic jurisprudence. Psychology, Public Policy, & Law. 1997;3:184-206.

11. Wexler DB, Winick BJ. Essays in Therapeutic jurisprudence. Durham, NC: Carolina Academic Press; 1991.

12. U.S. Department of Justice. Jail and Jail inmates 1993-1994. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics; 1995. Publication NCJ-151651.

13. U.S. Department of Justice. Prison and Jail Inmates at Midyear 1998. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics; 1999. Publication NCJ-173414.

14. U.S. Department of Justice. Mental Health and Treatment of Inmates and Probationers. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics; 1999. Publication NCJ-174463.

10.3928/0048-5713-20010701-10

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