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Essay: Persons with mental illnesses and the criminal justice system

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Persons with mental illnesses who come into contact with the criminal justice system bear a double burden from the stigma associated with their mental illness and the stress of potential arrest and confinement. Involvement with the criminal justice system may exacerbate the isolation and distrust often associated with mental illnesses. Mental Health Courts place less emphasis on behind bars punishment and more emphasis on identifying ideal treatment candidates and enforcing treatment to eliminate the root causes of criminal behavior. Despite the heavy focus on treatment and good intentions of criminal justice professionals, mental health courts are not without their critics. Much of the criticism has focused on legal rather than medical issues. A large amount of criticism has involved the blurred line between traditional criminal justice roles and the move from a focus on protection of a person???s due process rights to considering the best interests of a person with mental health issues in the criminal justice system.

Introduction to Mental Health Courts
The first Mental Health Court was created in 1997 in Broward County, Florida. Currently, there are more than 200 Mental Health Courts, including at least one in a federal jurisdiction (Hiday & Ray, 2010). Mental Health Courts are a variant of problem-solving courts that divert mentally ill offenders from the criminal justice system into community-based treatment services.
Diversion programs exist with the intent to reduce criminal recidivism, to bring some relief to an overcrowded criminal justice and jail system, and to reduce homelessness and psychiatric hospitalizations. Mental Health Courts operate under the theoretical framework of therapeutic jurisprudence with clear treatment goals to improve the quality of life and functioning of its participants (Hughes and Peak, 2012). Therapeutic jurisprudence ???emphasizes that the law should be used, whenever possible, to promote the mental and physical well-being of the individuals as they are affected by the law??? (Lamb and Weinberger, 2008, p.723).
Mental Health Courts differ from traditional criminal courts in several ways: (1) a dedicated judge that presides over the court proceedings; (2) a separate docket for defendants with mental health issues; (3) dedicated prosecution and defense counsel; (4) collaborated decision making between the judge, counsel, and other Mental Health Court staff; (5) voluntary participation with agreement to accept treatment; (6) intensive monitoring of defendants; and (7) dismissal or reduction of charges or sentence for successful compliance with treatment.
Mental Health Courts deal with similar issues, but there are significant differences in approach among jurisdictions. Some courts only accept defendants with misdemeanor offenses, while others also accept felony defendants. The courts do not have a uniform standard as to which mental illnesses make a defendant eligible to participate. Broad criteria are often used in the eligibility determination process. The courts use a non-adversarial team approach to decision making which utilizes rewards and sanctions for compliance and noncompliance, but differences exist between the courts with regard to what they consider to be a reward or a sanction. Some courts will use incarceration as a sanction while others only do so on rare occasions.
All Mental Health Court participants may opt out of the program to have their cases heard in traditional criminal court, but only some Mental Health Courts allow the defendants to return to their programs after they are convicted. Some Mental Health Courts dismiss a defendant???s charges after successful completion of the program, and others may reduce charges or offer less severe sentences. Some offenders may start Mental Health Court programs with the goal of avoiding jail time, but end up completing the program with real feelings of motivation to continue treatment.
Challenges of Mental Health Courts
The first challenge of Mental Health Courts is determining whether defendants are competent to proceed in the criminal process. Defendants who are referred to Mental Health Courts have varied levels of understanding and ability to meaningfully participate in the court proceedings. Competence is especially important in post-plea or post-adjudication Mental Health Courts because defendants are presumed to understand and consent to the conditions of participation. Any competency concerns should be addressed early and very thoroughly. Another thing to consider is that defendants may gain or lose competency while in the Mental Health Court.
A study was done in the Akron Ohio Mental Health Court during its first three years of operation. The study consisted of 80 misdemeanor defendants referred by the court for evaluation of competency to stand trial. The results indicated that seventy-eight percent were adjudicated incompetent to stand trial, significantly more than the 50 percent hypothesized by the researchers (Stafford and Wygant, 2005). In another study, almost half of those rejected from Brooklyn???s Mental Health Court were ???considered incompetent or too unstable at that time to make the decision to enroll and to participate in the court???s proceedings??? (Steadman, Redlich, Griffin, Petrila and Monahan, 2005, p. 222).
The second challenge of Mental Health Courts is assessing participant competency. ???Most research has demonstrated a strong relationship between competence determinations and psychotic diagnoses or symptoms??? (Rosenfeld and Wall, 1998, p.444-445). Findings suggest that psychosis is most likely to limit a defendant???s ability to assist in their defense, whereas cognitive difficulties impede ability to understand charges, proceedings, or both.
The third challenge of Mental Health Courts is determining whether the decision of participants to enter into those courts is voluntary. ???From a legal standpoint, entry into the courts must be voluntary; if they were not and all offenders with mental illness were required to partake in a Mental Health Court, the equal protection guarantee of the 14th amendment would be violated in that a certain subgroup of offenders would be singled out and treated specially??? (Redlich, Hoover, Summers and Steadman, 2008, p. 92).
The fourth challenge of Mental Health Courts is determining whether the decision of participants to enter into those courts is made knowingly and intelligently. As stated by Susan Stefan (Stefan and Winick, 2005), ???The people don???t go into the process understanding what mental health court is all about, and no one explains it to them in terms of benefits and drawbacks???.this is not an atmosphere that is conducive to knowing and intelligent decision making??? (p.516). A knowing and intelligent decision to enroll in a Mental Health Court is important for two reasons: (1) the target population consisting of people with serious mental illness is known to have deficits in legal comprehension, and (2) the Mental Health Court entry decision may be made under conditions of high stress and instability (Redlich, et al., 2008).
Two considerations are important in making a knowing and intelligent decision to enter a Mental Health Court: (1) general legal knowledge ??? most importantly adjudicative competence (competence to stand trial), and (2) specific knowledge relating to the Mental Health Court itself. The standard for competence is the Dusky standard, which mandates that defendants have a rational and factual understanding of the proceedings against them, as well as the ability to consult with their attorney (Dusky v. U.S., 1960). ???An informed decision would entail knowledge of Mental Health Court procedures, requirements, confidentiality releases, consequences for compliance and non-compliance, alternatives to participation, and what happens upon graduation and termination??? (Redlich, et al., 2008). For the most part, defendants are presumed competent unless the question is raised and the leading reason to raise questions of competence is for psychiatric reasons (Pinals, 2005).
The fifth challenge of Mental Health Courts is that many of the offenders most in need of psychiatric treatment are least likely to believe that they need it and adhere to it. ???If the incidence of violence in offenders with severe mental illness is to be reduced, a means must be found to involve them in treatment??? (Lamb, et al., 2008, p.724). The courts can require treatment, including medications, structured housing, and substance abuse treatment. Doing so may enhance the structure in the lives of mentally ill offenders. A Mental Health Court???s enforcement of treatment programs could increase adherence to therapy. Case managers could monitor the treatment programs of those under their supervision and have them return to court for periodic review of their treatment progress.

Benefits of Mental Health Courts
The first benefit of Mental Health Courts is

Research Findings
Research literature on Mental Health Courts has grown over the last several years, but it still has a way to go until it can compare to the relatively large and well-developed collection of literature regarding Drug Courts. Most of the existing literature on Mental Health Courts consists of simple descriptive studies, process evaluations, and theoretical papers, rather than outcome studies.
When compared to Drug Courts, considerably less information is known about the operations and effectiveness of Mental Health Courts. Additionally, ???mental health courts often present unique challenges, including the nature of the population (i.e. offenders with mental health disorders) and variations among courts, which make it difficult for researchers to examine the effectiveness of these interventions in an empirically defensible manner??? (Higgins and Mackinem, 2009, p.100).

Research on Access to Services
One area of research was whether the Mental Health Court impacted offenders??? access to behavioral health services. A study was conducted with 121 offenders from the Broward County (Florida) Mental Health Court and 101 offenders from a traditional misdemeanor court in another Florida county. It was determined that the percentage of offenders from the Mental Health Court who received behavioral health services increased from 36 percent during the eight months prior to their initial court appearance to 53 percent during the eight months after their initial court appearance (Boothroyd, Poythress, McGaha, and Petrila, 2003). For the traditional criminal court offenders, the chance of receiving behavioral health services remained virtually unchanged during the same time periods (29 percent vs. 28 percent). The researchers concluded that the Broward County Mental Health Court was successful in increasing access to treatment services.
Research on Recidivism
Another area of research was whether Mental Health Courts reduce recidivism by treating mental disorders that underlie or contribute to criminal behavior. Evidence was mixed within this area of research. One of the studies in this area compared misdemeanants with mental health disorders who participated in Seattle Washington???s two Mental Health Courts to offenders who chose not to participate in Mental Health Court. Mental Health Court participants had significantly fewer arrests over a follow-up period of nine months after entry into the court than they did before entry. Mental Health Court participants had significantly fewer arrests than non-participants (Trupin and Richards, 2003).
A Broward County (Florida) Mental Health Court study concluded that arrests for Mental Health Court participants significantly decreased from one-year pre-entry to one-year post-entry into the court. The study also found that the mean number of arrests, felony arrests, proportion arrested, and average time to arrest did not differ much from that of non-participants (Christy, Poythress, Boothroyd, Petrila and Mehra, 2005). The study raised questions on the effectiveness of Mental Health Courts in relation to traditional courts.
A Santa Barbara (California) Mental Health Court study randomly assigned 235 offenders with misdemeanor or felony charges to Mental Health Court with intensive treatment or traditional court with less intensive case management services for 18 months. A one-year post-entry follow-up revealed that the Mental Health Court participants had fewer convictions for new offenses, and their charges were mostly for probation technical violations rather than new criminal offenses. Conversely, criminal charges were mostly for new offenses for the traditional court participants (Cosden, Ellens, Schnell, Yamini-Diouf and Wolfe, 2003). A two-year follow-up on the study participants appeared less promising. All study participants, regardless of which program they participated in, showed increased arrests and no change in either the number of convictions or days in jail (Cosden, Ellens, Schnell and Yamini-Douf, 2005). A closer look revealed that a small group of Mental Health Court participants accounted for 54 percent of all post-mental health court jail days. According to researchers, ???The program was not able to hold or help all participants; for some offenders, continued criminal activity resulted in prison or levels of jail time higher than had been the case before entering the program??? (Cosden, et al., p.206-207, 2005).
Existing research presents mixed views with respect to clinical improvement and reductions in criminal recidivism among Mental Health Court clients. Some research suggests that Mental Health Courts are effective in increasing access to and utilization of behavioral health services. With respect to criminal recidivism, some existing research suggests that Mental Health Courts reduce recidivism, while other research suggests few differences in recidivism rates between offenders in Mental Health Courts and offender in traditional courts. Additionally, one study that included a longer follow-up period suggested that the beneficial effects of Mental Health Courts decline the longer offenders are out of the court after graduation (Higgins, et al., 2009).
Research on Voluntariness
A study conducted on the Broward County (Florida) Mental Health Court examined enrollment decisions and perceptions of coercion. Court transcripts of initial hearings were collected and coded. Boothroyd et al. (2003) reported that the primary purpose and focus of the court was explicitly mentioned in only 28 percent of transcripts, explicit statements of voluntariness in 16 percent of transcripts, and any mention of competence-to-proceed in 29 percent of transcripts. After obtaining self-reported perceptions of Mental Health Court voluntariness, Boothroyd, et al. (2003) found that approximately 75 percent of Broward County clients either reported not being told that court participation was voluntary or reported being told only after their first hearing. This study concluded that the majority of Mental Health Court participants will claim not to be aware that the decision to enroll in the Mental Health Court was voluntary. Very little information exists to show whether enrollment in Mental Health Courts is voluntary, even though they are intended to be.
Research on Knowing and Intelligent Enrollment

The biggest limitation in making conclusions regarding the effectiveness of Mental Health Courts is the relatively small body of existing research. The reality is that more research in the form of true experimental studies must be conducted in order to draw firm conclusions on their effectiveness.

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