Although the goals of these problem-solving courts are laudable, they have flourished because of systemic failures in public mental health and the criminal justice system. – T. Seltzer of the Bazelon Center for Mental Health Law
First step: Arrest.
1. Adults with mental illnesses are arrested for the same criminal behavior twice as often as people who do not have a mental illness. Studies have found that many polices officers believe they are doing a favor by providing a place to sleep and 3 meals a day, especially to our homeless.
2. By arresting quickly, there is also the erroneous belief that they are saving themselves general time and money, so that they will not have to respond to the same person down the road. The process of arrest is also far quicker than linking the person to necessary mental health services, as it often will result in long hours spent in emergency rooms waiting for service responses.
3. Studies have shown the erroneous belief that many officers believe the arrest will increase access to treatment for those who would otherwise not seek it outside of the criminal justice system.
Second Step: Criminal Procedure.
Although many of the procedural flaws are correctable, many can not be remedied since they require a delicate balance of a defendants’ constitutional right to trail and legal counsel versus the protection of public safety and health.
1. Transfer to the mental health court is often non voluntary or creates a sense of forced treatment. All possible consequences should be thoroughly explained to the defendant in order to make an informed decision; however, these decisions are typically made under considerable stress or with a promise of a faster release home. This also means that a defendant should be allowed at any time to withdrawal from the MHC and have their case heard in the criminal court without prejudice, which is not typical – or at least not without some restriction or sanction.
2. A defendant who accepts transfer into a mental health court is effectively waiving the right to a trail. For this reason, counsel and a court advocate should be assigned as soon as possible to the case to ensure full comprehension and appreciation of the legal process.
3. Most mental health courts require a guilty or no-contest plea for transfer. Few allow for dismissal of the charges after successful completion of treatment, and even then the defendant had to take on the cumbersome and difficult process of request the expungement. The idea behind a plea is that it is an effective form of coercion for increasing treatment compliance; however, that assumes that the defendant can put full faith into the same treatment system that failed them from the beginning.
4. Half of all arrests of the seriously mentally ill are unnecessary and discriminatory. The vast majority of mental health courts only allow misdemeanor charges; however, more are beginning to accept felonies. Mental health courts should focus on individuals who are not eligible for other types of diversion either prebooking or at arraignment, to avoid becoming the entry point for those people abandoned by the mental health system and focus primarily on those charges which would result in a jail/prison sentence.
5. The scope and duration of mental health court supervision vary from court to court, and even within the same jurisdiction. Most lack written procedures and do no explicitly limit the length of supervision to the maximum sentence that could be received in traditional court. There are many defendants who end up spending far more time under the intense scrutiny of a mental health court than if they had made a plea in criminal court. More so, the duration of supervision should be based more on the individual’s treatment plan versus initial charges.
6. Many service plans do not include detailed information on the sanctions given to defendants for noncompliance with treatment. It also must be recognized that decompensation, setbacks, and relapses can be common occurrences when treating the mentally ill. Most mental health courts utilize jail time as the primary sanction, which is a perversion of the whole notion of diverting people from incarceration. Also, about one third will drop the defendant from the program if non-compliant, which typically results in a secondary round of trail and/or punishment (i.e., what they already served in treatment plus new punishment in criminal court).
Third Step: Mental Health Treatment
1. Very often there is a failure of mental health programs to meet the specific needs of the defendants. Many of the consumers are not even accepted to treatment programs because they have problems outside the scope of the programs contracted with the court system (such as co-occurring substance abuse) or because they already have a criminal record. Service providers should have active participation in the mental health court plan and in the processing of individual cases throughout the court process.
2. Most mental health courts have no authority to hold mental health providers accountable, and even fewer critically evaluate their own community’s services for evidenced-based practices and effectiveness.
1. Mental health courts are reactive to a failing mental health system. Many researchers believe that until the system itself is changes, most of the larger issues will remain. There is no rational purpose served by the current system, as public safety is not protected when people with mental illness are needlessly arrested instead of treated.
2. The mentally ill will continue to be arrested on the misconception that they will received services once put into the criminal justice system (i.e., law enforcement will increase arrest rates of the mentally ill with the expectation that this will lead to the provision of services).
3. Inherently coercive aspects of the model of mental health courts that often do little more than provide psychotropic medication, and only occasional therapy – which is very similar to the controversial intervention of outpatient commitment.
4. The criminal justice system is not the appropriate front door to access mental health care. Instead, communities should address the substantial gaps in services prior to the mentally ill needing to emergency response for criminalized behavior.