The Band-Aid of a Failed System?

Mental Health Court

“Mental health courts exist because the system has failed.
If these people were being treated,
they wouldn’t end up with misdemeanor charges or
felony charges against them in the first place.
The very existence of mental health courts is really an
indication of the system’s failure.”
– E. Fuller Torrey (psychiatrist/activist)

Mental Illness and the Law: Thursday February 28, 1-2 pm
(Midday on the Law’s Podcast with Judge Gale E. Rasin discussing Baltimore’s “Mental Health Case Management Docket”)

The Bureau of Justice Assistance’s definition of a mental health court:

A mental health court is a specialized court docket for certain defendants with mental illnesses that substitutes a problem-solving model for traditional criminal court processing. Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed jointly by a team of court staff and mental health professionals. Incentives reward adherence to the treatment plan or other court conditions, nonadherence may be sanctioned, and success or graduation is defined according to predetermined criteria.

I believe it is within the very vagueness of this definition that the trouble lies. Each jurisdiction is allowed to establish their own criteria for establishing a mental health court system. For example, some dockets seem largely dedicated to ensuring that criminals are competent enough to stand trial or stay on probation, rather than actually finding necessary treatment for mental disease; whereas, others have expanded that mission, by focusing on assessment, treatment, and reintegration into society. Similarly some dockets across the US have a rather frightening  “forced treatment” feeling, with outlandish sanctions for noncompliance that create dangerous loopholes where defendants have ended up in worse shape then if they never entered the mental health court to begin with.

As you can see, the current status of mental health courts is far from perfect; however, I believe the problems lie more in the lack of appropriate policy, as well as general ignorance of mental illness within our judicial system. A central governing body (state, federal, organizational, anything!) needs to be able provide sound best-practices and oversight in creating, evaluating, and regulating mental health courts to ensure that each one adheres to true evidenced based practices which serve the benefit of the consumer only. Second, we have to also make sure that there is sufficient funding for these specialized dockets (you don’t want me to start ranting on some jurisdictions that only offer dockets if a judge is willing to “donate” their time). Lastly, I believe that our criminal justice system needs to ensure better methods to “funnel” necessary defendants to these specialized dockets to make sure they are being utilized correctly and with the most beneficial acceptance criteria (again, please don’t make me rant about some jurisdictions with eliminating factors like: no violent crimes – no exceptions,  required guilty pleas, no repeat offenders, etc.)

MHC Judge Hug

The organization Mental Health America has made substantial efforts to address these very topics by specifically identifying key aspects that SHOULD be present in all mental health courts (let me stress that ‘should’ word again!)

  1. Comprehensive mental health outreach – Access to community-based mental health treatment services for all people needs to be improved, and should not depend on the existence of mental health courts. Equally effective services should be assured for the treatment needs of persons not accused of crimes. This requires an investment in outreach services to promote voluntary treatment as an essential complement to any mental health court program.
  2. Maximum diversion – Pre-booking diversion should be assured for all persons accused of crimes for whom a voluntary mental health treatment plan is a reasonable alternative to the use of criminal sanctions. Timely and accurate mental health screening and evaluation is the single most critical element in a successful diversion program. Mental health courts may be helpful in assuring such diversion, but should never be the only way, or even the primary way, that it can occur.
  3. Meaningful diversion – Meaningful diversion would require that when appropriate, no charges would be filed, and the individual is diverted directly to treatment without entering the criminal justice system. In the alternative, when charges must be filed, criminal proceedings should be deferred for a set period, usually not exceeding a year. Dismissal of criminal charges would then be guaranteed after a set period of successful treatment participation.
  4. No requirement for a guilty plea – A guilty plea should not be required to enter a mental health court program. This requirement precludes diversion from the criminal justice system at the earliest possible point in time and further criminalizes a person because of his or her mental illnesses. As indicated above, the preferred method is to hold charges in abeyance until the successful completion of the treatment program.
  5. Voluntary/Non-coercive – While the threat of criminal charges influences any decision, participation in any mental health diversion program should involve the same level of voluntary choice required of a criminal plea. No one should have to decide whether or not to accept diversion until the terms and the nature of the proposed treatment plan have been fully discussed and documented.
  6. Least restrictive alternative – All persons participating in diversion programs should be treated in the least restrictive alternative manner available, and all unnecessary institutionalization should be avoided. Jails are generally an inappropriate place for persons waiting for diversion as jail experiences tend to exacerbate underlying symptoms of mental illnesses. Long jail stays should be avoided in all diversion cases.
  7. Right to refuse treatment – The qualified right of a person with mental illness accused of a crime to refuse a particular treatment, including a particular medication, should be protected in a manner at least as protective of the consumer as the civil commitment process. A process should be established to review treatment refusals of persons diverted from the criminal justice system so that any decision to reinstate charges is made in an informed manner after all reasonable alternatives have been exhausted.
  8. Advocate/Counselor – In addition to competent legal counsel in any criminal case, an experienced counselor, who may be a peer or other non-lawyer counselor, independent of any treatment facility, should be available to help the accused person to reach an informed decision. This person should also serve as an advocate to ensure that necessary services that have been mandated as part of a treatment plan are provided in a timely and appropriate manner. MHA affiliates and other consumer advocacy groups may take on this important role.
  9. Confidentiality – Networking to find an appropriate treatment setting, without safeguards, could compromise client confidentiality. Systems must be put in place to ensure confidentiality from the time that a person enters a mental health program.
  10. Cultural and linguistic competence – Cultural and linguistic competence is essential to treatment success. MHA believes that services must be tailored to the specific needs of communities and individuals in order to effectively address public health problems.
  11. Community coalitions – The development of community coalitions, including partnerships between criminal justice, mental health and substance abuse treatment agencies, is essential to successful diversion programs. Such coalitions also should be involved in the creation and oversight of mental health courts. Consumers of mental health services and family members affected by mental illness need to be included in all such coalitions to assure that they address the real barriers to effective mental health treatment in that community.
  12. Comprehensive outreach and training – Community coalitions need to reach out to all criminal justice system personnel and ensure that training is provided at all levels to deal with issues of mental illness, wherever and whenever they occur.
  13. Co-occurring disorders – In addition, persons with co-occurring disorders, and especially substance abuse, must be treated in an integrated way, so that substance abuse is not an impediment to diversion.
  14. Convening role – The focus of mental health courts should be on convening prosecution, probation, treatment and social services agencies to promote interagency collaboration in the interest of the individual. The focus should not be on the use of criminal sanctions to compel treatment.
  15. Consolidation and coordination of cases – Cases should be consolidated to assure that the individual is the focus rather than the case. Centralized, coordinated case management and a single treatment plan are needed to avoid fragmentation, with or without a mental health court.
  16. Handling relapses in the court setting – Relapses are inevitable during the recovery process. As such, an individual’s time under jurisdiction of the mental health court should not be extended as a result of these relapses.
  17. Evaluation – Timely monitoring of court processes, waiting lists, and consumer outcomes are essential to ensure that mental health courts are responding appropriately to persons with mental illness, that waiting lists are kept to a minimum, and that treatment providers are held accountable for consumer outcomes.

Norway’s Bastoy Prison: Hopeful Future or Ridiculous Fantasy?

Imagine an island prison where inmates are treated with dignity and respect. They are given unrestricted access to education and are allowed to choose a trade and perfect their skills. They earn income commensurate with their work, and participate in a fair economy which teaches financial responsibility. Most grow a significant portion of their own food in personal gardens, but have the option to purchase other items from the island’s supermarket. Prisoners can take part in numerous leisure activities, like swimming, biking, playing in a band, and even enjoying a sunbed during the winter months.  They are given unrestricted access to communicating with family and friends, and are allowed weekly visits in private family rooms where conjugal relations are allowed. All inmates are given full medical and psychological treatment, as they themselves see fit. The prisoners are housed in communal, family-like “pods” but have the option of “retreat bungalows” for earned vacations. Sounds more like a fantastical island paradise and not a correctional facility, right? Its actually Norway’s Bastoy Prison, the world’s first self-sustaining ‘Ecological Prison’ that is turning into a de facto social experiment.


The prison’s Governor (akin to the US’s Warden), Arne Kvernvik Nilsen, is a clinical psychologist by profession. Nilsen coined the phrase of Bastoy being “an arena of developing responsibility” and explains further:

“Both society and the individual simply have to put aside their desire for revenge, and stop focusing on prisons as places of punishment and pain. Depriving a person of their freedom for a period of time is sufficient punishment in itself without any need whatsoever for harsh prison conditions. Bastoy takes the opposite approach to a conventional prison where prisoners are given no responsibility, locked up, fed and treated like animals and eventually end up behaving like animals. Here you are given personal responsibility and a job and asked to deal with all the challenges that entails. It is an arena in which the mind can heal, allowing prisoners to gain self-confidence, establish respect for themselves and in so doing respect for others too.”

And the numbers speak for themselves. Although Bastoy houses violent offenders (like murders and rapists), has no cells or bars, and even allows access to weapons for the inmates’ various jobs, there has not been one incident of violence on prison grounds. Most importantly is the fact that Bastoy has the lowest re-offending rate in all of Europe, by a landslide! To put it into perspective, the average re-offending rate across Europe is about 70-75 per cent; whereas, Bastoy rests at 17 per cent!

The prison is very much still in the assessment phase, and comes with its fair share of criticisms in outcome measures. Norway is one of the wealthiest, most sparsely populated, and most stable countries in the world. However, Governor Nilsen, points out that the ultimate goal is for decision-makers of the world to take note of the revolution in rehabilitation that is occurring in that tiny island prison, and at least ponder the idea of change to think of a penal institution being designed to heal rather than harm, and to generate hope instead of despair.

(Please click on the below publications to see related article)

the guardian