MENTAL HEALTH

COURTS

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

EMERGING JUDICIAL

STRATEGIES FOR THE MENTALLY

ILL IN THE CRIMINAL CASELOAD:

Bureau of Justice Assistance

IN FORT LAUDERDALE, SEATTLE, 

SAN BERNARDINO, AND ANCHORAGE

MENTAL HEALTH

COURTS
This document was prepared by the Crime and Justice Research Institute, under grant number 99–DD–BX–K008, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent

the official position or policies of the U.S. Department of Justice.

U.S. Department of Justice

Office of Justice Programs

810 Seventh Street NW.

Washington, DC 20531

Janet Reno

Attorney General

Daniel Marcus

Acting Associate Attorney General

Mary Lou Leary

Acting Assistant Attorney General

Nancy E. Gist

Director, Bureau of Justice Assistance

Office of Justice Programs

World Wide Web Home Page

www.ojp.usdoj.gov

Bureau of Justice Assistance

World Wide Web Home Page

www.ojp.usdoj.gov/BJA

For grant and funding information contact

U.S. Department of Justice Response Center

1–800–421–6770

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also

includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile

Justice and Delinquency Prevention, and the Office for Victims of Crime.
Bureau of Justice Assistance

Emerging Judicial Strategies

for the Mentally Ill in

the Criminal Caseload:

Mental Health Courts in

Fort Lauderdale, Seattle,

San Bernardino, and Anchorage

April 2000 Monograph NCJ 182504

Prepared by John S. Goldkamp and Cheryl Irons-Guynn

Crime and Justice Research Institute
Cover image © 2000 PhotoDisc, Inc.
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Emerging Judicial Strategies for the Mentally Ill

Acknowledgments

This examination of the emergence of mental health courts in the United

States was made possible by the special recognition and leadership shown

by Nancy Gist, Director, and Timothy Murray, Director, Program Development Division, Bureau of Justice Assistance, U.S. Department of Justice.

The research we describe in this report involved observations, interviews

and continuing discussions with a number of officials and key actors in

the nation’s first four mental health courts. This work was possible because

of the cooperation, assistance and patience of quite a number of very

busy people.

Anchorage, Alaska

We are appreciative of the assistance and encouragement of the Honorable

Stephanie Rhoades, who made herself available to answer questions and

provide documentation about the work of her court. We would like to

thank JAS Coordinator/Caseworker Laura Brooks and Mental Health

Coordinator Colleen Reilly as well for their thorough descriptions and

prompt responses to requests for information. Chief Municipal Prosecutor

John Richards was particularly helpful in providing information and offering valuable insights into aspects of the mental health court programs. In

the Public Defender’s Office, Margi Mock was the source of important information from the perspective of the mentally ill offender.

Broward County, Florida

We are very grateful for the assistance, cooperation and helpful discussions with the Honorable Ginger Lerner-Wren in Broward County, the

nation’s first mental health court judge in the first mental health court.

She invited us to observe her courtroom, arranged a meeting of all key actors, including the Honorable Mark Speiser who played a major role in

planning the court, in which our questions were very patiently answered.

Judge Lerner-Wren welcomed the research and offered critical insight into

the operations of the court and objectives of her program. We appreciate

the assistance of Broward Mental Health Court staff, particularly Judicial

Assistant Christine Paganelis and Court Monitor Bertha Smith, who provided information about treatment issues. We thank Assistant District Attorney Lourdes Roberts, who patiently provided requested information.
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King County, Washington

Our observation of the King County Mental Health Court was equally eyeopening. We thank the Honorable James Cayce, Presiding Judge of King

County District Court and Mental Health Court judge, for his open support

and cooperation. He gave freely of his time in person and over the phone

and made sure we had our many questions answered. Program Manager

Kari Burell tirelessly answered all of our questions and responded

promptly to numerous requests for information. The help provided by

Court Monitor Susie Rozalsky is also greatly appreciated. Mark Larson,

Chief Deputy District Attorney of the Criminal Division, thoughtfully explained the issues, perspective and interests of the prosecutor relating to

the Mental Health Court. We appreciate the cooperation of Public Defenders Floris Mikkleson and Dan Gross and their willingness to describe the

issues faced by the defendant, and the assistance of Probation Officer Susan

Butler in informing us about supervision and treatment issues.

San Bernardino, California

Our visit to San Bernardino was originally intended to conduct focus

groups with participants in the San Bernardino Drug Court presided over

by the Honorable Patrick Morris. He invited us to observe the mental

health court. His court was impressive, differing from the others in taking

felony as well as misdemeanor matters. Its full docket dealt with very

difficult cases and raised many questions for us, which Judge Morris

patiently discussed with us. He also invited us to the precourt staffing of

the cases and gave us an opportunity to meet with the clinical staff and

court personnel. Mental Health Court Administrator Deborah Cima provided invaluable assistance. Conversations with Dr. John Mendoza and

Cheryl Hause provided us with valuable insight into the treatment issues

of the mentally ill offender as they related to the court. The cooperation of

the District Attorney’s Office, provided by Assistant District Attorneys

Dan Lough and Charlie Umeda, was important in providing perspective

into the unique prosecutorial issues that arise in this mental health court.

Also much appreciated was the detailed information provided by Jane

Lawrence from the Public Defender’s Office.

We are grateful for the opportunity this research represented to observe

the innovative efforts underway in these four jurisdictions and the dedication of those involved. Our observations of the courtrooms and discussions with the principal actors impressed us with the seriousness of the

issues raised by the mentally ill offender in the criminal caseload and the

challenge accepted by these mental health court pioneers.
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Emerging Judicial Strategies for the Mentally Ill

Executive Summary .................................................................................... vii

The Origin of a Mental Health Court Approach ............... vii

Common Features of the Four Mental Health Courts ..... viii

Differences Among the Four Mental Health Courts ........ viii

Issues Raised by the Emergence of a Mental

Health Court Model .................................................................. x

Chapter 1 Introduction ............................................................................... 1

Setting the Stage for Court Responses to Mental

Illness in Criminal Justice Caseloads: Recent Precursors

to Mental Health Courts ........................................................... 3

Earlier Prototypes: Special Court-Centered Judicial

Precursors to Mental Health Courts ....................................... 5

Early Mental Health Court Approaches

in Four Jurisdictions .................................................................. 7

Chapter 2 The Broward County (Fort Lauderdale)

Mental Health Court................................................................ 9

Target Problem and Rationale ................................................. 9

Target Population .................................................................... 10

Broward County Mental Health Court Procedure ............. 11

The Treatment Approach in the Broward County

Mental Health Court ............................................................... 16

Success and Failure in the Broward County

Mental Health Court ............................................................... 19

Chapter 3 The King County District Court

Mental Health Court.............................................................. 21

Target Problem and Rationale ............................................... 21

Target Population .................................................................... 23

King County Mental Health Court Procedure .................... 24

The Treatment Approach in the King County

Mental Health Court ............................................................... 31

Success and Failure in the King County

Mental Health Court ............................................................... 33

Chapter 4 The Anchorage Mental Health Court ................................ 35

Target Problem and Rationale ............................................... 35

Target Population .................................................................... 36

Anchorage Court Coordinated Resource Project

(Mental Health Court) Procedure ......................................... 37

Contents
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The Treatment Approach in the Anchorage

Mental Health Court ............................................................... 42

Success and Failure in the Anchorage

Mental Health Court ............................................................... 46

Chapter 5 The San Bernardino (California)

Mental Health Court.............................................................. 49

Target Problem and Rationale ............................................... 49

Target Population .................................................................... 49

San Bernardino Mental Health Court Procedure ............... 50

The Treatment Approach in the San Bernardino

Mental Health Court ............................................................... 54

Success and Failure in the San Bernardino

Mental Health Court ............................................................... 56

Chapter 6 Early Mental Health Court Initiatives: Common

Themes and Emerging Issues .............................................. 59

Common Origins and Objectives .......................................... 59

Common Features.................................................................... 60

Differences in the Approaches of the

Four Mental Health Courts .................................................... 69

Emerging Issues ....................................................................... 71

References ...................................................................................................... 79

Sources for Further Information ............................................................... 83

Contents (continued)
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Emerging Judicial Strategies for the Mentally Ill

Executive Summary

The Origin of a Mental Health Court

Approach

Beginning with the emergence of drug courts, the last decade has seen a

growing number of court-based, “problem-solving” initiatives that seek to

address the problems (“root causes”) that contribute to criminal involvement of persons in the criminal justice population. While breaking ground

for other “hands-on” judicial treatment innovations, the drug court model

has itself continued to evolve to address substance-abusing court populations across the country. From the one begun as an experiment in Miami in

1989, drug courts have grown in number to roughly 500 in the United

States (and abroad) currently. The judicial problem-solving methodology

originating in drug courts has been adapted to address other serious problems associated with large numbers of persons in the criminal caseload.

These have included community issues (community courts), family violence (domestic violence courts), and drug offenders returning to the community after serving prison terms (re-entry courts). One of the most

challenging applications of this therapeutically oriented judicial approach,

the mental health court, has focused on the mentally ill and disabled in the

criminal justice population. This report describes the emergence of the

mental health court strategy in four pioneering jurisdictions in the United

States, beginning with Broward County, Florida, where the idea was first

innovated. The Broward County Mental Health Court model has been

adapted to different settings and challenges in King County (Seattle),

Washington; Anchorage, Alaska; and San Bernardino, California.

The immediate pressures that have led to the development of the mental

health court strategy include crises in community mental health care (the

long-term effects of deinstitutionalization), the drug epidemic of the 1980s

and 1990s, the dramatic increase in homelessness over the last two decades, and widespread jail overcrowding. Each of the mental health court

jurisdictions has responded to both the critical problems faced by the

mentally ill in already overcrowded jails, and the relatively common cooccurrence of mental illness among the large numbers of substance

abusers in the criminal justice population. Local jails, which have been

struggling for decades, to deal with chronic overcrowding, have been particularly challenged by the need to care for the large numbers of mentally

ill persons found in their charge. As many jurisdictions have increased emphasis on drug crimes and quality of life offenses, the jail and court populations have increasingly included mentally ill and disabled individuals

who have extensive histories of involvement with the justice system and

who have not been successfully engaged by community mental health

treatment agencies.
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Common Features of the Four Mental

Health Courts

The four pioneering mental health court initiatives share a number of

common attributes. Each court is voluntary; the defendant must consent

to participation before he can be placed into the court program. Although

the mental health eligibility requirements for participants differ somewhat

from court to court, each jurisdiction accepts only persons with demonstrable mental illness likely to have contributed to their involvement in the

criminal justice system. The mental health courts share the objective of

preventing the jailing of the mentally ill and/or of securing their release

from jail to appropriate services and support in the community. In addition, each of the courts gives a high priority to concerns for public safety,

in arranging for the care of mentally ill offenders in the community. This

concern for public safety risk explains the predominant focus on misdemeanor and other low-level offenders and the careful screening or complete exclusion of offenders with histories of violence. The King County

court is open to defendants with a history of violent offenses which have

been triggered by mental illness, who are then provided with a level of

supervision sufficient to protect the public.

The four mental health courts also seek to expedite early intervention

through timely identification of candidates. Screening and referral of

defendants takes place within timeframes ranging from immediately

after arrest to a maximum of 3 weeks after the defendant’s arrest, depending on the jurisdiction. Each of the courts makes use of a dedicated team

approach, relying on representatives of the relevant justice and treatment

agencies to form a cooperative and multidisciplinary working relationship

with expertise in mental health issues. Another core ingredient of the mental health courts’ approaches is the emphasis on creating a new and more

effective working relationship with mental health providers and support

systems, the absence of which in part accounts for the presence of mentally

ill offenders in the court and jail systems. Each mental health court provides supervision of participants that is more intensive than would otherwise be available, with an emphasis on accountability and monitoring of

the participant’s performance. The four mental health courts share the core

role of the judge at the center of the treatment and supervision process,

to provide the therapeutic direction and overall accountability for the

treatment process.

Differences Among the Four Mental Health

Courts

The nation’s first four mental health courts also differ from each other in

important respects. The nation’s first mental health court in Broward

County was designed to be pre-adjudicatory and diversion oriented in its
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Emerging Judicial Strategies for the Mentally Ill

focus on misdemeanants. Eligible participants are placed into treatment

programs prior to the disposition of their charges, which are held in abeyance pending successful program completion. The rationale for this approach was therapeutic: the court was to be as nonthreatening and

nonpenal as possible and would seek to prevent further penetration by the

mentally ill offender into the formal adjudication process. In contrast, the

other jurisdictions opted for a conviction-based approach. In those sites,

participants generally plead guilty in order to enter the program.

The implications of a candidate’s decision to go to trial also differ in the

four mental health courts. In King County, during the first year of operations, defendants were required to waive their right to a trial in return for

admission to mental health court. They could not choose to go to trial, get

convicted and then seek to enter mental health court. Today, defendants

who request a trial are free to return to treatment court should they be

found guilty at trial. None of the other sites has a strict policy against accepting individuals who have opted for a trial, been convicted and then

requested admission to the mental health court. However, in these cases,

admission is far from ensured, and is decided on a case-by-case basis.

The four mental health sites also differ in their method of resolving criminal charges. Successful participants in Broward often have no conviction

on their records, as charges are generally resolved through a “withheld adjudication” or a dismissal of the charges. In King County, another significant policy adjustment has recently been made. Deferred prosecutions and

deferred sentencing are now liberally granted, increasing the likelihood

that successful completion will result in the dismissal of charges. During

its first year of operation, most of the participants pled guilty. The other

two courts generally require pleas of guilty or no contest in order to enter

the program, with the option of deferred disposition or deferred adjudication offered rarely to defendants with few or no prior contacts. In Anchorage, only these few defendants may end up without a conviction. In San

Bernardino, however, successful completion may result in the withdrawal

of the plea and, later, expungement of the participant’s criminal record.

The mental health courts diverge also in their handling of noncompliant

participants. While each court expects the treatment process to be potentially difficult, given the population of mentally ill offenders with which

they have chosen to deal, they vary in the way they impose sanctions for

noncompliance. Short of program termination, the most severe sanction is

jail confinement. The use of this sanction seems least likely in Broward and

Anchorage, somewhat more likely in King County, and relatively commonplace in San Bernardino. This difference in approach is accounted for

in part by philosophical differences among the sites about the appropriate

response to noncompliance; however, it is also related to the differences in

the type of candidate admitted to the court. San Bernardino is the only

site that accepts low-level felony offenders, who are usually incarcerated
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offenders with a previous diagnosis of mental illness as well as a record of

prior convictions. In addition, most of the San Bernardino mental health

court population has serious co-occurring substance abuse problems.

Issues Raised by the Emergence of a Mental

Health Court Model

Early Identification of Mental Health Court Candidates

Problem-solving courts of different types share in common the need to

identify their target population candidates as early in criminal processing

as possible. The original drug court model was premised on the assumption that intervention with addicted offenders should occur shortly after

arrest to maximize the opportunity to begin treatment when individuals

may be most open to the possibility. In domestic violence courts, there is

urgency to correctly assess the risks posed to victims and implement

options for treating or otherwise dealing with the offenders before further

harm can occur. To be effective, mental health courts share that critical

need to identify mentally ill or disabled candidates at the earliest possible

stages of processing to avoid the damaging experience of arrest and confinement, to intervene medically to stabilize offenders and then to situate

them in an appropriate placement process.

Like the other types of courts, however, the mental health court model faces

serious challenges in identifying appropriate candidates early through appropriate and effective screening and evaluation procedures. Collectively,

the early mental health courts employ informal and formal methods for

identifying possible candidates and assessing them in some depth before

detouring them from the normal adjudication process. These methods may

include informal referrals at arrest, arraignment or jail admission of persons

appearing to suffer from mental illness or disabilities. They are followed by

more indepth clinical interviews at the jail or in court to assess the eligibility of defendants for the mental health court programs.

Fair, appropriate and effective screening procedures face three principal

challenges: timeliness, accuracy, and confidentiality. Each of the courts has

established procedures that identify mentally ill or disabled candidates as

early as possible in the criminal process to maximize the opportunity to intervene and assist. The need to identify and assess the conditions of candidates quickly potentially conflicts with the need to conduct the thorough

clinical assessment required for a reliable diagnosis on the basis of which

processing in the mental health court can begin. To put it simply, it is hard

to rush such an assessment and still have it be accurate and complete. This

may be particularly true because of the difficulty associated with communicating with some mentally ill defendants.
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Emerging Judicial Strategies for the Mentally Ill

Early intervention by the mental health court depends on timely and accurate information about the defendants’ criminal justice and mental health

backgrounds. However, the goal of early intervention and prompt treatment conflicts in part with the need for confidentiality and for consent by

the defendants to share the mental health information with the court staff.

Devising workable procedures that both enhance early intervention and

enrollment of mentally ill offenders in the mental health courts and respect

confidentiality pertaining to sensitive personal information represents one

of the difficult challenges facing the mental health court approach.

Voluntariness

Some observers see special courts as vehicles for “coerced treatment,” a

term with favorable and unfavorable connotations. The favorable use of

the term suggests that the judicial role and application of sanctions and rewards contribute a valuable tool for keeping participants in treatment and

increasing the chances of successful outcomes. The unfavorable reference

alludes to the problems associated with forcing treatment upon individuals who have not voluntarily consented, from a due process perspective

and from the perspective that treatment cannot be effective unless it is

wanted and the offender is “ready.” In fact, most problem-solving courts

are premised on voluntary participation by candidates, with the exception

of some sentenced-based approaches (in which judges may simply sentence a person to treatment in court). This is especially true in diversionbased courts. Certainly, courts requiring guilty pleas from participants for

admission must demonstrate that a plea was made knowingly and voluntarily on the record. Even when appropriate procedures are observed to

safeguard voluntariness in special courts, some critics argue that the

choice (between, for example, drug court and jail) is a coerced choice.

The question of voluntariness is even more difficult for mental health

courts. Although all the same legal issues dealt with in drug courts, domestic violence courts and community courts exist for persons entering the

mental health courts examined in this report, they must also confront

questions about a person’s mental capacity and ability to comprehend the

proceedings and the options being provided. Competency is a threshold

issue that must be decided before an individual can be considered as a

mental health court candidate in each of the courts. However, even among

those deemed competent to stand trial, serious questions may be raised

about the ability of persons to really understand the choices being presented and the consequences of those choices (e.g., going to trial or participating in the mental health court in one of several possible legal statuses).

If a requirement for voluntary participation in the special courts is not only

competency as legally defined, but also an ability to understand and make

reasonable decisions, then achieving voluntariness among mentally ill or

disabled treatment candidates is a challenging proposition indeed. In the
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mental health courts, it means that sufficient time must be taken by defense

counsel and by the court itself to make certain that the candidate’s decision

to enter the mental health court is in fact voluntary. This means having a

grasp, beyond the threshold question of competency, of a defendant’s mental condition. The potential fear is that defense counsel and/or the court

may make decisions in the candidate’s best interest when in fact the candidate, though competent, is thoroughly confused and afraid.

Conflict Between Criminal Justice and Mental Health

Treatment Goals

A challenge in the design of each type of problem-solving court was the

need to craft an approach that resolved conflicts in values and goals inherent in criminal justice and treatment orientations (Goldkamp, 1999). For

example, when substance abuse treatment professionals might stress tolerance for relapse and erratic performance (or a positive drug test) by drug

abusers as part of the therapeutic process, criminal courts might normally

be inclined to revoke conditional release (probation) and impose sanctions.

While the criminal process might need to proceed expeditiously to adjudicate criminal charges, mental health professionals require time to diagnose

the mentally ill defendant’s condition, take immediate steps to stabilize the

defendant and then to place the defendant in appropriate supportive services for treatment. From the perspective of mental health treatment, potentially the worst experience for many mentally ill persons would be

arrest, jail and formal proceedings in the criminal court. In short, these

conflicts in method, aims, values and style pose a particular challenge in

the emerging mental health court initiatives to produce a hybrid model

that attends to the basic requirements of each.

Defining Success

The drug court treatment process, from which the mental health court approach was adapted, was structured around clear phases of treatment

through which a participant passed on the way to graduation. Requirements for graduation were clearly specified and typically included minimum periods of testing negatively for drugs of abuse, completion of all

treatment activities, payment of fees, etc. Drug court participants therefore

were able to chart their progress against clear expectations and rules for

completion of the program. Charting a course for successful completion of

requirements of the mental health court treatment process is more complex.

Mental health court participants may suffer from a variety of symptoms

and illnesses and, thus, lack a common starting point. The steps necessary

to stabilize participants and to situate them in living situations that will

maximize their effective functioning are likely to differ considerably from
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Emerging Judicial Strategies for the Mentally Ill

individual to individual. While a goal for substance abusers can clearly

and measurably be abstinence within the timeframe of the drug court

treatment program, such a practical framework is not so readily available

in the treatment of mental illness. Courts cannot say, “be cured within 12

months.” They can expect that participants successfully follow the steps to

improved functioning outlined in a treatment plan agreed upon by the

participant and the mental health professionals. Thus, the challenge for

setting achievable milestones for mental health court professionals is more

complex and the functional equivalent of graduation may differ considerably from individual to individual.

Range of Responses to Participant Behavior/

Performance

To an observer of other problem-solving courts, particularly drug courts

where some of the in-court techniques were first developed, the mental

health court model faces special challenges in devising responses to participant performance in treatment. One might argue that the experience of

drug courts in the United States suggests that drug abusers respond well

to a very structured system of incentives and sanctions when moving

through the treatment process toward sobriety and improved functionality. These approaches are crafted based on assumptions about the behaviors of addicted persons, including a belief that very basic lessons and

behaviors may have to be taught and retaught for substance abuse treatment to be successful. Many drug courts have devised a rich range of responses rewarding participants for forward progress through treatment

stages (until graduation). When these elements of the drug court model

are applied to the mentally ill and disabled in the criminal justice system,

the translation of the “rewards and sanctions” approach to mental health

courts raises some difficult challenges. It is apparent that, because of the

nature of mental illness (as compared to substance abuse or domestic violence), judicial responses have to be more generally encouraging and supportive as the court process seeks to move mentally ill and disabled

participants into treatment and supportive services. Thus, depending on a

defendant’s illness, the judge’s repertoire may need to draw on a wider

range of incentives and supportive responses to participant progress than

other problem-solving courts.

The notion that mental health courts should also call upon sanctions for

poor performance is more difficult. In some cases, it may be clinically appropriate to employ the kinds of sanctions employed by drug courts in responding to noncompliance in treatment, including returning participants

to earlier and more restrictive treatment stages or, even, making use of jail

in selective instances. In other types of cases, however, it may be questionable as to whether sanctions (based on assumptions of deterrence) are at all
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appropriate to produce the improved mental health outcomes desired. Real

questions, therefore, are raised about how the coercive power of the courts

can be channeled to promote the goals of mental health treatment. Can a

court sanction a defendant who fails to take medication? Does a court sanction a defendant who has difficulty functioning and understands little of

the current circumstances or expectations due to mental illness?

Community Linkage and Resources

A critical element of the emerging mental health court model involves

identification of the necessary treatment and related services in the community and the development of an effective working arrangement between

the courts and the service providers that helps place participants in appropriate services, and moves them out of jail, as quickly as possible. Moreover, the model is premised on a working relationship, as represented by

the dedicated team approach, that facilitates ongoing supervision and

case-management. Two important problems are faced by the mental health

court approach.

First, if it is true that the court system finds itself having to address the

needs of the mentally ill population, it is at least partly because existing institutions and services in the community (at least outside of criminal justice) have failed to serve this population. There is some irony, then, in

designing a program that uses the court to place mentally ill and disabled

participants in those very systems. Secondly, if the rationale for making

use of these existing services is that the mental health court creates a new,

synergistic relationship that improve both the court and treatment approaches, then the actual availability of these services and the resources to

support them becomes a critical concern. A mental health court approach

with a large population of persons in need of treatment but few services

available in the area may have great difficulty in delivering treatment.

Moreover, even when services are available and providers are enthusiastic

about the court-based mental health treatment approach, effective identification of candidates in the criminal justice population risks placing a new

and large demand on treatment resources.

Each of the mental health courts described in this report have identified potentially large populations of mentally ill and disabled defendants who are

in need of mental health and related supportive services. Each has also

found that treatment resources and funding are insufficient for the populations they are serving and plan to serve in the near future. When resources

exist, they do not adequately provide the type or range of services the mentally ill and disabled persons in the criminal justice population require.

Mental Health Courts as a Community Justice Initiative

The mental health court strategy shares with prior problem-solving court

undertakings the fact that a difficult problem has not been adequately
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Emerging Judicial Strategies for the Mentally Ill

dealt with through community institutions and services. Presumptively,

effective community interventions could prevent the need to find and treat

mentally ill citizens in the criminal justice system. The criminal behavior of

the mentally ill ranges from nuisance and quality-of-life levels to more serious offenses that sometimes endanger themselves or other citizens. Although there are a range of behaviors associated with the mentally ill and

disabled, it is highly unlikely that they have gone unnoticed in the community until their encounters with the criminal justice system. In fact, the

presence of untreated, low-level mentally ill offenders represents an important quality of life and community justice concern in many localities.

Because other community networks or institutions have not effectively

treated and supported the mentally ill—because community-based safety

nets have failed—they enter the justice system, usually involved in minor,

nuisance, and quality of life offenses. Often, by then, they have other serious problems—such as alcohol or other drug addiction, housing, employment and physical health problems—that also have not been addressed. In

many instances, the mentally ill or disabled find themselves in criminal

justice primarily because of their mental illness and their inability to connect with or stay in supportive community-based treatment services.

Like the other special court approaches, the mental health courts described

in this report attempt to address the problems of their target populations

on two levels:

• By dealing with their problems in the criminal justice system.

• By building linkages to community services and support structures that

have for a variety of reasons failed to reach them prior to their criminal

justice involvement.

Each of the mental health courts discussed has developed strategies for

identifying mentally ill and disabled offenders at the earliest stages of processing, sometimes involving contacts from police officers at the arrest

stage. Each jurisdiction has taken steps to implement early screening procedures to evaluate candidates for the court treatment process as soon as

possible so that unnecessary delay, criminal justice processing, and jail

confinement can be avoided. Each of the courts began with a primary focus on defendants entering the criminal process shortly after arrest, but expanded to accept referrals from other courts, attorneys, police, friends,

relatives or other community contacts aware of mentally ill or disabled individuals caught up in the justice system. Each of the courts established a

close link to the local jail, so that mentally ill inmates could be identified

and admitted to the mental health court treatment process, at whatever

stage of processing in the criminal justice system. In short, consolidating

justice procedures to identify and enroll candidates in treatment has been

an aim of these first pioneering mental health courts.
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In each case, the in-house approach is closely tied to a focus on community

treatment resources and linkages. Depending on the kinds of illnesses evidenced and the types of resources available in their locales, each of the

early mental health courts takes steps to place participants in communitybased treatment services, either immediately or after initial crises are addressed and individuals are stabilized. Each court emphasizes the

importance of proper and timely diagnosis and of placement in proper

treatment and supportive care services, where they exist. Each court builds

the treatment process around court supervision as a critical, core element

ensuring both that enrolling participants cooperate and that appropriate

services are indeed provided. At the core of the mental health court approach is a newly established working relationship between the supervising court and community mental health treatment and related services.

Mental health courts, in this regard, represent important court-based community justice initiatives. They are strengthening the effectiveness of community mental health treatment approaches by offering their close

attention and supervision. They are returning mentally ill persons from

custody and processing in the criminal justice system to the community to

function there. They are encouraging community-based justice and health

approaches that would prevent mentally ill and disabled individuals from

entering the justice system in the first place. Thus, successful court strategies would ideally put themselves out of business: they would find far

fewer mentally ill persons in criminal justice, because they would be more

effectively and appropriately dealt with through improved community intervention, services and support mechanisms.
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Emerging Judicial Strategies for the Mentally Ill

Four Pioneering Mental Health Courts: Descriptive SummaryDefining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Court start date June 6, 1997 July 6,1998 February 17, 1999 February 17, 1999Supervising Judge Honorable Ginger Lerner Wren, Honorable Stephanie Rhoades, Honorable James Cayce, Presiding Honorable Patrick Morris.

Criminal Division,17th Judicial Honorable John Lohff, Third Judge, District Court.Circuit, County Court. Judicial District Court Judge.

Mental Health Expedite case processing, create Expedite case processing, Expedite case processing, create Provide mental healthCourt Goals effective interactions between improve access to community effective interactions between services to eligible

mental health and criminal justice health resources, relieve jail mental health and criminal justice defendants to improvesystems, increase access to mental overcrowding, reduce clinical and systems, improve mental health their communityhealth services, reduce recidivism, legal recidivism, improve public and well being of participants, functioning, reduceimprove public safety, reduce safety and order. protect public safety, reduce rate of reincarcerationlength of confinement of mentally clinical and legal recidivism, and recidivism, maintainill offenders. improve access to mental health defendants in least

resources, improve monitoring of restrictive mental healthmentally ill offenders. environment.

Stage of intervention Post arrest. Plea/sentencing hearing. Plea/sentencing hearing. Plea/sentencing hearing.Method of entry Diversion program; entry prior to Plea required prior to program Plea required for official program Plea required prior to

disposition of charges. entry; a few deferred dispositions entry; stipulated order of program entry.

are allowed. continuance possible for domestic

violence; some deferredprosecutions allowed.

Eligible criminal offenses Misdemeanors, excluding DUI Misdemeanors. Misdemeanors. Misdemeanors and

and domestic violence, battery low-level felonies.

eligible with victim consent only.

Eligible criminal history Misdemeanors, and felonies Misdemeanors and felonies Misdemeanors and felonies Prior record required

allowed; with careful screening allowed with careful screening allowed; violent priors accepted for admission misdemeanors;of violent offenses. of violent offenses. on case by case basis. felonies allowed with

careful screening ofviolent offenses.

Mental health eligibility Axis I serious mental illness, CCRP-diagnosis or obvious Serious mental illness or History of severe andrequirements organic brain impairment, signs of serious mental illness, developmental disability that persistent Axis I mental

developmental disability. developmental disability or triggers crime charged. illness; previous diagnosis

organic brain syndrome that was required.contributing factor in commissionof crime charged. JAS: majormental illness with history ofpsychosis.
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Bureau of Justice Assistance

Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Frequency of court Court convenes daily at 11:30 Court operates on part time, as- Court convenes daily at 1:00 Court in session everysessions a.m.; review hearings held needed basis. p.m. for first appearances, and Wednesday.

on Thursdays at 1:30 p.m. Thursdays at 2:00 p.m. for status

and review hearings.

Courtroom team Judge, prosecutor, public Judge, prosecutor, public Judge, prosecutor, public Judge, prosecutor, public

defender, court monitor, court defender, JAS case coordinator. defender, program manager, court defender, mental healthclinician, case manager, mental monitor, jail psychiatric liaison, court administrator, casehealth court liaison. probation officer. managers, probation officer.

Stage of identification Within 24 hours of arrest, from Within 24 hours of arrest, during Within 48 hours of arrest during Within 48 hours of arrest,

magistrate/bond hearing. jail screening prior to jail screening prior to first during jail screening prior

arraignment. court appearance. to arraignment.

Defendant in custody Most are in custody, but not CCRP: most are in custody, but Most are in custody, but not Defendant must be in

required for admission to program. not required; JAS: defendant required for admission to program. custody to be eligible

must be in custody to be eligible for program.for program.

Referral source Primary source: magistrate, county CCRP-county jail, Mental Health Primary source: county jail; others Primary source: county jail.

jail; others-attorneys, family. providers, family, attorneys, magistrate, attorneys, family,

magistrate; JAS: county jail. police, Mental Health caseworker.

Initial screening Magistrate court, county jail. County jail. County jail. County jail.Time from referral to Often within hours of the referral. 24–48 hours. Usually 24 hours. 2–3 weeks.Mental Health CourtappearanceCompetency evaluation Private psychiatrists generally If defendant in custody, referred to Evaluation done by state hospital Evaluation conducted in

perform evaluation at detention state hospital for evaluation; if psychiatrist in county jail unless psychiatric wing of countyfacility; if defendant is incompetent, not in custody, independent the defendant requires jail by state hospitalwill be conditionally released or evaluation is scheduled; hospitalization; evaluation held psychiatrist; if defendantgiven temporary housing while 90 days to restore competency, within 14 days; 29 days total found incompetent, statuteattempts are made to restore then court reevaluates if defendant allowed to restorecompetency allows up to 3 years,competency; state maintains civilly committed, may dismiss if violent charge or history; or the statutory maximumcriminal jurisdiction for 12 charges. if not restored, charges dismissed to restore competence.months. without prejudice.

Final eligibility decision Judge decides eligibility with Judge decides eligibility with Judge decides eligibility with Admission requires

input from court team. input from dedicated court team. input from court team. consensus of all members

of court team.

Treatment begins Treatment plan is to be completed Treatment plan is ordered as a Interim treatment plan begins Treatment plan begins in

prior to resolution of charges. condition of probation at prior to resolution of charges, jail; defendant released to

conclusion of sentencing hearing. generally released at first treatment program at first

appearance; defendant returns to appearance or within 1court 2–3 weeks later to resolve week thereof.charges.
xix

Emerging Judicial Strategies for the Mentally Ill

Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Length of Mental Health Defendant may be monitored for Typical treatment probationary Treatment probationary period: Treatment probationaryCourt treatment up to 1 year while charges are term: 3–5 years; misdemeanor typically 2 years; for DUI charge, term: 2 years for

held in abeyance. probation may last up to 10 years. term is extended to 5 years. misdemeanors, 3 years

for felonies.

Disposition of charges Disposition conclusion of treatment; Most defendants have convictions Most defendants have Charges are dismissed upon

in most cases adjudication withheld, at conclusion of treatment and convictions at the conclusion successful completion;no conviction ever entered; in their sentence is suspended; of treatment, sentence is defendant may petitionserious cases guilty plea with deferred dispositions result in suspended; the few with deferred for expungement.credit for time served. dismissal of charges upon dispositions are eligible to have

successful completion. their charges dismissed upon

successful program completion.

Effect of request for Defendant will be transferred to Defendant may still be eligible Defendant no longer eligible for Defendant may still betrial traditional court for trial, but for treatment court; trial may treatment court; case referred to eligible for treatment court;

can access community-based proceed before Judge Rhoades, traditional court. considered on case-by-casetreatment and services through who also maintains a criminal basis.the Mental Health Court team. calendar.

Supervision Court monitor supervises with CCRP: no outside supervision, Probation officer and Mental Probation officer and case

assistance from case managers and court and prosecutor monitor; Health staff at assigned manager with limited caseprogram staff; probation officer JAS: caseworker with small treatment facility closely load oversee client on asrarely used because most caseload provides close monitor the defendant; needed basis, up todefendants are not on probation. supervision up to several times court monitor supervises several times weekly.

weekly, as needed. provisional treatment plan.

Frequency of status Hearings held at regular intervals One hearing scheduled after Hearings held at regular intervals Hearings held every 3–4and review hearings and as needed. release; thereafter on as-needed and as needed. weeks.

basis unless high risk defendanthearings every 30 days.

Sanctions for Hearings before judge; change in Minor violations: adjustments Jail used sparingly if defendant Sanctions range fromnoncompliance treatment, support and made in treatment; jail used as noncompliant after repeated reprimands by judge to

encouragement; use of jail as threat; jailed after repeated counseling and court hearings. stricter treatment conditions,

sanction extremely rare. attempts at counseling. community service, and jail,

which are used liberally.

Successful termination Most cases: deferred prosecution, Few deferred prosecutions may Deferred prosecution; defendant Charges dismissed;from Mental Health withdraw guilty plea, no withdraw plea; most cases, credit may withdraw plea; most cases, defendant may petition forCourt conviction on record; serious given for time served, conviction credit given for time served in expungement.

cases: guilty plea entered, credit remains on record. program, guilty plea remains ongiven for time served. record; may dismiss charges on

District Attorney recommendations.
xx

Bureau of Justice Assistance

Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Unfavorable Defendant commits serious new Defendant commits serious new Defendant commits serious new Defendant commits serioustermination from crime, repeated willful violations, crime or repeated willful crime or repeated willful new crime or repeatedMental Health Court or wants to get out of program, violations, original charges violations, original charges willful violations, original

adjudication may be withheld or referred to criminal court. referred to criminal court. charges referred to criminalplea taken; judge has full array of court.sentencing options.
1

Emerging Judicial Strategies for the Mentally Ill

American jails and prisons have long struggled with problems associated

with mentally ill persons in their care and custody (Fosdick et al., 1922:

440-443; Beeley, 1927; National Commission on Law Observance and Enforcement 1931; National Advisory Commission on Criminal Justice Standards and Goals 1973; Mattick, 1975; American Bar Association, 1986; 1989;

Matthews, 1970; McFarland et al., 1989). The challenges faced by jails in

managing mentally ill persons in their custody have been particularly

acute (Steadman and Veysey, 1997; Abram and Teplin, 1991; Teplin, 1990

Henderson, 1998). With scarce resources, local jails have traditionally had

difficulty in providing adequate mental health treatment services to inmates who may be in their care for relatively short stays, often in a mix of

legal statuses. Although jail populations have accounted for high concentrations of persons with mental health problems, most justice agencies deal

with individuals with serious mental health issues, in areas ranging from

the most minor to the most serious criminal matters, from criminal trespass and disorderly conduct to capital cases (Matthews, 1970; McFarland

et al., 1989; Wolff, 1998, Harris and Koepsell, 1998). Public perception of

the mentally ill offender may be most dramatically shaped by incidents of

random violence in the community as treated by the mass media—which

appear far too common—and include the beliefs that mental illness contributes to high rates of recidivism.

The concern for mental disability or illness in the criminal justice population is, as a matter of legal philosophy, traditional. In fact, the normal adjudication process is bounded by concerns for the mental capacity and

adequate functioning of defendants and offenders. At the early stages, participation in the criminal process is premised on the assumption that a defendant is mentally competent to participate in and understand the

proceedings (Winnick, 1995). Criminal responsibility and assignment of

punishment are limited by questions of insanity and guilty-but-mentallyill.1 Beyond these special issues, however, it is unarguable historically that

persons with mental illness have always been found in criminal justice

populations and have posed longstanding and stubborn issues for justice

agencies and institutions.

A recent Bureau of Justice Statistics survey (1999), estimating conservatively that 238,000 mentally ill offenders were incarcerated in American

prisons and jails in 1998, underscores the magnitude of the problem

Chapter 1

Introduction

1

See, e.g., Ford v. Wainwright, 447 US 399 (1986) in which the U.S. Supreme Court held that

the eighth amendment prohibited the state from inflicting the death penalty upon an insane

prisoner; see also Mossman (1992).
2

Bureau of Justice Assistance

currently dealt with by correctional agencies nationwide. This number represents 16 percent of all state prison and local jail inmates, and 7 percent of

Federal prisoners. When the massive volumes of arrests,2

 criminal cases

processed,3 police contacts with citizens, persons supervised by pretrial

services, and probation and parole agencies are also taken into account, the

numbers of mentally ill persons dealt with and/or supervised by the

criminal justice system on a routine basis in the United States is extraordinarily large.

Several developments may account cumulatively for the current state-ofaffairs represented by the mentally ill in the American criminal justice systems. The deinstitutionalization movement in mental health during the

1960s and 1970s (Whitmer, 1979) had the foreseeable result of diverting

greater numbers of persons with serious mental illness into the community. As the hoped-for community-based mental health treatment system

was not effectively realized, by default, the criminal justice system increasingly absorbed individuals who were not able to function acceptably and

independently in the community. This phenomenon was aggravated by

the dramatic increase in homeless populations in American cities and

towns during the 1970s, 1980s, and 1990s, among which the mentally ill

were, also predictably, well represented (Smith, 1996; Solomon et al, 1992;

Snow, 1989).

Many mentally ill suffer from co-occurring disorders, often including substance abuse4 (Abram and Teplin, 1991). The enforcement efforts of the

“War Against Drugs” of the mid-1980s and early 1990s directed against

drug offenders inadvertently fostered increases in arrests and prosecutions

of drug-involved offenders with mental illness. Moreover, recent law enforcement strategies emphasizing strict enforcement of “quality-of-life” offenses and local ordinance violations have added to the probability that the

mentally ill (and particularly the homeless mentally ill) will find themselves

increasingly involved in the criminal justice system for minor offenses. Together, these factors have contributed to the perception that, for the mentally ill and the substance-abuse-involved, the criminal justice system has

increasingly come to serve as the “social service system of last resort.”5

2

In 1998, law enforcement agencies nationwide made 14.5 million arrests for all criminal

infractions excluding traffic violations. UCR (1998) at p. 209.

3

Sourcebook of Criminal Justice Statistics, U.S. Department of Justice, Bureau of Justice

Statistics, Washington, DC: USGPO, (1998), pp. 388, 431, 435.

4

According to Ditton (1999), a majority of mentally ill inmates suffer from co-occurring

substance abuse problems.

5

See Wexler and Winck (1996) for a discussion of therapeutic jurisprudence and its application to the mentally ill in the justice system. See Hora et al. (1999) for a discussion of drug

courts from the perspective of therapeutic jurisprudence.
3

Emerging Judicial Strategies for the Mentally Ill

Setting the Stage for Court Responses to

Mental Illness in Criminal Justice Caseloads:

Recent Precursors to Mental Health Courts

The potentially large numbers of mentally ill persons in the criminal justice

population have in common a processing in the criminal courts. Simple

math suggests that the potential impact of the problems associated with

the mentally ill on the judiciary in disposing of its criminal caseload is

significant. Beyond the relatively infrequent special judicial determinations relating to civil commitment, competency, insanity and guilty-butmentally-ill defenses, mentally ill defendants and offenders raise a more

general challenge to normal case processing, when it appears that patterns

of offending are explained by mental illness or disability and/or that effective treatment could control or prevent the occurrence of such patterns.

Two more recent developments have played an influential role in the

emergence of mental health courts: the national crisis of overcrowding in

local jails and the development of drug courts. At the conclusion of the

1980s, jails in many American jurisdictions reached critically overcrowded

levels, driven in part by the large increases in arrests for drug-related

crimes. This meant that in addition to previously unknown concentrations

of substance abuse involved inmates, they also had to deal with growing

numbers of inmates with mental health problems. Court systems in the

most crowded jurisdictions participated in systemwide review of practices

and problems that contributed to delays in processing and to the avoidable

use of confinement of defendants and offenders in local jail facilities.

Whether in response to Federal lawsuits or the need to address system

dysfunction, many jurisdictions developed strategies to improve justice

practices and implemented alternatives to routine processing and incarceration. To do this, they focused on the categories of inmates that contributed most to the excessive jail population levels, including drug offenders.

The “decarceration” of categories of inmates in local jails, through emergency release procedures or more planned system improvements, forced

local criminal justice systems to devise strategies to manage higher-risk defendants and offenders in the community. Key in most significant alternatives to incarceration or system improvement strategies were the criminal

courts, because their procedures for organizing and disposing of the criminal cases and their uses of local confinement at pre- and post-conviction

stages were the dominant influence on the local correctional population.

At the end of the 1980s and the beginning of the 1990s, as drug enforcement expanded and criminal penalties for drug offenses increased, reform

strategies inexorably sought to come to grips with the drug-related criminal caseload and drug offenders who were confined in state and local institutions. Thus, local justice systems faced the prospect of handling greater

numbers of higher-risk and often drug-involved offenders in the community. The development of drug courts was prompted by the crowding crisis in the jails and criminal caseload crises in the courts.
4

Bureau of Justice Assistance

Against the system strains brought on by the crack/cocaine epidemic and

drug enforcement efforts, the “invention” of the nation’s first treatment

drug court in the Dade County (Miami), Florida, court system in 1989 represented a major reform milestone in American criminal courts in a number of ways. First, the philosophy underlying the Miami Drug Court

departed sharply from the traditional process-and-punish orientation of

large criminal court systems. Overwhelmed by unparalleled increases in

the drug-related felony caseload, the Miami court leaders, the prosecutor

(Janet Reno) and the public defender decided to reject “more of the same.”

The Miami system had shown that more enforcement, faster adjudication,

more severe penalties and, even new jails had not reduced drug crime.

However, they had clearly overburdened the resources of the local criminal justice system and, with a seemingly inexhaustible supply of drug offenders, there appeared to be no end in sight. To respond to this situation,

Miami justice leaders designed what Attorney General Reno describes as a

“carrot-and-stick” approach to provide drug treatment to felony offenders

through a different use of the criminal court as a treatment catalyst and

therapeutic tool.

The drug court movement is described elsewhere in detail.6

 Its relevance to

understanding the emergence of mental health courts stems first in its

philosophical breakthrough, that is, the decision that criminal courts could

appropriately intervene to “treat” addicted offenders, and also in its provision of a significant alternative to confinement in the local or state correctional systems. The reasoning was simple and recognized the principle that

to reduce drug crime it made sense to tackle its cause: substance abuse. In

addition to its tough-minded but helping philosophy, the Miami Drug

Court departed from the traditional hands-off approach of the judiciary,

which reflected a belief that the myriad social problems in the lives of offenders were not the responsibility of the courts to address. (This included

a strong belief that judges were not social workers.)

The judicial philosophy behind the Miami Drug Court was, instead,

hands-on, arguing in sharp contrast that the criminal court judge and

criminal courtroom could play a major role in getting offenders off drugs

and setting them in the direction of more productive and law-abiding

lifestyles. Another revolutionary element of the Miami innovation was the

development of a new working relationship between (drug treatment and

other health) professionals and the criminal court. The Drug Court was

based operationally on multidisciplinary teamwork and cooperation at all

stages (although led and supervised by the judge).

6

For discussion of the evolution and impact of drug courts, see Goldkamp (2000; 1999; 1994)

and Hora et al. (1999).
5

Emerging Judicial Strategies for the Mentally Ill

The success of the drug court idea in the United States and abroad is now

well-known. The Miami approach struck such a chord among other localities and court systems that first one, then a handful, and then hundreds of

other court systems adapted the treatment court model to address their

own local drug crime problems. Remarkably, the drug court model of demand reduction among substance abusing offenders is now supported

through a variety of state and federal funding sources with a dedicated office in the Department of Justice (the Drug Court Program Office of the Office of Justice Programs).

More important for understanding the emergence of mental health court

strategies than the apparent popularity of the Miami innovation, is the fact

that the Miami Drug Court opened the door to direct judicial involvement

in dealing with the significant problems associated with large numbers of

persons in the criminal caseload, and in focusing on substance abuse. The

proactive, hands-on, problem-solving model pioneered in Miami accomplished much more than just to help proliferate the drug court model

across the nation. It broke down important barriers that made possible

other court-based justice innovations that continue to reshape American

courts. Spin-off innovations include the Midtown Community Court and a

whole second generation of community courts, a growing number of domestic violence courts, court-initiated programs focusing specifically on

female offenders and their treatment needs, and other special court approaches dealing with problem populations making up the criminal

caseload.

The drug court innovation set the stage for other special court approaches,

including mental health courts, by providing a model for active judicial

problem solving in dealing with special populations in the criminal

caseload. But, in addition and not coincidentally, as the involved judiciary

learned more about substance abuse and serious addiction among offenders, they also learned more about disorders, such as serious mental illness

and disabilities, frequently co-occurring with substance abuse. In fact, as

drug courts became more efficient at identifying candidates and providing

treatment, the prevalence of mental illness in the substance-abusing justice

population became increasingly apparent.

Earlier Prototypes: Special Court-Centered

Judicial Precursors to Mental Health Courts

The criminal justice system generally, and particularly the courts in considering probation, the jails in housing inmates locally for short periods,

and the police in enforcing nuisance offenses have struggled with the

problems posed by mentally ill defendants and offenders for decades. The

very recent emergence of the mental health court approach in a handful

of jurisdictions does have parallels, if not direct origins, in earlier courtcentered initiatives dealing with mentally ill offenders in the 1960s.
6

Bureau of Justice Assistance

Matthews (1970), for example, describes “court-centered mechanisms” for

“therapeutic disposition” of cases of defendants exhibiting mental illness

in the Municipal Court of Chicago and the Supreme Court of the City of

New York.

Matthews reports that early in the 1960s, the Municipal Court of Chicago

had jurisdiction over misdemeanors and sat as committing magistrates for

felony cases. The Psychiatric Institute, which was administratively attached to the court, had two divisions. One was housed in the same police

headquarters building as the misdemeanor branch of the court and

handled misdemeanor referrals. The other, an in-patient facility, was located at the main city jail next to the building housing the felony branch of

the municipal court. The primary function of the Institute was to make

psychiatric evaluations on issues of competency to stand trial and on issues of criminal responsibility of defendants charged with felonies. If the

Institute found that a felony defendant referred for evaluation was suffering from a mental illness, and the gravity of the crime or the danger posed

by the defendant was not too serious, it could recommend alternatives to

criminal justice sanctions, including civil commitment or, in the case of minor felonies, out-patient therapy as a condition of probation. Cases were

sent back to criminal court when mental disorder was not found or was

found to be irrelevant to the crime charged.

Misdemeanor defendants were referred to the Institute by administrative

order, often by the arresting officer or by the judge after observing odd behavior in a pretrial hearing. Such cases usually involved defendants who

were unable to make bail or afford the services of private counsel. Although there was no legal basis for the referral, there was little objection to

it. Public defenders did not object, as the referral often led to a nonpenal

disposition for the defendant. A psychologist and a psychiatric social

worker interviewed the defendant. The psychiatrist would then prepare

a letter for the court containing sentencing recommendations for noncriminal dispositions that were almost always followed. In 1 year, according to Matthews (1970:180), Institute referrals resulted in the diversion of

1,729 mentally ill offenders. Recommendations included out-patient treatment in a clinic or office, out-patient neurological treatment, and alcohol

treatment, but most of the recommendations were for civil commitment. In

addition to the evaluations and recommendations, the Institute provided

temporary clinical custody for referred defendants and made the arrangements for the therapeutic dispositions. When referrals resulted in therapeutic dispositions, the criminal charges were routinely dismissed.

According to Matthews (1970:186-92) the New York procedure through

which mentally ill defendants were diverted to the health care system was

more likely to occur at the time of arrest than after the case had gotten to

the courtroom, as in Chicago. He describes the emergency detention

procedure in New York as more effective in producing referrals than the
7

Emerging Judicial Strategies for the Mentally Ill

Chicago model because it was easier for police to access.7 Male arrestees

were taken to Bellevue Hospital, while females were taken to Elmhurst

Hospital. Both Hospitals had prison wards that were administered by the

department of corrections, a connection that facilitated interactions between the criminal justice system and the mental health system in New

York City.

When defendants were referred for competency/responsibility evaluations

by the court, according to Matthews (1970:187) they were committed by

court order to 30 days of in-patient observation and examination. Felony

defendants were given a hearing in the prison ward, of which a transcript

was kept. The hospital prepared a report and recommendation for the

court that included medical opinions regarding the defendant’s ability to

get along outside of the hospital and/or on probation, and relating to the

defendant’s criminal responsibility and competency to stand trial. When a

noncriminal disposition was proposed, a treatment plan was prepared. If a

felony defendant was found incompetent, New York law mandated commitment to Mattawan State Hospital. Civil commitment was often recommended in the cases of incompetent misdemeanor defendants. The court

frequently followed the medical recommendation for nonpenal dispositions. Elmhurst Hospital generally arranged the treatment program and

began treating its female patients before the case was referred back to

court for final disposition. Bellevue did not arrange for the treatment of the

male patients processed there.

Early Mental Health Court Approaches in

Four Jurisdictions

The recent emergence of mental health court strategies can be understood

in part against the background of longstanding criminal justice difficulties

in dealing with mentally ill persons, earlier court-based initiatives, the

deinstitutionalizing of the mentally ill, the pressures of jail crowding, the

exploding drug caseloads, and, more recently, the alternative judicial philosophy and methods of the treatment drug court model. Momentum for

the development and implementation of such initiatives has also been created by dramatic incidents involving random violence, focusing public,

media, political and criminal justice system attention on the problems of

the mentally ill in the criminal justice system.

7

“The importance from the police viewpoint of a clear and expeditious emergency detention

procedure can scarcely be exaggerated. Emergency detention offers the policeman a quick

and simple method of dealing with apparently disturbed persons who are unwilling or

unable to go voluntarily to a hospital or some other place where care may be had. If the

police do not have clear-cut authority to make an emergency detention on the grounds of

apparent mental illness, or if the emergency detention procedure is cumbersome, as it was

under the Illinois Code, the police fall back on the criminal arrest for disorderly conduct...”

(Mathews, 1970: 173-174).
8

Bureau of Justice Assistance

Within this historical context, this report examines four pioneering mental

health courts to identify common, critical ingredients that may form basic

elements of a mental health court model, as this judicial problem-solving

strategy becomes more prominent. At the time of this writing, the mental

health court initiatives in Broward County, Florida; King County, Washington; Anchorage, Alaska; and San Bernardino, California, represent the

first judge-supervised, court-based innovations designed to address the

problems of mentally ill defendants and offenders in the criminal caseload

in the United States.
9

Emerging Judicial Strategies for the Mentally Ill

The Broward County

(Fort Lauderdale)

Mental Health Court

Target Problem and Rationale

The Broward County judicial strategy, focusing on misdemeanor cases in

County Court, grew out of a recommendation of a multiagency Criminal

Justice Mental Health Task Force formed in 1994 to address broad concerns

about the mentally ill in the criminal justice—and particularly the local

correctional—population. The task force, led by Circuit Court Judge Mark

A. Speiser, was convened in response to a series of incidents involving

mentally ill offenders, including suicides of persons incarcerated in local

facilities. The task force included community leaders, state and county

government officials, mental health advocates, mental health providers,

and law enforcement representatives. Their goal was to develop a system

of care for mentally ill defendants and to devise ways to integrate and

more closely link the community-based mental health care system with the

criminal justice system. The work of the task force was given momentum

when, as the result of efforts of a local criminal defense attorney, a grand

jury was formed to investigate the treatment of the mentally ill in the jails.

The grand jury later issued a highly critical report.8

The Broward task force concluded that the normal criminal process dealt

poorly with the mentally ill offender and recommended establishing a

mental health court as one of its core strategies for improvement. The proposed mental health court would adopt special procedures to deal primarily with the misdemeanor population by intervening early in the process

to divert low-level offenders from routine case processing and to place

them in appropriate treatment services under the care of mental health

professionals and the supervision of the mental health court judge. County

Court Judge Ginger Lerner-Wren was appointed to preside over the

nation’s first mental health court, which began operation June 6, 1997, in

Broward County in Florida’s 17th Judicial Circuit by administrative order

of its Chief Judge, the Honorable Dale Ross.

Chapter 2

8

Mental Health Court Investigation. Grand Jury Report, 17th Judicial District. Broward

County, Florida. November 9, 1994.
10

Bureau of Justice Assistance

Target Population

The Broward County Mental Health Court was begun as a part-time court

designed to respond on an as-needed basis to an unknown volume of cases

involving mentally ill misdemeanor defendants. The decision to intervene

in misdemeanor cases was intended as a prevention strategy to target defendants who, without treatment and supportive services, could become

involved in more serious matters at a later time when appropriate treatment would be more difficult to arrange. The Broward Mental Health

Court currently accepts and screens mentally ill defendants charged with a

range of misdemeanor offenses (which carry a statutory maximum of 1

year in jail under Florida law). Defendants charged with driving-underthe-influence (of alcohol or a controlled substance) or with domestic violence are ineligible because separate court programs are already in place to

handle these types of cases. In addition, defendants charged with misdemeanor battery are eligible only with the consent of their victim.

Because the Mental Health Court was designed to deal with minor offenders who, because of their illness, return frequently to the criminal justice

system, the Broward Court accepts defendants with prior convictions. Defendants with criminal histories that include violent crime are carefully

screened to avoid involving defendants who pose an extreme threat to

public safety. However, if a candidate with crimes of violence on their

record expresses a genuine desire to participate and nothing prevents the

candidate from achieving therapeutic gains, he or she may be admitted

into treatment court.9

 Beyond current charges and prior criminal history,

potentially eligible misdemeanor defendants must have been diagnosed

with an Axis I mental illness,10 have an organic brain injury or head

trauma, or be developmentally disabled. Use of these clinical criteria in

screening potential candidates was intended to ensure that the Mental

Health Court would focus its resources on the seriously mentally ill or disabled in the misdemeanor population.

Program statistics maintained by the Broward Mental Health Court indicate that from July of 1997 through September 1999, 882 cases were placed

under Mental Health Court jurisdiction. As of September 29, 1999, a total

of 445 cases were disposed since the program’s inception in the summer of

1997. According to court data, the typical court participant is male and is

9

An important assumption of the Broward approach is that there are many mentally ill

defendants who are recycled through the justice system in need of treatment who are not

violent or dangerous. Untreated they represent a great likelihood of posing criminal and

other behavioral problems in the future.

10Axis I is primary mental heath diagnosis that is usually first diagnosed in childhood,

including schizophrenia, mood or anxiety disorders, certain impulse control disorders, and

major depression. American Psychiatric Association. Diagnostic and Statistical Manual of

Mental Disorders. Fourth Edition. Washington, DC: American Psychiatric Association, 1994.
11

Emerging Judicial Strategies for the Mentally Ill

between the ages of 28 and 54. About 21 percent had at least one prior misdemeanor arrest, and 17 percent had prior felony arrests. One of four mentally ill participants entering the Court during that year was diagnosed as

having a co-occurring substance abuse disorder. Out of the 469 new participants who entered the program between July 1998 and September 1999,

26 percent were homeless.

Broward County Mental Health Court

Procedure

By design, the Broward Mental Health Court seeks to identify and intervene in the cases of mentally ill defendants as early as possible in the misdemeanor criminal process. (For an overview of the Broward County

Mental Health Court procedure, see Figure 1.) The Mental Health Court

serves principally as a pre-adjudication diversion program, although there

is some flexibility in accepting candidates that are identified in later processing stages, including defendants who may have been convicted and

placed on probation by other judges in traditional court. The Court’s

rationale in focusing on pre-adjudication intervention in misdemeanor

cases is to avoid criminalizing mental health problems by preventing the

unnecessary (and counterproductive) use of confinement and further

criminal processing. Instead, the Court seeks to link mentally ill arrestees

to appropriate diagnostic and treatment services. A guiding premise for

the initiative is that jail and formal adjudication will do little to address the

reasons for the involvement of mentally ill individuals in the justice system, will probably exacerbate their conditions, and will likely contribute

to their recycling in and out of criminal court.

Many candidates for Broward Mental Health Court are identified at the

misdemeanor bail stage (probable cause/bond hearing stage) within 24

hours of their arrest. Clinicians (advanced doctoral students from Nova

Southeastern University) assigned to the Public Defender’s office screen

in-custody defendants for mental illness prior to the first probable cause/

bond hearing. Any inmate who has visible mental health issues during intake at the jail, or who admits to any past contact with the mental health

system will be housed in the mental health section of the jail pending a full

assessment of his status by the EMSA psychiatrist. When symptoms of

mental illness are found at the clinical screening interview, the Defender

informs the court about the defendant’s situation during the hearing,

which is generally conducted via closed circuit TV. The County Court

Magistrate presiding at the bond hearing refers possible candidates to

Mental Health Court the same day or the next day depending on the time

of arrest. The Mental Health Court judge sees defendants referred from

the in-custody screening process and other first referrals every day at 11:30

a.m. Referrals also include some jailed defendants who were not identified

at earlier proceedings and who are being held in custody pending

a probable cause hearing or other pre-adjudication proceedings. These
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Figure 1. Broward County Mental Health Court Referral Process
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Emerging Judicial Strategies for the Mentally Ill

defendants are screened by Emergency Medical Services Associated

(EMSA), which contracts with the jail to provide mental health, medical

and dental services to the inmates.

When the evaluation finds that a defendant poses a danger to himself or

others, the psychiatrist seeks an order from the judge to transport the defendant to a crisis center for stabilization. Defendants who are found to

have mental health problems but deemed stable are referred to Mental

Health Court.

In addition, other judges may refer misdemeanor defendants to the Court

if they believe them to have serious mental health problems. Out-ofcustody defendants on pretrial release, who have been issued citations and

dates to appear in court, can be referred to the Mental Health Court by the

magistrate, the defense attorney, the police, the defendant’s family, or their

mental health caseworker. In each instance, whether from jail custody or

out of custody awaiting a hearing, an attempt is made to have the defendant appear in Mental Health Court as soon as possible, often within a few

hours. Out-of-custody defendants are generally not processed as quickly

as in-custody defendants because their arraignment dates are scheduled

later than in-custody defendants and they are not subject to mental health

screening. Once they are referred to the Mental Health Court, however,

they are generally scheduled to appear in Mental Health Court within 24

hours.

Mental Health Court staff has estimated that as many as 30 percent of misdemeanor defendants making their first appearance in Mental Health

Court are acutely ill. In cases when an acute episode may have triggered

the offense, the defendant may still be unstable when appearing before the

Mental Health Court judge. In such instances, the judge seeks to put the

defendant in the care of medical services to stabilize the defendant’s symptoms. This involves sending defendants to the 19th Street Crisis Center, or

other receiving facility for an independent evaluation under the Public

Health statute, Title XXIX, Chapter 394, to determine whether an involuntary civil commitment is necessary. The statute requires that the evaluation

be completed within 72 hours of arrest. If the results of the evaluation indicate that the defendant is a candidate for commitment, the General Master

holds a hearing at the facility to determine whether commitment is appropriate. If long term hospitalization is deemed necessary, the defendant

may be involuntarily committed for up to 6 months at the South Florida

State Hospital until stabilized. These defendants typically are not returned

to Mental Health Court, and charges are ultimately dismissed. If the defendant is retained at the crisis center for short-term stabilization, and then

are deemed to be stable, they are returned to Mental Health Court for further action. Upon the return of the defendant to mental health court, a status hearing is held, where one of the first issues addressed is competency.
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Bureau of Justice Assistance

When defendants are believed to be incompetent, the judge enters an order

requiring that they be evaluated for competency. If the defendant is in

custody, the evaluation may be done at the holding facility. Out-ofcustody defendants are ordered to attend the evaluation. If the evaluation

confirms incompetency, the court will order a conditional release subject

to treatment and special provisions for adequate supervision and/or outpatient services. Defendants with no suitable living arrangements are

housed at the court’s transitional housing facility, Cottages on the Pines.

The Mental Health Court judge requires that conditions of release be observed and receives periodic reports on the defendant’s compliance with

the conditions from the agencies handling his care.11 During this process,

the state maintains jurisdiction over the criminal case for 12 months. If

competency is not restored within this time period, the charges are dismissed and the individual will be evaluated to determine whether civil

commitment is necessary.

Once the competency issue has been resolved, a probable cause hearing is

held in Mental Health Court to review the basis of the charges. Defendants

are advised in open court about the nature of the Mental Health Court

treatment process, what would be done for them and what would be expected from them if they decided to participate. Also discussed are all issues involving housing, the defendant’s prior criminal history and public

safety, as well as how the defendant feels and is looking for in terms of

community services. Family members are encouraged to be at all hearings,

and their input, concerns and needs are a key to understanding the

candidate’s history and current needs. Participation of eligible candidates

in the mental health court process is voluntary. The Mental Health Court

judge considers the information presented from criminal justice and mental health professionals to decide whether a particular candidate can be

helped by the Court’s services. The judge may decide, for example, that a

defendant’s needs are so extreme as to best be addressed through other resources, or, if the defendant is already engaged in treatment, taking medication and living in a stable environment, that supervision is not needed.

In such a case, the judge may resolve the charges right away to permit the

defendant to go forward with treatment outside of the criminal justice setting. Otherwise, the defendant is given the option of entering treatment

under the supervision of the Court after consulting with an attorney and

being interviewed by mental health professionals.

11Florida Statutes, Title XLVII, Criminal Procedure and Corrections, Chapter 916.17.
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Emerging Judicial Strategies for the Mentally Ill

Following the defendant’s agreement to participate in the Mental Health

Court, the state’s attorney may hold the criminal charges in abeyance,

pending ongoing review of progress in treatment.12 The Mental Health

Court can monitor cases for up to 1 year. The actual length of supervision

of the defendant by the Mental Health Court varies on an individual basis,

depending on the particular needs and progress of each defendant. Defendants who participate in the appropriate mental health services, stabilize

and perform well in the community may have court supervision terminated before the end of 1 year. Once treatment is completed (and after

consulting with the mental health professionals, defense and prosecution,

the defendant and, in some cases, family members), the judge may resolve

the charges. Defendants with minor charges and no criminal history may

have the charges dismissed with the consent of the prosecutor. In most

cases, adjudication is withheld, meaning that there is a record of the arrest

and treatment court disposition, but no adjudication is ever entered.

During the treatment process, participants regularly report to Mental

Health Court so that the judge can review their progress. Status review

hearings are held periodically on an as-needed basis determined by the

judge, but usually after 2, 3, and finally 4-week intervals, as participants

demonstrate satisfactory progress. An observer of status reviews is struck

by the problem-solving nature of these hearings, as the judge draws on the

staff to help first solve any treatment-related concerns and criminal justice

issues defendants may be facing and to encourage the defendant’s full participation in the individualized, therapeutic treatment process.

Defendants with minor or nuisance charges are assisted in accessing mental health treatment services and may be released into the transitional

housing reserved for Mental Health Court participants or placed into a

residential treatment program until other appropriate placement can be

arranged. A review hearing may be held to check on participant progress.

Once the defendant is stable and following the treatment regimen, charges

may be resolved early through dismissal or withholding of adjudication.

In eligible cases involving more serious charges and criminal history, defendants may be released on their own recognizance (ROR) if they participate in the Mental Health Court treatment process and follow the agreed

upon treatment plan. The plan may include residing in an appropriate setting (e.g., residential treatment or transitional housing and day treatment).

12The speedy trial “clock” does not begin to run until a demand for formal discovery is

made. Prior to this, the defendant’s attorney is provided only minimal informal discovery,

in the form of police reports. Defendants who prefer to challenge and litigate the charges

may do so before the Mental Health Court judge without losing the opportunity to be

placed in mental health treatment. The judge will hear the case and will still place them in

treatment if they are convicted but still need help.
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Defendants participating in the Mental Health Court while on pretrial release are supervised by a case manager who stays in contact with them and

ensures that court recommendations are followed. When difficulties arise,

the case manager reports violations of the agreement to the court (mental

health) monitor, who reports the violation and requests a hearing before

the judge. Criminal charges are not disposed of until after the participant

has been shown to be stable and has performed consistently in treatment,

long enough to demonstrate responsibility. When these standards have

been met, the charges are resolved, most often through withholding of

adjudication. In the most serious eligible misdemeanor cases, a plea may

be taken with credit given for time served in the Mental Health Court

treatment process. In this situation, a conviction is recorded but the defendant has still had access to mental health services.

The Treatment Approach in the Broward

County Mental Health Court

The debate first instigated by the establishment of drug courts about the appropriateness of courts serving as the “social service institution of last resort” (and the social worker role of the judge) was already partly academic

by the time the Broward Mental Health Court was established. Like the earliest drug courts, the Broward County Mental Health Court grew out of the

recognition that community treatment and social service agencies simply

had not engaged a large part of the local populations with serious behavioral health needs, persons who would find their way into the criminal justice population. This understanding of the reason for the prevalence of

serious mental health problems in the criminal justice population was based

on a perception that community-based treatment services had failed mentally ill citizens in important ways. They had failed to locate them, to engage them in services, and to keep them stable and in treatment.

According to this understanding, the mentally ill, like the substance abusers addressed by drug courts, form an elusive population that, due to its

nature, is characterized by individuals who do not perform simple functions well. Both populations are made up of people who routinely do not

hold jobs, make and keep appointments (e.g., with treatment agencies) or

function predictably and consistently—except in a negative sense. Recognizing that the social service and treatment failure that has allowed so

many mentally ill individuals fall through the cracks and be without services, the Broward Mental Health Court has sought to identify and,

through clinical assessment, facilitate treatment for misdemeanants with

mental illness. The court’s goals include helping defendants access appropriate treatment and services to improve their functionality and quality of

life in society, promoting personal responsibility, and enabling participants to manage their own mental health needs and coordinating fragmented mental health services through the Mental Health Court process

and under the strict supervision of a judge.
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Emerging Judicial Strategies for the Mentally Ill

The courtroom is a critical arena for the therapeutic process in the Broward

Mental Health Court. Borrowing again from the method of drug courts,

the Broward Mental Health Court was designed to be informal, often involving interaction and dialogue between the judge and the participant

about problems and treatment options. Just as the drug court model involves a therapeutic view of the addict and employs clinical terminology

about addiction and recovery, the Broward Court incorporates a respectful

and helpful manner toward participants, makes careful use of language

that is sensitive to the issues related to mental illness, and is informed by

an understanding of the nature and treatment of mental illness. The

Broward Court adopts a supportive, instructive, problem-solving and understanding style in presiding over the special calendar of the Mental

Health Court, and avoids threatening or punitive language, or language

that might contribute to labeling or stereotyping. In other words, the informal style of the Mental Health Court is designed to reflect the methods of

mental health treatment and to contribute to the improved mental health

of its participants.

The Broward Mental Health Court employs a team model based on a great

deal of consultation and cross-disciplinary input, although there is no

doubt that the judge is the leader of the group problem-solving that transpires and has final responsibility for all decisions. The court personnel are

not rotated into the assignment on a short-term basis, but rather have become specialists in dealing with the mentally ill in the justice setting. In addition to the judge, court personnel include a prosecuting attorney

(sometimes two because of overlapping city and county jurisdiction in

misdemeanors), a representative of the jail, the public defender, the court

monitor, a forensic social worker, and a case manager. All are specifically

assigned to Mental Health Court and have considerable background, experience and interest in the problems of the mentally ill in the justice system.

The team approach contributes to an active courtroom that seems to have a

variety of activities going on simultaneously, rather than a one-case-at-atime orientation. The judge may be dealing with several cases simultaneously and asking various staff to investigate, interview, make calls for

placements, or compile necessary information to resolve the statuses of

persons appearing before her, some for the first time, others for regular

status reviews. Not many issues are postponed; rather the judge seeks to

have answers and problems solved before sending a participant out of the

courtroom or back to jail to await another hearing. With each of the appropriate agencies and functions represented in the courtroom, the judge is

able to craft and implement a response and to request necessary action and

follow-up on the spot.

The issues dealt with by the Broward Mental Health Court judge cover a

wide range of problems, from getting a newly arrested person to identify

herself and to understand where she is, to arranging for immediate medical care for individuals who have been off medication and are unable to
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Bureau of Justice Assistance

function, to seeking input from a care provider who did not appear in

court, to arranging temporary housing for a participant who has no place

to stay. The mental health courtroom differs from the drug court experience because in courts, with the exception of some participants with cooccurring disorders and disabilities, participants appear to understand the

proceedings and events going on around them fairly well. This cannot be

so easily assumed in the mental health court.

In the Broward Mental Health Court, understanding and communication

are viewed as part of the problem-solving process. In some cases, the judge

speaks very slowly and waits patiently for participants to understand and

respond—sometimes with the help of mental health professionals or lawyers in the courtroom. The patience and tolerance for the problems of comprehension and communication that defendants may have create an

impression that speedy disposition of a large number of cases is not necessarily high priority. Some hearings go smoothly and quickly because participants are doing well in their various treatment settings, while others

are almost painfully slow as difficult problems and suitable options are

identified and discussed.

The Broward Mental Health Court calls on both county and private service

providers to respond to the treatment needs of its participants. At the initial stages, once a referral is made, the court monitor interviews the defendant. She checks to see if the defendant is already involved in mental

health treatment and, if so, consults with his caseworker about the nature

of his illness and his treatment needs and progress. If the defendant is not

already in treatment, he is referred to the Henderson clinic or the Nova

University Community Mental Health Center to determine whether he

meets the mental health eligibility requirements. In-court screening interviews are carried out before the hearings by a court clinician, who is a licensed clinical social worker, in addition to advanced doctoral interns

associated with the clinical psychology program at Nova Southeastern

University. The local jail contracts with EMSA, which provides several

staff with specific training in mental health including a psychiatrist and a

psychiatric nurse, who help identify candidates for the court from the jail

population. The court refers newly arrested persons in need of immediate

diagnosis and emergency treatment services to a nearby state mental

health facility. Once participants are stable or able to be placed in appropriate longer-term services, the Mental Health Court refers them to one of

two different treatment providers with a range of services located in different parts of Broward County.

The court monitor has access to most area providers, but the two major

sources of care are the Henderson Mental Health Center and Nova University Community Mental Health Center. Services provided include shortand long-term residential treatment, including supportive housing,

substance abuse treatment, and assertive community treatment. Assertive
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Emerging Judicial Strategies for the Mentally Ill

community treatment utilizes a community-based, interdisciplinary, intensive case management team, which includes a psychiatric nurse, a peer recovery counselor who has been through the mental health system, a case

manager and a psychiatrist. The team works on a 24-hour basis with a

small group of defendants to support them as they learn to live in the community. The court has recently implemented a new gender-specific program called “Options” with a grant from the Bureau of Justice Assistance,

which targets women with histories of sexual and assaultive abuse, who

are also suffering from depression, post traumatic stress syndrome, or

drug and alcohol issues. “Options” is a comprehensive program that

addresses physical and mental health issues, as well as family issues involving children, and parenting skills. At this point, the program is run on

an out-patient basis by Nova Southeastern University. Eventually, however, a residential component will be added. There are currently 12 women

enrolled in the program, which has a present capacity of 40.

Defendants with developmental disabilities are referred to treatment

through the Developmental Services Division of the Department of Children and Family Services, a state agency. Dually diagnosed participants

face a shortage of specially tailored programs, with a limited number of

day treatment programs and residential placements that are open to the

severely impaired defendant. With an estimated 26 percent of the mentally

ill defendants homeless in the Broward Mental Health Court, transitional

housing is a high priority as participants wait for openings in longer-term

treatment settings. The Mental Health Court has its own, dedicated transitional housing program, which operates on the grounds of the Henderson

Center. The “Cottages in the Pines” has 24 beds used to house program

participants on a temporary basis for up to 5 months until more permanent

living arrangements are available. Services provided in that setting include

primary health care, substance abuse treatment, daily medication dispensing, and vocational training.

Success and Failure in the Broward County

Mental Health Court

The Broward County Mental Health Court is similar in some ways to the

precursor drug court model because it focuses on health problems in therapeutic ways but in the context of the criminal court process. However, despite the similarity and overlapping nature of the problems addressed by

the two approaches—addiction and mental illness—they pose very different issues and problems for a court-centered approach. If the aim of a drug

court is to bring about sobriety and a normal, productive life functioning

(without crime) within a specified timeframe, the Mental Health Court’s

aim is to promote mental health, stable functioning and improved life circumstances so that the illness does not continue to overwhelm participants

and bring them back to the criminal justice system.
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How the court encourages the treatment process and participants’ compliance may differ considerably under the two models. Some drug courts rely

heavily on sanctions, including time in jail, to encourage compliance. How

well punitive (deterrent) sanctions serve to promote the therapeutic process in a mental health setting remains an important and somewhat controversial question. The Broward Mental Health Court was designed with the

knowledge that if it enrolled its target population, compliance problems

would be common among its participants—by definition. Generally, the

participants have found their way into the Mental Health Court precisely

because they have not succeeded in meeting the minimum demands of

normal life or of the community-based mental health treatment process.

The Broward Mental Health Court judge has rarely employed confinement

as a means of furthering the treatment process, although defendants who

are arrested on new charges and those who simply have not cooperated

may ultimately be held in jail while awaiting adjudication. By philosophy,

the Broward Mental Health Court judge views jail as the opposite of what

mentally ill persons caught up in the criminal justice system need and sees

jailing of the mentally ill as representing the failure of all prior intervention efforts. The judge would be likely to order confinement only if the nature of the offense demanded it. Should defendants fail to take necessary

medication and become a threat to the public as a result, the judge might

agree that a temporary stay in jail was required pending development of

more appropriate means of dealing with the person. In the event that a

relatively serious new crime was committed while the defendant is on release, the state attorney may move to revoke a participant’s status in Mental Health Court and request adjudication and sentence. Any time current

or former participants are arrested on a new misdemeanor, they are ordered to appear in Mental Health Court for disposition in the interest of

continuity of treatment.

In drug courts, graduation from a 1-year to 18-month process of treatment

rewards periods of abstinence and crime-free behavior. The Broward Mental Health Court seeks the same among its participants with drug problems, but the goals for mental health issues may differ among defendants.

Generally, the Broward Court completes its relationship with a participant

when he or she has made the transition into the required treatment and

supportive services, which may involve medication, counseling, housing,

training or employment. When the criminal court is no longer needed to

facilitate those connections, the participant is considered to have been

“successful” and has the charges resolved.
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Emerging Judicial Strategies for the Mentally Ill

The King County District Court

Mental Health Court

Target Problem and Rationale

The process that formed the King County Mental Health Court was catalyzed by the brutal, random murder of Fire Department Captain Stanley

Stevenson by a mentally ill offender in a Seattle park in August 1997. The

assailant was a misdemeanor defendant who had been found incompetent

by the Seattle Municipal Court. The defendant was released into the community by the court just prior to the homicide. The shocking incident

prompted King County executive Ron Sims to convene a task force including broad representation of mental health and justice system professionals

to review how mentally ill offenders were handled by the justice system.

The Mentally Ill Offenders Task Force, chaired by the Honorable Robert

Utter, retired chief justice of the Washington Supreme Court, was given

the responsibility of making recommendations for improving the handling

of mentally ill persons in the criminal justice system. Among many other

suggestions, including reevaluation and reform of competency law, the

Task Force recommended the establishment of a mental health court in the

King County District Court on a pilot basis.

King County District Court Chief Judge James Cayce led a Mental Health

Court Task Force to develop plans and examine the feasibility of establishing such a court. In February 1998, as part of that process a group of

judges, as well as other justice and health system officials, visited the

Broward Mental Health Court and, upon their return, incorporated their

observations into a plan released by the Mental Health Court Task Force in

August 1998. After further planning, budgeting and coordinating activities, the King County District Court Mental Health Court began operation

in February 1999.

King County’s Mental Health Court Task Force identified several areas in

justice processing that failed to address difficult issues raised by the mentally ill and that appeared likely to contribute to their frequent returns to

the system. Under normal court procedures, defendants might appear before a number of different judges as their cases were heard at various

stages of processing, even in the same case. With little extra attention paid

to individual defendants as cases moved through a high-volume court system, mentally ill defendants—whose mental illness may have caused their

involvement in criminal justice—were simply moved through the court

process like everyone else. Moreover, judges presiding over high-volume

courtrooms did not have special training in dealing with the special

issues presented by the mentally ill, nor were they generally aware of the

Chapter 3
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treatment resources that might be available in the county to treat the offender and protect the public.

When charges were dismissed, the mentally ill defendant merely disappeared from the court’s jurisdiction, hopefully to be handled by other

agencies elsewhere. Other mentally ill offenders would, upon conviction,

be sentenced to probation or local jail time, two options also usually poorly

suited to their problems. The Mental Health Task Force found that, as a result of normal procedures, mentally ill defendants and offenders often reoffended and were recycled through the system again and again. In fact,

the King County Mental Health Court Program Narrative reports that a

1991 study of the King County Jail showed that offenders admitted to the

psychiatric unit had an average of 6 bookings into the jail in the 3 years

prior to their current offense, with longer average lengths of incarceration

than comparable nonmentally ill inmates (Steadman, 1991).

In its planning stages, the King County Mental Health Court was greatly

influenced by the Broward County Mental Health Court, which began operation about a year and a half earlier. The King County Mental Health

Court had seven primary goals outlined by the Task Force in Recommendations for the King County Mental Health Court (August 1998). They included:

1. To reduce the number of times mentally ill offenders come into contact

with the criminal justice system in the future;

2. To reduce the inappropriate use of institutionalization for people with

mental illness;

3. To improve the mental health and well-being of the defendants who

come in contact with Mental Health Court;

4. To develop greater linkages between the criminal justice system and the

mental health system;

5. To expedite case processing;

6. To protect public safety;

7. To establish linkages with other County agencies and programs that

target the mentally ill population in order to maximize the delivery of

services.

Following the example of the Broward Court, the King County Mental

Health Court employs a team approach. It is made up of court representatives from justice agencies and treatment providers who are assigned to

the Mental Health Court and develop relevant expertise through intense

training and experience in the mental health and court systems. An important aim of the approach is to have a strong and experienced team proficient in dealing with the problems associated with the mentally ill in the

criminal caseload; one consisting of individual members who work well

together and who provide a “seamless connection” between community
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Emerging Judicial Strategies for the Mentally Ill

mental health and the criminal justice system. In King County the dedicated team approach is intended to eliminate the gaps and problems in

communication characteristic between agencies and organizations that are

part of the problem.

Target Population

District Court has jurisdiction over misdemeanors (offenses with maximum penalties of no more than 1 year in jail) in King County, although

municipalities in the county, like Seattle, also have municipal courts that

have jurisdiction over misdemeanors. With an estimated 29,199 misdemeanor cases entering the system in 1999,13 the King County District Court

represents a high-volume urban misdemeanor court. The King County

Mental Health Court considers candidates who are charged with misdemeanor offenses.

Mental Health Court candidates include individuals whose crimes or

charges appear related to mental illness, who have been referred for competency evaluation, whose medical histories include a diagnosis of a major

mental illness or an organic brain impairment, or who are determined by

court clinicians to need mental health treatment. In addition, many candidates have records of prior arrests or convictions, which may include felonies and crimes of violence, provided mental illness is believed to have

been a causative factor in the candidate’s history, or a factor in the current

offense. In fact, one current court participant has a prior conviction for

murder and rape, both of which are believed related to his history of mental illness. The court believes that they are able to provide proper supervision for these types of defendants, and considers part of its mission the

treatment of dangerous individuals such as the violent offender whose

much publicized crime triggered the development of the court initially.

Participation in the Mental Health Court is voluntary and, after the model

of some drug courts, was originally designed to require a guilty plea or a

plea of no contest and, in most cases, results in a term of probation and a

suspended jail sentence. Consequently, most of the defendants were likely

to have convictions on their record at the end of the treatment process.

Since that time, the program has evolved, such that a larger number of defendants may enter the court through a statutory petition for deferred

prosecution or an agreement with the prosecution for a deferred sentence.

With successful participation in the Mental Health Court, these defendants

are much more likely to have charges withdrawn and not reflected on their

records.

13This information can be attributed to the District Court financial officer, Office of the

Administrator for the State of Washington, Caseloads at the Courts of Washington (1999).
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Bureau of Justice Assistance

Candidates for the Mental Health Court are identified principally at the

post-arrest stage by the jail medical staff while awaiting their first court

appearance in the county jail. However, referrals also come from justice officials, other misdemeanor courtrooms, or friends or family who may believe that an individual’s involvement in the criminal process is the

product of mental illness. To expand the scope of misdemeanor defendants eligible for its services, the District Court has been negotiating with

misdemeanor courts from nearby cities, including Bellevue and Shore

Line, to have their defendants referred for participation in the King

County Mental Health Court.

The King County Mental Health Court has received 199 referrals since February 1999. Most (76 percent) were male, between the ages of 31 and 50 (61

percent), and white (74 percent). About half (51 percent) had been referred

by the jail, with an additional 43 percent sent by judges, 3 percent by defense attorneys and the remainder by family members or probation officers. Seventy-one percent of the defendants were in custody at the time of

the referral. The majority of the referred defendants (55 percent) were not

in mental health treatment at the time of the referral. Twenty-five percent

were homeless at the time of referral. Only 22 percent were able to live independently. The remainder lived in either some form of supported living

arrangement, or their residence location was unknown to the court. Fortyfive percent of those referred had a co-occurring drug or alcohol disorder.

King County Mental Health Court

Procedure

The King County Mental Health Court process begins with identification

of possible candidates at the probable cause/bail hearing stage. (For an

overview of the referral process in King County, see Figure 2.) Although

referrals to the Mental Health Court can come from police who believe an

arrestee may be mentally ill, generally candidates are drawn from among

misdemeanor arrestees who have been detained pending their first court

appearance (which occurs within 24 hours of arrest). Upon admission to

the detention facility in Seattle, mentally ill defendants are first identified

through the jail’s normal intake screening procedure. When the assessment

indicates that a detainee has serious mental health problems and might be

a candidate for the Mental Health Court, the defendant is informed about

the program and his or her consent is requested so the jail staff may share

the information in the assessment with the Mental Health Court. Should

the defendant refuse but be found competent,14 the confidentiality of the

14The competence assessment is made informally on a preliminary basis, pending a more indepth evaluation to be done if so ordered by the court. The jail has been given guidance on

the legal definition of incompetence by the prosecutor‘s office.
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Emerging Judicial Strategies for the Mentally Ill

Figure 2. King County Mental Health Court Referral Process
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Bureau of Justice Assistance

information obtained is assured. When a defendant appears to be mentally

incompetent, the court is alerted by the jail staff, who then send a memo to

the court containing the defendant’s name and charges only, without detailed defendant information. When a defendant does give consent, the assessment information is provided to the court for review. All members of

the Mental Health Court team of professionals are notified by e-mail that

the particular defendant is being referred. In this way, each actor in the

court process has an opportunity to prepare for the defendant’s first appearance in the court, usually the following afternoon.

Generally prior to their first appearance in the Mental Health Court, candidates are interviewed at the jail by the court monitor. Her job is to gain an

understanding of the defendant’s mental health issues. As part of that

process, she requests a release of information approval from the defendant

to enable her to access the defendant’s treatment history, if any. If possible,

she will also communicate with the case manager who has handled the

defendant’s treatment in the past. The court monitor prepares a report for

the Mental Health Court containing information about the defendant’s history, including any current medications, history of compliance with treatment, behavior at home and/or in the jail, as well as information about

housing and family support, if any.

In addition, the monitor prepares a treatment plan that would go into effect upon the defendant’s release and participation in the King County

Mental Health Court, including living arrangements and provisions for supervision and treatment. During this process, the monitor spends time getting to know the defendant as well as explaining the workings of the

Mental Health Court to the defendant and offering preparation for the

hearing and the period following. Ideally, the report and proposed treatment plan that the monitor produces are provided to each of the relevant

courtroom staff prior to the defendant’s first hearing. The Mental Health

Court is also alerted to competency issues based on the opinion of the

court monitor through her informal evaluation and information given to

her by the jail medical staff. There is currently no formal assessment instrument, although such a tool is being developed for use by Mental

Health Court staff.

Prior to the start of the first hearing, the prosecutor, the public defender

and the court monitor, will meet to review the information gathered about

the candidates and to discuss the particular mental health issues that may

be involved. The discussion includes the analysis and recommendations of

the court monitor as well as analysis from the jail mental health staff, with

input from the prosecutor and defense counsel.
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Emerging Judicial Strategies for the Mentally Ill

The first hearing begins with a determination of probable cause, particularly if defendants were referred to mental health court before a probable

cause hearing was held in the normal fashion before a traditional court

judge. Once probable cause has been established, the King County Mental

Health Court judge then proceeds to address the major threshold issues:

competency and detention. Most of the defendants who are candidates for

this court are in custody due primarily to homelessness or instability related to their illness that puts them at higher risk than nonmentally ill defendants to fail to appear in court for the next hearing date. One of the

Court’s principal objectives is to place candidates in treatment as soon as

possible and avoid further confinement.

The Program Manager reports that an estimated 15 percent of the candidates appearing at the first hearing in Mental Health Court appear to be

incompetent and are referred to Western State Hospital for competency

evaluations through an order of the judge. Defendants who are found competent are returned to the Mental Health Court. Incompetent defendants

charged with a violent offense, who have a history of violence, or have

been found not guilty by reason of insanity or incompetency on charges

involving physical harm in the past, may be held under the state’s competency statute, Title 10 RCW, section 10.77.090,15 which allows for hospitalization for up to 29 days (including the time it takes to complete the

evaluation), and/or 90 days of out-patient treatment, to try to restore competency. Defendants who do not meet the criteria may not be held by the

15For a more thorough explanation of this stature, see Washington State Rules of Criminal

Procedure, Title 10 RCW: Criminal Procedure, Section 10.77.090. It provides, in relevant

part, that: (1)(a) If at any time during the pendency of an action and prior to judgement the

court finds a defendant is incompetent, the court shall order for the proceedings against the

defendant be stayed. (d)(1) If the defendant is:(A) Charged with a non-felony crime and

has: (I) A history of one or more violent acts, or a pending charge of one or more violent

acts; or (II) been previously acquitted by reason of insanity or been previously found

incompetent under this chapter with regard to an alleged offense involving actual, threatened, or attempted physical harm to a person; and (B) Found by the court to be not competent; then (C) the court shall order the secretary to place the defendant: (I) At a secure

mental health facility in the custody of the department or an agency designated by the

department for mental health treatment and restoration of competency. The placement shall

not exceed 14 days in addition to any unused time of the evaluation under RCW 10.77.060

(which provides for a period of time not to exceed 15 days for the purposes of a court

ordered competency examination).(ii) At the end of the mental health treatment and

restoration period...the defendant shall be returned to court for a hearing. If...competency

has been restored, the stay entered...shall be lifted. If competency has not been restored, the

proceedings shall be dismissed...(B) If the defendant was in custody...at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for

up to seventy-two hours for evaluation for purposes of filing a petition under chapter 71.05

RCW (which relates to the civil commitment of the mentally ill)...(e) If the defendant is

charged with a crime that is not a felony and the defendant does not meet the criteria under

(d) of this subsection, the court may stay or dismiss proceedings and detain the defendant

for sufficient time to allow the county designated mental health professional to evaluate the

defendant and consider initial detention proceedings under chapter 71.05 RCW.
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Bureau of Justice Assistance

state for the additional 14 days and must have the charges dismissed.

However, such defendants may also be evaluated to determine the appropriateness of civil commitment.

Defendants who, at the end of this period, are restored to competency are

rescheduled to appear in Mental Health Court to decide upon participation

in its program. Defendants who are still found to be incompetent at the

end of the statutory treatment period must have their criminal charges dismissed. They must also be referred to the county-designated mental health

official for evaluation to determine the appropriateness of involuntary civil

commitment. At this stage, the focus of the inquiry will be on whether the

defendant poses a danger to public safety or security, and will not depend

upon whether or not the defendant was charged with a felony.16 In the

past, the court lost jurisdiction over misdemeanor cases once the defendant

was found incompetent to stand trial.

Once the threshold question relating to competency is resolved, the judge

decides whether to accept the case and determines whether the defendant

wishes to participate in the program based on the input from the Mental

Health Court team and on consideration of the monitor’s report and treatment plan. In the cases of defendants who are competent but unstable, the

judge’s next concern is to determine the nature of treatment and support

services appropriate for the defendant so that an informed decision about

entry into the Mental Health Court program can be made.

Because in many cases the defendant is confined prior to this hearing the

next important decision involves the defendant’s release from custody. The

judge not only seeks to release the defendant from custody but to place the

defendant in the community with the services that will be needed to ensure safety and stability. Once such a service plan is set up, the defendant

will be released as soon as possible under the supervision of a case manager who will monitor and support the defendant, now a Mental Health

Court participant, through the process. Defendants who already have

a home to return to with an appropriate support system are released

quickly. Others are released from jail when a shelter bed or other appropriate placement becomes available, usually within a week. Thus, although

the judge seeks to release the defendant from custody as soon as possible,

the defendant remains in custody at the jail with jail-based services and

monitoring by the Mental Health Court until the appropriate release options can be employed.

16This statute went into effect in March 1999, based upon the recommendations made by the

Mentally Ill Offender Task Force and in response to the incident that resulted in the murder

of Captain Stevenson by a mentally ill misdemeanant who was released after a finding of

incompetency.
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Emerging Judicial Strategies for the Mentally Ill

In the experience of the King County Mental Health Court so far, it appears that few defendants refuse the treatment option once the preliminary

matters are completed. Even so, most candidates who wish to enter the

program are released pending adjudication under the terms of the service

plan for an initial period of a week or two. During this period of provisional participation, defendants are given the opportunity to become familiar with the aspects of the proposed treatment regimen under the

supervision of the court monitor before they are returned to court to make

a decision about whether they wish to continue. Upon return to the Mental

Health Court, if a defendant should decide to opt out of the program, the

criminal case is simply listed in the normal fashion for adjudication. Defendants may occasionally prefer going to adjudication because they do not

agree that they have a serious mental health problem or because they believe that they have a good chance of a favorable outcome at trial.17 Under

the original program design, defendants who choose adjudication were not

eligible to return to Mental Health Court upon conviction. This policy was

recently revised to allow a defendant who requests a trial to continue to

attend the treatment program to which they were provisionally assigned

on their own, whether they are ultimately convicted or not. Should they be

found guilty at trial, the defendants are now eligible to return to treatment

court program.

Defendants who decide to enter the Mental Health Court treatment program must address their charges first, either by entering a plea of guilty or

no contest to the misdemeanor charges, petitioning for a deferred prosecution,18 or entering an agreement with the prosecutor for a deferred sentence. Statute governs the deferred prosecution in Washington, where it is

considered a pre-arraignment disposition. No finding of guilt is entered

for the defendant and upon successful completion of the program the defendant is eligible to have his charges dismissed. The defendant must petition for the deferred prosecution, which may be granted by the judge over

the objection of the District Attorney. The deferred sentence generally

comes about as a result of plea negotiations between the prosecutor and

the defense attorney. While there is an initial finding of guilt, defendants

who successfully complete the program are eligible to have their charges

17This may be based on the assessment and advice of counsel or despite it. Some defendants

may simply decide that the penalty, such as time served, will be minimal and that they

would rather be at liberty without the constraints associated with the treatment plan.

18Deferred prosecutions can be used for misdemeanor charges, but there was some confusion about whether a defendant would be limited to only one such disposition in a lifetime.

The public defenders would be reluctant to make use of the deferred prosecution option for

a mental health court charge. If they believed that the defendant was likely to be arrested in

the future for a DUI charge, they did not want to take such an opportunity on a less serious

offense.
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Bureau of Justice Assistance

dismissed. A disposition can be granted by the judge over the objection of

the prosecutor. In most cases, the defendant will be placed on probation in

the Mental Health Court for up to 2 years or will receive a suspended sentence of up to 1 year while participating in the program. For individuals

pleading guilty to driving-under-the-influence charges, pleas are accepted

and a sentence of up to 5 years’ probation may be imposed. In some instances, persons charged with domestic violence misdemeanors are determined to be eligible for the court. In these cases, defendants are granted a

“stipulated order of continuance.” In it they waive the right to a jury trial

and agree that if they do not comply with the conditions of release to the

Mental Health Court treatment program the judge can find him guilty on

the basis of the facts in the police report without taking any testimony.

In appropriate domestic violence cases, successful completion of the Mental Health Court treatment program results in dismissal of the charges

(and no record of conviction), following procedures often employed in

misdemeanor domestic violence cases in regular court. This permits an opportunity in cases of mentally ill defendants who have been charged with

domestic violence-related offenses to begin and complete treatment without being required to plead guilty. The matter is handled in this way in order to assure that these defendants are not penalized for trying to address

their illness by opting to enter treatment court.

From February through December 1999, 54 defendants (27 percent) of the

199 defendants referred decided not to enter the King County Mental

Health Court treatment program and were transferred back to normal

criminal calendars. Dispositions for the remaining 145 defendants included

the following: 69 defendants (48 percent) chose to participate and an additional 33 (23 percent) remained undecided as of December 31, 1999. Of the

remaining 43 defendants, 6 cases had been closed, 17 cases were dismissed

by the prosecutor, 13 cases were screened out as being inappropriate for

mental health court, and the prosecutor elected not to file charges in District court in 7 cases. Of the 69 defendants who entered mental health

court, 35 pled guilty, 8 received stipulated orders of continuance, and 6

were granted deferred prosecution status. The 20 remaining participants

were referred from other courts, either having already been placed on probation, or having pled and had the sentencing transferred to mental health

court. As of the end of the year, 63 participants were on active probation.

Once the candidate opts in or formally enters the Mental Health Court, a

probation officer is appointed to supervise the participant. The probation

officer works as part of the Mental Health Court team and maintains close

contact with the participant, whether in custody or in the community. The

probation officer coordinates and communicates with the caseworker at

the treatment facility handling the defendant’s care and the Mental Health

Court case manager. Once the treatment plan is put into effect, the probation officer and the case manager check on the participant’s progress and

ensure that court-ordered treatment is being provided.
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Emerging Judicial Strategies for the Mentally Ill

Participants are required to return to King County Mental Health Court for

review hearings at regular intervals—or when the judge determines that it

is necessary—to assess whether they are complying with the requirements

of the treatment process or there are any difficulties that need to be addressed. One of the most common issues for supervision surfacing at the

review hearings involves the participant’s failure to take the prescribed

medication. In cases in which the participant appears to be having great

difficulty in complying with the treatment process, a hearing may be

scheduled and the defendant may be taken into custody if found to be in

violation of the terms of probation, and such a sanction is deemed appropriate. In rare instances, failure to take medication may mean that the participant can become a threat to himself or others. In such cases the court

may refer the defendant to the state hospital to determine whether temporary involuntary civil commitment is necessary. The use of jail to motivate

the participant to take the program seriously is rare (usually jail is what

the Mental Health Court is seeking to avoid). When it occurs, it usually is

for short periods of no more than a few days detention. Defendants who

are purposefully noncompliant and who do not respond to repeated counseling by team members and the judge in court appearances may have

their probation or suspended sentences revoked and be ordered to serve

their sentences in jail.

The Treatment Approach in the King

County Mental Health Court

King County Mental Health Court supports its participants in treatment by

drawing on an array of treatment programs and ancillary services available through the county’s existing community mental health system. The

community mental health network of services includes 17 treatment facilities at locations throughout the county. Although the geographic coverage

offered by these programs is an asset to the Mental Health Court, the size

of the county and the number of treatment services involved initially

posed a challenge to the Mental Health Court in coordinating services,

communication and procedures.

The King County Mental Health division has contracted with United Behavioral Health (UBH) to oversee the managed care network, to coordinate

the treatment, and to monitor and act as case manager for its participants

as they are referred to the 17 mental health providers. The court monitor

employed by UBH for the purpose of managing the Mental Health Court

caseload is the link between treatment providers and the court. The monitor ensures that the providers respond to the wishes of the court promptly,

from expediting screening of candidates for the court to addressing particular problems with services that might arise during the Mental Health

Court treatment process. The court monitor assigns an agency to each participant to determine what services are needed and to monitor the progress

of treatment carefully for the court.
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Bureau of Justice Assistance

Participants are assigned to programs based upon their individual needs,

and at locations as near to their living situations as possible to facilitate attendance in treatment. The types of services provided vary depending on

the particular problems of the participants, but may include medical evaluation, monitoring of medications, psychotherapy, supervised living

situations, and other relevant social services. In addition, vocational preparation and an educational component are available to defendants who

have the ability to benefit from them. Most of the defendants are placed in

community-based, out-patient programs, unless acute care or more intensive services are needed. When in-patient or residential treatment is recommended, participants must specifically consent before they can be placed in

a program. Participants who refuse the structure, support and supervision

of in-patient programs may be held in jail for lack of other sufficiently secure options. Jail is used as a last resort, in part because services provided

there are not as comprehensive and are by nature short-term, and in part

because the Mental Health Court seeks as one of its primary goals to move

mentally ill individuals out of jail into community treatment.

The participants entering the King County Mental Health Court present a

variety of challenges for treatment services. One of these challenges is the

large number of participants dually diagnosed with substantial substance

abuse problems as well as serious mental illness. Given the nature of the

criminal justice-based population of participants entering the treatment

process, the King County Mental Health Court has discovered in its early

stages of development that services for the dually diagnosed are insufficient. Unfortunately, only eight providers in the county network are able

to treat dually diagnosed participants on an out-patient basis. In addition,

only two programs, one run by the county, and the other by the state, are

available to provide MICA services on an in-patient basis for these participants, and there is a long waiting list at both facilities. Thus, there is a

shortage of treatment resources available to deal with this commonly encountered type of participant. There are also special programs available in

King County to address problems such as anger management or domestic

violence issues.

The Mental Health Court experience in the early stages has also shown

that a majority of participants require assistance in finding appropriate living arrangements. Resources are very limited for patients requiring residential programs and structured living arrangements. The need for

structured living situations varies on a case-by-case basis. For some participants who are in immediate crisis, special housing to support stabilization

of their mental health symptoms is an urgent requirement. Others homeless participants may have been accustomed to living in makeshift living

arrangements and now resist any type of structured living arrangement.

Although a variety of programs are utilized to try to address these needs,

the county is not well funded to meet the needs of the mental health

defendants for structured residential care. To make up for the lack of
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Emerging Judicial Strategies for the Mentally Ill

availability of structured care situations, the Mental Health Court attempts

to supplement the support and supervision it provides with “wrap

around” services. Through these services the defendant is engaged in some

sort of structured treatment or activity from morning to night each day,

with specialized case managers who visit the participant daily to monitor

compliance with day treatment and medication, and try to respond to

problems as they arise.

At this stage of its development, the King County Mental Health Court itself does not have an aftercare program, but seeks to facilitate the

participant’s transition to full use of community mental health services after involvement with the court. The use of community services is voluntary, of course, so that an aim of the court treatment process is to build

strong links to appropriate services for participants so that most will carry

on without supervision by the Mental Health Court. In its planned evaluation research, the Mental Health Court intends to track the clients for 3

years after release from probation to see whether they were successful in

preparing clients to continue to access the support services.

Success and Failure in the King County

Mental Health Court

It is early in the development of the King County Mental Health Court to

measure program successes. However, two kinds of measures seem to be

available for assessing the realization of the court’s goals, short of the

longer-term evaluation it has planned. The court’s initial aims have included identifying and enrolling (from the jail, other courtrooms, friends,

relatives and attorneys) mentally ill persons charged in misdemeanors. In

10 months of operation, the King County court had screened (received and

evaluated) 199 referrals and enrolled less than half of them in the courtsupervised treatment process. Although Judge Cayce believes there are

many more mentally ill misdemeanor defendants in King County who

could benefit from participation in the Mental Health Court, the court has

already begun to tap a potentially large population and gained some operational experience. It has identified resource and treatment needs in its

first months of operation. In addition, the court has revised some of its

program requirements, including the policy that required the loss of the

treatment court opportunity to defendants who opted to contest their

charges at trial, and the requirement that the majority of the defendants

plead guilty in order to enter the program. The court is now open to the

return to treatment court of defendants who are convicted at trial, and the

option of deferred prosecution or deferred sentencing dispositions, with

the likelihood of a dismissal of the charges upon successful program

completion, is being more liberally granted. These adjustments will result

in expanded opportunities for defendants to enter into the treatment court

program without necessarily being penalized with a criminal conviction.
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Bureau of Justice Assistance

According to the Mental Health Court’s mission, the principal measures of

success are to place participants in appropriate medical, behavioral health

treatment and related services, and to monitor, case manage and supervise

them through their involvement with the Court. With rare exceptions, the

terms of probation extend for 1 year. Thus, a negative measure of the

court’s performance would be large numbers of participants who violate

conditions of probation, or suspended sentences, who then had to serve

jail or probation sentences outside of the control of Mental Health Court.

These data are not available at the time of this writing, particularly because

the court is only about 1 year into its implementation. More difficult interim measures would seek to indicate how well candidates had been

placed into treatment, had stabilized and were functioning. Because participants have different problems related to their mental illnesses, an early

measure would reflect forward progress in bringing participants into

stable settings and more normal life routines. The use of probation as the

principal vehicle for supervision by the court will provide data for measures of compliance and progress at a later date. At this stage, with the

King County Mental Health Court still adapting and expanding, the most

relevant measures of success have to do with implementation of services

and reaching the intended target population.
35

Emerging Judicial Strategies for the Mentally Ill

The Anchorage Mental

Health Court

Chapter 4

Target Problem and Rationale

A 1997 (Care Systems North) study of the incarcerated population in

Alaska found that about one-third of inmates suffered from serious mental

illness, a rate about twice as high as the estimated national average of 16

percent (Bureau of Justice Statistics, 1999). That group included a large

number of persons with developmental disabilities and organic brain injuries. The study noted that the Alaska Department of Corrections had become the largest provider of institutional mental health services in the

state. Against the background of efforts to address institutional overcrowding, the challenge facing Corrections to provide services for its mentally ill inmates was extraordinary, particularly in Anchorage, one of the

state’s largest population centers.

In 1998 the Criminal Justice Assessment Commission, formed to examine

jail crowding problems in Anchorage, identified the mentally ill and disabled as a special population presenting difficult problems for the jail and

local justice system. One of the recommendations of the Decriminalizing

the Mentally Ill Subcommittee was to explore means of identifying mentally disabled offenders for diversion away from the justice system into coordinated community treatment services. A special jail-based program to

provide placement in community mental health treatment programs for

inmates, the Jail Alternative Services Pilot Program, was instituted during

July 1998. The subcommittee also recommended development of a mental

health court, referred to as the Court Coordinated Research Project

(CCRP), to address misdemeanor defendants and offenders with mental

disabilities. During the planning stages, the experiences of the Broward

County and King County Mental Health Courts were considered and

adapted to the special problems of the local justice system in Anchorage.

Circuit Court Presiding Judge, the Honorable Elaine Andrews, signed an

administrative order that officially established the Court Coordinated Resources Project in April 1999 and appointed Judges Stephanie Rhoades and

John Lohff to preside over the “specialty mental health court.”

The two-pronged mental health court initiative went into operation in July

1998. One component, the Jail Alternative Services (JAS) Program, established alternative mental health programming in the community for specially targeted mentally ill inmates. The other, the CCRP, established a

court-centered approach to identifying and treating mentally ill persons in

the criminal caseload in the Anchorage District Court. The mental health

court process is presided over by two District Court judges, the Honorable
36

Bureau of Justice Assistance

John Lohff, Deputy Presiding District Court Judge, and the Honorable

Stephanie Rhoades.

CCRP was designed to provide an alternative to jail and routine adjudication of misdemeanor cases for persons with mental disabilities by instituting special procedures that allow trained judges to address and treat

mental illness and create more effective linkages and coordination between

the courts, other justice agencies and mental health resources. Although

the court-based initiative was motivated by the pressing need to address

problems associated with jail overcrowding in Anchorage—hence the special Jail Alternative Services Program initiative for persons in custody—

CCRP aims at a broader population. It accepts mentally ill persons in the

misdemeanor population whether or not they are confined. Although

CCRP places some defendants in the JAS Program, it draws upon a large

array of community mental health and other supportive services. While

the aims of the Anchorage District Court’s CCRP initiative to link mentally

ill defendants with community-based mental health services are similar to

those of other mental health courts, the court chose not to call itself a

“mental health court” to avoid the stigma that might be associated with

participation in a court designed to respond to the mentally ill.

Target Population

The jail-based component of the mental health court initiative, the JAS Program, began on July 6, 1998 as a pilot project operated by the Alaska Department of Corrections and funded through the Alaska Mental Health

Trust Authority. To be eligible for the JAS Program, defendants must be

confined in the Anchorage jail on misdemeanor charges (punishable by a

statutory maximum of 1 year in jail) and be found to suffer from a major

mental illness with a history of psychosis or an organic brain injury. Prior

records of convictions are anticipated by the mental health court. These restrictive criteria ensure that the JAS Program is very selective. It is limited

to 40 participants, 5 of which are to be defendants suffering from organic

brain impairments.

Eligibility criteria for participation in the District Court’s mental health

court program (CCRP) also begin with the limitation that defendants—in

or out of custody—must be charged with misdemeanor offenses and defendants with prior records are not excluded. Beyond these threshold

criteria, CCRP criteria are less restrictive than those that apply to JAS participants. Defendants diagnosed with or showing obvious signs of mental

illness, developmental disability, or organic brain syndrome are considered appropriate candidates for the mental health court program. However, there is no requirement of a history of psychosis, as in the JAS

Program, and the defendant need not have been in custody, a JAS eligibility requirement as well. CCRP has not attempted to limit enrollment to a
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Emerging Judicial Strategies for the Mentally Ill

certain number of participants. Candidates are referred to Anchorage’s

CCRP by the correction department’s jail staff, the attorneys handling the

case, other judges, family members, concerned friends or other relevant

sources.

Anchorage Court Coordinated Resource

Project (Mental Health Court) Procedure

The Court Coordinated Resources Project operates in Anchorage’s District

Court, which has jurisdiction over both state and municipal misdemeanor

offenses. (For an overview of the Anchorage Court referral procedure, see

Figure 3.) An arrestee who is charged with a misdemeanor will have an

arraignment before a judge within 24 hours. Persons detained after arraignment are screened by jail staff. If they appear to be candidates for the

JAS Program, the JAS coordinator is notified. The JAS coordinator in turn

notifies the court and the court notifies the prosecutor and defense attorney. If the defendant is interested in being a JAS participant, the JAS coordinator meets with the defendant (and/or attorney) to conduct an

assessment to determine JAS Program eligibility. The coordinator explains

the treatment program available under JAS. If the coordinator determines

that the defendant meets the eligibility criteria and is willing to participate

in the program, the coordinator submits a brief report to the CCRP judge,

indicating the defendant’s treatment needs. The report also proposes a

treatment plan, with specific recommendations for mental health and/or

substance abuse treatment in the community, and, if needed, provisions

for medication and for monitoring the defendant’s medications, and provisions for addressing housing needs. This report is made available to the

judge and the attorneys at the mental health court hearing. If the defendant is not eligible for JAS, but still appears to meet the criteria for participation in CCRP, the jail staff refers the defendant to the court for CCRP

evaluation.

At their first appearance in mental health court, defendants must be stable

and competent to decide whether they wish to participate in the JAS or

CCRP court-supervised treatment programs. Because the arraignment

hearings are generally done so quickly, issues of competency often fail to

arise at that point unless defendants have obvious mental health problems

that have an impact on their ability to attend to even this cursory proceeding. Even if competency problems are suspected, the arraignment judge

often defers the examination of the issue to the CCRP judge who has received special training in the recognition and handling of mental health

problems. Defendants who do not appear sufficiently stable will have their

first mental health court hearings continued to give the corrections mental

health staff time to improve stability. If the mental health court judge believes that a defendant is incompetent, the judge will order the defendant

to the state hospital (the Alaska Psychiatric Institute) for a competency
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Figure 3. Anchorage County Mental Health Court Referral Process
39

Emerging Judicial Strategies for the Mentally Ill

evaluation.19 If the defendant is found to be incompetent by the state medical staff, the court must hold a hearing at which evidence is presented on

the issue of incompetence.

If the defendant is found, by a preponderance of the evidence, to be incompetent, the criminal proceeding will be stayed, and the defendant may be

committed to the hospital for treatment for a period of 90 days. In those

cases, at the end of the 90-day period, a hearing must be held before the

mental health court judge to determine whether competency has been restored. If the defendant is still incompetent, he or she may be returned to

the hospital for treatment for an additional 90-day period. A defendant

who remains incompetent at the expiration of the second treatment period

has the charges dismissed without prejudice; unless they involved force

against a person, the defendant is a danger to others, or there is a substantial possibility that he will regain competence within a reasonable period

of time. If these conditions are met, the defendant’s commitment may be

extended for an additional 6 months. At the end of this period, defendants

whose competency has not been restored will have all charges dismissed

without prejudice.20

At the first mental health court hearing, in cases when defendants are competent and stable, the judge determines whether the candidate understands

what the mental health court (CCRP or JAS) treatment options involve and

asks whether the defendant wishes to participate. The defendant makes this

decision with the assistance of counsel and the court ensures that the decision to participate is voluntary. To enter the program, in most cases, the

defendant is required to enter a plea of guilty or no contest to his misdemeanor charge in exchange for a plea agreement that the sentence will not

involve jail. In rare cases involving very minor offenses and no prior criminal records, participants enter the mental health court via deferred disposition, which involves court-ordered conditional release of the defendant to

community treatment prior to adjudication with court monitoring for compliance. Defendants who successfully complete the court program under

these terms may be eligible to have their charges dismissed.

Once the plea has been entered and accepted, a sentencing hearing is

scheduled. Ideally, if an acceptable treatment plan has already been prepared and approved and the participant is already in treatment and in an

acceptable supportive living situation, the sentencing may be held immediately after the plea of guilty is accepted. If the defendant is assigned to

the JAS Program, he will be sentenced and released as soon as the appropriate interviews are completed and the treatment plan set up. Due to a

19See Alaska Statutes, Code of Criminal Procedure, Section 12.47.100.

20See Alaska Statutes, Code of Criminal Procedure, Section 12.47.110.
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Bureau of Justice Assistance

lack of separate funding available to support treatment services in the

mental health court, CCRP participants may wait longer than JAS candidates before their treatment plan is prepared and approved because they

have to make arrangements for services themselves through their attorneys and community mental health services.

Defendants who are in custody remain there until a satisfactory treatment

plan has been approved by the judge, unless a reliable third party who is

acceptable to the judge steps forward to take on the responsibility of providing supervision in the community during this interim period. When

prospective participants are in jail awaiting approval of their treatment

plans, the court tries to expedite the sentencing hearing so that the defendant can be released as soon as possible. Typically, the adjudicated defendant receives a probationary term with a suspended sentence, with

treatment through CCRP as a condition of probation. Although the probationary term for a misdemeanor conviction in Alaska can extend up to 10

years, the probation sentence in mental health court is usually between 3

and 5 years. Unlike the few deferred disposition defendants, these defendants are not eligible to have their charges dismissed upon successful program completion. Because many would have been subject to jail time in

normal court, the suspended sentence is thought to provide an incentive to

encourage participation in the mental health treatment process.

In the event that a defendant wishes to pursue pretrial issues or motions

before making a decision about entering CCRP, the motions may be heard

before one of the mental health court judges, Rhoades or Lohff, or may be

heard by another judge in the normal district court process. If a defendant

is successful, the charges may be dismissed. A defendant who wishes to

litigate a pretrial issue and loses may still decide to enter the mental health

court treatment process. Defendants who wish to proceed to adjudication,

in the belief that they will be found not guilty, may or may not have their

cases heard before either of the mental health court judges (both judges

also preside over a normal criminal caseload). Mentally ill defendants assigned to other criminal judges and found guilty, may or may not be sent

by the trial judge to the mental health court judges for sentencing.

In the event that a defendant qualifies for the selective Jail Alternative

Services Program, the JAS coordinator, who also is the caseworker, is assigned to link the defendant to community treatment, to oversee and facilitate the treatment process and to report progress and potential violations

to the court. The coordinator/caseworker monitors the defendant to be

certain that their living situation is stable and that the participant is complying with court-ordered conditions of probation. This involves meeting

with the participant on a regular basis; the frequency of the meetings varies from case to case, from twice a week to once every 4 to 6 weeks. A status hearing before the judge is scheduled after the defendant’s release,

with additional dates scheduled on an as-needed basis.
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Emerging Judicial Strategies for the Mentally Ill

Minor violations of conditions of program participation generally result in

adjustments being made in the participant’s treatment plan to better meet

his needs and to prevent future violations. Participants in the JAS Program

who have difficulty complying with program conditions or who pose

higher risks of violation may be scheduled for regular monthly status hearings at which they are required to explain problems to the judge. If the

defendant appears not to be interested in cooperating after numerous

chances, the caseworker may file an affidavit of noncompliance and petition to revoke probation. The defendant must then return to the CCRP

court to answer for the noncompliance. As a last resort, the order may be

vacated and the defendant may be sentenced on his original charges, with

credit given for time served should the court determine that jail time is appropriate. Participants who decide that the program is not working for

them have the option to drop out of the program. In such an instance, the

JAS coordinator will recommend to the judge that the JAS order be vacated

and the offender sentenced by the CCRP court.

Mental health court candidates not qualifying for JAS, but qualifying for

treatment through the CCRP program, will be released on probation to follow the court-approved treatment plan as a condition of release. Due to

lack of sufficient resources, CCRP participants are not supervised by a

caseworker. The participant is required to sign a release of information

document that permits the judge and the prosecutor to receive reports

about compliance with program conditions from the mental health facility

or program to which the defendant has been assigned. If violations occur,

the prosecutor will file a petition, and a status hearing will be scheduled.

In addition, compliance is monitored through regularly scheduled review

hearings.

Unfortunately, as of this writing, there is no separate funding available to

hire a court monitor or a caseworker to support the CCRP program. As a

result, the burden of coordinating services falls mainly upon the judge,

who recommends programs for the defendant and his attorney to explore,

but who relies heavily upon the defense attorney for developing suitable

treatment options. In addition, there is no staff person assigned to supervise or case manage the participant once he is released on an acceptable

treatment plan. Supervision is accomplished by the monitoring of the prosecuting attorney and the court through regular review hearings.

CCRP participants who violate conditions of their participation in the

treatment process while on probation may be assigned sanctions that

range from counseling by the judge at the hearing and threats of jail time,

to revocation of probation and imposition of portions of the suspended

sentence, to termination from the program and imposition of the full suspended sentence. Judge Rhoades notes that, for lack of compliance with

program conditions, the court will not penalize defendants for participating in CCRP and not employ sanctions for noncompliance more severe

than the standard sentence would be if the case had been adjudicated
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through the normal misdemeanor court process. When a mentally ill participant fails in the CCRP program, and ends up receiving a “normal” sentence and then is rearrested, the new case will be flagged to return to

mental health court. At that time, depending on the seriousness of the new

charge (it must be a misdemeanor) the defendant may be given another

opportunity to enter the treatment services provided by the CCRP program. Readmission can occur after careful evaluation by the court team to

determine whether circumstances or attitudes have changed and the candidate would be more amenable to treatment this time.

The Treatment Approach in the Anchorage

Mental Health Court

Like the other mental health courts, the Anchorage Court Coordinated Resources Project places the court at the center of a therapeutic process and

relies on a dedicated team model of staffing. Two judges are assigned to

hear the mental health court cases in addition to performing their normal

criminal court duties. Both judges have received specialized training in

mental health issues. Judge Rhoades carries the additional responsibility of

coordinating existing resources among corrections, the court, prosecuting

and defense agencies and community mental health providers to ensure appropriate community-based treatment for the mentally disabled offender.

Compared to proceedings in the normal misdemeanor criminal courtroom,

mental health court hearings take much longer to conclude. Rather than

moving the case expeditiously to its disposition, the aim of the mental

health court proceedings is to take the time to carefully explain options to

defendants, who may have difficulty understanding. The hearings aim to

encourage participant entry into treatment. This may include finding a

suitable community treatment alternative to jail. The Anchorage mental

health court proceedings are much more informal than normal adversarial

proceedings in criminal cases, and follow after the fashion of drug courts.

Once the person has reached the court (has pled guilty, etc.) the mental

health court supports the mentally ill offender in treatment. The adversarial process resumes when it appears that a participant risks termination from the program and faces violation of the conditions of sentence

with the possibility of serving time in confinement.

With the therapeutic aims in mind (and the related emphases to support

the participant in treatment in the community), the Anchorage mental

health court maintains a special concern for public safety and avoids any

arrangement that will place the community at risk from participant behavior. The prosecutor wields considerable influence in setting the terms of

the plea for candidates who are accepted in the program and in reacting to

reports of noncompliance. The judge has the final say in accepting or rejecting candidates for participation in the two-pronged mental health court
43

Emerging Judicial Strategies for the Mentally Ill

program. In the courtroom, the prosecutor supports the treatment process,

while considering the implications for public safety. The defense attorney

is also more flexible in mental health court than in traditional misdemeanor court, allowing direct dialogue between the defendant and the

judge after the fashion of the drug court model. In addition, much more

input is encouraged and allowed from participants’ family members and

others supportive of the treatment process. Counsel will consult with a

participant’s legal guardian, when appropriate. Once the participant has

been sentenced and is in the program, the court and the dedicated staff become closely involved in monitoring his or her progress.

Initially, review hearings are scheduled 1 month from sentencing; then

they are held as needed to ensure that the conditions of CCRP or JAS participation are being adhered to. At the hearings, the judge discusses the

participant’s progress in treatment with him or her directly, identifies any

problems, and encourages continued participation. Defendants are encouraged to maintain contact with the court and to return at any time, particularly if something is not working and they need assistance in solving

treatment-related problems. Again, following the drug court model, defendants who have passed important milestones or have good reviews may

receive praise from the judge and even applause from other participants

seated in the courtroom. Thus, as a therapeutic tool, the courtroom is intended to provide positive incentives and support for the treatment process and to help establish the boundaries for acceptable behavior.

The courtroom staff includes a designated member of the municipal

prosecutor’s office, as well as attorneys from the two defense firms who

contract with the city and the state to provide legal services to the indigent.

The JAS coordinator/caseworker handles eligibility assessments, treatment

plans and supervision of all JAS participants. All inmates booked into custody receive medical and mental status screening by the nursing staff

within 24 hours of arrest. When mental illness or psychiatric symptoms are

detected, inmates are referred to the correction department’s mental health

clinician who will research their records, conduct a diagnostic evaluation

and make recommendations for treatment or behavior management. The

JAS case coordinator works with the clinician to identify all mentally ill

misdemeanants in custody, assess their current mental status and determine whether they may benefit from participation in mental health court.

The purpose of the dedicated team model is to develop expertise in working with the mentally ill, create familiarity with the specific cases and defendants being processed through the court and contribute to a smoother

and more efficient court operation conducive to dealing with the mentally

ill and disabled.

JAS Program participants are placed on probation on the condition that

they follow the treatment plan submitted by the JAS coordinator. Most JAS

clients are placed in supportive living situations and are required to attend
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a day treatment program on a daily basis. Only the state hospital, with limited capacity, is available to meet the needs of participants requiring inpatient treatment services. For JAS mental health court participants, an important aim is to reduce the level of supervision and structure provided to

the clients over time as their level of independence increases, and to develop strong links to treatment so that treatment will continue after the

probationary period and mental health court involvement.

Very few of the defendants have a place to live when they are placed in the

Anchorage CCRP or JAS Program. Most need assisted living with varied

levels of structure and support to enable them to function appropriately in

the community, ranging from 24-hour staff availability to apartment settings with staff available to look in on them once a day. Chronically ill

and/or personality-disordered defendants or those with ongoing substance abuse problems are more difficult to place in available programs.

Some programs are reluctant to accept JAS participants because of the risk

they pose to other clients or the potential to be disruptive to the overall

treatment programs. Unfortunately, for such individuals there are few

resources available to provide the living situation and services needed.

Instead, JAS participants are forced to make use of two unsupervised shelters in the Anchorage area; or they are placed on the “hotel plan” under

which they are placed in an inexpensive hotel, and closely monitored by

the caseworker and the staff at the day treatment center they attend. They

are essentially “wrapped” in services that take them through the weekdays

from morning until night, and provided with assisted living as needed for

their day-to-day functioning (preparing meals, buying groceries, managing

money).

Staff views these housing arrangements as less than ideal. Staff have no

control over other potential residents who tend to frequent these living

quarters. Neither the unsupervised shelters nor the inexpensive hotels are

viewed as desirable settings for JAS participants, who require supportive

services. Attempts are made to compensate for the poor housing situations

by providing JAS participants with day treatment services, an aggressive

outreach component, and case managers who check in on them and respond to their needs on a daily basis. A small percentage of JAS clients

have supportive home situations and do not require structured housing.

Day treatment is supplied to the JAS program mainly by the South Central

Counseling Center, which provides substance abuse treatment, training in

social and independent living skills, daily medication dispensing, and vocational training. Each defendant is assigned to a team based upon individual treatment needs. Most of the JAS defendants require an intensive

level of treatment accompanied by an aggressive outreach component.

(Staff will go out in the community to look for them if they fail to appear

for group sessions or medication.) The JAS program also contracts with the

South Central Foundation in Anchorage, which works primarily with the
45

Emerging Judicial Strategies for the Mentally Ill

native Alaskan population. That program provides day treatment programs as well as cultural links and activities, some outreach, and limited

housing. While most JAS clients require day treatment, at least at first,

some are stable enough, or become stable enough, to be placed in vocational programs or to take on part-time jobs. Unfortunately, only a small

percentage of JAS clients have the ability to ever hold a job.

At least in its initial stages, the JAS program has not been able to draw on

good options for placing dually diagnosed participants in treatment. Substance abuse is common among the mentally disabled JAS participants,

with an estimated 82 percent having significant substance abuse issues.21

With only 2 facilities and a combined capacity of 25 beds, this lack of treatment resources is most acutely felt when dealing with clients with personality disorders or who display severe symptoms of mental illness, and who

need, but are unable to function in, the available in-patient programs.

When their criminal histories are also taken into consideration, this type of

participant is not usually eligible for most treatment programs. As a result

they are placed in out-patient MICA groups with regular monitoring and

drug screening, supplemented by day treatment with “aggressive” outreach activities. JAS staff believe that this approach is unlikely to address

the treatment needs of the dually diagnosed participants.

JAS clients who have organic brain impairment are placed with agencies

specifically dedicated to addressing their problems, some of which are permanent in nature and do not respond to treatment. These agencies provide

services including daily living assistance and maintenance. The clients are

assisted, for example, in getting their food and cooking meals. Daily activities are structured to meet their levels of functioning. These placements are

intended to be permanent in that the clients can stay there even after the

jurisdiction of the court has ended.

In contrast to the more structured approach of the selective JAS Program

available to some mental health court participants, CCRP participants do

not enter a structured program, staffed and supervised by the court.

Rather, candidates must set up their own treatment plans through their attorneys. This task is difficult and time-consuming, and results in different

arrangements for different participants based on the attorney’s ability to

pull together an effective treatment plan, and the defendant’s financial

situation. However, there is no accessible, integrated mental health treatment network for defense attorneys to draw on in designing an appropriate treatment plan for their clients and some attorneys do not have

experience in developing such a plan. As a result, treatment plans for their

mentally disabled clients vary in scope and potential effectiveness, ranging

21Status Reports To The Trust Authority, Alaska Department of Corrections, February 2000.
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Bureau of Justice Assistance

from simply attending AA meetings for substance-abusing mentally ill, to

more comprehensive coverage that can be accessed only by defendants

who have the means to pay for them.

At this stage, the Anchorage CCRP is supported by fewer resources than

the other mental health courts (and far fewer resources than required for

adequate operation). However, it is one of the emerging mental health

court sites that, despite its limitations in case management and supervision, provides treatment and an alternative to jail for mentally ill or disabled defendants who otherwise would face confinement (many have

significant prior criminal histories). The judicial supervision of the misdemeanor participants far exceeds the attention that would be paid to these

defendants in a state in which misdemeanor probationers are not supervised. Thus, the judicial supervision that the defendant receives from

CCRP is quite valuable. Participants, who may receive little assistance in

accessing services and following up on services and treatment, are nonetheless provided with a treatment plan. The plan must meet court approval and is supervised by the treatment program’s case manager, with

follow-up provided by the district attorney in the case of noncompliance,

and by the court at scheduled review hearings. At this stage of the its development and on limited resources, the Anchorage Mental Health Court

provides therapeutic intervention in cases that otherwise would receive

few services and result in jail terms.

Success and Failure in the Anchorage

Mental Health Court

In its first year and a half, the mental health court in Anchorage’s District

Court has attempted to identify mentally disabled misdemeanor defendants who would more appropriately be dealt with through supportive

care and treatment than by the normal adjudication process. The Court

Coordinated Resources Program has relied on the central participation and

supervision of Judges Rhoades and Lohff to link candidates with treatment

services when possible and to monitor and assist the treatment process,

usually as part of a probation sentence. Since its inception in July 1998,

CCRP accepted approximately 129 participants during fiscal year 1999 on

the basis of a guilty plea and a sentence to probation with a suspended jail

term. Data are not available at this stage describing CCRP participants,

their progress, services employed, or case outcomes. Early failures from

the program would be indicated by revocation of probation and imposition of suspended sentences. Most would not have completed probation

yet in any case.

Some data are available for the specially funded JAS Program option from

its early period of operation. From July 6, 1998, to June 30, 1999, 138 defendants were identified as eligible to enter the JAS Program. Only about 26
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Emerging Judicial Strategies for the Mentally Ill

percent decided to enter the treatment program, however. This low rate of

enrollment initially was apparently due to the large number of eligible defendants who were sentenced or released before they could be assessed for

the program and processed by the JAS coordinator. As of February 2000,

there were 49 participants, of whom 71 percent are male and the average

age is 31. The population is composed mainly of native Alaskans (39 percent), Caucasians (39 percent), and African-Americans (20 percent). Most

have co-occurring substance abuse problems. JAS participants have fairly

extensive prior criminal histories, averaging 7 prior convictions, and almost all have a history of psychiatric hospitalization, averaging nearly 10

prior admissions. Early program information suggests that about half of

the JAS participants, like those sentenced in the normal fashion, were rearrested for new offenses during the recent 12 months. Of the 49 individuals

who have entered the JAS Program since its inception, 17 individuals have

been rearrested on new misdemeanor charges, and only one has been rearrested on a felony charge.
49

Emerging Judicial Strategies for the Mentally Ill

The San Bernardino

(California) Mental Health

Court

Chapter 5

Target Problem and Rationale

In California, as in other places, deinstitutionalization of the mentally ill

from state institutions and the inability of the community-based mental

health system to provide sufficient resources to meet treatment needs has

contributed to more mentally ill persons being found among the homeless,

drug-addicted and criminal justice populations (Whitmer, 1979). San

Bernardino’s Mental Health Court was established to respond to the large

numbers of mentally ill persons found in the local jail population, recently

estimated by corrections officials to account for 12 percent of the inmate

population. At the same time, the Honorable Patrick Morris recognized the

challenges posed for treatment by substance-abusing offenders with mental illness as a co-occurring disorder through his experience presiding over

San Bernardino’s drug court. In 1998, a health and justice system task force

was formed of representatives from the justice system, the mental health

system, and city council to examine the problems of the mentally ill offender. As a result of its recommendations and with initial funding from

the Department of Behavioral Health, the Mental Health Comprehensive

Offender Umbrella for Release and Treatment (MH COURT) began as a pilot program in the San Bernardino Superior Court in January 1999, with

the Supervised Treatment After Release (STAR) Program as its principal

component.

Target Population

The San Bernardino Mental Health Court differs from the other mental

health courts in its admission of defendants charged with nonviolent lower

level felonies, punishable by up to 6 years in prison, as well as defendants

facing misdemeanor charges, punishable by up to 1 year in jail. Some defendants charged with violent offenses may be considered for the program,

on a selective, case-by-case basis, if it is clear from an examination of the

facts that it was not a truly violent incident, despite the seriousness of the

charge, and that the offense was linked to mental illness. Because one of its

aims is to address the jail-based or jail-bound population of mentally ill offenders, all candidates are in custody at the time of their referral to the

Mental Health Court. In addition, the San Bernardino court limits eligibility for the STAR Program to defendants with previously diagnosed and

persistent mental illness and a history of recidivism that would make jail
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terms likely. Candidates for Mental Health Court must live in the San

Bernardino area and be eligible for SSI benefits or be employed, so some

contribution to the costs of treatment is possible. To date, few participants

have been employed and most have been eligible for SSI benefits because

of their previous diagnoses. Participants who are not receiving benefits at

the time of admission to Mental Health Court are supported in treatment

until their benefits are applied for and received.

San Bernardino Mental Health Court

Procedure

Most potential candidates are identified for the San Bernardino Mental

Health Court while in detention in the West Valley Detention Center by

jail mental health staff, subsequent to arraignment, which must occur

within 48 hours of arrest. (For an overview of the San Bernardino Court

procedure, see Figure 4.) The staff consists of two clinicians with PhDs in

psychology, and one licensed clinical social worker. These clinicians also

function as case managers, who provide supervision for the participants

who are admitted into the program. At that time, they are interviewed and

screened by a mental health clinician who explains the Mental Health

Court program and confirms that the defendant has been diagnosed as

having a history of an Axis I category of mental illness.22 Candidates who

appear eligible for the Mental Health Court sign a waiver permitting information to be conveyed to the court relating to the mental illness and indicate they wish to participate in the treatment process. Once candidates

request admission to the program, screening information is passed on to

the probation officer, the prosecutor and the public defender assigned

Mental Health Court duties. The practice of considering only candidates

who have requested admission to the treatment program helps ensure that

resources are focused on persons who will enter the program and engage

in treatment once admitted.

The defendant-candidate will make a first appearance in Mental Health

Court about 2 or 3 weeks after arraignment. The period between referral

(after arraignment) and first hearing in Mental Health Court is used to develop background information about the candidate’s mental health and

criminal history and to stabilize the individual on medication, if necessary.

This is done so that participation is meaningful in the first hearing, and the

candidate can comprehend the proceedings and make an informed acceptance of the program conditions. Because the Mental Health Court purposely targets persons who would be spending time in jail upon

conviction, the criminal histories of participants are often significant, although violent prior offenses might preclude participation in the program.

22See footnote 10.
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Emerging Judicial Strategies for the Mentally Ill

Figure 4. San Bernardino County Mental Health Court Referral Process
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Admission to the Mental Health Court requires consensus of all members

of the court team. If any member of the team, including the defender, the

prosecutor, the mental health caseworker, or the judge objects, the defendant will not be accepted into the program. The probation officer performs

an intensive interview of the defendant and reviews his prior criminal

record. If the defendant is believed to be appropriate for the program, the

probation officer will complete a pre-sentence investigation and prepare

written terms and conditions that outline specific requirements that the defendant must adhere to for his treatment to be effective. The prosecutor also

checks into the defendant’s criminal history. Crimes of violence are checked

to ascertain their actual circumstances and seriousness. True violent offenders are not eligible for the program. If a consensus is reached and the defendant is approved, the case is listed for Mental Health Court. Prior to the

hearing, the prosecutor and the defense attorney engage in plea negotiations, so that they are prepared to present an agreement to the court at the

defendant’s first appearance, assuming the defendant is competent.

San Bernardino Mental Health Court hearings are held once a week on

Wednesdays. The court team meets to discuss the case prior to the hearing,

as well as any issues that should be addressed in court. As in the other

courts, the first issue addressed in the San Bernardino court is competency.

Felony defendants who are thought to be incompetent are returned to the

jail and the court will order that they be assessed by a licensed psychologist or a psychiatrist for competency. A hearing on the issue will then be

held. Defendants found to be incompetent are examined by a therapist

from the county Department of Mental Health to determine appropriate

placement. If hospitalization is deemed appropriate, the defendant may

remain in the hospital while steps are taken to restore competency. In fact,

that process may take up to 3 years, or the statutory maximum associated

with the crime charged, whichever is less. In misdemeanor cases, the court

will attempt to avoid hospitalization, which can cost approximately $350

per day. It is more likely that the misdemeanor defendant will be placed in

a public or private treatment facility approved by the Department of Mental Health or in a community-based program, in an attempt to restore competency. The criminal proceedings are suspended pending the restoration

of competency, up to a period not to exceed the statutory maximum.23 Defendants who are unstable when they enter the jail are generally stabilized

during the 2- to 3-week detention period while being considered for treatment court. Unstable defendants must consent to treatment while in jail in

order to qualify for Mental Health Court, so that while they are housed in

the psychiatric wing, they can be stabilized with therapy and medication.

Most unstable defendants are ultimately denied program admission due to

23See the California Codes, Penal Code Sections 1367-1375.5.
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Emerging Judicial Strategies for the Mentally Ill

their inability to cope with the highly structured nature of the treatment

program.

Assuming that a defendant is competent, he or she enters a guilty plea as a

condition of entry into the program. The defendant is placed on probation

for a period of 2 years in misdemeanor cases or 3 years in felony cases,

with participation in Mental Health Court treatment ordered as a condition of probation. Each participant must also sign an individualized treatment contract that specifies the mental health services to be provided, the

frequency of those services (and the required attendance), and any other

activities required of the participant. Upon successful completion of the

program, the plea may be withdrawn, the charges against the defendant

may be dismissed, and the participant may also petition the court to have

the record expunged.

Once the treatment plan has been agreed to, most participants are released

into an augmented board-and-care residential treatment facility. (There are

presently 24 beds allotted to the Mental Health Court program.) The case

managers transport the participant to the facility and then visits the client

several times a week to ensure compliance, providing intensive supervision to assure that he is attending psychiatric counseling, stabilizing on

medication and abiding by the terms of his probation. Upon request, the

probation officer will intervene if the client becomes disruptive or uncontrollable at the facility, and will arrange for transport back to court for a

hearing before the judge. Clients who fail to cooperate or comply with program standards, or who otherwise are in violation of probation, will have

sanction recommendations made for them by the mental health clinicians.

A small number of participants may have the family support and stability

to allow them to be supervised from their homes. The case manager will

conduct home visits two times per week, to determine that the living conditions are appropriate, and that clients are not in possession of any illegal

or inappropriate items that would impede their progress in treatment, and

to perform urine analysis testing for illegal substances. When the conditions in the residence are found to be unsuitable, the officer will find new

arrangements for the participant. When a participant is found to be in violation, the officer will recommend sanctions.

Status hearings are held every 3 to 4 weeks to track the level of compliance

by the participant and to address any problems that may arise. Noncompliance sanctions range from an in-court reprimand from the judge and

loss of privileges, to increased restrictiveness of placement that includes

more meetings with the case manager and more meetings in the 12-step

program, or community service, and even jail time (usually a weekend,

or more for continued violations). The noncompliant participant will also

be reevaluated to ascertain if changes in treatment and/or living arrangements are necessary to aid them in attending to program rules. Serious and
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willful recurring violations may result in program termination and a return to traditional court. San Bernardino differs from the other early mental health courts in its close adaptation of the drug court model to the

mental health court treatment process, including the use of jail as a sanction. If the defendant commits a new minor crime, he or she will probably

be sanctioned with jail time, but may not be terminated from the program.

An arrest for a new, more serious crime will result in termination. The benefits of compliance are privileges granted at the treatment facility.

The Treatment Approach in the San

Bernardino Mental Health Court

The treatment process centers on the Mental Health Court judge and the

court team. After the initial court session during which a participant formally enters the treatment program (STAR), participants attend court for

status reviews as frequently as needed but average every 3 to 4 weeks.

Prior to a court session, the treatment team reviews each case, including its

problems and progress, with the judge who makes notes about the issues

that need to be addressed. The team includes the judge, the prosecutor, the

public defender, the probation officer, the case manager, the day treatment

provider and sometimes the housing service manager. In the courtroom,

the Mental Health Court resembles a drug court. The San Bernardino court

sessions are very carefully organized and prepared. The judge discusses

each participant’s situation, problems and progress, and encourages, reprimands, sanctions or modifies the treatment plan. Participants are treated

differently depending on their symptoms, illness or stage of treatment. For

some, the judge’s message is stern and a jail sanction may be applied. For

others, the judge may be very supportive of small steps taken in a constructive direction. One of the reasons the Mental Health Court seems

similar in style to the drug court is that most participants also suffer from

serious substance abuse problems.

Nearly all of the participants in the San Bernardino Mental Health Court

are initially placed in one of four augmented board-and-care facilities, the

Redwood Guest Home, Fontana Board and Care, North End Board and

Care and Linda Villa. These facilities receive funding that enables them to

provide additional services tailored to the needs of the mentally ill offender. The facility supervisor must be at least a licensed clinician, who is

qualified to dispense medications and provide individual and group treatment on site if necessary. These gateway facilities not only provide a temporary place to live, but also an array of supportive services to help the

participant begin the treatment process. These include 24-hour supervision, group therapy, dispensation of client medications, assistance in helping with finances through the teaching of budgeting skills, assistance in

spending money in appropriate ways, and transportation to the day treatment program that provides treatment services.
55

Emerging Judicial Strategies for the Mentally Ill

Because this type of care is expensive, the number of beds allotted to the

treatment program is limited to 24 beds. As clients progress and become

more stable, they are moved to one of the six regular licensed board-andcare facilities with which the court has contracted, and finally to basic

room and board or other independent living situations. Only very stable

clients are initially released into a regular, licensed board-and-care facility,

where, in contrast to the augmented-care facilities supportive services, day

treatment and dispensation of medications are not included in facility services (and the educational level required for staff is not as high). A small

number of participants may be released directly to their family when family support is sufficient to facilitate the treatment process.

San Bernardino Mental Health Court participants generally receive day

treatment from the Pegasus program which was run by Mental Health Systems, Inc., and tailored to fit the needs of the Mental Health Court. Pegasus

began servicing the Mental Health Court in February 1999. Although Pegasus also takes referrals (of mainly individuals with some form of criminal justice involvement) from the other courts and agencies, the majority of

its clients are participants in the Mental Health Court.

Defendants attend the day treatment program 5 days per week, from 8:30

a.m. until 1:00 p.m. The services provided include anger management, socialization skills, psychotherapy, medication therapy, and chemical dependency treatment, which includes a “12 + 5” step program specifically

geared toward the dually diagnosed client, as well as drug testing. (Most

San Bernardino Mental Health Court participants also have serious substance abuse and self-medication problems.) Pegasus also provides

prevocational training, which is meant to prepare participants for educational or work programs. Participants also receive individual case management; regular conferences are held to discuss client needs and progress. The

program will transport participants to scheduled doctor’s appointments.

The day treatment component is intended to last for 1 year, at which point

participants who have made satisfactory progress will be considered for

vocational or educational training, or full- or part-time employment. Participants are referred to the state vocational rehabilitation department to

receive training. Court (STAR) participants move from one level of care to

another as a result of recommendations made by clinicians to the judge

and the attorneys at periodic treatment meetings.

The mentally ill offenders grant is being used to fund two new programs:

STAR LITE and SPAN. STAR LITE is an intermediate level treatment program designed to cover a similar mentally ill population to the one covered by STAR, but with Less Intensive Treatment Episodes. It offers services

and case management for defendants who have less need for supervision;

however, these participants will still be on supervised probation and be

subject to specific medication and treatment requirements. They are also

required to meet regularly with their case managers. Review hearings will
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Bureau of Justice Assistance

be held approximately every 3 months. SPAN, which stands for San Bernardino Partners for Aftercare Networking, was designed to provide case

management and augmented services to in-custody defendants who had

not been previously diagnosed, but rather were diagnosed with an Axis I

illness in jail,24 and who are not chronic offenders. Lower level services are

offered to these defendants, and only regular board-and-care referrals are

available for homeless participants. SPAN participants may not have probation terms and conditions relating to taking medications and treatment.

There are no regularly scheduled review hearings required for them.

Rather, they are tracked through brief meetings with a case manager and

a counselor who will check in on them to assure that they are stable.

From the San Bernardino Mental Health Court’s inception in January 1999

through November 16, 1999, 181 referrals were made to the Court. Of

these, 106 were actually evaluated, resulting in the acceptance of 25 participants and the rejection of 81 candidates. The majority of the rejections

came from the office of the District Attorney. Most of those accepted were

placed in the Pegasus program, with the majority of these housed in augmented board-and-care facilities. Sixty percent of entering participants

were remanded to jail at least once during their treatment period, with 40

percent remanded more than once. Six participants were terminated from

the Mental Health Court program, half due to AWOL status, and half due

to serious or persistent violation of terms and conditions. Nineteen participants were active in the program as of November 19, 1999.

Success and Failure in the San Bernardino

Mental Health Court

The San Bernardino Mental Health Court accepts participants facing misdemeanor or felony charges who have serious mental health problems

based on past history and current diagnosis of Axis I conditions. All

participants plead guilty and are sentenced to probation for 2 or 3 years,

depending on the offense. The STAR Program aims to place mentally ill

offenders in appropriate services and to move them to different and less

intensive levels of care when success is demonstrated in various stages. An

overriding goal is to place participants in treatment programs and to link

them with the appropriate services so that, when their participation is concluded, they continue to make use of these resources, which will assist

them to function normally and not to return to the criminal justice system.

A related goal is to maintain the mentally ill offenders in the community

and to avoid their confinement in the local correctional facility. Participants who are successful move from intensive services to more independent and self-sufficient living situations, complete probation successfully

24For an expanded definition of Axis I, please see footnote 10.
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Emerging Judicial Strategies for the Mentally Ill

and have their pleas withdrawn, their charges dismissed, and their arrests

expunged. The program’s first graduation is expected to occur in June

2000, when it is anticipated that up to six participants will have successfully completed the program.

After entering the Mental Health Court, participants who cannot comply

with the requirements of the treatment process are sanctioned, much as in

Judge Morris’ drug court. They often receive stern lectures and reprimands, sometimes resulting in sitting in the jury box during the court proceedings, possibly being placed in a more restrictive and structured

treatment setting, and, occasionally, being returned to jail until further

plans can be made. Court staff considers the use of the jail appropriate in a

therapeutic not a punitive sense, helping some participants see the consequences of their actions and encouraging them to refocus their efforts. Unsuccessful participants may be terminated from the Mental Health Court,

have probation revoked and face serving terms of confinement in jail or a

state prison facility.
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Emerging Judicial Strategies for the Mentally Ill

Early Mental Health Court

Initiatives: Common Themes

and Emerging Issues

Common Origins and Objectives

The nation’s first mental health courts have much in common with the

problem-solving courts that preceded them. Drug courts, community

courts, domestic violence courts and related court-centered treatment and

social service strategies were motivated by similar problems, severe local

correctional crowding and court delay, dramatically growing caseloads of

substance abuse offenders, and a shared sense that traditional methods of

case disposition were inadequate and unsatisfying. Drug courts “broke the

mold” in searching for a more effective response to substance abuse in the

criminal justice population, with subsequent problem-solving or specialized courts adding to the substantive agenda of problems, including domestic violence and community quality-of-life issues that could be

addressed by adapting the drug court approach.

In part, the subject matter of special courts diversified as courts discovered

first hand that substance abusers often suffered from co-occurring disorders

or were struggling with other critical life problems linked to the substance

abuse, such as housing, unemployment, domestic violence, educational, vocational and health issues. Thus, to succeed at restoring offenders to sobriety and functionality in the community, multifaceted treatment approaches

were necessary and new service delivery partnerships were created. Special

court approaches of the last decade prioritized different problems and different target populations and selectively adapted the methodology and lessons of the drug court model to address them and added unique new

dimensions of intervention and operation. Each special court initiative has

faced the challenge of dealing with participants who were mentally ill. The

first mental health court initiatives took on that challenge.

The four pioneering mental health court initiatives described in this report

grew from efforts to respond to three basic critical problems. These problems included: the public safety risk posed by mentally ill offenders; the

difficulties associated with housing the mentally ill in local jails; and the

inadequacy of the criminal process in dealing with mentally ill defendants

in all matters. These judicial strategies were based on the recognition that

mentally ill offenders were handled poorly in the criminal justice system

generally, as well as in the criminal courts in particular. Many offenders—

particularly mentally ill defendants charged with low-level offenses who

were nevertheless competent—were routinely processed through the misdemeanor system with meaningless responses and ineffective penalties,

Chapter 6
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including fines that would never be paid and time served for days already

spent in jail.

A very clear aim in each site was to devise an alternative to holding and

treating mentally ill defendants in jail. Although each jail was attentive to

the issues of the mentally ill offender, the jails faced serious crowding

problems and were ill-equipped to provide more than temporary care for

the mentally ill. Resources were too scarce, facilities were inadequate, and

the numbers of inmates were too great. Moreover, each mental health

court strategy was premised on a belief that, in most cases, jail was the last

method that should be employed to address the problems of the mentally

ill offender. Not only were jails generally unable to provide adequate care,

confinement was often a stressful ordeal for the mentally ill, causing crises

and a variety of problems that might otherwise be avoided. The designers

of these mental health court innovations saw the growing problem of the

mentally ill in jails as evidence of the failure of mental health treatment

and other social service systems in the community.

The early courts also share common origins and aims because they draw

on the example and experience of the nation’s first mental health court in

Broward County. Each of the succeeding efforts has considered and

adapted the pioneering Broward County Mental Health Court model in

some fashion. Once established, the early mental health courts have shared

lessons and challenges among themselves and—as communication and geography would permit—have continued to learn from their different experiences. Moreover, each of the early courts now receives visitors from other

courts interested in addressing the problems of the mentally ill in their justice systems.

Common Features

The mental health courts we examined share a number of common attributes, some adapted from the earlier models of problem-solving courts,

some unique to the mental health populations they address.

Target Problems and Populations

The early mental health courts focus their efforts on the relatively lowlevel mentally ill offender who is found in the criminal justice population.

All of the courts place a primary emphasis on the mentally ill defendant or

offender held in jail, seeking ways to find supportive treatment in the community as an alternative to confinement. The courts differ slightly in their

criminal justice and mental health eligibility criteria. Each of the courts accepts misdemeanor defendants but has a varying period of court supervision. The Broward County Mental Health Court is limited to 1 year of

supervision of participants, the extent of misdemeanor jurisdiction in cases

that are sentenced. (Broward defendants are not on probation during their
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Emerging Judicial Strategies for the Mentally Ill

participation in Mental Health Court.) The other sites require disposition

of the charges prior to entering treatment.

In King County, a guilty plea was required under the original program

rules. Currently, however, charges are increasingly more likely to be resolved through deferred adjudication or a deferred sentence. The

participant’s period of probation is limited to 2 years, unless the defendant

is charged with DUI, in which case probation may last up to 5 years. The

Anchorage Court requires a guilty plea and, while the probationary term

in Anchorage for the misdemeanor charges may extend to up to 10 years,

the supervisory term is typically set at 3 to 5 years. In San Bernardino, misdemeanor probation is limited to 2 years; felony terms may last up to 6

years, but are generally limited to 3 years in the program. Despite the different periods of court supervision that are employed in each of the locations, a noncompliant misdemeanor participant who faces serving a term

of confinement can serve no more than 1 year of jail time. Felony participants in San Bernardino can face considerably longer terms.

The mental health court approaches also differ with regard to the type of

charges that are acceptable for entry into treatment court. The Broward

Court excludes from Mental Health Court DUI and domestic violence

charges, for which separate court programs exist; battery charges are acceptable only with the victim’s consent. The King County Mental Health

Court, in contrast, does not limit the type of misdemeanor charge that is

eligible. The Anchorage CCRP does not eliminate specific misdemeanors

from consideration for program admission; instead, the screening element

focuses more on prior record as an indicator of dangerousness to the public. San Bernardino is the only court to accept felony defendants, some facing relatively serious charges. There the prosecutor looks beyond the

actual charges filed and into the facts of the case to determine the true seriousness of the criminal acts alleged, in addition to factoring in the mental

illness as a cause of the act before making the eligibility decision. Truly

violent criminal defendants are not eligible for program admission. In San

Bernardino there is no limitation on admission based upon the type of misdemeanor charged.

All of the mental health courts accept individuals with extensive criminal

histories, based on the knowledge that few mentally ill or disabled defendants will be first-time offenders and that many often find themselves in

and out of the criminal justice system for a variety of usually minor offenses. San Bernardino is the only site that actually requires that the defendant have a criminal history in order to be admitted to the program. All of

the other programs accept both new and repeat offenders, although the

majority of the participants in each of the locations have had prior contacts

with the criminal justice system.

Although each mental health court focuses on defendants who show signs

of mental illness as they enter the process, the clinical eligibility criteria
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Figure 5. Four Pioneering Mental Health Courts: Descriptive SummaryDefining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Court start date June 6, 1997 July 6,1998 February 17, 1999 February 17, 1999Supervising Judge Honorable Ginger Lerner Wren, Honorable Stephanie Rhoades, Honorable James Cayce, Presiding Honorable Patrick Morris.

Criminal Division,17th Judicial Honorable John Lohff, Third Judge, District Court.Circuit, County Court. Judicial District Court Judge.

Mental Health Expedite case processing, create Expedite case processing, Expedite case processing, create Provide mental healthCourt Goals effective interactions between improve access to community effective interactions between services to eligible

mental health and criminal justice health resources, relieve jail mental health and criminal justice defendants to improvesystems, increase access to mental overcrowding, reduce clinical and systems, improve mental health their communityhealth services, reduce recidivism, legal recidivism, improve public and well being of participants, functioning, reduceimprove public safety, reduce safety and order. protect public safety, reduce rate of reincarcerationlength of confinement of mentally clinical and legal recidivism, and recidivism, maintainill offenders. improve access to mental health defendants in least

resources, improve monitoring of restrictive mental healthmentally ill offenders. environment.

Stage of intervention Post arrest. Plea/sentencing hearing. Plea/sentencing hearing. Plea/sentencing hearing.Method of entry Diversion program; entry prior to Plea required prior to program Plea required for official program Plea required prior to

disposition of charges. entry; a few deferred dispositions entry; stipulated order of program entry.

are allowed. continuance possible for domestic

violence; some deferredprosecutions allowed.

Eligible criminal offenses Misdemeanors, excluding DUI Misdemeanors. Misdemeanors. Misdemeanors and

and domestic violence, battery low-level felonies.

eligible with victim consent only.

Eligible criminal history Misdemeanors, and felonies Misdemeanors and felonies Misdemeanors and felonies Prior record required

allowed; with careful screening allowed with careful screening allowed; violent priors accepted for admission misdemeanors;of violent offenses. of violent offenses. on case by case basis. felonies allowed with

careful screening ofviolent offenses.

Mental health eligibility Axis I serious mental illness, CCRP-diagnosis or obvious Serious mental illness or History of severe andrequirements organic brain impairment, signs of serious mental illness, developmental disability that persistent Axis I mental

developmental disability. developmental disability or triggers crime charged. illness; previous diagnosis

organic brain syndrome that was required.contributing factor in commissionof crime charged. JAS: majormental illness with history ofpsychosis.
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Emerging Judicial Strategies for the Mentally Ill

Figure 5. Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Frequency of court Court convenes daily at 11:30 Court operates on part time, as- Court convenes daily at 1:00 Court in session everysessions a.m.; review hearings held needed basis. p.m. for first appearances, and Wednesday.

on Thursdays at 1:30 p.m. Thursdays at 2:00 p.m. for status

and review hearings.

Courtroom team Judge, prosecutor, public Judge, prosecutor, public Judge, prosecutor, public Judge, prosecutor, public

defender, court monitor, court defender, JAS case coordinator. defender, program manager, court defender, mental healthclinician, case manager, mental monitor, jail psychiatric liaison, court administrator, casehealth court liaison. probation officer. managers, probation officer.

Stage of identification Within 24 hours of arrest, from Within 24 hours of arrest, during Within 48 hours of arrest during Within 48 hours of arrest,

magistrate/bond hearing. jail screening prior to jail screening prior to first during jail screening prior

arraignment. court appearance. to arraignment.

Defendant in custody Most are in custody, but not CCRP: most are in custody, but Most are in custody, but not Defendant must be in

required for admission to program. not required; JAS: defendant required for admission to program. custody to be eligible

must be in custody to be eligible for program.for program.

Referral source Primary source: magistrate, county CCRP-county jail, Mental Health Primary source: county jail; others Primary source: county jail.

jail; others-attorneys, family. providers, family, attorneys, magistrate, attorneys, family,

magistrate; JAS: county jail. police, Mental Health caseworker.

Initial screening Magistrate court, county jail. County jail. County jail. County jail.Time from referral to Often within hours of the referral. 24–48 hours. Usually 24 hours. 2–3 weeks.Mental Health CourtappearanceCompetency evaluation Private psychiatrists generally If defendant in custody, referred to Evaluation done by state hospital Evaluation conducted in

perform evaluation at detention state hospital for evaluation; if psychiatrist in county jail unless psychiatric wing of countyfacility; if defendant is incompetent, not in custody, independent the defendant requires jail by state hospitalwill be conditionally released or evaluation is scheduled; hospitalization; evaluation held psychiatrist; if defendantgiven temporary housing while 90 days to restore competency, within 14 days; 29 days total found incompetent, statuteattempts are made to restore then court reevaluates if defendant allowed to restore competency allows up to 3 years,competency; state maintains civilly committed, may dismiss if violent charge or history; or the statutory maximumcriminal jurisdiction for 12 charges. if not restored, charges dismissed to restore competence.months. without prejudice.

Final eligibility decision Judge decides eligibility with Judge decides eligibility with Judge decides eligibility with Admission requires

input from court team. input from dedicated court team. input from court team. consensus of all members

of court team.

Treatment begins Treatment plan is to be completed Treatment plan is ordered as a Interim treatment plan begins Treatment plan begins in

prior to resolution of charges. condition of probation at prior to resolution of charges, jail; defendant released to

conclusion of sentencing hearing. generally released at first treatment program at first

appearance; defendant returns to appearance or within 1court 2–3 weeks later to resolve week thereof.charges.
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Figure 5. Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Length of Mental Health Defendant may be monitored for Typical treatment probationary Treatment probationary period: Treatment probationaryCourt treatment up to 1 year while charges are term: 3–5 years; misdemeanor typically 2 years; for DUI charge, term: 2 years for

held in abeyance. probation may last up to 10 years. term is extended to 5 years. misdemeanors, 3 years

for felonies.

Disposition of charges Disposition conclusion of treatment; Most defendants have convictions Most defendants have Charges are dismissed upon

in most cases adjudication withheld, at conclusion of treatment and convictions at the conclusion successful completion;no conviction ever entered; in their sentence is suspended; of treatment, sentence is defendant may petitionserious cases guilty plea with deferred dispositions result in suspended; the few with deferred for expungement.credit for time served. dismissal of charges upon dispositions are eligible to have

successful completion. their charges dismissed upon

successful program completion.

Effect of request for Defendant will be transferred to Defendant may still be eligible Defendant no longer eligible for Defendant may still betrial traditional court for trial, but for treatment court; trial may treatment court; case referred to eligible for treatment court;

can access community-based proceed before Judge Rhoades, traditional court. considered on case-by-casetreatment and services through who also maintains a criminal basis.the Mental Health Court team. calendar.

Supervision Court monitor supervises with CCRP: no outside supervision, Probation officer and Mental Probation officer and case

assistance from case managers and court and prosecutor monitor; Health staff at assigned manager with limited caseprogram staff; probation officer JAS: caseworker with small treatment facility closely load oversee client on asrarely used because most caseload provides close monitor the defendant; needed basis, up todefendants are not on probation. supervision up to several times court monitor supervises several times weekly.

weekly, as needed. provisional treatment plan.

Frequency of status Hearings held at regular intervals One hearing scheduled after Hearings held at regular intervals Hearings held every 3–4and review hearings and as needed. release; thereafter on as-needed and as needed. weeks.

basis unless high risk defendanthearings every 30 days.

Sanctions for Hearings before judge; change in Minor violations: adjustments Jail used sparingly if defendant Sanctions range fromnoncompliance treatment, support and made in treatment; jail used as noncompliant after repeated reprimands by judge to

encouragement; use of jail as threat; jailed after repeated counseling and court hearings. stricter treatment conditions,

sanction extremely rare. attempts at counseling. community service, and jail,

which are used liberally.

Successful termination Most cases: deferred prosecution, Few deferred prosecutions may Deferred prosecution; defendant Charges dismissed;from Mental Health withdraw guilty plea, no withdraw plea; most cases, credit may withdraw plea; most cases, defendant may petition forCourt conviction on record; serious given for time served, conviction credit given for time served in expungement.

cases: guilty plea entered, credit remains on record. program, guilty plea remains ongiven for time served. record; may dismiss charges on

District Attorney recommendations.
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Emerging Judicial Strategies for the Mentally Ill

Figure 5. Four Pioneering Mental Health Courts: Descriptive Summary (cont.)Defining Features Broward County (FL) Mental Anchorage, Alaska King County, Washington San Bernardino, California

Health Court

Unfavorable Defendant commits serious new Defendant commits serious new Defendant commits serious new Defendant commits serioustermination from crime, repeated willful violations, crime or repeated willful crime or repeated willful new crime or repeatedMental Health Court or wants to get out of program, violations, original charges violations, original charges willful violations, original

adjudication may be withheld or referred to criminal court. referred to criminal court. charges referred to criminalplea taken; judge has full array of court.sentencing options.
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also differ slightly from court to court. In Broward County, candidates

must be diagnosed with an Axis I mental illness,25 have an organic brain

injury or head trauma, or be developmentally disabled. In King County,

misdemeanor candidates must be found to suffer from a significant mental

illness, organic brain impairment, and/or a developmental disability that

is directly or indirectly connected to the crime charged, and for which the

person is in need of treatment and that, unless treated, greatly increases

the probability of future criminal recurrence. The JAS Program in Anchorage and the STAR court in San Bernardino have the strictest mental health

criteria. In Anchorage, the JAS Program deals with defendants who have a

major mental illness with a history of psychosis. (Eligibility requirements

for CCRP are less stringent, requiring serious mental illness, developmental disability or organic impairment, but not psychosis.) The San Bernardino Court requires that participants have been previously diagnosed with

one of the six Axis I illnesses. The defendant must have a documented history of mental illness to be eligible for treatment through the STAR Program. Both of these programs are relatively low volume, having access to a

small number of treatment beds, and both focus on confined defendants

who are seriously mentally ill.

Judge-Centered Court Treatment Process

Each of the mental health courts is built around the main feature of the

problem-solving court strategy pioneered by the Miami Drug Court and

carried over into other substantive areas, such as community courts and

domestic violence courts. Under this approach, the judge sits at the center

of the court treatment process and plays a variety of roles, formal and informal. The judge represents authority and has responsibility for all actions of both legal- and treatment-related natures to be taken. The judge

presides formally over any legal matters at the entry and completion

stages of the process and may adjudicate cases of participants who opt out

or fail in the program. Perhaps most importantly, the judge plays a handson, therapeutically oriented and directive role at the center of the treatment process. The judge deals with problems, encourages progress and

responds to poor performance by participants. The judge deals and interacts with the participant directly, and assigns rewards and sanctions as

may be appropriate, including selective use of jail or changes in placement

options.

25For an expanded definition of Axis I, please see footnote 10.
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Emerging Judicial Strategies for the Mentally Ill

New Working Relationship Between the Court and

Mental Health Services

The new, multifaceted role of the judge and other courtroom actors is premised on the development and implementation of a new working relationship between the criminal court and mental health treatment and related

support services. To the mental health court, the presence in criminal justice (and particularly in jail) of large numbers of mentally ill and disabled

defendants is evidence that, on their own, community mental health services have failed to engage citizens in the treatment process. If they were

effective in treating this population, such large numbers would not be in

the criminal justice system. Following the drug court model, the mental

health court redesigns the working relationship between the court and

treatment services, brings the redesigned partnership into the courtroom

and holds it accountable to the judge. The new working relationship is

seen in the special teams of courtroom personnel dedicated to staffing the

mental health courts, including the judge, probation officers, clinical supervisors or coordinators, case managers, defense attorneys, prosecuting

attorneys, jail liaisons and other service providers dealing with the court

participants. The new relationship is reflected in the pre-court case staffing

discussions and the in-court collective problem-solving that assist the

judge in directing appropriate actions in individual cases. The authority

and final decision making responsibility of the judge holds the treatment

process, as well as the participant, accountable and requires continual

communication between members of the mental health court staff.

Special Courtroom Procedures, New Roles for

Courtroom Staff

The special use of the courtroom associated with the early mental health

courts is reminiscent of the drug court conceptualization of the courtroom

as part of the therapeutic environment (a “theatre in the square”)

(Goldkamp, 1994a, 1994b;, Goldkamp et al., 2000; Hora et al., 1999). The

courtroom environment differs in style in each of the settings studied,

ranging from the full and busy meeting room with many consultations going on in Broward County, to the quieter and slower proceedings in King

County, to the drug-court style of proceedings in San Bernardino. Each of

the courtrooms shares in common the attempt to present a supportive environment in which participants have confidence that they can speak and

have their problems addressed.

A full range of courtroom actors are called upon to participate at various

stages of proceedings to report on progress, interpret evaluations, discuss

treatment plans and help resolve problems. They include a mix of clinical

and criminal justice staff. In addition to the clinical supervisors, case managers, and defense and prosecution attorneys, there is also a representative

of the jail staff who provides a critical link for the mental health court.
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The tempo of proceedings differs markedly from other courts. The mental

health court judge allows time for participants to speak; in some instances,

defendants may ramble and get confused in addressing the court, sometimes causing proceedings to progress slowly. The style of the courtroom

varies as well in the size and nature of the audience, often including

people at various stages of treatment and processing who may be experiencing a variety of problems. The mental health court courtroom is intense,

emotional and demanding of all staff, as problems are identified and solutions are devised.

Range of Treatment and Supportive Services

Each of the courts seeks to link their participants with appropriate treatment services, some in residential or other supportive housing placements,

but most ultimately in the community. Thus, each mental health court approach has involved drawing together whatever appropriate services are

available to assemble a network of services that can be responsible to the

court. In Broward County, this includes two mental health providers responsible for covering different parts of the county with slightly different

services available. Participants there are supervised by facility casemanagers as well as the mental health court monitor. In Seattle, the King

County Court partners with a managed care provider who oversees the

county’s mental health treatment programs. Participants are supervised by

the probation department. In San Bernardino services are provided by private, nonprofit providers for augmented board and care facilities and a

day treatment program that draws upon a range of services. Supervision is

provided by jail mental health staff, who also function as case managers,

and by the probation department. In Anchorage, the selected participants

from the jail population are placed in residential settings with supervision

provided by treatment facility case managers, with careful oversight by the

JAS case coordinator. In the Anchorage CCRP, non-jail misdemeanor defendants are required to arrange adequate treatment services themselves

through public and/or private means and are monitored only by facility

case managers, who provide progress reports upon request to the Municipal Prosecutor, and the judge through in-court status reviews. The early

mental health courts differ in the kinds of treatment resources they have

available to serve their participants. The courts share common difficulties

identifying sufficient treatment resources, because of limited local treatment capacity, and funding to support the needed services for the difficult

populations they have engaged.

Multiagency and System Support

The four mental health courts described in this report are at various stages

of development, ranging from the oldest and most established in Broward

County (about two and a half years of operation), to the newest in San Bernardino and King County, opened in January and February 1999, respectively. Regardless of stage of development, however, a critical element in
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Emerging Judicial Strategies for the Mentally Ill

each of the strategies is multiagency and systemwide support in both planning and operation. This is reflected in the planning task forces producing

the recommendations for the mental health courts and in the collaboration

required in the day-to-day operation of the court and the work of the court

team. In Broward, the Public Defender’s office, State Attorney’s office,

Broward County Sheriff’s Office, community treatment providers, and the

local hospital have supported the development and operation of the mental health court. In King County, the court operates with the support and

cooperation of the Prosecuting Attorney’s office, the Public Defender’s

office, the Probation Department, the King County Jail, and United Behavioral Health, which provides case management. In San Bernardino, participating agencies include the Department of Behavioral Health, the Public

Defender’s office, the District Attorney’s office, the Probation Department,

and private providers. In Anchorage, the court draws on the cooperation

and support of the Department of Corrections, the Alaska Mental Health

Trust Authority, the Municipal Prosecutor’s office, the Public Defender’s

office, and treatment providers and is seeking to broaden its base of support and cooperation.

Differences in the Approaches of the Four

Mental Health Courts

Although the four mental health courts we describe share common elements, they also differ in their adaptation of a problem-solving court

model to their particular systems. These differences include the timing and

method of resolving the underlying criminal charges, the responses to noncompliance by participants, and the effect of a defense request for a trial.

Stage of Intervention

As the first site to design a special court approach addressing the mentally

ill and disabled in the criminal justice population, the Broward County

Mental Health Court laid the groundwork for the efforts that followed.

One of the features of the Broward court that none of the other sites chose

to adopt was its pre-adjudicatory emphasis. Defendants who choose to enter the Broward program are not required to answer to their charges until

their treatment is completed. Criminal charges are held in abeyance for a

period of up to a year, while the participant’s mental health needs are addressed. At the conclusion of the treatment period, the defendants’ adjudication is often withheld, depending on the seriousness of the charges and

their criminal histories. This approach was adopted in Broward County

based upon a therapeutic rationale that the mental health court should be

as nonthreatening and nonpenal as possible. In addition, the Broward

model seeks to divert the mentally ill person from the formal adjudication

process. Other jurisdictions adopted a conviction-based approach, partly

because of prosecutorial preferences and partly because of constraints of

criminal procedure.
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Mental Health Court Versus Normal Trial: Second

Chances?

In each of the jurisdictions, a candidate’s participation in the mental health

court is based on a voluntary decision. The courts differ in their policies

regarding mentally ill defendants who decline to enter mental health court

and choose to have their charges adjudicated instead of either entering

treatment prior to adjudication or pleading guilty and being placed on

probation in the mental health court. In King County, defendants must

waive their rights to a trial in return for admission to the mental health

court treatment process. Defendants who choose to go to trial and are then

found guilty are not accepted back into the mental health court. None of

the other sites has a strict policy against accepting individuals who have

declined the program, chosen adjudication, been convicted and then requested admission to the mental health court. However, admission is far

from ensured and is decided on a case-by-case basis. The San Bernardino,

Anchorage and Seattle Mental Health Courts operate as sentencing courts,

or at least as courts dealing with persons serving sentences but not as trial

courts for practical and philosophical reasons. (They were seeking to concentrate resources on mental health treatment.) Thus, they may have little

control over adjudication and sentencing in other courts, should candidates select the normal adjudication route.

Methods of Case Disposition

The four mental health court sites also differed in their methods of resolving the criminal charges. Successful participants in the Broward Mental

Health Court may, as a result of withheld adjudication or an outright dismissal of charges with the consent of the prosecutor, have no conviction on

their records. In King County, there is an increasing likelihood that charges

will be resolved through deferred prosecution or deferred sentence, resulting in a dismissal of the charges upon successful program completion. In

Anchorage, however, the requirement of a guilty plea (or of a nolo contendere plea) ensures that a conviction generally results, whether or not the

participant is successful. Withheld adjudication or deferred prosecution

dispositions are only rarely employed in this location. In San Bernardino,

where a plea is also required, successful completion may result in withdrawal of the plea and dismissal of charges. Because many of the mentally

ill or disabled persons who enter the mental health courts may have fairly

extensive records of prior convictions, the question of whether or not a

conviction is recorded for the current offense may be of little practical significance. Defense counsel, especially in King County, have expressed discomfort with the policy requiring conviction and suggested that the guilty

plea requirement might serve as a disincentive to some eligible defendants

wishing to enter treatment.
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Emerging Judicial Strategies for the Mentally Ill

Use of Sanctions for Participant Noncompliance

The four mental health courts appear to differ as well in the way they respond to noncompliance by participants in the mental health treatment

process. In designing its approach, each court has recognized the challenges associated with engaging and maintaining the target populations in

the treatment process. Thus, while each court expects problems with compliance in its client population, they vary in the way they impose sanctions, a basic element of the drug court model adapted by each type of

problem-solving court. Short of termination from the program (with the

attendant legal consequences), one of the most severe sanctions is the imposition of jail confinement. The use of jail as a sanction seems least common in the Broward County Mental Health Court and the Anchorage

Mental Health Court, and somewhat more likely in the King County

Court. It is used most common in the San Bernardino Mental Health Court,

which operates most closely to a drug court model.

This difference in the use of sanctions generally, and of jail in particular, is

not explained mainly by judicial philosophy—which likely accounts for

some differences—but may be linked instead to differences in the type of

candidates admitted to the courts. For example, in contrast to its peer

courts, the San Bernardino Mental Health Court focuses on felony defendants as well as misdemeanants and deals with serious substance abuse as

a co-occurring disorder in most of its cases. Differences in target populations notwithstanding, officials interviewed in the King County and San

Bernardino Mental Health Courts acknowledge that the threat of jail may

serve as an important motivator for candidates considering whether to enter the mental health court and a useful tool for ensuring compliance

among participants.

Emerging Issues

Early Identification of Mental Health Court Candidates

Problem-solving courts of different types share the need to identify their

target population candidates as early in criminal processing as possible.

The original drug court model was premised on the assumption that intervention with addicted offenders should occur shortly after arrest when individuals may be most open to the possibility to maximize the opportunity

to begin treatment. In domestic violence courts, there is urgency to correctly assess the risks posed to victims and implement options for treating

or otherwise dealing with the offenders before further harm can occur. To

be effective, mental health courts share that critical need to identify mentally ill or disabled candidates at the earliest possible stages of processing

to avoid the damaging experience of arrest and confinement, to intervene

medically to stabilize offenders and then to situate them in an appropriate

placement process.
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Like the other types of courts, however, the mental health court model faces

serious challenges in identifying appropriate candidates early through appropriate and effective screening and evaluation procedures. Collectively,

the early mental health courts employ informal and formal methods for

identifying possible candidates and assessing them in some depth before

detouring them from the normal adjudication process. These methods may

include informal referrals at arrest, arraignment or jail admission of persons

appearing to suffer from mental illness or disabilities. They are followed by

more in-depth clinical interviews at the jail or in court to assess the eligibility of defendants for the mental health court programs.

Fair, appropriate and effective screening procedures face three principal

challenges: timeliness, accuracy, and confidentiality. Each of the courts has

established procedures that identify mentally ill or disabled candidates as

early as possible in the criminal process to maximize the opportunity to intervene and assist. The need to identify and assess the conditions of candidates quickly potentially conflicts with the need to conduct the thorough

clinical assessment required for a reliable diagnosis on the basis of which

processing in the mental health court can begin. To put it simply, it is hard

to rush such an assessment and still have it be accurate and complete. This

may be particularly true because of the difficulty associated with communicating with some mentally ill defendants.

Early intervention by the mental health court depends on timely and accurate information about the defendants’ criminal justice and mental health

backgrounds. However, the goal of early intervention and prompt treatment conflicts in part with the need for confidentiality and for consent by

the defendants to share the mental health information with the court staff.

Devising workable procedures that both enhance early intervention and

enrollment of mentally ill offenders in the mental health courts and respect

confidentiality pertaining to sensitive personal information represents one

of the difficult challenges facing the mental health court approach.

Voluntariness

Some observers see special courts as vehicles for “coerced treatment,” a

term with favorable and unfavorable connotations. The favorable use of

the term suggests that the judicial role and application of sanctions and rewards contribute a valuable tool for keeping participants in treatment and

increasing the chances of successful outcomes (Anglin and Hser, 1990;

Anglin, 1988). The unfavorable reference alludes to the problems associated with forcing treatment upon individuals who have not voluntarily

consented, from a due process perspective and from the perspective that

treatment cannot be effective unless it is wanted and the offender is
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Emerging Judicial Strategies for the Mentally Ill

“ready.”26 In fact, most problem-solving courts are premised on voluntary

participation by candidates, with the exception of some sentenced-based

approaches (in which judges may simply sentence a person to treatment in

court). This is especially true in diversion-based courts. Certainly, courts

requiring guilty pleas from participants for admission must demonstrate

that a plea was made knowingly and voluntary on the record. Even when

appropriate procedures are observed to safeguard voluntariness in special

courts, some critics argue that the choice (between, for example, drug court

and jail) is a coerced choice.

The question of voluntariness is even more difficult for mental health

courts. Although all the same legal issues dealt with in drug courts, domestic violence courts and community courts exist for persons entering the

mental health courts examined in this report, they must also confront questions about a person’s mental capacity and ability to comprehend the proceedings and the options being provided. Competency is a threshold issue

that must be decided before an individual can be considered as a mental

health court candidate in each of the courts. However, even among those

deemed competent to stand trial, serious questions may be raised about

the ability of persons really to understand the choices being presented and

the consequences of those choices (e.g., going to trial or participating in the

mental health court in one of several possible legal statuses).

If a requirement for voluntary participation in the special courts is not only

competency as legally defined, but also an ability to understand and make

reasonable decisions, then achieving voluntariness among mentally ill or

disabled treatment candidates is a challenging proposition indeed. In the

mental health courts, it means that sufficient time must be taken by defense counsel and by the court itself to make certain that the candidate’s

decision to enter the mental health court is in fact voluntary. This means

having a grasp, beyond the threshold question of competency, of a

defendant’s mental condition. The potential fear is that defense counsel

and/or the court may make decisions in the candidate’s best interest when

in fact the candidate, though competent, is thoroughly confused and

afraid.

Conflict Between Criminal Justice and Mental Health

Treatment Goals

A challenge in the design of each type of problem-solving court was the

need to craft an approach that resolved conflicts in values and goals inherent in criminal justice and treatment orientations (Goldkamp, 1999). For

26It is a conventional wisdom in the substance abuse treatment literature that treatment that

is imposed without consent is “as effective” as treatment for which a person voluntarily

chooses to enter (Anglin 1988; Belenko 1998).
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example, when substance abuse treatment professionals might stress tolerance for relapse and erratic performance (or a positive drug test) by drug

abusers as part of the therapeutic process, criminal courts might normally

be inclined to revoke conditional release (probation) and impose sanctions.

While the criminal process may need to proceed expeditiously to adjudicate criminal charges, mental health professionals require sufficient time to

diagnose the mentally ill defendant’s condition, take immediate steps to

stabilize the defendant and then to place the defendant in appropriate supportive services so that treatment could then proceed. From the perspective of mental health treatment, potentially the worst experience for many

mentally ill persons would be arrest, jail and formal proceedings in the

criminal court. In short, these conflicts in method, aims, values and style

pose a particular challenge in the emerging mental health court initiatives

to produce a hybrid model that attends to the basic requirements of each.

Defining Success

Favorable progress in the drug court treatment process is measured by

completion of successive phases of treatment by participants on their way

to graduation. In the drug court instance, requirements for graduation

were clearly specified and typically included minimum periods of testing

negatively for drugs of abuse, completion of all treatment activities, payment of fees, etc. Drug court participants therefore were able to chart their

progress against clear expectations and rules for completion of the program. When applying this kind of framework of favorable progress to the

mental health court approach, however, setting a standard for success in

treatment is more complex.

Participants may suffer from a variety of symptoms and illnesses and,

thus, lack a common starting point. The steps necessary to stabilize participants and to situate them in living situations that will maximize their effective functioning are likely to differ considerably from individual to

individual. While a goal for substance abusers can clearly and measurably

be abstinence within the timeframe of the drug court treatment program,

such a practical framework is not so readily available in the treatment of

mental illness. Courts cannot say, “be cured within 12 months.” They can

expect that participants successfully follow the steps to improved functioning outlined in a treatment plan agreed upon by the participant and the

mental health participants. Thus, the challenge for setting achievable milestones for mental health court professionals is more complex and the functional equivalent of graduation may differ considerably from individual to

individual.

Range of Responses to Participant Behavior/

Performance

To an observer of other problem-solving courts, particularly drug courts

where some of the in-court techniques were first developed, the mental
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Emerging Judicial Strategies for the Mentally Ill

health court model faces special challenges in devising responses to participant performance in treatment. One might argue that the experience of

drug courts in the United States suggests that drug abusers respond well

to a very structured system of incentives and sanctions when moving

through the treatment process toward sobriety and improved functionality. These approaches are crafted based on assumptions about the behaviors of addicted persons, including a belief that very basic lessons and

behaviors may have to be taught and retaught for substance abuse treatment to be successful. Many drug courts have devised a rich range of responses rewarding participants for forward progress through treatment

stages (until graduation). When these elements of the drug court model are

applied to the mentally ill and disabled in the criminal justice system, the

translation of the “rewards and sanctions” approach to mental health

courts raises some difficult challenges.

To promote progress through treatment, the drug court model rewards

good behavior and discourages poor performance by participants through

the use of various types of sanctions. It is apparent that, because of the nature of mental illness (as compared to substance abuse or domestic violence), judicial responses have to be more generally encouraging and

supportive as the court process seeks to move mentally ill and disabled

participants into treatment and supportive services. Thus, depending on a

defendant’s illness, the judge’s repertoire may need to draw on a wider

range of incentives and supportive responses to participant progress than

other problem-solving courts.

The notion that mental health courts should also call upon sanctions for

poor performance is more difficult. In some cases, it may be clinically appropriate to employ the kinds of sanctions employed by drug courts in responding to noncompliance in treatment, including returning participants

to earlier and more restrictive treatment stages or, even, making use of jail

in selective instances. In others types of cases, however, it may be questionable as to whether sanctions (based on assumptions of deterrence) are

at all appropriate to produce the improved mental health outcomes desired. Real questions, therefore, are raised about how the coercive power of

the courts can be channeled to promote the goals of mental health treatment. Can a court sanction a defendant who fails to take medication? Does

a court sanction a defendant who has difficulty functioning and understands little of the current circumstances or expectations due to mental

illness?

Community Linkage and Resources

A critical element of the emerging mental health court model involves

identification of the necessary treatment and related services in the community, and the development of an effective working arrangement between the courts and the service providers that helps place participants in

appropriate services and moves them out of jail. Moreover, the model is
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premised on a working relationship as represented by the dedicated team

approach that facilitates ongoing supervision and case management.

Courts considering a mental health court approach face two important

problems.

First, if it is true that the court system finds itself having to address the

needs of the mentally ill population, it is at least partly because existing institutions and services in the community (at least outside of criminal justice) have failed to serve this population. There is some irony, then, in

designing a program that uses the court to place mentally ill and disabled

participants in those very systems. Secondly, if the rationale for making

use of these existing services is that the mental health court creates a new,

synergistic relationship that improves both the court and treatment approaches, then the actual availability of these services and the resources to

support them becomes a critical concern. A mental health court approach

with a large population of persons in need of treatment but few services

available in the area may have great difficulty in delivering treatment.

Moreover, even when services are available and enthusiastic about the

court-based mental health treatment approach, effective identification of

candidates in the criminal justice population risks placing a new and large

demand on existing treatment resources.

Each of the mental health courts described in this report has identified a

potentially large population of mentally ill and disabled defendants who

are in need of mental health and treatment-related supportive services.

Each has also found that treatment resources and funding are insufficient

for the populations they are serving and plan to serve in the near future.

When resources exist, they do not adequately provide the type or range of

services the mentally ill and disabled persons in the criminal justice population require.

Mental Health Courts as a Community Justice Initiative

The mental health court strategy shares with prior problem-solving court

undertakings the fact that a difficult problem has not been adequately

dealt with through community institutions and services. Presumptively,

effective community interventions could prevent the need to find and treat

mentally ill citizens in the criminal justice system. The crime behaviors of

the mentally ill range from nuisance and quality-of-life levels to more serious offenses that endanger themselves or others. Although there are a

range of behaviors associated with the mentally ill and disabled, it is

highly unlikely that they have gone unnoticed in the community until their

encounters with the criminal justice system.

Because other community networks or institutions have not effectively

treated and supported the mentally ill—due to the failure of communitybased safety nets—they enter the justice system, usually involved in
77

Emerging Judicial Strategies for the Mentally Ill

minor, nuisance, and quality-of-life offenses. Often, by then, they have

other serious problems—such as alcohol or other drug addiction, housing,

employment and physical health problems—that also have not been addressed. In many instances, the mentally ill or disabled find themselves in

criminal justice primarily because of their mental illness and their inability

to connect with or stay in supportive community-based treatment services.

Like the other special court approaches, the mental health courts described

in this report attempt to address the problems of their target populations

on two levels:

• By dealing with their problems in the criminal justice system.

• By building linkages to community services and support structures that

have for a variety of reasons failed to reach them prior to their criminal

justice involvement.

Each of the mental health courts discussed has developed strategies for

identifying mentally ill and disabled offenders at the earliest stages of processing, sometimes involving contacts from police officers at the arrest

stage. Each jurisdiction has taken steps to implement early screening procedures to evaluate candidates for the court treatment process as soon as

possible so that unnecessary delay, criminal justice processing, and jail

confinement can be avoided. Each of the courts began with a primary focus

on defendants entering the criminal process shortly after arrest and being

held in jail. But they expanded to accept referrals from other courts, and

other sources, such as attorneys, police, friends, relatives or other community contacts aware of individuals caught up in the justice system who

were mentally ill or disabled. Each of the courts established a close link to

the local jail, so that mentally ill inmates could be identified and admitted

to the mental health court treatment process, at whatever stage of processing in the criminal justice system. In short, consolidating justice procedures to identify and enroll candidates in treatment has been an aim of

these first pioneering mental health courts.

In each case, the in-house approach is closely tied to a focus on community

treatment resources and linkages. Depending on the kinds of illnesses evidenced and the types of resources available in their locales, each of the

early mental health courts takes steps to place participants in communitybased treatment services, either immediately or after initial crises are addressed and individuals are stabilized. Each court emphasizes the

importance of proper and timely diagnosis and of placement in proper

treatment and supportive care services, where they exist. Each court builds

the treatment process around court supervision as a critical, core element

ensuring both that enrolling participants cooperate and that appropriate

services are indeed provided. At the core of the mental health court approach is a newly established working relationship between the supervising court and community mental health treatment and related services.
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Bureau of Justice Assistance

Mental health courts, in this regard, represent important court-based community justice initiatives. They are strengthening the effectiveness of

community mental health treatment approaches by offering their close attention and supervision. They are returning mentally ill persons from custody and processing in the criminal justice system to the community to

function there. They are encouraging community-based justice and health

approaches that would prevent mentally ill and disabled individuals from

entering the justice system in the first place. Thus, successful court strategies would ideally put themselves out of business: they would find far

fewer mentally ill persons in criminal justice, because such persons would

be more effectively and appropriately dealt with through improved community intervention, services and support mechanisms.
79

Emerging Judicial Strategies for the Mentally Ill

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