Theorizing mental health courts.

• Author: Johnston, E. Lea

Table of Contents Introduction I. Therapeutic Jurisprudence A. Normative Content of Therapeutic Jurisprudence B. Normative Conflict Between Mental Health Courts and the Traditional Criminal Justice System 1. Ignoring Proportionality and Just Deserts 2. Portraying Offenders as Lacking Autonomy and Moral Agency 3. Trivializing Underlying Criminal Acts 4. Incentivizing Individuals to Commit Crimes to Obtain Scarce Resources II. Therapeutic Rehabilitation A. Definition B. Central Factual Assumptions 1. Assumption that Mental Illness Contributed to Predicate Offense a. Eligibility Requirements of Mental Health Courts b. The Varying Motivations for Crime of Individuals with Mental Illnesses 2. Assumption that Symptomatic Mental Illness Directly Contributes to Recidivism a. Trivial Role of Mental Illness in Recidivism C. Implications Conclusion Introduction

Fueled by federal funding, (1) approximately 250 mental health courts now exist in forty-three states. (2) While no single definition of "mental health court" enjoys universal agreement, (3) the term generally describes a specialized court for certain defendants with mental illnesses who choose to eschew traditional court processing in favor of a problem-solving approach involving court-ordered and court-supervised treatment. (4) Currently, mental health courts vary in the charges and mental illness diagnoses they accept, their consideration of individuals with a history of violence, plea requirements, treatments offered, intensity and length of supervision, potential sanctions, and the impact of program completion on participants' criminal cases. (5) Mental health courts may follow a pre- or post-adjudication model. (6) While early mental health courts typically limited eligibility to individuals charged with misdemeanors, mental health courts have increasingly opened their doors to accused felons and violent felons. (7) Mirroring the expressed purpose of the Mentally Ill Offender Treatment and Crime Reduction Act of 2004, which authorizes federal funding for mental health courts, (8) the primary goal of most mental health courts is to reduce recidivism, typically defined in terms of new arrests or convictions. (9)

It is unclear whether mental health courts actually reduce recidivism and, to the extent they do, what accounts for that success. (10) Mental health court staff and participants have provided strong anecdotal support for the ability of these courts to decrease criminal behavior and increase treatment compliance, (11) and it appears that participants' experience with the courts has largely been positive. Most research to date has been descriptive rather than evaluative, however, and the quality of the research has varied significantly. (12) Most studies are marred by methodological shortcomings, (13) such as including inadequate outcome measures and short follow-up periods, which limit their worth. (14) The few rigorous studies that have been published have reached generally positive but inconsistent conclusions, (15) ranging from finding no effect on re-arrest rate to a decrease in recidivism by mental health court participants of fifteen percent at eighteen months. (16) some forensic psychologists have suggested that, to the extent mental health courts do reduce recidivism, this result may stem from courts' attendance to needs that are unrelated to offenders' mental illnesses. (17)

While it is certainly important, as an empirical matter, to determine the extent to which mental health courts reduce recidivism, the concern of this Article is largely theoretical. Its guiding thesis is that a coherent theoretical justification should support the decision to create a separate system of justice for a historically stigmatized population. (18) In essence, some theory of sentencing or social welfare should be capable of explaining why it is appropriate to segregate offenders with mental illnesses and why coercive treatment is more appropriate for these individuals than traditional sentencing. In addition, once a potential justification has been identified, any empirical assumptions necessary to the internal coherence of that theory should survive scrutiny. (19) If existing evidence contradicts necessary presuppositions--or if a coherent theory supporting the existence of the courts cannot be identified at all--then the legitimacy of the mental health court venture is in doubt. (20)

Thus far, commentators have largely limited their inquiries to the practical effects of mental health courts. In particular, some commentators have criticized the emasculated role of defense counsel in mental health courts (21) and the courts' net-widening effects. (22) Others have expressed concerns about the coercive nature of the courts, (23) offenders' competence to consent to diversion, (24) and infringement on participants' privacy. (25) Finally, others have pointed to the increased discretionary power and partiality of specialty court judges (26) and the potential of these courts to divert resources from law-abiding individuals with mental illnesses. (27)

This Article marks the first attempt to canvass and scrutinize theoretical justifications for mental health courts. (28) To date, mental health court judges and advocates have identified two utilitarian theories to justify the existence of the courts: (29) therapeutic jurisprudence and a narrow form of rehabilitation. (30) Therapeutic jurisprudence is the most popular justification for mental health courts. (31) This academic discipline, developed in the early 1990s by Professors David B. Wexler and Bruce J. Winick, (32) encourages the use of social science to investigate the ways in which a legal rule or practice affects the psychological and physical well being of offenders and other legal actors. (33) Therapeutic jurisprudence proposes that, other things being equal, the law should be restructured to accomplish therapeutic goals. (34) Therapeutic jurisprudents point to the antitherapeutic effects of mandatory incarceration (35) and assume that the coercive provision of mental health treatment will have a positive therapeutic impact on participants by addressing the source of their underlying criminal problem. (36)

In addition, a few mental health court judges have suggested a second possible theory--a form of therapeutic or medical rehabilitation--as animating their courts. (37) Therapeutic rehabilitation, which gained prominence in the mid-twentieth century through the writings of Karl Menninger, (38) Benjamin Karpman, (39) and others, (40) is based on a medical model of crime. (41) According to this theory, criminal behavior is symptomatic of mental illness or personality disorder. (42) In essence, offenders are considered "sick" and in need of a state-coerced "cure" to address their underlying sources of criminality. (43) Therapeutic rehabilitation holds that treatment--not traditional sentencing or incarceration--is necessary to transform criminals, whose acts are the product of pathology, into law-abiding individuals. (44)

Mental health court proponents appear to embrace a brand of therapeutic rehabilitation based on two propositions. First, mental health courts justify segregating and diverting individuals with mental illnesses from the traditional justice system on the basis that their illnesses likely contributed to their criminal behavior. Second, and relatedly, mental health courts operate under the assumption that the amelioration of mental illness symptoms will reduce the likelihood of future criminal behavior. In other words, by treating individuals' mental illnesses, mental health courts will rehabilitate offenders into law-abiding citizens.

This Article examines the theories of therapeutic jurisprudence and therapeutic rehabilitation and ultimately finds both unavailing for a substantial proportion of the offenders diverted into mental health courts. A careful review of the definition of therapeutic jurisprudence reveals that the structure and aim of this discipline preclude its use as a justification for mental health courts. The creators of therapeutic jurisprudence have consistently stressed that health is not a transcendent norm, and, in the face of significant normative conflict, therapeutic jurisprudence does not provide a means to mediate between competing values. (45) Because mental health courts express values that conflict substantially with those endorsed by the traditional criminal justice system, therapeutic jurisprudence is inadequate to justify the existence of mental health courts.

Moreover, the penal theory of therapeutic rehabilitation--at least as envisioned by mental health court advocates--is largely unavailable as a justification for mental health courts because the factual assumptions underlying this theory are belied by scientific evidence. As Professor Stephen J. Morse has argued for decades, (46) social and psychological research demonstrates that the criminal acts of individuals with mental illnesses often do not stem from their disorders but may arise from a number of motivations. (47) Since many mental health courts do not require a demonstrated nexus between an individual's mental illness and his criminal offense, (48) courts' assumption of a causal link appears misplaced. In addition, the weight of recent scientific evidence demonstrates that mental illness is not a direct contributor to recidivism for most offenders with mental illnesses. (49) Instead, such offenders often simply exhibit the same risk factors--such as substance abuse, family problems, and antisocial tendencies--as other offenders. (50) It is these risk factors, not symptomatic mental illness, that directly contribute to criminal activity for a majority of individuals with mental illnesses.

These two assertions--that crimes are often not the product of mental illness, and that mental illness is usually not a significant contributor to recidivism--might strike some readers as counterintuitive...