Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally 111 Offenders

• Publication year: 2000
• Citation: Vol. 24 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally 111 Offenders

LeRoy L. Kondo(fn*)

I. Introduction

In Florida, a mentally ill homeless man was arrested for shoplifting an ice cream sandwich that cost $1.16. He was imprisoned because he lacked the $25 bail necessary for release.(fn1) Laurie Flynn, Executive Director of the National Association for the Mentally 111 (NAMI) notes, "Prisons and jails have become the mental hospitals of the 1990s."(fn2) One observer states, "Our jails, whether we like it or not, are becoming our largest mental-health facilities."(fn3) Another comments, "Most of the people I see [in jails] don't belong here. Many of these people would have been in a state hospital years ago."(fn4) This Article advocates the creation of mental health specialty courts in order to divert mentally ill offenders from the criminal justice system (i.e., prisons, jails) into treatment, consistent with the principles of therapeutic jurisprudence.

Mentally ill offenders are often inextricably trapped in a "revolving door" of petty crime, incarceration, release, homelessness, and re-imprisonment.(fn5) NAMI reports "at least seven percent of all jail inmates and 14 percent of all prison inmates suffer from schizophrenia, bipolar disorder, or major depression. On any given day, there are roughly 210,000 persons with severe mental illnesses incarcerated in federal and state jails and prisons."(fn6) Furthermore, about 40-50% of the estimated two million homeless Americans-often an "invisible" and abandoned element of society-are severely mentally disordered.(fn7) In contrast, only one-fourth of the nation's mentally ill (about 70,000 persons) currently reside in public psychiatric hospitals.(fn8)

Thus, crowded jails and prisons are often utilized by society as "surrogate mental hospitals" to house nonviolent mentally ill offenders and the distraught homeless population, often convicted of nuisance crimes such as "urinating in alleys, sleeping at airports, [or] harassing people in front of convenience stores."(fn9) Ostensibly, this situation is the result of a backlash created by nationwide attempts to remove mental patients from institutionalization.(fn10) More insidiously, Reagan Administration cutbacks resulting in loss of Supplemental Social Security Income benefits have contributed to the homelessness dilemma, indirectly leading to the increased criminalization of the mentally ill.(fn11) Jails have been criticized as being called "high-expense facilities that deal with . . . social problems." The Bazelon Center for Mental Health Law states that "[b]etween 600,000 and one million men and women jailed each year have a mental illness[,] many [are] arrested for nonviolent misdemeanors or 'crimes of survival,' such as stealing food or trespassing[,] . . . [or] in 'mercy arrests' by police officers who find the public mental health system unresponsive and the process of accessing its emergency services cumbersome."(fn12) Similarly, one California county jail reported 250,000 new bookings and the service of 21 million meals each year because local government was purportedly "overwhelmed with [the] unmet needs of the poor and mentally ill."(fn13) Senator Mike DeWine maintains, "Law enforcement agencies and correctional facilities simply do not have the means, or the expertise, to properly treat mentally ill inmates."(fn14) The National Council on Disability (NCD), a federal agency authorized by Congress and the President, emphasizes that "the manner in which American society treats people with psychiatric disabilities constitutes a national emergency and a national disgrace."(fn15)

The United States Bureau of Justice reported that the nationwide cost of housing a prisoner in a state correctional facility is about $20,100 per year, or about $55 a day.(fn16) Similarly, the cost of incarceration for federal inmates is estimated at $23,500 per year.(fn17) These per capita expenditures rapidly approach astronomical figures: In 1996, annual state and federal prison expenditures were $22 billion and $2.5 billion respectively.(fn18) Regarding the composition of prisoners in correctional facilities, a 1999 United States Department of Justice statistical report revealed that "[a]bout 10% of prison and jail inmates reported a mental or emotional condition"; this number amounts to about a quarter of a million inmates nationwide.(fn19) Some view incarceration of the mentally ill as a societal injustice. Judges presiding over hearings involving misdemeanors committed by mentally ill defendants state that "[t]hese inmates should be in treatment, not in and out of jail."(fn20)

Furthermore, the impact of imprisonment on the personal lives of the disenfranchised, politically powerless, and often "invisible" mentally disordered offenders may be devastating.(fn21) NAMI notes that correctional facilities are ill-equipped to provide adequate mental health care to mentally ill inmates with severe psychiatric illnesses.(fn22 )Mentally ill inmates are frequently punished, physically restrained, or secluded in isolation cells because of the correctional staffs lack of understanding regarding the nature of mental illness. Such prisoners lack access to expensive, state-of-the-art medications and are not provided with rehabilitative services to facilitate their transition back to the community.

This Article explores the establishment of mental health courts as a partial solution to the perplexing societal problem that relegates mentally ill offenders to a "revolving door" existence in and out of prisons and jails.(fn23) This inescapable situation results from a paucity of effective humanitarian policies, laws, and procedures for treating such medically disordered defendants. The establishment of mental health specialty courts is investigated as a potential means of addressing the complex legal issues and psycho-sociological problems faced by the judicial system in dealing with mentally ill offenders.

Part II of this Article discusses basic principles of therapeutic jurisprudence and preventative law: two critical concepts applicable to just adjudication of cases involving mental health law. Part III briefly chronicles the historical currents of underlying policies and the general public's misguided, stereotypical attitudes, which have engendered laws unfavorable to the just treatment of mentally ill offenders. Part IV examines the successes of state and federal specialty courts in focusing upon and resolving unique problems similar to those faced in cases involving mental health issues. Two types of state specialty courts-drug and family courts-will be examined as examples of workable models from which to construct a corresponding mental health specialty court system.

Part V advocates the establishment of mental health specialty courts, discussing the following major topics: the general need for such specialized state courts; the effectiveness of court reform; the unique qualifications and role of the mental health court (MHCT) judge; the promotion of a cooperative, nonadversarial justice system within MHCTs; a mentally ill defendant's initial exposure to court hearings, with interactions with defense and prosecution attorneys, psychiatric medical experts, and other staff; the establishment of a treatment plan with objectives for a "client's"(fn24) rehabilitation back to the social community; and contingency plan management for potential relapses among clients.

Part VI presents a proscriptive MHCT action plan to enable states, courts, hospitals, correctional facilities, national support organizations, community service organizations, and others to reduce societal costs through the treatment and rehabilitation of mentally ill offenders. This action plan includes the following: projected financial savings to the community resulting from implementation of specialized MHCTs; the predicted impact of MHCTs in reducing criminal recidivism rates; the visible role of MHCT judges in the news media as advocates of treatment of mental illness as a disease; support for concomitant passage of laws promoting treatment and rehabilitation of mentally ill offenders back into productive society; and model legislation for the establishment of pilot state mental health courts (see Appendix A). Current Congressional and state proposed legislation is discussed, including the recently enacted progressive law for a federal mental health diversionary court program entitled "America's Law Enforcement and Mental Health Project," codifying Congressional companion bills H.R. 2594 and S. 1865.(fn25)

Finally, Part VII concludes with a return to the fundamental therapeutic jurisprudence and preventative law principles underlying the advocacy of the establishment of state mental health courts.

II. The Concept of Therapeutic Jurisprudence and Preventative Law as Applied to Mental Health Law

Professor David B. Wexler has been a pioneer in promoting the general concept of therapeutic jurisprudence-a theoretical framework that is invaluable in the analysis of society's role in the adjudication and treatment of mentally ill offenders. Therapeutic jurisprudence probes the role of the law itself as a social and economic force in producing both beneficial "therapeutic" and detrimental "antithera-peutic" effects upon...