Mental health courts are specialty criminal courts with a separate docket to deal with mentally ill persons, who are disproportionately arrested and incarcerated. Established by local court and criminal justice officials who recognized that traditional prosecution and punishment were not effective deterrents with this population, these courts divert mentally ill defendants into community treatment with services to reduce repeat offending, jail and prison crowding, court workload, and criminal justice costs. To participate, defendants must voluntarily agree to follow a treatment regimen and to be monitored. Proceedings are nonadversarial with participants—including judges, defense and prosecuting attorneys, criminal justice officers, mental health practitioners, and other service providers— functioning as a team to provide direction, encouragement, rewards, and sanctions to defendants.
Origins of Mental Health Courts
In the 1960s, shortly after state mental hospitals began abandoning their role of providing long-term placement for persons with mental illness, criminalization accompanying this change was reported—large numbers of deinstitutionalized persons were being arrested and jailed. This process has continued to the point that some metropolitan jails house more persons with mental illness than any state mental hospital on any given day.
Most charges against persons with mental illness are not serious, being predominantly nuisance and survival offenses and offenses deriving from misuse of alcohol and illegal drugs. Although only a small proportion of their offenses are propelled by psychiatric symptoms, mental illness indirectly affects offending because it generates disadvantages in the ability to function and cope with difficult situations, which lead to offending. Mental health treatment and services can improve functioning and coping to counteract those disadvantages, but mentally ill offenders typically have never been in treatment, do not stay in treatment, or do not adhere to a treatment regimen. Lack of appropriate mental health care and social supports for these offenders has led to their revolving through jails, hospitals, and the streets.
Because arrest and incarceration were not stopping repeat offenses among this population, various jurisdictions have developed new programs to divert them from the criminal justice system into treatment. Following the drug court model, more than 100 jurisdictions since the late 1990s have established mental health courts to address the root problem (mental illness and its disadvantages) with treatment, support services, and court monitoring.
Mental Health Court Structure
Mental health courts follow the drug court model in structure, having (a) a separate docket; (b) one or two dedicated judges who preside at all hearings; (c) dedicated prosecution and defense attorneys; (d) a nonadversarial team approach involving consensus decisions by criminal justice and mental health professionals; (e) voluntary participation of defendants; and (f) dismissed charges or avoidance of incarceration, depending on whether the defendant enters pre-or postadjudication, after successful completion of the mandated treatment plan.
Some mental health courts limit eligibility to misdemeanors, some to felonies, and some take both levels of offenses. Some take only nonviolent cases; but others are willing to take violent cases, depending on the circumstances and approval of the victims. Some take only defendants with severe mental illness, with or without comorbid substance abuse, while others also accept those with less serious disorders. Referrals come most often from court officers or defense attorneys who become aware of defendants’ mental disorders in the course of usual criminal processing, although some courts have systematic screening after arrest. Acceptance of defendants into mental health court requires approval by the mental health court team with heavy reliance on mental health practitioners for clinical screening and on the prosecutor for public safety screening. Acceptance also requires defendants’ voluntary consent to participate in the court and willingness to comply with their individual treatment plans and to be monitored by the court with regularly scheduled court appearances, varying in duration and frequency among jurisdictions. Explanation to defendants of court operation is given by their assigned attorneys and commonly repeated by the mental health liaison during screening and by the judge in open court, each time obtaining reaffirmation of defendants’ consent.
The Mental Health Court Team
In most jurisdictions, the mental health court team, consisting of the dedicated judge; designated prosecutor and defense attorneys; mental health liaison; and providers involved directly in defendants’ care, such as mental health care managers and clinicians, social workers, substance abuse counselors, and probation officers, meets to review cases on the docket prior to every court session. They discuss each defendant’s progress, cooperation with treatment, behavioral changes, and any needed modifications in treatment or services, then decide what the judge should say to the defendant in open court to ensure compliance, such as give encouragement and praise, offer a reward, issue a reprimand or warning, or apply sanctions. Team members anticipate failure in this population and offer multiple second chances. They stand ready to help defendants try again but employ a variety of sanctions, such as increased frequency of court appearances or reporting, curfews, and even overnights in jail, to enforce compliance and maximize motivation to change.
Mental health team clinicians take primary responsibility for designing treatment plans, which may include medication, group and individual therapy, anger management, substance abuse counseling, Alcoholics Anonymous, Narcotics Anonymous, social services such as housing and employment assistance, and vocational training; but all members of the mental health court team work in unity to provide structure, supervision, and encouragement for each defendant.
Mental Health Court Hearings
In open court as each case is called, the prosecution or defense briefly summarizes a defendant’s interim report; however, it is the judge speaking to each defendant directly about required treatment cooperation and behavioral change who is the central player. The judge attempts to engage the defendant in solving practical problems that may impede compliance and changes, encouraging an exchange by asking direct questions about their well-being and progress toward treatment and personal goals. Following the mental health court team’s recommendations, the judge uses praise, encouragement, stern lecture, warnings, or punishment, depending on compliance, while delivering the message of defendant’s accountability in the agreement to participate. Unlike in the traditional criminal court, the judge makes a special effort to ensure noncompliant defendants understand the reasons for and their responsibility in receiving sanctions.
At the end of a successful required treatment/ monitoring period, the defendant graduates from mental health court, at which point charges are dismissed, probation ended, or sentence dropped. In cases of repeated noncompliance, a mental health court may return the defendant to traditional criminal court for processing in preadjudication cases or for sentencing in postadjudication cases or to jail/prison for serving a prior sentence.
Mental Health Courts Evaluation
Descriptive articles on mental health courts tend to praise their diversion success. Proposing the mechanisms of change to be structure, monitoring, support, and encouragement, as well as individualized mental health treatment and services, they warn that inadequate community treatment and services limit a court’s impact. Empirical studies report positive results: Defendants obtain more treatment and offend less while participating in the courts than in a comparable prior period; and, compared with mentally ill defendants in traditional criminal courts, they receive more treatment and are no more likely to re-offend. Evidence of reducing criminal recidivism more than traditional criminal courts is unclear. Little research exists about long-term effects and other effects such as functioning and quality of life.
- Broner, N., Mayrl, D. W., & Landsberg, G. (2005). Outcomes of mandated and nonmandated New York City jail diversion for offenders with alcohol, drug, and mental disorders. The Prison Journal, 85, 18—19.
- Cristy, A., Poythress, N. G., Boothroyd, R. A., Petrila, J., & Mehra, S. (2005). Evaluating the efficiency and community safety goals of the Broward County Mental Health Court. Behavioral Sciences and the Law, 23, 1-17.
- Moore, M. E., & Hiday, V. A. (2006). Mental health court outcomes: A comparison of re-arrest and re-arrest severity between mental health court and traditional court participants. Law and Human Behavior, 30, 659-674.
- Winick, B. J., & Stefan, S. (Eds). (2005). Mental health courts [Special issue]. Psychology, Public Policy and Law, 11(4), 507-619.
Return to the overview of Mental Health Law in Forensic Psychology.