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Bar News - January 14, 2011

Criminal Law: An Alternative: Mental Health Courts


Hon. James Leary
Editorís Note: Part of the alternative sentencing movement throughout the nation, which places emphasis on community rehabilitation rather than on incarceration, mental health courts are becoming ever more common tools in dealing with non-violent offenders in a way that brings successful resolution to issues, without the need for jail and prison sentences. The author helped form the Community Connections Mental Health Court Project and was recently presented with the Greater Nashua Mental Health Leadership Award for his role in the project.

Sentencing is one of the most important, and most difficult, tasks demanded of the criminal justice system. Upon conviction, numerous factors are considered in order to determine the fairest and most reasonable disposition of a case. Typically unaddressed, or under-addressed, is the existence of mental illness. What if a person is charged with an offense that is directly related to his or her mental illness and, but for the illness, the behavior that led to the charge would not have occurred? How should mental illness factor into the sentencing equation?

We all hear of the extreme cases, such as the mother who drowns her children because "voices" told her to do so, but we hear very little about the many individuals who come before the courts daily, charged with less remarkable offenses for behavior directly related to their mental illnesses. Incidents such as: a person with schizophrenia is arrested for disorderly conduct for arguing with herself loudly in public; or a person with untreated bipolar disorder stands on the street corner, challenging everyone to fight because he feels he can take on the world. These behaviors result in criminal charges. While these "nuisance" crimes are typically resolved promptly by the court after some period of pre-trial incarceration, the underlying illness, if left untreated, can lead to far more serious offenses. As the legal system has become increasingly aware of mental illness as a cause of criminal behavior, it also has become aware of its limitations in effectively addressing such cases.

Psychiatric hospitals throughout the country have been closed in favor of community based treatment. Rather than housing individuals with serious mental illnesses in large medical facilities, society has chosen to change the focus of treatment from long-term, segregated hospitalization to treatment in local community mental health centers. The person can then reside in the least restrictive setting and arrange for his/her own treatment.

Most agree that this change in public policy is the most humane course of action, but one of its consequences is the influx of individuals with untreated mental illness into the court system. People are committing acts that are symptomatic of their mental illnesses, but also are crimes. The social and resource dilemma of whether the legal system or the mental health system should handle these types of cases remains unresolved; however, presently the answer tilts strongly in favor of the legal system.

Jails Becoming Hospitals?

It is said the jails across our county have become the new psychiatric hospitals and the courts the emergency rooms. Estimates are that four percent of Americans have serious mental illnesses. However, that figure jumps to 17 percent of people incarcerated in our jails. Nearly one-third of women in jail have been determined to be suffering from mental illness. A recent New Hampshire based study conducted by the Office of State Governments Justice Center found that inmates with mental illness spend more than three times longer in jail awaiting trial than those without a mental illness. So not only is there a disproportionate number of people with mental illness going to jail, but they are staying there longer as well.

Compounding the problem is co-occurring substance abuse. Studies indicate that approximately 80 percent of incarcerated individuals with mental illness also have a substance abuse disorder.

The typical scenario played out daily throughout our legal system is that a person who is arrested due to behavior related to mental illness is charged with a criminal offense. He or she may be unruly or have a history of failing to appear, so cash bail is set in order to protect the community or assure the personís appearance at subsequent hearings. Unable to post bail, such people sit in jail awaiting trial.

When trial eventually comes around (and if competency is not an issue) they are released on time served or with a suspended sentence, with the condition that they must engage in mental health and/or substance abuse treatment. They are let out the front door of the courthouse to continue to fend for themselves. Some are fortunate enough to have concerned and committed family members to help them, but most do not. Without professional intervention the person cycles back through the legal system.

Mental Health Courts

In the past when mental health treatment is ordered there has been very little communication between the courts and the mental health centers providing the services. In an effort to resolve this disconnect and better address the needs of individuals with mental illness in the criminal justice system, courts have begun collaborative programs, commonly known as mental health courts. The purpose of these programs is to reduce recidivism through treatment that is supervised by the court while also holding the person accountable for his/her behavior.

The specifics on how each program operates vary among jurisdictions depending primarily on the resources available. The general model is that when the defendant is identified as having a mental illness and the illness is related to the charged offense, he/she will be referred to the program. The program is operated by a mental health professional usually affiliated with the community mental health center. The mental health professional will meet with the defendant and his or her attorney to discuss the program. If the defendant agrees, an assessment will follow and a determination made as to whether the person meets the eligibility criteria for admission into the program. Defense counsel can then discuss the defendantís entry into the program with the prosecutor as part of a pre- or post-adjudicatory resolution to the case.

The defendant may be required to undergo further evaluations following the initial assessment. These evaluations may include a psychiatric evaluation for medication and/or a substance-abuse evaluation. When all testing is completed, a treatment plan is developed. The treatment plan usually includes some form of therapy, medication management and often substance abuse treatment. The plan is then incorporated into the plea agreement.

The court disposition may contain an agreement that the case will not be adjudicated for a set period of time and will be dismissed if the defendant complies with the treatment plan and remains arrest-free. The other alternative is to make the treatment plan a condition of a suspended or deferred sentence. Compliance with the treatment plan is then monitored and the participant typically is required to report to the court for periodic case reviews.

This court model is not unique to cases involving mental illness. Similar programs such as drug courts and the Academy Program have been in existence in New Hampshire for years. However, this program deals with the rather more obscure world of mental illness. The goal of mental health court programs is to have the defendant with a mental illness address the underlying cause of his or her behavior and have it treated effectively in order to avoid further charges.

Hon. James Leary is a New Hampshire district court judge.

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