Courting the court: courts as agents for treatment and justice

Publication Date10 December 2002
Pages143-197
DOIhttps://doi.org/10.1016/S0192-0812(03)80021-1
AuthorNancy Wolff
COURTING THE COURT: COURTS
AS AGENTS FOR TREATMENT
AND JUSTICE
Nancy Wolff
ABSTRACT
The mental health court is the newest venue for rerouting persons with
mental illness from the criminal justice system to the treatment system.
Mental health cour,~s share with drug courts the mission of offering
therapeutic alternatives to jail. But their success, however, depends on the
nature of the illnesses to which they attempt to treat, the strength of the
connection between those illnesses and criminal behavior, and the
effectiveness of treatment as a deterrent. To explore these connections,
mental health courts are assessed through the lens of therapeutic
jurisprudence. From theoretical and practical perspectives, mental health
courts are found to have substantial limitations in terms of their potential
impact on criminal behavior and incarceration of people with mental
illness. Serious concerns about fairness are also raised. An alternative
strategy for judicial intervention on behalf of offendet:, with mental illness
is suggested.
With how much ease believe we what we wish.t
Whatever is, is in its causes just.
(John Dryden, 1679)
Community-Based Interventions for Criminal Offenders with Severe Mental Illness,
Volume 12, pages 143-197.
Copyright © 2003 by Elsevier Science Ltd.
All rights of reproduction in any form reserved.
ISBN: 0-7623-0972-5
143
144 NANCY WOLFF
I. INTRODUCTION
Across the country, communities are developing strategies to respond to the
special needs of offenders with mental health problems (Steadman et al., 1994;
Torrey et al., 1992). Some communities have programs that intervene at the
level of the police, while others develop programs within jails or courts. The
mental health court is the newest venue for rerouting persons with mental
illness from the criminal justice system to the treatment system. The first such
court was established in Marion County, Indiana in 1980 (Steadman et al.,
2001), although the mental health court founded in Broward County, Florida in
1997 is most frequently given this claim (Goldkamp & Irons-Guynn, 2000;
Watson et al., 2001).
Mental health courts are modeled on and follow in the tradition of drug
courts. These specialized therapeutic courts rely on the judge (and the power of
the court vested in the judge's order) to mandate treatment instead of criminal
processing or sentencing (Steadman et al., 2001). Defendants who participate
in these courts are offered the option of treatment or jail. By choosing
treatment, they may forgo criminal processing altogether, or undergo criminal
processing but forgo criminal sentencing. In both cases, the goal is to eschew
jail in favor of mental health treatment. By establishing a connection between
the individual and the treatment community and then supervising that
connection for a reasonable period of time, the court is expected to promote
treatment. Treatment engagement, in turn, is expected to reduce criminal
behaviors and the likelihood of future interactions with the criminal justice
system. In the longer run, these interventions are predicted to depopulate the
jails of persons with mental illness, as well as enhance public safety.
Although there are roughly a dozen mental health courts in operation across
the United States (Goldkamp & Irons-Guynn, 2000), their numbers are
expected to grow dramatically with the signing of Public Law 106-515 by
President Clinton in November 2000.
America's Law Enforcement and Mental
Health Project
(Public Law 106-515) authorizes the Attorney General to make
grants to state and local entities for "not more than 100 programs that involve:
(1) continuing judicial supervision ... over preliminarily qualified offenders
with mental illness, mental retardation, or co-occurring mental illness and
substance abuse orders, who are charged with misdemeanors or non-violent
offenses; and (2) the coordinated delivery of services, which includes: (a)
specialized training of law enforcement and judicial personnel .... (b)
voluntary outpatient or inpatient mental health treatment.., and (c) centralized
case management." The law authorizes $10 million in targeted spending
towards these efforts in each of four years (2000-2004). Funding was approved
Courting the Court: Courts as Agents for Treatment and Justice
145
by the Commerce-Justice-State appropriations bill, which earmarked $4
million for mental health courts for 2002 (Public Law 107-77). 1 This funding,
in all likelihood, will be administered by the Bureau of Justice Administration
at the Department of Justice.
Political support for mental health courts is fueled in part by the growth and
performance of drug courts. Since their introduction in 1989, drug courts have
diffused rapidly in response to concerns about prison overcrowding, which
resulted in a large measure from the implementation of stricter sentencing
policies and the repeated incarceration of "untreated" drug offenders (Nolan,
2001). It is estimated that there are now over 600 drug courts in operation
(Drug Strategies, 1999). Alongside this growth has been an active evaluation
plan. There have been three dozen or so evaluations of drug courts since 1993.
The bulk of the evidence shows that participation in drug courts significantly
reduces drug use and criminal recidivism (Belenko, 1998; Marlowe &
Festinger, 2000). Drug courts have also been found to yield cost savings (Hora
et al., 1999). Proponents of mental health courts predict analogous benefits.
Mental health courts do share with drug courts the mission of offering
therapeutic alternatives to jail. Whether the former can replicate the
achievements of the latter, however, depends on the nature of the illnesses to
which they attempt to treat, the strength of the connection between those
illnesses and criminal behavior, and the effectiveness of treatment as a
deterrent. To explore these connections, I begin in Section II by defining mental
health courts in terms of their commonalties and differences with drug courts.
Although there is no standard mental health court model, existing experiments
share some common attributes borrowed from the drug court model. In Section
III, mental health courts are assessed through the lens of therapeutic
jurisprudence. Here I consider whether the "dominance" interpretation of
therapeutic jurisprudence can be used to justify mental health courts. In Section
IV, I identify three types of risks to the effectiveness of mental health courts:
misspecification of cause, risk aversion, and therapeutic bias. I will argue that
mental health courts have substantial limitations in terms of their potential
impact on criminal behavior and incarceration of people with mental illness.
Serious concerns about fairness are also raised. Section V develops an
alternative strategy for judicial intervention on behalf of offenders with mental
illness. The therapeutically-informed criminal processing and sentencing
approach proposed here achieves some of the same ends as mental health
courts but treads less harshly on individual rights. It also adheres more
faithfully to the sum and substance of therapeutic jurisprudence. The final
section describes "external" issues that impinge on the likely success of both

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