Mental health courts (MHCs) are specialty courts designed to divert adults with mental illnesses from jail into behavioral health services. At any given time, the large and growing number of persons with mental illnesses in jails and prisons and under community supervision arrangements (i.e., probation and parole) presents significant challenges to mental health and criminal justice authorities. Persons with mental illnesses in the justice system have high rates of substance use disorders and chronic physical health problems and often have difficulty accessing health and behavioral health services, safe and adequate housing, and employment upon release from jail or prison. As a result, persons with mental illnesses have higher recidivism and probation revocation rates compared to justice-involved persons without mental illnesses.
A variety of interventions at the interface of the criminal justice and mental health systems have evolved to address the overrepresentation of persons with mental illnesses in the justice system. Crisis intervention training for police officers and MHCs is designed to divert persons with mental illnesses from jail to treatment; forensic assertive community treatment and forensic intensive case management are designed to prevent recidivism for justice-involved persons with mental illnesses; and specialty mental health probation is designed to ensure probationers with mental illnesses complete probation successfully without recidivism or revocation. This article focuses on MHCs as one diversionary tool embraced by some local judicial systems to divert persons with mental illnesses to community-based treatment.
MHCs Defined
Since the first MHC in 1997, interest in the model has continued to grow. In 2000, U.S. president Bill Clinton allocated $10 million toward the development and proliferation of MHCs through the America’s Law Enforcement and Mental Health Project Act, which created the MHCs Program under the Bureau of Justice Assistance. Federal funding for MHCs continued throughout the 2000s and as interest in these courts has grown, so has their number.
In 2009, the United States registered more than 250 MHCs, and as of 2017, there were over 350 nationally. MHCs aim to reduce the frequency of contact between people with mental illnesses and the justice system by linking them to supportive resources, including community-based treatment, case management, employment, and housing. The rationale for developing MHCs in most communities is remarkably consistent and reflects a collective desire to increase public safety, improve quality of life among persons with mental illnesses, and maximize use of limited criminal justice and mental health resources. Typically, in exchange for successful completion of an MHC, a defendant’s criminal charges are dismissed.
In general, MHCs share the following core components: (a) a docket exclusive to persons with mental illnesses, (b) voluntary participation as an alternative to the traditional court system, (c) a general goal of reducing jail time by directing participants to community-based resources, (d) a team approach emphasizing cooperation through strong relationships between legal and behavioral health-care professionals, and (e) ongoing observation and monitoring by an MHC team to ensure participants adhere to explicit terms of participation. In addition, there are a number of process-oriented components shared by many MHCs, including obtaining stakeholder input, ongoing and meaningful use of collected outcomes data, mechanisms to ensure informed choice and confidentiality, and ongoing training for the MHC team.
MHCs also have distinct features that, to a large extent, are driven by local factors such as the availability of funding, the availability of services, and the willingness of a judge and treatment team to broaden MHC eligibility criteria to include more serious charges, such as violent felonies or sex offenses. Some MHCs have a single dedicated judge whereas others utilize a rotating panel of judges. Differences also exist in the use of sanctions and incentives, with some MHCs more likely to use jail as a sanction for noncompliance relative to others. Length of participation varies across MHCs, depending on the level of charge, degree of monitoring, and terms of participation. Finally, a number of MHCs started with federal seed money whereas others were developed with local or state funds.
Development, Theoretical Perspectives, and Criticisms
A number of factors stimulated the rapid dissemination of MHCs. These factors include deinstitutionalization, which moved greater numbers of adults with mental illnesses to community settings where adequate services and treatments were lacking and where there was continued deterioration of the social safety net for vulnerable populations. Other contributors include limited funding for mental health services at state and local levels and the existence of few criminal justice diversion programs for persons with mental illnesses in the 1990s.
Arguably, the perspective that untreated mental illness is a primary driver of low-level, nuisance crimes among persons with mental illnesses (i.e., the criminalization of mental illness) has motivated the development of MHCs across the United States. The justice system has been described metaphorically as a revolving door for persons with mental illnesses in which jail serves to exacerbate symptoms of mental illness, thus contributing to a repeat cycle of offending. The prevailing sentiment is that if justice-involved persons with mental illnesses could be diverted into treatment, future criminal activities would desist. More recently, however, scholars point to criminogenic factors (i.e., antisocial attitudes, antisocial peers) as a primary cause of criminal activities, and there is evidence that these criminogenic factors are the same and equally, if not more, prevalent in justice-involved persons with mental illnesses relative to those without mental illness.
Finally, guided by the success of the drug court model, MHCs increased the visibility of justice-involved adults with mental illnesses and promoted the philosophy of therapeutic jurisprudence or law as therapy, which supports the assumption that law can be a social force used to foster behavioral change. In the context of MHCs, therapeutic jurisprudence incorporates current knowledge of best treatment practices and considers how they may be used therapeutically when applying the law to improve behavioral health outcomes. This concept has frequently been used to justify MHCs and is reflected in their design: MHCs incorporate voluntary participation and respect for autonomy, both of which are hoped to make MHCs more ethical and conducive to behavioral change.
Although MHCs have flourished in recent decades, they have not been immune to criticism. Whether defendants with mental illnesses can voluntarily agree to participate in an MHC is an ongoing criticism. Because MHCs, like other specialty courts, rely on the role of the judge to enforce behavioral change, MHCs may eliminate the role of the judge as a neutral figure and increase the coerciveness of participation. Threats to defendants’ due process rights are another central criticism. Concerns about procedural justice center on whether defendants with mental illnesses are competent to engage in plea bargaining as part of the MHC process.
Furthermore, some critics argue that the adversarial system of justice is compromised when defense attorneys engage in a team-based approach to legal decision-making on behalf of their clients.
In addition, MHCs may exacerbate stigma toward persons with mental illnesses by creating visibly segregated and disparate legal processes. Finally, success of MHC is contingent on availability of community-based resources, and resultant demand on limited local infrastructure increases the potential for resources to be preferentially diverted to justice-involved persons with mental illnesses rather than those who are not justice involved.
Evidence for MHCs
A number of studies have demonstrated that MHCs’ participation reduces recidivism. This effect has been demonstrated in terms of fewer arrests, fewer new charges, and reduced jail time when comparing MHC participants and nonparticipants as well as MHC participants before and after MHC participation. Research has also considered what factors are important for MHC success (i.e., graduation and lower recidivism). MHC participant traits associated with lower recidivism include completion of the MHC program, less substantial criminal history, and older age. Other factors, such as active substance abuse, may be associated with poor MHC outcomes, though findings have not been wholly consistent. In general, studies examining the effectiveness of MHCs on recidivism are characterized by observational designs with small, local samples and limited follow-up periods.
Considerably less research has considered physical health outcomes, though what does exist suggests that a greater percentage of MHC participants receive treatment more quickly than those in traditional courts. Moreover, the cost-effectiveness of MHCs has yet to be widely explored, and current research is inconclusive. Although the justice system can incur reduced costs as participants spend less time incarcerated, treatment costs are often greater for MHC participants, which contribute to mixed cost- effectiveness findings. The cost-effectiveness of MHCs is likely contextually dependent; settings with efficient outpatient treatment systems are more likely to see overall savings compared to settings that depend on local emergency services. As such, further research should consider the potential and expected effects of MHCs from an appropriate systemic perspective.
Future Directions
There is growing recognition in both the social science and legal fields that mental illness interacts with criminogenic risk in complex ways. As such, designing interventions to address the overrepresentation of persons with mental illnesses in the justice system requires an understanding of this relationship. The extent to which there is a synergy between mental illness and criminogenic factors has yet to be explored, and it is likely that interventions for justice-involved persons with mental illnesses will need to utilize multifaceted solutions to address both factors. Given their increasing prevalence across the United States and the growing body of evidence supporting their effectiveness, MHCs represent a promising tool for addressing the mental health needs of justice-involved persons.
Future research should continue to consider what design, process, and participant features are most important for success of MHC. The body of knowledge on MHCs would benefit from more rigorous research designs such as randomized controlled trials or comparative research studies as well as cross-site studies of factors contributing to the effectiveness of MHCs. Future research and quality improvement could also benefit from incorporating broader metrics for success, particularly clinical measures, and the standardization of evaluation techniques. Translating this research into effective and cost-effective practices is also essential, both for existing and for future MHCs.
From a practice perspective, translation of this growing body of research into practice is essential to ensure the long-term viability of MHCs, particularly with respect to their effectiveness. On a systems level, MHCs cannot broker mental health services where no such services exist. Implementation of an MHC without addressing broader problems of the mental health system may jeopardize valuable health and legal resources, and thus any effort to start an MHC should involve a critical appraisal of the current state of local mental health services. Moreover, in communities where community mental health resources are scarce, it could be that MHCs need to provide their own services, such as supportive counseling, case management, or brief solution-focused therapies, especially services that address substance use. Thus, blending service brokerage with service delivery might be a necessary step for MHCs in environments wanting for high-quality, evidence-based mental health practices.
On a policy level, the long-term sustainability of MHCs requires identification of federal, state, and local resources to support the ongoing development and operation of these courts in an increasingly competitive funding climate. Because ownership of MHCs lies at the interface of the criminal justice and mental health systems, the timeless issue of who benefits and who pays is at play here. That is, the criminal justice system benefits from MHCs by diverting persons with severe mental illnesses from the jail into treatment, whereas the mental health community must find a way to serve these individuals, many of whom come without insurance or an ability to pay out of pocket.
In addition, although some guidelines exist on the ideal structure and operation of MHCs, growing research on the key features of MHCs may necessitate a reconsideration and revision of best practice guidelines. Finally, local and state policies are needed to foster data sharing and communication between MHCs, jails, probation and parole, and mental health authorities and providers. Barriers to communication and data sharing present significant obstacles to coordinating care and treatment to justice-involved persons with mental illnesses.
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