If the states are laboratories of democracy, as Supreme Court Justice Louis
Brandeis said, then mental health courts are the current guinea pigs.
Or as researcher Allison Redlich, Ph.D., put it, reflecting on the
idiosyncratic nature and experimental status of the alternative to jail for
mentally ill persons who have been accused of crimes: "If you've seen
one mental health court, you've seen one mental health court."
The courts sound like a good idea, one that serves both justice and the
individual, but exactly what works and what doesn't is not yet clear.
"As we often do in the United States, we've plunged into a model
without clear evidence of efficacy of mental health outcomes," said
former APA President Paul Appelbaum, M.D, director of the Division of
Psychiatry, Law, and Ethics at the New York State Psychiatric Institute in New
York City. "Mental health courts may seem like a common-sense
suggestion, but unless treatment is available, diversion will not have a
positive effect on mental health needs."
Fewer than 100 mental health courts exist in the United States today, their
numbers increasing steadily since the first were established in Indiana and
Florida in 1997, according to a study by Redlich, her colleague Henry
Steadman, Ph.D., of Policy Research Associates in Delmar, N.Y., and others.
The courts divert offenders prior to trial or sentencing into treatment
settings, with social-service help provided with jobs, housing, and
Mental health courts recognize that persons with mental illness bear some,
but not full, responsibility for their actions. They cannot be excused of
their alleged crimes, the thinking goes, but ought to be offered an
alternative to punishment if treatment can help them lead productive,
noncriminal lives in society.
The courts usually feature special dockets, individualized treatment plans,
periodic review hearings, and standards for program completion.
Participation is always voluntary. No one is required to choose this course
over the usual path through the criminal justice system. The prosecutor,
defendant, and defense attorney must agree with the judge to accept the terms
of the diversion. Most courts hold out the carrot of mental health treatment,
housing and job assistance, and a reduction or elimination of charges along
with the stick of a return to criminal-case processing if the defendant fails
"I think the majority opt in for various reasons, some
pure—they truly want help—and some to avoid worse outcomes in the
system," said Baltimore District Court Judge Charlotte Cooksey, J.D. The
choice to opt in may raise delicate legal questions in jurisdictions like
Cooksey's. If the person is on probation, then a guilty plea in mental health
court is counted as a violation of parole, sending the offender to jail. Thus,
the state's attorney may keep the case in pretrial status or reduce the
charge, avoiding the parole violation but retaining the threat to continue
prosecution if the defendant fails to follow through.
As Redlich noted, the model gets expressed differently in different
jurisdictions. Eligibility, plea agreements, supervision, incentives,
sanctions for noncompliance, and completion standards vary widely.
Some courts admit only persons charged with misdemeanors, others allow
felonies. Some exclude domestic violence, crimes against children, driving
while intoxicated, or violent felonies. Some mental health rights advocates
argue that misdemeanors should be excluded, with those accused diverted as a
matter of course, to concentrate resources on felonies.
Eligibility for a program may be as generic as "mental illness"
or having a diagnosis that appears on a list of specific diagnostic
categories. Comorbid substance abuse is common among those in mental health
courts. Some courts require a guilty plea before admitting the defendant to
the program, while others defer prosecution as long as the defendant adheres
to the program.
The goals of the system vary even as they coexist. Diverting mentally ill
defendants into treatment provides them with needed (and otherwise
unaffordable) care, lessens the strain on overburdened correctional systems,
and, advocates hope, reduces the chances of recidivism.
Minnesota Fourth Judicial District Judge Richard Hopper, J.D., began the
mental health court in Minneapolis two and a half years ago. He has seen about
300 cases and now supervises 170 cases. Four or five new defendants appear
"You have to take a comprehensive approach," said Hopper in an
interview. "These are people with multiple problems. We have to evaluate
them, then the case workers help them figure out what to do first. Housing
might be more critical than taking medications, for example. Employment is a
key. They need something meaningful to do, not just spend all day watching
In Baltimore, Cooksey, a judge for 23 years, sits on District Court in the
blue-collar neighborhood of Brooklyn. Cooksey calls herself the "mother
of the mental health court" in the city. Psychiatrists and psychologists
of the Forensic Alternative Services Team (FAST) at the main circuit court
building downtown initially screen defendants as they come in for bail review.
Those with Axis I or certain other disorders can opt into the mental health
court, and their cases are transferred to Cooksey's court. Today all mental
health aspects of Baltimore's court system, including competency cases, flow
through her courtroom. FAST screens about 800 to 900 cases a year, and about
200 are currently monitored by the court (see box).
The city's state's attorney and the public defender's office have each
contributed one attorney to the court. The parole and probation office and the
pretrial division each supply two agents, and the city police department is
involved too. Cooksey's office also has social workers on staff to coordinate
cases and advise her on
"We get good cooperation from everyone," said Cooksey."
There's no need to convince anyone of the need. Everyone is more than
willing to see if alternatives to incarceration are effective."
Another key issue, said Redlich, is the voluntariness of the court. Is it
fair and ethical to require a guilty plea to get treatment?
"To some, returning people to jail for treatment noncompliance is
counter to the therapeutic philosophy of the mental health court and seemingly
punishes people for their mental illness," wrote Redlich and colleagues
in an upcoming article in Law and Human Behavior. However, it may
take the potential sanctions of the criminal court to get compliance, said
Hopper. In effect, defendants "agree to be coerced," he said,
citing the case of a former "top offender" who is now living on
his own, is finishing a vocational course, and is in line for a job.
"One of the most effective sanctions is the threat to kick them out
of mental health court and send them back to the regular criminal-justice
system," he said. "There's more work and accountability for
patients [in mental health courts] in the short term, but it's very beneficial
in the long term, connecting them with services they need."
At the same time, there is a paradox in the extensive follow-up by social
workers and corrections officers, said Redlich. They can give the defendants
better guidance, but they may also observe behavior prohibited by the terms of
their plea agreements.
Confounders like that make it hard to compare statistics about recidivism
from court to court. "So outcomes vary, and it's hard to make
generalizations," she said.
"Today we can't say that mental health courts work or not, only that
a certain kind of mental health court works for a certain kind of
person," agreed Appelbaum.
What are the outcomes of the mental health court systems around the
"It's important to have data on the efficacy of mental health courts
before embarking on massive efforts to install them in the justice
system," said Appelbaum. "So far the data seem to indicate that
mental health courts are effective for the criminal-justice system, but
there's a vacuum for mental health outcomes. The mental health system wants to
know if the patient was treated and treated effectively. Have they been
rehabilitated? Were they reintegrated into society? Do they have
"We don't have good statistics on outcomes," said Cooksey."
There's no sophisticated data system. All we can do is see how the
defendants are doing after one or two years of staying in
"Our biggest problem now is coordination and communication,"
agreed Hopper. "Information is just not shared among agencies. Case
managers and probation officers might talk on the phone, but there's no
institutionalized system. We're constrained by data-privacy laws and fears of
Research is only beginning to answer those questions. A study in Broward
County, Fla., found that defendants from mental health courts were more likely
to receive services but showed no change in symptoms. Another from Oregon
found that in the year following enrollment, fewer clients were arrested, they
used fewer inpatient treatment days and more outpatient service days, and
required less crisis intervention than in the year preceding enrollment.
Another Florida study found that mental health courts were not experiencing
more "revolving door" clients than other ways of accessing mental
health services. A Washington study found lower re-arrest and probation
violation rates among those completing mental health court supervision.
At the front lines, proponents of the courts want to continue the
"This has been one of the most rewarding things I've been involved
with," said Hopper. "It really makes an impact on people's lives,
and it's the right thing to do."