Mental Health Courts: The Law (and Irony) of Unintended Consequences


Growing from the garden of therapeutic jurisprudence, mental health courts have been developed in numerous jurisdictions across the US. One of the key elements of these courts includes the defendant's exercise of voluntary choice to participate in the diversion, which is often predicated on a guilty plea or on the waiving of the defendant's Sixth Amendment right to a speedy trial.

As such, this intervention should not be used for defendants suspected or found to be incompetent to stand trial. How can incompetent defendant make such a choice, which may have profound ramifications on his or her future?

In a recent report, the Justice Policy Institute (JPI) reviewed a mental health court in Baltimore. The Baltimore City District Court developed the court over a decade ago, in recognition that individuals with mental illness are disproportionately arrested and, when arrested, are less likely to be released on recognizance and spend more time incarcerated.

Similar courts have developed since in other Maryland jurisdictions. The intent was idealistic. The staff, including representatives from the judiciary, the prosecutorial and public defense bars, and clinical providers, aimed to divert minor offenders from incarceration and into treatment programs.

Where those idealistic aims have been met, defendants and the public have reaped a benefit.

However, the JPI report suggests there has been mission creep.

In addition to focusing attention on the diversion of minor offenders, the mental health court in Baltimore also deals with all mentally incompetent defendants in District Court. Upon a finding of incompetency, the defendant is immediately committed to a state hospital for treatment and restoration.

Several years after the initiation of the Baltimore mental health court, the criminal competency statute in the state legislature was modified to require the preparation of an after care plan before releasing the defendant from the hospital.

Sounds good, right? Who would argue that releasing someone with no discharge plan is proper?

Unfortunately, as the JPI report explains in detail, this has led to the unfortunate situation that some—perhaps many, or even most—defendants found incompetent to stand trial spend many weeks or months in a hospital. Had they been convicted, they would have been released immediately or after serving short sentences.

At times, forensic evaluators and clinical staff have been admonished from the bench, on the record, for failing to provide the statutorily required plan. That has happened even when the defendant himself refused to participate in the creation of such a plan and informed clinicians that he would not follow through with it.

In other words, defendants found to be incompetent are being held hostage by the court.

It's ironic. Less than 40 years ago, Lessard v. Schmidt (349 F.Supp. 1078 (E.D. Wis. 1972)) dramatically limited involuntary hospitalization to people deemed to be dangerous to society. It precluded coercive detention of those found merely to be in need of treatment but not presenting a risk to self or others. All states—including Maryland—adapted similar civil commitment statutes.

Yet the court in Baltimore is using other mechanisms to attempt to compel people who are no longer dangerous to participate in treatment they do not desire. I suspect this happens elsewhere as well.

Do I believe treatment is good for sick people? Of course. But do I have the right to force treatment on a person who expresses a competent choice not to engage in that treatment? Of course not.

And yet, this is what the Baltimore court appears to be doing. In my view, this court appears to be viewing competency to stand trial as a static finding, rather than as a dramatic construct that changes over time.

Moreover, there is a failure to recognize that competency is task specific—that someone is at one point in time incompetent to stand trial has little or no bearing on his or her competency to make medical decisions. I have witnessed this in courtrooms.

Finally, the court is using the criminal commitment statute to force continued hospitalization on people who clearly do not meet civil commitment standards—the very thing that Lessard would preclude.

Unintended consequences. Do we now have so many offenders with mental illness because the threshold for civil commitment was raised? Perhaps. Have mental health courts reacted to this by violating the very rights that civil commitment reform was intended to remedy? Perhaps.

Proving once again that it's very difficult to make predictions, especially about the future.

Erik Roskes, a regular blogger for The Crime Report, is a forensic psychiatrist and currently the Director of Forensic Services at the Springfield Hospital Center in Maryland. The opinions expressed are those of the author only, and do not represent those of any of Dr. Roskes' employers or consultees, including the Maryland Department of Health and Mental Hygiene. He welcomes readers comments. Dr. Roskes website is

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