In a snug Brooklyn, NY courtroom a few months ago, Frederick, a middle-aged Latino, was called up to the bench by presiding Judge Matthew J. D’Emic.
Striding forward confidently, Frederick reached up and shook the judge’s hand with a smile, and received a warm smile in return.
“How are you doing?” the judge asked.
“I’m great,” replied Frederick, handing the judge a business card, adding that he kept busy working as a counselor for men and women coping with mental illness.
Frederick probably knew as much about that as someone who had trained in the field for years.
He’s a participant in the diversion program operated by the Brooklyn Mental Health Court (BMHC), which allows seriously mentally ill defendants accused of a felony to accept a plea of guilty and receive treatment for up to 18 months in lieu of jail.
That October day, Frederick received both his graduation certificate and dismissal of all charges against him—and observers heard something not usually associated with a courtroom.
“If I can do it, you can too,” Frederick called to those awaiting their turn as he left the court.
For advocates of mental health courts, the outcome of Frederick’s case was proof that problem-solving models like the BMHC, which combine patience and respect with aggressively monitored, long-term treatment, can successfully divert the mentally ill from jails and prisons that are otherwise only likely to worsen whatever conditions they have.
But the reality is much more complex. Many criminal justice experts argue that mental health courts are only one part of the solution.
Although their number has grown enormously since 1997, to almost 400 nationwide today, they are unlikely to be able to address the sheer scale of the problem, according to Dr. Fred Osher, Director of Health Systems and Services Policy for the Council of State Governments Justice Center.
“[Mental health courts] demonstrate that with appropriate supports and treatments you can get better outcomes,” said Osher, whose organization focuses on creating safer communities by providing policy guidance to elected state officials.
“But we would be remiss if we said a mental health court… is going to solve the scale of the problem of the underrepresentation of people with mental illness.”
According to the National Alliance on Mental Illness, more than two million people are arrested and booked into jails each year. As recently reported in The Crime Report, on any given day, there are approximately 360,000 people with serious mental illnesses in jails and prisons, and another 760,000 under correctional supervision.
Housing is the ‘Biggest Problem’
“The biggest problem is housing,” said Colleen King of Brooklyn Defender Services and a veteran defense attorney at Judge D’Emic’s court.
King noted that the Brooklyn Mental Health Court does not like to release clients to shelters, where it is very difficult for them to navigate treatment and medications, and there is always a long wait to get housing. According to a recent The New York Times article, housing for the mentally ill in New York City is in chaos, with nearly 4,000 needy individuals without access to supportive housing.
“There aren’t that many modified therapeutic communities or supportive housing beds,” she added.
In New York, the Harbor House & Harbor House II, located in The Bronx, are two such facilities. They serve as rehabilitation centers for the mentally ill and addicts by providing housing, treatment, and counseling for those granted entry.
However, both houses combined only offer 109 beds, and the community is not a cookie-cutter. They are the only such facilities in the city. Thus, because beds are scarce and every mentally ill client needs something different, many don’t get in.
Housing for the mentally ill is a nationwide issue, with other states, such as California, Maryland, and Oregon, reporting an inability to provide supportive housing. Though King praised the Brooklyn Mental Health Court’s flexibility and willingness to expend all options when the first one fails, they, and courts like them, can only utilize the resources available in the communities they serve.
“A lot of my clients are homeless,” said King. “Having a safe place for them to go to that is outside the shelter system [is a challenge].”
In fact, according to MentalillnessPolicy.org, a nonpartisan think tank providing information about the care and treatment of people with serious mental illness, of the estimated 564,708 homeless individuals in the United States in 2015, 140,000 were believed to be suffering from a serious mental illness, while another 250,000 had symptoms of general mental illness.
Without the necessary housing for those they divert, mental health courts are left treading water as their mentally ill clients simply rotate through the system.
“If you don’t have someone housed when they’re coming out of jail, the success rate [of mental health courts] is going to go way down,” said Judge Steven Leifman, a Miami-Dade County judge and pioneer of the Eleventh Judicial Circuit Criminal Mental Health Project.
While Leifman admitted that Miami is one of the only U.S. communities with a dedicated tax for homelessness—allowing them to provide better housing than most—he maintained that resources are still a problem.
Mental health courts, he told The Crime Report in an interview, must focus on getting the people best served by the system into treatment programs first.
“In some situations, because people don’t understand these cases as well as they should, they tend to want to take cases that are at lower risk,” said Leifman.
“The chances of them reoffending are really low, the acuity of their illness isn’t that high, and they’re easier cases.”
While this can create more supposed success stories for the court, Leifman said, in the long run, focusing on those who represent less risk and lower needs wastes valuable resources on people who, arguably, would be fine without them.
Instead, he continued, mental health courts should focus on their highest risk/highest needs population, those who are most likely to get into trouble again and, thus, cost the most.
“We looked at thousands of people arrested in Miami-Dade who we knew had a mental health issue,” said Leifman.
“Ninety-seven people over a five-year period were arrested 2,200 times, spent 27,000 days in jail, and 13,000 days at a crisis unit/emergency room, costing $13.7 million. That’s who you want a mental health court to focus on.”
To tighten their net, Leifman suggested mental health courts should become part of a bigger process, where they work with the community, prosecutors and the defense bar to identify those best suited for their programs.
Crisis Intervention Teams
Police officers working in Crisis Intervention Teams are trained to identify the symptoms of mental illness and how to deescalate situations so that arrest is only a last resort. Such strategies, along with good diversion programs, make mental health courts more effective, he said.
Similar collaborations in the Miami-Dade program, Leifman argued, reduced the number of arrests in the county by half since 2008, and contributed to a decline in recidivism rates of mentally ill offenders from 70 percent to 20 percent in the same period.
Leifman is also creating a new facility that brings together law enforcement, criminal justice, and medical professionals under one roof, specializing in rehabilitation over punishment. In this way, he hopes to further weed out those who don’t need to be in custody and divert them to treatment immediately, instead of clogging the system with unnecessary cases and, as a result, further criminalizing the sick through arrest and jail time.
“Mental health courts should be used as part of that bigger diversion process,” said Leifman.”If you do it that way, they are excellent tools and they can have a very valuable role.”
However, according to Carol Fisler, the Director of Mental Health Court Programs at the Center for Court Innovation, while mental health courts are effective in diverting people who need it into treatment, a common mistake among those involved in the operations of those courts is to solely focus on bringing symptoms under control and considering the job done.
“They continue to be focused on thinking that mental illness is a much more direct contributor to crime than is the case,” said Fisler, adding that this is generally now accepted as an incomplete logic model.
In fact, according to a 2014 study by the American Psychological Association, which examined the relationship between the symptoms of mental illness and crimes committed by mentally ill subjects, mental illness has a much smaller role in crimes committed than people believe.
Of the 429 crimes coded for the study, only one-fifth were found to be directly related to the symptoms of mental illness.
Fisler believes that these numbers point to a need for more than just a court-monitored system of incentives and sanctions that are concerned solely with a person taking their medication and attending counseling—if mental health courts are to truly reduce recidivism.
Looking Past the Finish Line
They require looking ahead, past the finish line of a relatively short court program, and towards engaging people in civic society and the legal process, as much as in treatment.
“The research shows that treating symptoms does not necessarily reduce recidivism,” said Fisler.
“In the court process itself we should really be encouraging courts to put in practice principles of procedural justice.”
Emphasizing a more respectful and helpful court process, one where the individual can participate and understand his or her rights, the language used in court, and the decisions made, Fisler said that procedural justice garners a greater sense of trust in the neutrality of the court and the caring intent of all those involved in its management.
In a recent study examining and comparing mental health court methods in Washington D.C., courts that utilized this procedural model achieved much lower recidivism rates than courts adhering to more punitive modalities.
“What you’re really trying to do is change people’s behavior,” said Fisler.”The way you interact with people is a very powerful way of changing that behavior.”
At the BMHC, these tenets of procedural justice are common practice. Officials there establish a therapeutic relationship that focuses on respect, patience and understanding. In court, defendants often communicate with the judge directly regarding their progress, discuss and arrange their own treatment plans with social workers and caseworkers, and have an active role in their own rehabilitation.
Above all, they are afforded the understanding that rehabilitation takes time.
“People are going to struggle; it’s very rarely a straight road,” said Ruth O’Sullivan, the Project and Clinical Director of the BMHC.
Though some may sail through their program, O’Sullivan says most don’t, and the court as a whole tries to do whatever it can to help in a variety of ways. For participants who won’t join their program, Judge D’Emic has been known to make them come to court every week and sit there until they eventually decide they’d rather be in treatment.
Other times, O’Sullivan and her team of caseworkers, therapists and medical practitioners will go to the programs themselves, do case conferences, and find out why the client is struggling. If it’s a medication issue, they will interact with providers and see if changes should or can be made.
“We’ll try any different way that we think we can to help people through,” said O’Sullivan.
Dealing with Substance Abuse
In addition to these issues, the court must also account for substance abuse in their clients.
According to a 2014 survey by the Substance Abuse and Mental Health Services administration, of the estimated 43.6 million American adults experiencing some form of mental illness approximately 7.9 million had a co-occurring substance disorder.
In a mental health court, this represents a challenge because the client’s mental health can only be dealt with once he or she has been confirmed sober and stable.
Therefore, the key is to make sure that the treatment services and modality of the treatment are all co-occurring, meaning that they’re addressing both the person’s mental illness and their addiction at the same time, while also maintaining a fair understanding of the realities of addiction.
“We believe we’re the court of a million chances,” said O’Sullivan.
“If someone relapses, and they know that they need help and they’re willing to do what they need to do, we’ll try to get them into detox and rehab, get sobriety under their belt, and then get them back into treatment.”
However, while this alternative court model has been implemented in states across the country, some still adhere to a traditionally punitive system.
A 2016 Spotlight series on the mentally ill in Massachusetts found that a majority of the state’s mentally ill offenders struggle through a system with few options, and that many judges still look at punishment as the best solution, frequently recommending jail time for minor probationary infractions and drug relapses.
According to David Kelly, a Kings County assistant district attorney and founding member of the BMHC, the solution to outdated practices and stigma like these is training and in-service education.
“It’s a question of getting the word out and tamping it down when you see it,” said Kelly, who admits that, when the court first opened, he would encounter fellow ADA’s who imagined themselves psychiatrists.
“They would say, ‘he doesn’t look sick to me, I’ve seen him in the car park, he knows what he’s doing.’ That’s not how you diagnose somebody.”
It is Kelly’s responsibility to educate these people, on each and every case, if necessary, warning them to never prejudge, and to leave diagnosis to the professionals. In addition, along with the District Attorney’s office, the BMHC conducts anti-stigma and procedural training at least twice a year, inviting judges to participate, and holding talks with former defendants to learn exactly how to conduct their court in the way that they felt yielded the best result.
At the Council of State Governments Justice Center, a multimedia curriculum has been developed for fledgling mental health courts, one that emphasizes seeking out methods that have a proven effect on behavior, working out how best to implement these methods, and constantly seeking out new means of improvement.
The end goal is a court like the BMHC.
“One of the secrets of D’Emic’s courtroom is the fact that his court officers are highly well trained, and his officers know how to treat people with respect and kindness,” said Kelly.
“That’s how you do it.”
In the face of a fractured mental health system, the burden of the seriously mentally ill continues to fall on the criminal justice system.
Mental health courts, rather than a broad solution to the general problem, are best used when considering the diversion of a small percentage of that target population. However, even that small percentage can fall through the cracks without accessible housing, quality training, and a layered diversion process.
Therefore, a change in narrative must occur, one that involves more than treating the behavioral problems that brought someone to court in the first place.
“It’s not just a question of managing symptoms,” said Fisler.
“Maybe if rehabilitation is the goal, we should be looking at the drivers of criminal activity.”
Isidoro Rodriguez is a New York-based writer and a regular contributor to The Crime Report. He welcomes comments from readers.