November 10, 2014

Women Innovate to Deliver Alternatives for Mentally Ill Offenders

Cynthia L. Cooper

Judge Joan Goldfrank followed a ritual when offenders came into her District of Columbia courtroom for their final appearance. She stepped down from the bench in her robe to shake hands, and then she presented them with a framed document. It said: “We’re proud to award this certificate for your hard work.”

The D.C. mental health court, where Goldfrank sat as the first judge in 2007, enables low-level offenders with severe mental illness to voluntarily participate in a treatment plan overseen by the court as an alternative to traditional criminal court processing.

Judge Ann Keary, now the presiding judge, explains, “You’re dealing with people’s traumatic experiences and a lot of tragedy. Many come in with homelessness, crime victimization, terrible illnesses, and inadequate access to medical care.”

The court, working with internal and community resources, identifies appropriate treatment and services to help individuals manage their lives and gain stability. If they complete the program, minor charges are dropped; more severe charges are reduced.

As originators of the D.C. mental health court, Keary and Goldfrank are part of a hardy roster of women judges and lawyers taking leadership in fostering the “therapeutic jurisprudence” of mental health courts.

“It’s very, very common for me to be at meetings where there are no men,” says Carol Fisler, a lawyer who works as a policy consultant and directs the Mental Health Court and Alternative-to-Detention Programs at the Center for Court Innovation in New York City.

By and large, the women working in the growing mental health court movement arrive as problem solvers ready to address pressing community concerns, rather than legal practitioners landing at a career destination.

Mental Health Courts Meet Growing Need

Mental health courts took root in the last 15 years as the population in prisons and jails reached peak levels. Defendants appearing in court with serious mental illnesses such as schizophrenia, bipolar disorder, and clinical depression exploded, accounting for 2.2 million—or one-sixth—of the bookings in a 12-month period, according to 2007 statistics from the U.S. Department of Justice.

“A lot of ‘tough-on-crime’ approaches—the zero tolerance approaches, the ‘broken windows’ theory of policing—led to a huge increase in the number of low-level offenses that were being prosecuted,” Fisler says. These efforts, she notes, swept in people with mental illness who were already on the margins.

“Jail and prison administrators want to keep people with mental illness out of their jails and prisons; individual judges get tired of seeing people with mental illness cycling through the courts. So many different stakeholders were saying, ‘The system we have doesn’t work,’” Fisler says. “Courts saw a need to break the cycle.”

By August 2013, approximately 350 adult and 50 juvenile mental health courts were in operation, according to comprehensive tracking by the GAINS Center for Behavioral Health and Justice Transformation, a program of SAMHSA (Substance Abuse and Mental Health Services Administration) in Rockville, Maryland. At least one adult mental health court was identified in all but seven states; at the top of the GAINS list were California (33), New York (28), Ohio (25), and Florida (25).

Judge Ginger Lerner-Wren established the first mental health court in the United States in 1997 in Broward County, Florida. Lerner-Wren, who still serves as the mental health court judge, was elected after working as an advocate for people with serious mental illness and participating as a plaintiff’s monitor on a federal class action on the subject. “I came to the judiciary with a highly unique and specialized skillset,” Lerner-Wren says. “I understood the complex needs of this population.”

She was immediately assigned to a criminal justice mental health task force. “We had no budget; we had no funding. I didn’t even have any specific staff,” Lerner-Wren explains. “But we had a very strong will of the community that we did not want to participate in the social injustice of the blind criminalization of people with mental illnesses.”

Lerner-Wren believes that the proliferation of mental health courts owes a great deal to another woman—former U.S. Attorney General Janet Reno. “She could not get to Broward fast enough,” Lerner-Wren says.

Reno showcased the mental health court at the Clinton White House, and, in 2000, the federal government passed legislation to support demonstration projects.

Developing Effective Models

Mental health courts have several unique features. One is that they invariably arise from powerful collaborations—prosecutors, defenders, police, correctional officers, courts, mental health agencies, service providers, and even family members—all interested in exploring new approaches.

In Illinois, a community mental health task force convened by Justice Kathryn Zenoff in 2003 gathered 70 public and private stakeholders. “We invited everyone we could,” Zenoff says. Eighteen months of meetings resulted in the Winnebago County Therapeutic Intervention Program, or TIP; Zenoff presided over the court for two and a half years. “If persons can continue in recovery, we can slow down the revolving door and thereby increase public safety,” she notes. “So there is a dual benefit.”

Now serving on the Illinois Appellate Court, Zenoff works at the policy level, guiding a mental health coordinating committee for the state supreme court as well as the Judges’ Leadership Initiative for Criminal Justice and Behavioral Health, a national group. “There has been a concerted effort to develop models that are effective in allowing persons with mental illness to further their own recovery, to reduce the number of jail days, reduce the number of hospitalizations, and, therefore, reduce the cost to the taxpayers,” Zenoff says.

Typically, a mental health court works with an offender for a specific period—four months to a year, depending on the court’s protocol. The court monitors progress on the established treatment plan through frequent appearances—monthly or even weekly.

The sharpest departure from a traditional court may be in how a judge relates to offenders. One study, “Procedural justice and the mental health court judge’s role in reducing recidivism,” published in the International Journal of Law and Psychiatry in 2010, concluded that good outcomes depend on the judge’s ability to secure the offender’s trust.

“It’s certainly not business as usual,” says Judge Stephanie Rhoades, a district court judge in Anchorage, Alaska, who, since 1998, has presided over the Anchorage Coordinated Resources Project, the fourth mental health court in the nation. “It’s a voluntary court. It leverages the treatment. Rather than a steady stream of plea bargains, it relies on relationships,” Rhoades says. “Women have a lot of strong social skills, and those are really important to these courts. It’s good career strength.”

Judge Linda Davis oversaw the D.C. mental health court from 2009 to 2012 after 14 years on the bench and is now a senior judge. She elaborates: “In regular court, the judge rarely speaks with the defendant. In mental health court, I’m always engaging with the defendant. It’s ‘Hello,’ and ‘How are you?’ You’re dealing with fragile folks. You have to really listen to hear and understand what is getting in the way of a good outcome.”

Offenders face many challenges. Davis says a substantial number of women have histories of sexual trauma as children and need specialized treatment. Other mentally ill offenders—as many as 80 percent in Illinois, according to Zenoff—are also dealing with drug addictions and are dually diagnosed.

Working as a Team

Unlike the adversarial process of a standard criminal case, the “sides” in mental health court work as a team, even though perspectives may vary. “From the prosecutor’s view, the reason to be in mental health court is if it will interdict the criminal behavior and prevent it from recurring,” says Anne Swern, who, as the first assistant district attorney in Brooklyn, New York, until March 2014, oversaw the D.A.’s mental health court participation.

Unusually, some individuals in Brooklyn charged with violent offenses can be included, as well as nonviolent offenders. Swern says the D.A.’s decision to participate depended on the assessments of forensic psychologists, who weigh the risk to the community and treatability of the offender. “The equation for the prosecutor’s office is safety and justice. Safety is paramount,” says Swern, an adjunct professor who teaches Problem-Solving Justice at Brooklyn Law School and a vice chair of the ABA Criminal Justice Section.

Even as details are being refined, mental health courts have won many fans. “The success rate was unbelievable,” says Judge Mary C. Morgan, now retired, who served on the San Francisco Behavioral Health Court from 2005 to 2009. “There was about 33 percent less recidivism by people who went through this program compared with severely mentally ill people committing similar crimes who did not go through the program,” she says.

The emerging research “has largely been positive,” notes Fisler of the Center for Court Innovation.

“I think they are here to stay,” adds D.C.’s Goldfrank, who retired last year. After sitting as the first judge on the adult court, she initiated the first court program for juveniles, adding a gift of The Diary of a Young Girl by Anne Frank to the graduation ritual. “You don’t want to criminalize behavior when it’s connected to the failure to get mental health treatment,” she says. “It’s not risky when you have the right services in place. And it’s the right thing to do.”

Common Procedures and Goals of a Mental Health Court

Cynthia L. Cooper

Cynthia L. Cooper is an author and journalist in New York City and a former practicing lawyer.