May 01, 2015

Driven by Financial Reasons or Passion?

By Judge Elizabeth R. Finn

Arizona’s Rule of Criminal Procedure 11.1 defines the basis for incompetency to stand trial:

A person shall not be tried, convicted, sentenced or punished for a public offense, except for proceedings pursuant to A.R.S. § 36-3707(D), while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense. Mental illness, defect or disability means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities as defined [by statute]. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.1

In Arizona, a limited jurisdiction court such as Glendale City Court cannot make the determination as to competence. The case must be transferred to Superior Court, our general jurisdiction court. At least two psychiatrists examine a defendant at a cost of $300 each. If the two psychiatrists disagree as to competence, a third psychiatrist examines the defendant for another $300. All psychiatric and interpreter costs are paid for by the limited jurisdiction court or its city. If a language interpreter is required, the city must also pay that cost. In addition, a $150 fee is imposed for a defendant not appearing for an appointment or a defendant remaining in custody. As a result, one can calculate this process is very costly. Lastly, if a defendant is found to be unable to understand the proceedings or assist in his or her defense, no program services are triggered by that finding. The court only orders the dismissal of the charges. Without the intervention of the mental health services, many of these defendants find themselves back in the criminal justice system again, endangering their families, their communities, or themselves.

In our court, we saw our psychiatric costs in 2012 increasing from $15,000 to $35,000 annually. As presiding judge, those budget numbers were a major concern. The increased budget projection prompted us to determine if we had sufficient numbers of defendants to warrant creating a specialty mental health court. Our regional behavioral health authority (RBHA),2 an entity that receives funding from the Arizona Department of Health Services, agreed to do a data match to determine how many of our defendants were in their database with a diagnosis of serious mental illness. Many of these defendants would probably be referred by their public defenders for a Rule 11 determination because of the defendant’s inability to respond to the normal communication.

We prepared an extract of defendants’ names for a four-year period for the RBHA to match with their database. The results were shocking. Though we knew the number of defendants for whom we were paying for Rule 11 psychiatric examinations, we had no idea that our criminal caseload had as many as 241 defendants in one year with seriously mentally ill diagnoses. While a seriously mental ill diagnosis does not mean a defendant is unable to stand trial per Rule 11 of the Arizona Rules of Criminal Procedure, the designation does mean these defendants probably will not respond to the normal court sanctions and already have special services assigned to them based on their diagnosis. Clearly, this population represented an issue for our community with frequent, similar crimes; and, clearly, our traditional counseling and processes were not effectively decreasing criminal activity with this population. We were unaware of the large numbers of seriously mentally ill defendants in our caseload.

We were fortunate to have the services of our Glendale City Court Special Projects Coordinator, Kyle Mickel. He previously had been a Maricopa County adult probation supervisor for serious mentally ill defendants. Kyle provided background information on other mental health courts nationally and within Arizona to the prosecutor, our identified public defender,3 a lead clerk (now a management assistant), and me. He also started a glossary for acronyms specifically associated with those receiving mental health services.

The first mental health courts started appearing in 1997 in the United States.4 These problem-solving courts arose out of a need to more effectively manage this population. In Arizona, the first misdemeanor mental health courts started at Tucson Municipal Court in 2001 and Tempe Municipal Court in 2004. These were both diversion programs resulting in the dismissal of the criminal charges. Because of the dismissal aspect, we needed education to persuade all our team members, and especially the prosecutor, that this court was appropriate for Glendale.

Like all good courts exploring new options, our team started by visiting other courts. Our first visit was to the Tempe Municipal Mental Health Court. The presiding judge, MaryAnne Majestic, presided over this docket and a public defender had been secured for free. The RBHA supplied a court liaison to the court. This person would contact all the case managers who had clients on the mental health court docket to facilitate the reports being distributed to the prosecutor, public defender, and court. The court liaison was also responsible for ensuring these case managers attended court. Before every session, the mental health court team would meet with the case manager to determine the individual contract (a judicial order) for the defendant. At this staffing, the RBHA also arranged for a peer support entity to appear to assist the team.5 The next process occurs in the courtroom with the team and the defendant. The judicial order is given to the defendant while allowing the defendant an opportunity to make a statement. At times, the judge would order the defendant to meet and participate in the peer support group in addition to other orders. Peer support offers fun activities like bowling, movies, and holiday parties; in addition, the peer support group will assist defendants in obtaining identification, nutrition, and hygiene and offers opportunities on how to interact with others in a social setting. The policy of Tempe’s court is if defendants are stable for a period of time, the prosecutor will dismiss the charges. Tempe’s Rule 11 examination budget had almost disappeared. While we were impressed with the results of their court, we still wanted to explore other courts’ programs.

Next, we visited Phoenix Municipal Court, our largest city court in the state. We were impressed with the ability of the Public Defenders Office6 to secure the services of a former employee of the RBHA to do on-the-spot screening of defendants anywhere in the courthouse. However, when observing the actual mental health court, we noticed many public defenders. In addition to those personnel costs, the case managers were not present at every court setting. We did not have the funds to employ the screener as well as the number of public defenders involved. Given these limitations, the Tempe Municipal Mental Health Court model was a more viable option for our Glendale Court.

The Tempe team and the RBHA kept encouraging our Glendale team to stop discussing options and just start a court based on our volume. The RBHA committed a court liaison to secure progress reports from case managers and ensure their attendance at court. Despite this commitment, the prosecutor was still not convinced this was the best way to serve the community. In addition, the lead clerk/management assistant was still unsure what was required of her; and I, as the judge, was not sure what I was supposed to do. We reviewed Tempe procedures to better prepare us for what should occur in the team staffing with the case managers. Our calendar was redesigned to free the public defender to represent defendants in this court. We assigned one courtroom for the staffing of these cases with the case managers and a second courtroom to hold court with the defendants. As presiding judge, I did not want to increase the pro temporare judge costs. Though I do not regularly preside in any courtroom, I accepted the responsibility of presiding over the mental health court. This court was created with no additional funding. With the above changes in place and utilizing Tempe’s model, we conducted our first mental health court in January 2013.

Obviously, we all learned a lot in a very short period of time. Early in this process, we discovered case managers’ proficiency in designing treatment plans was uneven. We would see a defendant identified in a report as homeless with no reference in the recommendations as to obtaining stable housing. The report would just contain the basic three things ordered of every defendant: maintain contact with the case manager, keep all appointments, and take medication. We needed specific treatment provisions such as one-on-one counseling weekly, substance counseling three times a week, and/or meeting with the case manager face to face weekly. This struggle with reports still continues.

One of the other issues was how to create the judicial order implementing the treatment plan. I wanted to record notes from the progress report prior to staffing but not have them display in the contract given to the defendant. Our pre-court staffing lasted about two hours covering approximately 30 defendants. If the report was thorough, meaning I did not have any questions for that case manager, staffing could occur in a shorter period of time. We initially created an Excel document that did not display comments when printed. Our court is fortunate to have an IT analyst, David Garretson, who was able to design an application to extract the defendant information from our case management system. This application has been a huge time saver. I was able to create the contracts with my scanned signature before staffing and open the application with my saved comments at staffing. This was particularly helpful if there were questions raised by the progress report. Once staffing was completed, we clicked Print and the application printed the necessary number of contracts. When the judge was in the courtroom, no entry was required on the contract unless a change occurred. This process allowed the judge to look directly at the defendant, a kind of personal contact frequently lost when presiding over large dockets.7

For our in-custody defendants, we observed we were holding people in custody until the jail stabilized them on their medications. After three or four weeks on their medications, they would be sufficiently lucid and stable to enter a guilty plea (after consulting with counsel) and receive credit for their time in custody. However, there was no connection between their jail stay and resources needed to remain stable once released into the community. At staffing in the biweekly mental health court, we started creating third-party releases to their case managers. The case manager would have a stable housing placement available for the defendant. A condition of the defendant’s release was to comply with the court order and the case manager’s directives. This action resulted in less jail time served by these defendants. Though our intention was to have them become stable in the community, we had another unintended benefit: The city’s prisoner maintenance budget decreased!

We trained prosecutors, public defenders, and judges to ask defendants if they were case managed. Because the RBHA gave us access to their database, we were able to determine quickly if a defendant has a serious mental illness diagnosis and what clinic was responsible for him or her. Today, others in the city, particularly our own Detention, call the management assistant for the Mental Health Court, Kathy Williams, or me to determine if someone recently booked into custody is in the database. This access allows us to work with advocates to contact victims to determine their position on next-day releases, as well as contacting case managers to arrange for third-party releases. Many times when Kathy brings me a file, all aspects of the release have already been accomplished and she just needs my signature to release the defendant. We all have learned a different world involving applications, petitions, urgent psychiatric centers, and psychiatric hospitals.

Continued training involved the police officers assigned to the court and our security guards. The most common reaction in dealing with a defendant suffering a psychotic episode at the courthouse was to arrest him or her for disturbing the peace or encourage the individual to leave. After our education and enlightenment, when any defendant is identified in our lobby or a courtroom as possibly being mentally ill, the first action, after making sure everyone is safe, is to verify if he or she is in Mercy Maricopa’s database with a mentally ill diagnosis. From that verification, we can secure a case manager to transport the defendant for appropriate care or have a crisis team dispatched. It is an amazing phenomenon to hear a defendant tell me: “I like your police officers. I come here because I feel safe. I do not know where to go.”

We have no probation services, but being able to empower the case managers is significant. Without the criminal case, the behavioral health client was able to decline services. However, with the court order requiring attendance at counseling, substance abuse sessions, or whatever was recommended, we are able to help case managers implement treatment plans. Our court order is the treatment plan created by the staffing team.

Successes were noted by the team. Our prosecutor and others on our team noticed the improvement in defendants’ adherence to the treatment plan as the result of being closely monitored and having to appear in court every two or four weeks. The prosecutors used this success with victims to encourage them to support the mental health diversion court. Defendants are more closely observed and monitored for compliance than if they were found guilty of an offense and sentenced to counseling. The frequent treatment plans in the judicial order are specifically created for each defendant. Many of these defendants are not appropriate for counseling in a group setting. Having the ability for them to receive individual counseling is invaluable. Though our goal for graduation is stability for six months, most defendants are in this court for 11 months. The additional time is necessary to have defendants maintain their stability.

Case managers and families inform us that, as the result of being in our mental health court, the defendants are the most stable they have ever been. Families ask if defendants can remain in mental health court forever. Defendants at graduation thank us for not giving up on them and advise others in the courtroom to listen to the judge. Even in domestic violence cases, our prosecutor reports the defendants’ families are happy the defendants are in our mental health court. They realize the court empowers the case manager and the treatment plan for the defendants. The victims want the defendants to receive the help required to enable them to become and remain stable. To date, we have had 200 defendants with 76 graduates. The long-term success rate of our program will be measured by the decrease in repeat offenders in our court.

We have received the support of our City Council, city management, the Police Department, the prosecutor, and members of the community for our program. They all have viewed the successes of this specialized court. As with any specialty court, it cannot operate without the support of all members of the team.

Not every defendant succeeds. Fortunately, we have many more successes than failures. Some defendants end up going the Rule 11 path, some disappear, and some reject the close monitoring required by the mental health court. Defendants commit new offenses. If the new offenses are in Glendale, we just add the case to the docket. If they are committed in Tempe, we determine which court should be the primary court for monitoring. All crimes committed in other cities do not have this kind of coordination. We had two defendants commit suicide and a couple more commit serious crimes. These failures are to be expected but are still difficult after getting to know a defendant in our mental health court.

In 2013, the American Friends Service Committee convinced the Arizona legislature to fund an evaluation process for mental health courts and to develop program standards in Arizona.8 The legislation required the Administrative Office of the Court (our Supreme Court’s Administrative Office) to report to the Arizona legislative and executive departments by December 2014 concerning the AOC’s findings and recommendations on mental health courts. The AOC contracted with the National Center for State Courts to help implement the legislation. The legislation required the AOC to provide standards to promote the efficiency, effectiveness, and accountability of mental health courts.

I was appointed by the chief justice of the Arizona Supreme Court to serve on the advisory drafting committee, a statewide multidisciplinary body of judicial branch representatives and system stakeholders. One of the most dramatic findings in these meetings was the difference between limited jurisdiction and general jurisdiction court processes. Limited jurisdiction courts, such as Glendale, operate front-end diversion mental health courts. Unlike felonies in our general jurisdiction Superior Court, many defendants do not have a criminal history record created by fingerprinting for the current offense. Additionally, there are no probation services in these limited jurisdiction city courts. The felony mental health model is post-conviction and very reliant on supervised probation officers.9

Arizona courts do not have a single case management system. Additionally, a significant amount of the data required cannot be inputted by a single entity into a single database. Multiple organizations such as the RBHA, case managers, courts, and others are necessary to satisfy the requirements. These issues present significant hurdles in meeting the standards.

After many meetings and lots of “wordsmithing,” the committee identified core standards for Arizona mental health courts. We were fortunate to have Dr. Nicole L. Waters of the National Center for State Courts, an expert in mental health court standards, assist in our drafting. Under the skillful leadership of Marcus Reinkensmeyer, court services director of the AOC and former court administrator for Maricopa County Superior Court, a report containing standards was crafted.

The report recognizes the importance of creating mental health courts:

  • Increasing public safety.
  • Improving outcomes for defendants with mental illnesses and reducing their rate of recidivism.
  • Diverting defendants with mental illnesses from incarceration.
  • Making the most effective use of limited resources in the criminal justice and behavioral health systems.
  • Establishing defendants’ access to treatment for mental health and substance abuse problems, and monitoring defendants’ engagement in those treatment programs.
  • Improving the quality of life for people with mental illnesses who are charged with crimes.10

The “must haves” for Arizona mental health courts were revised from previously identified best practices reports based on the needs and lack of certain resources in Arizona. The core requirements are:

Standard 1: The Mental Health Court Team. Team members must work collaboratively. Every member has a specific role that contributes to its effectiveness. Responsibilities of team members should be outlined in a memorandum of understanding. The team and its members must receive education and training to increase their effectiveness.

Standard 2: Referral, Eligibility, and Assessment. Team members must consider and assess predefined legal, clinical, competency, and risk criteria when determining a defendant’s eligibility for a mental health court. Some defendants enter a mental health court program prior to case adjudication; others enter a program after pronouncement of judgment and sentencing. The defendant’s participation in the program must be knowing and voluntary and should take into consideration the advice of defense counsel and the requirements of participation.

Standard 3: Program Structure. A participant progresses through phases of orientation, stabilization, reintegration, and maintenance. A participant successfully completes the program after meeting all of the mental health court requirements. Planning for a participant’s transition out of the mental health court program is a key element of a participant’s success.

Standard 4: Court Proceedings. Consistent contact and the quality of interactions between a judge and a participant are among the most influential factors in a defendant’s success in the program. The mental health court team meets before each court session, which is followed by a review hearing in the courtroom with the defendant present. A participant has an opportunity to state his or her perspective at a review hearing.

Standard 5: Treatment. The mental health court team prepares a written case plan for each participant, and the case plan is incorporated into a court order. The case plan is based on evidence-based assessments of the participant and the participant’s individual needs and issues. The case plan provides for quality and effective services from appropriately licensed clinicians and experienced professionals. The case plan details the participant’s responsibilities and provides advance notice of circumstances that might result in defendant’s termination from the program, and it is the basis for monitoring participant’s progress.

Standard 6: Case Plan Adjustments, Incentives, and Sanctions. The team develops policies and procedures. The judge should be consistent in applying incentives and sanctions, while also taking into account an individual participant’s circumstances. Incentives are more likely to produce better outcomes than sanctions. Jail sanctions should be certain, immediate, short in length, and used sparingly. Adjustment to treatment plans should precede sanctions or termination from the mental health court.

Standard 7: Confidentiality of Records. This requires that mental health court records be protected by legal consent requirements, and be disclosed only on a need-to-know basis to aid in case planning. The mental health court team develops a legal release of information form compatible with Health Insurance Portability and Accountability Act and with the confidentiality requirements of alcohol and drug abuse patient records under federal law (42 C.F.R. Part 2), and potential court participants can review the form with defense counsel. Record retention and destruction must follow standards promulgated by the Arizona Supreme Court and other governing authority.

Standard 8: Sustainability of Mental Health Courts. This is promoted by creating public awareness, formally and informally networking, providing feedback from all stakeholders, providing periodic reviews, monitoring court performance on common measures, and implementing changes to improve operations and outcomes. The mental health team should collect specified data to monitor the accountability, efficiency, and effectiveness of a mental health court.11

Arizona courts, like Glendale, will have to be diligent in order to comply with the standards. The standards require more documentation and data collection. However, they should help validate the effectiveness of mental health courts such as ours. All of us involved in mental health courts recognize a great improvement with this population in the criminal justice system. To answer the question posed in the title, are we motivated by positive budget impacts or passion? While we started the mental health court initiative for budgetary benefits, we continue this work because of an abiding passion. The court is making a difference in people’s lives. We have a duty to these defendants and our communities to continue to improve our system and keep people safe.

Endnotes

1. Ariz. R. Crim. Proc. 11.1 (2005) (emphasis added).

2. Magellan was the regional behavioral health authority for Maricopa County in 2012. It was replaced by Mercy Maricopa Integrated Care in 2014.

3. Glendale City Court public defenders are contract positions hired by the court and paid for from the court’s budget.

4. Nicole L. Waters et al., Nat’l Ctr. for State Courts, Mental Health Court Culture: Leaving Your Hat at the Door (Nov. 2009).

5. Peer support groups consist of current or former mentally ill individuals who have maintained stability for a period of time. The peers offer valuable insight and hope to people currently trying to obtain or maintain their psychiatric stability.

6. Phoenix has permanent public defender employees consisting of an executive director, an assistant director, and a few management staff. However, all of their public defenders are contract attorneys assigned to their roles by the office. Many contract public defenders hold more than one contract. For example, our Glendale contracted mental health public defender also holds a similar contract in Phoenix.

7. Dr. Tom R. Tyler indicates the public’s trust in legal authorities is enhanced when judges are “listening to and considering their views.” Tom R. Tyler, Procedural Justice and Courts, 44 J. Am. Judges Ass’n 26, 31 (2007–2008).

8. House Bill 2310 (Laws 2013, ch. 140).

9. Probation officers at the general jurisdiction level carry reduced, specialized mental health probation caseloads in some Arizona counties. These officers receive specialized behavioral health training. They assist mental health service providers in implementing and enforcing treatment plans.

10. Mental Health Advisory Comm., Ariz. Admin. Office of the Courts, Proposed Mental Health Court Standards 5 (2014).

11. Id. at 9–10.