May 01, 2015

Mental Health Courts: Development, Outcomes, and Future Challenges

By Donald M. Linhorst and P. Ann Dirks-Linhorst

It is well documented that large numbers of persons with mental illness are in the U.S. criminal justice system. For example, one study identified that 14.5 percent of males and 31 percent of females in jails were diagnosed with a serious mental illness.1 Another study, a national study of jails and state prisons, found that 23.9 percent of jail inmates and 15.4 percent of state prison inmates displayed psychotic symptoms within one year prior to the study.2 To put these numbers into perspective, at any given time, there are approximately three times more persons with serious mental illness in jails and prisons than in psychiatric hospitals.3 These figures do not include persons with serious mental illness on probation or parole. It is estimated that 16 percent of probationers4 and between 5 and 10 percent of parolees have a serious mental illness.5

The reasons for the high rate of persons with serious mental illness in the criminal justice system, often referred to as the criminalization of mental illness, are complex. An early explanation for this included the deinstitutionalization of mental health services, a lack of community-based mental health services, and changes in involuntary civil commitment laws.6 Deinstitutionalization sought to reduce the state psychiatric hospital population and develop community-based services for those persons who previously would have been hospitalized. The reduction in state psychiatric hospital beds did occur. For example, in 1955, there were 559,000 beds, or 339 beds per 100,000 population, while in 2000, there were 59,403 beds, or 22 beds per 100,000 population.7

Unfortunately, the number and type of mental health services were never developed to address the needs of people with serious mental illness in the community. In addition, two court cases in the 1970s restricted the use of involuntary civil commitment. In O’Connor v. Donaldson,8 the U.S. Supreme Court ruled that the state cannot involuntarily confine a nondangerous person, while in Lessard v. Schmidt,9 a federal district court ruled that persons undergoing civil commitment had due process procedural rights similar to those in the criminal justice system because of the loss of liberty. Some believe the effect of these changes was that persons with mental illness were being arrested for behaviors for which they previously would have been civilly committed.10 It is argued that as a result of the loss of psychiatric hospital beds, the lack of community-based services, and restrictions on involuntary civil commitment, persons with mental illness were essentially transferred from one institution, state hospitals, to another, jails and prisons, an event often referred as transinstitutionalization.11

There is a lack of evidence supporting this explanation of the criminalization of mental illness.12 Adding more hospital beds is unlikely to decrease the number of persons with serious mental illness in jails and prisons.13 Also, while increasing the availability of mental health services is important to addressing the criminalization of mental illness, it alone is likely not sufficient.14 Instead, it is now argued a more comprehensive approach is needed that includes access to mental health services and that addresses criminogenic factors that often lead to arrest and recidivism, such as substance abuse, homelessness, lack of education, and others.15 Focusing only on mental health treatment or only on criminogenic factors is unlikely to decrease the number of persons with serious mental illness in the criminal justice system.

Development of Mental Health Courts

One mechanism for addressing both mental health treatment and criminogenic factors is mental health courts. Mental health courts are modeled after drug courts, both of which are problem-solving courts that seek to reduce recidivism by addressing conditions believed to be associated with the criminal acts.16 The first mental health court appeared in 1997 and approximately 375 mental health courts currently exist in the United States.17 Basic components of mental health courts include a court docket specifically for persons with mental illness, voluntary participation by defendants, a team of mental health and criminal justice professionals that recommends treatment and supervision plans, access to mental health and social services needed by participants, and monitoring and use of sanctions and incentives to ensure adherence to court requirements.18 In addition to these components, the Council of State Governments identified 10 essential elements of mental health courts to guide their development and implementation,19 although enactment of all of them can be challenging for mental health courts.20 Other resources exist to assist local communities develop mental health courts, many available through the Council for State Governments Justice Center.21

Despite these guidelines, mental health courts have generally changed over time.22 Compared to the initial courts that developed in the late 1990s and early 2000s, mental health courts now are more likely to accept felony cases, including individual consideration of persons charged with violent offenses or having violent histories; use post-plea adjudication in part due to cases being referred to the mental health court much later after the offense; use jail as a sanction, particularly among courts that accept felony cases; and use mental health court personnel to supervise participants, as opposed to mental health service providers or criminal justice personnel such as probation officers.

The most recent national survey of mental health courts, which was published in 2006, identified mental health courts as having the following characteristics: (a) length of existence: 49 percent two years or less, 35 percent two to four years, and 17 percent more than four years; (b) type of crime accepted: 40 percent misdemeanor only, 49 percent misdemeanor or felony, and 10 percent felony only; (c) community supervision, with some jurisdictions using multiple types: 79 percent mental health treatment providers, 70 percent probation officers, 38 percent mental health court personnel, and 8 percent police, jail, or pretrial services; (d) use of jail as a sanction: 8 percent never, 33 percent less than 5 percent of cases, 39 percent between 5 percent and 20 percent of cases, 18 percent between 20 percent and 50 percent of cases, and 2 percent more than 50 percent of cases; and (e) frequency of judicial status hearings upon enrollment: 6 percent more than once a week, 41 percent once a week, 15 percent twice monthly, 35 percent monthly, 3 percent every two to three months.23 Some view this variability in mental health courts as being positive, as it allows local communities to adapt courts to local needs, resources, and politics.24

Regardless of the specific characteristics of mental health courts, judges play a critical role in their functioning. Judges typically lead the mental health court team, promoting collaboration between its members, and have important direct interaction with mental health court participants.25 To maximize the reduction of recidivism, judges display an interpersonal style with court participants that promotes dignity and respect and genuinely gives them a voice, hold both participants and service providers accountable, and are transparent in their decisions that are made through negotiation with court team members and participants.26 Judges also oversee the use of incentives and sanctions to promote participants’ success.27 Incentives can include clapping and verbal praise, gift certificates or other monetary awards, positive reports from judges and probation officers, less frequent court appearances, and dismissal of charges if the program is successfully completed. Sanctions can include more frequent court visits, community service, more frequent mental health or social service visits or services, lectures from judges, and being jailed.

Mental Health Court Outcomes

Despite their variation, mental health courts, overall, appear to have positive outcomes. Researchers who recently reviewed 18 published and unpublished outcome evaluations of mental health courts concluded that they were moderately effective in reducing recidivism.28 They also concluded that mental health courts have the potential to improve clinical outcomes and reduce mental health service costs, although these findings were tentative because of the limited number of studies that examine these outcomes. The following are two examples of studies of mental health courts that found a positive effect on recidivism. One study compared the rearrest rates one year after release from a municipal mental health court among three groups.29 Court participants who successfully completed the program had the lowest rearrest rate (14.5 percent), compared to defendants who were eligible to participate but chose not to (25.8 percent) and to court participants who were negatively terminated from the program (38 percent). A second study evaluated recidivism among participants of a mental health court that accepted both misdemeanor and felony cases.30 The researchers compared rearrests two years post-release from the mental health court among the same three categories of individuals as the previous study. They found that participants who successfully completed the mental health court program had the lowest two-year rearrest rate (24.6 percent), compared to defendants who were eligible to participate but chose not to (76.9 percent) and to court participants who were negatively terminated from the program (90.7 percent).

However, not every outcome evaluation of mental health has found positive results. One study compared the mean number of bookings, convictions, and days in jail for a 24-month period after admission to the mental health court that accepted both misdemeanor and felony cases between mental health court participants and defendants who could have been eligible for the program but who were not referred and received treatment as usual.31 Differences between the two groups were small and not statistically significant on all three measures. In a second study, researchers compared the rearrest rate one year after the initial court appearance to a mental health court that accepted misdemeanor cases between participants of the mental health court and a comparison group of defendants who could have been eligible for the program but who were not referred and received treatment as usual.32 Once again, differences were small and not statistically significant.

Future Challenges Facing Mental Health Courts

Despite these examples of differences in findings, most mental health courts have increased public safety and have had a positive impact on the participants. However, mental health courts face substantial challenges to reducing the number of persons with mental illness in the criminal justice system nationally. First and foremost is how to create enough mental health courts to make a meaningful reduction in the number of persons with serious mental illness in the criminal justice system. There simply are not enough mental health courts to help most persons with serious mental illness who come in contact with the criminal justice system. As previously stated, approximately 375 mental health courts operate in the United States.33 This is far fewer than the more than 2,900 drug courts that currently exist.34 Even this seemingly high number of drug courts covers only about half of the counties in the United States.35

As one example of the disparity in the number of courts, 126 drug courts exist in Missouri, but only six mental health courts operate in that state.36 In addition, some of the existing mental health courts may not be sustainable long term. A national survey of mental health courts published in 2006 identified six mental health courts that had already closed because of funding issues, and found that 8 percent of courts did not expect to be in operation in the next three years and another 6 percent were not sure.37 This same survey reported that 40 percent of mental health courts worked only with defendants with misdemeanor charges, thus excluding a large number of persons with serious mental illness charged with felonies.

At least two reasons exist for the limited number and scope of mental health courts. First, there is not adequate or consistent funding for mental health courts. While both mental health courts and drug courts operate using a variety of funding sources, there has been far less federal funding for mental health courts than drug courts.38 Typical funding sources for mental health courts include competitive federal start-up grants, county government, state government, and private foundations, or some combination of these or other sources.39 However, long-term funding from these sources is not available in most jurisdictions. Second, judges and prosecuting attorneys in some jurisdictions still do not have the political will or believe enough in the concept of mental health courts to support them.40 For example, in a midwestern county of 1 million people, a task force was assembled in 2001 to create a mental health court to serve that county.41 It started with a municipal mental health court, with the goal of expanding it to selected state felony crimes, but over 14 years later it has never materialized.

A second challenge for mental health courts is how to effectively engage eligible defendants referred to the court to participate and to successfully complete the program. The two outcome studies previously described indicate that participants who successfully complete the mental health court program have much lower post-court rearrest rates than those the courts have negatively terminated and those who are eligible but choose not to participate.42 To make informed decisions about whether or not to participate, defendants referred to mental health courts need information on the conditions of participation to which they will be held; the likely length of supervision; the potential effects of a criminal conviction on employment, housing, and other areas of their lives should they choose not to participate and are convicted; and the outcome if they successfully complete court supervision.43 Mental health courts can also provide incentives and disincentives to promote successful completion of supervision for defendants who choose to participate as previously discussed.44

Two studies of mental health court completion provide additional direction in promoting successful program completion.45 Two factors that decrease the odds of successful program completion were common to both studies. One arises where the defendant belongs to a racial minority. The reasons why race may affect successful program completion are complex.46 This factor does emphasize, though, the importance of mental health court staff being culturally competent, as well as participants having access to service providers who are racial minorities or who at least are culturally competent. The other common factor is being arrested for a new crime during supervision. It is important to note, however, that new arrests do not automatically mean negative termination. One study found that 21.1 percent of mental health court participants were arrested during supervision, of whom 33.7 percent were still able to successfully complete the program,47 while another study reported that 23.2 percent of mental health court participants were arrested during supervision, of whom 51.1 percent successfully completed the program.48 Courts can address the arrest as part of the treatment process, although this is less likely to happen with new violent felony arrests.49 In addition, mental health courts are more likely to continue to work with participants if the rearrest occurs earlier in the supervision process, as it is acknowledged that it may take some participants time to develop positive and lawful behaviors.50

A third challenge for mental health courts is how to ensure that participants have access to the mental health and support services they need to be successful. Mental health court participants require a range of services, which may include psychotropic medication, substance abuse treatment, counseling, case management, housing, and employment assistance.51 As a result of budget cuts at the federal and state levels over the last three decades, many persons with serious mental illness do not have access to mental health services. The Affordable Care Act is unlikely to significantly change this, as about half of the states have chosen not to participate in Medicaid expansion.52 As a result, many mental health courts will have to take an active role in working with community mental health and support service providers to make available at least a minimal level of services to court participants.53

An example from one mental health court illustrates this challenge along with ways to access at least minimal services for court participants.54 Over the first 12 years of the court, 17 percent of the participants supervised by the court did not have public or private health insurance. The mental health court has taken several steps over the years to provide access to services for this uninsured group. First, it included service providers in the development of the court, and the largest provider of mental health services has been willing to accept many (but not all) of the uninsured participants living in its catchment area. Next, the court has secured a limited amount of federal or private grant funding in collaboration with service providers to pay for services. In addition, the health department in the county in which the court is located is now giving priority to uninsured court participants to receive mental health services it makes available through private providers, although it applies only to county residents, of which approximately 20 percent of court participants are not. As a last option, the mental health court has recruited several psychiatrists to provide pro bono services, particularly prescriptions for psychotropic medication, although maintaining availability of participating psychiatrists has been difficult. It should be emphasized that none of the options, including health insurance, provides the range of mental health and support services needed by court participants, although Medicaid comes the closest, which 41 percent of participants from this court receive.

A fourth challenge is how to effectively monitor mental health court participants under court supervision. Effective monitoring is critical to ensuring public safety, verifying participants are meeting court conditions, and obtaining the information needed to modify individual court plans as may be appropriate. Common information needs to include whether participants are taking psychotropic medication as prescribed, whether any new arrests have occurred, whether they are abstaining from alcohol or drug use, and whether they are meeting other court conditions.55 Regardless of who provides supervision, whether it be probation officers, mental health court staff, treatment providers, or some combination of them, timely and accurate information is needed.

Supervising offenders with serious mental illness often requires nontraditional means to be effective. A study that compared supervision of probationers with serious mental illness by regular probation officers versus probation officers with special training who had caseloads limited to probationers with mental illness found that specialty probation officers met with the probationers more often, were part of the probationers’ treatment team, more effectively used problem-solving approaches, and were less likely to use punitive sanctions.56 Guidelines for supervising offenders with mental illness exist, and include developing trustful and knowledgeable relationships with supervisees, balancing public safety with treatment needs, involving multiple parties in the development of court conditions to be monitored, gathering monitoring data from multiple sources, incorporating risk assessment instruments into decision making, individually addressing violations of conditions, and focusing particular attention on substance abuse.57

A final challenge for mental health courts is how to develop an effective system to evaluate both court processes and outcomes. Few mental health courts have incorporated ongoing program evaluation into their operation.58 However, program evaluation is critical to improving and justifying the existence of individual courts and for developing a national body of knowledge about mental health courts to be able to better determine “what works, for whom, under what circumstances.”59

Guidelines exist for what mental health court process and outcome data to collect and how to collect them.60 These guidelines identify four types of data that mental health courts should collect routinely on each person referred to the court. One data type is participant information to determine the number of persons served by the court and their characteristics. Some of the questions addressed by these data include characteristics of eligible defendants who chose and who chose not to participate and reasons for participation or nonparticipation; length of time in the court; reasons for termination; and number of persons who were referred, were screened, were accepted, participated, and were terminated within a given period of time. A second data type is service information, which addresses what type of services court participants received, how frequently they received them, and for what duration. Service categories include mental health services (e.g., medication appointments, psychosocial rehabilitation), substance abuse treatment, and support services (e.g., housing, education, enrollment in medical insurance). A third data type is criminal justice outcomes. Some of the questions addressed by these data include number and type of charge for any new arrests both during court supervision and after program completion and the number of days in jail both for new crimes and for nonadherence to court conditions. A fourth data type is mental health court outcomes, which address various aspects of participants’ mental health symptoms and level of functioning. Examples include number of days hospitalized, changes in psychiatric symptoms, number of days homeless, number of days employed or in school, compliance with psychiatric medication, evidence of substance abuse, and level of satisfaction with services.

Conclusion

Challenges exist to the sustainability of existing mental health courts and to the expansion of courts to reach more persons with serious mental illness who come into contact with the criminal justice system. It is increasingly difficult to secure grants, state and local funding, and private resources for mental health treatment services and for operating costs for mental health courts themselves, including supervision of participants. It often takes a high-profile tragedy to focus needed attention on the lack of services for persons with serious mental illness. However, committed stakeholders, along with guidance obtained by reviewing existing mental health court strategies, can result in successful courts, which can lead to decreased recidivism and improved clinical outcomes for this vulnerable population.

Endnotes

1. Henry J. Steadman et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60 Psychiatric Servs. 761 (2009).

2. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates (U.S. Dep’t of Justice, Bureau of Justice Statistics 2006).

3. E. Fuller Torrey et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States (Treatment Advocacy Ctr. & Nat’l Sheriffs’ Ass’n 2010).

4. Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers (U.S. Dep’t of Justice, Bureau of Justice Statistics 1999).

5. Arthur J. Lurigio, Effective Services for Parolees with Mental Illness, 47 Crime & Delinquency 446 (2001).

6. William H. Fisher, Eric Silver & Nancy Wolff, Beyond Criminalization: Toward a Criminologically Informed Framework for Mental Health Policy and Services Research, 33 Admin. & Pol’y in Mental Health 544 (2006); Daniel Ringhoff, Lisa Rapp & John Robst, The Criminalization Hypothesis: Practice and Policy Implications for Persons with Serious Mental Illness in the Criminal Justice System, 8 Best Practices in Mental Health 1 (2012).

7. H. Richard Lamb & Linda E. Weinberger, The Shift of Psychiatric Inpatient Care from Hospitals to Jails and Prisons, 33 J. Am. Acad. Psychiatry & L. 529 (2005).

8. 422 U.S. 563 (1975).

9. 349 F. Supp. 1078 (E. D. Wis. 1972).

10. Fisher et al., supra note 6.

11. Ralph Slovenko, The Transinstitutionalization of the Mentally Ill, 29 Ohio N.U. L. Rev. 641 (2003).

12. Fisher et al., supra note 6; Ringhoff et al., supra note 6.

13. Seth J. Prim, Does Transinstitutionalization Explain the Overrepresentation of People with Serious Mental Illnesses in the Criminal Justice System?, 47 Cmty. Mental Health J. 716 (2011).

14. Fisher et al., supra note 6; Ringhoff et al., supra note 6.

15. Merrill Rotter & W. Amory Carr, Targeting Criminal Recidivism in Mentally Ill Offenders: Structured Clinical Approaches, 47 Cmty. Mental Health J. 723 (2011); Fisher et al., supra note 6; Ringhoff et al., supra note 6; Prim, supra note 13.

16. Sabrina W. Tyuse & Donald M. Linhorst, Drug Courts and Mental Health Courts: Implications for Social Work, 30 Health & Soc. Work 233 (2005).

17. How Many Problem-Solving Courts Are There?, Nat’l Drug Court Res. Ctr., http://www.ndcrc.org/content/how-many-problem-solving-courts-are-there.

18. Tyuse & Linhorst, supra note 16.

19. Michael Thompson, Fred Osher & Denise Tomasini-Joshi, Improving Responses to People with Mental Illness: The Essential Elements of a Mental Health Court (Council of State Gov’ts Justice Ctr. 2007).

20. Donald M. Linhorst et al., Implementing the Essential Elements of a Mental Health Court: The Experiences of a Large Multijurisdictional Suburban County, 37 J. Behav. Health Servs. & Res. 427 (2009).

21. Publications on Mental Health Courts, Council of State Gov’ts Justice Ctr., http://csgjusticecenter.org/publications-on-mental-health-courts.

22. Allison D. Redlich et al., The Second Generation of Mental Health Courts, 11 Psychol. Pub. Pol’y & L. 527 (2005).

23. Allison D. Redlich et al., Patterns of Practice in Mental Health Courts: A National Survey, 30 Law & Hum. Behav. 347 (2006) [hereinafter Redlich et al., Patterns of Practice].

24. Steven K. Erickson, Amy Campbell & J. Steve Lamberti, Variations in Mental Health Courts: Challenges, Opportunities, and a Call for Caution, 42 Cmty. Mental Health J. 335 (2006).

25. Council of State Gov’ts, A Guide to Mental Health Court Design and Implementation (2005).

26. Heathcote W. Wales, Virginia Aldigé Hiday & Bradley Ray, Procedural Justice and Mental Health Court Judge’s Role in Reducing Recidivism, 33 Int’l J.L. & Psychiatry 265 (2010).

27. Lisa Callahan, Henry J. Steadman, Sheila Tillman & Roumen Vesselinov, A Multi-Site Study of the Use of Sanctions and Incentives in Mental Health Courts, 37 Law & Hum. Behav. 1 (2013).

28. Christine M. Sarteschi, Michael G. Vaughn & Kevin Kim, Assessing the Effectiveness of Mental Health Courts: A Quantitative Review, 39 J. Crim. Justice 12 (2011).

29. P. Ann Dirks-Linhorst & Donald M. Linhorst, Recidivism Outcomes for Suburban Mental Health Court Defendants, 37 Am. J. Crim. Justice 76 (2012).

30. Padraic J. Burns, Virginia Aldigé Hiday & Bradley Ray, Effectiveness 2 Years Postexit of a Recently Established Mental Health Court, 57 Am. Behav. Scientist 189 (2013).

31. Merith Cosden, Jeffrey Ellens, Jeffrey Schnell & Yasmeen Yamini-Diouf, Efficacy of a Mental Health Treatment Court with Assertive Community Treatment, 23 Behav. Sci. & L. 199 (2005).

32. Annette Christy et al., Evaluating the Efficiency and Community Safety Goals of the Broward County Mental Health Court, 23 Behav. Sci. & L. 227 (2005).

33. How Many Problem-Solving Courts Are There?, supra note 17.

34. How Many Drug Courts Are There?, Nat’l Drug Court Res. Ctr., http://www.ndcrc.org/content/how-many-drug-courts-are-there.

35. Office of Nat’l Drug Control Pol’y, Fact Sheet, http://www.whitehouse.gov/sites/default/files/ondcp/Fact_Sheets/drug_courts_fact_sheet_5-31-11.pdf.

36. Find a Drug Court, Nat’l Drug Court Res. Ctr., http://www.ndcrc.org/content/find-drug-court.

37. Redlich et al., Patterns of Practice, supra note 23.

38. Cary Heck & Aaron Roussell, State Administration of Drug Courts: Exploring Issues of Authority, Funding, and Legitimacy, 18 Crim. Justice Pol’y Rev. 418 (2007); Council of State Gov’ts, supra note 25.

39. Council of State Gov’ts, supra note 25.

40. Tyuse & Linhorst, supra note 16.

41. Linhorst et al., supra note 20.

42. Dirks-Linhorst & Linhorst, supra note 29; Burns et al., supra note 30.

43. Thompson et al., supra note 19.

44. Callahan et al., supra note 27.

45. P. Ann Dirks-Linhorst, David Kondrat, Donald M. Linhorst, & Nicole Morani, Factors Associated with Mental Health Court Nonparticipation and Negative Termination, 30 Justice Q. 681 (2013); Virginia Aldigé Hiday, Bradley Ray & Heathcote W. Wales, Predictors of Mental Health Court Graduation, 20 Psychol. Pub. Pol’y & L. 191 (2014).

46. Dirks-Linhorst et al., supra note 45.

47. Hiday et al., supra note 45.

48. Donald M. Linhorst, David Kondra, & P. Ann Dirks-Linhorst, Rearrests During Mental Health Court Supervision: Predicting Rearrest and Its Association with Final Court Disposition and Post-Court Rearrests (under review 2014).

49. Dale E. McNiel & Renee L. Binder, Stakeholder Views of a Mental Health Court, 33 Int’l J.L. & Psychiatry 227 (2010).

50. Hiday et al., supra note 45.

51. Thompson et al., supra note 19.

52. Joel E. Miller, Dashed Hopes, Broken Promises, More Despair: How the Lack of State Participation in the Medicaid Expansion Will Punish Americans with Mental Illness (Am. Mental Health Counselors Ass’n 2014).

53. Thompson et al., supra note 19.

54. Linhorst et al., supra note 20.

55. Thompson et al., supra note 19.

56. Jennifer Eno Louden, Jennifer L. Skeem, Jacqueline Camp & Elizabeth Christensen, Supervising Probations with Mental Disorder: How Do Agencies Respond to Violations, 35 Crim. Justice & Behav. 832 (2008).

57. P. Ann Dirks-Linhorst & Donald M. Linhorst, Monitoring Offenders with Mental Illness in the Community: Guidelines for Practice, 8 Best Practices in Mental Health 47 (2012).

58. Henry J. Steadman, A Guide to Collecting Mental Health Court Outcome Data (Council of State Gov’ts 2005).

59. Id. at 3.

60. Id.