May 01, 2015

Mental Health Diversion for Criminal Defendants: One Judge’s Experience

By Judge Ann O’Regan Keary

Several recent studies have reported the significant percentage of seriously mentally ill persons incarcerated in our nation’s prisons and jails.1 As courts across the country face an increasing presence of mentally ill individuals charged with criminal offenses, many of them misdemeanors or nonviolent offenses, and our institutions face the challenge of meeting the needs of these individuals, the role of judicial officers is evolving in significant ways through alternative courts developed to address this population.

No longer can judges limit their judicial functions to performing the traditional, classical judicial duties of presiding over criminal trials and fact-finding proceedings to address and process criminal cases brought before them. Increasingly, they must become involved with the aptly named “problem-solving” courts and address, in a more outcome-oriented fashion, the problems of mentally ill criminal offenders. The good news is that there are, at this point in time, many well-established models for such judicial functioning with well-documented positive outcomes. For some of us, there may be even better news regarding how satisfying the performance of this nontraditional function can be, as a new direction in one’s judicial career.

Background

The formation of our own mental health diversion program in the District of Columbia stemmed from our court’s earlier experience in a somewhat similar problem-solving court—the East of the River Community Court, which was begun in 2003. In this court, which handled defendants arrested in the two police districts on the eastern side of D.C., we offered diversion, i.e., a predisposition dismissal of the criminal cases, to those misdemeanor defendants who performed 32 hours of community service and stayed arrest-free for a four-month period. While highly successful, it quickly became clear that such a “restorative justice” model was not really suitable for many of the defendants who came before our court, who suffered from mental illness and were too severely impaired to successfully meet community service obligations. Instead, we began, with the concurrence of the U.S. Attorney’s Office and our federally funded Pretrial Services Agency, to target merely linking these individuals with mental health providers and requiring their engagement in treatment as a basis for dismissal of their case. The results were satisfying to all our stakeholders, and we soon decided this model should serve as the basis of a fully developed mental health diversion program open to all misdemeanor defendants citywide.

By 2007, we brought to the table all the necessary components to construct our diversion court—the prosecutor’s office—U.S. Attorney’s Office for the District of Columbia, which has jurisdiction over local as well as federal criminal cases in the District of Columbia; the District of Columbia’s Department of Mental Health (recently renamed Department of Behavioral Health); and the Pretrial Services Agency (PSA), which supervises defendants on pretrial release in our criminal cases. With the approval of our chief judge, we launched a one-year pilot project at the end of 2007, utilizing as our first presiding judge a magistrate judge with an extensive background in mental health issues because she also served in our family court handling involuntary civil commitment cases.

In that first year, I made the prediction that we would have no more than about 50 cases referred, but, to my surprise, the number of defendants certified to our calendar greatly exceeded that expectation. Our mental health diversion court was embraced enthusiastically by the defense bar—an important contributor to its success—as it afforded defendants an opportunity for improved access to mental health services and, usually, a resulting improvement in their health and life adjustment. Perhaps more significant from the defense perspective, success in mental health diversion guaranteed a dismissal of the case after only a few months of court supervision. A few months after the program had launched, I sat in one day on the diversion court to observe how things were proceeding. After watching several hearings, I approached a veteran defense counsel whose client had just had his hearing to ask his opinion of the program. He was quick to respond, “Oh, this is the best thing that the court has done in years!” I knew then we were onto something very promising. But little did I know that by late 2014 we would have had more than 1,150 successful graduates of the program.

At the end of a successful first year, the program continued on as a regular court calendar within our court’s 26-judge Criminal Division, serving an ever-expanding group of defendants certified from our six regular misdemeanor calendars. Within three years of its inception, all agreed to expand and include nonviolent felony cases as well, though for felony cases it was agreed that a plea of guilty would be required and then, after a four-month period of supervision and continuing mental health and often substance abuse treatment, the plea would be reduced to a misdemeanor charge, and the participant would receive a probationary sentence. While this outcome was not quite as desirable as the outright dismissal in the misdemeanor cases, it was still an attractive alternative to a potentially lengthy prison sentence if convicted of a felony charge.

Midway through the first year of our mental health court program, our undertaking was greatly aided by the District of Columbia’s Department of Mental Health’s establishment of a free-standing, fully staffed mental health clinic in our court building. The clinic, staffed with a psychiatrist and social workers/case managers, was available for “urgent care” treatment of any participants referred from our mental health diversion court (as well as from other criminal judges’ calendars). While many courts across the nation (including our own) had on-site forensic mental health evaluation services to perform competency-to-stand-trial screenings and assessments, this clinic provided actual treatment staff, who could engage defendants at the courthouse—the very setting where they were required to appear for court hearings. This was a particular asset to our many homeless individuals in facilitating their getting into treatment, and was also an excellent example of how court leadership on an issue can encourage other stakeholders to pursue creative and progressive improvements in their own service delivery.

The Judicial Role in Mental Health Community Court: The Three C’s

The operation of our mental health diversion court by definition involves holding status hearings and diversion review or supervision hearings, rather than the trials and other evidentiary proceedings of the traditional criminal court. In the typical criminal trial courtroom, the witness box is occupied by witnesses called to give testimony for the fact-finder—the judge or jury—to determine guilt or innocence. In contrast, our mental health courtroom’s witness box serves as the on-site office for the court’s PSA representative, who sits by the judge, providing her with up-to-the-minute information from the defendants’ case managers about each individual’s engagement, and progress, in treatment and collaborating on how to assist the participant in getting necessary treatment.

The judge’s role, as explained to the individual at her admission hearing, is not to determine whether a defendant is guilty or innocent, or what sentence should be imposed upon conviction. Instead, the judge’s role involves reviewing defendants’ progress at each hearing, acting as a coach, encouraging the defendants, and applauding their efforts, as well as addressing their failures when necessary, and holding them accountable for both.2 The judge is required, daily, to supervise the entry and implementation of diversion agreements, which defendants earn by virtue of demonstrating engagement in services and stability in treatment in the community. Further, once placed on an agreement, each defendant’s status and progress are reviewed by the judge, usually on a monthly basis. It was not unusual to have a hearing begin with a defendant’s apologetic admission that he or she had “slipped up” (and relapsed into drug use) since the last hearing, which would lead to a frank discussion of the need for drug treatment, or improved mental health engagement. The judge oversees the progress of each defendant in the diversion program until completion of the diversion agreement, which is recognized in a formal, individualized, graduation ceremony.

At each graduation, the judge descends from the bench to congratulate the participant and reward the successful defendant with a certificate and tokens of recognition, to the applause and ovation of others in the courtroom. The graduation day was a thrill for defendants and for the judge as well because it was often a time for defendants to express their own views on what the program had meant to them. One participant, an older female who had completed a residential drug treatment program and obtained comprehensive mental health services commented, in response to my question about how she felt about what she had accomplished said, “I never thought I could feel this good!” In another case, a man who had been homeless and living in a small tent he had set up behind a commercial strip of stores, despite the winter weather, appeared at his graduation with his well-dressed brother; although his family had previously severed ties with him due to his untreated psychotic symptoms, the defendant’s brother was now willing to help him obtain housing, as the defendant was finally receiving the mental health treatment he needed to function as a valued family member again. Whatever the individual participant’s circumstances, most defendants were extremely grateful for the opportunity for services, as well as for the excellent outcome of dismissal (or reduction of charges, in the case of a felony).

Clearly, the very nature of the types of court proceedings in such an alternative program imposes a different role on the judge. Perhaps more important than the difference in the nature of the hearings themselves is the difference in the nature of the interaction between the participant and the judge that occurs in such a court setting. In our mental health court, it is the judge who is directly communicating with the mentally ill participants, inquiring about their engagement in services and whether they are satisfied with assistance they are receiving from their provider of service. In collaboration with the PSA representative, the judge often is required to strategize how to help some of the more impaired participants, or those who are treatment-resistant, to succeed. While in other criminal courts the judge traditionally speaks almost exclusively to the attorneys, here each court hearing involves direct communication by the judge with the individual participant—something that the individual defendants, and some attorneys unfamiliar with the calendar, often found surprising.

One day, as I inquired of a defendant how he felt about a residential substance abuse treatment program he had just completed, I was surprised to see the defense attorney reach out and grab his client’s arm and whisper to him that he should keep quiet and let the counsel handle the court’s inquiry. I quickly corrected the counsel, explaining that here, in our court, the defendants and I would be talking directly about their progress and their compliance, or lack thereof, with the treatment goals in the diversion program. This coaching, cajoling, and congratulating—our “three C’s”—became the judicial approach that defense counsel, and participants, came to expect in our court, and that set a decidedly different tone from the judicial/participant interaction in the typical criminal courtroom.

In addition to the direct collaboration from the PSA case manager in the courtroom, the judge in our mental health court is aided by a clinical staff member employed by the court itself to facilitate the operation and functioning of the court. This coordinator, with her clinical expertise and familiarity with services in our public system, serves as both clinical advisor to the court and as liaison to the District’s public mental health delivery system. Our Mental Health Community Court (MHCC) coordinator greatly enhanced the court’s capacity to solve problems, for instance, in identifying appropriate levels of service and helping remove barriers to the delivery of services for our most challenged participants. She was a major help to the individual, who may have received suboptimal follow-through from a public provider and needed assistance in dealing with the bureaucracy that often envelops the delivery of health care in both our public and private systems of care. But perhaps even more importantly, the MHCC coordinator played a critical role in assisting the judge in handling hearings, given her professional background and direct experience with dealing with, and recognizing, psychiatric symptomatology. She also had the responsibility, after each participant’s admission hearing, of meeting with the participant, echoing the judge’s welcome, answering questions, and reviewing the program requirements, to better ensure successful compliance with the necessary prerequisites to qualify for entry into the four-month diversion agreements that would lead to dismissal of the criminal charges.

A fairly common scene in our court involved a bench conference with both counsel, the PSA representative, and our clinical social worker, all collaborating on how to assist the individual participant who had not yet successfully engaged with mental health treatment. At the end of our bench conference, the judge would ultimately discuss with the participant what our new suggested plan would be and what all of us expected him or her to do to follow through and get the needed services. This coaching often involved demanding more extensive services from the treatment provider, including attendance with their client at the court hearing. Thus, in a sense, the court can hold not just the participant him- or herself accountable for failing to follow through with services, but also the service provider, if their failures or gaps in services were hampering a participant’s success in our court diversion program.

Improved Outcomes: For the Participant and for the Public

When we began our program, we knew it was the right thing to do, not just for the huge number of marginally functional defendants on our criminal calendars, but also for the welfare of our community itself. Indeed, many studies had already shown that “problem-solving” courts had a positive impact on public safety in terms of reduced recidivism.3 In our own court’s experience, we were able to see the same positive impact on public safety from an examination of rearrest data. Indeed, in a post-exit study comparing several hundred misdemeanor participants in our court between 2007 and 2009, with a control group of comparable criminal defendants in the traditional criminal calendars, researchers found that participants in the mental health court were “significantly less likely to be arrested in the follow-up year” than others not in mental health court.4 Specifically, they found that our participants had a 27.5 percent rearrest rate, compared to a 37.3 percent rearrest rate for other defendants. Further, the study concluded that participants who successfully completed our program and graduated were 51 percent less likely than their comparison group members to be rearrested.5 The fact that those defendants, who not only participated in MHCC but also actually graduated, had such a reduced recidivism rate was striking. At nine months post-exit, less than 12 percent of MHCC graduates had been rearrested, compared to 24.2 percent of those in the control group who never participated in mental health court. While this first rearrest study is just one evaluation report, and there are other longer-term studies still to be performed, the recidivism statistics are quite promising, particularly as almost three-fifths of those admitted were able to graduate.6

Moreover, in another, less concrete measure of positive impacts on the community and public safety, procedural justice theorists have noted that when participants in mental health courts feel they are given voice and validation by voluntarily participating in such an alternative diversion program, their level of satisfaction with the procedural justice afforded them will increase the likelihood of future compliance with the law and with societal norms.7 Certainly this prospect itself supports and reflects a positive target benefit to our community.8

Message to Judges

While many judges may be reluctant to preside over a mental health court assignment, my own view is that many who may be reticent could be excellent judges in such a setting and would find it enormously satisfying. In my own career, I took great satisfaction from the intellectual challenge and important legal issues dealt with during my assignment to the homicide and violent crime calendars, and some of the esoteric legal issues dealt with in our civil calendars; however, my experience as a mental health judge was quite special and most unique. In this calendar, there is a concrete opportunity to pursue alternatives to incarceration for seriously mentally ill individuals, while providing services and supervision that preserve public safety. While my own prior professional experience included working as counsel to our public mental health delivery system, and was certainly helpful in terms of providing me some background familiarity with mental health issues and our city’s services, it was not only that background that prepared me for the assignment, or made this a fulfilling and rewarding one. Instead, it was the joy of helping some of our most vulnerable citizens obtain the services necessary to improve their lives and, at the same time, public safety. Witnessing individuals reclaim their lives, over a period of several hearings, by beginning mental health treatment to ameliorate their psychosis and, often also, by obtaining necessary substance abuse treatment and reaching sobriety, was nothing short of inspiring.

Further, working collaboratively with the mental health professionals and case managers involved in the cases enables the judge to overcome the frequently frustrating bureaucratic problems that sometimes intrude on our handling of cases. This collaborative functioning also dramatically reduces the isolation judges may feel in the performance of their judicial functions. Most appealing of all, however, is the daily pleasure of taking on each case with the dual goal of immediately helping and encouraging the individual participants to achieve their short-term goals of improving their lives and usually those of their family, while at the same time achieving a long-term better outcome for public safety. For a public servant, it doesn’t get much better than that!

Endnotes

1. In jail settings alone, serious mental illness has been documented in 31 percent of women and 14.5 percent of all men, with the rate of serious mental illness being estimated between two and six times higher among incarcerated persons than in the general population, according to a Vera Institute Research Summary published in February 2013. See also Henry J. Steadman et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60 Psychiatric Servs. 761 (2009).

2. While our particular court does not utilize sanctions (such as short jail stays), if a defendant fails, on a continuing basis, to become engaged in mental health services or fails to stay free of illegal drugs, he or she may be sent back to the traditional criminal calendar to have his or her case set for trial.

3. See Marlee E. Moore & Virginia Aldigé Hiday, Mental Health Court Outcomes: A Comparison of Rearrest and Rearrest Severity Between Mental Health Court and Traditional Court Participants, 30 L. & Hum. Behav. 659 (2006); Dale E. McNiel & Reneé L. Binder, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence, 164 Am. J. Psychiatry 1395 (2007).

4. Virginia Aldigé Hiday, Heathcote W. Wales & Bradley Ray, Effectiveness of a Short-Term Mental Health Court: Criminal Recidivism One Year Postexit, 37 L. & Hum. Behav. 401, 404 (2013).

5. Id. at 404–06.

6. In a recent article about our mental health court, it was noted that 58.3 percent of those who joined the program in its first two years of operation graduated. Virginia Aldigé Hiday, Bradley Ray & Heathcote W. Wales, Predictors of Mental Health Court Graduation, 20 Psychol., Pub. Pol’y & L. 191, 193 (2014). Further, in our own internal court review of the program’s statistics, we have found that well over 70 percent of those participants who actually are able to enter a diversion agreement succeed in graduating.

7. Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 7 Ohio State J. Crim. L. 307 (2009); Tom T. Tyler, Why People Obey the Law (2006).

8. “Persons insecure about their status, or from stigmatized groups are especially likely to respond positively to polite and respectful treatment. In settings comparable to those of Mental Health Courts, perceptions of procedural justice have been associated with reductions in recidivism for participants in drug courts, and with positive effects on judicial and police interactions with persons with serious mental illness.” Heathcote W. Wales, Virginia Aldigé Hiday & Bradley Ray, Procedural Justice and the Mental Health Court Judge’s Role in Reducing Recidivism, 33 Int’l J. L. & Psychiatry 265, 266 (2010).