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.


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.

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