May 12, 2015

Mental health courts — When research challenges policy and practice

Defendants participating in mental health courts have lower rates of recidivism and spend fewer days incarcerated than similar people whose cases are handled by traditional courts. But contrary to the assumptions underlying the development of mental health courts, recent research indicates that mental illness is not considered a risk factor for criminal conduct, and mental health treatment may not be as critical to reductions in recidivism as court planners had expected. 

Carol Fisler is the director of mental health court programs at the Center for Court Innovation, and supervised the planning and implementation of the first specialized court for offenders with mental illness in New York. Fisler addresses what the above means for the design and operation of mental health courts in her article “When Research Challenges Policy and Practice: Toward a New Understanding of Mental Health Courts,” in the spring issue of The Judges’ Journal, a quarterly publication of the American Bar Association Judicial Division.

By 2010, 300 mental health courts were operating in 40 states, testing the proposition that court-supervised, community-based treatment as an alternative to incarceration would lead to improved mental health outcomes and reduced criminal justice involvement. Jurisdictions were basing their decisions to open mental health courts, in part, on the success of drug courts.

According to Fisler, research is crucial to helping understand “what works” in bringing about desired goals:

  • For whom is the intervention effective?

  • Under what circumstances?

  • And if a complex and multi-layered intervention such as a mental health court generates desired results, which aspects of the intervention are responsible?

 Fisler maintains that the research to date does not support the hypothesized links from treatment engagement to better mental health to improved public safety that have driven mental health court design and operations.

“In my work with mental health court planning teams, I took care to point out that the mental health court logic model, which emphasized treatment as a means to improved mental health and, in turn, improved public safety, was based on assumptions that had not actually been verified by research,” Fisler said. “As a body of research began to develop, each published study showing positive outcomes for mental health court participants seemed to confirm the soundness of the logic model.

“So when I heard a presentation in late 2010 on the results of a multi-site MacArthur-funded study, which showed positive court outcomes but little or no connection between improvements in mental health and reductions in recidivism, I was dumbfounded. Something was working right, but what? As an advisor on problem-solving justice, I felt a responsibility to take a critical look at the work we had been doing, develop new hypotheses, and teach mental health court planners and practitioners what we have learned—and what new theories still need to be tested.” 

Fisler notes that some policy advisors recommend that mental health courts apply James Bonta and D.A. Andrews’ “risk-needs-responsivity” or “RNR” model. It focuses on risk principle—who to target; need principle—what to target; and responsivity principle—how to address criminogenic needs effectively. The RNR framework can then be integrated with behavioral health factors to design interventions that target people at moderate to high risk of reoffending, address factors associated with the likelihood of future crime, and respond to barriers to learning or behavior change that individuals present. Given that mental illness is not considered a risk factor for criminal conduct, in the RNR framework mental illness should be addressed as a responsivity factor—a reason why some people can’t change as easily as others.

The RNR framework suggests several new guidelines for mental health courts. But because the mental health courts studied to date had not adopted such guidelines, how can the RNR framework explain their positive results? Fisler suggests that procedural fairness may be the reason.  Frequent status hearings that give individuals a voice in the proceedings and interactions between judges and participants grounded in respect and dignity help participants internalize legal norms and improve their motivation to comply with judicial orders.  She goes on to add that mental health courts may also be fostering connections to civic society and positive relationships with others.

This approach is a far cry from the judges who ask at conferences, “What sanctions should I use to get the participants in my court to take their meds?”