Study Questions Our Assumptions About Mental Health Courts. They “Work” But Why?

(11-15-16) I am a strong advocate for mental health courts.

Why should someone such as my son, who broke into a stranger’s unoccupied house to take a bubble bath while he was psychotic, have to go through the regular criminal justice system when it is obvious that it was his mental illness and not some criminality that prompted him to break the law? Getting him into meaningful, court-supervised treatment would have made more sense than incarcerating him, especially because we know that individuals with mental disorders are more likely to have more charges pressed against them when they are in jail.

In a specialized mental health court, court-affiliated mental health professionals would have assessed him and developed a treatment plan and the judge would have monitored his adherence to community-based treatment. While he might have faced sanctions – including jail – for failing to engage in treatment, he might also have had his charges reduced or dismissed after a sufficient period of demonstrating his commitment to remaining stable and law-abiding. Instead, he is forever marked as a criminal because his sentence in Virginia cannot be expunged.

A handful of jurisdictions launched mental health courts in the late 1990s. Today, there are more than 400 mental health courts, another 1,500 drug courts, and more than 3,000 other treatment oriented courts of various kinds, such as veterans courts, DUI courts, juvenile drug courts, and family dependency drug courts. In a 2015 literature review of mental health court data, 15 articles examined recidivism rates; of these, 13 found significant reductions in new arrests and days spent incarcerated.

So what was I to think of a scholarly article authored by Carol Fisler, director of Mental Health Court Programs at the Center for Court Innovation in New York, published last year in the American Bar Association’s  Judges’ Journal, that challenged many of our assumptions about mental health courts?

It is important to note that Ms. Fisler, who directed the planning and implementation of the first specialized court for offenders with mental illness in New York and has provided training and technical assistance to mental health court planning teams across the country, ultimately concludes that “research to date consistently supports the notion that mental health courts ‘work.'”

But, she cautions, that the reasons why they “work”  appear to have little to do with some of the basic assumptions that we believe when we create them.

Her paper “When Research Challenges Policy and Practice: Toward  a New Understanding of Mental Health Courts” questions several of these presumptions. Most dramatic are the beliefs that untreated or inadequately treated mental illnesses contribute to most criminal behavior by persons who are ill, and the combination of treatment and judicial supervision will always reduce recidivism and improve public safety.

These are two foundations of mental health courts.

Let’s begin with the first assumption. Her analysis reveals that “relatively few crimes committed by people with mental illness…take place while someone is in an active psychotic or manic state.”

“Contrary to the assumptions underlying the development of mental health courts, mental illness is not considered a risk factor for criminal conduct. Several recent studies of crimes committed by people with mental illnesses have found that mental disorders play a much smaller role than had previously been thought…It appears that these individuals have more in common with other people in the criminal justice system than they do with non-justice-involved mentally ill individuals.”

Ms. Fisler’s statement troubled me because my son was in the midst of a psychotic episode and did not have a criminal history when he was arrested. But I had to remind myself that Ms. Fisler was looking at the whole, while my experience was based on an individual case.

Ms. Fisler explains that research further shows the success or failure of individuals with mental illnesses, who go through mental health courts,  is determined NOT by the severity of their illness but by many of the same factors as other individuals who are convicted and go to jail.

Those most likely to re-offend have certain commonalities with non-mentally ill defendants.

These include prior criminal histories and substance abuse, antisocial history, antisocial attitudes, friends and peers; substance abuse; family discord; lack of success in education and employment; and lack of positive leisure activities.

If mental illness is not as major of a factor as we presumed and many repeat offenders have the same traits as those without mental illnesses,  why bother with a mental health court?

Ms. Fisler concludes that individuals with mental illnesses have a much harder time changing their behavior than other offenders because of their mental disorders and this is where mental health courts can play a crucial redemptive role.

Ms. Fisler quotes Judge Stephanie Rhoades of the Anchorage Mental Health Court, one of the first in the nation.

We believed mental illnesses basically were the direct cause of criminal justice involvement, and really it turns out that it’s very few people for whom that’s true. It appears now, from more recent research, that mental illness is a reason why people can’t necessarily change as easily as other people.”

Ms. Fisler then notes the results from a MacArthur Foundation-funded study of four mental health courts: “The type of treatment, and self-reported treatment engagement and adherence to medication regimen had no relationship to rates of recidivism or incarceration.”

This surprising statement is especially troubling given our assumption that appropriate treatment can improve the symptoms of mental illnesses and reduce problematic behavior. But Ms. Fisler is not the first to make this statement.

In 2013, an article in the American Behavioral Scientist, citing the same multi-site study, noted:

Mental health courts operate on the assumption that untreated psychiatric illness drives crime among those affected by it — thus, providing treatment should reduce crime. But oddly, treating mental illness by itself doesn’t seem to work. In a recent study, nearly 700 defendants in mental health courts were matched according to certain variables — type of illness, age, race — and compared to those with similar charges detained in jail. Nearly all members of both groups had co-occurring addictions. Mental health court participants did get into treatment more rapidly and received more intensive care than those who were incarcerated. However, the type and intensity of treatment received — or whether the participant received any at all — had no relationship with recidivism rates. The authors suggest that mental health treatments are ineffective because they don’t address factors linked with repeated crimes, like unemployment and having a peer group highly involved in antisocial behavior. “[T]o achieve public safety goals, treatment must focus on crimogenic risk factors.”

In her paper, Ms. Fisler draws a similar conclusion and asks:

“Does this mean that treatment is irrelevant? Not at all. First, there may be measurable benefits to individuals and communities from treatment engagement other than the criminal justice outcomes… Second, research might show a greater link between engagement in community based services and criminal justice outcomes if mental health court participants have access to all the services and related supports that policy experts consider useful, including evidence-based medication regimens, integrated treatment for co-occurring mental illnesses and substance use disorders, supported employment, illness management practices, trauma interventions, family education, cognitive behavior therapies, and suitable and affordable housing. Very few communities, though, are able to make a full array of services available to mental health court participants; far too many provide only minimal medication and counseling.”

Ms. Fisler also makes another surprising finding:

Interestingly, the seriousness of charges, or of the most serious prior offense, was not associated with higher rates of re-offending. In fact, one court showed no significant difference between violent and nonviolent offenders on any recidivism outcome, and two courts showed lower rearrest rates among participants charged with violent felonies than those charged with drug and property crimes. These findings challenge a common eligibility criterion that excludes defendants charged with violent offenses. Many jurisdictions fear that people charged with violent crimes present an unacceptable public safety risk, and a federal program that has funded dozens of mental health courts explicitly prohibits grant funds for programs handling violent offenses. But the research suggests that felony offenders and, more specifically, violent offenders with mental illness may be safely maintained in the community with appropriate supports.

This conclusion is especially important because mental health courts often limit themselves to misdemeanors and refuse felony cases when, in fact, her analysis shows it doesn’t matter. (Although politically, it matters to elected officials and judges, but has no real bearing on reoffending.)

Ms. Fisler notes that one factor that contributes to the success of mental health courts is “the quality of interaction between judges and participants and the tone of court proceedings.” She quotes Judge Matthew D’Emic of the Brooklyn Mental Health Court.

“Engagement with the judge is one of the reasons for our participants’ success. It’s the same as with other relationships. If I engage with someone, and that person engages with me, we don’t want to disappoint each other.”

Ms. Fisler writes: “In a study comparing defendants in 23 drug courts across the country to those in six traditional courts, a defendant’s attitude toward the judge was the strongest predictor of reductions in new offenses, drug use, and violations of supervision.”

Continuing Ms. Fisler writes: “People who feel the legal system, and their own treatment within it, to be fair will internalize the values of the system, show greater compliance with court orders, and be less likely to re-offend.”

She explains that Tom Tyler of Yale Law School refers to this dynamic as procedural justice, or the perceived fairness of court procedures and interpersonal treatment.

This is quite different from distributive justice, or the perceived sense of the fairness of a final outcome (whether someone won or lost a case). Tyler and other researchers have demonstrated a strong connection between individuals’ perceptions of procedural justice and their future attitudes and behavior. Individuals’ sense of procedural fairness arises from having a voice in the proceedings; being treated by the judge and others in the courtroom with respect; feeling that the court process is neutral (unbiased and consistent across cases); and understanding the language used in court, their rights, and the decisions made. People who feel the legal system, and their own treatment within it, to be fair will internalize the values of the system, show greater compliance with court orders, and be less likely to re-offend. Recent drug court research has highlighted the importance of procedural justice in motivating law-abiding behavior. In a study comparing defendants in 23 drug courts across the country to those in six traditional courts, a defendant’s attitude toward the judge was the strongest predictor of reductions in new offenses, drug use, and violations of supervision. Similarly, when researchers conducted structured observations of interactions between judges and defendants, they found that drug courts whose judges were rated as more respectful, fair, attentive, caring, and knowledgeable had lower rates of recidivism than courts whose judges showed fewer of these attributes.

Similar results have been documented in community courts, family courts, and domestic violence courts. Most significantly, a rigorous evaluation of a mental health court in Washington, D.C. which compared misdemeanor offenders who reported frequently over several months to a judge presiding over a specialized docket to similarly situation offenders who received identical case management and treatment services but limited judicial interaction, found that significantly fewer mental health court participants were rearrested and that they had significantly fewer total rearrests, even up to a year after exiting the court program; they also had a longer tenure in the community before being rearrested. …Individuals whose supervision officers treat them with trust, caring, fairness and a non punitive stance are less likely to be remanded for technical violations or to re-offend than individuals whose supervision officer take an authoritarian and disrespectful stance.”

Ms. Fisler notes the connection between procedural fairness in the legal system and mental health recovery principles:

“Mental health policy and services have changed during the 15-year history of mental health courts from a medical orientation that emphasizes the biochemical aspect of brain disorders and the importance of pharmacological treatment to a recovery approach that emphasizes the importance of individuals leading a self-directed life and striving to reach their full potential across four dimensions: health, home, purpose and community. At first blush, it is easy for judges and other criminal justice practitioners  to reject recovery principles as irrelevant for defendants subject to incarceration and continuing compliance with conditions of supervision. but if mental health courts seek to bring about long term changes in people whose mental illnesses and poverty already marginalize them, then court practices that support connections in the community to families, peers, and institutions should be embraced.”

Once again, she quotes Judge D’Emic:

“At first, I thought that having the participants come to court frequently made sense just for public safety. But I started to realize that the courtroom itself is a de-stigmatizing environment, where the participants can feel comfortable being themselves. They see the other participants and get to know them, and the courtroom becomes a community of participants. And they take that sense of acceptance and support with them back to their own communities.

Writes Fisler:

“This attitude is a far cry from that of the judges who ask at conferences and training sessions, “What sanctions should I use to get the participants in my court to take their meds?’ The appropriate answer is that medications may be necessary but far from sufficient for bringing about the changes in attitudes, thinking, relationships, and achievements that will help people with mental illnesses who have committed crimes led purposeful –and law-abiding — lives in  the community. A recovery orientation in the courtroom and in treatment dovetails entirely with principles of procedural justice and with risks-needs-responsivity principles for reducing criminogenic risks.”

So what does all of this mean?

Ms. Fisler writes: “The research to date consistently supports the notion that mental health courts “work.” Beyond this, more research will be needed to help us understand which aspects of mental health courts have the greatest impact on people’s behavior…”

I am not a researcher, judge or mental health court officer, but what appears to be consistent about Ms. Fisler’s analysis and other reports is that individuals with mental illnesses have a better chance of staying out of trouble if they receive wrap around services (housing, job training, etc.) that go beyond addressing only their mental health/addiction physical needs. This is best done in recovery-oriented environments – both in the community and the justice system — that make an individual develop and feel a personal responsibility to others, even an authority figure, such as a judge.

Actually, I do not find that surprising at all.