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Equal Access Initiative Disability Newsletter

Disabilities Newsletter

Volume 9, Issue 2, October 2014

  Equal Access Initiative  


Celebrating 10 years of service to the disabilities community. We are committed to continuing our service and implementing new ways to keep our readers up-to-date on these critical issues.

In May of 2013, legislation was passed to provide the infrastructure for mental health courts across Michigan. The Equal Access Initiative, in partnership with the Criminal Law Section and the Prisons & Corrections Section, presented "Problem Solving Courts: Lessons Learned & Implications for People with Mental Health Care Needs" at the September 2013 State Bar of Michigan Annual Meeting. The panel discussion focused on implementation challenges, and case studies of jointly supported pilot programs across the state. Program commentary and links to additional resources are provided below.

Problem Solving Courts

What is a Mental Health Court?

Although the pilot courts differ from each other somewhat in format and procedures, these courts basically provide services to defendants convicted of non-violent crimes in a setting outside incarceration, where they receive counseling and mental health treatment, as well as assistance in finding housing and employment. If a defendant violates the terms of the mental health court orders, the defendant will be returned to the regular court processes, including possible incarceration. These courts are in a position to consider the kinds of violations that often occur among the mentally ill, and to weigh those in their deliberations.

How Did Mental Health Courts Happen to be Formed?

There are differences in the various pilot programs, but the courts were largely formed by professionals in the criminal law, mental health, judicial or administrative law systems who identified that it was very expensive to incarcerate mentally ill persons due to high costs of care, and largely ineffective due to recidivism.

The first such court was established in Genesee County when an administrative official was seeking ways to reduce the costs of incarceration. He discovered that the majority of higher costs of some cases related to the need to provide medical, including mental health, services to some incarcerated persons. He recommended forming a specialty court, which dramatically reduced costs and improved outcomes.

Another early court was recommended by the county sheriff in Allegan County. His successful experience with drug courts led him to consider a mental health court to alleviate the high costs of incarcerating the mentally ill and to make available better mental health services than the county had the personnel and financial resources to provide in the jail.

A third court was recommended by judges to a county community mental health administrator who was concerned that his personnel were having difficulty accessing incarcerated persons for treatment and receiving compensation when it was possible to treat them.

Other pilot courts have been recommended by judges and prosecutors.

Has There Been any Professional Review of the Outcomes of These Courts?

A Michigan State University program has reviewed the work of the nine pilot courts. Its report can be found online. It concluded that the outcomes of these courts were superior to outcomes from incarceration of the mentally ill. They found that the major factor distinguishing the outcomes of these courts from each other is the degree to which all the personnel (court administrators, judges, prosecutors, defense attorneys and mental health personnel) work together to monitor the progress of the defendant. Those that work most closely together have the best outcomes in terms of cost reduction, reduction of recidivism and improvement of the mental health of the defendant.

How are Defendants Selected for Participation?

In almost all cases, a judge, the prosecutor or the defendant's own counsel identifies and recommends the convicted defendant for participation. Several judges stated that they and the prosecutors work so closely together that they almost know which defendants are going to qualify for the court before arraignment. The major difference among the courts is that some require that the defendant voluntarily agree to participation; others assign the defendant with the expectation that the defendant will cooperate. Some of the courts that do not require voluntary consent question the capacity of a defendant to agree to participation, especially when the only alternative is to go to jail. Most presenters agreed that the decision whether to participate should be separated from the criminal prosecution, so that a mental health court is not considered as an alternative in the prosecution phase of the proceedings.

Some defendants can be identified as not suitable for participation, especially when they do not have a habit of complying with instructions or monitoring, express disinterest, or are unlikely prospects for collaboration.

The courts are designed for non-violent offenders, although some of the courts and the Supreme Court Administrative Office have somewhat different criteria from each other.

How is Each Defendant's Program Developed?

The judge, prosecutor, defense counsel and mental health team work collaboratively to recommend a program, which is regularly monitored and adjusted as the defendant progresses and circumstances suggest. The program can be individualized to accommodate the individual's personal needs. The participation of the defendant in this planning is also key to program success. In addition, family and friends can be helpful in keeping the defendant on track if they understand the program. The positive reinforcement received in the program is very helpful to the defendant, according to the presenters.

Some presenters noted that the time from identification of the participant to treatment can be as low as two days in the most efficient systems. That time is much longer for the incarcerated, if they are treated at all.

What Has Been the Effect on Costs and Recidivism?

The costs of the initial program are lower as it is less expensive to treat and monitor a defendant in a private setting, rather than when incarcerated; one presenter estimated that the costs are reduced by at least half in the mental health court system. Others placed the savings much greater with the cost of prosecution and incarceration approaching as much as $200,000 in a year, when the annual costs in mental health courts can be as low as 5% or less of that amount. Generally, the costs of the proceedings are also lower than the costs of trial and potential appeals. More importantly, because recidivism is much lower for defendants in these programs, the costs associated with subsequent offenses are minimized or avoided.

Another reduction in cost is in the health care system, as there is a reduction in the number of visits to the emergency room. A person in a mental health court has a person monitoring them, someone to contact when the person might otherwise go to the hospital, which is hundreds to thousands of dollars more expensive and often at public expense.

One judge noted that participants in his jurisdiction's mental health court had as many as eight prior convictions when they first arrived in his court. He found that people on probation without the monitoring of a mental health court often did not take their medications and committed additional offenses. With 18 to 24 months of participation in a mental health court, new habits and lifestyles can emerge. One presenter noted that out of over 40 persons who had participated in his court's program, only two had subsequent violations after about a two-year period.

What are the Issues to be Addressed in Creating Successful Mental Health Courts?

Financing. This is always an issue. How to access funding for medical treatment is critical. There is a restriction on county community mental health personnel using public funding to provide treatment to persons in the court system. Some courts have used the public entity's own funding to compensate for this, since the programs generally save the jurisdiction considerable money. Other jurisdictions have been able to obtain grants for formation and early costs of the program, but grants are generally time-limited.

Housing. Helping the individual participant find housing is critical. It is very difficult for a homeless person to comply with the requirements of the mental health court.

Medication. Some programs can accommodate participants who are on narcotic medications, but others cannot. This is obviously an issue. It is also an issue when a person is incarcerated as the schedule for medication may not be consistent with the times when jail personnel who are qualified to administer medication are available. For example, if the individual's required schedule is for four or six times a day, but the qualified personnel are only there twice a day, the individual is either over-medicated or out of control for under-medication at regular intervals. One of the great advantages of mental health courts is the ability of the participant to maintain the prescribed medication schedule, subject, of course, to monitoring.

Co-occurring dependencies. Many individuals have both mental health and drug or alcohol dependency issues. Special procedures have to be worked out to accommodate both.

Lack of significant, meaningful daily activity. Idle time results in unfavorable activities, including further violations of the law. Most individuals in the program are not employed or employable, but it is important that there be meaningful activity to occupy the time, such as important volunteer work. Otherwise, the risk of recidivism increases. This also enables future employment.

Anti-social disorder vs. serious mental illness. Several participants identified as a problem the fact that a mental health court may not accommodate those with anti-social behavior who are not mentally ill. They could also benefit from such a program.

Exclusion of all violent offenders from the programs. Most violent offenders are not suitable for the programs, but some whose crimes are violent, but limited in times and circumstances, could benefit; an example is spouse abuse.

Desire of or obligation of counsel to obtain the best/shortest term and probation for client. Sometimes the defendant's counsel are not eager to consider the mental health court option, as they feel their obligation to the client requires them to seek the shortest term for the client. Counsel who are more familiar with mental health courts and the potential benefits for their clients’ long-term recovery are more open to mental health courts.

Potential restrictions on the discretion of individuals in each respective court to meet local needs; there is no single effective template. Several presenters were concerned that pending (now adopted) state legislation and potential ensuing regulations might create a more restrictive template than they deemed beneficial. They believe that each jurisdiction should be free to frame a court that meets local needs.

Are There any Disadvantages to Mental Health Courts?

Some of the audience participants regretted that these courts or the principles used in them are not readily available throughout the court system.

Additional Resources

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