Mental health courts are courts created to hear cases involving people who have been diagnosed with a mental illness and who are charged with non-violent crimes. Rather than sentence a defendant to jail time or prison, mental health courts mandate a treatment program that can include medication, case management, hospitalization or day treatment programs.

The reaction to mental health courts among consumers and advocates has been mixed. Many see it as a way to end the criminalization of persons with mental illnesses while others feel that it is a way to generate more stigma and forced treatment of persons with mental illnesses. In Erie County, a committee has been recently formed to study the feasibility of creating such courts. Advocates and consumers in Erie County and in other areas where mental health courts are under consideration should review information on mental health courts so that they can effectively influence the structure and design of mental health courts created in their area. This article attempts to give a broad overview of mental health courts and provide readers with some issues of concern and resources on this topic.

The perceived need for mental health courts can be directly linked to the closing of psychiatric hospitals without a corresponding increase in the community mental health programs and supports. As a result, jails and prisons have become the largest mental health providers. Approximately 16% of jail detainees, probationers and state prison inmates are identified as mentally ill; these persons reported either a mental condition or an overnight stay in a mental hospital or treatment program. This figure means that on any given day, there are 283,000 persons with severe mental illnesses incarcerated in federal and state jails and prisons. In contrast, there are approximately 70,000 persons with severe mental illnesses in public psychiatric hospitals and 30 percent of them are forensic patients.

There is a general consensus that correctional facilities are ill-equipped to deal with the needs of mentally ill persons. This factor combined with the large numbers of individuals with mental illnesses who find themselves in the criminal justice system, has led to the rise of mental health courts. In most correctional institutions, there is no staff to evaluate or treat persons with mental illnesses who are incarcerated. Even where there is staff, there are often inadequate mental health services available while a person is in jail. The recent lawsuit in New York City against Rikers Island demonstrates just how inadequate the system can be for individuals with mental illnesses who stay in jail. In that case, it was determined that those with mental illnesses at Riker’s Island received no medication during their incarceration and upon release were left to wander the streets since there is no semblance of discharge planning from jails and holding centers. While there has been a good resolution in this particular case, it was achieved only through litigation. Unfortunately, the problems in jails and prisons seem to have worsened in most other places.

In 2000, Congress passed and President Clinton signed into law S. 1865, a bill authorizing grants to communities to establish demonstration mental health courts. This legislation has increased interest in the creation of mental health courts. Additionally, the touted success of "drug" courts has lead government officials to look at other over-represented populations of people to treat.

Although little is known about the effectiveness of drug and mental health courts, it is an area of interest for some researchers. In 1997, the federal Substance Abuse and Mental Health Services Administration (SAMHSA) began a three year Jail Diversion Knowledge Development and Application (KDA) Program aimed at studying jail diversion programs that serve individuals with co-occurring disorders (substance-abuse and mental health) who come into contact with the criminal justice system. This study is designed to see if diversion works, for whom, and under what circumstances. SAMHSA selected nine sites across the country with established diversion programs to study.

According to researchers diversion refers to specific programs where mental health and substance abuse interventions keep individuals with mental illness out of jail by placing them in the community. This intervention can occur in several different ways including police de-escalation with psychiatric/medical treatment, dropping criminal charges, deferring prosecution, or by imposing conditions of bail and probation. Individuals with co-occurring disorders may be identified for diversion from the criminal justice system at any point.

Diversion programs are divided into two types. The first, pre-booking diversion, occurs at the point of contact with law enforcement officers before formal charges are brought and relies heavily on the effective interaction between police and community mental health and substance abuse services. The second, post-booking, is the more common type of diversion program in the United States. These programs exist in arraignment courts and jails. Mental health courts would be the primary way that post-booking diversion would take place. At this type of diversion, program staff negotiate with prosecutors, public defenders, attorneys, community based mental health and substance abuse providers and the courts to evaluate a person’s eligibility for diversion. Together, they develop and implement a plan that will produce a disposition outside the jail in lieu of prosecution or as a condition of a reduction in charges.

A major problem for any diversion program that is post-booking, is the arrested person’s loss of Medicaid and other benefits. In most instances, people who are incarcerated in jail or prison have their Medicaid benefits terminated by the local authority who administers the program. In Erie County, Department of Social Service officials receive a list of those in the holding center and it takes action to terminate welfare, Medicaid, and Food Stamp benefits if appropriate. This practice has serious implications for the individuals with mental health and substance abuse treatment needs who are diverted from jail to more appropriate community treatment agencies. The loss of benefits for a diverted individual can interrupt or delay access to community treatment services and potentially undo any stabilization that the individual gained while detained in jail.

How communities handle the Medicaid benefits issue is dependant upon the state. Federal law excludes inmates of public institutions from participating in the Medicaid program. However, the specific eligibility procedures for jail detainees rest with the state. Even when federal financial participation is no longer available, the individual may still retain Medicaid eligibility status. It is up to the state to suspend Medicaid benefits or drop the individual entirely. Therefore, for a successful diversion program, it is necessary for states and communities to be flexible in their termination of benefits. Advocates of mental health courts must work with local authorities to ensure that Medicaid and other benefits are not terminated upon incarceration.

Finally, there is a great concern that mental health courts will not end the criminalization of the mentally ill but only increase stigma and forced treatment. A recent fact sheet prepared by staff attorney Heather Barr of the Urban Justice Center in New York City provides an excellent overview of this debate. Edited DN 11/24/01 Well done. Glad you covered this topic. Re footnotes: I just looked in my style and usage book and it said if the source is the same as the one immediately preceding, the abbreviation ibid. (not italicized) may be used and in a simpler, less formal style, notes (for sources not just preceding) may include only enough info to identify the full source, usually the last name of the author, a shortened title and the page number. I think you’re supposed to include page numbers, too. In order to examine the impact on the criminalization of mental illness, the fact sheet explores the situations of two hypothetical defendants. One defendant is in a typical mental health court which serves only non-violent misdemeanors while the other defendant is a violent offender sent to a mental health court which accommodates those who commit violent offenses. There is currently no model for this type of mental health court. In the end, Ms. Barr contends some consumers may benefit from an increase in community services by participating in mental health courts. However, she states that mental health courts will not end criminalization or solve the problems of the mental health system.

In conclusion, the decision of whether to support the creation of mental health courts is a complex one. Consumers and advocates need to be aware of all of the pros and cons involved in this decision so that they can effectively advocate for persons with mental illness.

1. Marzilli, Allen, "Mental Health Courts: What Do You Think?," The Key, Vol. 6, No. 3

2. Ibid.

3. Statistics from Ditton, P. (1999). Mental Health and Treatment of Inmates and Probationers. (Ditton 1999). U.S. Department of Justice, Bureau of Justice Statistics cited in GAINS Center, Facts About Adults in Contact with the Justice System.