From Incarceration to Rehabilitation: Developing Statewide Standards for Washington Mental Health Courts
Introduction
Jails and prisons have become the largest de facto mental-health facilities.[1] Studies show that at least 16% of the jail and prison population is comprised of seriously mentally ill offenders, compared to the 2% of the general population diagnosed with mental illness.[2] In 44 states, a jail or prison holds more mentally ill individuals than the largest remaining state psychiatric hospital.[3] 40% of all mentally ill individuals in the United States have been incarcerated at some point in their lives.[4] This epidemic is referred to as the “criminalization” of the mentally ill — which describes mentally ill individuals who are arrested and prosecuted for minor offenses, rather than being placed in the mental health system where they belong.[2] This criminalization has been attributed to various remnants of the deinstitutionalization era, including: rigid civil commitment laws, lack of adequate community support, and difficulty in accessing community based mental health services.[2]
Although the number of incarcerated offenders with mental illness (OMI) continues to grow, jails and prisons are poorly equipped to provide mental health services. Prisons are considered toxic environments for the seriously mentally ill due to overcrowding, violence, lack of privacy, limited community contact, and scarce opportunity for meaningful activity.[5] Most inmates do not receive mental health services at all, and those who do rarely receive the comprehensive services necessary for recovery.[6] Without receiving the support and structure needed to keep from re-offending, many individuals with mental illness get stuck in the “revolving door” and soon after re-offend and return to the criminal justice system.[7]
The Rise of Mental Health Courts
Local jurisdictions have responded to this growing epidemic of OMI entering the criminal justice system by implementing diversionary programs that treat, rather than “criminalize,” mental illness. One of these programs is the mental health court (MHC), which is a problem solving court that attempts to divert OMI away from “the cycle of arrest, incarceration, release and rearrest,” by connecting them with treatment and services to address and change their underlying issues.[8] The first mental health court was established in Broward County, Florida in 1997, in response to a 1994 mental health task force report indicating that the criminal justice system dealt poorly with mentally ill offenders and recommended establishing a mental health court as a core strategy for improvement.[9] In 2000, “America’s Law Enforcement and Mental Health Project” was signed into law, establishing a program to fund one hundred state and local mental health courts across the nation.[2] Since its enactment, the number of MHCs across the country has exploded. As of 2009, there are over 300 MHCs throughout the United States.[10]
There is no single definition as to what constitutes a MHC. However, at least six characteristics operationally define MHCs: (1) criminal courts with separate dockets for persons with mental illness; (2) the goal of diverting persons with mental illness away from the criminal justice system into community mental health treatment, reducing the detrimental cycle of revolving in and out of jail; (3) mandated community health treatment, typically requiring that participants engage in treatment, take prescribed medications, and adhere to any other imposed conditions by the court or treatment provider; (4) continuing supervision via judicial status review hearing conducted by the court and through direct supervision in the community; (5) praise and encouragement offered for compliance, while sanctions imposed for noncompliance; and (6) All MHCs are voluntary.[11]
Unlike drug courts, which typically have a standardized protocol and treatment plans in courts across the nation, mental health courts vary by jurisdiction to individualize treatment plans and meet the needs of their target population.[12] This has resulted in MHCs that are vastly different across counties — due to differing resources, public support, judge practices, and geographical makeup. These differences in structure and operation make it difficult to compare various MHCs and distill evidence-based best practices (EBPs) that are generalizable across jurisdictions. This is an issue, as treatment courts must demonstrate a commitment to applying EBPs in the design and delivery of services, referrals to services, and the development of policies and procedures in order to function effectively.[13] EBPs are mental health service interventions for which consistent scientific evidence demonstrates their ability to improve consumer outcomes.[14]
MHCs are still considered an emerging practice, which have not yet reached the level of an evidence based model.[15] Various multisite studies and single-site studies exist that describe the structures and outcomes of a limited number of MHCs.[11] However, there has yet to be a comprehensive study on the effectiveness of more than a few MHCs.[11] Existing studies suffer from various methodological limitations, including: lack of experimental design, use of non-representative samples, and assessment over short timeframes.[15] Although the individualization of MHCs allows courts to cater to their target population, the distinctive nature of these courts and the incongruity in reporting of court-specific eligibility criteria makes cross-court comparison difficult.[15] This, in turn, stunts the development of research backed best practices that are applicable across jurisdictions.
In order to move towards an evidence-based model that ensures high-quality programming and accountability for MHCs, various states have created standards to provide a framework of best practices and minimum standards for all MHCs.[16] As of 2016, 19 states have developed statewide standards applicable to MHCs, with seven applying exclusively to MHCs.[17] Standards range from recommendations and guidelines to minimum operating standards to receive and sustain funding and checklists to demonstrate ongoing compliance with certification requirements.[16] These standards were created to develop performance measures and increase participation by providing a uniform set of empirically based processes that are highly reliable and replicable — which ensures the target audience is being served and avoids net-widening.[16] The development of performance measures in particular is essential to establishing a stable and consistent system of evidence-based MHCs.[18]
Washington MHCs
RCW 2.30, enacted in 2015, authorizes therapeutic courts in Washington. “Therapeutic courts” encompass programs designed to reduce recidivism and increase the likelihood of rehabilitation through judicially supervised treatment and appropriate use of services, sanctions, and incentives.[19] This includes MHCs, along with various other diversionary programs (i.e. drug courts). The legislature has provided general principles therapeutic courts may incorporate into their structure:
(a) Determining the population; (b) Performing a clinical assessment; © Developing the treatment plan; (d) Monitoring the participant, including any appropriate testing; (e) Forging agency, organization, and community partnerships; (f) Taking a judicial leadership role; (g) Developing case management strategies; (h) Addressing transportation, housing, and subsistence issues; (i) Evaluating the program; and (j) Ensuring a sustainable program.[20]
However, local judges retain considerable discretion in determining the structure, process, and eligibility requirements of these courts.[20] 12 MHCs currently operate in Washington.[21] Despite the general principles encouraged for problem-solving courts in general to incorporate into practice, no statewide standard exists governing MHCs or therapeutic courts.[16] As a result, Washington courts vary considerably in their implementation of MHCs. The following figures illustrate the variances across MHCs in Washington’s largest counties: King County, Pierce County, and Snohomish County.
Figure 1 displays the differing eligibility criteria for the King County Regional MHC[22], Pierce County Felony MHC[23] [24], and Snohomish County MHC[25]:
As the above data shows, MHCs in King, Pierce, and Snohomish vary considerably in their operation and implementation. These differences may be due to a number of factors, including the judge’s preferences, the target population, and funding and mental health resources available to the MHCs. While each court may be serving its target population within the resources available, no standard or model exists for evaluating the performance and practices that best serve each MHC and may serve other MHCs as well. Such a system of performance evaluation ad monitoring is crucial to developing generalizable, research backed best practices for MHCs to rely upon.[27]
Argument for Statewide Standards Governing MHCs
As MHCs grow in popularity, so does the need to ensure that they are relying on EBPs to ensure that their key goals are being effectively achieved. Although 12 MHCs currently operate within Washington, no standards exist governing their form or function. The Washington legislature should provide a framework of best practices and minimum standards for all Washington MHCs to help determine what types of practices and operations best serve specific populations in both new and existing MHCs. In order to develop appropriate statewide standards, the legislature should follow six key steps:
(1) Understand the legal framework for MHCs in Washington, and the role of different entities in funding and sustaining these programs; (2) consult existing research on EBPs to guide standard development, with an understanding that the research base relating to MHCs is significantly underdeveloped; 3) convene a group of stakeholders to ensure effective implementation of and secure support for proposed standards; (4) Determine whether “standards,” “guidelines,” “rules,” or some combination of these approaches is appropriate based on state conditions; (5) decide a strategy for monitoring compliance with the standards and responding to non-compliance; and (6) build a revision mechanism into the process as research evolves and guidance is tested on existing MHCs.[16]
The development of statewide MHC standards presents two challenges: (1) creating an approach that is appropriate within the context of the state’s governing structure for courts and problem solving programs, and (2) determining the appropriate level of enforceability.[16] Rather than establishing strict, enforceable rules with consequences for non-compliance, recommended guidelines should be provided for new courts looking to establish MHCs and existing MHCs to improve and enhance existing programs.
Washington lawmakers should look to Arizona as a guide for how to structure MHC standards. Arizona recognized the unique circumstances in each jurisdiction and the vast diversity among the operating MHC model. It convened a committee of key stakeholders to who developed eight standards representing fundamental components of MHCs and used specific language to convey varying degrees of compliance (i.e. “must” versus “may” or “should”).[28] This flexible framework could work well in Washington, where various MHCs serve vastly different populations ranging from urban to suburban or rural citizens.
Establishing standards for the design and implementation of Washington MHCs can provide a means for monitoring and evaluating MHC performance, guide those seeking to form a successful MHC, and increase participants by providing uniform, empirically-based processes that are reliable and reproducible.[28] By articulating a recommended framework that identifies the foundations of what Washington MHCs should be, lawmakers can establish a method for monitoring performance while allow jurisdictions to faithfully serve their individual populations.
Conclusion
The criminal justice system is not an adequate substitution for a mental health system. However, until adequate funding is prioritized to establish a functioning public mental health system capable of serving the mass numbers of mentally ill people in need of treatment, MHCs are a practical solution to providing OMI with much-needed treatment and diversion away from the criminal justice system. Small-scale studies have shown how certain MHCs may reduce recidivism rates of OMI involved in the criminal justice system. However, large-scale data determining the best practices of MHCs, based on research-backed evidence, is scant. In order to legitimize and improve the practices of MHCs, we must rely on methods proven to be effective by research. However, distilling the best EBPs is difficult when the individualized nature of MHCs makes cross-court comparison night impossible. Washington lawmakers should implement guidelines for Washington MHCs to develop a framework against which courts’ practices can be compared and evaluated to determine what method works best for each population. In the future, this will allow courts to revise and, hopefully, generalize their best practices and methods to MHCs across the state.
