History of Mental Health Specialty Courts

An Examination of Broward County’s Judicial Leadership on Serving Marginalized Populations

By Stephanie Rosendorf, NLC Broward

Part seven of The New Leader series The Arc of Justice: Examining the Failures of the Criminal Justice System and the Hope of Progressive Reforms

Over the past few decades, specialty courts — including mental health courts, drug courts, community courts, and others — have proliferated across the United States, and for good reason. With deinstitutionalization movements beginning in the 1960s, there emerged a massive need for community support services and outpatient programs for the mentally ill.[1] Unfortunately, because there were not enough resources to keep up with the growing demand, many individuals ended up merely being involuntarily held in another way — through incarceration in our jail and prison systems. The statistics are grim. In fact, some recent reports estimate that “64 percent of jail inmates, 54 percent of state prisoners, and 45 percent of federal prisoners”[2] have reported mental health concerns.

The good news is that many jurisdictions across the country refused to accept the status quo and decided to take a chance on the idea of specialty courts, and in 1997, the first four mental health courts were formed in the United States.[3] 21 years later, that number has grown to more than 300, and mental health courts can be found in almost every state.[4] But how effective have these specialty courts been in reducing recidivism and helping individuals access the care that they need? Researchers from North Carolina State University compared the outcomes of certain defendants who had mental health problems and went through mental health courts compared with defendants who went through the traditional courts. The researchers found mental health courts “effective at reducing repeat offending, and limiting related jail time for people with mental health problems — especially those who also have substance use problems.”[5]

Other data analyzed by the Council of State Governments Justice Center shows the following:

• comparatively fewer new bookings into jail and greater numbers of treatment episodes compared with the period prior to program participation;

• less likelihood of incurring new charges or being arrested than a comparison group of individuals with mental illness who did not enter the MHC program;

• an increase in frequency of treatment services, compared with involvement in traditional criminal court;

• improvements in independent functioning and decrease in substance use compared with individuals who received treatment through traditional court process;

• fewer days spent in jail than counterparts in traditional court system; and

• more favorable interactions with judge and perception of being treated with greater fairness and respect than in traditional court.[6]

However, a 2015 report by the Urban Institute concluded that mental health courts “seemed to be modestly effective at reducing recidivism, but it was unclear whether they had a positive effect on participants’ mental health.”[7]

As we examine this growing trend toward these types of specialized courts, it is worth going back to the longest running sample: the initial courts established in 1997 in Broward County, Florida. This example provides us the longest data set and the best source of information about impact.

On June 6, 1997, Chief Judge Dale Ross (now retired) established the first mental health court in the United States in Broward County, Florida.[8]The purpose of the new court was to allow individuals with mental illness who were charged with ​misdemeanor offenses​ a chance to be diverted from the criminal justice system and into programs designed to be restorative and therapeutic. ​Its creation stemmed from disturbing grand jury findings on jail overcrowding, jail suicides, and community mental health shortfalls in Broward County. Judge Ginger Lerner-Wren was appointed to oversee the Court, and she still runs it today.[9]

In fact, Broward County was the model for the American Law Enforcement and Mental Health Project, which was passed and signed into law in 2000 to fund 100 mental health courts across the country. Further, the Court is one of the models the U.S. Department of Justice looked at in its 2000 report on “Emerging Judicial Strategies for the Mentally Ill in Criminal Caseloads.” The report is available at https://www.ncjrs.org/pdffiles1/bja/182504.pdf.

Misdemeanor Mental Health Court

Broward’s Misdemeanor Mental Health Court accepts individuals with a range of mental disabilities, including mental illness[10], intellectual disabilities, and neurological disorders, including Alzheimer’s Disease, Dementia, and Traumatic Brain Injury. The Mental Health Court hears all adult misdemeanor offenses and violation of probation matters, with the exception of DUI’s and domestic violence cases. Battery charges are also accepted, provided that the victim of the alleged offense gives consent (subject to court approval).

Most individuals who are eligible for the program are screened at the earliest time possible, such as while in jail post-arrest or at a hearing within 24 hours after the arrest. However, family members, attorneys, law enforcement, and community case managers may also refer people directly. Once an individual is enrolled, he or she may discontinue participation at any time; however, this is usually not the preferred outcome, as the case would simply be transferred back to the traditional criminal division. To ascertain the extent of ones’ illness (or lack thereof), anyone who displays mental health symptoms during the booking process or who discloses a history of mental illness is evaluated by a psychiatrist who provides healthcare in the jail.

When a psychiatrist determines that a defendant is not just mentally ill, but also “poses a danger to himself or others,”[11] the psychiatrist seeks an order to send the defendant to a crisis center for treatment or evaluation for involuntary commitment. By law, the psychiatric evaluation must occur within 72 hours of an arrest. Defendants who are sent to treatment facilities under the Baker Act may return to the mental health court when they are stabilized, at which point the court would review the defendant’s treatment plan and schedule another court hearing to check up on the individual’s progress.

Felony Mental Health Court Similar to Broward’s Misdemeanor Mental Health Court, the 17th Judicial Circuit’s Felony Mental Health Courtwas the first of its kind in the United States, created by administrative order in 2003. This program is designed “for those persons charged with felony offenses who have been deemed incompetent to proceed. Court services include competency restoration, case management, linkage to mental health out- patient and residential treatment, assistance with housing, therapy and medication management. When requested, the court also commits defendants, where appropriate, to forensic hospital care.”[12] As with misdemeanor charges, the Felony Mental Health Court works with defendants, family members, the victim, and community providers to create a treatment plan for an individual suffering from mental illness. As an individual and his or her case develops in the mental health court, regular psychological evaluations are mandated and hearings before the Judges are held to determine if the person charged has become competent to proceed. Once an individual is deemed competent, certain cases may remain in felony mental health court.

Proposed 17th Judicial Circuit Community Court

In addition to the Mental Health Court overseen by Judge Ginger Lerner-Wren, Broward’s Chief Administrative Judge, Jack Tuter, is in the process of organizing an official Community Court for low-level offenders. This special court would be available for those charged with petty offenses, such as loitering, panhandling, and relieving oneself in public, which are largely associated with an individual experiencing homelessness. Community courts currently exist in 77 cities, with the first operating in Manhattan in the 1990s. As of May 2018, Judge Tuter was specifically looking at the community court in Eugene, Oregon as a model.

Similar to those offered in Broward’s Mental Health Courts, the Community Court would connect individuals with necessary support services, such as behavioral health, affordable housing, and more. While much of the details are still in formation, Judge Tuter anticipates holding court at Fort Lauderdale City Hall for a two-year pilot program, after which he hopes to expand the program to other parts of Broward County. A judge will take cases one day a week, then assign offenders to a service provider. About 15 offenders a week are expected.”[13]

Conclusion

Broward County residents are fortunate to have access to specialty courts, but Floridians elsewhere are not necessarily given these opportunities. Overall, Florida ranks 44th in access to mental health professionals and services.[14] Far too often, individuals still fall through the cracks, whether in Broward County or otherwise. We must continue to advocate for the rights of those suffering from mental illness through systemic change that allows for everybody to access the necessary treatment and services for success.

Stephanie Rosendorf, Esq. currently works as a Commission Aide to Broward County Commissioner Nan Rich, a role that she has held since graduating from the University of Miami School of Law in 2016. She is also the Vice President of Broward Young Democrats, a volunteer Guardian Ad Litem for Florida’s 17th Judicial Circuit, NLC Broward Class of 2018 Fellow, and resident of Ft. Lauderdale, Florida.

[1]“Community Mental Health Act,” National Council for Behavioral Health, 2018,

https://www.thenationalcouncil.org/about/national-mental-health-association/overview/community-mental-health-act/

[2]“Incarceration Nation,” American Psychological Ass’n., Oct. 2014,

http://www.apa.org/monitor/2014/10/incarceration.aspx

[3]“Mental Health Courts: A Primer for Policymakers and Practitioners,”

Bureau of Justice Assistance, 2008, https://www.bja.gov/Publications/MHC_Primer.pdf

[4]Matt Shipman,“Study concludes that mental health courts significantly reduce repeat offenses, jail time,”

PHYS.ORG, 03 Dec. 2015, https://phys.org/news/2015-12-mental-health-courts-significantly-offenses.html

[5]Evan M. Lowder et al., Recidivism Following Mental Health Court Exit: Between and Within-Group Comparisons., Law and Human Behavior (2015).

[6]“Mental Health Courts’ Effectiveness in Reducing Recidivism and Improving Clinical Outcomes: A Meta-Analysis,” Justice Center CSG, 30 Oct. 2011, https://csgjusticecenter.org/courts/publications/mental-health-courts-effectiveness-in-reducing-recidivism-and-improving-clinical-outcomes-a-meta-analysis/

[7]Michelle Andrews, “Mental Health Courts Are Popular, But Are They Effective?” NPR.org, 16 Dec. 2015, https://www.npr.org/sections/health-shots/2015/12/16/459823010/mental-health-courts-are-popular-but-are-they-effective

[8]A Court of Refuge: Stories from the Bench of America’s First Mental Health Court,Lerner-Wren & Eckland, Beacon Press, 2018.

[9]“Broward County Mental Health Court,” Seventeenth Judicial Circuit of Florida, 2018, http://www.17th.flcourts.org/11-mental-health-county-court/

[10]“Mental Illness,” Mayoclinic.org, 2018, http://www.mayoclinic.org/diseases-conditions/mental-illness/basics/definition/con-20033813

[11]FLA. STAT. §394.451 (1971).

[12]“Felony Mental Health Court,” Seventeenth Judicial Circuit of Florida, 2018, http://www.17th.flcourts.org/08-felony-mental-health-and-drug-court/.

[13]Rafael Olmeda, Sun Sentinel, 11 May 2018, http://www.sun-sentinel.com/local/broward/fl-sb-homeless-court-plans-20180510-story.html

[14]Daylina Miller, “Report: Florida Ranks Low When It Comes to Mental Health Care Access,” WLRN.org, 20 Nov. 2017, http://wlrn.org/post/report-florida-ranks-low-when-it-comes-mental-health-care-access.