Disputing the premise behind mental health courts

Doug Berman pointed out an academic article titled "Theorizing Mental Health Courts" by E. Lea Johnston that builds on ideas discussed on Grits last year in response to research by Jennifer Skeem. The thesis is that mental health courts were created on a false premise:

Mental health court proponents appear to embrace a brand of therapeutic rehabilitation based on two propositions. First, mental health courts justify segregating and diverting individuals with mental illnesses from the traditional justice system on the basis that their illnesses likely contributed to their criminal behavior. Second, and relatedly, mental health courts operate under the assumption that the amelioration of mental illness symptoms will reduce the likelihood of future criminal behavior. In other words, by treating individuals’ mental illnesses, mental health courts will rehabilitate offenders into law-abiding citizens.

It turns out, as Skeem has argued (her work is cited throughout the paper), mental illness is rarely a direct, causal factor of crime - only about one in ten offenses by people with severe mental illness result directly from their mental health condition. Further, says Johnston, "provision of mental health treatment alone is not an effective strategy for reducing recidivism of offenders with mental illnesses. Studies have found that providing intensive mental health services, and not addressing broader criminogenic needs, does not reduce rates of criminal behavior for individuals with mental illnesses."

Mitigating that argument somewhat is the point raised late in the article that "While major mental illness may not be a causal factor in the criminal behavior of most offenders with mental illnesses, mental illness may play an indirect role in generating socio-demographic conditions linked with criminal activity." That's a lot closer to my view - with notable, sometimes spectacular exceptions, I consider mental illness a factor that worsens a nexus of problems as opposed to a primary crime causing agent. Johnston adds:

Mental illness may contribute, for instance, to a loss of employment, movement into disadvantaged neighborhoods, gain of antisocial acquaintances, and loss of prosocial support—all criminogenic risk factors that heighten risk of criminality. Offenders with mental illnesses are also more prone to homelessness and substance abuse, two factors highly correlated with recidivism. Evidence suggests that individuals with mental illnesses may also enjoy fewer social supports than non-ill individuals. Indeed, some research suggests that offenders with mental illnesses may enter the criminal justice system with a higher concentration of criminogenic risk factors, on average, than non-ill offenders.

By that logic, even if mental illness is only rarely a direct cause of crime, the reason the mentally ill are disproportionately represented in the justice system arguably is that mental illness magnifies other risk factors that might be more easily overcome if it weren't for the offender's disability.

That's why mental health courts may "work" from a practical perspective, even if some of their theoretical  premises are flawed: in practice they're among the only places in the criminal justice system aggressively using evidence-based strong probation programming that actively targets criminogenic needs. Johnston points out: "Some researchers have speculated that, when programs directed at offenders with mental illnesses (such as mental health courts) do reduce recidivism, they do so by addressing offenders’ criminogenic risks, engaging in problem-solving strategies, and targeting situational factors that get an offender in trouble." IMO that's exactly what's happening.

The same can be said for drug courts. The National Association of Criminal Defense Lawyers has criticized drug courts, and last week I spoke with some friends from the Drug Policy Alliance who told me their group doesn't like them either. Many of their criticisms are justified (though such courts are nearly as diverse as the judges who implement them and cookie-cutter criticisms may not always apply). However drug courts, like mental health courts, are more likely to use evidence-based strong probation practices. What's more, judges are more likely to be directly engaged with probationers in such courts instead of leaving all contact to the probation bureaucracy. So in practice they often generate better results even if some of their animating assumptions about addiction, like mental illness, remain open to theoretical dispute.

Perhaps mental health courts and drug courts are examples of doing the right things for the wrong reasons. Evidence-based strong probation works, but counties and the state (often with grants from the Governor) have only been willing to focus the extra resources required for such an approach on special populations - the mentally ill, addicts, veterans, etc. - as opposed to embracing the idea more comprehensively. Johnston suggests one implication of her observations may be an argument for: "an even more capacious form of rehabilitation, conceptualizing crime as the product of criminogenic risks and needs, [that] would support the creation of a newly constituted specialty court system devoted to addressing the dynamic risk factors of all high-risk offenders, mentally ill or not."

Personally I think that's where the specialty court movement is already evolving, and some of Johnston's critiques from the ivory tower may already have been outpaced, at least in some jurisdictions, by practitioners' activities on the ground. But to the extent that core misconceptions animate specialty courts, IMO those are arguments for tweaking the approach rather than abandoning it.