Tuesday, November 23, 2010

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.


  1. Intellectual discussion such as this seem to me to regress back to the age old question of "am I my brother's keeper?" Looking at the reasons for criminal behavior and for solutions is a lot harder than "lock em up." How do we tackle the mire? One person at a time, one step at a time. Funny how critics start in before the programs ever get started. Going down the same street, stepping in the same pothole, only gets the same result. If we go around the 1st pothole of breaking the TDCJ cycle, then maybe we'll figure out the next step. But we'll never know unless we go around the 1st pothole. We done that with mental courts. Let's look for the next pothole and see how to get around it. Potholes are easier to avoid and get around sometimes than they are to repair. Of course best way is change streets, but mental illness doesn't allow that. We can help people avoid the potholes.

  2. Funny that you agree with this ladies perspective, funny that it's just your opinion. You, like this lady are great examples of the " those who can do, those who can't teach." The fact that this paper is from florida makes it even more irrelevant in Texas. Before you criticize, get your ass into one of these courts and you will see for yourself that they are working to break the cycle..

  3. Where are these courts? I do not know of them. After 10+ years of working in Texas and Colorado jails and prisons, all the mental health I've seen is quite frankly a joke.

    I enjoyed this post to see that there are those who feel that mental illness issues affect criminogenic behavior. Seems like the prevailing sentiment that I run into is that mental illness is the CAUSE of the crime, which in my experience is pure BS.

    What I see in mental health >90% of the time is WRONG DIAGNOSIS coupled to WRONG TREATMENT.

  4. Lubbock County is contracting with MHMR for 3 mental health workers to address mental health problems in the county jail. this is new. Don't know how this may play out. If they get them "well" enough to get out of jail, there's no place for them to go for continuum of treatment. Plus, I've never seen Lubbock MHMR have many success stories.

  5. Prison doc, hate to burst your bubble but you don't know everything about criminal justice/mental health. When did you last work in Texas? 1975? Mental health courts have been in Dallas for years..Hell there's even a re-entry court for SAFPF now, a veterans court, a court for prostitutes...Progress is being made, i suggest you leave gritsforbreakfast blog every once in awhile and venture out to find out about current news...

  6. 12L:37 D'oh, I didn't even have a license yet in 1975...no, sorry, I work here currently, but not in Dallas. Hang around and maybe you can miss the point of other comments too!

  7. What goes on in the crime infested neighborhoods is what shapes and produces behavior, including criminal behavior. Look at what an eight year old is exposed to and look at the patterns he accepts as normal and predestined.

  8. Anon, a little bit of close reading might help here.

    For example, you say: "Before you criticize, get your ass into one of these courts and you will see for yourself that they are working to break the cycle..

    Grits says:

    "That's why mental health courts may "work" from a practical perspective, even if some of their theoretical premises are flawed..."

    In other words, just because the theory's iffy (Johnston's point), doesn't mean the programs themselves aren't helpful.

    "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"

    This sounds *remarkably* similar to your point.

    "to the extent that core misconceptions animate specialty courts, IMO those are arguments for tweaking the approach rather than abandoning it."

    This is the closest we get to a criticism - an acknowledgement that, even *if* Johnston's criticisms are valid in practice, the programs themselves are valuable and shouldn't be scrapped.

    I understand that you might have an investment in ensuring that the work of mental health courts doesn't go unrecognized - but that's pretty clearly not what's happening here.

  9. NDN,

    Same song and dance, you have an opinion and so does some woman who goes to a law school in Florida. You're both just criticizing work actually being done. Theories are just theories until they are actually applied. Like i said, there's those who do, and those who can't, teach...You and the lady in florida have alot in common. Both critical morons..

  10. Who gives a fuck about a theory from a law student in florida anyways...

  11. This is hardly big news. It's pretty much self-evident that there's not a causal connection between mental illness and criminal behavior. The overwhelming majority of people with some mental health diagnosis don't become involved in criminal behavior. In my opinion, having special "mental health" courts only serves to stigmatize the mentally ill and create unjustified fear among the public. The only people who really stand to benefit from the existence of such courts are those who seem to have a pecuniary interest in their survival. Just look at some of the nasty comments on this thread.

  12. Wow, this generated some strong opinions for a relatively mundane topic.

    Maverick, she's not advocating for "lock-em-up," she's just critiquing the stated justifications for mental health courts.

    11:10, NDN is right that you need to improve your close reading skills. You clearly missed every salient point in my post, which argued in favor of these courts, not against them.

    Prison Doc, they're more common in the larger cities. And of course, veterans courts are just specialized mental health courts. I agree with you (and it's why I posted this) that this gal's most interesting observation is that the equation "mental illnesses causes crime" is usually false. I've found Jennifer Skeem's work on that score really interesting and useful.

    Don, what Lubbock is doing is in-house competency restoration, which is a great thing but a slightly different breed of cat from mental health courts, which are specialized dockets as opposed to a service that may be ordered by all courts.

    1:31, whenever you perform work on the government dime it will be evaluated (and often criticized) by someone; it's the nature of the beast. Drug courts and mental health courts are relatively new social experiments in the scheme of criminal jurisprudence and to claim they should for some reason be beyond criticism is a little self serving for someone who (apparently) works in that environment. These courts supposedly rely on "evidence based" strong probation practices so there's nothing wrong with evaluating the courts' own outcomes. Or perhaps you think we should just trust an anonymous blog commenter's word for it?

    Finally, Prof. Johnson is a faculty member at U of Florida, not a law student. (Google would have told you that.) Just because you disagree with her, you shouldn't make things up about her.

  13. 1:42..Since the mental health courts are primarily funded by TCOOMMI, that would dispell your theory of pecuniary wouldn't it? The money is from taxpayers, there is nobody "making" money off this. If anything it has to be saving even a small amount of money by having people diverted out of jail and into the mental health court for continued supervision...Not just warehousing them in jail and having to feed and house them..There seems to be alot of people on here that hate change from the norm. The norm being that county jails and the state of Texas have no money and it's only going to get worse after the leg session in January..Either you're part of the problem(see prison doc, ndn and anon 1:42) or you're part of the solution...

  14. Specialty courts such as Mental Health, Drug Intervention, Veterans and even Hooker Courts are designed to address the needs of offenders with special problems. These problems cannot be addressed in a traditional court setting and if they are, generally the result is jail or prison for these offenders, which has never worked. The whole premise behind evidenced based practice is to work with the offender to keep them out of the criminal justice system by focusing on their needs and putting them into the right programs. Specialty courts and specialty caseloads focus and hopefully address a need, criminogenic or not, that may help keep the cycle of crime from repeating. Courts with massive dockets and officers with overwhelming caseloads cannot effectively work with those needs. I do not believe that mental illness causes the crime, but I definitely believe it is an impediment to success.

  15. Lubbock does have a "mental health court" but it's in its infant stages. It's staffed totally by volunteers, led by Judge Drue Farmer, who started our Drug and DWI Courts, too. The staffing team consists of the Judge, staff from adult probation, and staff from MHMR. Members of the Criminal Defense Lawyers Association and the DAs office will be joining us. The participants are those on our TCOOMI caseloads who have had problems in adjusting to probaiton, and the emphasis has been wholly on encouraging them to do things that are constructive instead of self destructive. We have not put anyone into jail, even for repeated drug use, because we understand that jail time for this population can be very counter-productive. Imagine all this in Lubbock, Texas!

  16. Clearly, mental illness doesn't cause crime; however, it certainly puts the individual in a position to be accused of a crime. MHCs are not stigmatizing. Recognizing one or one's family member has a mental illness is the first step to recovery. The MHCs make it possible for recovery to occur by assisting the participants with resolving many issues, but the first is becoming stable, obtaining the best medications at the right dosage, with case management, and therapy. That so many courts have been created in the past ten to fifteen years is a testament to the need and the concern of many that those with mental illness do not deserve the penitentiary and jail treatment society in general has allowed since deinstitutionalization. If you haven't read the book Crazy by Pete Earley, it's an excellent study of the criminal justice system's treatment of those with mental illness. It also provides an excellent review of the relevant history of this difficult field. And if you don't know someone with mental illness personally, you should join NAMI or MHA and get to, so that the perceptions you have are tempered by the reality of these brain diseases.

  17. I actually work as a prosecutor in a mental health court in Texas. While I agree with the general premise that mental illness doesn't usually cause people to go out and intentionally commit crimes, I've seen plenty of occasions where it DOES produce behavior that might unintentionally lead to a violation of the law. For instance, as a prosecutor I'm going to hold a healthy person responsible for remembering locations where they have received criminal trespass warnings (such warnings are good for a year). For a person with severe schizophrenia or shcizoaffective disorder, I'm going to be a little more understanding when delusions and hallucinations interfere with the ability to remember which convenience stores a person has been told to avoid (often on an occasion 6 or 9 months prior). We occasionally get people with mental illness who even wander into the homes of other people. This is a terrifying situation for a crime victim, and I don't let this situation go by without a sentence and/or treatment, but understanding that the person who committed the offense was mentally ill (we've had several of these where the defendant was just disoriented and confused) can put the case in an entirely different light than in the case of a "healthy" criminal who enters someone's home while knowing full well that they're doing something terribly wrong. So I think there's some value in evaluating cases with mental illness in mind. The casework/treatment provided during the supervision part of the program is valuable as well, but frankly, it's not realistic to expect mentally ill people to become "healed" as a result of participation in one of these programs. Healing people is supposed to be the job of hospitals, institutions (mostly now nonexistent), and healthcare professionals. For ill people here in Texas, we do a pretty terrible job of caring for the mentally ill (isn't the Texas mental health care system still one of the most poorly funded in the country?), so we're going to continue to see these people caught up in our justice system. For our frequent offenders, though, (a number of whom get arrested on a monthly basis) the reduction in recidvism that can be achieved by supervision is a huge improvement in and of itself, and keeping these defendants out of jail is better for both the ill people and for the community (who support the jails financially and deal with the mentally ill folks who are committing crimes).
    On a final note, however, I would warn against the possible trend (especially as these MH courts blossom across the state and country) of defense attorneys trying to have all of their cleints classified as "mentally ill" in the hope of getting a more lenient sentence or treatment instead of punishment. Our MH courts need to work closely, in a relationship of trust with capable mental health care providers in order to make sure that treatment resources go to the right people and so that people who should be held accountable actually are.

  18. I recently completed a study for a master's thesis reviewing specialized programs such as these in smaller counties in Texas regarding whether the addition of judicial supervision (such as in drug courts) reduces probation revocation for high risk offenders. Unfortunately, my findings were not as great as those touted in many larger studies over urban areas across the country. Primarily the cause for the lack of success for these offenders involves the lack of a focused treatment team in many small programs meant to guide the processes of the program. As Prof. Johnson noted, these programs are helpful if operated in a correct manner utilizing evidence-based practices, and my results concur that straying from this path often leads to failure. But the purpose behind this paper is that the reason for having a mental health court needs to be something more than "just to have one" or because "everybody else is doing it."

  19. It only costs a dollar a day to feed prisoners. What could possibly go wrong?