Preview: Full slate of bills at first Senate Criminal Justice hearing next week

The Texas Senate Criminal Justice Committee has finally posted the agenda for its first meeting of the 83rd Legislature. They're getting started late (because most of the committee members have been tied up with the budget) so it's quite a long agenda. Here are a few items that jumped out at me:

Innocence, prosecutor misconduct bills
A couple of good reform bills are on there: SB 344 allowing habeas writs based on false or discredited forensics, which was the subject of an excellent recent story by Maurice Chammah at the Texas Tribune, and SB 825 making grievances related to prosecutorial misconduct public records and extending the statute of limitations for State Bar sanctions when prosecutors hide exculpatory evidence. See the discussion in this Grits post.

Felony for use of unsecured wi-fi?
State Sen. Dan Patrick has a rather odd bill up, SB 249, that on its face appears to potentially criminalize getting onto someone else's unsecured wifi. Currently Section 33.02(b-1) of the Penal Code makes it a state jail felony Class B misdemeanor if, with intent to "defraud or harm another, or alter, damage, or delete property, the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner." (Ed. note: It's a state jail felony if you've been convicted twice before or the network belongs to the government.) To that list, Patrick's bill would also criminalize accessing a system to "obtain a benefit." Since accessing the internet for free is a benefit, and effective consent is defined in the penal code as "consent by a person legally authorized to act for the owner," on its face accessing someone's wi-fi without their express permission would be a crime. Personally, I consider leaving wi-fi unsecured simply common courtesy, though internet service providers would like to restrict it for their own commercial benefit. As far as I'm concerned, criminalizing a neighbor using my wi-fi is akin to criminalizing their reading by my porch light. People can always restrict access if it bothers them. I don't think Sen. Patrick has fully thought through the unintended consequences this legislation. (MORE: From the Dallas Observer's Unfair Park blog.)

Introducing prior bad acts in guilt phase of sex-offender trials
A bill by Sen. Joan Huffman which Grits criticized last session, this time styled SB 12, is back again for a repeat: The bill would upend rules 404 and 405 of the Texas Rules of Evidence in trials of alleged child molesters, allowing evidence of past crimes in lieu of provable facts in the current case. When it came up last session, state Sen. Robert Duncan, a Lubbock Republican, expressed concern that it would allow juries to consider "allegations that have not even been vetted by a grand jury." Sen. Royce West argued strongly on the Senate floor the bill would result in "more wrongful convictions." The philosophy behind this bill was articulated by the Vichy policeman in the movie Casa Blanca: "Round up the usual suspects!" If you were guilty before, obviously you must be guilty this time. The bill analysis says the legislation would "provide prosecutors with a much needed tool" to win cases, but a prosecutor's duty is to seek justice, not convictions. See excellent Houston Chronicle coverage of the version that passed the Senate but died in the House Criminal Jurisprudence Committee in 2011.

Needless expansion of wiretap authority
Another bill by Huffman, SB 188, would expand the array of law enforcement entities authorized to perform wiretaps.This is a solution looking for a problem. Presently local agencies that want to perform wiretaps must have the Department of Public Safety do it, a system which has worked fine for many years. Indeed, local law enforcement agencies rarely use wiretaps, which are mostly performed at the federal level. In 2011, for example, there were just two wiretaps performed on behalf of local Texas agencies - both in Travis County. Given that incredibly low volume there's just no need to delegate additional authority to the locals.

Make counties report case disposition data
Sen. Huffman also has a good bill up, SB 262, which would codify successful incentives informally imposed by the Governor's office to make counties report case disposition data to the state. Lots of problems occur because arrests or indictments may be reported but dispositions, including acquittals, dismissals and reductions of charges frequently fall through the cracks. Under the bill, before counties could receive grant money from the Governor's Criminal Justice Division they'd have to certify with DPS that they'd reported 90% of case dispositions in the previous year. While arguably reporting rates should be even higher, 90% is a far cry from where many counties were at just a short time ago.

Prostitution prevention
Chairman Whitmire has another bill on the agenda, SB 484, which would create mandatory specialty courts related to prostitution prevention and diversion (see the bill text for more details) in counties with more than 200,000 people, but only if they are able to secure state or federal grant funding. They could also charge fees to defendants not to exceed $1,000, but many will be indigent and anyway that's likely not enough by itself to cover the costs. Dallas pioneered this model and by all accounts it has worked extraordinarily well. Counties that refuse to apply for grants for that purpose would lose all their state support for their local probation departments, which is a pretty darn strong incentive. One potential problem: Many of those federal grant funds may dry up if the sequester remains unresolved.

Regulating specialty courts, excluding violent felons
Sen Huffman has a bill, SB 462, which, according to the bill analysis, "consolidates Texas statutes by creating a new Subtitle K within the Government Code where all relevant specialty court provisions can be easily located; improves oversight of specialty court programs by requiring them to register with the criminal justice division of the Office of the Governor and follow programmatic best practices in order to be eligible to receive state and federal grant funds; and changes the composition of the Governor's Specialty Courts Advisory Council to nine members and requires the council to recommend programmatic best practices to the criminal justice division." It would also exclude defendants from participating in specialty courts if they'd been previously convicted of serious, violent (3g) offenses. The number of specialty courts in the state has ballooned but their day to day practices vary from judge to judge, so Grits understands the desire for greater uniformity and oversight. But excluding past 3g offenders may be a mistake. If the new offense was minor enough to otherwise qualify for participation in a specialty court, IMO strong probation closely supervised by a judge is more likely to rehabilitate than a relatively short prison stint.

Providing punishment for 17-year old capital defendants in legal limbo
Yet another bill by Huffman, SB 187, aims to fix the legal limbo that presently exists for 17-year old capital murder defendants, for whom the US Supreme Court has eliminated all legal punishments under Texas law. (See prior Grits coverage.) Seventeen year olds are adults under Texas law but juveniles according to the US Supreme Court, which has eliminated the death penalty and life without parole for juveniles. (States can still offer LWOP sentences, but it cannot be the only alternative.) Huffman's bill would create two sentencing options for 17-year olds, life and life without parole. IMO a regular "life" sentence would be perfectly acceptable for 17-year olds. Paying for a 17 year-old to stay in prison till they're 90, at $18,000+ per year, would cost more than $1.3 million in 2012 dollars. Allowing such youth to become eligible for parole after 30 or 40 years - and of course the parole board can always keep them in longer if their behavior in prison warrants it - makes a lot more sense to me. Another way to go, though with much more sweeping consequences, might be to simply change the state's definition  of a juvenile for criminal justice purposes to comport with interpretations by SCOTUS. Either way, the state has to do something on this issue. Right now there are no legal sentences for 17 year old capital defendants in Texas.

There is a lot more on the agenda so go here to see the full list of bills the Senate Criminal Justice Committee will hear on Tuesday.

Contretemps, mystery surround elimination of Harris mental health court money

Will new Harris County DA Mike Anderson and his incoming first assistant Judge Belinda Hill torpedo the county's new mental health court as their first act out of the blocks? Mixed signals arose on the subject in a Houston Chronicle story ("Judge fears new Harris mental health court is in peril," Dec. 11) with an array of detail still unconfirmed:

Instead of signing off on the memo of understanding that the District Attorney's Office needs to dole out the money, [Judge Jan] Krocker said, Hill plans to create a committee to revamp how the courts allocate funds for mental health and let incoming District Attorney Mike Anderson decide where the money goes after he takes office Jan. 1.

"This is not good news for the mental health court," Krocker said. "Although Mike Anderson has publicly supported the mental health court, he worked behind the scenes to keep it from opening."

For his part, Judges Anderson and Hill played dumb: A tactic of which they will only be able to avail themselves for three more weeks:

Anderson and Hill denied they are trying to close the court, one of several specialty dockets in the criminal courthouse that includes drug courts, a veteran's court and a different mental health court.

"I did not kill this deal," Hill said about the money offered by Lykos.

She said the District Attorney's Office decided to not offer the money, but not because of her. "I know there was some interest in it, but my understanding was that, as of Friday, they decided to not do that and let the next administration address that issue," Hill said.

[Outgoing DA Pat] Lykos could not be reached late Tuesday to answer why the offer was apparently revoked.

I wish reporter Brian Rogers has spoken to Judge Lykos or her representatives before publishing, then maybe we'd know what's going on. Strangely, Judge Anderson implied he may still become a white knight to preserve the program, but under his own terms:

Anderson also said he supports Krocker's court and is not trying to close it.

"I have made it known that I am in favor of funding the specialty courts," he said. "Three weeks from now, I'll be in a position to look at things and help them out, not just mental health courts, but drug courts and veteran's courts."

He said he was aware that judges and court administrators are considering a move toward Hill's vision of an oversight committee, but did not know details.

"I want to listen to whatever anybody's got to say about funding drug courts and mental health courts and veteran's courts," Anderson said. "They're good things. I think they make a difference."

Given that Judge Anderson just invited Judge Hill to be his first assistant and she allegedly turned around and began meddling in the outgoing DA's spending from the asset forfeiture fund, the idea that he knew nothing about her actions but is willing to "listen," etc., seems incredible. If he's that disengaged, it's almost worse than if he knew! OTOH, if it turns out outgoing DA Pat Lykos did this, not Judge Anderson's representatives, then Judge Krocker may find herself eating crow. Either way, assigning blame won't solve the problem of the eliminated funding.

For now all we know for sure is that money for the court suddenly peters out at the end of the year. This is a good argument for not funding such courts through the DA's asset forfeiture fund: The DA can always try to apply strings to the funding or eliminate it for judges or programs they disfavor, interfering with judicial discretion. And if the DA you're dealing with "wouldn't" do that, their replacement might. Whether that's what happening in Harris County, time will tell. Anderson could restore funds in January and this will have been a tempest in a teapot, or it could turn out to be an opening salvo as the new DA and his top staff set their own agenda and try to differentiate themselves from their supposedly soft predecessors.

Support growing for jail diversion for traumatized veterans

An advisory group on veterans services convened by the Legislature recommended the criminal justice system be tweaked to accommodate veterans. Reported the Dallas News (behind paywall), "Veterans’ health and mental health needs should be a priority of the criminal justice system, the council’s report said. The Legislature should provide grant funding to local governments for expansion of the Jail Diversion and Trauma Recovery Program, according to the report." (See here for more background on the Jail Diversion and Trauma Recovery Program in San Antonio.)

Arguably, the goal of diverting traumatized or mentally ill veterans from the justice system has wide bipartisan support. Recently Denton County, a conservative bastion, opened its own veterans court, according to the Denton Record Chronicle ("Court program offers new path for veterans," Nov. 11):

For some combat veterans, trauma — mental or physical — is part of their service to our country. Such stress and turmoil can lead some to drinking or other abusive behaviors, and the accompanying run-ins with the law.

County officials see another solution.

The Denton County Veterans Treat­ment Court Program, approved by commissioners in 2009, is finally starting to become active, county officials said.

Denton County’s program is modeled after a successful program in Tarrant County led by Judge Brent Carr and is designed as a collaborative process between the court, defense counsel and prosecutors to treat combat-related mental illnesses that lead to the veteran’s criminal behavior.

“If the veteran successfully completes the program, his or her case will be dismissed by the district attorney’s office — essentially their record will be expunged,” First Assistant District Attorney Jamie Beck said.

Of the crimes committed by program participants, the majority will be drug- and alcohol-related, with some possible violence charges, she said.

“There will have to be consent by the victim for this to happen, and we only take a handful of cases — there is a very rigorous screening process they have to go through,” said County Criminal Court No. 3 Judge David Garcia, who will be hearing the cases.

Grits supports veterans courts but it's important to remember that, in the scheme of things, a "veterans court" is really just a specialized mental health court. So their success hinges on overcoming all the same barriers and shortages that impact non-veteran defendants suffering from mental illness and substance abuse.

Judge orders state hospital to take more competency restoration patients

This blog has long criticized the state's de facto use of county jails as mental health wards, and particularly Texas' failure to provide timely "competency restoration" services when a defendant is deemed incompetent to stand trial. In many cases, particularly for misdemeanants, defendants in the past have ended up incarcerated longer waiting for a spot in a state hospital than they would if they'd been allowed to plead guilty and served their full sentence. The problem reached a boiling point in Travis County last week, reports the Austin Statesman's Chuck Lindell in today's Austin Statesman ("Judge: Mentally ill patients wait too long for treatment"). The story opens:

An Austin judge ordered five Travis County prisoners into treatment at the Austin State Hospital last Tuesday an act of frustration that, if repeated, could provoke a confrontation over the state's underfunded and strained mental health system.

The three men and two women had been ruled incompetent to stand trial because mental health problems left them unable to understand the legal issues involved or assist in their defense.

Charged only with misdemeanors related to family violence or trespassing, the five had been waiting up to 71 days for a bed to open at the Austin State Hospital, where they would receive treatment — typically drugs and therapy — designed to restore mental competence so a trial could be held.

County Court-at-Law Judge Nancy Hohengarten worried that the long wait could jeopardize the prisoners' due process rights, the constitutional guarantee of fair treatment in the justice system.

So she ordered them to be immediately taken to the Austin State Hospital, and within 24 hours, all were admitted.

Problem solved?

No. The hospital, which serves 38 counties, still had 34 felony and misdemeanor defendants on a waiting list for competency treatment as of Friday, including 21 from Travis County, the state health department said.

Another 21 prisoners who have been ruled mentally incompetent were awaiting beds in other state-run facilities that offer specialized care, such as maximum-security settings — including one who's been waiting 257 days and four still waiting after 109 to 180 days.

But as Travis County acted to lessen the pressure on its jails and correct a potential constitutional violation, last week's order raised the pressure on the Austin State Hospital, where the demand for beds has long exceeded the supply.

Half of state hospital beds are designated as "forensic" beds for competency restoration and the other half are used for mentally ill folk who seek treatment in emergency rooms. The Department of State Health Services told Lindell that when courts order them to take someone, they will comply, but "Emergency room patients next on the list to get a bed will now have to wait longer or find psychiatric services elsewhere." According to DSHS, "People committed to the Austin hospital for emergency care typically stabilize and are released in seven to 10 days," while "Restoring a defendant to competency averages 35 days."

Austin attorney Keith Hampton is pushing for more such court orders, telling Lindell, "To be incompetent to stand trial, your mental disability has to be real severe. But when I saw people in jail over 100 days, I just went, 'This is it; enough is enough.' ... Maybe this will make leaving disabled people in jail a very rare occurrence instead of a common one." Hampton has promised to share his legal briefs on the topic with any other attorney statewide with a client in a similar circumstance. Bully for him.

This development in a sense may be an outgrowth of Travis County creating a specialized mental health docket run by Judge Hohengarten. She told the paper that displacing emergency patients weighs heavily on her, but "It is not appropriate to treat them in jail. It's a liability for local counties, and it can be inhumane. It certainly is not a proper way to deal with mental illness." That's very true, but the same thing has been happening for many, many years. Perhaps consolidating all the cases in one county under a single judge surely helped clarify the issue and crystalize what exactly the judiciary can do about it when waiting lists for state hospital beds grow to untenable levels.

There's another aspect to the story I don't quite understand. Hampton

is pushing Travis County judges to put time limits on their orders that declare a defendant mentally incompetent to stand trial.

The strategy works well for Williamson County, where incompetency rulings frequently include a 14-day time limit for defendants to receive mental health treatment, District Judge Billy Ray Stubblefield said.

Hohengarten said she is contemplating a time limit as well — something between a week and 21 days.

Some misdemeanor cases, she noted, have been dismissed because a defendant's time in jail and the state hospital equaled the maximum possible sentence.

"It is not out of the ordinary to have people waiting for unreasonable amounts of time," Hohengarten said. "This has been going on for years."

I'm not sure I see how setting a short time limit would work given long state waiting lists for competency restoration beds, or for that matter how it would be any different from what Hohengarten is now doing much later in the process. What happens if the state fails to accept clients within 14 days, one wonders? Do judges order the state hospital to take them, as Hohengarten has, and doesn't that create the same displacement of emergency beds feared from her recent orders? It's hard to tell from the story how that works.

Legislation approved earlier this year (HB 2725 by Hartnett) ordered judges to count time on the waiting list for restoration services against the ultimate sentence, making it easier to get charges dismissed when time incarcerated reaches sentence length. The bill capped total incarceration time — including both in jail and the state hospital - at the maximum sentence for the alleged offense. As Grits wrote of the legislation this spring, "HB 2725 gives jails a release valve on the back end for less serious cases, but it doesn't resolve the underlying failure of the state to find the right mix of incarceration/institutionalization/community supervision, nor address mental illness in any but the most reactionary way, lurching from short-term crisis to crisis without an overall guiding vision for how all the pieces are supposed to work together. Such discussions, regrettably, are far from today's legislative debate."

Indeed, because the main need is more resources and the state's leadership has long been allergic to new taxes, Texas' political leadership appears utterly incapable of approving more than band-aid fixes to this problem, meaning it's up to judges like Hohengarten to push the envelope until the legislative branch actually addresses it.

County jails and state prisons have become the de facto mental health system in Texas already. This trend, if it continues to its natural conclusion - where forensic beds predominate in state hospitals - would just make it official that the only way to get treatment for serious mental health problems is to commit a crime. The issue has been neglected by state leaders for way too long, and despite dubious assurances by officials in the story that "help is on the way," there's no indication the problem will abate anytime soon without further judicial intervention.

See prior, related Grits posts:

• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

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.

Report: New Options Increase Treatment, Reduce Recidivism for Defendants with Mental Illness

Here's a press release received today from the Texas Task Force on Indigent Defense:

New Options Increase Treatment, Reduce Recidivism for Defendants with Mental Illness

AUSTIN –The Texas Task Force on Indigent Defense released a study today showing that criminal offenders with mental impairments who are treated for their illness instead of being jailed are less likely to commit crimes again for up to eighteen months. Moreover, offenders suffering from one of the three serious mental illnesses--major depression, bipolar disorder, schizophrenia--were twice as likely to receive probation rather than jail time if represented by a mental health public defender, compared to other defendants with similar criminal and mental-health backgrounds.

The two-year study examined mental health courts and mental health public defender offices in three Texas counties: Tarrant, Dallas and Travis. These programs create means through which an arrest can be used to address therapeutic needs. From its findings the study concludes that these specialty interventions offer good alternatives to incarceration that save money and address fundamental problems leading to criminal behavior.

“It’s really a win-win for everyone involved,” said Jim Bethke, Task Force director. “The defendant gets linked in to the local treatment system and that reduces their chance of re-offending. The county ends up putting fewer people in jail, which saves money. ”

Many repeat offenders suffer from mental illness. In many cases, the criminal behavior is more a symptom of the illness than an intention to do harm, according to the National Alliance on Mental Illness and local criminal justice officials.

Mental-health public defenders are specialist attorneys who represent people with relatively complex criminal histories. Social workers assist the public defenders by helping clients stay mentally stable as they prepare for court and can supervise defendants’ compliance with court-ordered treatment.

Mental health courts are often created by a single judge and typically accept people who have committed relatively minor offenses. Offenders can have charges dismissed if they complete the treatment program recommended by the judge and a team that includes a defense attorney, prosecutor and case managers. Together mental health courts and mental health public defenders offer a continuum of resources capable of helping defendants treat the causes of their problems, rather than the criminality that is often symptomatic of larger issues. “People with mental illness are much more likely to have a publicly appointed lawyer,” said Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals and Indigent Defense Task Force Chair. “This is why we think it makes so much sense to develop specialized defense capacity. This study shows that specially trained defense attorneys get better results for clients with mental impairments.”

The study found that both mental health courts and mental health public defenders change the way the criminal justice system thinks about people with special needs. Travis County’s misdemeanor Mental Health Public Defender’s Office offers training and makes social-work services available to private attorneys who represent indigent defendants with mental health problems. In Dallas County, the Public Defender’s Mental Health Unit serves as a resource to judges, private defense attorneys and other criminal-justice workers who encounter defendants with mental illness.

The research was funded in part by a grant from the State Justice Institute and conducted by the Public Policy Research Institute at Texas A&M University in collaboration with the National Center for State Courts and the Council of State Governments, Justice Center. The full report may be downloaded from the Task Force website.

Here's the full report: "Representing the Mentally Ill: An Evaluation of Advocacy Alternatives" (pdf).

Competency restoration often best performed on outpatient basis

Dallas County is experimenting with outpatient competency restoration for some mentally ill people charged with misdemeanors, rather than hold them all in the county jail until space opens up at the state hospital. Reports Jennifer Emily at the Dallas News ("Program for mentally ill offenders offers compassion in court," April 12):

Nonviolent mentally ill defendants can now seek treatment to regain competency – the ability to help their attorneys with their defense – on an outpatient basis instead of waiting four to six months in the Dallas County Jail for a bed at a state hospital where they are stabilized enough to assist in their cases. ...

Last year the pilot program saved the county $300,000 by not housing the defendants in jail, Skemp said. He said it provides resources and treatment while those charged with crimes get healthy enough to face the justice system.

The judge, standing in the role of stern and concerned father, holds what he calls the carrot and the hammer over defendants. The carrot is the promise of treatment in the real world with the hope of getting better. The hammer is jail.

"You've got to have a hammer and a carrot," Skemp said, sitting in his office. "If you don't have a carrot, the hammer won't work."

Skemp began overseeing all the misdemeanor cases of defendants working to regain competency in 2007. Last year there were fewer than 50 defendants in the misdemeanor program. In the felony court, the cases are dispersed among the 17 felony court judges. But soon those cases could all be handled by a single judge, too – State District Judge Jennifer Balido.

There are currently about 35 cases pending in misdemeanor court and 30 in felony court.

The program matches each defendant with a caseworker who will bring them to court. The social workers oversee whether defendants are taking medication and attending classes that range from substance abuse treatment to anger management to life skills. Many live in a halfway house.

Supposedly a pilot outpatient competency restoration program was established in the Dallas area a year and a half ago in cooperation with the North Texas Behavioral Health Authority, but until now I'd not heard how it was working out there. See this flyer [pdf] describing the pilot programs from the Department of State Health Services.

In misdemeanor cases, it's not uncommon for defendants to wait longer in jail for a hospital bed to be declared competent than their sentence would be if convicted. Often people who will ultimately receive probation wait weeks or months in jail simply because they've been declared incompetent. Jail does nothing to help their mental illness, so for all but actually dangerous offenders, doing competency restoration on an outpatient basis makes an extraordinary amount of good sense - that's how IMO most such cases should be handled, especially on the misdemeanor side.

Excellent coverage of Travis County specialty courts

From Jordan Smith at the Austin Chronicle, check out this must-read series of stories on Travis County specialty courts:

• Niche Justice: Travis County specialty courts try to break the cycle of crime
• And Now Veterans: 'We Owe Them'
• Recovery Projects: Alcoholism and Mental Health
• Family Violence Court: 'Homicide Prevention'

A key criticism of specialty courts from the National Association of Criminal Defense Lawyers was voiced in the first bulleted article: "'Judges make poor social workers.' The money spent handling social issues in the courthouse would be better spent on front-end services that might make it less likely that these populations would actually end up in trouble with the law."

That's undoubtedly true. But we live in an era where legislative bodies have sought to impose criminal justice solutions on common social problems - from addiction to mental illness - that would be more wisely addressed in other arenas. Until that changes, specialty courts which rely on strong-probation best practices IMO will in many cases continue to get better results and provide better options for defendants and, ultimately, the state than the traditional adversarial system.

NACDL also fears that collaborative approaches favored in such courts in some ways diminish defendant's rights, and while I can see their point, on that question I think the jury's still out. After all, in a plea-mill type system such as ours where less than 2% of all cases go to trial, those adversarial rights aren't getting routinely exercised anyway.

Plus enforcing those rights via the criminal defense bar hasn't stopped the conviction of innocent people, mass incarceration or the erosion of civil liberties. The adversarial system is important, especially when the lawyers are competent and adequately resourced, but it's not the only possible model nor the end-all be-all of justice, nor has it always worked as well as one might hope. That's partially why, as Jordan Smith notes, "in Austin there are surprisingly few" critics of specialty courts: It's not like the old methods were working so damn great to begin with.

Travis County planning to launch veterans court

Having written over the weekend about the rise of Texas veterans courts, I was pleased to see Travis County announce they'd also create one in addition to their existing mental health court ("Travis County looking to set up court for veterans," Dec. 16):

Travis County officials say not enough is being done locally to identify veterans in need of mental health treatment.

"Obtaining a criminal conviction or serving jail time ... will not resolve the problems underlying the offense," said Travis County Constable Maria Canchola. "Intervention for our veterans is essential."

The possible creation of a local veterans court was hailed by veterans groups as a vital step. "Treatment is far more effective and far less expensive," said Paul Sullivan, head of the Austin-based group Veterans for Common Sense.

Travis County Attorney David Escamilla said a team of prosecutors, defense lawyers and judges will need to work out several details before a veterans court becomes reality, including determining which offenses would be eligible and what services would be offered. Officials will also need to identify funding for the court.

"But there's a great deal of momentum to move forward with this," Escamilla said, adding that the court would probably begin handling misdemeanor cases but could take on felony cases.

According to the Statesman:

Last month, Harris County set up a veterans court pilot project, and Tarrant County last week decided to accept a $200,000 grant from Gov. Rick Perry's office to hire staffers to manage a veterans court there. The Texas Legislature passed a law this year allowing counties to create veterans courts.

This new veterans court model - which garnered little focus, at least by me, when it passed this spring during the 81st legislative session - already appears quite popular, with three of Texas' largest five counties already choosing to launch an innovation that existed nowhere in the world this time two years ago.

I welcome the use of alternative sentencing and stronger probation methods through these type of specialty courts, though I recognize that, if they became popularized, veterans courts may pose equal-protection questions, as several Grits commenters pointed out. Since Travis County also has a mental health court for civilians, though (and since veterans courts are basically mental-health courts that cover post-traumatic stress), maybe this won't be too big a concern.

In the big picture, though, veterans courts are a terrific experiment: They apply evidence-based strong probation tactics from drug courts and other specialty-court settings theoretically to any type of offense. So they give an opportunity to test whether techniques that most judges agree are working pretty well on specialized caseloads for addiction-related offenses could be applied more broadly to all types of crimes. For that reason, I view such courts as pilot programs presaging how we may sentence and supervise non-veteran offenders in the future if it all works out. Perhaps that's too optimistic, but veterans courts definitely take the gloves off the old drug-court model by allowing it to apply to any offense, and the approach is clearly going to be tested in the near term, at least in these jurisdictions and probably more before all is said and done.

MORE: Murray Newman has a post up on Houston's new veterans court.

Texas veterans courts an aggressive version of problem-solving jurisprudence

During the 81st Texas Legislature a little-noticed amendment to SB 1940 may have launched the most comprehensive, aggressive brand of "problem solving court" I've yet seen in the Lone Star State: "Veterans courts."

The bipartisan amendment authorizing them, which was essentially similar to SB 112 by Rodney Ellis, was proposed by Reps Frank Corte and Allen Vaught on third reading, accepted by bill sponsor Solomon Ortiz, then approved by the House 146-0.

If authorized by a county commissioners court, Texas veterans courts can be used for any misdemeanor or felony offense - with no limitation - when the veteran defendant has a brain injury, mental illness or mental disorder, including post-traumatic stress, that "resulted from" military service in a combat zone.

By contrast, a veterans court in Colorado Springs, CO - which was the first I've heard of this new breed of specialty court - opened earlier this year with only a misdemeanor caseload. According to the LA Times, veterans courts began in Buffalo, NY in 2008 and more are opening around the country.

In veterans court, Texas' statute mandates that the DA and criminal defense attorney participate in a "nonadversarial" fashion to create an "individualized treatment plan" for the offender. The prosecutor must agree to the approach and the defendant may also choose not to participate. If the veteran successfully completes the program, charges may be dismissed "in the best interest of justice."

Tarrant County plans to open a veterans court using federal grant money distributed through the Governor's office. I don't know how many other counties will establish veterans courts, how many defendants prosecutors might admit into such programs, for what offenses they might be used or even whether the idea will work. The bill says programs must notify the Governor's Criminal Justice Division before commencing, so I'll check with them in the coming week. But my gut tells me this will be a successful approach, though perhaps not for the reasons the amendment-authors conceived.

Recently I wrote about research on the relationship between mental health, criminality and community supervision by Dr. Jennifer Skeem. She concluded that specialty mental health caseloads succeeded not because mental health problems promoted crime per se, but rather because courts and probation officers in those settings were more likely to use evidence-based practices when dealing with the offender instead of more punitive, authoritarian approaches.

That analysis strikes me as likely applying to veterans courts as well, since at the end of the day they're basically specialized mental health courts. They are likely to succeed, based on Skeem's analysis, if only because they're mandated under this statute to use a best-practices approach aimed at helping the defendant succeed instead of only punishing them when they fail.

I also like that veterans courts would be open to any type of offense, not just drug and alcohol-related crimes. Drug court judges like John Creuzot in Dallas for years have said that a greater array of offenses should be included in problem-solving courts like his DIVERT court in Dallas; Texas' veterans courts, though, tear down that artificial barrier entirely. There is no offense, even murder, that's not in theory eligible for veterans court diversion (though I doubt any prosecutor would ever agree to it in that type of case).

The House Criminal Jurisprudence Committee was told to monitor the rollout of veterans courts as one of its "interim charges" assigned by the Speaker of the House, so there will be more opportunities next year to learn where and how these courts are being used.

RELATED: From Sentencing Law & Policy, "Judge suggests more sentencing options for war veterans."

Jennifer Skeem on Sentencing and Mental Health

Yesterday morning I heard a provocative and informative talk at the Texas Judicial Advisory Council's biennial sentencing conference from Dr. Jennifer Skeem, who is a member of the MacArthur Research Network on Mandated Community Treatment, and Centers for Psychology and Law and Evidence-Based Corrections, on the subject of "Mental Health and Sentencing." Here are some of the highlights from her comments. (All statistics were sourced in her presentation.)

Skeem's big picture thesis: For most mentally ill offenders, especially repeaters, treatment and medication alone usually isn't enough to stop recidivism. Instead, research shows that people with severe mental illness tend to have more criminogenic (crime-causing) risk factors - bad neighborhoods, destructive peer groups, antisocial personality or cognition, etc. - and those correlate much more strongly to recidivism than does mental illness.

Generally stating the problem, said Skeem, people with mental illness are significantly overrepresented in the system. Rates of mental illness among offenders are 3 times the average for men, twice the average for women (who have higher rates generally). Overall, 14% of male defendants and 30% of women suffer from severe mental illness, she said, and 72% of those have a co-occurring substance abuse disorder. Most are supervised in the community on probation and they often "fail." People with severe mental illness are twice as likely to have their probation revoked for technical violations, she said.

In most jurisdictions (73% according to a national survey), sentencing of mentally ill offenders by judges is usually "non-specific," often amounting to checking an additional box on a form - usually labeled "mental health" - that would then authorize whatever treatment package the prison or probation department wants to apply.

There is an "implicit" model in current sentencing practices regarding the mentally ill that Skeem believes is misdirected. Mental illness is seen as the root of offender criminality, so the offender is sentenced to treatment. Once their symptoms are reduced, by this logic, supposedly criminality will decline.

In practice, she said, increased mental-health services often do not result in fewer arrests or recidivism gains, even if they successfully reduce symptoms in the patient. Improved symptoms and functioning typically don't reduce crime, she said (with the notable exception of those whose offenses involve domestic violence). Even "Cadillac" mental health treatment programs don't translate into improved public safety outcomes.

That's because only about one in ten offenses by people with severe mental illness result directly from their mental health condition, she said, citing what she described as "elegant" cutting-edge research. Substance abuse is statistically a bigger contributing factor, but even it doesn't fully explain the data. The real problem, said Skeem, is that mentally ill offenders tend to have more overall risk factors than their counterparts. She emphasized that this insight should not be used as an excuse to avoid treating mental illness and that offenders who needed it should absolutely receive treatment. But mental health treatment shouldn't be seen as a primary way of changing offender behavior, which most frequently stems from other causes.

Skeem encouraged judges not to treat mental illness as some sort of "master status," but instead to target "criminogenic needs" just like the evidence-based practices models designed for regular probation caseloads. In the Q&A afterward, I asked what that position implied for mental health courts and specialized probation caseloads focused on the mentally ill. But Skeem declined to criticize such programs, saying they were important but that their focus should shift.

Indeed, Skeem said that where specialty mental health programming by courts and probation departments had been successful, it was primarily because they're more likely to studiously apply evidence-based practices and problem solving approaches than in regular probation.

In particular, she said, use of "authoritarian" approaches by probation officers tend to produce worse outcomes for all probationers, but particularly those with severe mental illness. Use of threats and punishments by POs measurably affect whether outcomes improve, she said. Negative pressure on probationers predicts failure. So in some instances specialized caseloads have demonstrated success not because they treat mental health needs but because they're more likely to adopt these evidence-based probation approaches.

Skeem said that "stigma" associated with mental illness along with "paternalism" by those in the system led to worse outcomes for probationers with mental illness. Though the public views the mentally ill as scary people, statistically they're no more likely to be arrested than the rest of us, she said. However, once on probation, people with mental illness are much more likely to be revoked on technical violations. Surveys of probation officers show some don't like having the mentally ill on their caseloads and may revoke them or seek to shift them to other programs so they won't have to deal with them.

From the standpoint of reducing crime, the best approach for probationers with mental illness, she said, is to focus on screening and assessment aimed at identifying criminogenic factors generally, then using those specific assessments to inform sentencing, tailoring which evidence-based practices are used based on individual circumstances.

For probation officers, said Skeem, offender visits should become less about "monitoring" and more about discussion of criminogenic needs and risk mitigation. Research by Jim Bonta has shown that just as negative pressure predicts failure, time spent on problem solving and navigating criminogenic factors "correlates powerfully" with reducing recidivism.

If accurate - and Judge David Crain who runs Travis County's mental health court told me most of the presentation jibed with his experience - Skeem's insight about the causes of crime among mentally ill offenders suggest helpful ways to reduce crime overall. "What works" for the mentally ill appears to be pretty much what works with regular probationers, it's just that probation departments don't regularly apply evidence-based practices outside of these specialty caseloads. If those techniques were implemented more widely, it follows, the approach should reduce recidivism among both groups.

RELATED: Go here for links to Skeem's research.

Harris County judges vote next week on creating new mental health court

An editorial in the Houston Chronicle supporting creation of a Harris County mental health court mentions that on Wednesday, November 4:

[Harris County] criminal district court judges will vote whether to approve a detailed plan for a new “mental-health court,” a program that promises to cut crime, take a humane stance toward mental illness and save taxpayer money all at the same time. If the judges vote yes — and if Harris County commissioners then budget money for the program — the court could begin operation June 1.

The plan, created by 184th State District Court Judge Jan Krocker, a Republican, and more than a hundred mental-health stakeholders, would work like this: If charged with a non-violent felony, someone diagnosed with a significant cognitive impairment or mental illness (schizophrenia, bipolar disorder, post-traumatic stress disorder and the like) would quickly be offered a choice: regular court or mental-health court. Defendants not competent to make the choice aren't eligible; those defendants are either sent to a state hospital or medicated in hopes that they become competent to stand trial.

Staffed by a judge, lawyers and caseworkers trained to deal with mental illness, mental-health court would be far less adversarial than regular courts. Both the prosecution and defense would agree that the goal is for the defendant to successfully complete the treatment plan prescribed by the court's psychiatrist, including mental-health treatment and anything else, such as drug-abuse counseling, health care or job training, deemed necessary to straighten out the defendant's tangled life. Court social workers would help find housing and health care.

And the court's judge would monitor the defendant's progress — meeting with him or her every week, if necessary — and could punish failures to comply with jail time.

Travis County's mental health court appears to be having success, so hopefully the new one in Harris will, too. The biggest barrier to expansion in Houston, says the Chronicle, may be a lack of community based treatment resources:

The Harris County proposal suggests starting small in 2010, sending 26 percent of a narrowly defined group of eligible defendants — about 200 a year — to the new mental-health court. More than that, notes the planning team, would overwhelm the already strained patchwork of social services that provide support for Texas' mentally ill. The court, after all, has to be able to refer its defendants somewhere for help.

Stronger probation methods and problem solving courts seem tailor-made for so-called "frequent flier" defendants who are likely to wind up on the mental health docket, but only if community-based services are adequately supported. Some have been incarcerated dozens of times, so it's not like jailing them is keeping the public from interacting with them. But their past interactions with the jail, as the county's largest mental health provider, nobody ever helped them how to control the underlying illness under supervised conditions where they're held accountable for things like staying on their meds and keeping a job. Instead, probationers were left on their own to sink or swim.

The shortage of services isn't just a problem in H-Town. The public health system has gotten so used to treating mental illness in county jails that community-based resources have atrophied, even though they're cheaper and in most instances more effective. Simply creating a new court docket won't help in the long run if the service shortage isn't addressed, but perhaps the court can also be an effective advocate to communicate with the commissioners court what resources are needed to manage this large subpopulation of offenders that soaks up a vastly disproportionate share of criminal justice resources.