CHAPTER 2
The Shackles Come Off
“Welcome to mental health court,” I said in lieu of the formal “All rise” pronouncement to the open court. The informality is important. The phrase helps to set the tone for a courtroom culture where human dignity, therapeutic justice, and the rule of law coexist. In mental health court, I have learned, small things often can make a big difference.
Within the first year of the court I began to recognize the depth of emotional pain and desperation of many of the families who came to court seeking help on behalf of their loved ones who were ill. I understood that to humanize justice, court proceedings needed to feel welcoming and hopeful. My goal was to create a sharp contrast to how court process typically was experienced by articulating a warm welcome and by explaining the concepts and principles of psychiatric rehabilitation in simple, easy-to-understand terms, whenever possible. The mission for a court of refuge would be to leverage the law to reach a therapeutic outcome. How I spoke and the way I described the mission of the court needed to be authentic, and the goal of decriminalization had to be demonstrated by words paired with judicial action.
According to the principles of therapeutic jurisprudence, it is the psychological forces of the court process that can “tip the scales” toward dignity and respect. From the perspective of procedural justice, the perception of fairness is what matters, and defendants must have the opportunity to share their lived experiences with the court so they feel that they have been heard. In terms of communication and court process, there is always a presumption of trauma, meaning that the court process is needed to support the restoration of personhood through the value of dignity. Therefore, the tone of my voice and language needed to reflect that value. An empathic tone coupled with a strength-based approach to recovery would be reaffirmed in continuous messaging by me: “If you want our help to engage in care—we will do everything we can do to support you.”
I also understood that the courtroom needed to be a classroom. There are so many myths to shatter about mental illness, such as the stigma and the shame that can accompany a diagnosis of mental illness. It was imperative to learn about people’s lives in order to humanize the court process. This was done by asking basic questions, such as “What did you want to be when you were young?” “What are your dreams? Did you go to school?” Through this process, we were subtly putting centuries of discrimination and institutional bias on trial. In a therapeutic court, traditional formalities that have historically defined the court process needed to be recast to humanize justice, not just for the court participants but for the attorneys, court staff, and the community at large.
Whereas typical courtrooms command a certain degree of awe and respect for traditions steeped in archaic forms of address and formality, the mental health court placed its judge on the level of a provider of human services. The unprecedented informality was often the key factor that allowed our clients to truly divulge their histories, which in turn made it possible for the court to link them to the services they desperately needed.
I scanned the courtroom to see who was present. I noticed that the court was filled with new referrals, family members, and court observers. I was particularly interested in a petite woman I saw while entering the courtroom. She appeared to be upset, and I asked the deputy if he would escort her up to the bench. I learned that her name was Ellen Boyd, and she was here on behalf of her son, Hayden, who had been arrested for allegedly stealing several packs of batteries from a local pharmacy.
“Hayden is a good boy,” she said, almost in a whisper.
“I know this is difficult,” I said, “but we are going to help you.”
In truth, I shared her emotional pain. I could tell from the arrest paperwork that Hayden was young and struggling. Hayden was twenty-five years old and had been diagnosed with schizophrenia. He had been transferred by the judge in the first appearance court to the Broward County Mental Health Court. According to Rule 3.130 of the Florida Rules of Criminal Procedure, every person arrested must be taken to a judicial officer within twenty-four hours of arrest to be advised of the charges and to make legal findings. When the Broward County Mental Health Court was established, first appearance court was identified as the earliest point in the arrest process to intervene and identify people with mental illness who may qualify for the mental health court and who require psychiatric screening, triage, and swift diversion from the jail system.1
Today, Hayden was returning to court after having been transferred to the mental health court about a week earlier. Hayden had been clinically screened and assessed, and the clinical screening indicated that Hayden would meet the legal criteria for involuntary civil commitment. An emergency order for transportation had been entered by the court.
Hayden appeared confused and in a daze as he entered the courtroom in shackles and handcuffs. He had not posted bond, and technically he was still considered to be in the care and custody of the jail. Because he was no longer dressed in a jail jumpsuit, everyone wondered: Is Hayden a prisoner or a patient? The shackles and handcuffs said “prisoner,” but what he was wearing said “patient.”
I took a deep breath and grabbed a tissue in case I needed one. These moments are always very difficult for me.
I asked Hayden’s mother if she needed a tissue. She shook her head no and proceeded to bury her face in a handkerchief and sob. When she recovered, she said, “I can’t bear to see my son in handcuffs. He is a good boy.”
“Of course he is,” I said. Then I told her that he was going home. “It is important to talk about what we need to do next so Hayden can get well and live a meaningful life.”
Mrs. Boyd raised her head and listened as I began to explain the basics of mental health recovery, engagement, and treatment planning. I grabbed the nearest legal pad and turned it over to the cardboard side, where I always begin my simplified explanation of the importance of person-centered treatment planning, which is so central to the work of the mental health court.
I drew a pie chart with several slices and placed a stick figure in the middle of the pie. I marked the first slice “medications” and another slice “talk therapy.” The third slice represented psychosocial services, such as day treatment, community case management, and peer support. The fourth slice included nutrition and fitness; the fifth slice, enrichment activities such as favorite social activities and hobbies, creative pursuits, and spirituality. The sixth slice was for goals related to education, work, and career development.
Every time I near the end of this demonstration, I point to the stick figure in the center of the pie to emphasize that the treatment and service plan is person-centered. I did this for Hayden and his mother. Making a circle with my arms, I said, “This means your treatment plan is intended to wrap around you and evolve to meet the wants and needs of a person’s vision of recovery.”2 Each time I describe a person-centered plan, I emphasize that everyone’s path to recovery is unique and every individual has the potential to recover.
Instinctively, I leaned forward in my chair.
“You need to know, Mrs. Boyd,” I said with conviction, “that people can and do recover from serious mental illness, like they recover from physical illnesses. Hayden has great strengths and gifts. With patience, and an abiding belief in recovery, these strengths will guide his recovery.”
Mrs. Boyd nodded in agreement, even though she was visibly overwhelmed.
It is fair to say that the pie charts I make in court to demonstrate person-centered care are makeshift and simple. In fact, each time I go through this exercise (which takes several minutes) I joke that I should use a pre-made demonstration poster. But of course, that would be too easy and too impersonal.
Despite my misgivings about the simplicity of my explanation, I cling to the view that my spontaneity and intensity communicate caring and inspire hope. Perhaps it is my passion or how I abruptly rummage through my stacks of papers to locate a legal pad? In a court that applies therapeutic jurisprudence not necessarily what a judge says but how the court process is experienced is what remains with clients and their families after the court session has ended.
Often, when I draw the chart, I notice the other defendants sitting in the jury box lean in to listen to my remarks about recovery. I ask them, “Did you understand what I was saying?”
Usually they smile and enthusiastically nod their heads yes. A few may even give me a thumbs-up.
“Look to the future,” I tell them. “There is no reason why all of you cannot transcend whatever is happening in order to live a positive and productive life.” I often refer to the Adverse Childhood Experience (ACE) Study, which focuses on the consequences of unresolved trauma and victimization.3 The ACE Study is one of the largest scientific research studies in the United States that has provided evidence of the relationship between adverse childhood experience, chronic medical disease, and negative social consequences.4 I began applying the ACE Study in the court process within the first few years of the court’s existence. It was clear to me that when one understood the evidence base and data surrounding the consequences of unresolved trauma and victimization, court participants could better understand the “why” behind their poor choices, unhealthy behaviors, and bad decision-making.
The ACE Study, which started in 1985, was conducted by Kaiser Permanente and the Centers for Disease Control to determine why people enrolled in a Kaiser Permanente obesity clinic were dropping out, notwithstanding their success in the program. The initial findings of surveys led the researchers, Dr. Vincent Felitti and Dr. Robert Anda, to the conclusion that a majority of the 286 people surveyed had experienced childhood sexual abuse.5 From 1995 to 1997, the study expanded to include over 17,000 middle-class members of Kaiser Permanente’s San Diego Care Program.6 The results revealed that adverse childhood experiences play a profound role in the future of one’s health and quality of life. The higher one’s ACE score the greater the risk one would be affected by chronic medical illness, including mental illnesses such as depression, anxiety, and substance abuse.
The ACE Study developed a framework of ten ACE “events,” including three types of abuse (physical, sexual, and emotional) and seven types of family dysfunction (mother treated child violently, substance abuse in household, mental illness in household, parental separation or divorce, criminal member of household, emotional neglect, physical neglect).7 The ACE Study and its findings are used in many courts throughout the United States, including family law courts, juvenile courts, and dependency courts.
As in all matters of public health, prevention and early intervention for children are critical. The economic costs of childhood maltreatment in America across all institutional systems, including criminal justice, totaled $124 billion in 2012.8 In mental health court, the information surrounding childhood maltreatment and the ways adverse childhood experiences often lead to risky behavior, substance abuse, and justice involvement is often, actually, welcome news. This is because for many individuals who come before the mental health court, it is the first time they realize that their attempts to fix their problems were not adequate on their own, but that through a therapeutic approach they could begin to heal from traumatic experiences that have followed them like a black cloud.
I let them know that everyone has something to recover from. Usually, several defendants look at each other with approval. This is when they “get” it. They are engaged and eager to affirm what they are hearing.
In addition to the educational value of my pie charts and discussions with clients, I have found that these discussions go a long way toward promoting human dignity. In the course of my career I have always believed it is important for the men and women involved in the criminal justice system to be informed, to know that the science behind trauma and treatment aids people’s ability to connect the dots, to be advocates for themselves, and to appreciate the root causes of human behavior, including their own. In this part of mental health court, we usually talk about the social determinants of population health and disparities in health care that may have contributed to their involvement with the judicial system in the first place.
Social determinants of health such as poverty, unequal access to health care, lack of education, unemployment, racism, and adverse childhood experiences and trauma are drivers that can lead to incarceration. According to the data, poor people, especially people of color, face a greater likelihood of being arrested for minor offenses than other Americans.9 These intersections give rise to the need to implement mental health screenings and interventions for children to prevent the worsening of adverse childhood experiences, and they are essential to the promotion of public health, public safety, and social justice. According to the Bureau of Justice Statistics, in 2016, half of all jail inmates reported having a chronic medical condition such as cancer, high blood pressure, diabetes, asthma, or heart problems. More than 40 percent reported suffering from a mental health disorder such as manic depression, bipolar disorder, schizophrenia, and anxiety.10 More than half of jail inmates without mental health problems were dependent on or abused alcohol or drugs, and more than three-quarters of jail inmates met criteria for co-occurring mental health issues and substance use dependency or abuse in 2002.11 As for women in the criminal justice system, several sources, including the Center for American Progress, have reported that 85 to 90 percent of women who are incarcerated or under community corrections supervision in the US have a history of being victims of domestic violence and sexual abuse, and suffer from a substance abuse disorder.12
There is no doubt that mental health is essential to overall health, and education is vital.
I often continue my courtroom lecture for a few more minutes, sounding more like a professor than a judge. During moments like this, I ask the courtroom, “What is the relevance of the question ‘What happened to you?’” For many, it offers a point of beginning for self-reflection and the realization that personal restoration is possible. Research reveals that many people seek personal solutions to emotional pain. The problem is that most people opt for a band-aid approach, for quick fixes such as self-medication with alcohol or drugs and sensation- or thrill-seeking behaviors.
“Often, personal solutions may seem helpful but can lead to negative outcomes,” I say. I cite the work of Dr. Steven Gold, a professor of psychology and a national expert on trauma, to encourage mental health court participants “that healing from trauma is possible.”13 I offer handouts about the ACE Study for those who are interested. We usually end the session talking about strategic goal setting and about taking a restorative approach. Once we understand the science and research behind trauma and recovery, we all have a responsibility as adults to work toward recovery from a therapeutic approach versus quick fixes—which only exacerbate the problems.
Each time I engage with the courtroom this way, I think to myself, This is what a therapeutic courtroom feels like. Every day, I can discuss the promotion of public health and mental health in a criminal justice context with an audience whose members need to hear it the most. In addition to linking these subjects with discussions about personal accountability and individual choices, we talk about conflict resolution and the promotion of peace. These are high-altitude discussions, which at the very least offer constructive food for thought and at best can ignite transformative change.
During these moments, which sometimes feel more like an episode of Oprah than a courtroom, there is often laughter when spontaneous comments emanate from the jury box or gallery. I often ask, “What did you want to be when you were little? What was your vision? It’s never too late to make that pivot.”
You never know what someone will say.
The positive discourse in the courtroom shifts the energy, and feelings of optimism emerge. Once a defendant said, “Thank you, Judge Lerner-Wren. No one has ever talked to us like this before.” This is the power of therapeutic jurisprudence.
If a judge has the desire to relate to her defendants from an authentic human level, then the essence of humanizing justice, I hope, has begun to be realized.
During the educational portion of the docket, legal and clinical staff are busy reviewing case statuses and calling community providers to ask about bed accessibility and community placements. It is fair to say that it’s helpful to have a larger courtroom to accommodate the clinical screening and problem-solving activities of the mental health court, which require care coordination and system navigation. It is important to note that although the style of judging and the informal atmosphere in a therapeutic court are different than in a traditional court, the courtroom is the same. For example, when one enters my assigned courtroom, there are six rows of benches on either side of the public gallery. There is a jury box with two rows of six high-back leather chairs. One feature of the courtroom is a large painting the size of a mural, contributed by a retired public defender, Fred Goldstein, in 2007, that faces the jury box. It commemorates the mental health court’s tenth anniversary. I named the painting Horizons because of its sprawling landscape of sky blue and pale green, expressing a vision of peace and well-being. Finally, facing the bench are two podiums, for legal argument, and two tables, one each for the state prosecuting attorney and for the defense attorney.
Since the mental health court’s inception, I have been fortunate to have the support of experts in the field of mental health law and therapeutic jurisprudence (TJ). David B. Wexler describes therapeutic jurisprudence as “the study of the role of the law as a therapeutic agent. It focuses on the law’s impact on emotional life and well-being. The science of therapeutic jurisprudence is a perspective that the law is a social force which produces behaviors and consequences.”14 I called on Wexler and Bruce J. Winick, both law professors, and Michael L. Perlin, a professor of disabilities rights law and human rights, to ask whether they would be willing to act as consultants on court process. They all graciously agreed. The law reform science of TJ was already being applied in other problem-solving courts, such as drug courts and domestic violence courts. The revolutionary concept that courts have the potential to heal was a perfect fit for Broward’s newest addition to the array of problem-solving courts.
I was ready to call the next case when I heard someone begin to yell from the back of the courtroom. Two jail deputies escorted a young, intellectually disabled man to the front of the court. Handcuffed and distraught, Joseph Henry, a twenty-four-year-old man dressed in street clothes, was a client of Florida’s Agency for Persons with Disabilities (APD). He had seen his independent support coordinator, Samantha, sitting in the gallery. “Sam! Sam!” he called.
Joseph lived in an APD group home in the community. He had been arrested for loitering at a convenience store. I immediately called Sam to the bench. I introduced myself and thanked her for her service. I proudly shared with her that as a former public guardian for Broward County, I was responsible for the health, welfare, and safety of many adults with developmental disabilities—a uniquely gratifying role.
I asked her whether she was permitted to transport Joseph back to his group home. She said she could.
“Fantastic,” I said. “Perhaps you could go over and let Joseph know he will be going home with you in a few minutes?”
I watched as the two spoke like old friends. Joseph became calmer. I took another deep breath and thought about what could have happened to him in a jail setting. If his demeanor entering the courtroom was any indication, Joseph would have felt trapped and would have exhibited behaviors that prison staff could have mistaken for aggression or violence. Correctional officers responsible for Joseph’s care and custody, who are not trained to appreciate his intellectual challenges, might have misinterpreted his inability to follow simple instructions and responded punitively. Such a response could easily escalate, causing Joseph to feel threatened and act out. This would subject Joseph to disciplinary action, which could include seclusion or restraint, possible use of excessive force, or being placed in solitary confinement.
The next person on the docket was Roger, the first case heard by the mental health court. Greg Forster, the mental health court clinician, on loan from Henderson Behavioral Health Center in Broward County, told me that Roger was now ready for his case to be called. Recently discharged from the psychiatric receiving facility, Roger was not alone in court—his parents had come with him.
Greg began the hearing by introducing Roger’s parents. He informed me that Roger had gone missing for several years and had been homeless. His engagement with the court had led to his reunion with his family. An older couple, Roger’s parents were from Central America and spoke little English. I asked my clerk, Digna Gonzalez, if she would help translate for them.
Roger’s hair was cut, and for the first time, we could see his face. He was nicely dressed in a long-sleeved collared shirt and jeans. He was smiling and happy to be back with his family. Roger’s father thanked the court and wanted to let me know that they had known that something was wrong with Roger, but did not know what to do to help him.
As my clerk helped Roger’s parents speak to us, I learned that Roger had been raised in South Florida and had become ill in his late teens. We talked about the mission of the court, and I appointed legal counsel on his behalf.
I let Roger’s parents know that what happened to their son and the disintegration of their family were the reasons this court was established. To underscore the importance of defendants like Roger, I added, “What you experienced is a social injustice, which must end.” Then I explained Roger’s constitutional right to challenge in a trial the disorderly conduct that had resulted from the disturbance in the convenience store, and I emphasized that participation in the mental health court is voluntary.
“I want to stay in the mental health court,” Roger said.
Greg indicated that Roger’s discharge plan called for Roger to live at a residential supportive housing program, close to his family’s home. I established for the record that I had agreed to Roger’s plan upon notification from the hospital that Roger was well enough to be released and then had issued an order for Roger to go directly to his housing program. With treatment and a safe place to live near his family, Roger was doing much better. He was soft-spoken but told the court that he would be attending day treatment and spending time with his family.
“I . . . I would also like to go back to school,” he said quietly.
I was thrilled, and the entire courtroom broke out in applause. We couldn’t help it. The applause was as much for Roger as it was to acknowledge that the mental health court was working. I congratulated Roger on his achievements and asked him if it would be OK for him to come back to court to let us know how he was progressing on his discharge plan goals.
He said it would be.
We gave him a future court date to review competency issues. Under Florida law, when a person is charged with a misdemeanor offense and found by the judge to be “incompetent to proceed to trial,” the judge has no legal authority to forensically commit that individual for purposes of competency restoration—that is, commit her or him to a state hospital, jail, or prison, like persons charged with a felony offense.15 A defendant is incompetent to proceed to trial “if that individual does not have sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding of the proceedings against him/her.”16 The issue of forensic commitment has emerged as a serious problem in the state of Florida due to spiraling costs associated with the objective of competency restoration for purposes of standing trial.
In 2015, the Tampa Bay Times–Herald Tribune ran a series of investigative reports on Florida’s mental health institutions. In one of the stories, it was said that after paying for months of “competency training,” patients are released, often back into the local jail system. As they wait for their cases to be scheduled, they relapse, and the entire forensic commitment process is repeated, until that person is released, as in the case of Aaron Wynn, with no place to live and no support—leaving individuals and families desperate for mental health services.17 Further, although many correctional officers and personnel do their best to meet the needs of the mentally ill population, there have been allegations of abuse and neglect of inmates, such as in the case of Aaron Wynn.18 In 2015, Human Rights Watch reported that an estimated four hundred thousand inmates with mental disabilities and intellectual disorders are held in US jails, prisons, and forensic hospitals. According to HRW surveys, staff shortages, overcrowding, inadequate training for staff in techniques for deescalating conflict and trauma, and a lack of rehabilitative programming can contribute to incidents of punitive disciplinary actions, which may include excessive use of solitary confinement, seclusion, restraint, physical and psychological abuse, and the denial of food or medical care.19
The presiding judge’s goal is not only to divert people with mental illness and co-occurring disorders out of the prison system and to community-based care, but also to prevent people from languishing in jail or from being trapped in a revolving door of arrest cycles. Under Florida law, persons charged with a misdemeanor offense who have been found by a judge to be incompetent to proceed to trial are subject to case dismissal at twelve months from the date of the order after a hearing that finds that there has been no change in competency status.20
I anticipated that Roger’s case would ultimately be dismissed.
The marathon session continued and the public defender advised me that several of her clients wanted to challenge their charges by way of trial—that is, they wanted their cases to go to trial. After private consultations with the public defender, her clients decided to ask to opt out of participating in the mental health court. After all, the mental health court is voluntary and offers a problem-solving treatment, not a traditional trial. Many individuals are interested in participating in a therapeutic court in exchange for avoiding the risk of sanction, such as probation or jail. In this sense, the court offers a positive alternative to the traditional court process. On the other hand, those individuals who desire to exercise their constitutional rights to have their day in court may simply request to transfer out of the mental health court, and we let them know that the door remains open. I immediately signed a transfer order to have these individuals docketed in their regularly assigned criminal divisions.
Then I received the “all clear” from my deputy that Hayden was ready for release, which meant he could be released from the courtroom and did not need to return to jail for processing. I asked Hayden’s mother to return to the bench and reminded her about how important it is to follow up with Hayden’s discharge plan. I asked my judicial assistant to give his mother a written safety plan, which included important telephone numbers such as that of the Henderson Mobile Crisis Unit and other crisis hotlines of local community supports.
Currently, every court participant receives a mental health court safety plan including the telephone number for the National Suicide Prevention Lifeline and other contact information for crisis response and resiliency planning.21 These precautions are necessary in Florida, which ranks forty-ninth in mental health funding in the country.22 This is a deplorable circumstance, given that Florida is the third most populous state; hundreds of thousands of Floridians lack health insurance or Medicaid.23 In fact, the state of mental health across the United States is in shambles. The lack of sufficient funding and investment in statewide mental health care delivery systems that are accessible, affordable, and recovery-oriented has led to crisis for individuals and families across our nation. What policymakers fail to realize is that according to the data one in five Americans (adults and children) suffers from a mental illness at some time in their lives.24 The negative and collateral consequences of untreated mental illness, according to the National Alliance on Mental Illness, includes absenteeism, worsening health conditions, family erosion, homelessness, substance abuse and addiction, crime, incarceration, and suicide. From an economic perspective, untreated mental illness costs America $193.2 billion annually.25
In 1999, two years after the start of the Broward County’s Mental Health Court, US Surgeon General David Satcher released the landmark Surgeon General’s Report on Mental Health.26 Satcher described a mental health field “plagued by disparities in the availability of and access to its services.” He spoke of forty-four million Americans without health insurance and the fact that “we have allowed stigma and hopelessness to erect barriers to care—and [now we have] declared it is time to take them down.”
As I thought about Hayden and his mother, I’m reminded of the words and the vision of Dr. Satcher for our nation. For the entire session, Hayden, still shackled, had stood quietly before the court as we waited for his paperwork to be processed.
It took only minute, but to me, seeing what happened next always feels like a miracle. The shackles and handcuffs were removed, and Hayden, now free, wrapped his arms around his mother, embracing her. The vision of the end of criminalization of people with mental illness in America comes to life in this moment.