CHAPTER 4
The Raging Voice of Dignity
“Quiet please,” the court deputy bellowed. “Court has begun.”
The mental health court docket is sandwiched in between morning and afternoon sessions of my regular county criminal division and there is never a spare moment to waste. Each day it is imperative that I give every defendant the time they need. I have learned from Lilly and so many others that there is no telling how complex an individual’s case may be or what may occur while we are trying to find the most appropriate solution to a defendant’s request in mental health court.
“Judge Lerner-Wren.” A frail female voice traveled over the heads of other court attendees. The defendant, named Marian, sat in the first high-back leather chair in the jury box, closest to my bench.
“Yes,” I said in a calm voice.
Marian was handcuffed to the high-back chair. She was a tall woman with shoulder-length brown hair that was partially pulled back while some strands hung loosely around her face. I thought to myself that whatever Marian has been going through, she looked as if she was having a very rough time.
Today, several representatives of the Broward County chapter of the National Alliance on Mental Illness (NAMI) were present as court advocates for Marian. NAMI members Joanne Neagus, Evelyn Miller, Pastor Barbara Shaw, and Bernice Cooper, regular fixtures in the court, were here to lend support to the distraught woman in the jury box. This was not unusual: Broward NAMI is a major referral source for the mental health court and has offered advocacy services during court proceedings since the court’s inception. In truth, although the court is dedicated to Aaron Wynn, it is also considered a gift to Broward’s NAMI families and mental health consumers due to NAMI’s integral role in advocating for the creation of the court. Many NAMI members met with the former Broward County chief judge, Dale Ross, and shared with him their experiences with the mental health system. Their insights helped to highlight the need for a specialized court.
Marian, who suffered from depression and co-occurring substance use disorder, demonstrated this need distinctly. She was chronically homeless and had been arrested for possession of drug paraphernalia.
“Judge,” she cried, “I am so ashamed! Look at this—look—I’m in shackles!” Marian lifted her feet up and placed them on top of the jury box so everyone could see the shackles around her ankles.
Her display was shocking, but I said nothing in reply. Everyone in the courtroom was stunned silent and knew better than to interrupt her.
“Judge Lerner-Wren,” she sobbed, “I am not a bad person. I am sick, and this is how our nation treats its citizens who are ill. This isn’t right!”
I hesitated to speak. Instead, I chose to remain silent, to allow her to continue her remarks while showing the shackles on her legs, which dangled over the jury bench. I hoped that this demonstration would somehow allow her to release some of her emotional pain and humiliation.
After letting her words weigh on the silence, Marian began again: “I just don’t know how our elected officials and policymakers can allow people with mental illness to be arrested instead of providing us care.” I glanced over at a group of Nova University grad students in the courtroom and wondered how they were reacting to this spontaneous “testimonial of shame.” Every day, doctoral students were embedded in the first appearance court and were present in the mental health courtroom to assist with screenings as well as to act as clinical advisors to the court.
Marian began to speak in the third person, between intermittent sobs. All that we could hear are the words “It’s so dehumanizing,” uttered between sharply intaken breaths.
When she composed herself, she said, “I just wanted to tell you that.” With that, Marian lifted her shackled legs and placed her feet back on the floor of the jury box.
Now it was my turn. I thought carefully about my words. A primary goal of the court is to promote dignity and the restoration of personhood. These values and actionable goals are embedded in every facet of the court process through a fidelity to therapeutic justice. It is never easy to allow myself to be vulnerable in my role as a judge. Yet, my ability to build trust and promote dignity depends upon my ability to be authentic.
“Marian,” I said gently with respect and empathy. “I have no words, other than to say that you are right.”
Then I decided to share a personal experience that directly related to the dehumanization she had so poignantly described and demonstrated.
“I remember many years ago, when I was a young lawyer and working with people with disabilities, I learned for the first time about the trend known as the criminalization of people with mental illness. I was shocked, and I thought to myself that it couldn’t be—not in America. Yet, this is where we are, and this court is going to do everything it can to help you get the care you need so you will not have to suffer the degradation and the humiliation of arrest again.”
My comments, while heartfelt, were the abridged version of an experience that for me was actually more dramatic and memorable. When I first heard about the criminalization of people with mental illness, I was a young lawyer who was just learning about disability rights. It was 1992, and I was attending a mental health conference where hundreds of other lawyers, judges, and mental health advocates filled the grand ballroom of the hotel for the plenary session on mental health and criminal justice. The presenter, a researcher whose presentation outlined the overrepresentation of people with serious mental illness in our nation’s jails and prisons, recounted the troubling demographics of American jailhouses.
The speaker explained the impact of the civil rights movement and the national policy shift to deinstitutionalization of the mentally ill—returning them to communities. He described the many factors that doomed President John F. Kennedy’s vision for the Community Mental Health Act of 1963, where the network of state-run hospitals and institutions (referred to as asylums) would be largely replaced with a more socially inclusive community-based mental health system. This, the researcher underscored, never occurred, and thousands of people once hospitalized ended up on the streets and ultimately in jail. Many people were arrested for nuisance and quality-of-life types of crimes, such as trespassing, disorderly conduct, and panhandling. The result is known as the “criminalization of people with mental illness,” a historic trend that, according to the law professor Michael L. Perlin, was based upon a hidden prejudice called “sanism,” which, like racism, “pervaded western culture throughout history and is rooted across all social and governmental institutions, including our legal system.”1
I recall that several years after the establishment of the mental health court, I sat down with the Broward County public defender, Howard Finkelstein, and asked him to describe his vision for the court when he proposed it to the members of Broward County’s Criminal Justice and Mental Health Task Force. “Basically,” Howard said, “judges aren’t trained in mental health. Many judges don’t know how to relate to someone with a mental illness. My vision was to establish a court that would not only promote the due process and constitutional rights of every individual, but a court in which the judge would see every person ‘as deserving of respect, and do no harm.’”2
This is, of course, contrary to what I have witnessed during my tenure working in the disability rights field. What would Marian’s display have elicited in any court but the mental health court? I have witnessed outright prejudice, stigmatization, and discrimination as the socially acceptable reactions to an encounter with mental illness—these are the reactions that Marian would have elicited. This matches the research, particularly by Perlin, who catalogued the many false assumptions that are made by society and the legal system in regard to those who live with mental disabilities. According to Perlin, these beliefs include stereotypes such as that people with mental disabilities are lazy, dangerous, emotionally unstable, erratic, and incapable of rational executive decision-making. In other words, there is a presumption that a person with a mental disability is incapable of making rational choices—or of even thinking as you or I do.3
“I’m going to make my own decisions?” Marian asked quietly.
“Yes,” I said. “You always have. This time, those decisions will lead you to the life you want to live.”
It wasn’t shocking to me that she asked this kind of questions. After all, the criminalization of people with mental illness is by no means new; in fact, it has been a tried and true method of social control and management since the beginning of recorded history. Yet it was not called into question until March 28, 1841, the cold, windy day that Dorothea Lynde Dix paid a visit to the East Cambridge, Massachusetts, jail to teach a Bible study class to a group of prisoners.4 It was a visit that would change history: Dorothea Dix discovered two indigent women with mental illness confined, shivering, in a dirty cage with no heat.5 She knew something had to change.
That cold day in 1841 sparked Dix’s quest for humanity and dignity for the mentally ill. It launched a forty-year research and advocacy campaign for what she hoped would become a solution to eliminate the criminalization of people with mental illness.6 Dix advocated for compassionate care and treatment that would be delivered in hospitals, an approach that aligned with her Civil War experience. However, the model for which she advocated, a statewide network of large psychiatric institutions, was never quite realized.
Over one hundred years later, in January 1955, President Eisenhower delivered a speech, “Special Message to Congress Recommending a Health Program,” which laid a strong foundation for President John F. Kennedy’s initiative, when he urged Congress to expand healthcare insurance benefits.7 Eisenhower outlined a comprehensive public health agenda that included new hospitals and an aggressive approach to mental health and enhanced participation in the World Health Organization of the United Nations to promote global cooperation and economic growth and to preempt the spread of communism.8 This leads us to 1963 and the Community Mental Health Act, signed into law by JFK, whose promise also was never fulfilled owing to Kennedy’s assassination, local resistance to community-based mental health centers being situated in residential areas, and to engagement in the Vietnam War.9
By the 1980s, a new wave of criminalization had begun. In addition to the traditional stigmatization of and discrimination against the mentally ill, people with mental health problems now were often additionally depicted as violent, dangerous, or frightening, a perception that became magnified due to increased homelessness and the involvement of law enforcement as more and more mentally ill people were deinstitutionalized. According to a report published in 2013, “As the lay public became exposed to a formally ‘hidden segment of the population,’ the stigma which led to the failure of the deinstitutionalization movement was reinforced and enhanced.” In fact, the data show that people with serious mental illness are ten times as likely to be victimized as those who are not afflicted with a mental illness.10
By the 1990s, thousands of mentally ill people had been made homeless, and many were self-medicating with illegal street drugs and alcohol, which led them to commit quality-of-life offenses for behavioral symptoms related to their mental illness. This was when I, as a young lawyer, heard that people with mental illness were being incarcerated in America instead of being treated in community healthcare settings.
As I thought about this, I kept my attention on Marian. I could relate to how she felt. Even though we were two women in very different stations in life, there was commonality in our humanity and a shared moral view of what is right and what is unjust. She appeared to be surprised that a judge would allow her unusual display of conscience in a courtroom.
In that moment, Marian took a deep breath, as if she was inhaling new life. She sat taller and straighter in her chair.
“Now,” I said, “let’s see how we can help you.” I asked a clinical intern to speak with her privately to gather needed information and make treatment recommendations to the court. Our goal would be to link Marian to housing and an integrated behavioral health treatment program where she could address her clinical needs and begin the process of healing.
Those who get the benefit of this court accept a responsibility that goes along with it. To participate is to undertake a monumental amount of personal and societal responsibility. The goal for each person is not simply recovery—that would be too narrow and even inhumane if it were defined by purely data-driven results. Instead, the court’s mission aims to install a spirit of “health activation,” an impulse to pursue life at its fullest. In other words, to become a leader in one’s own life.
I paused and looked to Marian, who was still listening intently.
Marian nodded and smiled. She had, finally, been heard.