“We should not be held back from pursuing our full talents, from contributing what we could contribute to the society, because we fit into a certain mold – because we belong to a group that historically has been the object of discrimination.”—Ruth Bader Ginsburg
The dawn of widespread court intervention for mental health concerns truly began with the drug court concept developed in Dade (now Miami-Dade) County, Florida, at the conclusion of the 1980s in direct response to Miami’s infamous drug scene. The darker aspects of popular culture depictions of drugs impact on Miami—Scarface, Cocaine Cowboys, and Miami Vice, to name a few—were in plain view on a daily basis for local judges, public defenders, and prosecutors. Specifically, these key players grew wary of witnessing the same offenders appear before the court under the same or incredibly similar circumstances, sparking the concept of drug court (Goldkamp & Weiland, 1993). Later named a problem-solving court, specialty court, or therapeutic court, the innovation of drug court centers on its holistic approach of combining aspects of treatment, providing general care by leveraging community resources (e.g., housing, health care, food banks, transportation, etc.), and judicial oversight to enable its participants a chance to break the drug-crime-criminal justice pattern in their lives (Carey, Mackin, & Finigan, 2012). In years to come, this concept was reinforced and fine-tuned with emerging evidence-based practices to ensure the lasting success and pro-social gains of participants, and a vast array of research would be published to support the successes of a fully operational drug court steeped in evidence-based practices (Gottfredson, Najaka, & Kearley, 2003; Rossman & Zweig, 2012; Wilson, Mitchell, & MacKenzie, 2006). Soon, this model would be redeveloped to cater to individuals with the mental health-(drugs)-crime-criminal justice pattern in their lives—called mental health court or behavioral health court. These specialty courts lie at the forefront of local court innovations to intervene on behalf of individuals with mental illness being processed by the criminal justice system.
6.1 Know the Role-Drug Court
According to the National Institute of Justice (2017), there are 1558 adult drug courts and 409 juvenile drug courts in operation as of June 2015, with at least one in operation in each of the United States. While variability in the program exists, the core operation in each appears to be consistent. This core begins with defining the appropriate target population to serve, which, in this case, should be adults or juveniles (not both) with a known substance use disorder (Eckholm, 2008). To ensure that this target population is indeed being targeted by the program, evidence-based screening and assessment tools must be adopted. A notable criticism of drug courts is that, historically, programs have generally defined eligible participants as nonviolent, probation-eligible individuals who have committed a drug offense or a drug-related offense, which may widen the criminal justice net to include individuals without a substance use problem (Drug Policy Alliance, 2011). In doing so, much of the previous research may have been overly optimistic in their rates of success. Follow-up research continues to support the success of drug court when (1) validated screening and assessment tools are in place and when (2) evidence-based programming with success in the target population is used. However, it is difficult to determine just how many of the 1558 adult drug courts and 409 juvenile drug courts operate with fidelity to these two prerequisites for success.
Generally speaking, prospective drug court clients must enter a guilty plea to their charges if determined to be eligible for the program. The drug court team—consisting of a presiding judge, case manager, prosecutor, defense attorney, treatment professional, and probation officer—will consider each client for admittance on a case-by-case basis. The program itself is set up in phases, which begin at a high intensity of programming and hands-on participation and eventually eases until independence can be established (Adult Drug Court Research to Practice Initiative, 2017). For example, Phase 1 often requires an intensive weekly schedule of mandatory drug treatment hours that may include counseling, intensive outpatient (IOP) drug treatment, several sessions of group therapy (likely, Alcoholics Anonymous or Narcotics Anonymous), and routine randomized drug screening. It also includes a weekly status meeting with the judge and the drug court team to monitor progress, reward compliance and success, attend to potential emerging problems, and meaningfully correct any relapse, noncompliance, or misbehavior. As a client is successful in the program, each requirement of the program eases—less time spent in treatment, lower number of group therapy meetings required (although additional attendance is still encouraged), fewer status meetings in court each month, and less frequent drug testing. In all, drug courts typically have three to five phases which can last 12, 18, or 24 months with an added aftercare phase to aid in a prosocial, drug- and crime-free lifestyle (Lowenkamp, Holsinger, & Latessa, 2005).
Ten key components of drug court (National Association of Drug Court Professionals, 2017)
Key Components |
|---|
1. Drug courts integrate alcohol and other drug treatment services with justice system case processing |
2. Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights |
3. Eligible participants are identified early and promptly placed in the drug court program |
4. Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services |
5. Abstinence is monitored by frequent alcohol and other drug testing |
6. A coordinated strategy governs drug court responses to participants’ compliance |
7. Ongoing judicial interaction with each drug court participant is essential |
8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness |
9. Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations |
10. Forging partnerships among drug courts, public agencies, and community-based organizations generate local support and enhances drug court program effectiveness |
The overall successes of a well-run drug court, based on whether or not these courts can stay true to these ten key components, are substantial. Reductions of crime range from 8 to 26 percent, cost savings have been estimated at $2 to $27 dollars per every dollar invested into drug court, and drug court participants are consistently more likely to reduce drug use relative to non-participants.
6.1.1 Drug Court Adaptations for Special Populations
Family court (also known as family preservation court, designed to aid a drug dependent mother, father, or both in maintaining custody of their children and healing familial strains and dissolution due to drug abuse—312)
Veterans court (designed to focus on the special needs of former military members, often by addressing traumatic experiences of combat—313)
Sobriety court (also known as DUI or DWI court, designed specifically for alcoholism in conjunction with driving under the influence—284)
Tribal court (designed to focus on American Indians—138)
Mental health court (also called co-occurring or behavioral health court, designed to focus primarily on mental health diagnoses with secondary focus on substance use disorder—366 reported by the GAINS Center)
Reentry court (designed to focus on the experiences common to individuals returning to the community from incarceration—29)
Campus courts (also known as back on TRAC, designed to focus on college students—3)
Each customization often taps additional team members with expertise in the targeted “special” population to ensure success. For example, for a veterans court, the team may expressly search for case managers, probation officers, and treatment professionals with a military background to aid in better understanding client behaviors and to have better success in building better rapport for best outcomes. Further, former military members in recovery may serve as better peer support specialists and/or mentors with veterans court clients than those without military experience. These differences can assist clients in tamping down feelings of isolation and any “us versus them” sentiment compared to enduring a traditional drug court experience. The same arguments can be made for tribal court and campus court. Research on these adaptations are ongoing, but show promise in effecting change for each targeted population.
6.1.2 Mental Health Courts
According to a Bureau of Justice Assistance report in 2000, mental health court was pioneered in four very different jurisdictions, beginning in Broward County (Fort Lauderdale), Florida, King County (Seattle), Washington, Anchorage, Alaska, and San Bernardino, California. In each of these jurisdictions, the mental health court team commonly faced defendants with issues related to homelessness, persistent lapses of the community mental health-care system, jail overcrowding, and unabated drug abuse. To address these issues, the traditional drug court program was equipped with treatment, including psychiatric and counseling services, geared for co-occurring disorders, stronger ties to housing assistance, and team members familiar with mental health disorders and individuals with mental illness.
Additionally, drug courts are, by and large, steeped in an abstinence-based orientation. Mental health courts, by necessity, must alter this long-standing tradition to accept required medication regimes to treat clients’ underlying mental illness. Often, these therapeutic courts work with treatment professionals to find medications that may minimize substance use disorder symptomatology. For example, clients diagnosed with anxiety disorders may have historically been treated with medications known to be commonly abused, such as Xanax. In the context of mental health court, if a client has a pattern of substance use disorder co-occurring with an anxiety disorder, the mental health court team may work with treatment providers to find the treatment protocol for this case. Commonly, final treatment decisions remain with treatment providers.
Another key difference exists when comparing traditional drug courts and mental health court as it pertains to defining and measuring success. For drug court clients, success is easier to conceive—pro-social drug- and crime-free living, as indicated by clients passing drug tests, successfully complying and completing treatment, paying all restitution and fees, and so on (Bureau of Justice Assistance, 2000). Mental health court clients, on the other hand, strive for optimal functionality given their lifelong mental health diagnoses, and this level of functioning will vary from client to client. Thus, success will vary across mental health court client. With this in mind, outcome studies have shown promising reductions in recidivism and violence (McNiel & Binder, 2007; Moore & Hiday, 2006).
Ten key components, or “essential elements,” of mental health court (Bureau of Justice Assistance, 2007)
Key Components |
|---|
1. Planning and Administration: A broad-based group of stakeholders representing the criminal justice, mental health, substance abuse treatment, and related systems, and the community guides the planning and administration of the court |
2. Target Population: Eligibility criteria address public safety and consider a community’s treatment capacity in addition to the availability of alternatives to pretrial detention for defendants with mental illness. Eligibility criteria also take into account the relationship between mental illness and a defendant’s offenses while allowing the individual circumstances of each case to be considered |
3. Timely Participant Identification and Linkage to Services: Participants are identified, referred, and accepted into mental health courts and then linked to community-based service providers as quickly as possible |
4. Terms of Participation: Terms of participation are clear, promote public safety, facilitate the defendant’s engagement in treatment, are individualized to correspond to the level of risk that the defendant presents to the community, and provide for positive legal outcomes for those individuals who successfully complete the program |
5. Informed Choice: Defendants fully understand the program requirements before agreeing to participate in a mental health court. They are provided legal counsel to inform this decision and subsequent decisions about program involvement. Procedures exist in the mental health court to address, in a timely fashion, concerns about a defendant’s competency whenever they arise |
6. Treatment Supports and Services: Mental health courts connect participants to comprehensive and individualized supports and services in the community. They strive to use—and increase the availability of—treatment and services that are evidence-based |
7. Confidentiality: Health and legal information should be shared in a way that protects potential participants’ confidentiality rights as mental health consumers and their constitutional rights as defendants. Information gathered as part of the participants’ court-ordered treatment program or services should be safeguarded in the event that participants are returned to traditional court processing |
8. Court Team: A team of criminal justice and mental health staff and service and treatment providers receives special, ongoing training and helps mental health court participants achieve treatment and criminal justice goals by regularly reviewing and revising the court process |
9. Monitoring Adherence to Court Requirements: Criminal justice and mental health staff collaboratively monitor participants’ adherence to court conditions, offer individualized graduated incentives and sanctions, and modify treatment as necessary to promote public safety and participants’ recovery |
10. Sustainability: Data are collected and analyzed to demonstrate the impact of the mental health court, its performance is assessed periodically (and procedures are modified accordingly), court processes are institutionalized, and support for the court in the community is cultivated and expanded |
6.1.3 The 22nd Judicial District Behavioral Health Court of Louisiana
The Behavioral Health Court (BHC) in the 22nd Judicial District Court of Louisiana (Covington), only one of three in the state, was designed as a win-win for stakeholders and clients alike. For clients, individuals receive both professional drug treatment and mental health services while remaining in the community in lieu of potential incarceration with little chance of receiving anywhere near this level of care, with the goal of treatment continuation. For stakeholders, rehabilitation presents an opportunity to disrupt established drug-crime trajectories; its success thus holds the key to produce increases in local public safety and vast cost savings to the local justice and health-care system.
The BHC program began in November of 2011 with each member of the BHC team volunteering their time during the lunch hour. Led by District Judge Peter Garcia, BHC partnered with the local National Alliance on Mental Illness outpost and the Florida Parishes Human Services Authority to offer linkages to community services such as housing, transportation, co-occurring group therapy, food assistance, and assistance in obtaining public benefits, as well as mental health and substance use treatment services. While Judge Garcia and his team were building capacity to provide the best care possible for current and future clients, the State of Louisiana had moved forward with a plan to privatize mental health services and divest a large portion of public funds to aid this effort. This resulted in a widespread closure of local, state-run behavioral health clinics and hospitals, leaving the criminal justice system as the only likely source of mental health care. This action further weakened the ability of the Florida Parishes Human Services Authority to provide optimal care for individuals with co-occurring disorders. At this time, Louisiana ranks 43rd out of the 50 states for per capita expenditures on mental health; the Florida Parishes Human Services Authority further receives less funding per capita than most of its sister districts, leaving the 22nd Judicial District Court vulnerable citizens even more vulnerable (Miller & Khey, 2016).
Since 2014, BHC has expanded its operations with the benefit of a joint grant program offered by SAMHSA and the Bureau of Justice Assistance, giving the program the ability to increase its case management capacity, further invest in evidence-based practices (such as trauma-informed care and Assertive Community Treatment), and offer protections of its clients against the weakening state of the local mental health system. While the outcome studies focusing on potential reduced hospitalizations, reductions in arrest and reconviction, and reductions in drug use, Miller and Khey (2016) published the results of a thorough process evaluation to determine whether BHC was operating as proposed, with true evidence-based services in place. Overall, Miller and Khey found a strong professional orientation of the services being delivered to BHC clients, particularly those within the direct control of the court. The broad weakening of the local mental health-care system, on the other hand, seemed to produce counterproductive effects on the treatment quality available to some clients. Specifically, therapeutic sessions provided by local practitioners appeared to only offer social support rather than engage in any known form of therapy, such as cognitive behavioral therapy or dialectic behavioral therapy. As a result, BHC leadership worked with its local partners to deepen its ability to offer such services to current and future clients.
A mental health advocate in the 22nd Judicial District BHC recalls a success story – That was [client x], case study #1. He absolutely refused to go to self-help groups, like AA. Had a strong desire to function independently and lived on his own in Abita Springs. He had a long history of difficulty with communicating, organization problems, and always seemed to have an unhealthy living situation. We found out at one point his house didn’t have heat and we were able to buy him a floor heater. He also neglected his physical health, then he started doing better and got prescription glasses. [As he participated in BHC], he became a leader in the AA community and even started running groups. He even came back to BHC years later to try and help out some one he met in AA. Prior to BHC, [client x] had 37 charges from 1988 through 2012, which include simple battery, aggravated battery, resisting arrest, domestic abuse, driving with a suspended license, possession of marijuana, driving while intoxicated (over four convictions), and much more. Since he was accepted into BHC, he had no new criminal charges, became a model client, and just ‘got it.’ (Khey, unpublished research)
The recent policy shifts to accept Medicaid expansion in 31 states, and Washington DC has aided to shield the mental health court target population from a weak local mental health system of care. With the help from a mental health court team, clients often find themselves able to navigate the system and connect with needed services, particularly when receiving Medicaid assistance. It provides more avenues for covered treatment provision and opens up a menu of available services that can aid in healthy outcomes. For example, in the 22nd Judicial District BHC , it is estimated that just more than half of the program’s participants benefited from Medicaid and Medicaid expansion. This issue becomes critical as our national leaders debate the future of Medicaid and Medicaid expansion.
6.2 Older Initiatives: Mental Health Court Precursors
Before mental health court, court intervention relating to mental illness occurred infrequently through civil commitments, competency hearings, not guilty by reason of insanity (NGBRI) pleas, or when defendants challenge criminal justice processing through their attorneys (often, public defenders) for reasons related to their mental state (at the time or during the time of the offense). Primarily due to jail overcrowding and heavy court caseloads, local criminal justice systems searched for alternatives and improvements in justice processing, largely led by the courts on criminal justice task forces across the country (Bureau of Justice Assistance, 2000). Yet, court-centered innovation to serve individuals with mental illness began in the 1960s with the use of diversion (Matthews, 1970). For example, both the cities of Chicago and New York court systems heavily relied on partnerships with the mental health-care system. In fact, the Chicago system maintained an embedded partnership—the Psychiatric Institute—to directly handle misdemeanor referrals from the court on site and, further, offer an inpatient facility immediately next to the jail for felony case referrals. One of the primary goals of the Institute was to offer the court alternatives to criminal justice sanctions, whenever possible (particularly when considering public safety in its calculus). The possible recommendations were much like what mental health court offers today—outpatient treatment and referrals to drug and alcohol treatment. One divergence from mental health court, however, was that this system often recommended civil commitment as a viable alternative for the court to weigh in its decision-making. Meanwhile, the New York system was set up to allow for local police to directly divert individuals with potential mental health concerns directly to local hospitals. From this point, the hospitals had a direct line of communication with the courts to continue criminal processing and assist in planning alternatives, whenever possible, for both misdemeanor and felony cases.
While these interconnected systems of care faded away with deinstitutionalization , diversion persisted in some ways. For example, Steadman, Morris, and Dennis (1995) profiled diversion programs for individual with mental illness and found 230 out of 685 jail systems surveyed had linkages to such diversion programs, many of which had linkages to the local courts. In fact, several key similarities to mental health emerged from the successful programs reviewed. For example, one program featured an interdisciplinary team of ten staff members to work intensively with 100 clients at a time. This project is further aided by “key players” that include judges, a local mental health director, public defenders, district attorneys, probation officers, and a supervisor of services in the local jail.
Treatment Advocacy’s Center grades of states’ diversion practices
State | % served by a mental health court | % served by CIT | Average % of population served | Grade | State | % served by a mental health court | % served by CIT | Average % of population served | Grade |
|---|---|---|---|---|---|---|---|---|---|
D.C. | 100% | 100% | 100% | A+ | Virginia | 6% | 70% | 38% | C |
Utah | 85% | 97% | 91% | A+ | Texas | 44% | 27% | 36% | C |
Florida | 67% | 97% | 82% | A | Wisconsin | 11% | 60% | 36% | C |
California | 78% | 79% | 79% | A | Kansas | 18% | 49% | 34% | C- |
Ohio | 63% | 88% | 76% | A | Tennessee | 16% | 51% | 34% | C- |
Connecticut | 100% | 37% | 69% | B+ | Indiana | 25% | 37% | 31% | C- |
Illinois | 78% | 59% | 69% | B+ | Maryland | 30% | 31% | 31% | C- |
Idaho | 76% | 58% | 67% | B+ | New Hampshire | 40% | 19% | 30% | C- |
Nevada | 88% | 37% | 63% | B | North Dakota | 22% | 34% | 28% | D |
Washington | 62% | 63% | 63% | B | Michigan | 48% | 3% | 26% | D |
Colorado | 35% | 86% | 61% | B | Wyoming | 0% | 52% | 26% | D |
Georgia | 49% | 70% | 60% | B | Montana | 17% | 30% | 24% | D |
Maine | 34% | 83% | 59% | B | Louisiana | 8% | 38% | 23% | D |
New Mexico | 63% | 50% | 57% | B | New Jersey | 7% | 33% | 20% | D |
North Carolina | 24% | 87% | 56% | B | South Carolina | 27% | 10% | 19% | F |
Arizona | 21% | 84% | 53% | B- | Vermont | 35% | 1% | 18% | F |
Minnesota | 31% | 70% | 51% | B- | Alabama | 34% | 0% | 17% | F |
Delaware | 100% | 0% | 50% | B- | South Dakota | 0% | 29% | 15% | F |
Oklahoma | 59% | 40% | 50% | B- | Iowa | 8% | 13% | 11% | F |
Pennsylvania | 60% | 40% | 50% | B- | Massachusetts | 13% | 3% | 8% | F |
Oregon | 54% | 38% | 46% | C+ | Mississippi | 2% | 13% | 8% | F |
Kentucky | 28% | 61% | 45% | C+ | Arkansas | 10% | 0% | 5% | F |
Missouri | 51% | 38% | 45% | C+ | West Virginia | 9% | 0% | 5% | F |
Alaska | 44% | 44% | 44% | C | Rhode Island | 0% | 0% | 0% | F |
Hawaii | 70% | 12% | 41% | C | |||||
Nebraska | 42% | 40% | 41% | C | |||||
New York | 75% | 5% | 40% | C | Nat’l Average | 48% | 49% | 49% | C+ |
6.3 A Note on Veterans Treatment Courts
One day, a Vietnam veteran appeared before Judge (Robert) Russell (in drug court in Buffalo, New York). He had not been making his treatment appointments, and he refused to communicate with the court team or his treatment providers. As the judge tried to engage him, he remained unresponsive, his eyes on the floor. In a moment of exasperation, Judge Russell called two members of his court to the bench. Hank and Jack were also Vietnam veterans, so the judge asked that they spend some time with the gentleman, veteran to veteran. An hour later, when Judge Russell called the case again, the man approached the front of the courtroom, stood at parade rest, and looked the judge in the eye. The judge then asked him if he was ready to accept the support and treatment that were being offered to him through the court. He immediately responded, “Yes, sir.” That was the spark…. (Justice for Vets, 2017)
Veterans treatment court is designed to tap into the military culture and structure to benefit its clients. It leverages military training that often instills brotherhood and strong camaraderie to support the recovery of a veteran with mental illness and/or substance use disorder. Further, expertise is brought into veterans treatment courts to aid in navigating the exclusive benefits available to veterans for their past military service through the Veterans Health Administration, Veterans Benefits Administration, the State Department of Veterans Affairs, and local veteran service organizations. For example, veterans may benefit from general health care, substance abuse treatment, group therapy, transportation, peer mentoring by a veteran in recovery, transportation services, housing services, and much more. Often, veterans treatment courts seek to offer connectivity to all of these benefits in one place with individualized case management services to ensure that no one slips through the cracks .
With almost a decade of development , veterans treatment courts are beginning to develop an evidence base of their own. Most recently, Knudsen and Wingenfeld (2016) determined that a well-run veterans treatment court significantly decreased PTSD symptoms, improved client treatment orientation, promoted sleep, aided in improved family relations, decreased substance use, reduced depression, supported emotional well-being, and helped with perceived overall energy. Only nine of the 86 participants were rearrested in twelve months. These findings are indeed promising, yet they lack scientific rigor. To address this, the National Institute of Justice has commissioned a rigorous, multisite evaluation of veterans treatment courts with initial findings to be published in the next two to three years.
6.4 The Future of Mental Health Courts
While veteran treatment courts benefit from having the firm support of the Federal government through different aspects of the US Department of Veterans Affairs, mental health courts and their local partners often have to shoulder the cost of the specialty court and the requisite array of services. For example, a newly initiated veterans court in southeastern Louisiana estimates its costs as $50,000 for a case manager’s salary and benefits, $40,000 per annum in treatment costs not covered by Veterans Affairs, $8000 in drug screen and confirmation to ensure compliance, and $2000 in operating costs, supplies, and incidentals, for a total of roughly $100,000 per year to comfortably operate this type of specialty court. Many jurisdictions use state-allocated funds and/or court funds generated by fees generated by adjudications to cover these costs.
We are at an interesting crossroad relating to mental health courts. In the current political climate, veterans treatment courts are well positioned to reap both direct and indirect benefits through reinvestment in the US Department of Veterans Affairs. Yet, mental health courts are showing signs of stress. A review of media accounts offer anecdotal evidence of potential problems on the horizon: in Delaware, a panel is recommending to unify the state’s specialty courts instead of keeping them separate (Reyes, 2017); in Flint, the Genesee Health System was facing a budget crises which is threatening mental health court services (Pierret 2016); in South Dakota, the state legislature did not fund a request to create its first mental health court due to fiscal concerns (Walker, 2017). Critically, the fate of Medicaid will prove to be central to the viability of mental health courts across the country. As a relatable illustration, the GAINS Center reviewed a common issue currently faced by all specialty courts, including (and particularly) mental health courts—the impact of having public benefits terminated or suspended when a person is incarcerated. As clients are waiting to have their benefits reinstated, they often face insurmountable problems trying to make ends meet, finding timely care, gaining access to medication, and so on (GAINS Center, 1999). If Medicaid were significantly curtailed or eliminated, very real possibilities being considered by the 115th US Congress with tacit backing of President Trump, a significant burden would be shifted to localities and states to be able to provide care to mental health clients and the wider target population.
Yet, the bipartisan Twenty-First Century Cures Act takes Federal leadership on mental health (and mental health courts) in a positive direction. It reauthorizes the Comprehensive Justice and Mental Health Act to continue to provide grant funding for mental health courts and innovative research in this domain. Additionally, the legislation enables improvements in data monitoring. This will allow for us to more effectively monitor any change in policy with greater precision, which will further allow for us to seek corrective action for any political shift that has unintended consequences. There appears to be significant momentum for criminal justice reform, including for individuals with mental illness and co-occurring disorders. It seems likely, then, that progress will continue, despite countervailing forces—the result of which may produce stifled progress, but progress nonetheless.
6.5 A Key Weakness in the Court’s Role: Revocation
Example of a callout:
The Supreme Court of Montana affirmed the Disposition Order of the district court, finding no abuse of discretion in the sentencing of the defendant to prison, the expert psychological testimony concerning his mental illness notwithstanding. The supreme court cited Mont. Code Ann. § 46-18-203(7)(a)(iii), which sets out the sentencing alternatives and discretionary prerogatives of the trial judge attached to probation revocation. The supreme court found that the sentencing imposed by the trial judge was in conformity with the statute |
A related sentencing statute, Mont. Code Ann. § 46-14-311 (2005), requires that, following a finding of guilty or a plea of guilty made by a defendant, consideration by the trial judge of a defendant’s claim of mental disease or defect or developmental disability during sentencing must occur. The statute states: Whenever a defendant … claims that … the defendant was suffering from a mental disease or defect or developmental disability that rendered the defendant unable to appreciate the criminality of the defendant’s behavior or to conform the defendant’s behavior to the requirements of the law, the sentencing court shall consider any relevant evidence presented at the trial and shall require additional evidence that it considers necessary for the determination of the issue, including examination of the defendant and a report of the examination |
Although Burke challenged one finding of fact under this statute, the state supreme court disagreed, concluding that Burke had not demonstrated that the district court “acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason, resulting in substantial injustice.” The state supreme court cited the provision of wide latitude in sentencing and held that the trial judge had given adequate consideration of the various relevant sentencing factors. The supreme court noted that the trial judge had taken into account the testimony of the psychologist (Scolatti), Burke’s need for mental health care, his prognosis for treatment and his risk to reoffend violently, observations that the Montana State Prison has a mental health treatment program, and various sentencing options other than prison. Furthermore, the state supreme court noted that Scolatti had testified that despite Burke’s mental illnesses, Scolatti could not specify what role these illnesses played in his probation violations nor would he testify that to a medical certainty, Burke’s mental illnesses caused him to violate the conditions of his probation. As for the capacity to conform to the law, Scolatti, while noting some volitional impairment, testified that the defendant “still has some volitional choice of whether or not to commit a crime.” The supreme court took note of the expert’s testimony on volitional capacity as further indication that the trial judge had not abused his sentencing discretion in imposing a prison term, despite evidence that the defendant had some mental illnesses |
The supreme court noted that the law in Montana is not settled on the question of whether a defendant may invoke the provisions of Mont. Code Ann. § 46-14-311 (2005), at a revocation hearing, or whether the consideration which must be afforded to evidence of mental illness at sentencing applies only to sentencing at the original trial proceedings and is unavailable to defendants at probation revocation hearings and sentencing dispositions. Since the supreme court could uphold the trial court’s sentencing solely on the provision of Mont. Code Ann. § 46-18-203(7)(a)(iii), it noted the trial judge need not have (even though he had) taken into account any mental health evidence that defendant proffered under Mont. Code Ann. § 46-14-311 (2005) |
This is a case of little precedential weight and few moving parts; no constitutional issues are raised. It involves the application of three state statutes and one hapless defendant and speaks to the considerable latitude in discretion afforded to the trial judge in probation revocation hearings and sentencing procedures. Here, the defendant contested only one judicial finding of fact of the sentencing judge: that the defendant had the volitional capacity to avoid committing acts that violated the terms of his probation. The standard of appellate review is high: was there an abuse of discretion? |
Implicit in the trial judge’s findings and the state supreme court’s affirmation is a certain discounting of the weight afforded to expert psychological testimony, even when called for by statute, admitted by the judge, and spared rebuttal by the opposing party (in this instance, the state). When defendants in Montana are charged with violation of the conditions of their probation, a Revocation Hearing is held before a judge and the standard of proof is a preponderance of the evidence. Once a violation is found (in the present case, the defendant came to admit to five violations), the trial judge is given great latitude in sentencing, (Mont. Code Ann. § 46-18-203) |
Because the defendant raised the issue of his mental illness in the sentencing procedure, the judge allowed expert testimony concerning the defendant’s volitional capacity and his treatment needs into evidence (Mont. Code Ann. § 46-14-311). The expert testified that the defendant was mentally ill and volitionally compromised and would best be served by being remanded to the state’s mental hospital, an option available to the judge in his sentencing discretion. The trial judge weighed the expert testimony, concluded that the defendant had a modicum of volition in his violation of probation and sentenced him to serve his full probationary term (four years) in state prison, as permitted as a statutory exercise of judicial discretion (Mont. Code Ann. § 46-14-312). A wavering of certainty by the expert on the volitional question was cited by the judge, as were the uncertain benefits of psychological treatment and the potential dangerousness of the defendant |
6.6 Conclusion
Court programs have been around for a number of years but are expanding and diversifying to better serve communities and justice-involved individuals. Luckily, with the help of dedicated individuals, some of these court programs are beginning to show signs of true success. These successes are both beneficial for those involved in the program but also their communities and our country as a whole. These small “breaths of life” are the life support needed to resurrect a failing system. There is hope that change can happen and those in need can receive not only the services needed but also the chance to regain their lives as productive members of society.
Two key court innovations are mental health courts (also known as behavioral health courts) and veterans treatment courts. These adaptations of drug courts (also known as specialty courts) are developing an evidence-based and a proven track record of success. While the evidence is promising, some jurisdictions struggle with funding to keep these programs running under optimal conditions or even running at all. Veterans treatment courts have an advantage in that Veterans Affairs and government benefits due to US veterans shoulder much of the cost (e.g., treatment cost) of the program. Thus, in the near future, veterans treatment court is likely to expand at a faster rate relative to mental health courts despite the fact that both certainly target the same symptomatology.
On a final note, much more research needs to be done in the area of court innovations, particularly as a resource to interventions that can occur before criminal justice processing can begin. In other words, as law enforcement and community partners work to divert eligible individuals away from the criminal justice system, court players (including judges) may have an opportunity to offer resources and legitimacy that no other partner can. Specialty courts seem to be the beginning of court participation in mental health innovations, and much more development should be expected in this arena in the near future.