ONE OF THE PRIMARY RESEARCH findings of the past twenty years or so, and much more conclusively in the past six to seven years, is the efficacy of diversion from traditional criminal prosecution, adjudication, sentencing, and punishment. Diversion is one of the most important recidivism reduction strategies currently known. When diversion programs are properly scaled, implemented, and operated/managed, they can have remarkable impacts on recidivism. The purpose of this chapter is to discuss what an optimal, balanced diversion court component of justice policy should look like based on what the scientific evidence indicates. I will address the diversion of offenders to probation in chapter 6.
Diversion courts come in a wide variety of types and designs. They are intended to address a range of criminogenic needs. Some are preindictment and others are postindictment and postadjudication. They vary in terms of eligibility criteria, the types and length of therapeutic interventions, and how they respond to rule infractions.
Drug courts are the most common (there are over 2,400 in the United States in 2014). Additionally, there are 1,200 or so other types of diversion courts, including mental health courts, community courts, domestic violence courts, homeless courts, truancy courts, veteran courts, sex offender courts, and reentry courts, among others. Most are therapeutic in design and practice. There are also accountability or sanction courts, which focus on sanctioning for noncompliance (although accountability and sanctioning are an important component of the therapeutic courts as well).
Unfortunately, most diversion courts amount to a largely token effort (for example, drug diversion courts are quite popular today, but their capacity is inconsequential compared to the need or demand). Others are inadequately designed, implemented, managed, and/or funded.
PROBLEM SOLVING IN PROBLEM-SOLVING COURTS
Diversion courts are generally based on the concept of therapeutic jurisprudence, typically understood as a balance between intervention and treatment on the one hand and accountability and responsibility on the other. Well-designed and operated diversion courts are premised on the principle of proactive problem solving. The concept of problem solving in criminal justice and especially in the criminal court system began to gain national traction in 1999 when New York State’s chief judge Judith Kaye published an article in Newsweek on the benefits of problem solving as an overarching principle in criminal courts. Problem solving as a judicial concept has a number of defining characteristics, including greater, more accurate information, enhanced expertise, community engagement, collaboration with a variety of stakeholders, a focus on the individual and the individual case, and accountability. In principle, these components of problem-solving diversion make perfect sense, and their practice is clearly supported by scientific research. In practice, they present some significant challenges.
Enhanced, Accurate Information and Expertise
As I discussed earlier, one of the major problems facing the U.S. criminal justice system is the historical inability to make good, informed decisions regarding matters such as sentencing. Absent accurate, predictive data and staff trained to interpret such data and formulate well-considered recommendations, the diversion process will flounder and its outcomes will be compromised. Obviously, the success of diversion programs depends on a number of factors, including who gets in the front door. Thus, it is vital that upfront decision making is as informed as possible, including who should be diverted, what they need if diverted, and what risks they pose if diverted. To that end, current-generation, actuarial, static, and dynamic needs and risk assessments should be commonplace. These assessments should be scientifically validated and administered by trained professionals.
A recent screening, assessment, and treatment focus, spearheaded by the Substance Abuse Mental Health Services Administration (SAMHSA), focuses on trauma. Trauma-informed care is a particular emphasis on measuring the presence of childhood and adult trauma in order to better understand and treat the needs of offenders. Results from the Adverse Childhood Experiences Study (ACE) indicate that 64 percent of the population has had at lease one adverse childhood experience and 13 percent have had four or more (Centers for Disease Control and Prevention, Data and Statistics, Prevalence of Individual Adverse Childhood Experiences). These trauma events range from emotional, physical, and sexual abuse, to emotional and physical neglect, to violence, substance abuse, mental illness, and/or marital disruption in the household, as well as incarceration of a household member. The most common ACE is physical abuse (28 percent), followed by household substance abuse (27 percent) and marital disruption (23 percent).
The ACE research has clearly linked the experience of adverse childhood events to a wide variety of behavioral and health outcomes, including alcohol and substance abuse and dependence, depression and other mental health conditions, neurocognitive impairments, engaging in a variety of risky behaviors, and a number of physical health consequences. Several studies have also explicitly linked childhood abuse and neglect with subsequent criminal offending (for example, Currie and Tekin 2006; Rebellon and Van Gundy 2005; Siegel and Williams 2003; Swantson et al. 2003; Widom 2000).
The importance of understanding the presence of trauma experiences is the likely impact they have had or potentially will have on criminal behavior. As such, trauma experiences are both risk factors and dynamic (treatable) criminogenic needs. One of the leading researchers of the ACE study (Anda 2007) stated:
The vast array of problems that arise from ACEs calls for an integrated view of the origins of health and social problems throughout the lifespan. Our approach to growing up with ACEs and to the consequences of exposure to them—in effect, making the invisible engine visible—may unify and improve society’s understanding of many seemingly unrelated health and social problems that tend to be identified and treated as separate issues. Development of more integrated approaches will likely contribute to more meaningful diagnoses, improved treatment of at-risk and affected persons, and better integration of research priorities, preventive and social services, and legal venues
The National Leadership Forum on Behavioral Health/Criminal Justice Services (2009) reports nearly universal histories of trauma among mentally ill individuals with justice involvement. Ninety-three percent of mentally ill men and women in samples of jail diversion programs reported a history of at least one incident of physical or sexual abuse. Sixty-one percent reported physical or sexual abuse in the past twelve months. Even with such extraordinarily high prevalence of trauma, few community-based or institutional programs offer trauma-informed or trauma-specific programming.
Individuals assisting in the referral to diversion should have the clinical expertise to interpret diagnostic data regarding common criminogenic circumstances such as substance abuse and mental illness. In some instances, such as pretrial diversion or preindictment diversion, those referrals will likely originate from the prosecutor’s office. In such instances, it is important that prosecutors have accurate information and the experts to interpret it. In the case of postadjudication diversion, the court will require the same information and expertise.
It is also important to have the expertise and resources to assess neurocognitive and neurodevelopmental deficits and impairments. Risk factors include trauma, poverty, head injury, and neglect and abuse, among others. Such deficits are relevant to treatment planning as well as responsivity considerations.
Individual offenders typically present with a variety of criminogenic needs or deficits. Thus, whether diversion originates from the prosecutor or the court, it is necessary that the advisory staff have expertise in a variety of need areas. For example, if a prosecutor understands substance abuse but is not well informed on the intricacies of mental illness or neurodevelopmental deficits, a decision to refer to substance abuse treatment may result in a poor outcome if the mental illness and other problems remain untreated. Staff involved in diversion should possess expertise in a variety of criminogenic need areas, including mental health, neurocognitive, substance abuse, physical health, education, employment, homelessness, and legal issues, among others, as well as supervision/risk and case management.
The question of accurate assessment and the expertise to appropriately interpret, diagnose, develop proper interventions, and actually carry out such treatment has become much more complex than focusing on remedial education and job training. As discussed previously, recognizing and understanding the presence and consequences of trauma is no simple matter. Identifying the neurocognitive deficits associated with poverty (inhibited self-control, impulse regulation, lower IQ, poor language skills, poor working memory function, impaired attention control and focus) and designing appropriate interventions for offenders with co-occurring disorders require expertise and skills that likely exceed those of the traditional justice setting. The accumulation of knowledge about the factors that underlie criminal offending requires much enhanced reliance on an increasing diversification of expertise in order to properly address the circumstances of crime and offending.
Community Engagement
Public safety is a public good that has for most of our history been the nearly exclusive responsibility of the government. Diversion, by definition, involves the community, in the sense that the community has a stake in and a responsibility for public safety.
Engaging the community in the judicial and rehabilitative process helps establish a community role in problem solving. Citizen engagement also enhances public trust in the justice system. Public trust and other forms of social capital are fundamental in rebalancing or redistributing some of the responsibility for public safety to a shared government-community effort. Community engagement is also quite important in terms of securing the appropriate community-based resources for intervention, as discussed in the next section.
Collaboration
Accomplishing public safety through mechanisms other than punishment and control requires a wide variety of assets, many of which are local, NGO, community-based resources. These include substance abuse treatment facilities, mental health and psychiatric treatment facilities, sustainable, supportive housing providers, employment training, medical clinics, and adult education, among others. Collaboration and public-private partnerships have characterized many local initiatives designed to address any number of circumstances. It is no different when it comes to criminal justice, diversion, and rehabilitation. We should not expect and probably should not prefer that government maintain the programs and services needed to address the variety of offenders’ criminogenic needs. Instead, diversion courts and diversion programs should establish relationships with local providers and rely on them to provide needed services. However, as I discuss below, this is not just a matter of having local vendors to provide services. There must be serious consideration given to quality of services provided.
Individualized Justice
Sentencing and corrections have amounted to putting convicted offenders into a limited number of categories and all or most in each category get the same sanction or intervention. Assaultive offenders get anger management classes. Substance abusers get six-week outpatient classes or are ordered to attend AA meetings. First-time DWI offenders get alcohol awareness classes. The same applies for punishment. States with determinate sentencing do this more deliberately: those with offense level X and criminal history category Y get Z years of incarceration. States with indeterminate sentencing get to the same place more slowly by considering aggravating and mitigating circumstances, but in reality the sentencing outcomes become fairly standard for categories of offenders with similar characteristics, although there are many exceptions.
The point is an obvious one. Offenders come into the criminal justice system with some shared circumstances, but at the same time, they exhibit considerable differentiation in circumstances. Why would we expect an anger management class to work the same way and have the same impact for offenders that may share a small number of things in common (age, gender, aggressive behavior), but may differ greatly in terms of substance use, psychiatric well-being, employment status, income, marital status, cognitive abilities, intellectual capability, and so on.
Diversion programs are designed to provide the opportunity to identify and consider individual circumstances and in turn to tailor programs to particular individual needs and abilities. Offenders’ needs vary in terms of severity. Some with substance problems may perform well with outpatient services, others may need thirty-day residential treatment, and still others may requite six months of inpatient treatment. We need to get serious about identifying the particular needs and circumstances of individual offenders and stop trying to make one size fit all. It does not work, it is a waste of resources, and it compromises public safety.
Multiple Criminogenic Needs
Properly matching programming to offender needs and capabilities is one important aspect of individualized justice. This is the responsivity principle discussed in chapter 3. However, there is an often-neglected aspect of diversion and problem solving that has far greater consequences for the effectiveness of intervention. Offenders typically enter the justice process with a variety of criminogenic circumstances. We often identify the more obvious one or the one for which a diversion program exists. We usually do not have much clinical assistance in determining which need (if any) is addressed and how. The other needs remain unaddressed.
We need to get serious about identifying the multitude of needs of individual offenders, effectively triage those identified needs, and develop a program to address the most serious needs first in an appropriate sequence. This will require clinical expertise, case management, and a variety of resources. Absent these efforts, we will continue to see suboptimal outcomes from correctional intervention.
Offender Accountability
The jurisprudence component of therapeutic jurisprudence involves holding the offender accountable and responsible. This is accomplished by regular appearances in court, client monitoring, and drug testing, among others, and then having appropriate sanctions in place for failure to comply. Evidence indicates that swift and certain consequences or sanctions are effective in encouraging compliance (Office of Justice Programs, National Institute of Justice, 2012). The sanction court concept, modeled after the Hawaii HOPE Court, provides an evidence-based approach to enhance compliance and perceptions of fairness. At the beginning of the diversion process, participants are subject to a warning hearing or orientation hearing in which the judge explains the ground rules, what is expected from participants, what participants can expect from the court, and what types of sanctions are involved. When a participant is in noncompliance, the court then swiftly imposes the sanction. The research indicates dramatic increases in compliance and completion as well as significantly lower revocation rates.
GETTING SERIOUS ABOUT DRUG DIVERSION
Drug law violations constitute the most common type of criminal offense (Glaze and Bonczar 2009) and prevalence studies estimate that over 50 percent of state and federal prison inmates meet the Diagnostic and Statistical Manual for Mental Disorders criteria for drug abuse or dependence (Bureau of Justice Statistics). Yet fewer than 15 percent receive any drug treatment while incarcerated (Karberg and James 2005; Karberg and Mumola 2006).
Substance abuse, addiction, and dependence are the most common criminogenic factors in the U.S. criminal justice system. Substantial research has established the variety of drug-crime linkages, including the psychopharmacologic effects of drug or alcohol use on the propensity to commit crimes, the economic incentive to commit crime in order to buy substances, the victimization of drug users, and the violence associated with the drug trade, multiplied many-fold due to the Mexican cartels’ activities on both sides of the border. Research clearly demonstrates that as the frequency and intensity of drug use increases, so does criminal offending (Anglin, Longshore, and Turner 1999; Anglin and Maugh 1992; Anglin and Perrochet 1998; Ball, Shaffer, and Nurco 1983; Bhati and Roman 2010; Boyum and Kleiman 2002; Brownstein et al. 1992; Chaiken and Chaiken 1990; Condon and Smith 2003; Dawkins 1997; DeLeon 1988a, 1988b; Goldstein 1985; Harrison and Gfroerer 1992; Inciardi et al. 1996; Inciardi 1992; Inciardi and Pottieger 1994; Johnson et al. 1985; MacCoun and Reuter 2001; Miller and Gold 1994; Mocan and Tekin 2004; MacCoun, Kilmer, and Reuter 2003; Stewart et al. 2000; Vito 1989). There is also a wealth of research that indicates that drug and alcohol treatment for the offender population is effective in reducing drug/alcohol use and abuse and reducing the associated offending and victimization.
In short, alcohol and drugs are a key criminogenic problem and treatment can reduce use and recidivism. Moreover, research indicates that treatment is more cost-effective than incarceration (Caulkins and Reuter 1997; Lipsey and Cullen 2007; MacKenzie 2006).
One of the principles of effective correctional intervention (discussed in chapter 3) is the administration of treatment in a community setting, rather than in a custodial setting such as prison or jail. Diversion through a drug court is an increasingly popular mechanism for delivering treatment designed to reduce substance use and recidivism. I now turn to the effectiveness and cost-effectiveness of drug diversion courts.
Drug diversion courts have been the subject of a substantial amount of research and evaluation. The volume of research that has been conducted permits several clear conclusions (Aos, Miller, and Drake 2006a; Belenko, Patapis, and French 2005; Bhati, Roman, and Chalfin 2008; Carey et al. 2006; Barnoski and Aos 2003; Caulkins and Reuter 1997; Finigan, Carey, and Cox 2007; GAO 2005; Gottfredson et al. 2005, 2006; Lipsey and Cullen 2007; Logan et al. 2004; Loman 2004; Lowenkamp, Holsinger, and Latessa 2005; MacKenzie 2006; Rossman et al. 2011a; Shaffer 2006; Turner et al. 1999; Wilson, Mitchell, and Mackenzie 2006).
Drug court diversion significantly reduces recidivism on average by 26 percent. The best drug courts reduce recidivism by as much as 35 to 40 percent, and the magnitude of the recidivism outcome depends on the particular court. Drug court diversion significantly reduces drug relapse, and drug court participants are significantly less likely to test positive for drug and alcohol use, and less likely to use “serious” drugs when they relapse. Relapses are also less frequent and shorter than for comparisons. The reduction in drug/alcohol use and recidivism appears to persist over time after drug court graduation. Drug court diversion has higher treatment retention rates compared to drug/alcohol treatment in the general population. Drug court diversion is associated with other positive psychosocial outcomes such as a significantly reduced need for employment, educational, and financial services. Economic studies have found that drug/alcohol treatment is more cost-effective than incarceration.
While drug courts require greater upfront investment than “business as usual” in services like addiction/abuse treatment, mental health treatment, housing assistance, case management, and drug tests, among others, the research clearly demonstrates substantial longer-term cost savings through reduced involvement in the justice system. The estimates range from $2.21 in direct justice system benefits for every $1 invested in drug courts. When targeting more serious, high-risk offenders, the net benefit is $3.36 for every $1 invested. Furthermore, there is evidence that the indirect, collateral savings to the broader community range between $3,000 and $13,000 per court participant.
The takeaway from the drug court research and evaluation literature is that drug courts are effective and cost-effective. I now turn to a discussion of the key components of drug courts. The Multi-Site Adult Drug Court Evaluation (MADCE) (Rossman et al. 2011a and b) provides a detailed look of not only the effectiveness and cost-effectiveness of drug courts, but it also demonstrates which drug court components are more important in producing positive outcomes.
The judge is critical for outcome success. The role of the judge in a problem-solving court and in particular in a drug court is pivotal in enhancing the perception of fairness, respect, and a genuine interest in clients’ well-being. Participants who have a more positive attitude toward the judge have better outcomes (Rossman et al. 2011a and b). This finding holds regardless of participant demographics and socioeconomic status (SES). Additional research on drug court judges found that judges who are perceived to be fair, respectful, attentive, consistent, enthusiastic, caring, and knowledgeable presided over courts with better outcomes, compared to drug courts in which the judge was not so perceived. Careful selection of the judge is critical to the success of the program.
Judicial status hearings are an essential component of drug court operation (Carey, Finigan, and Pukstas 2008; Festinger et al. 2002; Marlowe, Festinger, and Lee 2004a, 2004b; Marlowe et al. 2006, 2007). One of the primary beneficial components of frequent judicial hearing is that it increases the interaction between participants and the judge (clearly this is beneficial if the judge is perceived as fair, respectful, and interested in participants’ well-being). The frequency of such status hearings is phase dependent and specific to individuals’ progress and maintenance of sobriety.
Consistent point of entry into the court is important for therapeutic success. While the MADCE results indicate that the desistence effects of drug court participation did not vary by offender type, there is evidence that courts that limit admission to either preadjudication or postadjudication (but not both) had better outcomes. Whatever the reason, the MADCE results indicate that courts that permit multiple points of entry should consider limiting entry to individuals at the same point in judicial processing.
Progressive sanctions and incentives play a key role in motivating positive behavioral change (Farole and Cissner 2007; Goldcamp et al. 2002; Hawken and Kleiman 2009; Lindquist, Krebs, and Lattimore 2006). Predictable imposition of gradually escalating sanctions, including short intervals of jail incarceration, have been shown to significantly enhance outcomes as long as the sanctions are perceived to be sufficiently severe by participants. Judicial praise is a very important incentive.
Drug testing is also essential in holding participants accountable and keeping them motivated. Frequency of UA testing is phase- and progress-dependent (Carey, Finigan, and Pukstas 2008). Drug testing is more effective if it is truly random.
Not all substance abuse treatment programs are designed and operated the same. The research clearly indicates that evidence-based treatment programs provide better outcomes. Evidence-based treatment programs are characterized by being highly structured and clearly documented, applying behavioral-cognitive interventions, being tailored to individual needs including length of treatment, and being culturally sensitive. The MADCE research indicates that treatment dosage between thirty-five and sixty-five days is optimal (referring to inpatient and outpatient treatment and counseling). The point is that the treatment plan must be tailored to the needs of the individual participant in terms of type of treatment and dosage.
Case management is an important component for reducing recidivism. The MADCE findings show that frequency of contact with a case manager is an important predictor of reduced relapse and reduced reoffending.
A multidisciplinary team approach, which includes cooperation and collaboration by the judge, the prosecutor, defense counsel, treatment providers, law enforcement, court clinicians, and case managers, is essential. Evidence indicates that if any of these professional disciplines is regularly absent from court staffing and judicial status hearings, the effectiveness of the court is dramatically reduced (Carey, Finigan, and Pukstas 2008; Carey et al. 2011).
Many jurisdictions have implemented drug diversion courts over the past twenty or so years. However, one thing that is safe to conclude that most share in common is that their capacity is well below need or demand. Estimates vary, but the consensus is that less than 5 percent of the potentially eligible defendant population ever participates in drug diversion court (Bhati and Roman 2010; Pollack, Reuter, and Sevigny 2011). The message is clear that in most jurisdictions, diversion through specialized courts is the exception, not the rule, in terms of numbers of offenders.
There are two primary reasons for the limited caseloads in drug courts: restricted eligibility criteria and limited capacity. As Pollack, Reuter, and Sevigny (2011) note, the limited capacity of current drug courts and their restrictive eligibility criteria, focusing on relatively low-risk offenders, render drug courts as currently configured and operated unable to significantly impact crime rates and prison populations.
The scientific evidence clearly indicates that drug diversion courts work for a wide variety of offenders, that they significantly reduce relapse and recidivism, and that they are cost-effective. It is time to consider the possibility of a substantial expansion of eligibility criteria and a dramatic scaling up of capacity.
There were over 2,450 drug and alcohol courts in the United States in 2009 (this includes drug courts, DWI courts, juvenile and family drug courts, tribal, federal, and veteran drug courts [Huddleston and Marlowe 2011]). Roughly 1,400 of these are adult drug courts in the United States. A recent drug court survey (Rossman et al. 2011a) indicates that most courts have relatively small numbers of participants. Forty-six percent have fewer than fifty participants; two-thirds of the drug courts in the United States have fewer than seventy-five participants. Case flow statistics show an average of eighty-nine new admissions annually (median of forty-one), and an average of forty-two program graduates (median of seventeen). Slightly over one-half of the courts in the survey reported that there are more individuals eligible to participate than there is available capacity.
Eligibility criteria for the vast majority of the courts (96 percent) limit participation based on criminal history. Nearly all courts limit entry to individuals with no prior violent convictions. Interestingly, most courts do not exclude defendants based on the number of prior convictions. Eligibility is also based on the nature of substance use. Slightly over one-third (38 percent) of the courts require that participants be diagnosed as addicted or dependent. Another third require that participants are frequent or regular users, as well as diagnosed as addicted. Surprisingly, 29 percent admit anyone who used illegal drugs, regardless of whether they are diagnosed as addicted or dependent.
The vast majority of drug courts have exclusion criteria in addition to the instant offense and violent priors. The most typical is a refusal by a defendant to participate (86 percent of courts), a suspicion a defendant is a major drug trafficker (79 percent), a defendant is a sex offender (72 percent), the presence of a co-occurring mental disorder (70 percent), and prosecutor discretion (57 percent).
Ironically, many drug courts are designed to exclude longer-term cocaine, heroin, and methamphetamine users. Research indicates (Hser et al. 2001; Hser 2007; Hser et al. 2007) that longer-term cocaine and heroin users tend to have extensive criminal histories for violent crimes and tend to have co-occurring disorders. It is these higher-risk offenders for whom the drug court impact is more substantial. Moreover, targeting high risk is one of the principles of effective correctional intervention discussed in chapter 3.
The MADCE research results lead to several significant recommendations for drug court policy and procedure. One of the most important involves the eligibility criteria for participants (Rossman et al. 2011a: 260):
A pressing question for the drug court field has been “for whom drug courts work.” A critically important finding emerging from the MADCE study is that drug courts work equally well in reducing crime and drug use for nearly all client subgroup populations, and the mechanism through which these reductions result—positive attitudes towards the judge—is the same across subgroups, even when accounting for client demographics, drug use and criminal histories, and mental health. One positive exception to this is that for offenders with violent criminal histories, drug court had a greater positive impact on reducing crime.
The MADCE researchers thus recommend expanding drug court eligibility criteria in order to include a greater variety of criminal histories, drugs of choice, and particular mental health problems. Moreover, the research findings indicate that violent offenders perform equally well in drug courts in terms of relapse reduction and are helped even more than typical drug court participants in terms of crime reduction. The MADCE research found no evidence to support the practice of “creaming,” which is limiting admission to low-risk offenders for whom the probability of success is perceived to be high. This practice is directly contrary to the risk principle.
Recent research by Bhati and Roman (2010) provides estimates of the benefits of taking drug courts up to scale by changing eligibility criteria and expanding capacity. Bhati and Roman present national estimates of the number of participants admitted and the number of crimes averted under different scenarios, including expanding capacity to treat all currently eligible offenders and expansion of eligibility criteria by relaxing instant offense restrictions (including the violence restriction). Under current eligibility criteria and capacity limitations, Bhati and Roman estimate that drug courts avert approximately 34 million drug crimes and 170,000 nondrug crimes. By expanding capacity to admit all currently eligible offenders, they estimate that drug courts would avert 65 million drug crimes and 342,000 nondrug crimes.
Clearly, these benefits to expansion of drug court caseloads are impressive. But what is missing from the analyses is the cost side, as well as more refined assumptions about treatment effects, retention, and so on. However, the simulations produced by Bhati and Roman indicate that there is good reason to seriously consider a substantial expansion of drug court capacity and substantial modification to eligibility criteria. The research clearly demonstrates that drug courts are equally effective with higher-risk offenders and that the benefits are greater than with low-risk offenders.
A related concept is diversion to probation without verdict (also known as deferred adjudication or deferred prosecution). This type of diversion is designed to place drug offenders in community-based treatment while under probation supervision. The leverage is that such dispositions typically require a plea of guilty or nolo contendere, which means that if a participant fails to meet the conditions imposed, they can be immediately sentenced. If they succeed, the plea is vacated and the individual may also be able to expunge the arrest. California expanded probation without verdict for drug offenders in 2000 (Proposition 36), allowing this disposition for a large segment of the drug offender population. Research shows that the outcomes of this diversion are mixed. The lower-risk segment of the population of drug offenders (those with relatively limited criminal backgrounds) perform relatively well and benefit from treatment. Higher-risk offenders had lower treatment compliance and higher rearrest rates. One takeaway from this research is to improve the identification of candidates for probation without verdict. Another consideration, discussed in greater detail in subsequent chapters, is a supervision and sanction protocol (the HOPE Court model) that emphasizes swift and certain sanctioning for noncompliance but not revocation, unless there are clear and compelling reasons for incarceration.
GETTING SERIOUS ABOUT MENTAL HEALTH DIVERSION
On December 13, 2012, a lone gunman entered Sandy Hook Elementary School in Newtown, Connecticut, and summarily murdered twenty children and eight adults. Two primary findings quickly emerged: he used an assault rifle, among other weapons, and there was evidence that he was mentally ill. All too often, the combination of dangerous weapons and mental illness produce horrific results.
The issue of gun control has been debated for decades. In 1994, the federal government banned some types of assault weapons. The federal law prohibited the manufacturing of eighteen specific models of semiautomatic weapons, along with the manufacturing of high-capacity ammunition magazines that could carry more than ten rounds. The ban was allowed to expire during the Bush administration. The current response from the gun lobby is that the problem is not assault weapons, but mental illness. Wayne LaPierre, the executive vice president of the National Rifle Association (NRA), stated just days after the Newtown shooting that “We have a mental health system in this country that has completely and totally collapsed.” It is interesting that this situation has resulted in the NRA serving as an advocate for mental health treatment.
One of the most troubling trends in the U.S. criminal justice is the phenomenal growth in the prevalence of mentally ill individuals in the justice system. This trend closely follows the trends in crime control policies, sentencing reform, and the incarceration boom.
It is an often-recounted story. Public mental health treatment in the United States has a long history of “public neglect and penny pinching.” That characterization from a 1946 Life Magazine exposé of the state of the psychiatric hospital system went on to describe widespread abuse and hazardous living conditions, including inadequate staffing, substandard treatment, inappropriate use of restraints, and providing little more than simple custodial care (National Leadership Forum on Behavioral Health/Criminal Justice Services 2009). The Life Magazine article concluded that state psychiatric hospitals were “costly monuments to the States’ betrayal of the duty they have assumed to their most helpless wards.”
The familiar story of deinstitutionalization involves the dismantling of the psychiatric hospital system in the United States and the “replacement” of that system with local, community-based treatment centers. Reasonable concept, but very poor execution. For the most part, the capacity for inpatient treatment lost with the dismantling of the old system was never replaced, leading to extraordinarily limited public inpatient treatment. The National Leadership Forum (2009) experts note that the failure to provide adequate capacity for inpatient mental health treatment and substantial restriction of eligibility and access to public behavioral health services, combined with changes in sentencing laws and procedures, and a focus on quality of life offenses, has led to approximately 300,000 to 400,000 mentally ill prison and jail inmates and 500,000 mentally ill individuals on community control (probation, parole, deferred adjudication, and other forms of diversion). There are two key factors that present significant barriers to accessing mental health care: lack of insurance or sufficient behavioral health coverage for those with insurance, and lack of adequate capacity for treatment.
The President’s New Freedom Commission on Mental Health (2003) sent its final report to President George W. Bush. The Commission reported the following:
Mental health delivery system is fragmented and in disarray … lead[ing] to unnecessary and costly disability, homelessness, school failure and incarceration. … In many communities, access to quality care is poor, resulting in wasted resources and lost opportunities for recovery. More individuals could recover from even the most serious mental illnesses if they had access in their communities to treatment and supports that are tailored to their needs.
The Congressional Research Service (CRS) (2009) reported the current state of access to mental health treatment in the United States in quite dismal terms. Despite substantial advances in the understanding and effective treatment of mental illness, access is extraordinarily limited. The CRS estimates that over 17 percent of the U.S. population lacks health insurance, and there is a substantial amount of underinsurance for mental health treatment for individuals who have health insurance. Limited access is also a function of lack of available treatment providers, especially in rural areas. In 2008, two-thirds of the Health Professional Shortage Areas (HPSAs) were in rural areas. All told, there were over 3,000 HSPAs in the United States in 2008, potentially affecting 77 million individuals living in those areas.
The Substance Abuse and Mental Health Services Administration (SAMHSA), through the National Survey on Drug Use and Health, reports that only 13.4 percent of the U.S. population received any mental health services in 2008. This is well below the estimated 26 percent of the U.S. population who experience mental illness in a given year. Moreover, in a recent study, while 3 million individuals in the United States aged twelve and over received treatment for a substance abuse disorder, 18 million reported abusing or being dependent on alcohol, illicit drugs, or prescription drugs. Kessler and colleagues (2005) report that only 41 percent of adults aged between eighteen and fifty-four who met a definition of serious mental illness received any treatment for that problem (saying nothing about the quality, duration, or effectiveness of that treatment). Data from a survey conducted by the National Alliance for Mental Illness (NAMI 2005) shows significant variation by state in terms of public funding for mental health treatment. On average, NAMI reports that state mental health agencies are funded to serve just 28 percent of individuals with serious mental illness, from a low of 15 percent in Vermont to a high of 55 percent in New York.
One of the more significant consequences of the shift in the treatment model is the critical lack of nonforensic inpatient treatment beds for longer-term, structured care for the seriously mentally ill. In 1955, there were 339 psychiatric inpatient treatment beds per 100,000 Americans. In 2014, there are just 22. And many of those beds are filled with court-ordered forensic and competency cases. The availability of treatment beds varies significantly by state. For example, in California, there are just 2 nonforensic inpatient treatment beds per 100,000 people (Lamb and Weinberger 2005). Recent research recommends 50 per 100,000.
Recent statistics for Texas reflect the situation in a state with serious limitations on access to public mental health care (NAMI 2009). In 2010, only 33 percent of the estimated number of Texas adults with a serious, persistent mental illness received any services or treatment from the public mental health system. Only 29 percent of Texas children with a severe emotional disturbance received any services or treatment. While there are many reasons for these deficits, one of the primary ones is lack of adequate capacity to treat individuals with mental illness. It is not at all unusual in Texas for the public mental health treatment facilities to have extensive waiting lists and delays of months to get an appointment.
Another issue involves the quality of mental health care when it is provided. Significant departures from evidence-based treatment practices have been repeatedly reported in a variety of studies (cited in Board of Health Care Services 2006). In a landmark study of the quality of mental health care for a limited number of conditions in the United States, McGlynn and colleagues (2003) found that individuals diagnosed with depression received evidence-based treatment 58 percent of the time. Individuals diagnosed with alcohol dependence received evidence-based care 11 percent of the time.
Anecdotal evidence reported by Board of Health Care Services (2006: 6) may not necessarily be generalizable, but nevertheless is particularly troubling:
Poor care has serious consequences for the people seeking treatment, especially the most severely ill. One review of the charts of 31 randomly selected patients in a state psychiatric hospital detected 2,194 medication errors during the patients’ collective 1,448 inpatient days. Of those errors, 58 percent were judged to have the potential to cause severe harm (Grasso et al. 2003). The use of seclusion and restraints in inpatient mental health facilities is estimated to cause 150 deaths in the United States each year (SAMHSA 2004b). Moreover, a continuing failure of the health care system in some cases to provide any treatment for M/SU illness has been documented (Kessler et al. 2005), even when people are receiving other types of health care and have financial and geographic access to treatment (Jaycox et al. 2003; SAMHSA 2004a; Watkins et al. 2001). Diagnostic failures and failures to treat can be lethal; M/SU illnesses are leading risk factors for suicide (Maris 2002).
Thus, it comes as no surprise that the criminal justice system has become the system that cannot say no. To that point, 40 percent of individuals with mental illness have been or will be in prison and/or jail at some point in their lives. This is not to imply that mental illness causes crime. Instead, mental illness is a correlate or criminogenic risk factor. Untreated mental illness can produce symptoms that are fear invoking, threatening, disorderly, and sometimes violent. In many of these situations, it is the justice system that responds.
In addition, a recent study in the Los Angeles County jail found that 75 percent of individuals with severe mental illness (defined in this study as schizophrenia, schizoaffective disorder, bipolar disorder, and major depressive disorder with psychotic features) had at least one prior arrest for a violent offense (Lamb et al. 2007). The Bureau of Justice Statistics (BJS) estimates that in 2005, over half of the inmates in U.S. prisons and jails had a mental health problem (Bureau of Justice Statistics 2006). The 2005 estimates are the most recent that have been published by BJS. The definition of mental illness used for this study was a clinical diagnosis or treatment by a mental health professional and/or exhibition of symptoms within the past twelve months. Symptoms of a mental health disorder were based on the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV). Granted, this is a liberal definition of mental illness (MI) and there is tremendous variation in severity, need for treatment, and type of treatment. Nevertheless, the prevalence of MI in state prisons was estimated at 56 percent; for federal prisons it was 45 percent, and for local jails it was 64 percent. While definitions and measurements of mental illness differ from study to study, it cannot be denied that the prevalence of MI in the nation’s prisons and jails is two to three times the prevalence in the general population. Today, there are over three times as many seriously mentally ill persons in prisons and jails than in inpatient psychiatric treatment hospitals (Torrey et al. 2010).
Serious mental illness (SMI) is usually defined as schizophrenia, bipolar disorder, and major depression. Research shows that the prevalence of SMI in U.S. prisons and jails is two to three times that of the general public. Estimates show that approximately 16 percent of state prison inmates suffer from SMI, up from 6.4 percent in 1983. Steadman and colleagues (2009) estimate that nearly 15 percent of male jail inmates and 31 percent of female jail inmates have a current serious mental illness. When PTSD is included (as is recommended under the trauma-informed care protocol), the estimates rise to 17 percent for males and 34 percent for females.
Co-morbidity (the presence of more than one mental health problem) is common. The BJS research referenced above reports that 42 percent of state prison inmates were found to have both a mental health problem and a substance abuse problem. The BJS data indicate that 49 percent of jail inmates have a co-occurring mental health problem and a substance abuse problem. Co-morbidity also takes the form of multiple, nonsubstanceinvolved psychiatric diagnoses.
Research has demonstrated that mentally ill individuals who also abuse drugs and alcohol have a higher likelihood of ending up in the justice system on drug charges and intoxication charges (Lurigio 2004, 2011; Swartz and Lurigio 1999). Moreover, mentally ill individuals who use illicit drugs are more likely to be violent, and are again at higher risk of arrest and prosecution for that reason compared to mentally ill persons who do not abuse illicit drugs (Clear, Byrne, and Dvoskin 1993; Harris and Lurigio 2007; Swanson et al. 1997; Swartz et al. 1998). This accounts in part for the presence of seriously mentally ill individuals in prison. As Lurigio (2011) and Lurigio and Swartz (2000) indicate, the absence of treatment for co-morbid disorders and, when it does exist, the fragmentation of the mental health and substance abuse treatment systems, further aggravates the problem and serves to heighten the likelihood of criminal justice intervention rather than treatment intervention.
It is also well established that significant numbers of individuals with SMI share many of the other criminogenic circumstances as the rest of the criminally involved who are not seriously mentally ill—unemployment, poverty, lack of education, and substance use (Lurigio 2011; Fisher, Silver, and Wolf 2006). Moreover, there is a strong link between mental illness and homelessness. Is has been estimated that approximately one-third of the nation’s homeless suffer from schizophrenia or bipolar disorder. At any moment, there are more mentally ill persons living on the streets than are receiving care in hospitals (Mental Illness Policy Organization).
Neurocognitive impairments and deficits are common among individuals with substance abuse problems, mental health problems, the homeless, individuals living in poverty, and individuals exposed to trauma, abuse, and neglect. Failure to screen and assess neurocognitive problems dramatically reduces the likelihood of successful outcomes.
No matter how it is measured, mentally ill individuals are substantially overrepresented in prisons and jails. Thus the label “the asylum of last resort.” Unfortunately, everything we know about mental health treatment and incarceration clearly indicates that prisons and jails are not appropriate venues for mental health treatment, even if (and this is decidedly not the case) sufficient treatment resources were available to inmates.
A well-researched report on the state of mental health treatment in U.S. prisons (Human Rights Watch 2003: 3–4) paints a fairly bleak picture:
Mentally ill offenders face mistreatment and neglect in many U.S. prisons. One in six U.S. prisoners is mentally ill. Many of them suffer from serious illnesses such as schizophrenia, bipolar disorder, and major depression. There are three times as many men and women with mental illness in U.S. prisons as in mental health hospitals. The rate of mental illness in the prison population is three times higher than in the general population. Other prisoners victimize and exploit them. Prison staff often punish mentally ill offenders for symptoms of their illness, such as being noisy or refusing orders, or even self-mutilation and attempted suicide. Mentally ill prisoners are more likely than others to end up housed in especially harsh conditions, such as isolation, that can push them over the edge into acute psychosis. Woefully deficient mental health services in many prisons leave prisoners undertreated, or not treated at all. Across the country, prisoners cannot get appropriate care because of a shortage of qualified staff, lack of facilities, and prison rules that interfere with treatment.
The National Leadership Forum on Behavioral Health/Criminal Justice Services (2009: 3) reported an overview from studies of mental health treatment and services in incarceration settings. The irony is telling: “Equally reminiscent of the past, among the more pervasive findings from these investigations are severely inadequate staffing, substandard treatment, inappropriate use of restraints and provision of little more than custodial care.”
A more balanced and effective approach to dealing with mentally ill individuals coming into contact with the justice system is a more concentrated focus on diversion. Clearly, some mentally ill offenders should be adjudicated and sentenced in criminal courts. Mental illness should not be an excuse for criminal behavior. However, mental illness is often a mitigating circumstance that should be considered from the very first point of contact with the justice system. I now turn the discussion to diversion.
It is important to get our expectations clear. Treating mental illness alone may have no direct impact on recidivism (Lurigio 2011). Serious mental illness does not often in itself lead individuals to engage in crime. However, there is every reason to believe and expect that there are indirect effects of treating mental illness on recidivism and crime. As I discussed previously, mental illness is related to a variety of criminogenic factors, situations, and deficits for which there is clear scientific evidence indicating that they facilitate or cause crime. Poverty is a key component of crime and mental illness; thus, a mentally ill individual may engage in crime more because of poverty than mental illness (Fischer, Silver and Wolf 2006; GAINS Center 2010; Lurigio 2011).
Research has demonstrated that high-risk scores for the “central eight” risk factors (Andrews, Bonta, and Wormith 2006) are often present for individuals with mental illness. The “central eight” include: criminal history, antisocial personality disorder, antisocial cognition, antisocial peers, family/marital discord, poor school/work performance, few leisure activities, and substance abuse. Thus, what may appear as criminal offending as a consequence of MI in reality is a consequence of associated criminogenic circumstances. As Lurigio (2011: 17) concludes:
Treating mental illness could have an indirect effect on recidivism. In other words, relieving symptoms could help PSMI [persons with serious mental illness] become sober and employed, find and retain stable housing, develop better self-control, return to school, mend relationships with family, and follow the designated rules of supervision, thereby avoiding probation and parole violations. Further, relieving the symptoms of major mental illness can make PSMI more amenable to interventions that will have a positive effect on crime, such as cognitive behavioral therapy that can change criminal thinking (Bonta et al. 1998).
On the other hand, there are instances in which mental illness is the crime, cases of what has been labeled criminalization of mental illness. In those instances, appropriate treatment of MI will likely have a direct impact on reducing contacts with the justice system.
The primary policy argument in favor of diversion and treatment is not necessarily that there is a direct effect of mental illness on crime, and thus, when the mental illness is treated, we can expect a reduction in recidivism as a direct result of that treatment. It is more complex than that. But the evidence indicates that treating mental illness is a necessary step toward reducing recidivism.
Jail diversion for individuals with serious mental illness and/or co-occurring disorders who have contact with the criminal justice system redirects or diverts selected individuals from jail to community-based treatment resources. The initial impact is avoidance of or dramatic reduction in jail time.
Jail diversion involves two broad processes, depending on when and how the diversion works. First, diversion requires the identification of appropriate candidates and redirection from criminal justice processing to treatment. Second, diversion requires appropriate community-based mental health, substance abuse, housing, employment, and other services.
The usual first point of contact that a mentally ill person has with the justice system is law enforcement, typically local police or sheriff. The authority to intervene in a psychiatric emergency derives from the power the law provides the police to transport an individual for psychiatric evaluation and treatment if there is probable cause to believe the individual is at risk of harming themselves or others. On the other hand, if an individual has engaged in a criminal act, law enforcement has the responsibility to determine if psychiatric intervention is required or if the criminal act is the primary concern. As such, law enforcement serves as the gatekeeper for who enters the criminal justice system and, in that context, who enters the mental health system. That is a very important responsibility as it determines not only the short-term disposition of the situation, but such decisions can determine the longer-term trajectory of mentally ill individuals in terms of continually cycling in and out of the justice system, potentially interrupting that cycle, or preventing it from starting in the first place.
The responsibility of law enforcement to serve as the front line in mental health cases poses a significant challenge in terms of use of resources. Law enforcement contacts with mentally ill individuals (Reuland, Schwarzfeld, and Draper 2009) typically involve three things: subjects engaged in low-level misdemeanor crimes; repeated contacts with a small subset of individuals; and significantly more officer time, depending on disposition (the most time-consuming event is transport to an emergency psychiatric facility and then waiting to be seen).
One of the more significant challenges to law enforcement’s mental health triage role is lack of training in dealing with mentally ill individuals. Many observers believe that law enforcement decisions to more readily opt for the criminal justice path when dealing with the mentally ill has led to the increasing criminalization of mental illness (Lamb, Weinberger, and DeCuir 2002). In some situations, a police officer may not recognize that the behavior exhibited by a mentally ill individual is a symptom of mental illness. For example, mental illness may be mistaken for intoxication. Or, in the confusion of subduing an individual, the symptoms go unnoticed. Research has shown that in encounters in which the individual is violent, the likelihood of being arrested is heightened. There may also be an inclination to arrest and book a mentally ill person, especially for a misdemeanor, if it is perceived that there are no other viable alternatives at the moment and that the individual will be assessed and treated in jail. In many jurisdictions, the perception of lack of viable alternatives is quite realistic. Even where there are public mental health treatment services available, the wait to obtain services may render that option untenable. Whatever the reason, one result of taking the criminal justice path is the criminalization of mental illness. Once a mentally ill person enters the justice system, it becomes more likely that he or she will go down that same path the next time and the next time and the next time. However, some have cautioned against overstating the extent and effects of criminalization of mental illness (Junginger et al. 2006).
Many communities have developed strategies to more effectively address encounters with mentally ill individuals. Mobile crisis teams, also known as crisis intervention teams (CITs), mental health units, or mental health response teams generally operate under similar principles (Lamb, Weinberger, and DeCuir 2002; Lamb, Weinberger, and Gross 2004; Steadman et al. 2001). These typically take the form of specially trained police officers that respond to mental health situations. Other prebooking diversion programs have formal liaisons between the police and mental health professionals (referred to as police-based specialized mental health response). Some use mental health consultants to provide expertise in the field when requested by police.
The estimates vary, but a recent survey indicates that there are over 1,000 communities in the United States that have some form of law enforcement, mental health crisis intervention strategy (Reuland, Schwarzfeld, and Draper 2009). Successful prebooking programs have specialized training for police officers, and triage/treatment facilities available twenty-four hours per day with a no refusal policy for individuals who are brought by the police.
These prebooking intervention teams have been found to increase resolution of mental health situations at the scene, increase transport to emergency psychiatric facilities, increase acceptance rates at hospitals, reduce subsequent contacts with police for those referred to mental health treatment, decrease arrests and increase diversion from the criminal justice system, reduce the number of injuries to officers, and reduce certain law enforcement costs associated with things like SWAT callouts. In short, these strategies have helped decrease criminal prosecution of individuals with mental illness, although how much is yet to be determined (Deane et al. 1999; Dupont and Cochran 2000; Lamb et al. 1995; Lamb, Weinberger, and Gross 2004; Lamb, Weinberger, and DeCuir 2002; Reuland, Schwarzfeld, and Draper 2009; Steadman et al. 2000; Wolff 1998).
As the responsibility for dealing with increasing numbers of mentally ill individuals falls on police, it is important that all police, not just members of the mobile crisis teams or CITs, are better trained on a variety of matters relevant for dealing with mentally ill individuals. Research demonstrates that not only is law enforcement not sufficiently trained on such matters, it shows a desire on the part of police to receive such training (Bean 1999; Borum 2000; Lamb, Weinberger, and Decuir 2002; Steadman et al. 2000). Police officers want to learn how to recognize mental illness, how to handle violent and psychotic behavior, how to intervene when someone is threatening suicide, and when to call the mobile crisis unit (Bean 1999; Borum 2000; Lamb, Weinberger, and DeCuir 2002). At a minimum, police training should focus on familiarity with the general classification of mental disorders, learning how to manage individuals with mental illness in crisis, how to access resources in the community, understanding the laws governing mentally ill individuals, as well as de-escalation strategies for situations that could lead to the use of lethal force (Borum 2000; Lamb, Weinberger, and DeCuir 2002).
Postbooking Jail Diversion
Postbooking jail diversion programs divert individuals after arrest or booking into jail. There are two major forms of postbooking diversion: those that divert individuals at the arraignment court to treatment, and those that divert out of specialty courts or regular trial courts to treatment. One thing both types have in common is some form of monitoring of compliance with treatment (CMHS National GAINS Center 2007).
Jail-based postbooking diversion programs are typically operated by pretrial services or specially trained jail staff. The idea is to identify (screen and assess) appropriate candidates, negotiate an arrangement with the prosecutor, judge, and defense counsel for referral to community-based treatment, and link these individuals to the appropriate services (Lattimore et al. 2003).
Court-based postbooking diversion can occur in criminal courts in which diversion staff work in several courts, or diversion may occur in a specialty court. Trial courts that rely on deferred adjudication or conditional release are able to include a broad array of mentally ill defendants, including those with more serious charges and criminal histories that involve some violent behavior (Bush 2002).
Research on jail diversion has produced a short list of the key elements for successful diversion programs (CMHS National GAINS Center 2007):
1. Interagency collaboration, including agencies providing mental health and substance abuse treatment (inpatient and outpatient), physical health, housing, education, veterans services, Medicaid, workforce development, local corrections, and other social services agencies; collaboration assumes formal agreements among agencies when/where required or necessary; there is of course an assumption of an appropriate level of capacity and access.
2. Strong, effective leadership in order to bring the various agencies together and maintain active, collaborative relationships.
3. Big picture staff whose experience and expertise cross traditional boundaries of health, mental health, criminal justice, and substance abuse services.
4. Early screening and assessment for mental health needs and determination of whether detainees meet eligibility criteria for diversion.
5. Specialized, intensive case management; one of the most important components of successful diversion is the direct, active involvement of specialized case management that is sufficiently flexible to provide the level of intensity required by each client; case managers should adopt problem-solving strategies and should be familiar and experienced in various substantive areas, including criminal justice, mental health, substance abuse, housing, health, Medicaid and veterans benefits, among others; issues as routine as transportation are critical for successful diversion.
Bexar County, Texas, the county in which San Antonio is located, has one of the older and demonstrably effective and cost-efficient jail diversion programs in the nation. An obvious necessity for a jail diversion program is somewhere to divert individuals. Bexar County initially focused on mentally ill individuals and developed a venue designed for crisis stabilization. Relatively quickly, officials there recognized a bigger need:
“Initially, the focus of our jail diversion efforts was in the area of the mentally ill,” explains Gilbert Gonzales, Diversion Program Director. “But we soon found that the real question—the real problem for police—is, ‘What is the most appropriate place for this detainee, based on the seriousness of the offense?’” Because hundreds of detainees per month were mentally ill, public intoxicants, or homeless, the cycle of arrest, incarceration, and medical care posed a huge drain on police, hospital, magistrate, and jail resources. (Grantham 2011)
Local officials collaborated with local behavioral health providers, law enforcement, and a variety of community organizations to develop, fund, and resource the Crisis Care Center. The Crisis Care Center is designed to address and provide treatment for mental health, physical health, and substance abuse problems. It is staffed by medical, psychiatric, and social work professionals, and has capacity for sobering, detox, medical attention, and mental health assessment and intervention, as well as transfer to long-term residential treatment for mental illness and substance abuse. This effort has saved Bexar County and the city of San Antonio over $15 million in a two-year period, put more police on the street (rather than the business as usual approach of requiring officers to book individuals in jail or transport individuals to the ER or a state mental health facility). This program has saved money, reduced recidivism, and freed up jail capacity and law enforcement time.
Mental Health Courts
A recent count indicates that there are over 300 mental health courts in the United States (Justice Center, Council on State Governments 2011). Mental health courts were developed in response to the dramatic increase in the prevalence of mental illness in prisons and jails, the inability of the correctional system to effectively and cost-effectively respond to offenders with mental illness, and the extraordinary costs of housing inmates with mental illness.
Mental health courts have been somewhat loosely modeled after drug courts, with the exception that while drug possession is a criminal offense, being mentally ill is not. Therapeutic jurisprudence is still the basis for mental health courts, but in reality, as Steadman and colleagues (2001) note, they operate rather idiosyncratically, with no single, definitive model. Accordingly, there does not appear to be consensus regarding the definition of a mental health court (Christy et al. 2005).
Mental health courts can have a separate docket for selected offenders with mental health problems, they can have a mixed docket with expertise in the courtroom to address mental health cases, or they can be stand-alone courts with a dedicated judge and court staff. The courts determine the appropriate criminal and mental health criteria for eligibility for referral to the court. Some courts limit participation to misdemeanants and individuals with criminal histories of low-level offending; however, in recent years, courts are increasingly admitting more serious felony offenders. Courts that admit offenders with more serious charges often require that they enter a plea and be supervised by criminal justice personnel. These courts are also more likely to use jail time as a method to leverage compliance (CMHS National GAINS Center 2007).
The majority of participants in mental health courts suffer from significant mental illness, including schizophrenia, schizoaffective disorders, bipolar disorder, serious depression, and anxiety disorders. Moreover, approximately 75 percent of mentally ill individuals who have criminal justice involvement also have a co-occurring substance abuse disorder. Thus, one significant challenge for mental health courts is addressing mental illness and substance abuse in a comprehensive and integrated manner.
While there is no consistent model, it appears that most mental health courts share several elements in common (Council on State Governments Justice Center, Criminal Justice/Mental Health Consensus Project 2007, vii). First is a specialized court docket, which employs a problem-solving approach to court processing. Second are judicially supervised, community-based treatment plans for each defendant participating in the court, which a team of court staff and mental health professionals design and implement. Third are regular status hearings at which treatment plans and other conditions are periodically reviewed for appropriateness, incentives are offered to reward adherence to court conditions, and sanctions are imposed on participants who do not adhere to the conditions of participation. Fourth are criteria defining a participant’s completion of the program.
Other essential elements identified by the Consensus Project and others (for example, Mental Health America; NAMI 2008; Ryan et al. 2010) include screening, assessing, qualifying, and admitting to the court as quickly as possible, individual treatment plans developed by clinical staff, timely linkage of clients to evidence-based community treatment resources, monitoring progress, rewarding success and sanctioning noncompliance, and case management, including intensive case management when needed.
The most recent round of evaluation research (CMHS National GAINS Center 2010; Ryan et al. 2010; Sarteschi et al. 2011; Steadman et al. 2010) shows a variety of significant positive outcomes from jail diversion programs. The major findings indicate the clearest impacts on drug and alcohol use, daily functioning, reduced psychiatric symptoms, recidivism, jail days, and timely linkage to social and clinical services. Specifically, short-term (six- and twelve-month) declines in drug and alcohol use as well as use to intoxication were evident for the diverted samples with co-morbidity. Daily functioning, independent living, well-being, and symptom reduction improved for those diverted. Public safety benefits include significant reduction in rearrests for both misdemeanants and felons, as well as reductions in days of detention in jail. On balance, the data demonstrate improved mental health outcomes, enhanced functioning and mitigation of symptoms, reduced rearrests, lower charges for those rearrested, and fewer days in jail (CMHS National GAINS Center 2010).
Mental health courts have been evaluated a fair amount in recent years, although nothing like drug court evaluations. A multisite study reported by Steadman and colleagues (2010) indicates that mental health courts produce measurable public safety benefits, including reduced arrests and reduced days of incarceration. A meta-analysis by Sarteschi et al. (2011) indicates that mental health courts are effective at linking individual participants with local, community-based mental health treatment services compared to individuals in traditional criminal court and traditional jail systems. Sarteschi et al. also report reductions in rearrests and reconvictions for mental health court participants compared to treatment as usual, as well as increased time to rearrest for those who did experience a subsequent arrest.
Sarteschi et al. conclude that the meta-analytic effect size for mental health courts render them “moderately effective” for reducing recidivism. Moreover, they report that mental health courts appear to improve general functioning and reduce psychiatric emergency room visits. Finally, the data indicate that the clinical and justice outcomes are consistently better for those who finish or graduate from mental health court compared to those who drop out or are involuntarily terminated (see also Cosden et al. 2005; Dirks-Linhorst and Linhorst 2012; Herinckx et al. 2005; Hiday and Ray 2010; McNiel and Binder 2007; Moore and Hiday 2006). Some limited research indicates that mental health courts may be cost-effective (Almquist and Dodd 2009; Boothroyd et al. 2003; Council of State Governments Justice Center 2008; Kaplan 2007).
Criminal justice system benefits of mental health courts include quicker disposition of cases compared to traditional criminal adjudication, enhanced communication and collaboration between criminal justice and mental health agencies, and successful targeting of appropriately diagnosed mentally ill offenders (Council of State Governments Justice Center 2008).
There is a pivotal role in mental health diversion for the prosecutor. Referral to a mental health court will often originate in the prosecutor’s office, as will other forms of postbooking jail diversion. This requires that prosecutors are familiar with therapeutic jurisprudence, evidence-based interventions, and the longer-term effectiveness and cost- effectiveness of treatment/intervention. In some cases, this will require a cultural shift as some prosecutors move away from a nearly universal reliance on punishment.
LOW-LEVEL MISDEMEANOR DIVERSION: COMMUNITY COURTS
Diversion programs have also been developed for individuals who are at the lowest end of crime severity. Public order or quality of life offenses have increasingly been the focus of attention in recent years. The argument is that where the physical environment is allowed to deteriorate and public order crime is tolerated and flourishes, land use and commerce can be negatively affected and more serious crimes will likely follow. This is the familiar “broken windows” theory of crime. Public order crimes often have profound economic impacts in terms of reducing land value and retail trade. Probably all large metropolitan areas in the United States deal with quality of life crimes and the revolving door of the municipal justice systems. Substantial portions of individuals who are often involved in petty offending (for example, loitering, aggressive panhandling, sleeping in public, public intoxication, disorderly conduct) are mentally ill, chronically homeless, unemployed, and addicted to or abusing drugs/alcohol.
The first community court was launched in midtown Manhattan in 1993 in response to the order maintenance initiatives that were underway in the subway system, Times Square, and other areas of midtown. It become readily apparent that relying on the municipal justice system for adjudicating and sanctioning petty offenders arrested in the order maintenance initiative was not productive. Behavior was not changed and the revolving door just continued to spin.
Community courts vary substantially in design and operation. However, typical components include screening and assessment, collaboration with local service providers, intervention/treatment, case management, individualized justice, community engagement, restorative justice/community service, and accountability. Typical goals of community courts, as articulated in a survey administered in 2008 (Karafin 2008) include: to help offenders with their problems, reduce crime and reoffending, address community needs, improve public perception of the court and the justice system, increase offender accountability, and renew a focus on quality of life crime. Today, there are sixty community courts in operation globally, thirty-three of which are in the United States (Henry and Kralstein 2011).
The concept underlying community courts is the same as other problem-solving courts: therapeutic jurisprudence. However, community justice has a dual focus of repairing the harm done to the community by low-level crimes and rehabilitating the offender in an effort to reduce recidivism and crime. The restorative focus typically involves community service. The recidivism and crime-reduction component involves both individualized intervention and treatment, as well as bringing the community together in developing strategies for reducing crime and witnessing the justice system at work.
One of the primary mechanisms for accomplishing the goals of assisting offenders with underlying problems and reducing crime and recidivism is an individualized focus, including extensive use of alternative sanctions, and referring/linking offenders to individually tailored community-based social services, such as mental health treatment, drug/alcohol treatment, job training, life skills, counseling, and permanent supportive housing, among others. The use of alternative sanctions and dispositions has a net impact of reducing jail time and providing services designed to address criminogenic circumstances and behavior change. Effective screening and assessment is essential, as is tiered case management for the lower-functioning segment of community court populations.
Community courts serve as the portal to social services for many individuals. Because the criminal involvement of the participants is relatively less serious, community courts have a bit more flexibility in terms of focusing more on treatment and services, and a bit less on risk management and public safety. As such, many seriously disadvantaged individuals can enter the social service network through community courts.
Because of the severity of some participants’ condition and the length of time they have been mentally ill and homeless, they often present at community court with little interest in services. While the offenders who are the primary focus of these courts do not typically have extensive histories of serious crime, there are segments of this population that are very challenging and service resistant. Most metropolitan areas have a portion of the population that is chronically homeless, unemployed, mentally ill, physically unhealthy, and abusing drugs/alcohol, among other circumstances. For example, the Downtown Austin Community Court in Austin, Texas, is currently focusing a substantial amount of court and community rehabilitation resources on approximately 300 repeat offenders (twenty-five or more cases in the court). Many are chronically homeless: 50 percent have been identified as having mental health problems and over 90 percent have substance abuse or dependence problems. The challenge with this chronic population for community courts is that they lack much leverage to motivate participation. Another significant challenge is the lack of sufficient local social service resources. We have already discussed some of the problems associated with access to mental health services and substance abuse treatment. Those constraints are just as critical for community court participants.
The jury is still out in terms of the effectiveness of community courts. Few studies have been completed to date. As of 2011, nineteen evaluations, some outcome, some process, have been completed. The key finding from the process evaluations is that community courts have been able to successfully implement problem-solving strategies. Process evaluations also reported positive perceptions about the courts and about community safety. Community court impact studies have documented changes in sentencing practices, specifically reductions in jail sentences and time served, and increases in sentences of community service and referrals to social services. Some community courts also significantly reduce case processing time and have greater offender compliance with alternative sentences. Community courts also appear to garner community support, including, in two instances, citizens’ willingness to pay more in taxes to support community courts (Midtown Community Court, Hennepin County Community Justice Project, Minneapolis). Positive attitudes about community courts appear to spill over into enhanced perceptions about the justice system and community safety (The Red Hook Community Justice Center, Bronx, New York).
Evidence on crime and recidivism reduction is limited and the research that does focus on crime reduction and lower recidivism is mixed. The midtown court may play a part in reductions in arrests for prostitution and illegal vending, along with economic development and citywide quality of life initiatives (Henry and Kralstein 2011). Other studies focusing on recidivism either lack valid control groups or report statistically nonsignificant effects. While there is evidence of increased referrals and linkages to community social service resources (Henry and Kralstein 2011), little is known about clinical outcomes of participants.
ADDITIONAL CONSIDERATIONS
As I discussed previously, while drug courts have an impressive track record in terms of their presence across the country and in terms of recidivism reduction, our expectations about broader public safety impacts should be tempered due to limited scale. As of 2009, there were 3,650 problem-solving courts in the United States. With a few exceptions, these courts could have their capacity expanded significantly and maintain full caseloads (Huddleston and Marlowe 2011). A primary factor preventing expansion is lack of funding. Until evidence-based diversion courts are taken to appropriate scale, we shall see little aggregate impact on prison and jail diversion, recidivism and victimization reduction, and public safety.
Individuals with serious mental illness and/or substance abuse also typically exhibit many of the criminogenic circumstances and deficits as non-mentally ill offenders (Bonta, Law, and Hanson 1998; Skeem et al. 2008). Additionally, individuals participating in pre- and postbooking jail diversion, entering drug courts and community courts, and participating in other types of diversion programs typically exhibit multiple criminogenic circumstances or needs. Just addressing mental illness, just addressing substance abuse, or just addressing the primary criminogenic circumstance is likely to be inadequate in successfully reducing criminality, recidivism, and victimization in the longer term. Typically, the situation is more complex, involving multiple primary criminogenic needs and multiple secondary needs, including neurocognitive and neurodevelopmental deficits and impairments, all of which probably affect the likelihood of criminality. As discussed in chapter 3, the scientific evidence clearly demonstrates that effectively addressing appropriate multiple criminogenic needs substantially decreases the likelihood of reoffending (Carey 2011).
Supportive housing is a critical criminogenic need among the offender population (National Reentry Resource Center). Research indicates that other treatment outcomes are significantly enhanced for individuals who are housed versus those who are chronically homeless or periodically homeless (Buchholz et al. 2010; Burt and Anderson 2005; Milby et al. 2005; Toros and Moreno 2012). And this makes intuitive sense. Participation in treatment programs is enhanced when individuals are housed. Treatment retention is enhanced, as is treatment success. Thus, the research indicates that housing should be a priority in the array of interventions for criminogenic needs.
Another very important consideration is the significant limitation of local, community-based treatment resources. As crime control and the incarceration boom took both energy and resources away from correctional rehabilitation, state- and local-level funding shifted considerably in the direction of correctional budgets and away from matters such as public mental health treatment, public substance abuse treatment, permanent supportive housing, and employment training, among others. As a result, one of the serious challenges that diversion programs face is the lack of community-based treatment capacity. It should be unacceptable that a local, public mental health facility has a six-month waiting list and is restricted to serving those diagnosed with bipolar disorder, major depression, or schizophrenia. Or that a local public substance abuse treatment facility has a capacity of ten beds (for an area with a population of over 1.5 million). This is anecdotal evidence, but it is characteristic of too many jurisdictions to be the exception.
The point is a simple one in principle, but extraordinarily difficult to implement. Diversion and treatment of many criminal offenders is much more cost-effective than business as usual. Even considering that correctional treatment has high failure rates does not change the conclusion. Every time an offender reenters the justice system, the costs begin anew—costs associated with law enforcement, jail, the prosecutor, pretrial services, the court, a public defender or appointed counsel, and then corrections. Every time this offender reenters the justice system and he or she gets business as usual, we are enhancing the likelihood of a return visit and are simply providing oil for the revolving door.
Policymakers should begin considering the longer-term consequences of funding decisions. Much more is known about the primary criminogenic needs that drive much of criminal offending, and we have the tools to effectively interrupt the cycle of reoffending. What we lack are many state and local governments that are willing to provide adequate financial resources to the social, economic, and medical services that over the long term would provide dramatic cost savings to the criminal justice system and significantly reduce recidivism and crime—in short, an effective and cost-effective path to public safety.
The basic diversion court model is appropriate for application in a variety of other problem areas in the justice system, including veterans, domestic violence, reentry from jail and prison, prostitution, sex offending, and many applications for juveniles. Each of these was the product of some form of creative problem solving, by identifying a persistent problem that is not being adequately resolved by traditional criminal justice adjudication and sanctioning and applying the diversion court model and principles to that problem.
A FINAL NOTE ON DIVERSION AND PUBLIC OPINION
The most recent National Center for State Courts sentencing attitudes survey was conducted in 2006 (Princeton Survey Research Associates International 2006). At that time, the clear majority of respondents embraced alternative sentences for nonviolent offenders. For example, 65 percent supported placing nonviolent mentally ill offenders in treatment and counseling rather than prison; 56 percent supported placing drug offenders in treatment and counseling rather than prison; 63 percent supported requiring mandatory education and job training; and 61 percent supported placing youthful offenders (under age twenty-five) in treatment and counseling.
Support for diversion through problem-solving courts is even higher. The vast majority (82 percent) believe that diverting nonviolent mentally ill offenders through mental health courts in which they receive treatment rather than jail or prison is better than traditional adjudication and punishment. Seventy-eight percent believe drug courts are a better way to sentence drug offenders than jail or prison.
More recent sentencing and corrections public opinion surveys (Pew Center on the States 2012) support the overall thrust of the earlier results. While the Pew survey did not focus on diversion or problem-solving courts specifically, it reported that a majority of respondents believe there are too many individuals in prison and that policy changes should be implemented that shift nonviolent offenders out of prison and into (unspecified) alternatives.
To the extent that public attitudes matter in policy decisions, it appears that there is sufficient popular support for reducing prison populations and expanding diversion programs. It is also likely that these attitudes are even more widespread today as states confront the fiscal realities of crime control and huge, expensive prison systems.
